In re Complaint as to the Conduct of SCOTT W. McGRAW, OSB No. 820032, Accused.
and submitted September 21, 2017.
review of the decision of a trial panel of the Disciplinary
Board OSB 15-21.
Theodore W. Reuter, Assistant Disciplinary Counsel, Tualatin,
argued the cause and fled the brief for the Oregon Stat e
W. McGraw, the accused, pro se, argued the cause and fled the
Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn,
and Duncan, Justices, and Landau, Senior Justice pro tempore.
Summary: The Oregon State Bar brought a disciplinary action
against the accused lawyer, alleging multiple violations of
the Rules of Professional Conduct, arising out of his actions
as conservator for Carol Saslow, now deceased. A trial panel
of the Disciplinary Board found that the accused had
committed all of the charged violations and concluded that
the accused should be suspended from the practice of law for
18 months. Held: On de novo review, the
Court concluded that there was clear and convincing evidence
that the accused committed some but not all of the charged
violations of the disciplinary rules and that the accused
should be suspended from the practice of law for a period of
accused is suspended from the practice of law for 18 months,
commencing 60 days from the date of this decision.
Or. 668] PER CURIAM
lawyer disciplinary proceeding, the Oregon State Bar charged
Scott W. McGraw (the accused) with multiple violations of the
Oregon Rules of Professional Conduct (RPC) arising out of his
actions as a conservator for Dr. Carol A. Saslow, now
deceased. A trial panel of the Disciplinary Board conducted a
hearing, found that the accused had violated those rules, and
determined that the appropriate sanction was suspension from
the practice of law for a period of 18 months. The accused
seeks review of the trial panel's finding that he
committed the alleged violations. For the reasons that
follow, we conclude that the Bar proved some but not all of
the alleged violations, and we suspend the accused from the
practice of law for a period of 18 months.
review the trial panel's decision de novo. ORS
9.536(2); Bar Rule of Procedure (BR) 10.6. The Bar has the
burden of establishing misconduct by clear and convincing
evidence. BR 5.2. Clear and convincing evidence means
"evidence establishing that the truth of the facts
asserted is highly probable." In re Cohen, 316
Or. 657, 659, 853 P.2d 286 (1993).
the following facts by clear and convincing evidence. Carol
and Michael Saslow had been married for over 50 years and had
no children. Carol Saslow was a retired psychology professor
at Oregon State University, specializing in large animal and
horse behavior. Michael Saslow is also a retired
psychologist. They lived on a small ranch with 18 horses; the
ranch was in Carol Saslow's name.
2010, Carol Saslow suffered a massive stroke that left her
paralyzed and unable to communicate. Michael Saslow was
appointed as his wife's conservator and guardian soon
thereafter. He placed her in a care facility, while he
remained on the ranch and cared for the horses. He bought a
van to transport Carol Saslow to medical appointments and
Or. 669] By the time of the first accounting for the
conservatorship, it was apparent that Michael Saslow was
having trouble managing the finances. The conservatorship
owed the care facility over $30, 000, and he had failed to
maintain car or home insurance, file income taxes, pay the
mortgage, or keep up with payments on the van. A lawyer who
had helped the family set up the conservatorship, Daley,
recommended hiring a professional conservator to relieve
Saslow. He agreed.
2011, Daley posted a notice at the circuit court, and the
accused responded to the notice. The accused proposed a fee
schedule of $250 per hour for in-office legal work, $300 per
hour for legal work performed in court, and $150 per hour for
work performed in his capacity as fiduciary. The court
appointed the accused as Carol Saslow's conservator.
thereafter, the accused began to express concern that Michael
Saslow was not cooperating with his efforts and that
Saslow's lack of cooperation might be expensive and
detrimental to the proceedings. The accused also determined
that, although the conservatorship had enough income to pay
for Carol Saslow's care, funds were insufficient to also
maintain the ranch and livestock. The accused began asserting
that Michael Saslow had not properly managed the
conservatorship assets and that he therefore owed the
conservatorship significant sums of money.
August 2011, the accused wrote a letter to Daley charging
Michael Saslow with negligence or malfeasance in executing
his previous duties as his wife's conservator and
beginning a campaign to gain complete control over all of
Saslow's assets. Among other things, in the letter, the
accused demanded that Saslow sign a "liquidation
agreement" to liquidate the ranch to pay certain bills
and then turn over to the accused all of his personal monthly
income in excess of $400.
September 2010, the accused followed up with another letter
to Daley demanding, among other things, that Michael Saslow
turn over to him all of his monthly income, "along with
all bill-paying functions for everything." The accused
stated that he would be happy to establish a budget [362 Or.
670] for Saslow's living expenses but that that budget
would have to be very frugal.
couple of weeks later, the accused sent another letter to
Daley, advising her that he would be objecting to the final
accounting that Michael Saslow had filed after the
accused's appointment. He expressed concern again over
Saslow's failure to cooperate with him and stated that he
might seek a conservatorship over him.
accused and Michael Saslow entered into a settlement
agreement that required Saslow to pay the mortgage on the
ranch and the loan on the van that he had bought to transport
Carol Saslow. The agreement purported to give the accused the
authority to eject Saslow from the ranch and to take
possession of the horses and other assets in the name of the
conservatorship in the event that Saslow failed to comply
with its terms. The court approved that settlement agreement.
days later, the accused moved the court for an order
declaring Michael Saslow in breach of the settlement
agreement, allowing the accused to sell the vehicles,
equipment, and remaining horses, and permitting him, at his
own discretion, to eject Saslow from the property. The court
granted that requested relief in December 2011.
December 16, 2011, the accused, in his capacity as fiduciary,
wrote an email to Michael Saslow, demanding various documents
and records. He closed the email with the following
"Finally, today I spent more than four (4) hours, some
of it with some productivity, and much without, in my trip to
Corvallis. As of today, and until I am satisfied, I will be
charging my time out at my full hourly rates as an attorney.
That means that today cost $1, 000.00 instead of
accused followed through on that threat in his fee petition
in January 2013. The accused later explained that that was a
"leverage technique" that he had used in other
withdrew as Michael Saslow's lawyer. In December 2011,
Saslow hired another lawyer, Christensen, [362 Or. 671] to
represent him in challenging the accused's attempts to
enforce the settlement agreement.
on December 20, 2011, the accused filed an interim accounting
and report with the court, stating that the real property was
significantly encumbered and that, after the late fees were
paid and required repairs completed, it was not likely that
there was any net value to be realized from the property.
Nevertheless, the accused repeatedly threatened to evict
Michael Saslow from that property, for the purpose of
attempting to compel Saslow to comply with his demands. At
the same time, he berated Saslow over his failure to make
payments on the van, and he repeatedly threatened to
repossess the van (Saslow's only means of transporting
his wife). In fact, in March 2012, the accused informed
Christensen that he would be taking possession of
Saslow's house and the van on April 2. However, the
accused did not take action on that threat until sometime
2012, the accused filed a petition to appoint himself as
Michael Saslow's conservator, paying the filing fee with
funds from Carol Saslow's conservatorship estate. The
petition asserted that Saslow was financially incapable. In
support, it cited Saslow's financial difficulties as
conservator for his wife. In addition, the accused filed a
motion to force Saslow to submit to a physical and mental
examination to show his "fitness" to act as his
wife's guardian and to manage his own financial affairs.
The court denied that motion.
October 2012, the accused filed a petition to remove Michael
Saslow as Carol Saslow's guardian and to have himself
appointed instead. In that petition, he cited Saslow's
failure to cooperate with him and Saslow's failure to
provide for his wife's ongoing medical needs. Shortly
after, the accused acknowledged a "claim of conflict
between himself and Michael Saslow" and amended the
petition in which he had sought his own appointment as
Saslow's conservator. He proposed instead that another
lawyer, Griffith, be appointed to serve as Saslow's
conservator. The accused also proposed Griffith as an
alternative to himself as Carol Saslow's successor
guardian. The accused billed the time he [362 Or. 672] spent
on all of the foregoing endeavors to Carol Saslow's
filing the petition to have himself appointed Carol
Saslow's guardian, the accused wrote a letter to the
Saslows' friends and relatives, encouraging them to
support that effort and his attempt to require Michael Saslow
to submit to a mental and physical examination. The letter
asked the recipients to make themselves available for the
proceedings and the court visitor.
required under court rules, the court appointed a court
visitor in October 2012, the fee for which was paid out of
Carol Saslow's conservatorship. The visitor concluded
that Michael Saslow was not financially incapacitated and
that he was capable of making reasoned decisions about his
finances. The accused subsequently withdrew the
November 2012, Christensen moved to modify the settlement
agreement, which, as noted, authorized the accused to remove
vehicles, equipment, and livestock from the ranch and to
eject Michael Saslow from his home. Christensen argued that
the agreement was abusive, in part because the home was not a
viable conservatorship asset, given that, as the accused
himself had reported to the court, it was unlikely that there
would be any net value to be realized from a sale of the
property. Christensen also argued that the accused had made
unjustifiable demands on Michael Saslow for money, documents,
and other things, and frequently threatened to evict him from
February 2013, the accused responded by, among other things,
moving for sanctions against Michael Saslow and asking the
court for advice whether to report Christensen to the Bar and
to press the Benton County District Attorney to prosecute
Saslow for "various fiduciary and other crimes based on
his financial activity as original Conservator for Carol
Saslow." Separately, the accused also sought
approximately $37, 000 in fees.
court held a hearing in March 2013 and then issued a letter
ruling and subsequent order that dealt with all of the
foregoing matters, including the request for [362 Or. 673]
attorney fees. The court's letter ruling included the
following findings and rulings.
respecting the accused's petition to replace Michael
Saslow as Carol Saslow's guardian, the court noted that,
at the hearing, the court visitor supported allowing Saslow
to remain as guardian if he agreed to certain conditions.
Accordingly, the court ruled that Saslow should conditionally
remain as Carol Saslow's guardian.
with regard to Michael Saslow's motion to modify the
settlement agreement, the court observed the obvious
animosity between the accused and Saslow and stated,
"This animosity and conflict has caused [the accused] to
very aggressively enforce the terms and conditions in the
Settlement Agreement *** in a way that appears to the Court
to be unnecessary and unwise."
the court modified its earlier order on the settlement
agreement to require the accused to obtain prior court
approval before seeking to enforce any of the settlement
agreement terms. Additionally, the court specifically stated
that the accused did not have authority either to remove from
Saslow's possession the van that he used to visit and
assist his wife or to eject Saslow from his home without
prior court approval.
the court denied the accused's request for instruction
whether to report Christensen to the Bar and to report
Michael Saslow to the district attorney for prosecution,
"To say the least this is a very unusual request and one
that the Court cannot grant. The Court has no legal authority
to instruct the conservator regarding these matters. If the
conservator wishes to proceed personally in his own name to
pursue either of these matters then that will be up to him to
make that determination."
fourth, the court reduced the accused's fee request from
$37, 000 to about $24, 000. Among the reasons for that
reduction was what the court referred to as the many errors
and "miscategorization of work that should properly be
billed as Fiduciary Time but was actually billed [362 Or.
674] as Attorney Time, " specifically pointing to the
accused's December 16, 2011, email informing Saslow that
he would be charging the time he spent on fiduciary work at
the higher attorney-fee rate. The court explained:
"[T]here was and continues to be animosity and conflict
between [the accused] and Dr. Saslow. It's apparent that
this has clouded the vision of [the accused] to the point
that he is willing to petition the court to take money away
from the protected person Carol A. Saslow to teach a lesson
to Dr. Saslow."
2013, the accused moved the court for an order requiring
Michael Saslow to turn over the van that he used to transport
his wife to appointments, because Saslow had been late with
payments on the van and had allowed the insurance on the
vehicle to lapse. The accused requested an injunction
permitting him to take possession of the van and sell it. The
court denied the motion, noting that, although Saslow had
been driving the van without insurance for a short time, that
problem had been cured and the conservatorship estate had not
incurred any financial loss involving the van based on
Saslow's actions. The court continued:
"It was obvious at the hearing that Dr. Saslow's
actions, or in some cases lack of action, are extremely
emotionally frustrating to [the accused]. It is also apparent
to the Court that Dr. Saslow needs the vehicle in his
possession in order to fulfill his responsibilities as the
guardian for his wife Carol A. Saslow. * * * [I]t would be
unwise and unjust under the circumstances to require Dr.
Saslow to relinquish possession of this vehicle [.]"
September 2013, Carol Saslow died. Her will named Michael
Saslow as her personal representative. A week later, the
accused moved the probate court to remove Saslow as personal
representative. The accused later billed the conservatorship
estate for the time he spent opposing Saslow being named
personal representative in the probate estate. Saslow's
lawyer, Christensen, then moved to terminate the
conservatorship. The accused opposed that motion. He also
wrote a letter to Carol Saslow's relatives and creditors,
urging them to support his bid to remove Michael Saslow as