Attorney disbarred after 10-year battle over overbilling

A San Francisco attorney who for 10 years has fought charges that he overbilled clients has been disbarred. JEROME BERG [#28842], 64, of San Francisco was banned from practicing law effective April 24, 1998, and was ordered to comply with rule 955 of the California Rules of Court. Berg took his case to the State Bar Court's review department and then to the California Supreme Court, which declined to grant a hearing.

The bar court's review department upheld a hearing judge's recommendation that Berg be disbarred for overbilling a client more than $250,000 in 1988. It also reversed another recommendation from the lower court and found that Berg did not disburse settlement funds to a client in a timely manner.

It upheld a finding that Berg did not make false statements to a bar investigator.

Berg overbilled TDIC, an insurance company for whom he acted as cumis counsel, in 41 malpractice cases against four dentists insured by TDIC. He billed the company for work he had not performed and records showed he charged for more than 24 hours on some days and for more than 100 hours per day "on a substantial number of days."

In a civil trial in San Francisco in 1991, a jury returned a verdict against Berg of $286,024.86 and costs of nearly $41,000.

In addition, the jury found that he acted with oppression, malice and fraud. The verdict was upheld by the Court of Appeal, and both the California and U.S. Supreme Courts denied review.

Bar court hearing judge Eugene Brott recommended in July 1996 that Berg be disbarred for what he called his egregious misconduct, noting that his "complete lack of insight into the wrongfulness of his actions is reprehensible."

Berg appealed to the review department, charging among other things that Brott erred by not permitting him to re-litigate the propriety of his billing, that the statute of limitations had run, and that the bar used "secret" documents against him. He filed a 95-page opening brief and a 525-page appendix to support his arguments, all rejected by the review department.

In another case, Berg represented a woman who was injured in two separate automobile accidents. In one matter, Berg and the client agreed his fee would be one-third of the recovery if the case settled before trial and 40 percent if there was a trial. In the other case, an engagement letter stated his fee would be 40 percent of the net recovery. The cases were consolidated.

Berg negotiated a settlement of $27,500 before trial and took a 40 percent fee. The client objected because the first agreement called for a fee of one-third of the recovery.

Berg took the 40 percent fee and said he did not become aware of his client's dispute for about a month. He sent her a revised settlement statement, suggesting the client sign it under protest, and that "we can work on resolving the disputed portion."

The client won a small claims judgment, which Berg appealed and lost. He paid the judgment.

The hearing judge determined Berg illegally withdrew the disputed portion of his fee before the dispute was resolved. The judge also said the bar had not proven that Berg did not promptly pay the client funds due her.

In a review department opinion, Judge James Obrien reversed the latter finding because although Berg knew about the fee dispute, he paid himself but did not pay the client for six weeks.

Berg "has shown no remorse and has continuously asserted the propriety of his conduct even though it has been determined to have been fraudulent," wrote Obrien in the review department's disbarment recommendation. "This denotes an unwillingness to accept the judicial process, even aside from the disciplinary process.

"It suggests that, for [Berg], the sole interpretation of the Rules of Professional Conduct and the State Bar Act is his own."