Filed: July 24, 1998
IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of the Application of
DANIEL ALAN BERNATH,
For Admission to the Oregon State Bar.
(SC S44863)
On review of the recommendation of the Oregon State Board of Bar Examiners.
Submitted on the record and briefs April 24, 1998.
Daniel A. Bernath filed petitioner's briefs pro se.
Jeffrey D. Sapiro, Oregon State Bar, Lake Oswego, filed the brief on behalf of the Oregon State Board of Bar Examiners.
Before Carson, Chief Justice, and Gillette, Van Hoomissen, Durham, Kulongoski, and Leeson, Justices.
PER CURIAM
Admission denied.
PER CURIAM
The issue in this case is whether Daniel A. Bernath
(applicant) has proved by clear and convincing evidence that he
"is a person of good moral character and fit to practice law" in
this state. ORS 9.220(2)(a).(1) After de novo review of the
record developed before the Board of Bar Examiners (Board), ORS
9.536(3) and 9.539, Rules for Admission of Attorneys (RFA)
9.60(5), and Bar Rule of Procedure (BR) 10.6, we conclude that
applicant has not proved that he possesses the requisite good
moral character and fitness to practice law in this state.
Accordingly, we deny applicant admission to the practice of law
in the State of Oregon.
Applicant was admitted to the practice of law in
California in 1984 and practiced in that state until 1994, at
which time he moved to Oregon. In October 1994, applicant
applied for admission to the Oregon State Bar. Applicant took
and passed the February 1995 Oregon State Bar examination.
However, following a character and fitness review proceeding, a
three-member panel of the Board recommended that applicant be
denied admission to the practice of law in Oregon. Thereafter,
the full Board unanimously made the same recommendation to this
court, forwarding that recommendation to the court on December
24, 1997. Applicant timely filed a petition for review of the
Board's recommendation. This court has jurisdiction pursuant to
ORS 9.539 and BR 10.2.
Applicant must prove by clear and convincing evidence
that he has the requisite good moral character to be admitted to
the practice of law in Oregon. RFA 9.45(6); In re Rowell, 305 Or
584, 588, 754 P2d 905 (1988). That means that applicant must
show that it is "highly probable" that he has good moral
character. In re Monaco, 317 Or 366, 370 n 4, 856 P2d 311
(1993). Any significant doubts about applicant's character are
resolved in favor of protecting the public by denying him
admission. In re Jaffee, 319 Or 172, 177, 874 P2d 1299 (1994);
In re Easton, 298 Or 365, 367-68, 692 P2d 592 (1984).
In its recommendation to this court, the Board
identified the following findings of the three-member panel that
the full Board believed demonstrated applicant's lack of good
moral character and fitness to practice law in Oregon:
"(A) He disobeyed a court order to pay child
support.
"(B) He was suspended for over a year in the State
of California for failure to pay child support.
"(C) He failed to inform the Board that he was
suspended from the practice of law in the State of
California and he lied to the Board about his
suspension in California, stating that he was not
suspended when he was in fact suspended.
"(D) He loaned money to a client, Tamara Varner
('Varner'), and collected on the loan from settlement
proceeds from Varner's lawsuit without Varner's
knowledge or agreement.
"(E) He signed Varner's name to a release without
Varner's knowledge and without advising the opposing
party or counsel for the opposing party that he was
signing the release on behalf of Varner. On that same
release he signed as a witness, attesting to the
authenticity of Varner's signature.
"(F) He lied by omission to the Board when he told
it that he did not notarize the Varner settlement
document.
"(G) He endorsed Varner's name to the settlement
check without Varner's knowledge and without advising
the bank that he was doing so.
"(H) He retained all of the proceeds of the
settlement without Varner's knowledge or agreement.
"(I) He failed to respond to a notice from the
Committee on Arbitration of the Los Angeles County Bar
Association that Varner was disputing his fee and that
there would be an arbitration of the dispute. He also
failed to appear at the hearing.
"(J) He failed to advise the Board of the fee
dispute or the award in favor of Varner and against him
in the amount of $10,000.
"(K) He wrote a letter to Varner after entry of
the award against him wherein he misrepresented the law
and threatened to sue her if she did not agree to
settle with him for $500.
"(L) He destroyed all of his files for all of the
cases he handled in California.
"(M) A judgment was entered in California against
him in the amount of $34,000 for malicious prosecution.
"(N) He lied by omission to the Board when in his
application for admission he stated that the judgment
for malicious prosecution was reversed, but did not
state that it was reversed by stipulation of the
parties rather than on the merits.
"(O) He failed to inform the Board about a lawsuit
to which he was a party and which settled in
applicant's favor for the amount of approximately
$41,000.00.
"(P) On May 16, 1997, he issued subpoenas on which
he holds himself out to be an attorney practicing in
Oregon.
"(Q) Applicant failed to inform the Board about a
lawsuit in which applicant was a plaintiff in an
attorney fee dispute.
"(R) Applicant failed to inform the Board that a
motion for sanctions was made against him for appearing
at a deposition while carrying a concealed weapon and
that a sanction was assessed against him in the amount
of $750."
We need not address each of those specific allegations.
As we explain below, we find that applicant failed to disclose to
the Board his suspension by the California State Bar, and he made
false representations to the Board regarding the Varner
settlement agreement. Each of these acts, standing alone, would
be a sufficient ground for denying his application to practice
law in Oregon. Any further discussion of the remaining
allegations against applicant would not benefit bench or bar.
We first discuss applicant's failure to disclose his
suspension by the California State Bar. The status of an
applicant's bar membership in another jurisdiction is material
information required by the Board in making an evaluation of that
applicant's character and fitness to practice law in Oregon.
That information, along with a certificate of good standing, is
required in the original application for admission to practice
law. RFA 4.15(3).
Applicant was an active member of the California State
Bar when he filed his application to practice law in Oregon. At
some point after making his application, applicant voluntarily
transferred to inactive status in California. On July 31, 1995,
after that voluntary transfer to inactive status, applicant was
suspended by the California State Bar for failing to pay child
support. Applicant failed to disclose his suspension to the
Board; the Board discovered it during its investigation of
applicant's character and fitness. Applicant repeatedly denied
that his California Bar status had changed until the Board
produced documents demonstrating that the California State Bar
had suspended him for failure to obey a court order to pay child
support.
It is essential that every applicant to practice law in
Oregon fully disclose to the Board all information relevant to
the applicant's character and fitness. Failure to disclose
relevant information fully and candidly is a ground for the Board
to recommend denial of admission. RFA 6.05(3). It also forms a
basis for this court to deny admission. In re Parker, 314 Or
143, 154-55, 838 P2d 54 (1992). Applicant was on notice of his
obligation to disclose relevant information to the Board, both
through the Rules for Admission of Attorneys and through the
application itself, on which applicant acknowledged, by signature
and under oath, his duty to disclose. Applicant's disclosure
fell short of the degree of disclosure that he acknowledged to be
required of him. Because it raises significant doubts about his
good moral character, applicant's failure to disclose his
suspension by the California State Bar constitutes a sufficient
ground for denial of his application to practice law in Oregon.
In re Monaco, 317 Or at 369-71; In re Parker, 314 Or at 154-55.
We turn to applicant's representation of Tamara Varner.
Applicant represented Varner in a variety of legal matters while
he was an active member of the California State Bar. The last
matter in which he represented her was a personal injury auto
accident case in which Varner was the plaintiff.
The attorney-client relationship between applicant and
Varner was governed by a written fee agreement. Applicant
destroyed the Varner fee agreement before he moved to Oregon.
During the Board's character and fitness investigation, applicant
produced a blank, computer-generated agreement that he claimed
was identical to the agreement that Varner signed. That blank
agreement included a power of attorney provision. Varner
disputes applicant's assertion that the agreement that she signed
contained a power of attorney provision. Varner further asserts
that, if the agreement that she signed did include a power of
attorney provision, applicant explained neither the meaning nor
the effect of that provision to her.
The defendant's insurance carrier in Varner's auto
accident case agreed to a settlement in the amount of $10,000. A
release agreement was part of that settlement. The terms of that
release agreement required Varner to acknowledge that she had
"completely read" and "fully understood" it. By its terms, the
release agreement also expressly stated that the release was
essential and material to the settlement and that the settlement
would not have been entered into by the defendant's insurance
carrier without the release. Claiming that he acted on the
authority of the power of attorney provision that he asserts was
in the Varner fee agreement, applicant acknowledged that he
signed Varner's name on the release agreement. Applicant also
endorsed Varner's name on the settlement check. Applicant made
no disclosure or indication, either on the release documents or
orally, that he was signing the release on Varner's behalf. In
addition, applicant signed his own name on the release attesting
that he witnessed Varner sign that document.(2)
By signing the release agreement and the settlement
check, applicant falsely represented to the defendant, the
defendant's counsel, the defendant's insurance carrier, and the
bank that negotiated the settlement check that Varner personally
approved the settlement, endorsed the check, and released the
defendant from all claims. Applicant's willingness to make such
false representations demonstrates a lack of good moral
character. See, e.g., In re Magar, 312 Or 139, 141, 817 P2d 289
(1991) (lawyer's unauthorized endorsement of client's name on
draft made out to client constituted behavior involving
dishonesty, deceit, or misrepresentation); see also In re Boothe,
303 Or 643, 651-52, 740 P2d 785 (1987) (lawyer's endorsement of
client's name, without authorization, on a check on which lawyer
and client were joint payees, constituted conduct involving
dishonesty, deceit, or misrepresentation); In re Sassor, 299 Or
570, 576, 704 P2d 506 (1985) (lawyer's endorsement, without
authorization, of payee's signature on a state property tax
refund check and deposit of those funds in lawyer's trust account
constituted conduct involving dishonesty, deceit, or
misrepresentation). Applicant's testimony before the Board
provided no convincing explanations for his misrepresentations in
the course of the Varner litigation, and does nothing to resolve
our significant doubts regarding applicant's moral character.
Those doubts constitute sufficient grounds for denial of his
application to practice law in Oregon. In re Monaco, 317 Or at
369-71; In re Parker, 314 Or at 154-55. See also In re Cheek,
246 Or 433, 425 P2d 763 (1967) (applicant who signed name of
company president to two checks and lied about damages to a
company automobile denied admission).
In a bar admission proceeding, this court's primary
responsibility is to the public. Our charge is to assure that
those who are admitted to the bar possess the ethical
responsibility and the maturity of character necessary to enable
them to withstand the many pressures and temptations that will
confront them in the practice of law. The record contains
overwhelming evidence that applicant does not possess that
requisite good moral character and fitness to be a practicing
attorney in Oregon. Applicant's brief to this court does little
to resolve the doubts raised by the Board about his character.
We conclude that applicant has failed to prove by clear and
convincing evidence that he is a person of good moral character
and fit to practice law in Oregon.
Admission denied.
1. ORS 9.220 provides in part:
"An applicant for admission as attorney must apply
to the Supreme Court and show that the applicant:
"* * * * *
"(2)(a) Is a person of good moral character and
fit to practice law."
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2. The record also reveals that applicant repeatedly attempted to mislead the Board regarding the Varner settlement release agreement. He failed to produce the release agreement, despite repeated inquiries about it by the Board and his knowledge that the Board deemed the agreement to be critical to the evaluation of his character and fitness. At one point, he denied that there was a release agreement. He later suggested that he already had provided the release agreement to the Board when, in fact, he had not done so. He stated unequivocally that he had not notarized the release, without disclosing that he had attested to witnessing Varner's signature on the release, an act functionally equivalent to notarization.
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