Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Complaint as to Conduct of Bertoni

Supreme Court of Oregon, En Banc

September 13, 2018

In re Complaint as to the Conduct of GARY B. BERTONI, OSB No. 781414, Respondent.

          Argued and submitted January 22, 2018

          On review of the decision of a trial panel of the Disciplinary Board. (OSB 1516, 1559, 1617)

          Kevin Sali, Kevin Sali LLC, Portland, argued the cause and fled the briefs on behalf of the accused.

          Susan R. Cournoyer, Assistant Disciplinary Counsel, Tigard, argued the cause and fled the brief on behalf of the Oregon State Bar.

         Case Summary: The Oregon State Bar brought a disciplinary action against the accused lawyer, alleging multiple violations of the Rules of Professional Conduct that occurred while representing three clients. A trial panel of the Disciplinary Board found that the respondent had committed some but not all the charged violations and concluded that the respondent should be suspended for one year. Held: (1) there was clear and convincing evidence that the respondent committed multiple ethics violations by improperly handling client funds, failing to adequately communicate with clients, and improperly retaining client funds; (2) even assuming claim preclusion applies in a bar disciplinary action, respondent failed to meet his burden of persuasion to show that the parties intended to resolve the current claims against him as part of an earlier settlement of other claims; and (3) in light of respondent's pattern of misconduct, prior disciplinary actions, and mix of knowing and negligent violations, the appropriate sanction is an 18-month suspension.

         Respondent is suspended from the practice of law for a period of 18 months, commencing 60 days from the date of this decision.

          [363 Or. 615] PER CURIAM.

         The Oregon State Bar charged respondent with multiple violations of the Oregon Rules of Professional Conduct (RPC), which he allegedly committed while representing three clients: Prado-Hernandez, Monroy, and Lyons. A trial panel of the Disciplinary Board found that respondent had committed most but not all the charged violations. Essentially, the trial panel found that respondent had improperly handled his client's funds, failed to adequately communicate with his clients, and improperly retained client funds. Based on those violations, the trial panel suspended respondent from the practice of law for a year.

         On review, respondent concedes some violations but challenges others. He also argues that his misconduct warrants a reprimand or, at most, a brief suspension. The Bar, for its part, argues that the trial panel should have found that respondent committed additional violations and that a two-year suspension is appropriate. We review the trial panel's findings de novo. ORS 9.536(2); Bar Rule of Procedure (BR) 10.6. The Bar has the burden of proving misconduct by clear and convincing evidence. BR 5.2. As explained below, we agree with most of the trial panel's findings but conclude that respondent should be suspended from the practice of law for 18 months. We address the charged violations regarding each client separately.

         I. PRADO-HERNANDEZ

         Prado-Hernandez pleaded guilty to first-degree sexual abuse. After his conviction became final, Prado-Hernandez's wife asked respondent to represent her husband in seeking post-conviction relief.[1] Specifically, she wanted respondent to investigate whether there were grounds for post-conviction relief and, if so, to file and pursue a post-conviction petition.

         Respondent agreed to represent Prado-Hernandez for a flat fee of $5, 000 plus expenses. Respondent collected the $5, 000 from the wife on July 13, 2010, and deposited those funds into his operating account rather than his [363 Or. 616] lawyer trust account. After depositing the funds, respondent prepared a written fee agreement stating that he was being retained for a "flat fee of $5, 000.00 to investigate post-conviction remedies and to represent Client if a [post-conviction] petition is filed." As a result of various mishaps on respondent's part, Prado-Hernandez never saw, much less signed, the written fee agreement. However, respondent testified that he discussed the terms of the written agreement with Prado-Hernandez.

         Over the next year, respondent investigated potential grounds for seeking post-conviction relief but concluded that no valid basis for relief existed. On September 14, 2011, respondent mailed a letter to Prado-Hernandez explaining his conclusion. The letter begins by noting, "I've completed my investigation of your case. * * * My opinion at this time, based on everything I have seen and heard, is that I don't believe there are any grounds for post-conviction relief." After a detailed description of the facts of the case, the letter reiterated that respondent did not "think there are any legitimate grounds for post-conviction relief." The letter concluded: "I know this is not what you want to hear but I just don't see any basis for relief. That is not to say that I will stop my investigation. I will continue to look for options to getting your case back to court."

         In January 2013, approximately 16 months after respondent mailed the September 2011 letter, Prado-Hernandez's wife began contacting respondent to ask about the status of the case. In May 2013, respondent told Prado-Hernandez's wife that he would meet with her husband at the Snake River Correctional Institution, where Prado-Hernandez was incarcerated. Respondent planned a meeting for later that month but had to cancel because he had scheduling conflicts. Another meeting was planned for October 2013, but it was cancelled at the request of Prado-Hernandez's family when it looked like Prado-Hernandez might be transferred to a closer prison.

         On December 2, 2013, Prado-Hernandez sent a letter to respondent complaining about respondent's inaction and requesting "copies of the most recent court filings * * *, a list of everything you have filed for me, a summary of the [363 Or. 617] actions you have taken, and an update on the current status of the case, together with an outline of your future plans." Respondent wrote back that he had received the letter, was busy with a trial, and would be out of the office over the holidays. He added that he would provide a more complete response when he returned to the office on January 2, 2014.

         Respondent never sent the promised response. In the meantime, Prado-Hernandez requested copies of filings directly from the Court of Appeals and the trial court and learned that respondent had not filed anything.

         In February 2014, Prado-Hernandez filed a complaint with the Bar. After receiving notice of the bar complaint, respondent met with Prado-Hernandez in March 2014. Following that meeting, respondent sent Prado-Hernandez a letter stating that he "would like the opportunity to continue exploring options and to continue to work with you in attempting to overturn your plea and sentence. This will entail thinking and working outside the box." Respondent agreed to perform several tasks noted in the letter, including:

"Review and provide billing statements accounting for charged fees and expenses and costs charged to date;
"Provide a partial refund based on statements and costs and expenses;
"Provide you a copy of the file;
"Conduct investigation of case and interview witnesses at no additional charge; [and]
"Report on status of investigation within 60 days from March 25, 2014."

         Respondent scheduled a meeting with Prado-Hernandez for May 2014 to follow up on his letter. Prado-Hernandez, however, refused to see respondent and told the Bar that he wanted a refund of the money that his wife had paid respondent. Respondent never refunded the money to Prado-Hernandez, nor did he provide him with the information, such as copies of billing statements, that he had promised.

          [363 Or. 618] The Bar charged respondent with violating six rules of professional conduct. The trial panel found that he had violated four rules. It found that respondent violated: RPC 1.4(a) when he failed to respond to reasonable requests from Prado-Hernandez and his wife beginning in 2013 regarding the status of the post-conviction petition; RPC 1.15-1(a) and RPC 1.15-1(c) when respondent deposited the funds that he received from Prado-Hernandez's wife in his operating account before he earned them and without having obtained a signed "earned on receipt" agreement; and RPC 1.15-l(d) when he failed to render a full accounting regarding his fees and costs. However, the trial panel did not find, as the Bar had charged, that respondent had violated RPC 1.15-l(d) by retaining unearned funds.

         Respondent concedes that he violated RPC 1.15-l(a) and RPC 1.15-l(c) when he deposited the $5, 000 into his operating account "[w]ithout a clear written agreement * * * that the fees paid in advance constitute a non-refundable retainer earned on receipt," In re Biggs, 318 Or. 281, 293, 864 P.2d 1310 (1994), [2] and we do not discuss those rule violations further. Respondent argues, however, that the trial panel erred in finding that he violated RPC 1.4(a) by failing to respond to Prado-Hernandez's reasonable requests for information and RPC 1.15-l(d) by failing to provide an accounting. The Bar, for its part, argues that the trial panel erred in finding that there were no unearned funds for respondent to refund and thus no additional violation of RPC 1.15-l(d).[3]We turn to those issues.

         A. RPC 1.4(a)

         RPC 1.4(a) provides that "[a] lawyer shall keep a client reasonably informed about the status of a matter and [363 Or. 619] promptly comply with reasonable requests for information." Respondent argues that, because Prado-Hernandez received his September 2011 letter explaining that he could find no valid basis for filing a post-conviction petition, there was no reason for respondent to immediately answer the 2013 inquiries from Prado-Hernandez and his wife regarding the status of the case. Additionally, respondent argued for the first time at oral argument that he had no obligation to respond to Prado-Hernandez's wife because she was not his client.

         We assume, for the purposes of resolving this issue, that RPC 1.4(a) required respondent to discuss the status of the case only with his client. Accordingly, we assume that his failure to respond directly to Prado-Hernandez's wife does not provide a basis for finding a rule violation. However, we infer from the fact that respondent agreed to meet with Prado-Hernandez in May 2013 that respondent understood, at least by May 2013, that Prado-Hernandez's wife was acting on her husband's behalf in asking respondent about the status of his case.

         We also conclude that Prado-Hernandez's requests for information, communicated both through his wife and directly by him, were reasonable ones. Although respondent wrote Prado-Hernandez in September 2011 that he did not see a valid basis for post-conviction relief, he also stated in his letter, "I will not stop my investigation. I will continue to look for options to getting your case back to court." Even if we assume, as respondent argues, that Prado-Hernandez received that letter, Prado-Hernandez reasonably understood from the letter that respondent was continuing to work on his behalf, and Prado-Hernandez reasonably asked through his wife what, if anything, respondent was doing to advance his claims.

         Despite receiving those reasonable requests for information on or before May 2013, respondent did not tell Prado-Hernandez the status of the case for at least nine months. Specifically, respondent did not provide a substantive response to Prado-Hernandez's inquiries until March 2014, approximately one month after Prado-Hernandez filed a bar complaint against respondent and more than [363 Or. 620] nine months after respondent understood that Prado-Hernandez's wife was asking on her husband's behalf for information about his case. Respondent violated RPC 1.4(a) by not providing a prompt response to a reasonable request for information.

         B. RPC 1.15-l(d)

         RPC 1.154(d) provides:

"Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property."

         RPC 1.15-1(d). The trial panel found that respondent did not retain any unearned funds in violation of that rule. However, it found that he violated that rule by not providing Prado-Hernandez with a full accounting after Prado-Hernandez requested one. The Bar challenges the first finding; respondent, the second.

         We begin with the issue that the Bar raises- whether respondent violated RPC 1.15-l(d) by retaining any unearned funds after Prado-Hernandez terminated his representation. Respondent argues that, in return for a flat fee of $5, 000, he agreed to investigate and pursue, if warranted, post-conviction relief. In respondent's view, once he investigated the possibility of filing a post-conviction petition and concluded that no petition was warranted, he had done all that the agreement required to earn the entire fee. For that reason, respondent argues, the trial panel correctly determined that he held no unearned fees that he was obligated to return.

         The Bar responds that the limited amount of work that respondent did on Prado-Hernandez's behalf was insufficient to justify the full $5, 000 fee. The Bar never explains why that is so, however. Specifically, the Bar never explains what, in its view, the terms of the agreement between respondent and Prado-Hernandez were or [363 Or. 621] why, if there were a flat-fee agreement, respondent failed to earn the full amount of the fee. In our view, it is necessary to determine what respondent agreed to do to earn his fee before determining whether respondent did all that he promised to do.

         As noted above, the agreement between respondent and Prado-Hernandez was oral. Although respondent had prepared a written fee agreement and testified that he discussed the terms of that agreement with Prado-Hernandez, Prado-Hernandez never saw the written agreement. The testimony at the hearing, however, made clear that respondent and Prado-Hernandez orally entered into a flat-fee agreement. The testimony is less clear as to what respondent promised to do to earn the flat fee. There is evidence to support respondent's position that he would earn the flat fee if he investigated whether there was a legitimate basis for filing a post-conviction petition and, if there were none, took no further action.[4] There is also evidence that cuts the other direction-specifically, respondent's March 2014 letter to Prado-Hernandez in which he agreed to "[p]rovide a partial refund based on statements and costs and expenses."

         If respondent had the burden of proving that he did all he promised to do to earn the $5, 000 flat fee, we might question whether he met his burden of persuasion. However, the Bar had the burden of proving by clear and convincing evidence that the fees respondent retained were unearned- namely, that respondent did not do all that he promised to do to earn the fees. Cf. In re Balocca, 342 Or. 279, 292-93, 151 P.3d 154 (2007) (holding that a lawyer violated a former ethical rule requiring the lawyer to refund unearned fees because clear and convincing evidence established that the parties had entered into a flat-fee agreement and that the lawyer had not done all the agreement required to earn the fee).[5] The Bar did not satisfy that burden. In reaching [363 Or. 622] that conclusion, we recognize that respondent's statement in his March 14, 2014 letter that he would provide a partial refund cuts in the Bar's favor. However, that statement appears to be more an offer of compromise in response to Prado-Hernandez's bar complaint than a description of their underlying fee agreement, and we note that the Bar mentions that letter only in passing. On the other side of the ledger, respondent's testimony describing his flat-fee agreement with Prado-Hernandez supports the view that that he earned the entire flat fee. Given this record, we are not persuaded by clear and convincing evidence, as the trial panel was not persuaded, that respondent retained unearned fees in violation of RPC 1.15-l(d).[6]

         We turn next to respondent's argument that he had no obligation under RPC 1.15-l(d) to provide a full accounting. On that issue, respondent does not dispute that Prado-Hernandez requested an accounting and that he did not provide one. Respondent argues instead that the obligation to provide a full accounting applies only to "funds * * * in which a client or third party has an interest," and he asserts, without further explanation, that there is no evidence that he ever received such funds. Alternatively, he acknowledges that, to the extent the $5, 000 advance fee he received from Prado-Hernandez's wife constituted funds in which his "client *** ha[d] an interest," any failure to provide an accounting flowed from his mistaken belief that those funds were earned on receipt and no additional sanction should be imposed for the RPC 1.15-l(d) violation. Without a more cogent explanation as to why the trial panel erred, we decline to disturb its ruling. Cf. State v. Moore, 361 Or. 205');">361 Or. 205, [363 Or. 623] 211 n 2, 3903d 1010 (2017) (limiting analysis to issues that had been sufficiently developed).[7]

         II. MONROY

         The Bar charged respondent with multiple rule violations for his representation of another client, Monroy. On appeal, respondent argues that claim preclusion prevents the Bar from pursuing some or all of the charges arising out of his representation of Monroy. If that defense is not successful, respondent concedes that he violated some of the charged rules but argues that the trial panel erred in finding other rule violations.

         In setting out the facts, we first describe respondent's representation of Monroy and his transfer of Monroy's files to another lawyer, Kliewer, which occurred when respondent was suspended from the practice of law. We then turn to respondent's claim preclusion defense and set out the facts that relate to that defense-both the charges that came to light when respondent transferred his files to Kliewer and the stipulated order of discipline resolving those charges. After explaining ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.