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
"(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
"(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
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
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
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
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