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Mary A. Nester (WSBA No. 27383, admitted 1997), of Portland, Oregon, was suspended for 30 days, effective September 1, 2005, by order of the Washington State Supreme Court imposing reciprocal discipline in accordance with an order of the Supreme Court of Oregon following a stipulation. This discipline was based on her conduct between 2001 and 2003, involving conflicts of interest and failure to respond truthfully to inquiries during the course of a disciplinary investigation.
In May 2000, Ms. Nester agreed to represent a nursing home in the defense of charges arising out of the deaths of one or more of the nursing home’s residents, and in the assessment, development, and implementation of the nursing home’s corporate compliance program. In April 2001, the Oregon Board of Examiners of Nursing Home Administrators (BENHA) authorized disciplinary proceedings against the client in connection with the deaths. At the time, Ms. Nester owned an interest in a health-care facility management consultant company (hereinafter Company A). With the client’s permission, Ms. Nester hired Company A to provide the client with services in connection with the representation. In December 2001, the client and BENHA entered a consent order to resolve the disciplinary proceedings. The consent order required the client to retain the services of a management consulting firm to evaluate the client’s management practices and submit reports to BENHA. The client selected, and BENHA approved, Company A to perform the evaluations. Ms. Nester continued to represent the client without first having obtained its consent to the continued representation after full disclosure of the potential adverse impact upon Ms. Nester’s professional judgment of her ownership interest in Company A.
In May 2002, the Oregon State Bar received a complaint concerning Ms. Nester’s conduct in the matter. During the investigation, Ms. Nester represented to disciplinary counsel that, before her client entered into an agreement with Company A, she had provided the client with “information orally and in writing regarding potential conflicts as well as identifying the principals of [Company A]. This included advice in writing to seek independent legal counsel . . . .” Ms. Nester had not in fact disclosed the possible self-interest conflict and had rendered no written advice to seek independent counsel. Because Ms. Nester had failed to review her file, she did not know the truth or falsity of the representations when she made them.
Ms. Nester’s conduct violated Oregon DR 1-103(C), requiring a lawyer who is the subject of a disciplinary investigation to respond fully and truthfully to inquiries from and comply with reasonable requests of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers; and DR 5-101(A), prohibiting a lawyer, except with the consent of the client after full disclosure, from accepting or continuing employment if the exercise of the lawyer’s professional judgment on behalf of the lawyer’s client will be or reasonably may be affected by the lawyer’s own financial, business, property, or personal interests.
Felice P. Congalton represented the Bar Association. Mary A. Nester represented herself. |