A Matter Of Trust

[November 26th, 2008]

There are damaging allegations that a lawyer can survive even if they prove true. Sleeping with a client, or even multiple drunken-driving arrests (see “Drinking and Lawyering,” WW, March 26, 2008), can lead to discipline without disbarment.

But one transgression is so severe that, if proven, it’s considered instant death to a lawyer’s career: dipping into client money for personal expenses.

“There’s a relatively small constellation of things that you get your ticket pulled for pretty much automatically,” says Mark Johnson, past president of the Oregon State Bar. “This is one of them.”

The most recent lawyer who stands accused is Gary Bertoni, one of Portland’s leading juvenile defense lawyers.

Since graduating from Lewis & Clark Law School in 1978, Bertoni has represented some of the state’s most notorious juvenile offenders. His most recent headline-making case was that of Abel Antonio Chavez-Garcia, the 15-year-old boy who beat a 71-year-old man unconscious at a Gresham MAX stop last year.

Bertoni declined to comment to WW, and his attorney, Christopher Hardman, did not respond to WW’s repeated phone calls and emails. Hardman sent a four-page response to the bar Nov. 6, calling the allegations “completely without merit.” The bar has not yet determined if the evidence warrants a full investigation.

Bertoni’s accuser is Cynthia Statham, his former office manager for nine years. She filed a complaint with the bar July 3 alleging Bertoni’s client trust account was $69,826.80 short when she left the firm in September 2007.

Statham, who is now a clerk for Multnomah County Juvenile Court Judge Pro Tem Carol Herzog, backed up her allegations with hundreds of pages of documents, including credit-card receipts and bank statements that Statham says show Bertoni’s money flowing in and out of his clients’ trust account.

That’s a huge no-no under bar rules, which strictly prohibit lawyers not only from taking money out of a client account for personal use, but also from putting personal money in. The accounts are for client money only, used to pay expenses only for the client’s case. No other money can flow in or out.

“It’s a third rail,” says Portland lawyer Greg Kafoury. “You touch it, you’re a goner.”

In the bar complaint, Statham says she left the firm “because of the ongoing abuse of funds.” She told the bar she received one year’s pay in exchange for agreeing not to sue the firm, but she says the agreement did not forbid her to file a bar complaint.

In a Sept. 28, 2007, email sent to Christopher Todd, Bertoni’s partner at the time, Statham laid out her concerns. Todd and a third partner in the firm, David Shannon, left Bertoni two months later to start their own firm. Neither responded to WW’s repeated phone calls and emails for comment.

In one example of alleged wrongdoing by Bertoni, Statham sent the bar copies of receipts and bank statements she says show that on Feb. 14, 2003, Bertoni charged $28,000 on his wife’s MasterCard by running it on the firm’s machine. Statham says that money went into the firm’s client trust account. Four days later, she says, there was a wire transfer of $28,000 from the trust account to an Arizona title agent.

Public property records obtained by WW from Maricopa County, Ariz., show that on the same day the wire transfer was allegedly made, Bertoni and his wife, Katherine Avery, closed on the sale of a home in Scottsdale for $347,000.

Hardman’s letter to the bar on Bertoni’s behalf claims Statham’s records are incomplete and that an audit was performed when the partnership broke up after she left. Hardman also accuses Statham of downloading records without permission after she left the job, which Statham denies.

Meanwhile, Bertoni continues as point man for an annual $1.7 million state contract that includes 13 other public defenders. Bertoni could lose his part of the contract if the allegations are proven, says Ingrid Swenson, executive director of the state Office of Public Defense Services.