In re Long

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 investi-

gations; 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, inten-

tionally 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 investi-

gations. 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 conclu-

sions 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 gradu-

ate degree and clerking, respondent worked as a law profes-

sor 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 prac-

tice 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 sus-

pension, which this court granted in December 2017 after

reviewing the filings submitted by the Bar and respon-

dent. 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 disci-

plinary proceeding. The court agreed with that recommen-

dation 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 estab-

lished, 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 help-

ful 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 rele-

vant 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 neces-

sitated 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, sepa-

rate 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 alterna-

tive 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 cir-

cumstances, 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 indi-

cates 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 writ-

ten 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 per-

sonal 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 law-

yer 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 cli-

ents. The client provided respondent with advance fees that

were designated as “earned on receipt.” The client then ter-

minated 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 con-

tends 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 assess-

ing 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 ini-

tiate eviction proceedings. In October 2017, respondent’s for-

mer assistant, who was acquainted with his roommate and

a witness in the eviction proceedings, obtained a stalking

protective order against respondent. The Bar sought respon-

dent’s immediate suspension in November 2017. And respon-

dent was arrested for violating the stalking protective order

in December 2017, before this court ordered respondent’s

suspension later that month. Those events provide con-

text 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 pro-

visions, 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 post-

conviction 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 ter-

minated 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 sus-

pension 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 respon-

dent’s alleged misconduct, the Bar sent respondent multiple

letters seeking his response to the allegations. Those let-

ters 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 ille-

gal 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 com-

plaints to Disciplinary Counsel). We find no support in the

record for respondent’s contention that the Bar was investi-

gating 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 evi-

dentiary 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 inves-

tigatory 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 aggra-

vating 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 juve-

nile 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 account-

ing by refunding them the entire amount that they had paid

him in advance fees and costs. Mrs. Richman told respon-

dent 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 demon-

strating the grounds for the money that he kept.

Mrs. Richman emailed documents to respondent pur-

porting to show the additional $1,000 in advance payments.

Although those documents are not in the record, she testi-

fied 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 con-

clude 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 unlaw-

ful sale of her deceased mother’s home. She paid respon-

dent $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 misplac-

ing 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 agree-

ment, she would have retained a copy of it and would have

documented that fact in the notebook that she used to con-

temporaneously 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 mat-

ter, 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 vio-

lated 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 respon-

dent 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 opin-

ion. 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 collect-

ing 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 fed-

eral 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 modifi-

cation 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 any-

thing 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 respon-

dent never refunded the $1,640 in unearned fees that he had

collected, and he failed to cooperate with the Bar’s investi-

gation 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 termina-

tion 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 cli-

ent 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 dis-

pute. 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 mat-

ter 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 pur-

pose 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 assis-

tant 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 addi-

tional 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 respon-

dent 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 com-

pany in July 2017. Respondent was never very responsive

to Agero’s emails. He became even less responsive begin-

ning 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 investi-

gate 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 sus-

pension, 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 evi-

dence of that research. Without such evidence, and given

respondent’s documented history of ignoring Beutler’s mat-

ter, 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 exces-

sive 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 respon-

dent 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 learn-

ing 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 modifi-

cation 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 sus-

pension. 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 exces-

sive 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 con-

tractor. 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 suspen-

sion 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 vio-

lated 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 dif-

ferent matters. At least one matter related to a commer-

cial lease dispute. Frackowiak provided respondent with

$1,200 in advance fees that were designated as earned on

receipt. Respondent performed research and sent two let-

ters 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 sus-

pension from the media coverage. Respondent failed to coop-

erate with the Bar’s efforts to investigate this matter.

The trial panel concluded that respondent had vio-

lated 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 repre-

sentation 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 evi-

dence, 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 mat-

ters 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 com-

ponent 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 withdraw-

als 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 pur-

sue. 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, ask-

ing 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 techno-

logical problems but would follow up on December 5. When

respondent did not follow up by December 6, Williams tex-

ted, “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 assis-

tant 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 confirma-

tion 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 him-

self. Respondent disputed that testimony and presented

an entirely different version of events. Although respon-

dent admits that he gave Wilson $4,000 of the trust money

without Williams’s authorization, he denies misappropri-

ating 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 let-

ter 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 testi-

fied 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 some-

one 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 misrepresenta-

tion 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 allega-

tions by clear and convincing evidence and that, as to each

matter, respondent violated RPC 8.1(a)(2) (failing to cooper-

ate 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 consid-

ering 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 jus-

tify 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 war-

rants disbarment.” In re Webb, 363 Or 42, 53, 418 P3d 2

(2018); see also ABA Standards 4.11 (“Disbarment is gen-

erally 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 presump-

tive sanction is disbarment.

And, beyond the four violations related to his inten-

tional 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 viola-

tions are a variety of intentional, knowing, and negligent

conduct.

Respondent’s misconduct caused extensive injuries,

which were not merely financial. Many of respondent’s cli-

ents 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 aggra-

vating and mitigating circumstances justifies a departure

from that presumptive sanction. We find the following

aggravating circumstances: dishonest or selfish motive; pat-

tern 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 dis-

ciplinary record and personal or emotional problems. ABA

Standard 9.32(a), (c).

We conclude that the aggravating circumstances sub-

stantially outweigh the mitigating circumstances. Respon-

dent 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 never-

theless 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 profes-

sion. 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 unre-

lated 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 with-

drew the money because he had experienced serious per-

sonal financial difficulties and always intended to pay back

the association. In fact, by the time that the theft was dis-

covered, 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, trustworthi-

ness, or fitness as a lawyer). Id. at 333-34. The court also con-

cluded 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 fit-

ness 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 aggravat-

ing and mitigating circumstances did not justify a depar-

ture 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 improp-

erly 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.