452
Argued and submitted March 16; respondent is disbarred, effective 60 days
from the date of this decision July 29, 2021
In re Complaint as to the Conduct of
ANDREW LONG
OSB No. 033808,
Respondent.
(OSB 1779, 1786, 1787, 1788, 1809, 1831, 1832, 1833,
1864, 1875, 1876, 1877, 1886, 1887, 1888, 18129, 18170)
(SC S067095)
491 P3d 783
A trial panel of the Disciplinary Board found that the respondent had
committed numerous violations of the Rules of Professional Conduct and
concluded that he should be disbarred. Respondent sought de novo review.
Held: (1) There was clear and convincing evidence that the respondent committed
violations by, among other things, intentionally converting client funds, failing to
refund unearned fees, collecting illegal fees, failing to communicate with clients,
neglecting matters, and failing to cooperate with the Oregon State Bar’s investigations; and (2) disbarment is the appropriate sanction.
Respondent is disbarred, effective 60 days from the date of this decision.
En Banc
On review of the decision of a trial panel of the Disciplinary
Board.
Andrew Long, Portland, argued the cause and filed the
briefs on behalf of himself.
Susan R. Cournoyer, Assistant Disciplinary Counsel,
Tigard, argued the cause and filed the brief on behalf of the
Oregon State Bar.
PER CURIAM
Respondent is disbarred, effective 60 days from the date
of this decision.
Cite as 368 Or 452 (2021) 453
PER CURIAM
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.
I. BACKGROUND
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
454 In re Long
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.
II. ANALYSIS
Respondent seeks review of the trial panel opinion.
See ORS 9.536(1) (“The Oregon State Bar or the accused
may seek review of the [trial panel] decision by the Supreme
Court.”). 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.
A. Additional Background and Preliminary Arguments
Because many separate matters are at issue, it is helpful to discuss some of the common themes that run through
1
At the trial panel hearing in the first disciplinary proceeding, the
Disciplinary Board’s adjudicator concluded that respondent had defaulted after
failing to appear. The trial panel denied respondent’s motion to set aside the
default. As a result, the trial panel assumed all the allegations in the complaint
as true and ordered respondent’s disbarment. This court held that the trial panel
had erred in denying respondent’s motion for relief from default, vacated the trial
panel opinion without reaching the merits, and remanded to the trial panel for
retrial. In re Long, 366 Or 194,
458 P3d 688 (2020).
Cite as
368 Or 452 (2021) 455
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
456 In re Long
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) (failing to return unearned
fee).
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
Cite as 368 Or 452 (2021) 457
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 proceedings. In October 2017, respondent’s former assistant, who was acquainted with his roommate and
a witness in the eviction proceedings, obtained a stalking
protective order against respondent. The Bar sought respondent’s immediate suspension in November 2017. And respondent was arrested for violating the stalking protective order
in December 2017, before this court ordered respondent’s
suspension later that month. Those events provide context for respondent’s evident financial desperation at that
time, leading to the trial panel’s most serious finding: that
2
Respondent presents no legal argument attempting to distinguish the
appropriate grounds on which the Bar may separately establish violations of the
rule prohibiting excessive fees, RPC 1.5(a), and the rule requiring the refund of
unearned fees, RPC 1.16(d). We therefore do not consider the scope of those provisions, which would not, in any event, affect the outcome or the sanction in this
case.
3
That conclusion is consistent with this court’s decision in In re Bertoni, 363
Or 614,
426 P3d 64 (2018). In that case, the respondent was hired on hourly fee
agreements to defend a client in a civil matter and to file a petition for postconviction relief for the same client. As part of those fee agreements, he received
advance-fee retainers. As he provided the client with services, he charged against
the retainers using his hourly rate. He was suspended by this court and then terminated by his client before he could complete each matter. But the Bar failed
to prove that he had performed insufficient work on each matter before his suspension and termination to earn each of the advance-fee retainers. As a result,
the court concluded that the Bar had failed to establish that fees were excessive.
Id. at 634-35.
458 In re Long
respondent intentionally converted funds belonging to his
client, Williams. That matter is addressed further below.
Finally, as part of its investigation into respondent’s alleged misconduct, the Bar sent respondent multiple
letters seeking his response to the allegations. Those letters frequently demanded respondent’s version of the events
in question, an accounting of any funds that respondent
received in the matter, and copies of billing records. The
trial panel concluded that respondent failed to respond to
those letters in 11 different matters.
Under RPC 8.1(a)(2), “[a] lawyer … in connection
with a disciplinary matter[ ] shall not … knowingly fail to
respond to a lawful demand for information from a[ ] …
disciplinary authority ….” Respondent acknowledges that
he failed to respond to the Bar’s demands for information.
He maintains, however, that his failure did not violate RPC
8.1(a)(2) because he believed that the Bar’s inquiries were not
a “lawful demand for information.” According to respondent,
he believed in good faith that the Bar’s inquiries “exceeded
the Bar’s authority and/or [were] being used to advance illegal and unethical conduct.”
There is no merit to respondent’s defense. A Bar
inquiry is lawful if it is based on “an arguable complaint
of misconduct, one that the Bar [has] legal authority to
investigate.” In re Paulson, 346 Or 676, 689,
216 P3d 859
(2009), adh’d to as modified on recons,
347 Or 529,
225 P3d
41 (2010); see also ORS 9.542(1) (authorizing rules governing
“the investigation of the conduct of attorneys”); BR 2.2(b)(1)
(describing Disciplinary Counsel’s authority to investigate
allegations or instances of alleged misconduct); BR 2.5(b)(2)
(describing process for Client Assistance Office to refer complaints to Disciplinary Counsel). We find no support in the
record for respondent’s contention that the Bar was investigating alleged rule violations, most of which stemmed from
complaints by clients or third parties, for reasons other
than the Bar’s legitimate regulatory purpose.4 We therefore
4
Respondent claims that misconduct by the Bar’s Disciplinary Counsel’s
Office establishes equal protection and due process violations. We find no evidentiary support for those claims. We similarly find no evidentiary support for
respondent’s claim that the adjudicator was biased against him. As a result, we
reject those claims.
Cite as 368 Or 452 (2021) 459
conclude that respondent’s failures to respond to the Bar’s
requests for information establish violations of RPC 8.1(a)(2),
as noted in each matter below.
Because respondent failed to respond to those investigatory demands, the record is incomplete as to several of
the matters discussed below relating to whether respondent
performed sufficient services to earn the advance fees that
he kept. In some instances discussed below, the lack of a
complete record meant that the Bar was unable to carry
its burden to prove, by clear and convincing evidence, that
respondent failed to earn the advance fees that he kept. See
BR 5.2 (“The Bar has the burden of establishing misconduct
by clear and convincing evidence.”). Nevertheless, failing to
cooperate with the Bar’s investigation is not a viable strategy
for avoiding sanction. Not only is failing to cooperate its own
violation of the Rules of Professional Conduct, RPC 8.1(a)(2),
but, in appropriate cases, such conduct may establish an
aggravating circumstance justifying an upward departure
from a presumptive sanction, see American Bar Association,
Standards for Imposing Lawyer Sanctions 9.22(e) (1991)
(amended in 1992) (identifying “bad faith obstruction of the
disciplinary proceeding by intentionally failing to comply
with rules or orders of the disciplinary agency” as an aggravating circumstance).
B. Matters and Violations
We review the matters in largely chronological order.
1. Richman matter
The Richmans hired respondent in August 2016 to
work on three matters: an insurance claim and two juvenile court matters. The Richmans provided respondent with
advance fees and costs. Respondent did no work on two of the
matters, and he made two court appearances on one of the
juvenile court matters. Work on that juvenile court matter
was billed at an hourly rate. At the second appearance, in
October 2016, the trial judge said that respondent appeared
intoxicated and reset the matter. Although respondent
denied being intoxicated, the Richmans fired respondent
the next day. They asked for an accounting of the work that
460 In re Long
he had performed and a return of any unearned advance
fees and costs.
Respondent never performed an accounting. Instead,
he told the Richmans that he wanted to avoid the accounting by refunding them the entire amount that they had paid
him in advance fees and costs. Mrs. Richman told respondent that they had paid him $2,000 in advance fees and
$500 in advance costs. Respondent replied that his records
showed that the Richmans had paid him only $1,000 in
advance fees and $500 in advance costs. Respondent then
decided not to provide a full refund, claiming that he had
earned $500, which he would keep. He therefore sent the
Richmans a check for $1,000 without an accounting demonstrating the grounds for the money that he kept.
Mrs. Richman emailed documents to respondent purporting to show the additional $1,000 in advance payments.
Although those documents are not in the record, she testified to the additional payments under oath at respondent’s
suspension hearing in February 2018. And that testimony
is in accord with the record of the parties’ documented
communications. After receiving the emailed documents,
respondent admitted that his previous assistant had made
numerous recordkeeping mistakes that needed correcting.
He said that he would review the matter and get back to
them “presumably with more money.” Respondent never did
get back to them and ignored Mrs. Richman’s later emails
inquiring about the additional payments. We therefore conclude that respondent failed to refund the Richmans $1,000
in unearned fees.
We agree with the trial panel’s conclusion that
respondent violated RPC 1.5(a) (charging excessive fee),
RPC 1.15-1(d) (failing to provide an accounting), and RPC
1.16(d) (failing to return unearned fee).
2. Charpentier matter
Charpentier hired respondent in early November
2016 on an hourly rate agreement to remedy the unlawful sale of her deceased mother’s home. She paid respondent $600 in advance fees. Respondent did not place the
funds into his lawyer trust account. Although respondent
Cite as 368 Or 452 (2021) 461
claims that the $600 was paid pursuant to a written fee
agreement designating the money as earned on receipt, that
agreement does not appear in the record. Respondent first
told Bar investigators that he had sent Charpentier a fee
agreement, which she had failed to return. He later told the
trial panel that Charpentier had signed and returned the
fee agreement but blamed his former assistant for misplacing it. Charpentier, who lives in Washington and never met
respondent in person, testified that she neither received nor
signed a written fee agreement from respondent. According
to Charpentier, if she had received and signed the fee agreement, she would have retained a copy of it and would have
documented that fact in the notebook that she used to contemporaneously record her interactions with respondent.
Charpentier additionally testified that respondent
had failed to respond to numerous phone messages, even
though she expected the work to be done promptly. Charpentier
fired respondent in late November or early December after
learning that the house had been sold again. At the time of
his termination, respondent had billed 2.1 hours to the matter, most of which was for time spent on telephone calls with
Charpentier. Respondent disputed Charpentier’s version of
events. He maintained that he had reviewed her file and
determined that her case had no merit, and that she had
become upset when he told her that.
The trial panel found Charpentier’s testimony to
be more credible and concluded that respondent had violated RPC 1.15-1(a) (failing to hold client property in trust
account), RPC 1.15-1(c) (failing to keep unearned fees in
trust account), and RPC 1.3 (neglecting client matter).5 We
agree with that conclusion.
3. Mitchell matter
The Mitchells hired respondent in April 2016 to
pursue a claim against Mr. Mitchell’s former employer and,
in early 2017, hired respondent to pursue an appeal from a
decision of the Workers’ Compensation Board. Respondent
5
Neglect may be found from a failure to act during a short period of time if
the matter is urgent. See In re Meyer (II), 328 Or 220, 224-25,
970 P2d 647 (1999)
(finding neglect where respondent failed to act over a two-month period).
462 In re Long
collected at least $18,500, based on hourly rate agreements,
from the Mitchells over the course of the two matters.
In the action against Mr. Mitchell’s former employer,
respondent filed a complaint in August 2016 and then failed
to follow up with opposing counsel, who was interested in
settling. After no settlement was reached by January 2017,
opposing counsel moved to dismiss the complaint or to make
the complaint more definite and certain, raising numerous
defects in the complaint. The trial court granted the motion
in part and allowed for an amended complaint, which
respondent drafted and filed. Ultimately, the opposing party
offered another settlement, but the Mitchells maintain that
respondent did not fully explain the terms of the settlement.
The Mitchells fired respondent in August 2017, and hired
a new attorney, Hennagin, who testified that respondent’s
work was so deficient that he had to start over and file a
new complaint. After respondent was discharged by the
Mitchells, they agreed to a settlement with Mr. Mitchell’s
former employer. Respondent had collected about $9,200 in
fees related to that action.
The trial panel determined that the services respondent provided to the Mitchells in that case were not worth
the $9,200 that he had collected and concluded, as a result,
that respondent had violated RPC 1.5(a) (charging excessive
fee). We do not agree that clear and convincing evidence in
the record supports that conclusion. There is no allegation
that respondent did not work the hours needed to justify
$9,200 at a reasonable hourly rate. Respondent’s work set
up the case for settlement, even though respondent failed
to follow through on the settlement offers proposed by the
opposing party. Respondent’s failings, if any, appear related
to his failure to effectively communicate with the Mitchells,
and the Bar alleged no violations related to that conduct.
In the workers’ compensation matter, respondent filed
a brief in the Court of Appeals. That work was done in the
spring of 2017. The Court of Appeals affirmed without opinion. Respondent collected $9,300 in that matter. Hennagin,
whom the trial panel found credible, testified that those
fees were charged and collected without the approval of the
Workers’ Compensation Board or the court, as required by
Cite as 368 Or 452 (2021) 463
ORS 656.388(1). See, e.g., Shearer’s Foods v. Hoffnagle,
363
Or 147, 149,
420 P3d 625 (2018) (“Attorneys representing
workers’ compensation claimants may not recover a fee for
legal services performed on appeal unless the court approves
the fee[.]”). In his briefing before this court, respondent does
not assert that he received approval.
Based on those facts, the trial panel concluded that
respondent again had violated RPC 1.5(a) (charging illegal
fee). We agree with the trial panel’s conclusion. Collecting
legal fees in violation of ORS 656.388(1) constitutes collecting illegal fees under RPC 1.5(a). See In re Knappenberger,
344 Or 559, 564,
186 P3d 272 (2008) (concluding that lawyer
charged an “illegal fee” under DR 2-106(A), the predecessor
to RPC 1.5(a), by charging fees in connection with a client’s
Social Security disability claim without prior approval of
the Social Security Administration, as required under federal law). Finally, respondent failed to respond to the Bar’s
investigative inquiries, in violation of RPC 8.1(a)(2).
4. Avila-Chulim/Greene matter
Avila-Chulim and his girlfriend Greene contacted
respondent through the Bar’s Modest Means Program,
which is intended to help low- and moderate-income clients
find affordable legal services. On May 26, 2017, Avila-Chulim and Greene hired respondent to pursue a modification of Avila-Chulim’s parenting plan—a matter that
they considered urgent. In fact, Greene testified that they
could have filled out the necessary forms themselves, but
they wanted to hire a lawyer to complete the proceeding
more quickly. They paid respondent $2,000 in advance fees
through an hourly rate agreement designating the money as
earned on receipt.6 On June 8, 2017, after not hearing anything further from respondent and learning that respondent
had not promptly obtained the court documents necessary
to begin Avila-Chulim’s petition, Avila-Chulim and Greene
terminated respondent and demanded an accounting and a
refund.
6
The hourly rate that respondent charged under that agreement appears
to violate the terms of the Modest Means Program. The Bar did not charge that
conduct as a separate violation.
464 In re Long
Greene estimated that she contacted respondent
15 to 20 times over the months that followed seeking the
accounting and refund. Respondent ultimately sent Avila-Chulim and Green an invoice in September 2017, showing
$360 worth of work, but he did not refund the $1,640 in
unearned fees that he had collected. Greene followed up in
October, November, and December 2017. Each time she was
told that the refund check would be sent shortly. But respondent never refunded the $1,640 in unearned fees that he had
collected, and he failed to cooperate with the Bar’s investigation into the matter. At the trial panel hearing, Long did
not deny that he owed a refund to Avila-Chulim and Greene
but stated that he did not have sufficient funds to pay
it.
We agree with the trial panel’s conclusion that
respondent violated RPC 1.5(a) (charging excessive fee); RPC
1.16(d) (failing to return unearned fee); and RPC 8.1(a)(2)
(failing to cooperate with Bar disciplinary investigation).
And, based on respondent’s conduct following his termination in June 2017, we agree with the trial panel’s conclusion
that respondent violated RPC 1.4(a) (failing to keep client
informed) and RPC 1.4(b) (failing to explain matters so client can make informed decision).
5. Butler matter
Butler hired respondent on June 30, 2017, to research
a family trust issue and provided respondent with $2,500
in advance fees on an hourly rate agreement designating
the money as earned on receipt. About a week later, Butler
terminated respondent after concluding that respondent’s
experience was not sufficiently related to the issue in dispute. Butler asked respondent to return any unearned fees
promptly. Respondent did not dispute that he owed Butler
a refund but did not return the unearned fees. Butler filed
a small claims action against respondent on August 4. On
September 26, 2017, during a mediation in that action,
respondent agreed to provide Butler with a full refund,
which respondent paid at a later date to Butler’s apparent
satisfaction.
We agree with the trial panel’s conclusion that,
by refusing to pay an undisputed refund until sued by his
Cite as 368 Or 452 (2021) 465
client, respondent violated RPC 1.16(d) (failing to refund
unearned fee).
6. Grotz matter
Grotz hired respondent in December 2016 on an
hourly rate agreement to work on a dispute that Grotz had
with his neighbor. Respondent filed a complaint in that matter in February 2017. Although it is unclear what other work
respondent did on the matter after filing the complaint, the
record establishes that, by June 2017, Grotz had become
frustrated that respondent was not being more proactive in
his case and that respondent was not responding to Grotz’s
emails seeking updates. That frustration continued through
November 2017. At one point, toward the end of November,
respondent informed Grotz that a previously scheduled
hearing was coming up in his case. Grotz was upset that
respondent had not told him about the hearing sooner and
that respondent did not otherwise explain to him the purpose of the hearing.
Grotz received an invoice from respondent in
November 2017 showing that he owed respondent almost
$1,000 for services that respondent had performed. Shortly
thereafter, Grotz paid respondent $2,500. Some of that
money constituted advance fees. Grotz then fired respondent
in December 2017, after reading about respondent’s legal
troubles in the newspaper. At that time, Grotz asked for a
refund of any unearned fees. Respondent never provided a
refund and did not cooperate with the Bar’s investigation
into the matter.
Grotz did not testify at the trial panel hearing.
Respondent and Glick, who worked as respondent’s assistant in December 2017, testified that Grotz had reversed
his final $2,500 payment through his credit card company.
Communications between Grotz and the Bar suggest that
Grotz might have disputed the $2,500 payment through
his credit card company. Without Grotz’s testimony or additional financial documents, the record fails to establish how
that dispute was resolved.
Based largely on respondent’s acceptance of the
$2,500 shortly before his termination and his failure to
466 In re Long
return any unearned portion of that money, the trial panel
concluded that respondent violated RPC 1.5(a) (charging
excessive fee) and RPC 1.16(d) (failing to return unearned
fee). We do not agree with those conclusions. The Bar did
not establish, by clear and convincing evidence, that respondent had retained the $2,500 payment and therefore did not
establish that respondent had collected money from Grotz
for more than the value of the services that he provided. We
agree, however, with the trial panel’s remaining conclusions
that respondent violated RPC 1.4(a) (failing to keep client
informed); RPC 1.4(b) (failing to explain matters so client
can make informed decision); and RPC 8.1(a)(2) (failing to
cooperate with Bar disciplinary investigation).
7. Agero matter
Agero, who lives in Spain, hired respondent in
December 2016 on an hourly rate agreement to pursue a
claim against a septic tank inspection company. Respondent
filed and served a complaint against the inspection company in July 2017. Respondent was never very responsive
to Agero’s emails. He became even less responsive beginning in October 2017. At that time, the trial court hearing
Agero’s matter sent respondent a notice of intent to dismiss
for want of prosecution. Respondent did not respond to that
notice. The trial court then dismissed the case in November
2017. Respondent did not tell Agero about the dismissal. In
December 2017, when he was suspended from continuing
her representation, respondent failed to tell Agero of his
suspension. Later that month, because respondent had not
been responding to Agero’s communications, Agero checked
the internet and found out about respondent’s suspension.
Respondent did not respond to the Bar’s attempt to investigate that matter.
We agree with the trial panel’s conclusion that
respondent violated RPC 1.3 (neglecting client matter) and
RPC 8.1(a)(2) (failing to cooperate with Bar disciplinary
investigation).
8. Beutler matter
Beutler hired respondent in July 2017 on an hourly
rate agreement to handle a property dispute and provided
Cite as 368 Or 452 (2021) 467
respondent with $1,200 in advance fees designated as
earned on receipt. Beutler called respondent throughout
August 2017 but was unable to reach him. He spoke with
respondent’s assistant several times in October, but never
spoke with respondent. By December 2017, when respondent
was suspended, Beutler had no information about any work
that respondent had performed on his matter. Respondent
did not tell Beutler that he was suspended. Beutler later
learned about the suspension from the Bar. Respondent did
not refund any of the $1,200 that Beutler had paid him.
Respondent also did not cooperate with the Bar’s effort to
investigate the matter.
Respondent maintains that he earned the $1,200
because, according to respondent, at the time of his suspension, he had completed the research necessary to advise
Beutler even though he had not yet memorialized that
advice in written work product. Respondent provided no evidence of that research. Without such evidence, and given
respondent’s documented history of ignoring Beutler’s matter, respondent’s testimony is not credible.
We therefore agree with the trial panel’s conclusion
that respondent violated RPC 1.4(a) (failing to keep client
informed); RPC 1.4(b) (failing to explain matters so client
can make informed decision); RPC 1.5(a) (charging excessive fee); RPC 1.16(d) (failing to return unearned fee); and
RPC 8.1(a)(2) (failing to cooperate with Bar disciplinary
investigation).
9. Gehrke-Harris matter
On November 9, 2017, Gehrke-Harris hired respondent on an hourly rate agreement to seek a visitation order so
that her husband could see his son. She provided respondent
with $400 in advance fees that were designated as earned
upon receipt. Five days later, she asked respondent for an
update. Respondent said he was not feeling well. Gehrke-Harris terminated respondent on November 27, after learning about respondent’s legal troubles in the newspaper. She
asked respondent for a refund at that time. Respondent said
that he would provide her with a refund as soon as possible,
but he failed to provide her with the refund. He also failed
to cooperate with the Bar’s effort to investigate the matter.
468 In re Long
We agree with the trial panel’s conclusion that
respondent violated RPC 1.5(a) (charging excessive fee); RPC
1.16(d) (failing to return unearned fee); and RPC 8.1(a)(2)
(failing to cooperate with Bar disciplinary investigation).
10. Stone matter
In September 2017, Stone hired respondent on an
hourly rate agreement to represent him in a custody modification proceeding. From September to November 2017, Stone
paid respondent $1,500 in advance fees designated as earned
on receipt. Respondent never filed the petition. According to
respondent, he started the petition but “did not get very far.”
Respondent does not maintain that he performed $1,500
worth of services to Stone before his December 2017 suspension. Respondent did not notify respondent that he was
suspended and did not cooperate in the Bar’s investigation
into the matter.
We agree with the trial panel’s conclusion that
respondent violated RPC 1.4(a) (failing to keep client
informed); RPC 1.4(b) (failing to explain matters so client
can make informed decision); RPC 1.5(a) (charging excessive fee); RPC 1.16(d) (failing to return unearned fee); and
RPC 8.1(a)(2) (failing to cooperate with Bar disciplinary
investigation).
11. Taffese matter
Taffese hired respondent in June 2017 on an hourly
rate agreement to pursue claims against a home repair contractor. Taffese provided respondent with $5,000 in advance
fees designated as earned on receipt. After respondent
filed a complaint, the defendant filed a motion to dismiss
in October 2017, which remained unresolved at the time of
respondent’s suspension in December 2017. Respondent did
not tell Taffese about the motion to dismiss or his suspension and did not provide a refund. Respondent also failed to
cooperate with the Bar’s efforts to investigate the matter.
The trial panel concluded that respondent had violated RPC 1.5(a) (charging excessive fee) and RPC 1.16(d)
(failing to return unearned fee). We do not agree with those
conclusions. Respondent provided legal services to Taffese.
The record does not contain evidence of the extent or value
Cite as 368 Or 452 (2021) 469
of those legal services. Thus, the Bar has failed to establish,
by clear and convincing evidence, that respondent charged
an excessive fee or retained unearned fees. Nevertheless,
we agree with the trial panel’s remaining conclusions
that respondent violated RPC 1.4(a) (failing to keep client
informed); RPC 1.4(b) (failing to explain matters so client
can make informed decision); and RPC 8.1(a)(2) (failing to
cooperate with Bar disciplinary investigation).
12. Frackowiak matter
Frackowiak hired respondent in July 2017 on an
hourly rate agreement to represent him in several different matters. At least one matter related to a commercial lease dispute. Frackowiak provided respondent with
$1,200 in advance fees that were designated as earned on
receipt. Respondent performed research and sent two letters advancing Frackowiak’s interests with regard to the
commercial lease dispute. In December 2017, not long before
his suspension, respondent appeared at Frackowiak’s home
one evening and asked for $2,500, which Frackowiak gave
him. Frackowiak, who is currently incarcerated for theft
and securities fraud, testified at the trial panel hearing that
he believed that the $2,500 constituted additional advance
fees. Respondent testified that he had already performed
substantially more work than was covered by the original
$1,200 in advance fees and the $2,500 was for work that he
had already performed. Respondent never sent Frackowiak
an invoice, and his billing records are not part of the record
in this proceeding. Frackowiak learned of respondent’s suspension from the media coverage. Respondent failed to cooperate with the Bar’s efforts to investigate this matter.
The trial panel concluded that respondent had violated RPC 1.5(a) (charging excessive fee) and RPC 1.16(d)
(failing to return unearned fee). We do not agree with those
conclusions. As with some of the other clients whose representation is at issue here, respondent provided Frackowiak
with legal services. The record does not contain evidence
of the extent or value of those legal services. Thus, the
Bar has failed to establish, by clear and convincing evidence, that respondent charged excessive fees or retained
unearned fees. We agree with the trial panel’s remaining
470 In re Long
conclusions that respondent violated RPC 1.4(a) (failing to
keep client informed); RPC 1.4(b) (failing to explain matters so client can make informed decision); and RPC 8.1(a)(2)
(failing to cooperate with Bar disciplinary investigation).
13. Williams matter
The most serious single set of allegations against
respondent relates to his representation of Williams and his
handling of her money. Williams was referred to respondent
by a former client, Wilson. Williams hired respondent in
April 2017 on an hourly rate agreement to resolve a dispute
with a homeowners’ association (HOA). Respondent started
work in July 2017 and had some communications with the
HOA’s lawyer. The HOA’s lawyer sent respondent a check for
$31,689.29, made payable to Williams, to resolve one component of the dispute. Respondent received that check on or
around August 22, 2017.
Respondent promptly texted Williams to tell her
that he had her money and asked how he should convey the
money to her. She did not immediately respond to that text
or his follow-up texts. On August 25, he deposited the check
into his lawyer trust account. On August 26, respondent
sent Williams an email saying that he was going to deduct
$640 from the total, representing the outstanding balance
that she owed him for his work on the matter to date.
Williams eventually responded in early September,
stating that she had just obtained a new phone and had only
received his last text message indicating that respondent
had over $30,000 waiting for her but needed direction on how
to distribute the funds. Williams replied but did not provide
that direction. Instead, Williams and respondent discussed
whether to proceed with additional claims against the HOA.
In October, respondent began making withdrawals from his lawyer trust account, frequently transferring
money to his personal account. At that time, nearly all the
money in the trust account belonged to Williams. By the
end of October, respondent had withdrawn more than half of
Williams’s money. One of the withdrawals that respondent
made was in the amount of $4,000. Respondent gave that
money to Wilson to bail someone else out of jail, someone
Cite as 368 Or 452 (2021) 471
known to Williams. Respondent released the funds to Wilson
without authorization from Williams.
In November, respondent drafted a letter to the
HOA regarding additional claims that Williams might pursue. Williams provided input on that letter, although it is
unclear whether respondent ever sent the letter to the HOA.
On December 1, Williams texted respondent, asking how she could get her money because she wanted to buy
a house. She received no response from respondent, who
had been continuing to make withdrawals from his trust
account. Then on December 4, she texted again, asking
what was going on. Respondent said that he had technological problems but would follow up on December 5. When
respondent did not follow up by December 6, Williams texted, “I need to pick up my money!!!!!!!” Respondent did not
respond. So, on December 11, Williams texted, “I want my
money.” Respondent replied that he was having difficulty
texting so he wanted to meet in person. On December 13,
Williams told Wilson that she wanted to pick up her papers
and money from respondent and get a new lawyer. A few
days later, respondent told Williams that he had spoken
with her acquaintance, Wilson, and could have his assistant bring Williams $1,000. Williams told respondent that
she needed “the entire amount” and asked when she could
stop by to pick it up. Williams also texted Wilson to say that
it was “weird” that respondent was offering her $1,000 of
her money. The two then discussed having Wilson pick up
Williams’s papers and money from respondent.
By December 20, 2017, the day that this court issued
its order immediately suspending respondent, respondent
had transferred all of Williams’s money out of his lawyer
trust account. That same day, Wilson went to respondent’s
office to pick up Williams’s case file and money. Respondent
gave Wilson Williams’s papers and $200 cash for Williams.
After leaving respondent’s office, Wilson met with Williams.
Williams testified that, at that meeting, Wilson had told her
that respondent had admitted to spending all of her money
but that respondent could pay her back if she did not talk to
the Bar and if he won a case he was working on. Two days
later, respondent texted Williams, “I talked to [Wilson].
472 In re Long
Thank you for understanding.” He also asked her to confirm
whether she wanted the Bar to take over her file. Williams
did not respond.
Two months later, in February 2018, Williams
texted respondent, “im getting concerned about my money
u spent probably cause haven’t gotten any type confirmation from u telling me what ur plan is …. can u do that??”
Respondent replied that they should meet in person.
At the trial panel hearing, Williams testified that
she never received any of the money that the HOA had sent
to respondent and that she did not authorize respondent
to transfer the money to anyone else, including to himself. Respondent disputed that testimony and presented
an entirely different version of events. Although respondent admits that he gave Wilson $4,000 of the trust money
without Williams’s authorization, he denies misappropriating the remainder of the money. He maintains that he
transferred about $12,000 to himself as payment for legal
services, although the only work that he did for Williams
after receiving the funds was drafting a short demand letter to the HOA. Respondent further testified that he had
given Williams the remaining money, about $15,000, in
small cash payments over time. According to respondent,
Williams would repeatedly stop by his office unannounced
and ask for some of her money in cash, which respondent
provided to her from his personal funds. Respondent testified that, following those visits, he would transfer Williams’s
money from his lawyer trust account into his personal
account to make up for the money that he had provided to
Williams.
The trial panel did not find respondent’s testimony
credible, and neither do we. Unlike respondent’s version
of the events, Williams’s version of the events is in accord
with the record documenting the communications between
respondent and Williams. Respondent repeatedly attempted
to avoid Williams’s inquiries about her money. When he
did respond, his responses were not consistent with someone who had already satisfied his financial obligations to
Williams. Instead, he studiously avoided comment on the
money and instead suggested that they meet in person.
Cite as 368 Or 452 (2021) 473
Based on those facts, we agree with the trial panel’s
conclusion that respondent violated RPC 8.4(a)(3) (engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness to practice
law); RPC 8.4(a)(2) (committing a crime—first-degree theft
under ORS 164.055—that reflects adversely on the lawyer’s
honesty, trustworthiness, or fitness as a lawyer);7 RPC 1.15-1(a)
(failing to hold client property in trust account); and RPC
1.15-1(d) (failing to deliver funds or surrender property).
14. Heubner and Leatham matters
The trial panel found that respondent had failed to
cooperate with the Bar’s investigation into two additional
matters, involving separate complaints made by Heubner
and Leatham. We agree that the Bar proved those allegations by clear and convincing evidence and that, as to each
matter, respondent violated RPC 8.1(a)(2) (failing to cooperate with Bar disciplinary investigation).
C. Sanction
We proceed to consider the appropriate sanction
for respondent’s misconduct. In so doing, we refer to the
American Bar Association’s Standards for Imposing Lawyer
Sanctions to determine a preliminary sanction by considering the ethical duties violated, respondent’s mental state
at the time of the misconduct, and the potential or actual
injury caused by respondent’s misconduct. We also consider
any aggravating or mitigating circumstances that may justify either an increase or a decrease in the presumptive
sanction. Finally, we consider the appropriate sanction in
light of this court’s case law. In re Graeff, 368 Or 18, 27,
485
P3d 258 (2021).
We need not engage in an extended analysis to
conclude that the presumptive sanction is disbarment.
“[T]his court often has stated that even a single act of
7
Respondent has not been prosecuted for theft in a criminal proceeding. But
the lack of an underlying criminal prosecution is “not dispositive” of claims under
RPC 8.4(a)(2). In re Walton, 352 Or 548, 554,
287 P3d 1098 (2012); see also In re
Kimmell,
332 Or 480, 485,
31 P3d 414 (2001) (“[T]his court has held that proof
that an accused lawyer was convicted for such an act is not required to find a
violation of [the predecessor to RPC 8.4(a)(2)].”).
474 In re Long
intentional conversion of client funds presumptively warrants disbarment.” In re Webb,
363 Or 42, 53,
418 P3d 2
(2018); see also ABA Standards 4.11 (“Disbarment is generally appropriate when a lawyer knowingly converts client
property and causes injury or potential injury to a client.”).
In this case, respondent intentionally converted Williams’s
funds, causing her financial injury. Therefore, the presumptive sanction is disbarment.
And, beyond the four violations related to his intentional conversion of Williams’s funds, we have determined
that respondent committed 40 other violations related to
14 other matters that involved failing to refund unearned
fees, collecting illegal fees, failing to communicate with
clients, neglecting client matters, and failing to cooperate
with the Bar’s investigations into that conduct. In doing so,
he violated duties owed to his clients (ABA Standards 4.0),
duties owed to the public (ABA Standards 5.0), and other
duties as a professional (ABA Standards 7.0). Those violations are a variety of intentional, knowing, and negligent
conduct.
Respondent’s misconduct caused extensive injuries,
which were not merely financial. Many of respondent’s clients had limited financial means and needed their advance
fees returned before they could afford to hire new attorneys.
When respondent failed to return those advance fees, some
clients simply went without legal representation. Stone, for
example, is a painting subcontractor who saved up money
during his busy season of the year to hire a lawyer so that
he could see his son again. At that time, his son was about
to start high school. When respondent took Stone’s money
without providing him any legal services, Stone’s effort to
see his son was set back another year.
Other clients reported emotional distress from
respondent’s neglect and failure to keep them informed.
Charpentier testified that, between not hearing back
from respondent during the engagement and then having
to repeatedly follow up with respondent to get her money
back, “[i]t was two months of just pure hell.” Grotz, who for
months tried unsuccessfully to get substantive responses
from respondent on the status of his case, reported health
Cite as 368 Or 452 (2021) 475
problems as the result of anxiety from not knowing whether
his legal interests were being protected.
Having determined that the presumptive sanction
is disbarment, we consider whether the balance of aggravating and mitigating circumstances justifies a departure
from that presumptive sanction. We find the following
aggravating circumstances: dishonest or selfish motive; pattern of misconduct; multiple offenses; bad faith obstruction
of the disciplinary proceeding; refusal to acknowledge the
wrongful nature of his conduct; vulnerability of victims;
indifference to making restitution; and illegal conduct. ABA
Standard 9.22(b), (c), (d), (e), (g), (h), (j), (k). And we find the
following mitigating circumstances: absence of a prior disciplinary record and personal or emotional problems. ABA
Standard 9.32(a), (c).
We conclude that the aggravating circumstances substantially outweigh the mitigating circumstances. Respondent repeatedly put his own interests ahead of his clients,
to their financial and emotional detriment. And his failure
to accept responsibility for any of his conduct is, to put it
bluntly, incredible, particularly because, as to some matters,
he concedes the facts establishing the violations. He nevertheless persists in deflecting responsibility by arguing that
his actions were the product of circumstances created by
his ex-wife, his administrative assistants, his clients, and
the Bar attorneys investigating the complaints. Respondent
sees himself as the victim and fails to fully acknowledge
the harm that he has caused to his clients and the profession. That perspective, apparent in one representation after
another, demonstrates respondent’s unfitness to represent
future clients. We therefore conclude, after considering the
aggravating and mitigating factors set out above, that the
sanction of disbarment is appropriate.
That conclusion is supported by our case law. The
most relevant case to respondent’s conversion misconduct is
In re Phinney, 354 Or 329,
311 P3d 517 (2013), which resulted
in disbarment. In that case, the respondent served as the
treasurer of an alumni association, a position that was unrelated to his legal practice. Over the course of about two and
one-half years, he withdrew $32,600 from the association’s
476 In re Long
bank accounts without authorization and deposited that
money into his personal account to pay expenses for himself
and his family. The respondent maintained that he withdrew the money because he had experienced serious personal financial difficulties and always intended to pay back
the association. In fact, by the time that the theft was discovered, the respondent had already deposited $18,070 back
into the association’s account.
Id. at 330-31.
This court concluded that the respondent’s conduct
constituted theft by appropriation under ORS 164.015(1),
establishing a violation of RPC 8.4(a)(2) (committing crime
that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer). Id. at 333-34. The court also concluded that the respondent’s conduct violated RPC 8.4(a)(3)
(engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation that reflects adversely on the lawyer’s fitness to practice law).
Id. at 334-35.
Based on those violations, the court determined
that the presumptive sanction was disbarment. Id. at 337.
The court then concluded that the balance of the aggravating and mitigating circumstances did not justify a departure from that presumptive sanction. The court reached
that conclusion even though, like respondent in this case,
the respondent in Phinney had no prior disciplinary record
and had experienced personal and emotional problems, and,
unlike respondent in this case, the respondent had fully
cooperated with the Bar’s investigative process and had
repaid a substantial amount of the money that he improperly took.
Id. at 337-38. The respondent in Phinney further
did not have the litany of additional offenses and victims
that respondent has in this case. As a result, we conclude
that our case law supports the sanction of disbarment.
Respondent is disbarred, effective 60 days from the
date of this decision.
