Wednesday, January 11, 2012

License To Steal

The Idaho State Bar recent discipline web page has a summary of a disbarment case involving multiple acts of serious misconduct.

Among the high (or, if you will, low) lights of the summary:

With respect to Count One, Mr. Bergesen admitted he violated I.R.P.C. 1.7, 4.2 and 4.4 in connection with his representation of D.B. D.B. was an 82-year-old woman who paid Mr. Bergesen $5,000 to provide criminal defense representation to a young man, A., who had befriended her and to whom she had provided over $10,000 in “loans.” D.B.’s sister, P., petitioned for a conservatorship based on A.’s undue influence and was named temporary conservator. Mr. Bergesen sought to represent D.B. in the conservatorship proceeding and filed an ex parte motion to release $7,000 from D.B.’s account for his retainer fee. The Court declined to authorize payment of the retainer fee and instructed Mr. Bergesen to submit his request for payment of hourly fees to P. Two days later, Mr. Bergesen drove D.B. to P.’s home, demanded immediate payment of his retainer fee and threatened to have P. thrown in jail for contempt. P. telephoned her attorney, who reiterated to Mr. Bergesen the Court’s instruction that requests for payment of hourly fees be submitted in writing. Mr. Bergesen then filed a Notice of Appearance for D.B. and a motion to release her funds based on a fee agreement she signed earlier that day. P. moved to disqualify Mr. Bergesen based on a conflict of interest, with specific reference to A.’s alleged exploitation of D.B. and Mr. Bergesen’s recent court appearance for A. on strangulation charges. Mr. Bergesen ultimately withdrew and the Court appointed P. as guardian and conservator for D.B., who was deemed incapacitated due to significant dementia.

With respect to Count Two, Mr. Bergesen admitted he violated I.R.P.C. 1.5(a), 1.5(f), 1.16(d), 4.1(a), 8.4(c) and 8.4(d), in connection with his representation of J.C. J.C. was a 75-year-old woman charged with multiple criminal counts. J.C. signed Mr. Bergesen’s fee agreement providing for a $200,000 fixed fee for lifetime representation. By the terms of the fee agreement, the $200,000 fee was due within three weeks and deemed earned upon receipt. J.C. paid Mr. Bergesen $50,000 by check and instructed her bank to issue Mr. Bergesen a check for $102,653, reflecting all remaining funds in her checking and savings accounts. Mr. Bergesen drove J.C. to the bank and obtained the check, which he cashed later that day. One day after that payment, J.C. instructed her bank to liquidate her retirement and annuity accounts and issue a $100,000 check to Mr. Bergesen. A bank representative advised J.C. to withhold a portion of those funds to pay her tax obligations. Mr. Bergesen called the representative and demanded that no funds be withheld because the prosecutor in J.C.’s criminal case demanded upfront restitution and J.C. purportedly needed all available funds as a “bargaining chip” to stay out of prison. The bank representative advised that no payment would be issued until Mr. Bergesen verified the funds would be held in trust. Mr. Bergesen falsely informed the representative that J.C.’s previous payments of over $152,000 had been deposited into his trust account. Prior to the final payment, J.C. retained other counsel and sent Mr. Bergesen a letter terminating his services, demanding an itemized accounting and refund, and requesting that he refrain from contacting her. Mr. Bergesen did not provide an accounting or refund and continued to contact J.C. against her wishes. Thereafter, Mr. Bergesen did not respond to repeated requests from J.C.’s new counsel for an accounting and refund of her payments.

And:

With respect to Count Seven, Mr. Bergesen admitted he violated I.R.P.C. 1.5(a), 1.5(b), 1.5(f), 1.8(f), 1.15(a), 1.15(b), 1.16(d), 4.1(a), 4.4(a), 8.4(c) and 8.4(d) in connection with his representation of K.L. in a criminal case. K.L.’s father, B., retained Mr. Bergesen to represent her for a $40,000 fixed fee. B. paid that fee in cash installments as Mr. Bergesen requested over a three-month period. Mr. Bergesen subsequently requested that B. pay an additional $50,000 because K.L.’s “life and freedom [were] at stake.” B. paid Mr. Bergesen $47,500 in additional fees by cash deposit. Thereafter, Mr. Bergesen’s live-in girlfriend, Brenda, whom he identified only as his “investigator,” requested that B. wire an additional $10,000 to her bank account so that she could conduct research at the University of Idaho law library. B. deposited $10,000 into Brenda’s bank account and paid Mr. Bergesen an additional $2,500, by cash deposit, based on Mr. Bergesen’s false representation that funds were needed for a grand jury transcript. Mr. Bergesen then requested an additional $15,000 for final trial preparations. B. paid Mr. Bergesen an additional $5,000. Shortly thereafter, K.L. accepted a plea offer and Mr. Bergesen requested an additional $10,000 to represent K.L. at sentencing. B. declined and requested an accounting and refund. Mr. Bergesen refused to provide an accounting or refund of B.’s payments totaling over $100,000.

IdahoStatesman.com reports that the attorney was convicted of crimes and will serve at least three years in prison. The report notes the criminal charges against the client in Count Two involved "using condiments to damage library materials at a drop box." (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/01/the-idaho-state-bar-recent-discipline-web-page-has-a-summary-of-a-disbarment-case-involving-multiple-acts-of-serious-miscondu.html

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