S055610, Opinion — In re Paulson

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On the court's own motion for recall of appellate judgment and reconsideration,*
appellate judgment recalled and former opinion reconsidered; former opinion
modified and adhered to as modified; appellate judgment to issue forthwith
January 22, reconsideration denied April 8, 2010

In re Complaint as to the Conduct of
LAUREN J. PAULSON,
Accused.
(OSB 05-187, 06-05, 07-19, 07-20, 07-21, 07-22;
SC S055610)
225 P3d 41

En Banc
PER CURIAM

The appellate judgment is recalled and our former opinion
is reconsidered. The former opinion is modified and adhered
to as modified. Appellate judgment to issue forthwith.

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In re Paulson

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# PER CURIAM

On the court's own motion, the court recalls the
appellate judgment and allows reconsideration in this case to
modify a portion of our prior opinion, In re Paulson, 346 Or
676, 216 P3d 859 (2009). In that opinion, we concluded, as
had the trial panel, that the accused had violated DR 2-
106(a) by charging an excessive fee in connection with the
Brady-Aiello small estate matter. After describing the perti-
nent facts and quoting relevant portions of the trial panel
opinion, we explained:

"DR 2-106(A) prohibits a lawyer from charging an ille-
gal or clearly excessive fee. The Bar alleged and the trial
panel found that the accused, by comingling his billings as
personal representative with those for his work as trustee
in connection with the Brady-Aiello estate matter, double-
charged for certain services and collected $14,000 without
the statutorily required permission of the court. See ORS
116.173(1) (setting out fees to which a personal represen-
tative, [u]pon application to the court[,]' may seek for serv-
ices). On review, the accused does not address the trial
panel's findings or conclusions with regard to the violations
of DR 2-106(A). Having reviewed the record as it pertains to
that cause of complaint, together with the findings and con-
clusions of the trial panel, we conclude that the Bar has
proved that the accused violated DR 2-106(A) in this mat-
ter. See In re Knappenberger, 344 Or 559, 564, 186 P3d 282
(2008) (accused violated rule when he charged a fee that, by
law, required authorization by Social Security Administration
without obtaining that authorization)."

Id. at 686-87 (brackets in original).

We modify the above statement by removing the
citation to In re Knappenberger, which involved an illegal fee,
rather than an excessive fee. We also remove the citation to
ORS 116.173(1), a statute that the accused had cited in
claiming entitlement to certain of his fees. The trial panel
found that the accused, in collecting the $14,000 in fees, did
so "without court approval," which we understood to be a ref-
erence to the statutory procedure set out in ORS 116.173(1).
That statute, however, may have no application to small
estate matters and, in all events, was unnecessary to our con-
clusion. The Bar's only theory for that particular violation

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was that the fees charged and collected by the accused were
excessive, because he charged attorney fees for work that he
performed in his capacity as a personal representative and
comingled his billings in such a way as to bill multiple times
for the same work. As we concluded in our former opinion,
consistent with the trial panel's findings, the accused han-
dled his billings as the Bar had alleged. As a result, the cir-
cuit court had removed him as personal representative and
ordered him to repay the fees he had collected. Paulson, 346
Or at 681-82. We therefore modify our former opinion by
removing the citations as noted above and by clarifying that
we concluded that the accused charged an excessive fee, not
an illegal fee.

Our reconsideration in this matter has no effect on
the date of the accused's disbarment.

The appellate judgment is recalled and our former
opinion is reconsidered. The former opinion is modified and
adhered to as modified. Appellate judgment to issue
forthwith.