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In re Complaint As to Conduct of McGraw

Supreme Court of Oregon

April 5, 2018

In re Complaint as to the Conduct of SCOTT W. McGRAW, OSB No. 820032, Accused.

          Argued and submitted September 21, 2017.

          On 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 Bar.

          Scott W. McGraw, the accused, pro se, argued the cause and fled the brief.

          Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn, and Duncan, Justices, and Landau, Senior Justice pro tempore. [*]

         Case 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 18 months.

         The accused is suspended from the practice of law for 18 months, commencing 60 days from the date of this decision.

          [362 Or. 668] PER CURIAM

         In this 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.

         I. FACTUAL BACKGROUND

         We 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).

         A. The Conservatorship

         We find 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.

         In 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 outings.

         [362 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.

         In June 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.

         Soon 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.

         In 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.

         In 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.

         A 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.

         The 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.

         A few 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.

         On 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 paragraph:

"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 $600.00."

         The 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 client matters.

         Daley 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.

         Meanwhile, 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 later.

         In July 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.

         In 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 conservatorship estate.

         After 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.

         As 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 conservatorship petition.

         In 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 his home.

         In 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.

         The 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.

         First, 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.

         Second, 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."

         Accordingly, 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.

         Third, 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, stating,

"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."

         And 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."

         In July 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 [.]"

         In 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 personal ...


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