Misplaced Trust
By: Stephanie Volin
Tags: Oregon, Ethics, Attorney, Lawyers, Justice

Misplaced Trust

In July 2018, the Oregon State Bar abruptly dismissed an ethics complaint filed against Marion attorney James Van Ness by a former client, after a nearly two-year investigation into allegations of financial irregularities and other misconduct.¹ The Bar complaint was dismissed shortly after Van Ness’s client submitted evidence of a secret meeting Van Ness had held with his opponent during the custody case for which he had been hired.

That opponent was Albany-area attorney Megan Perry, who is now disbarred and facing federal charges of identity theft and fraud.² Yet Bar counsel Stacy Owen dismissed the complaint without even asking Van Ness to account for the secret meeting he had with Perry.

Even stranger, despite the compelling mountain of evidence against him, Owen dismissed the complaint without sending it to the State Professional Responsibility Board — the Bar’s ‘grand jury’ — a fact made more alarming due to Van Ness’s troubling conduct during the Bar’s investigation.

It begs the question: How did Van Ness escape all consequences for the kind of well-evidenced allegations that usually end with an attorney’s suspension or disbarment?

Just the facts

In 2016, Megan Perry and her client, Marita Barth, were sanctioned by the court for witness and evidence tampering in a custody case. The court ordered them to pay $5,787.75 to their opponent, Van Ness’s client, Gavin McNett.

A month later, Van Ness met with Perry and Barth, but did not disclose the meeting to McNett, nor did he bill McNett for it. By definition, it was a secret meeting.

Their secret was only discovered years later — through public records request — casually mentioned in a police report filed by Barth the day she and Perry had met with Van Ness.

Two days after their meeting, Perry tracked Van Ness down at the courthouse to pay for the sanctions. But before Perry would give him the check, she made Van Ness sign a receipt stating he had received the money.

Incredibly, Van Ness — a far older and more experienced attorney — signed Perry’s receipt before touching or apparently even seeing the check. After Van Ness signed the receipt, Perry notarized it and filed it with the court the same day — before the check had cleared or even been deposited.

Problematically, the check was drawn upon Perry’s firm account (not Barth’s trust account) and made payable to Van Ness personally instead of to McNett. Consequently, because of Perry’s direct personal interest in the transaction, her notarization of the receipt (and therefore the receipt itself) was, and still is, voidable.

Even more troublesome, Van Ness did not deposit the check directly into McNett’s trust account, despite a retainer agreement which clearly specified that all funds would be placed in trust. It is in fact mandatory to deposit a client’s money into their trust account. Failing to do so is a cardinal sin for lawyers, and misappropriation of even trivial amounts of a client’s money, according to the Oregon Supreme Court, is grounds for disbarment.

The deal, and what immediately followed, strongly suggests that Megan Perry intentionally baited Van Ness with a delicious check made out to him personally (for funds actually belonging to the client) in order to entangle Van Ness in her escalating schemes. If so, it appears to have worked.

Four months after the secret meeting and irregular transaction, McNett had had enough of Van Ness’s excessive billing, unreliable services, and increasing submissiveness to Perry — an attorney who had received her license not three years earlier, who had been sanctioned for witness and evidence tampering, and who was under a daily $100 fine for withheld discovery in that case.

After McNett finally fired Van Ness for wasting his superior position, Van Ness responded by altering his final invoice to claim an outstanding balance:

Van Ness’s second to last invoice had shown that McNett owed him no money, had $1,205.14 available in trust, and had recently paid the prior invoice, #4773, for $2,731.25. The next and final invoice claimed that invoice #4773 had never been paid, and that there was no money left in the trust account. Nor was there any explanation for where the $1,204.15 had gone. Van Ness also billed McNett for $2,233.75 in new charges for “work” allegedly done in his final twenty days.

Put simply, under Van Ness’s bookkeeping, McNett went from a credit of $1,205.14 and no outstanding charges or invoices owed, to a balance due of $4,695. In less than three weeks.

Van Ness used the false “outstanding balance” that he contrived, of $4,695, to claim an attorney lien against McNett, which he then used as an excuse to withhold his client’s file from him, in the middle of a hotly contested custody action with a trial looming.

Upon closer analysis of Van Ness’s bills, McNett found that very few of the checks sent to Van Ness had gone into trust, and that McNett had never received a mandatory trust accounting from Van Ness in his two years of representation. Van Ness still has not done so.

The bar complaint

McNett provided proof of the above conduct to the Bar in late 2016, who opened a complaint. By March 2017, after months in which Van Ness evaded the Bar’s questions and failed to turn over an accounting, the matter was bumped up to the Bar’s disciplinary office for investigation.

At first, Bar counsel Stacy Owen asked Van Ness pointed questions about his invoices and demanded a full trust accounting. She also cautioned him for his lack of candor and cooperation. Nobody could have anticipated how much worse the situation was about to get.

At the same time as the Van Ness complaint crept slowly forward, Megan Perry began to have Bar problems of her own — and by early 2018, when she resigned Form B, Perry had amassed sixteen complaints, including one filed by McNett. Conspicuously, none was filed by Barth, Perry’s own client in that case, despite the fact that Barth had been sanctioned almost $6,000 due to Perry’s misconduct and had a $100 a day discovery fine levied against her — i.e., precisely the type of conduct that a client should complain about to the Bar.

It was then, in February 2018, when the heat on Perry was at full blast, that Van Ness turned from evasive but superficially professional, to desperate and hostile — borderline unhinged against McNett, and seemingly unconcerned about how that might look to the Bar… or anybody else.

Van Ness wrote a seven-page blame-shifting missive against McNett, effectively calling him a conspiracy theorist who, among other things, imagined visiting the FBI’s Portland office to report Perry’s misconduct.

In fact, Megan Perry’s federal charges came from information supplied by Gavin McNett. That is to say, the client certainly did not imagine that he had visited the FBI.

Astoundingly, Van Ness’s defamatory and unprofessional rant against the very sane McNett was unleashed as he continued to withhold the trust accounting that he was now obligated to provide both to his former client and to the Bar. In place of the accounting, Van Ness sent the Bar copies of McNett’s own checks that he should have deposited into trust. Neither McNett nor the Bar needed those.

And then came far, far worse:

As “evidence” to support his outrageous campaign against McNett, Van Ness sent the Bar nearly one hundred pages of privileged emails and communications that they had exchanged. In doing so, James Van Ness violated the other absolutely sacrosanct ethical duty an attorney has to a client: the duty of confidentiality.

The emails and communications that Van Ness stuffed into the Bar’s file had no relation to the allegations of financial impropriety that Van Ness was supposed to be defending.

Instead, the emails were apparently cherry-picked to support a false portrayal of McNett as, for lack of a better word, nuts. It’s as though Van Ness decided it was a winning strategy to claim that it’s okay to convert a client’s funds, so long as they’re crazy.³ (Spoiler: even then it’s not okay.)

Then came the final straw, when whatever shred of professionalism or decency that Van Ness had left simply vanished. Van Ness responded vindictively to an online review that he correctly assumed was written by, or on behalf of McNett.

Chillingly, Van Ness’s response to the rather mild review was to disclose the first name of the minor child that McNett had hired him to protect. Van Ness’s response also stated that McNett — who was identifiable through the disclosure of his child’s distinctive name — had “no credibility.”

McNett is still trying to repair the damage to his life and reputation caused be Van Ness’s destructive campaign against him, and from Van Ness’s objectively monstrous conduct during the Bar’s investigation.

What should have happened

Every one of the above-described instances of Van Ness’s evidently unethical conduct toward McNett should have resulted in some sort of disciplinary sanction — especially since Van Ness’s responses to the Bar were at best inadequate and implausible. And in some key instances, he simply wasn’t asked to provide any.

For instance, Van Ness’s failure to produce an accounting, and failure to deposit into trust the check for $5,787.75 (of funds belonging to McNett) should have earned Van Ness at minimum a suspension. Even if the enormous discrepancies between his final two invoices were merely “accounting errors,” as he claimed — as opposed to theft and fraud — then errors such as those, and the failure to keep an adequate accounting, both also result in some sort of public sanction.

The secret meeting that Van Ness had with Perry and her client — not to mention his failure to disclose it to McNett — seems to implicate the binding Bar rule “involving dishonesty, fraud, deceit and misrepresentation.” That’s one of the worst rules to violate, after conversion, and like conversion, usually results in suspension or disbarment.

But most egregious of all were Van Ness’s shocking breaches of confidentiality, which were also acts of retaliation against McNett: for daring to file a Bar complaint, and for posting an online review of Van Ness cautioning others about his services.

The dozens of privileged and confidential client emails and communications that Van Ness dumped into the Bar’s files did not raise any defense against the charges of financial impropriety made against Van Ness. The breach was tactically made simply to embarrass McNett.

And Van Ness’s reaction to the online review?

God help anyone sick enough to post a minor child’s name in response to such a mild rebuke. What on earth could be the appropriate disciplinary sanction for these two massive and nauseating breaches of his client’s trust?

A very similar, and contemporaneous attorney discipline case has since been decided by the Oregon Supreme Court — based on a lesser breach of client trust — provides the answer: The Court affirmed the attorneys’ suspension.

What happened instead

Despite the fact that Van Ness failed even to turn over the records requested by her, Bar counsel Stacy Owen dismissed McNett’s complaint, letting Van Ness off the hook for everything.

Astoundingly, Owen claimed that she was “satisfied” with Van Ness’s non-explanations and excuses, stating that the copies he provided of McNett’s own checks were “sufficient supporting documentation.”

Owen failed to even raise the matter of the secret meeting, or to ask Van Ness to explain himself at all for his campaign of harassment and retaliation against McNett, which took place literally in real-time, as Owen watched.

In order to get away with her unjust dismissal, Owen failed to bring the complaint to the attention of the State Professional Responsibility Board for their review. That is to say, Owen hid the matter from the Bar’s ‘grand jury.’ It smells of corruption. At best, it is a cynical abuse of the trust that the public places in the Oregon State Bar.

When McNett questioned whether Owen had accepted something like a bribe to cover for Van Ness, Perry, and whatever arrangement they had, the Bar lashed out at him. Owen’s supervisor, Courtney Dippel, snarled that McNett’s questions were “false accusations,” and that even asking those questions “malign[ed] the integrity of Ms. Owen.”

That’s not how accountability works. That’s just further covering up.

Such defensiveness from a state bureaucrat such as Dippel shows that Dippel knows very well how bad the optics are, but is deeply committed to sustaining the poisonous status quo that enable these abuses.

Dippel’s shouting down a call for accountability does not bode well for the Bar: Accountability to the public is one of the Bar’s actual statutory duties, without which it would have no reason to exist. Nor should Bar staffers be allowed to avoid performance scrutiny by vouching for their own work or integrity.

Something very wrong happened to this client of Van Ness — not just in his custody case, but in the Bar’s inexplicable mishandling of every aspect of his complaint. It has already been shown that this matter went so far off the rails that the Bar interfered in McNett’s custody case appeal — at exactly the same time that Megan Perry was disbarred — and on behalf of Van Ness.

Owen may or may not have accepted a sack of cash to make the Van Ness complaint go away, but what she did was certainly public corruption of some kind. Perhaps the kind that looks in the other direction, away from attorney collusion, to whitewash the public’s faith in Oregon’s legal profession, and in the Oregon State Bar.

Every day the public’s faith seems more and more misplaced.