In re Complaint As To The Conduct of Long, SC S067095
| Decision Date | 29 July 2021 |
| Docket Number | SC S067095 |
| Parties | In re Complaint as to the Conduct of ANDREW LONG OSB No. 033808, Respondent. 368 Or.App. 452 (2021) |
| Court | Oregon Supreme Court |
Argued and submitted March 16, 2021
On review of the decision of a trial panel of the Disciplinary Board (OSB 1779, 1786, 1787, 1788, 1809, 1831, 1832, 1833 1864, 1875, 1876, 1877, 1886, 1887, 1888, 18129, 18170) .
Andrew Long, Portland, argued the cause and fled the briefs on behalf of himself.
Susan R. Cournoyer, Assistant Disciplinary Counsel, Tigard, argued the cause and fled the brief on behalf of the Oregon State Bar.
In this lawyer discipline case, a trial panel of the Disciplinary Board found, by clear and convincing evidence, that respondent had committed 50 violations of the Rules of Professional Conduct (RPC) by, among other things intentionally converting client funds, failing to communicate with clients, neglecting matters, failing to refund unearned fees, and failing to cooperate with the Oregon State Bar's investigations. The trial panel concluded that respondent should be disbarred. On review in this court respondent challenges the trial panel's conclusions and contends that disbarment is not appropriate. We agree with the findings and conclusions of the trial panel, subject to exceptions noted below, and order that respondent is disbarred from the practice of law.
Respondent graduated from law school and became a member of the Oregon State Bar in 2003. He worked for a small law firm in Roseburg until leaving Oregon in 2004 to begin graduate legal studies. After completing his graduate degree and clerking, respondent worked as a law professor specializing in environmental law. In 2015, respondent moved back to Oregon to begin practicing law. He started at a small firm in November 2015 and then opened a solo practice in January 2016. At around the same time, respondent was going through a difficult divorce and custody dispute with his wife, who resided in Florida with their children.
The Bar has brought two disciplinary proceedings against respondent. The Bar initiated the first disciplinary proceeding in November 2017. As part of that proceeding, the Bar sought respondent's immediate temporary suspension, which this court granted in December 2017 after reviewing the filings submitted by the Bar and respondent. A special master then held an evidentiary hearing in February 2018 and drafted a report, which concluded that respondent's continued practice of law represented a threat to the public and recommended that this court continue respondent's suspension during the pendency of that disciplinary proceeding. The court agreed with that recommendation and, in May 2018, ordered respondent's continuing suspension. That first disciplinary proceeding has not yet been resolved.[1]
The matter now before this court is a review of the trial panel opinion in the second disciplinary proceeding brought by the Bar. The Bar filed its initial complaint in that proceeding in March 2018 and amended the complaint twice. In the final amended complaint, the Bar alleged that respondent had committed 64 violations of the Rules of Professional Conduct related to his representation of numerous clients. Following an evidentiary hearing and arguments from the Bar and respondent, the trial panel issued a written opinion concluding that the Bar had established, by clear and convincing evidence, that respondent had committed 50 of the charged violations. Based on those violations, the trial panel concluded that respondent should be disbarred.
Respondent seeks review of the trial panel opinion. See ORS 9.536(1) (). He contends that he committed no rule violations and that disbarment is not warranted. The Bar does not seek review of the charged violations that the trial panel found unproven. As a result, we limit our review to the 50 violations found by the trial panel in its written opinion and determining an appropriate sanction. We review the trial panel's findings de novo, ORS 9.536(2); Bar Rule of Procedure (BR) 10.6, to assess whether the Bar has proved the violations by clear and convincing evidence, BR 5.2.
Because many separate matters are at issue, it is helpful to discuss some of the common themes that run through them and, to the extent possible, resolve arguments relevant to multiple matters.
Respondent operated as a solo practitioner from January 2016 until his suspension in December 2017. Respondent admits that he lacked well-developed practice management skills. He attributes that deficiency to his inexperience, his Attention Deficient and Hyperactivity Disorder, and his limited financial resources, which necessitated hiring assistants with little experience working within a legal practice.
Respondent's limited financial resources also led to his extensive use of fee agreements that allowed him to access advance fees before completing the promised services. Generally, in the absence of appropriate written designation and disclosure, advance fees paid to a lawyer remain client property that must be kept in a lawyer trust account, separate from the lawyer's own property. RPC 1.15-1(a). In those instances, the advance fees may be removed from the lawyer trust account and become the lawyer's property only after the lawyer has performed the promised services.
The Rules of Professional Conduct allow for alternative fee agreements, under which advance fees become the lawyer's property at the time the fees are received-that is, before the lawyer has performed the promised services. RPC 1.5(c)(3). In those instances, the advance fees are not placed in the lawyer's trust account and are sometimes referred to as "earned on receipt." Fees may be "earned on receipt" only pursuant to a written fee agreement disclosing that "the funds will not be deposited into the lawyer trust account" and that "the client may discharge the lawyer at any time and in that event may be entitled to a refund of all or part of the fee if the services for which the fee was paid are not completed." Id.
According to respondent, because he frequently had pressing personal and business costs, he would not have been able to operate his legal practice if he could access a client's fees only after he completed the promised services. Respondent testified that, as a result of his financial circumstances, he used "earned on receipt" agreements in all of his matters, except the few matters that he took on a contingent fee basis. Although evidence in the record indicates that respondent did not always enter into "earned on receipt" agreements, it is true that, in many of the matters at issue in this proceeding, respondent entered into a written fee agreement properly designating advance fees as "earned on receipt" and then billed the client against those advance fees at an hourly rate. Respondent therefore was able to make immediate use of the funds subject to those agreements, which he used to pay rent, staff, and other personal and business expenses.
Although respondent's handling of those advance fees did not itself violate a Rule of Professional Conduct, it nevertheless left respondent's clients vulnerable. "Earned on receipt" fee agreements shift the risk of loss to the client. If the client relationship ends before the lawyer has performed the services needed to keep the advance fees, then the lawyer is required to return the fees for the uncompleted work. If the lawyer has already spent the advance fees and has no other financial resources upon which to draw, then the lawyer may be unable to provide the client with the required refund.
That is what happened to many of respondent's clients. The client provided respondent with advance fees that were designated as "earned on receipt." The client then terminated respondent's service before respondent performed the services needed to permit him to retain the advance fees. And respondent failed to provide the required refund of the advance fees that respondent had not, in fact, earned by performing legal services. For that conduct, the Bar alleged that respondent repeatedly violated RPC 1.5(a) (charging excessive fee) and RPC 1.16(d) ().
Respondent presents various arguments in response to those allegations. In some cases, respondent disputes how much money was received in advance. In others, he contends that he did, in fact, perform the promised services. Those are fact issues that we address below. When those arguments are unavailable, respondent argues that, but for this court's December 2017 suspension order, he would have either completed the promised services or been able to earn additional income from other matters that he could have used to refund the clients. That argument is not a defense to the alleged violations. The charged violations are established by facts demonstrating that respondent failed to return unearned fees.[2] Although the reasons for a lawyer's failure to return unearned fees may be relevant to assessing an appropriate sanction, those reasons are not relevant to assessing whether a violation has occurred in the first place.[3]
The record in this case reveals that respondent had disputes with clients about returning unearned fees beginning in October 2016. Those disputes increased in the months leading up to his suspension in December 2017, as respondent allowed problems in his personal life to affect his ability to provide his clients with promised services. In September 2017, respondent's roommate alleged that he had struck her. That allegation led respondent's landlord to initiate eviction...
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