Please Have a Seat, Your Hearing Will Be Delayed Until the Judge and Your Lawyer Finish Wrestling

The Oregonian reports on the Portland Lawyer and the Social Security Administration, Administrative Law Judge who got into a wrestling match over which of the two of them would ride the next elevator.  Lawyer Daniel Bernath and Administrative Law Judge Dan R. Hyatt, both 60, are said to be bitter enemies.  This is excerpted from Bryan Denson's lengthy story:

"Meet the combatants. Judge Dan R. Hyatt (pic, right), a 60-year-old Navy veteran, is squarely built, about 5-foot-7, with a white mustache. He earned the Bronze Star for combat heroism in Vietnam and labored as a military trial lawyer. He's known as a stern judge who demands deference and gives no quarter to unprepared lawyers.

Daniel A. Bernath (pic left), also a 60-year-old Navy veteran, stands 6-foot-2 and weighs 240 pounds. He has a gray beard and uses a cane or crutches to get around. He's a former radio reporter who has worked 25 years as a lawyer. Competitors call him a crank, a chronic whiner and client poacher, although he differs about such characterizations.

Five years before their tiff on the lift, Bernath went to work as a clerk in the same office that employed Hyatt. They were friendly, but scarcely friends. Hyatt thought Bernath childish for posting names of Navy ships on file carts, which the lawyer says livened up a dry office.On Oct. 18, 2005, about 14 months after he went to work for Social Security, Bernath quit to become a claimant representative. Soon he took clients before some of the judges for whom he once toiled to help them get disability benefits.


Bernath advertised on TV and in The Oregonian, telling customers, 'You have a right to switch lawyers.' Other attorneys bristled when Bernath filched their clients, a breach of etiquette known as poaching.  The lawyer also filed Oregon State Bar complaints against some of his competitors -- some posted to his website, oregonshyster.com -- and soon found himself persona non grata to other claimant reps.  Bernath says competitors were envious because he outhustled them, signing 2,600 disability claimants in four years.

Lawyer Dick Sly, who says he faced some of Bernath's 'frivolous' bar complaints (all dismissed), remains angry. Sly says he's never met Bernath and sees no upside in locking horns with him now.

'It's kind of like fighting with your wife,' he says. 'The consequences you will bear forever.' [ed. This si the sanest observation in the article.]
On Feb. 21, 2007, Bernath brought a client named Barry Moody before Hyatt to appeal his denial of disability pay. But the judge disregarded Moody, instead quizzing Bernath about his veracity.

Hyatt believed the lawyer was lying to him, because he recalled Bernath telling him the California Bar had once suspended his license. The judge asked Bernath if he'd ever been disciplined there, and the lawyer said never. So Hyatt got him to swear to that under oath, then quickly closed the hearing.  Bernath was not a member of the Oregon State Bar, and Social Security does not require claimant representatives to be lawyers. But Hyatt took a CD recording of the 11-minute proceeding to a bar investigator anyway, evidence, he says, of Bernath's dishonesty.   Bernath's California law license was suspended in 1995 because he failed to pay child support, records show. But that was a regulatory action, rather than a disciplinary one, according to a bar spokeswoman. However, Bernath denies he was ever suspended, saying, 'I was voluntarily inactive.'

The Oregon Board of Bar Examiners had seen things differently. In 1997, the panel denied him admission to practice here because he failed to disclose his California suspension. The Oregon Supreme Court upheld that denial: 'The record contains overwhelming evidence that applicant does not possess (the) requisite good moral character and fitness to be a practicing attorney in Oregon.' The opinion noted other accusations by bar examiners: Bernath destroyed all his California case files and once carried a concealed weapon into a deposition. But Bernath says he destroyed no original files and held a permit for the weapon.

After Hyatt complained to the bar, Bernath became a frequent filer at the Oregon State Bar. In 2008 and 2009, he filed six complaints against the judge, all dismissed, and obtained other lawyers' complaints against Hyatt. In a letter to tax officials, he suggested Hyatt cheated on his taxes.   Bernath posted many of the accusations on oregonshyster.com. In recent years, the site has accused Hyatt of lies, cruelty and racism, once lampooning him as a hooded Ku Klux Klansman with a Social Security emblem on his chest.

One of Bernath's bar complaints, which accused Hyatt of revealing Moody's Social Security number to the Oregon Bar, was dismissed. But it got traction with Social Security.  The agency's chief judge, Frank Cristaudo, wrote to the Merit Systems Protection Board that Hyatt had flagrantly disregarded three agency rules: releasing a claimant's private information, filing a bar complaint against a practicing lawyer, and giving inaccurate statements to bar investigators.  Cristaudo proposed to suspend Hyatt for 30 days, but the judge fought it. The case settled last summer when Hyatt agreed to a suspension in exchange for withdrawal of Social Security's charges, according to records obtained by The Oregonian.

Two years ago, Hyatt recused himself from hearing Bernath's cases. The judge found him too hostile. So did an expert witness in disability cases, who complained to agency officials about the lawyer's temper last spring. She provided her complaint to The Oregonian on condition she not be named, saying she feared Bernath.

'His outbursts are unprovoked, explosive, and disproportionate to the proceedings,' she wrote. 'He appears to have difficulty gaining control once his emotions escalate, and the escalation is rapid.'

The FIGHT:

On the morning of March 31, Bernath walked out of a disability hearing, client in tow, and approached elevators on the fourth floor of Duncan Plaza. He moved for the doors of an open elevator using a cane and a rolling file box as crutches. Hyatt, heading downstairs, stood alone in the car.  What happened next remains in dispute.

Bernath says a man he didn't recognize rushed to the front of the elevator. He says the man put his hands on his hips, shouted 'No!' and told the lawyer he couldn't get on. Bernath says the man then chest-butted him and, as the lawyer started to fall backward, roughly butted him again with his chest and belly, shouting, 'Get the police, this man just assaulted me.'  Only later, says Bernath, did he learn the man was Hyatt. He recalls a Federal Protective Service inspector asking him for a statement, which he declined on his lawyer's standing advice.

Hyatt describes Bernath's version of the story as 'fantasy.' The judge says Bernath ran to the elevator, used his cane to block the doors from closing, then roughly chest-butted him. He says Bernath then refused to move away until a security guard pulled him off, shouting, 'Are you arresting me?"' Bernath was handcuffed and cited for disorderly conduct.  On April 2, two days after the elevator incident, Bernath petitioned Washington County Circuit Court for a restraining order against Hyatt. The lawyer wrote that he was afraid of him after their elevator dust-up. . .

News of the latest Bernath-Hyatt scrape livened up a daily e-mail forum of Oregon claimant representatives, says moderator Linda Ziskin. But she says e-mails rained much harder on Bernath, whose antics are viewed with amusement tempered by disgust.  Weeks before, Social Security had served Bernath with papers notifying him of its intention to bar him as a claimant rep. Hyatt says the agency is considering more than 50 incidents of the lawyer's 'assaultive, inappropriate and unethical behavior' over a two-year period, none of which included him.

Such characterizations infuriate JoEllen Shannon, a 61-year-old former nun who handles some of Bernath's cases on contract. Shannon acknowledges Bernath has an intense personality but says he's a good mentor and tough negotiator.

'His intelligence and strength unfortunately have been misinterpreted,' she says.  Shannon was dismayed recently to spy a flier on the wall of Salem's hearing office with a photo of Bernath and text reading something like, 'Have you seen this man?' Shannon thought it unseemly of Social Security to put up a 'wanted poster."'

Bernath says he never behaved improperly in Social Security hearings and that all he's ever done is give hope to clients left discouraged by an agency that wants them to give up before they get disability pay.  'Because I'm a good advocate, and an irritant, they are trying to take away my law practice,' he says.

Late last month, Bernath filed two notices that he intends to sue Social Security and Hyatt for the judge's actions. One claim seeks $2 million for coercion, alleging that Hyatt promised to recuse himself from hearing Bernath's cases if the lawyer removed references to him from his Web site. The other seeks $10 million in compensation for injuries and emotional distress he claims Hyatt inflicted on him.   The judge chuckled at this. 'I think we're just going to have to let justice run its course," he says. "I'm not going to go shielding my assets.'"
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I can't tell you how many times over my career I've dealt with characters like Bernath and judges like Hyatt.  Neither "type" is particularly pleasant to encounter.  After you deal with a guy like Bernath you feel like taking a shower.  After a hearing with a guy like Administrative Judge Hyatt you want to reassure your client that there is an appellate process. 

In OurState there is a notorious situation that is played and replayed at Continuing Legal Education seminar ethics sessions in which two lawyers got into fisticuffs in front of a magistrate and court reporter who took it all down.  It's actually been reenacted by actors--to make a point.  We aspire to be something more than what we actually are, often nothing more than big babies.  Sixty-year old big babies!