1. Undertook to represent Prado-Hemandez in filing a direct appeal or a petition for. Trial Panel Opinion

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1 1 In re: Complaint as to the Conduct of GARY B. BERTONI, Accused. IN THE SUPREME COURT OF THE STATE OF OREGON CaseNos. 1-1, 1-, and1-1 Trial Panel Opinion 11 1 l l l t 1 1g l The Oregon State Bar filed a formal complaint in cases 1-1 and 1- on August, 1l1,and an amended formal complaint in all cases on March,1. The Accused filed an answer to the amended formal complaint on April,1 and an amended answer on October,1. The parties submitted trial memoranda in advance of the scheduled hearing, which took place on September,,and 30, 1 and October 3,1. The Bar was represented by Kellie F. ohnson. The Accused was represented by Kevin M. Sali. The Accused was personally present throughout the hearing. The Bar has consolidated cases numbers 1-1, l-, and 1', The first case concems the Accused,s Client, ose Prado-Hernandez. The second case concerns the Accused's Client, Anna Monroy. The third case concerns the Accused's Client, Denick Lee Lyons. Each case witl be set out individually, but with a single finding regarding Sanction. CASE NO OSE PRADO-HERNANDEZ Nature of Charges and Defenses The Bar has alleged that the Accused: 1. Undertook to represent Prado-Hemandez in filing a direct appeal or a petition for Page I - IN RE GARY B. BERTONI - TRIAL PANEL OPINION DWT 3 I 1 1v

2 a post-conviction relief but thereafter neglected that legal matter, in violation of RPC Failed to communicate for three years, failed to keep the Client reasonably informed, and failed to promptly reply to requests for information, in violation of RPC 1.a(a) l l3 t 1 t t 1 1 l 3. Failed to explain legal matters as reasonably necessary to permit the Client to make informed decisions regarding representation, in violation of RPC 1.@);. Obtained from the Client $,00 dollars in fees for services but failed to deposit those funds into a lawyer trust account and did not make or maintain records regarding the receipt or disbursement of those funds, in violation of RPC l (a);. Failed to meet the requirements of RPC 1.1-1(c), which failure did not allow him to place fees in his own account before they were earned; and. Failed to provide the Client his property upon request and failed to render a full accounting, in violation of RPC 1.1-1(d). The Accused defends against these charges as follows: 1, The Accused denies that he was engaged to file a direct appeal but admits that he was engaged to investigate and file a post-conviction relief petition if appropriate.. The Accused denies that he was paid $,00 [sic] in fees for services. 3, The Accused agrees that he met with Client on three occasions and denies that he performed no substantive legal services for the Client. The Accused asserts that he performed all work that could be performed.. The Accused denies that he failed to provide the Client information regarding the status of the legal matter.. The Accused admits that he did not deposit funds into a lawyer trust account. He denies that he failed to make or maintain complete records regarding the receipt or disbursement of those funds.. In answer to the Bar's allegations that contrary to a March 1 agreement with his Client, the Accused did not perform additional legal services; did not provide information Page - IN RE GARY B. BERTONI - TRIAL PANEL OPINION DWT 3 I 1 1v l3

3 T t 1 t r l 1 1 regarding fees and expenses and costs; and did not provide apafüalrefund or an accounting' the Accused'oadmits and denies" those allegations' Summary of UndisPuted Facts The Client was convicted of two counts of sex abuse. The Accused was engaged by the client to pursue legal relief with regard to his conviction. The Client's wife paid Accused for those services. No signed fee agreement exists. The Accused met with the Client in 10 but not again until 1. The client and his wife sought information about the Accused's work, on multiple occasions. The Accused was paid at least $,000, plus expenses, to represent Client' The Accused deposited atl fees in his operating account, and none in a lawyer trust account' The Accused did not prepare or file a petition for appeal or petition for post-conviction relief' Following a Bar complaint, in March, l,the Accused provided a list of seven actions he agreed to accomplish for the client within sixty days. The Accused reported to the Bar that he had scheduled a meeting with the client in rpid May,1, to provide information in connection with the seven actions agreed to. The Accused did not meet with the client in May 1 and did not provide the Client with information regarding the seven actions' Further Findings of Fact 1. The Accused's testimony was credible, based on his demeanor' Z. The time for a direct appeal had run before the Accused began his representation of the client. 3. The Accused met with the Client in prison in uly,,but they could not communicate without an interpreter. The Accused met with the client again in october' 10' with an interpreter. The Accused testified that the Client agreed to pay, or have paid on his behalf, $,000 in fees, Plus costs'. The Accused credibly testified about the investigation he made into a basis for a pcr petition. In the fall of 11, shortly before the statute of limitations was to run on filing the PCR petition, the Accused concluded that there were no grounds for fîling that petition' Page 3 - IN RE GARY B. BERTONI - TRI.AL PANEL OPINION DwT v

4 1 ) 1l t. t t 1 t 1 r t. The Accused assumed that an executed fee agreement had been obtained from the Client, but acknowledges that no such agreement was obtained.. The Accused testified that he sent a letter to the Client advising him of the status of his legal matter on September 1th, 11. The Client denies receiving this letter and no record of its receipt has been discovered at the prison. The Accused's testimony regarding the creation of this letter was credible. Metadata regarding the letter supported the testimony.. The Accused next met with the Client in March 1, shortly after the Client filed a Bar complaint. As a result of that meeting, the Accused created and signed a list of actions he promised the Client he would take within 0 days. That list promised to continue efforts to find a basis for.relief from the conviction, to provide apartial refund if warranted, and to create billing statements.. The Accused testified that a"couple weeks later" he received notice that a trip to meet again with the Client was oonot necessary" because the Client was pursuing his Bar complaint. Conclusions of Law 1. First cause of complaint. RPC 1.3 provides that a lawyer shall not neglect a legal matter entrusted to the lawyer. The Accused provided credible testimony that he had timely investigated the grounds for a PCR Petition and concluded that no such grounds existed. The Bar has not proven by clear and convincing evidence that the Accused neglected the Client's legal matter. The abandoned promise to continue searching for a basis for relief, made in March, 1, does not change that conclusion.. Second cause of complaint. RPC 1.(a) provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. The Bar did not establish by clear and convincing evidence that the Accused did not in fact send a letter on September 1th,11, providing substantial information to the Client and advising that there was no ground on which to pursue a PCR petition. There was Pase - IN RE GARY B. BERTONI - TRIAL PANEL OPINION DWT 3 I 11v

5 l1 l t 1 1 I 1 t l credible evidence, however, that the Client and the Client's wife did not receive such information and that they made repeated reasonable requests for information. The Bar established by clear and convincing evidence that the Accused did not respond to these requests, either promptly or at all until abar Complaint was filed. The Bar has established that the Accused acted in violation of RCP t.a@). 3. Third cause of complaint. RPC 1.(b) requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Because there is no clear and convincing evidence that the Accused did not send the September lth,li,letter providing such information, the Bar has not established a violation of RPC 1.(b).. Fourth cause of complaint. RPC 1.1-1(a) requires a lawyer to hold property of clients or third persons in a lawyer trust account separate from the lawyer's own property. The Bar has established with clear and convincing evidence that the Accused did not put funds he received on behalf of the Client into a lawyer trust account, in violation of RPC 1.1-1(a).. Fifth cause of complaint. RPC 1.1-1(c) provides thatalawyer may not fail to keep fees in a lawyer trust account until the fees are earned or expenses are incurred, unless the fee is denominated as "eamed on receipt", or by a similar term, and unless the fee agreement complies with the requirement of Rule 1.(cX3). Although the Accused testifred that he "assumed" that a signed and adequate ooeamed on receipt" agreement had been completed, the Accused concedes that no such fee agreement exists. V/ith that fact, the Bar has established clear and convincing evidence that the Accused acted in violation of RPC I.1-1(c).. Sixth cause of complaint. RPC 1.1-l(d) provides thata lawyer shall promptly deliver to the client any funds the client is entitled to receive, and that the lawyer upon request shall promptly provide a full accounting regarding such fees. The Bar has not provided clear and convincing evidence that a refund was due to the Client but it has established by clear and convincing evidence that the Accused did not render a full accounting regarding fees and costs. Page - IN RE GARY B. BERTONI - TRIAL PANEL OPINION DWT v

6 1 The Bar has established that the Accused acted in violation of RPC 1.1-1(d). 1l t l l t I 1 l l CASE NO CLIENT ANNA MONROY Nature of Charges and Defenses The Bar has alleged that the Accused: 1. Undertook to represent Client in filing a petition for post-conviction relief,,,(pcr),, and also to represent client in a civil action filed against her, but failed to keep the client reasonably informed regarding either matter, in violation of RPC 1'(a), and failed to explain either matter sufficiently to allow the client to make informed decisions regarding the representation, in violation of RPC 1'a@);. Charged and collected a clearly excessive fee in both matters, in violation of RPC 1.(a); 3. Entered into a flat fee, eamed on receipt, agreement without including required disclosures, in violation of RPC 1.(c);. Failed to hold client funds in a lawyer trust account, in violation of RPC 1'1-1(a); placed funds in an operating account before they were earned, in violation of RPC 1 ' 1-1(c); and failed to take reasonable steps to protect the Client's interests upon termination of representation, in violation of RPC 1.1(c)' The Accused defends against these charges as follows: 1. Admits that the Client hired the Accused to investigate and file a petition for post-conviction relief (,.pcr") in her criminal case, but denies that the Client hired the Accused to represent her in the Client's civil action' Z. Admits that the client paid a $300 consultation fee, but denies he was paid either $,000 for his representation in the pcr matter or $1,000 for the civil action. on the face of his Answer the Accused denied that there were written fee agreements in either matter' Page - IN RE GARY B. BERTONI - TRIAL PANEL OPINION DwT 3 I 1 1v 001'0000

7 t0 11 t t 1 t t l 1 L z 3. Denies that he wrongly failed to deposit the Client's funds into his lawyer trust account or maintain them until they were earned, and denies that he did not provide client with billing statements or records of time, costs or fees.. Denies that the Client made repeated requests to the Accused for information about either or both cases between August ll and March t.. Denies that in mid-anuary 1the Accused told the Client that he anticipated filing her PCR claim by the end of the month and that he would provide her with monthly statements.. Denies that he failed to promptly inform the Client that he would be suspended from the practice of law for months and would be unable to represent her.. Admits that he later told the Client that he would be suspended and that another attorney would assume responsibility for her case, but denies that he told the Client that the other attorney would file her PCR claim by the end of the month.. Denies that he negotiated a resolution of the Client's liability in the civil action without her knowledge or consent. g. Denies that he did not refund any portion of the alleged $,000 or the alleged $1,000 retainers. Summary of UndisPuted Facts The Accused undertook to represent the Client in a criminal matter, seeking to file a PCR petition, and in a civil matter arising from events that formed her criminal conviction. The Client signed an engagement letter for each matter. The Accused did not make any refund of fees. The Accused was suspended from the practice of law for five months, beginning on March,1, at a time when he was representing the Client. The Accused did not notifu the Client of his impending suspension until very close to the time that suspension began. The Accused did not provide the Client with regular billing statements. The Accused did not deposit any fees into a lawyer trust account. Page - IN RE GARY B. BERTONI - TRIAL PANEL OPINION DWT 3 I I 1v l3

8 ) ll t l3 l l t t 1 1 l Further Findings of Fact l. The Client was credible, based on her demeanor. Witness Ronnee Kliewer was also credible, based on demeanor.. The Accused did not include required disclosure language in any fee agreement that would have allowed him to place unearned fees into his own account. 3. The Accused testified credibly about the work he had done with regard to the PCR petition and on the civil matter.. The Accused did not provide attorney Ronnee Kliewer with information about continuing the representation of the Accused's Client.. The Accused's actions in resolving the civil matter were within the scope of authorization provided by the Client. Conclusions of Law 1. The first cause of complaint. RPC 1.a@) provides that a lawyer shall keep the client reasonably informed about the status of the matter and promptly comply with reasonable requests for information. The Bar has proven by clear and convincing evidence that the Accused failed to keep the Client reasonably informed about the status of her criminal matter. The Bar has not established that the Accused failed to keep the Client reasonably informed about the civil matter. Z. The second cause of complaint. RPC 1.(b) requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. The Bar has proven by clear and convincing evidence that the Accused failed to explain a matter to the extent reasonably necessary to allow the client to make informed decisions, particularly regarding his failure to explain his unilateral transfer of the Client's case to another lawyer. 3. The third cause of complaint. RPC 1.(a) prohibits a lawyer from charging or collecting a clearly excessive fee. The Bar has proven by clear and convincing evidence that the Page - IN RE GARY B. BERTONI - TRI.AL PANEL OPINION DwT 3 I 11v

9 Accused charged an excessive fee for the work undertaken and performed.. The fourth cause of complaint. RPC 1.(c)(3) prohibits a lawyer from entering into a non-refundable fee agreement without required disclosures. The Bar has proven by clear and convincing evidence that the Accused did not include the required disclosures in any fee agreement. The trial panel allowed the Accused to amend his Answer to assert a defense of ll t t3 t l l t l t t claim preclusion. The panel concludes that the Accused has failed to establish that claims against him in the Anna Monroy matter, Case No. 1-, should be barred by his defense. The panel finds that the amended formal charges resulting in the November 3,1 stipulation did not include the same factual allegations concerning Anna Monroy as are at issue here. Although the complaint forming the basis for those aspects of the amended formal charges included allegations that attorney Kliewer had difficulty retrieving the Monroy file from the Accused, Ex. at 3, no other facts, evidence or legal issues regarding the Accused's representation of Monroy were included. Nor did the procedural posture of the amended formal charges support including the Monroy allegations at issue here. While the SPRB was informed that Kliewer alleged some difficulty getting Monroy's file from Mr. Bertoni, it has not been shown that the facts or evidence before it were suffrcient to establish probable cause of a violation of the Rules of Professional Conduct in relation to the Monroy matter. See F;x.. While the SPRB authorized the Bar to file a Formal Complaint against the Accused, it did not authorize charges in the Monroy matter, Tr,1-, and Monroy was not named in the Bar's Formal Complaint. Ex. 0. Moreover, the panel holds that the Accused waived his right to pursue a claim preclusion defense by his actions in agreeing through counsel that the Monroy matter was not and would not be included in the 1 stipulated resolution. Tr -3l;F;x... The fifth cause of complaint. RPC 1.1-1(a) requires a lawyer to hold property of Page - IN RE GARY B. BERTONI - TRIAL PANEL OPINION DwT 3 I 11v

10 ,) a I I l l3 t 1 1 l 1 1 t clients or third persons in a lawyer trust account separate from the lawyer's own property. The Bar has established with clear and convincing evidence that the Accused did not put funds he received on behalf of the Client into a lawyer trust account, in violation of RPC I. 1 - I (a).. The sixth cause of complaint. RPC 1.1-1(c) provides that a lawyer may not fail to keep fees in a lawyer trust account until they are earned or expenses are incurred unless the fee is denominated as earned on receipt or by a similar term, and unless the fee agreement complies with RPC 1.(c)(3). The Bar has proven by clear and convincing evidence that the Accused did not provide such a fee agreement and the Accused placed funds in his own account before they were earned.. The seventh cause of complaint. RPC I.1(d) provides that a lawyer shall take steps to the extent reasonably practicable to protect the client's interests upon termination of representation. Termination occurred here when the Accused was suspended. The Bar has proven by clear and convincing evidence that the Accused did not take steps reasonably practicable to protect the Client's interests. CASE NO CLIENT DERRICK LEE LYONS Nature of Charges and I)efenses The Bar has alleged that the Accused: 1. Entered into a fee agreement that did not contain required language that would have allowed a trial fee to be earned upon receipt;, Failed to place the trial fee into a lawyer trust account even though the fee agreement did not comply with Oregon requirements; 3. Failed to return to Client any advance payment of fees that had not been earned;. Engaged in conduct involved in dishonesty, fraud, deceit or misrepresentation and knowingly converted Client's funds to his own purpose. The Accused defends against these charges as follows: Page - IN RE GARY B. BERTONI - TRTAL PANEL OPINION DwT 3 I 1 1v

11 I 10 l1 l t l t t l l l 1. Admits that pursuant to a written fee agreement, the Client engaged the Accused to represent him in two criminal matters.. Agrees that pursuant to a written fee agreement, the Client agreed to pay a flat fee of $,00 for legal representation for the sole purpose of negotiating dismissal of the charges before trial or aplea and sentence agreement. 3. Admits that the fee agreement provided there would be an additional, non-refundable, earned upon receipt trial fee.. Admits that the Accused's written fee agreement did not make the disclosures required when a fee is denominated as ooearned on receipt", "non-refundable", or similar term.. Denies that he failed to maintain the trial fee in the lawyer trust fund until the fees were earned and denies that he knowingly converted the Client's funds to his own pulposes.. Admits that on the day trial was set to begin, the Client accepted a plea offer.. Admits that Client requested the refund of the trial fee and that no portion of that fee was refunded to the Client. Summary of Undisputed Facts The Client engaged the Accused to represent him in two criminal matters. The parties entered into a fee agreement that required the Client to pay $,00 before trial. The fee agreement also provided for an additional, non-refundable, earned-upon-receipt trial fee. The Accused agrees that he received a $3,000 trial fee. The Accused agrees that his written fee agreement did not provide the disclosures required to allow him to deposit those fees into his own account. The Client accepted a plea offer on the day of trial. The Client requested a refi.lnd of the trial fee of $3,000. No portion of that fee was refunded. Further Findings of Fact 1. The Client's grandmother, testifuing about dealings with the Accused, was highly credible, based on demeanor. The Client's testimony was difficult to reconcile with evidence in the record but it did not suggest dishonesty. The Accused's testimony was credible. Page 1l - IN RE GARY B. BERTONI - TRIAL PANEL OPINION DWT 3 I 1 1v l3

12 1 a. In a footnote within the fee agreement, the Client was notified that a typical flat fee for trial was $,00 per day. The agreement made no other reference to any trial fee. a I. Conclusions of Law First cause of complaint. RPC I.(cX3) sets out the requirements of disclosure if I t t 1 t l 1 t 1 a lawyer seeks to have a fee denominated ooearned on receipt" or a similar term. The Accused concedes that his written fee agreement did not make the disclosures required for a fee to be denominated "eamed on receipt". The Bar has proven by clear and convincing evidence that the Accused acted in violation of RPC 1.(c)(3).. Second cause of complaint. RPC 1.1-1(c) provides that a lawyer must place fees into a lawyer trust account unless the fee is denominated as "earned on receipt" or a similar term and the agreement complies with RPC 1.(cX3). The Accused concedes that his fee agreement did not comply with RPC 1.(c)(3) as above and he placed fees in his own account before they were earned. The Bar has proven by clear and convincing evidence that the Accused acted in violation of RPC 1.1-1(c). 3. Third cause of complaint. RPC 1.(d) provides that upon termination of representation, a lawyer shall refund any advance payment of fee or expense that has not been earned or incurred. This is a complex question. The Accused understood that he was entitled to the $3,000 trial fee because the matter had "gone to trial" in the parlance of a number of criminal defense attorneys, even before trial started. While that couldbe a point of agreement between a lawyer and a Client, the record demonstrates that the Accused did not convey that to the Client. What is dispositive is that the Accused's fee agreement does not entitle him to $3,000 as non-refundable and the Accused's own document and records do not establish that he earned the $3,000 of the trial fee if trial did not begin, as reasonably understood by the Client. The Bar has established by clear and convincing evidence that the Accused acted in violation of RPC 1.1(d).. Fourth cause of complaint. RPC.a(aX3) provides that it is unprofessional conduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or Page 1 - IN RE GARY B. BERTONI - TRIAL PANEL OPINION DWT 3 I 1 1v

13 1 a misrepresentation that reflects adversely on the lawyer's fitness to practice law. In order to establish this violation, the Bar is required to prove that the Accused "knowingly converted" some or all of the Client's funds to his owlr pulposes. The Accused's conduct in this matter does not amount to knowingly converting funds. The Bar has not provided clear and convincing evidence to establish that the Accused acted in violation of RPC.(aX3). ll l l3 t 1 t l l t 1 SANCTION Having found that the Accused violated provisions of the Rules of Professional Conduct, the Panel next determines the appropriate sanction to impose for those violations. In Oregon, we are guided by the ABA Støndards For Imposing Lawyers Sanctions ("Standards") and case law from the Oregon Supreme Court. The ABA Standards require consideration of (l) the duty violated by the Accused; () the Accused's mental state; (3) the actual or potential injury that the misconduct caused; and () any aggr av ating or miti gating circumstances. In this matter, the duty of loyalty to Clients was violated with regard to preserving the property of a Client, and the duty of diligence was violated, not in neglect per se but in failure to keep Clients informed. Mental states are to be considered next. They may be: intent, when the lawyer acts with conscious objective or purpose to accomplish a particular result; knowledge, when the lawyer acts with conscious awareness of the nature or attendant circumstances of his or her conduct both without the conscious objective or purpose to accomplish a particular result; and negligence, when a lawyer fails to be aware of a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation. The Panel finds that with regard to most of the Accused's violations, the Accused's mental state was negligence. V/ith regard to his representation of Anna Monroy, however, the Page - IN RE GARY B. BERTONI - TRIAL PANEL OPINION DwT 3 1 I 1v

14 1l t l3 t 1 t 1 1 t l Accused's actions were knowing with regard to the first, second, third, and seventh causes of complaint. The Accused knowingly withheld information about his suspension for a significant period of time. He misrepresented the status of the matter to the client and to the lawyer watching over his legal matters while he was suspended. The Accused knowingly violated RPC 1.(a),1.(b), 1.(a) and 1.1(d) with regard to Client Monroy. Under the ABA Standards, injury may be deemed ooserious injury", "injury", or "little or no injury." Here, the extraordinary aggravation and frustration wrongly endured by Clients Prado-Hemandezand Monroy was injury to each. Client Lyons, or more particularly his grandmother, was injured when the Accused did not return some or all of the $3,000 trial fee. The Panel finds that a number of violations do not involve conduct separate from the initial violation itself. Those violations do not warrant a greater sanction than that appropriate for the initial or underlying violation. In re Balocca,3 Or,-3 (0). The Panel finds that the fifth cause of complaint regarding Client Prado-Hernandez arises out of essentially the same act as the fourth cause. Regarding Client Monroy, the fifth and sixth causes of action arise out of essentially the same act as the fourth cause. And regarding Client Lyons, the second cause of action arises out of essentially the same act as the first cause. Again, a sanction in each case is what is appropriate for the initial violation. The Panel finds that aggravating circumstances include the Accused's previous disciplinary sanctions and his long experience in the practice of law which should have enabled him to avoid his multiple violating actions. Although most of the violations were negligent, the extraordinary repetition of negligence over the course of years must be taken into consideration in a Sanction. In mitigation, the Accused appears to have ultimately served his Clients, even though his path to that result was extremely tortuous. With regard to some of the failure to include the proper "earned on receipt" language in fee agreements, those violations are mitigated by the Bar's course of several, relatively quick sets of revisions without much communication of them. Page 1 - IN RE GARY B. BERTONI - TRIAL PANEL OPINION DwT 3 I 1 1v l3

15 10 l1 t 't 1 t In order to determine the Sanction here, the Panel has studied decisions contained in the 1 edition of the Oregon Rules of Professional Conduct Annotated. Neither the written closing argument of the Bar or the written closing argument of the Accused provide the Panel with decisional similarities that are consonant with this Panel's findings of violations. The Panel has not discovered any decision close enough to provide direction regarding the sanction for the variety of violations found here, even with consolidation of some charges. The Panel notes that while many of the violations were negligent, a significant aggravating factor is both the continuation of a previous pattern of negligence and the quantity of the violations' Moreover, the Panel has found that the violations concerning Client Monroy were made knowingly. In consideration of the Findings above and of all information presented, the Panel suspends the Accused from the practice of law for one year, the suspension to begin as provided under the Applicable Rules of Procedure. Dated this lst day of Februâr/: 1. e-.aßè--- Duane Bosworth Trial t 1 t Craig Crispin Trial Panel Member l.,. Charles Martin Trial Panel Member Page 1 - IN RE GARY B, BERTONI - TRIAL PANEL OPINION DwT 3 I 1 1v l3