491 P.3d 783
Or.2021Background
- Respondent Andrew Long, admitted 2003, practiced solo in Oregon from Jan 2016 until suspended Dec 2017; he faced two separate Bar proceedings (one pending) and was temporarily suspended in Dec 2017.
- Long frequently used "earned on receipt" advance-fee agreements and immediately used client funds to cover personal and practice expenses; when clients terminated representation he often failed to refund unearned fees.
- The Oregon State Bar charged Long with numerous RPC violations across many client matters, including intentional conversion of client funds (most notably Williams), failing to return unearned fees, charging illegal fees, neglect and poor communication, and failing to cooperate with Bar investigations.
- A Disciplinary Board trial panel found clear and convincing evidence of 50 RPC violations and recommended disbarment; Long sought de novo review in the Oregon Supreme Court.
- The Supreme Court affirmed most findings, concluded Long intentionally converted Williams’s funds (including unauthorized transfers and use of trust funds), found pervasive failures to refund or account for advance fees, upheld multiple violations for neglect and failure to communicate, and found repeated failures to respond to Bar investigative demands.
- Because intentional conversion of client funds presumptively warrants disbarment and aggravating factors outweighed mitigation, the court ordered respondent disbarred effective 60 days from the decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Long intentionally converted client funds (Williams) | Bar: Long misappropriated trust funds, made unauthorized transfers, and used funds for personal/third-party purposes. | Long: He disputed amounts taken, claimed he earned fees and made cash payments to client; denied misappropriating remaining funds. | Court: Bar proved conversion by clear and convincing evidence; Long’s testimony not credible; violations of RPC 8.4(a)(2) and 8.4(a)(3) and trust rules proven. |
| Whether Long failed to return unearned fees (multiple clients) | Bar: Long kept advance fees after termination or without earning them and failed to account or refund. | Long: Disputed records or claimed he performed sufficient work or that suspension prevented completion/repayment. | Court: For many matters Bar proved failures to refund and accounting (RPC 1.16(d), RPC 1.15-1(d)), but in some matters Bar lacked sufficient evidence and those violations were not sustained. |
| Whether Long charged illegal or excessive fees (workers’ comp & others) | Bar: Long collected fees that required court/board approval or otherwise were improper. | Long: Claimed services justified fees or disputed approval requirement. | Court: Sustained illegal-fee finding for workers’ compensation appeal (violated ORS 656.388(1) and RPC 1.5(a)); some excessive-fee claims not proved for lack of evidence of insufficient work. |
| Whether Long neglected matters and failed to communicate with clients | Bar: Long repeatedly failed to act, missed deadlines, ignored communications, and did not inform clients of suspension. | Long: Cited inexperience, ADHD, personal problems, and staff errors. | Court: Found numerous violations of RPC 1.3 and RPC 1.4 for neglect and failure to keep/advise clients in many matters. |
| Whether Long failed to cooperate with Bar investigations | Bar: Long ignored multiple lawful investigative demands for documents and explanations. | Long: Argued he believed some demands exceeded Bar authority or were improper. | Court: Rejected defense; Bar inquiries were lawful; sustained multiple RPC 8.1(a)(2) violations. |
| Appropriate sanction for proven misconduct | Bar: Disbarment is appropriate given intentional conversion and pattern of misconduct. | Long: Argued against disbarment, cited mitigating factors and personal problems. | Court: Presumptive sanction for intentional conversion is disbarment; aggravating factors (dishonesty, pattern, multiple offenses, obstruction, vulnerability of victims) outweighed mitigation; ordered disbarment effective 60 days after decision. |
Key Cases Cited
- In re Bertoni, 363 Or 614 (2018) (application of advance-fee/earned-on-receipt proof principles)
- In re Meyer (II), 328 Or 220 (1999) (neglect may be found from short but urgent periods of inaction)
- In re Phinney, 354 Or 329 (2013) (intentional conversion of funds supports disbarment)
- In re Webb, 363 Or 42 (2018) (conversion presumptively warrants disbarment)
- In re Knappenberger, 344 Or 559 (2008) (charging fees in violation of governing approval rules constitutes charging an illegal fee)
- Shearer’s Foods v. Hoffnagle, 363 Or 147 (2018) (attorney fees on appeal require approval where statute demands it)
- In re Walton, 352 Or 548 (2012) (criminal prosecution not required to find RPC violation for criminal conduct)
- In re Kimmell, 332 Or 480 (2001) (conviction not necessary to establish RPC violations reflecting criminal conduct)
- In re Graeff, 368 Or 18 (2021) (framework for sanction analysis and use of ABA Standards)