In the Matter of Leonard L. Bergersen
As Corrected December 5, 2014.
For Petitioner: David Curtin, Esq., Chief Disciplinary Counsel.
For Respondent: Neil P. Philbin, Esq.
Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Justices Goldberg and Indeglia did not participate.
This attorney disciplinary matter came before the Court pursuant to a recommendation of the Supreme Court Disciplinary Board (board) that the respondent, Leonard L. Bergersen (respondent), be suspended from the practice of law. Article III, Rule 6(d) of the Supreme Court Rules of Disciplinary Procedure provides in pertinent part:
" If the board determines that a proceeding should be * * * concluded by public censure, suspension or disbarment, it shall submit its findings and recommendations, together with the entire record, to this Court. This Court shall review the record and enter an appropriate order."
We directed the respondent to appear before this Court at its conference on September 10, 2014, to show cause, if any, why he should not be disciplined in accordance with the board's recommendation. The respondent
appeared before this Court with counsel. Having heard the representations of the respondent, his attorney, and this Court's Disciplinary Counsel, we determine that cause has not been shown, and we adopt the recommendation of the board that the respondent be suspended from the practice of law for a period of eighteen months. The effective date of this suspension is retroactive to February 21, 2014, the date the respondent requested the clerk of this Court to place him on inactive status.
The following are the facts as determined by the board. The respondent was retained to represent Jennifer Fisheries, Inc., the owner of the fishing vessel F/V Prevail, in civil litigation pending in the United States District Court for the District of Rhode Island. On April 26, 2012, the president of Jennifer Fisheries, Inc., executed an escrow agreement that provided that the respondent would hold the sum of $40,000 as escrow agent and would disburse those funds to the appropriate parties to be determined at the resolution of that litigation. On that same date a check for that amount, payable to " Leonard L. Bergersen, Esq., escrow agent," was delivered to the respondent; and, on the following day, April 27, 2012, he opened a savings account at the Washington Trust Company and deposited those escrow funds into that account.
On the same day the respondent opened a separate account at the Washington Trust Company as an escrow account for other clients, Wally and Rose Chin. That account was opened with a deposit of $50,000 belonging to the Chins, and those funds were to be used for the benefit of the Chins and various business entities controlled by them and for payment of legal fees to the respondent.
Between September of 2012 and March of 2013, the respondent disbursed $28,000 from the Chins' account to pay various entities and individuals as directed by those clients. He also disbursed $21,700 from that account to himself without the knowledge or consent of those clients. In February of 2013, Wally Chin directed the respondent to disburse $18,000 from his account to make a payment to Admirals Bank. However, at the time that request was made, the Chin account had been depleted, and the respondent could not make the requested payment from that account. He did not notify the Chins that there were insufficient funds remaining in their account to honor their request.
On March 25, 2013, the respondent withdrew $20,000 from the escrow account that had been established for Jennifer Fisheries, Inc. He did not notify that client that he was making that withdrawal or obtain authorization from any of the parties to the federal court litigation to do so. He applied $18,000 of those funds to make the payment on behalf of the Chins to Admirals Bank and used $2,000 for his own benefit.
In March of 2013, Jennifer Fisheries, Inc. retained new counsel to represent its interests in the pending federal court litigation. That new attorney made several requests to the respondent to forward the escrowed funds to his custody, but the respondent failed to do so. On May 23, 2013, an order was entered by the federal court directing the respondent to appear before that court on May 29, 2013 to provide a full accounting for the escrowed funds and to show cause why he had not transferred those funds to the custody of Jennifer Fisheries, Inc.'s new attorney. On May 29, 2013, the respondent tendered a check in the amount of $40,029.01 to new ...