In re Bertoni, 426 P.3d 64

Background

Respondent, an Oregon lawyer, was disciplined by a Disciplinary Board trial panel for multiple RPC violations arising from representation of three clients: Prado‑Hernandez, Monroy, and Lyons; the panel imposed a 1‑year suspension.
Prado‑Hernandez: respondent took a $5,000 flat fee (deposited into operating account), investigated post‑conviction relief, concluded none existed, failed to respond timely to client/family inquiries, and did not provide promised accounting or refund; panel found violations of RPC 1.4(a), 1.15‑1(a), 1.15‑1(c), and 1.15‑1(d) (failure to account), but not retention of unearned fees.
Monroy: respondent agreed to handle post‑conviction and civil matters (retainer/hourly and a separate nonrefundable retainer for civil work), deposited fees improperly, gave inaccurate/incomplete information about transfer of her matters to another lawyer during respondent’s suspension, delayed file transfer; panel found violations involving fee disclosures, trust account rules, communication (RPC 1.4(a), 1.4(b)), excessive fee claim rejected, and failure to protect client on termination (RPC 1.16(d)).
Lyons: written flat fee for pretrial work complied with RPC disclosures; respondent orally collected a $3,000 trial fee (deposited to operating account) without a compliant written agreement and did not refund it after plea settlements; panel found violations of RPC 1.5(c)(3), 1.15‑1(c), and 1.16(d).
On review, the Oregon Supreme Court affirmed most findings, rejected claim‑preclusion for Monroy‑related charges, declined to find Prado‑Hernandez funds unearned by clear and convincing evidence, and increased the sanction to an 18‑month suspension (to start 60 days after decision) based on multiple knowing and negligent violations and prior discipline.

Issues

Issue	Plaintiff's Argument (Bar)	Defendant's Argument (Respondent)	Held
Whether respondent violated RPC 1.4(a) by failing to respond to Prado‑Hernandez’s/ wife’s inquiries	Failure to promptly respond to reasonable status inquiries; client injured by anxiety/frustration	Respondent said he had previously told client no grounds for relief and wife was not his client	Court: Violation of RPC 1.4(a); requests were reasonable and respondent delayed >9 months before substantive reply
Whether respondent retained unearned fees or violated RPC 1.15‑1(d) for Prado‑Hernandez	Bar: limited work did not earn full $5,000; fees unearned and should be refunded	Respondent: flat fee paid for investigation; he performed agreed investigation and thus earned fee	Court: Bar failed to prove by clear and convincing evidence that fees were unearned; but respondent violated RPC 1.15‑1(d) by failing to render full accounting upon request
Whether claim preclusion bars Monroy‑related charges (claims already settled in prior stipulation)	Bar: stipulation encompassed only listed clients; SPRB process prevented inclusion; can pursue new charges	Respondent: earlier stipulated order resolved same factual transactions, so claim preclusion applies	Court: Respondent failed to prove stipulated order intended to cover Monroy; claim preclusion rejected
Whether oral $3,000 trial fee for Lyons complied with RPC 1.5(c)(3) and required refund under RPC 1.16(d)	Fee was treated as earned on receipt without required written disclosures; trial fee was refundable because no trial occurred	Respondent: oral agreement incorporated written agreement or alternatively that "went to trial" was triggered when the case was called for trial	Court: Oral fee did not satisfy RPC 1.5(c)(3); depositing fee into operating account violated RPC 1.15‑1(c); respondent promised refund and failed to return $3,000 — violation of RPC 1.16(d)

Key Cases Cited

In re Biggs, 318 Or. 281 (1994) (requires written "earned on receipt" agreement for depositing advance fees into operating account)
In re Balocca, 342 Or. 279 (2007) (burden on Bar to prove unearned fees; lawyer bears burden to show agreement justifies treating fees as earned on receipt)
In re Cohen, 330 Or. 489 (2000) (client anxiety and frustration constitute injury for discipline purposes)
In re Fadeley, 342 Or. 403 (2007) (advance fees may be deposited into operating account only under compliant written agreement)
In re Obert, 352 Or. 231 (2012) (application of RPC 1.15‑1(d) to unearned client payments)
In re Peterson, 348 Or. 325 (2010) (60‑day suspension for trust‑account and handling violations)
In re Knappenberger, 340 Or. 573 (2006) (prior similar discipline is significant aggravation)
In re Gatti, 356 Or. 32 (2014) (use ABA sanction standards and prior case comparisons in sanctioning)
In re Ramirez, 362 Or. 370 (2018) (consistency with precedent in imposing sanctions)
In re Meyer, 328 Or. 220 (1999) (one‑year suspension for similar pattern of misconduct)
In re Jones, 326 Or. 195 (1997) (definition and limits of "prior disciplinary offense" for aggravation)
State v. Moore, 361 Or. 205 (2017) (limiting analysis to sufficiently developed issues)