In re Bertoni, OSB 1516, 1559, 1617

• Decision Date: 13 September 2018
• Docket Number: SC S064820,OSB 1516, 1559, 1617
• Citation: 426 P.3d 64,363 Or. 614
• Parties: IN RE Complaint as to the Conduct of Gary B. BERTONI, OSB No. 781414, Respondent.
• Court: Oregon Supreme Court

363 Or. 614
426 P.3d 64

IN RE Complaint as to the Conduct of Gary B. BERTONI, OSB No. 781414, Respondent.

OSB 1516, 1559, 1617
SC S064820

Supreme Court of Oregon, En Banc.

Argued and submitted January 22, 2018.
September 13, 2018

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

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

PER CURIAM

363 Or. 615

The Oregon State Bar charged respondent with multiple violations of the Oregon

426 P.3d 66

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,

426 P.3d 67

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 1.15-1(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 1.15-1(d) by retaining unearned funds.

Respondent concedes that he violated RPC 1.15-1(a) and RPC 1.15-1(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 1.15-1(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 1.15-1(d).³ We turn to those issues.

426 P.3d 68

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)...