*1 3,May S006791. 1990.] [No. ARM, Petitioner, H. v.
FRED CALIFORNIA,
THE STATE BAR OF Respondent.
Counsel
Ronald J. Santucci for Petitioner. Yu, Jr.,
Diane A. Zanassi, C. Truitt J. Richey, Richard Lawrence Yee C. and J. Stephen Strauss for Respondent.
Opinion THE COURT. proceeding, In this we consider the of recommendation the Review Department of the State Bar (review Court department) that Arm, Fred H. who was admitted practice law in Califor- 9, 1972, is based The recommendation be disbarred. January
nia on disci- of three subject prior who has been that petitioner, conclusions additional attorney in two his duties as an violated plinary proceedings, First, by the court he misled a court proceeding instances: of law practice from he was about to suspended to disclose failing being the dates considered some of 60-day encompassed period matter, Code Business and Professions in violation of of the hearing further 6106,1 7-105(1) rule of the and former (d) subdivision sections Professional Conduct.2 State Bar Rules of by Second, in a client trust account his funds with those commingled to him within belonging the funds in the account to withdraw failing fixed, thereby violating in them became after his interest reasonable time under section discipline himself to subjecting 8-101(A)3 former attorney). of oath or duties as (violation misconduct we have concluded that petitioner’s As will be explained, to warrant disbarment. sufficiently is not egregious the present proceeding hand, and present the combination of petitioner’s previous On the other discipline protect demonstrates a need for subtantial transgressions courts, in the legal profes- confidence public and the and to public preserve however, served, putting Those ends will be adequately sion. on actual years, for five conditioned on probation months. eighteen of law for practice statutory Professions Code unless otherwise indi All references are to the Business and attorney [j|] duty following:. . . provides: “It of an to do all of the cated. Section 6068 is maintaining him her such means (d) employ, purpose the causes confided to or To for the truth, judge any judicial
only or officer and never to seek to mislead the as are consistent provides: . . . .” “The commis an false statement of fact or law Section artifice or any involving turpitude . . . whether the act is committed in course sion of act moral otherwise, felony misdemeanor or and whether the act is or his relations as an not, suspension . . . .” a cause for disbarment or constitutes *6 unless otherwise are to the State Bar Rules of Professional Conduct All references to rules 27, 1989, May transgressions after the involved present rules took effect on indicated. are to those in effect when conduct occurred. here. References to former rules tribunal, State provided: presenting “In a matter to a a member of the Former rule 7-105 maintaining him such [([] (1) Employ, the causes confided to purpose Bar shall: for the truth, judge, judicial only are with and shall not seek to mislead means as consistent pro- jury by law. . . .” The substance of this or an artifice or false statement of fact or officer appears now in rule 5-200. vision 8-101(A) a provided: “All received or held for the benefit of clients 3Former rule funds accounts la- deposited Bar . . . in one or more identifiable bank member of the State shall be Account’, import, . . . and no ‘Client’s Funds Account’ or words of similar belled ‘Trust deposited . . therein or otherwise belonging the member of the State Bar . shall be funds [j[] (2) belonging part . . . in to a client and commingled except as follows: Funds therewith deposited Bar .... must be part presently potentially in to the member of the State Bar . . . must be withdrawn at portion belonging and the to the member of the State therein ....’’ portion in that becomes fixed the earliest reasonable time after the member’s interest 4-100(A). provision appears in rule The substance of this now
I. Facts Discipline A. Prior January in Since practice was admitted to the law 1972. Petitioner then, been this court to this he has prior proceeding, disciplined three times.
1. a False Statement to Police Officer May In falsely deputy identified himself as a sheriff when petitioner a stopped was traffic violation. He Vehicle pled guilty violating a officer), Code section false information to (giving police misdemean- or. The State Bar Board concluded that the did not Disciplinary offense involve moral but did involve conduct disci- turpitude warranting other result, pline. As we publicly reproved 1976. September 2. Accepting Adverse to Employment Former Client In October Frank Tracy recovery retained attempt $30,000 lost in an investment scheme. Petitioner recovered some of this money, Tracy after which him paid and terminated his services. In April an obtained Tracy’s in con- represent daughter tested conservatorship proceedings against Tracy. He furnished the attor- ney with financial information about Tracy, filed a declaration supporting conservator, appointment of the daughter as and falsely represented to the he, court that had had petitioner, attorney-client never an relationship After Tracy. conservator, the daughter was appointed petitioner, despite having affairs, confidential information about Tracy’s financial represented in a plaintiff against Tracy lawsuit and others on a promissory note. The State Bar Court willfully found that petitioner ad- accepted employment verse 4-101, to a former client violation of former acts of committed dishonesty (§ 6106), and violated his attorney. oath and duties as an (§§ 6103.) In September we placed petitioner probation for year, one with no actual suspension.
3. Business Transaction With Clients Unfair *7 recommendation, In August on Mr. and Mrs. Wilt paid $10,000 for a limited interest in an partnership that was make enterprise and sell redwood burl tables. Petitioner misrepresented the venture’s profitability involvement, and the extent his own of personal financial investor, failed to disclose to the Wilts that another he whom had previous- of a criminal subject and the gambler a compulsive had been ly represented, investigation. investment, judgment a civil fraud obtained lost their
The Wilts entered had found that department The review against petitioner. reasonable to fair and that was not with clients transaction into a business an informed to make necessary for them them, facts to disclose failing coun- independent the advice of them to seek to advise failing decision and it mitigation, In 3-300.) sel, (See 5-101. of former rule in violation business; it rtioney from any received that petitioner no evidence found regarding ethics opinidn State Bar for an had asked the that he also found 1985, we January In background. other investor’s to disclose the his failure of actual years, three with on suspension placed petitioner 1, 1985. February sixty days effective
B. Present Acts of Misconduct From Practice Suspension 1. Failure to Disclose three 2, 1985, prior recent of its issued the most January this court On effective Feb- order stated it was The against petitioner. orders disciplinary actually suspend- that petitioner and included a ruary provision the effective date days of 60 law “for a period of practice ed from however, in rule omitted, set forth the provisions The order this order.” under which (rule 955), suspended Court California Rules of of the of the clients and counsel notify opposing their attorneys may be required suspension. court charged misleading was
The at which hearing 23, 1985, the effective days nine before Wednesday, January took place Juvenile Court. The County present Diego in the San date of his suspension, Petitioner hearing.4 of that transcript a partial reporter’s record includes minor children involved mother of the two as counsel for the appeared attorney, father’s were the Also appearing court juvenile proceeding. minors, Anderson, Presiding Jeffrey Reilly. and an Larry Smith. Court Referee Gilbert was Juvenile immediate consideration sought first shows transcript the moth- (“reunification with favorable to his client a recommendation the State initially because transcript transmitted to this court was not 4The court only. At the outset having for identification apparently it as been marked Bar Court treated evidence; however, transcript it hearing, petitioner’s counsel offered Bar State objection” and no A; stated he “would have the State Bar examiner was marked exhibit expressly though referee did not then the State Bar stipulate” its admission. Even “would evidence, Accordingly, findings. we it in his repeatedly referred to receive the exhibit in part Bar record. deem it of the State *8 the attorney the asked for “an to review er”), opportunity but that father’s if as bring dispositional phase, possible.” and to evidence to proposal that could be agreed The court said it would “set a date for disposition” by counsel. upon Friday, January attorney
Petitioner The minor’s suggested 1985. 1, to day Friday, February mentioned he had a trial that and suggested Petitioner, however, attorney which the father’s said he would “not agreed. 1st,” make an earlier The minor’s February be able to it and asked for date. February attorney had with an earlier date and either problem proposed February 14. Honor, unusual, then Petitioner “Your this is a little but it spoke up: however, 1st-, could I would have to check tomorrow. I can Perhaps have it on the 1st.” The (Italics added.) February court proposed setting as alternative dates. The court then attorney allowed the father’s call, make a telephone following February which he asked for 8. Petitioner said, it, “I your can’t make Honor." After further the court colloquy, either, suggested February to which petitioner responded: “Can’t make it your Honor .... Have to get somebody else to cover me.” for But court declared: “The issue here is far too important delegate professional at responsibilities this time.” The February minor’s then suggested 14, which the court started to consider when asked to approach course,” the bench. The court “Of replied, to the whereupon, according bench transcript, conference held at this time.” Immediately “[a] [was] 31, 1985, thereafter the court set the matter January one day before petitioner’s suspension was to begin.
At the State Bar hearing testified that upon approaching bench he talked to juvenile court referee outside the presence of other counsel, a circumstance he admitted “very was unusual.” He testified he told the referee he would not be available in February or March because he had “a problem with the Bar.” He deliberately said he withheld information counsel, Anderson, his suspension from opposing for fear that fact would be used to his client’s disadvantage. court referee testified that petitioner did not disclose he March,
would be suspended from practice February and but he was not certain what reason petitioner gave inability appear during referee, period. According to the the fact of petitioner’s forthcoming sus- continuance, would pension have been material selection of a date for but he say could not it how would have affected the selection. He it also said would have been highly unusual to confer with at the bench without the presence of other counsel. *9 evidence, Bar concluded that had petitioner
Based on this the State Court (fns. 1 & (d), 7-105(1) subdivision and former violated section in a Juvenile attorneys and other involved ante) “by misleading judge a turpitude (§ 6106). and that his conduct involved moral proceeding,” Court Commingling 2. Funds of amended, cause, a charged petitioner paid
The notice to show as account, thereby a trust com- debt with a check drawn on client personal client trust funds. mingling willfully misappropriating In June Haze and Noel Rufo retained to them petitioner represent money in a over the of a Petitioner obtained dispute purchase pharmacy. July in which was satisfied between then and judgment April additional efforts. through petitioner’s card,
Petitioner’s on which he a record of trust account ledger kept Rufos, transactions with the showed the In December he following: $4,900 $11,000 credited the Rufos with received in satis- payments month, $4,225 In judgment. faction of their that same withdrew fees, $11,000 in attorney and March 1986 he disbursed to the Rufos. There costs, $316 July were disbursements for a balance of on subsequent leaving 15, 1986, $1,600 July 1986. On there was a credit of for the last payment Rufos, $882 day, on the the next to the judgment; petitioner paid leaving $1,034. 16, 1986, them with a trust account balance of On there September $1,000 “Jeffrey Reilly was a disbursement of to a transfer (Atty Fees)” and $34. to petitioner’s general attorney account for fees These transactions left the Rufos with a zero balance in the trust account. $1,000 Attorney Reilly made in with a payment was connection Reilly
civil suit and other defendants in rights against brought by petitioner federal court on behalf of his client in the court matter discussed 21, 1985, and, earlier. On August court dismissed suit as sanction Procedure, under rule 11 of the Federal Rules of Civil required petitioner $2,772 Reilly to defendant fees. At a debtor’s examination pay 16, 1986, magistrate before federal this sanction was re- September $1,675, $1,000 duced to of which was ordered to immediate- pay time, $675 ly, relatively or in a short and to balance the end of pay $1,000 Reilly, October. Petitioner issued a check for drawn on thereupon clients trust account. check, In of the issuance of as follows: explanation this testified 16, 1986, 15 and on the Immediately following July transactions shown card, yet Rufos’ trust account he and the Rufos had not decided ledger $1,034 it on keep his fee or for paying their balance of whether to use attorney fees incurred to recover the proceedings hand for use further time, about the Rufos owed At that judgment. on the collecting *10 be the fee would $3,700 fee, them that agreed he had on his but 16, 1986, and the Rufos 15 and July September reduced. Sometime between that the agreed and also further against proceedings decided petitioner $1,034 him for to paid balance of should Rufos’ trust account remaining was insistent magistrate the federal hearing, his fee. At the September $1,000 in his immediate not then have the and did petitioner payment, account. personal evidence, had concluded that petitioner on this the State Bar Court
Based 4- funds, 8-101(A)(2) (now of former rule violation commingled 100(A)(2)).
3. While Under Preparing Suspension Stipulation law practiced The notice to show cause included a that charge petitioner 27, 1985, February On February while on 1985. suspension, April wrote, letterhead, Anderson, counsel in Larry opposing on his petitioner the court matter earlier. The letter enclosed a proposed discussed Date,” Trial Mandatory signed for Settlement Conference and “Stipulation that he by petitioner pre- as the for his client. Petitioner testified that, the at the insistence of Anderson and was afraid if he pared stipulation so, did not do Anderson would take of advantage petitioner’s suspension practice, prejudice of client. Petitioner also testified monitor, Boyko, that he and his State Bar Mr. discussed what activities had would be of and did not permissible during period suspension, petitioner matters, believe that arranging such means as the rescheduling proposed violated order. stipulation, suspension Petitioner testify guidance was not allowed to as to what oral had Boyko received from because the State Bar hearsay objection examiner’s Admitted, however, testimony Boyko such was sustained. a letter from was Bar, to the State that he recalling had advised that petitioner performing function,” “mere ministerial such as to a client’s request responding files, information in the would not violate the order. He also told that “there was no hard and fast line” between ministerial acts law, and the “that it was a matter of common and practice using sense advice, that as as he long give legal charge did not fees for services legal nature, aof that there should be no non-professional problem.” The did not find that hearing panel petitioner had law while practiced under suspension. But it listed the facts surrounding preparation and said that Aggravation,”
transmission of the as “Evidence stipulation would have Boyko, panel but for the letter from State Bar Monitor law while under suspension. found petitioner culpable practicing letter, that “was stipulation attempt- concluded panel in his relations with counsel who was ing opposing to appear professional not advised as to” petitioner’s suspension. Proceedings Disciplinary
C. above, Based on the evidence discussed recommended hearing panel 25, 1988, May be disbarred. On the review department *11 of the (with alterations) findings minor the of facts and conclusions adopted It, too, recommended that be disbarred. hearing panel. petitioner
II. Discussion We exercise our in the independent judgment determining appropri recommendation ate give great but so we to the discipline, doing weight 894, Bar (Slavkin of the State Bar Court. v. State 49 Cal.3d 904 (1989) [264 131, 919, v. Bar 270]; (1989) 782 P.2d Sands State 49 Cal.3d 928 Cal.Rptr. 354, 595].) 782 P.2d We also look for to the Stan Cal.Rptr. guidance [264 Attorney dards for Sanctions of the for Professional Misconduct Rules Bar, Procedure of the State division V all further (standards; references cited standards are to this and source), great accord these standards weight, they are not v. State Bar 44 though binding upon (Segal (1988) us. Cal.3d 1077, 404, 1087 751 P.2d The is Cal.Rptr. 463].) upon burden petition [245 6083, er (§ to demonstrate error in the State Bar’s or conclusions findings subd. but he (c)), may satisfy by showing burden that the are charges by not sustained and convincing certainty. (Maltaman to reasonable proof 687, v. (1987) State Bar 43 Cal.3d 932 741 P.2d Cal.Rptr. 185].) [239 With to the issue of disclosure of respect petitioner’s forthcoming we with the review there clear convinc suspension, agree department is ing juvenile only evidence that court not during proceeding petitioner affirmatively failed to disclose his but he upcoming suspension represented 1, 1985, be able might February the effective date of his appear suspension.5 5 out, testimony points hearing panel As the dissent there was before the Juvenile Court opposing petitioner ap Referee Smith and counsel Anderson that had also said could not pear February testimony legal pending. because he But 1985 had other matters Smith’s highly equivocal, appear was and the statement attributed to Anderson not does partial juvenile hearing reporter’s transcript hearing. panel
in the of the nor court Neither department the review found that had made this additional statement. broad, how is too of misconduct determination The review department’s as well as ever, of counsel deception be based on the as it purports insofar (Mon may discipline call for misleading of counsel Although court. 529]; 358 P.2d Cal.Rptr. v. State Bar 55 Cal.2d (1961) roe [10 the State 357]), 65-66 P.2d v. 45 Cal.2d (1955) Coviello State Bar [286 ground as an rely independent on such conduct Bar does not now properly had charged to show cause because the notice for disciplining petitioner, in that regard. amended only the court and was not misleading him with 646, 654 Cal.Rptr. 49 Cal.3d Rose v. State Bar (See (1989) [262 409, 420 v. Bar 35 Cal.3d 761]; Gendron State P.2d P.2d 260].) relevant, however, to an argu- counsel is misleading impropriety of his concealing as fact justification ment that advances Petitioner that be- argues court suspension during proceeding. notify did not him to his client require cause the order disciplinary he was about to be it suspended, counsel 955 that opposing pursuant counsel in opposing was for him to conceal his proper of his against legal period order to his client maneuvers protect inability to practice.
Petitioner’s from a basic of the nature of a argument misconception stems attorney only order. Such an order the not from suspension disqualifies out as entitled to holding law but also from himself or herself practicing (In re Cadwell 15 Cal. 3d practice during suspension period. 771 543 257]; 1.2(h).) duty P.2d std. Petitioner’s toward Cal.Rptr. [125 create, undisturbed, his client did not entitle him to or leave knowingly false that he would be the client impression representing during period of suspension.
Petitioner maintains that it was his client’s interest that he continue her in representing juvenile court after the proceeding suspension period than rather new counsel An order 60 substituting during period. for days’ actual that omits the of rule 955 does not suspension provisions necessarily attorney’s call for the suspended complete withdrawal from all withdrawal, however, pending duty matters. Absent has a take necessary whatever are to assure that the client is not steps prejudiced Thus, may the hiatus have representation. arrangements to made services, with a lawyer licensed interim such as court provide making counsel, appearances handling communications with other But suspension period. protection of client’s interests does not necessi- justify attorney’s tate or the fact of the concealing practice. Petitioner contends there was no reason to disclose his sus- forthcoming pension finally to the court because the continuance date selected the date on which the
preceded suspension was to into effect. Petitioner go out that the points rejected somebody court his else suggestion “get[ting] me,” to cover for declaring that the matter was “far too important Therefore, delegate professional at this time.” responsibilities argues, the court would not have set the knowingly hearing date within petitioner’s suspension period. however,
Petitioner’s concealment of the unavailability, reason for his cannot be justified theory on the that the juvenile court would have made the same if determination it had been told the truth. In granting continuances, a trial court must exercise its discretion with due all regard to (In the interests re Marriage involved. (1984) 161 of Hoffmeister Witkin, Cal.App.3d 345]; see 7 Cal.Rptr. Cal. Procedure [208 Trial, ed. (3d 1985) pp. 26-27.) If the ground advanced for continu § ance unavailability is the attorney, party’s reasons for that unavail ability must be carefully (See, considered. e.g., County San Bernardino v. Doria Mining & Engineering (1977) 72 Corp. Cal.App.3d Admin., 383]; Thus, Cal. Standards Jud. 9.) the true reason for § is, petitioner’s unavailability, that his forthcoming was a suspension, factor court, for the not petitioner, to consider in setting the date. It hearing does court, discretion, not matter whether the in the exercise of its would or would not have been willing to set the hearing January 1985 (the date actually if it chosen), had known that for the immediately following days petitioner would be under suspension and therefore unable to continue the representation of his client. We conclude the record the review supports department’s determination that petitioner misled the court in violation of section (d), subdivision and former rule 7-105(1) (now 5-200).
We also conclude clearly that the evidence and convincingly sup ports the findings the State Bar Court with to the respect commingling of the Rufos’ trust fund. The State Bar Court determined that had failed for a substantial of time period to withdraw his own funds from the account, trust thereby the violating requirement of former rule 8-101(A)(2) (now rule 4-100(A)(2)) that the portion of the trust account to belonging attorney the be “withdrawn at the earliest reasonable time after the [attor in ney’s] interest that portion becomes fixed.” Petitioner say, was unable to document, or to just $1,034, when his in interest the credited to the Rufos after the 16, trust account 1986, transactions of 15 July became fixed. We the accept State Bar Court’s that implied finding this occurred well before petitioner withdrew that amount from the trust in account mid-Sep tember. is committed
“[C]ommingling money when a client’s is intermingled with that of his identity its lost so separate may that it be used
777 to claims of his credi or the subjected attorney’s expenses the personal for 161, 167-168 Bar 39 Cal.2d (1952) v. State (Clark tors. [246 [Citations.]” 8-101(A) rule absolute. Former is 1].) against commingling P.2d The rule the received or held for that funds requires rule 4-100(A)) (now “[a]ll or iden ... in one more attorney] deposited of clients benefit [an Account,’ ‘Client’s Funds Account’ ‘Trust tifiable bank accounts labelled [attorney] the to belonging and that funds import,” words of similar “[n]o . . . .” As we therewith commingled ... be therein or otherwise deposited 32 22-23 Doyle Cal.Rptr. v. State Bar Cal.3d (1982) said [184 for absolutely the trust account person P.2d “The bars use of 942]: if are Petitioner’s deposit.” even client funds not on al purposes, the his funds from withdrawing to with the comply requirement failure be after interest them account at the earliest reasonable time his trust fixed, cli “subjected the 8-101(A)(2), under former rule required came as very designed protect funds the that the rule is commingling ent’s risks (Black v. State Bar Cal.2d against.”
Moreover, in the the evidence that misconduct resulted petitioner’s shows the all for he of his funds with funds of the clients whom commingling $1,000 Although maintained trust State Bar that the the account. the found the H. Noel and Haze Trust check was drawn on “Fred Arm Clients Rufo Account,” on its it drawn on the “Fred the check itself shows face that was account, H. Arm Clients Trust Account.” bank statements for monthly July to October reflect transac- covering periods tions in addition to those recorded on the Rufos’ trust account card. ledger Thus, $1,000 the bank that records on the check shows statement payment $12,024.53, a “lowest balance” of even card that though ledger shows Rufos’ interest was that reduced zero period. evidence, however, $1,000 There is no that issuance petitioner’s any check resulted in of funds. No reason misappropriation appears testimony, con- disbelieving uncontradicted corroborated card, on his the time he drew temporaneous ledger written record as of $1,000 check had fees. the Rufos was entitled his agreed *14 The render ac petitioner State Bar contends failed to proper also to trust funds. Such are accountings counts his clients their account (now 4-100(B)(3)), rule and failure required 8-101(B)(3) former Bar 38 (1985) them is a v. State ground discipline. (McCray provide 691, v. Bar 83]; Cal.3d 270 696 P.2d Fitzsimmons State Cal.Rptr. [211 700].) 3d 332 667 P.2d But no such (1983) Cal.Rptr. Cal. [193 cause, stated the State charged dereliction was in the notice to show or law, as a The petitioner. Bar Court’s conclusions of basis for disciplining that showing no had “made find that petitioner Court did State Bar testimony than his basis other regular aon or statements billings rendered account of an the clients copies mail to time to time he did from that however, additional Petitioner, present reason to had no sheet.” ledger that he was of notice in the absence accounts rendering proper of his proof to do so. failure being charged be dis that recommendation hearing panel’s
Following reject review barred, department with the filed a request client, by his a declaration to the request He attached recommendation. of copies and Rufo, testimony provided petitioner’s who corroborated Mrs. because peti this declaration ignore us to urges Bar The State billings. his itBut was hearing. at the as a witness called the declarant could have tioner nonperformance of proving had the burden examiner who the State Bar attorney’s response in the “[Inadequacies clients. duties to his petitioner’s remedy in affirmative necessarily gaps do not proceedings to disciplinary Bar, supra, v. State (McCray findings.” the essential proof supporting to consider declines generally this court 263-264.) Though Cal.3d immune and thus the hearing panel not presented evidence exculpatory 1181, 1187 45 Cal.3d (1988) v. State Bar (Lydon to cross-examination Bar 44 Cal.3d v. State 217]; P.2d Coppock declaration, accuracy, its regardless Rufo’s 1317]), P.2d Mrs. 683 [749 the State Bar involved witness availability centrally of a demonstrated to call. examiner chose not that peti determination State Bar Court’s concur with the
We also letter to Attor stipulation transmission of preparation tioner’s a factor may considered as suspension while under ney Anderson a continuation and letter were apparently The stipulation aggravation. his to conceal hearing court efforts at the misguided in that regard, As we explained counsel. from opposing suspension law but also from only practicing not order prohibited petitioner the suspension as licensed to practice himself out holding from be taken might actions that against needed protection If his client period. toup it was suspension, during petitioner’s counsel opposing lawyer’s purpose. services for another the client obtain help disbarment, re and the hearing panel both recommending In prior discipline. record of emphasized petitioner’s view department who, is found like petitioner, of an call for disbarment standards before, least twice at disciplined has been of misconduct and culpable clearly predomi circumstances mitigating the most compelling “unless recommendation reject not Generally, “we will (Std. 1.7(b).) nate.” as to have doubts grave unless we of the Standards arising application *15 v. Bar State (Lawhorn discipline.” recommended of the the propriety Here, we 908].) 743 P.2d 43 Cal.3d be is not warranted that disbarment and conclude doubts grave do have re with clearly predominate circumstances mitigating compelling cause in this proceeding. adjudged misconduct to petitioner’s spect dis- increased for calling circumstances lists 1.2(b) aggravating Standard for lesser calling circumstances 1.2(e) mitigating lists and standard cipline, by two is indicated misconduct present Leniency petitioner’s discipline. of lack circumstances: mitigating aggravating in those factors reflected faith. of bad harm and absence resulting significant client, significantly “harmed transgressions present None of petitioner’s wrongful His 1.2(b)(iv).) justice.” (Std. of the administration or public not did forthcoming suspension of his court juvenile from concealment during court would appear that any result in expectation his client any steps against adverse taking in the of or suspension period, unable court referee was her. The unable to represent while he was the truth. if he had known differently acted how he would have say failure from petitioner’s actual harm resulted Similarly, no demonstrable account, from his payment the trust or his fee from promptly to withdraw There was no misappropria- on that account. debt check personal of any of client. on the part tion and no evidence of dissatisfaction oppos- sent to and letter Finally, stipulation the proposed these Although never acted upon. his was ing suspension counsel misconduct, they substantial- justify no means petitioner’s circumstances is a miti- resulting harm significant This lack of ly its seriousness. mitigate any need to consider and eliminates (std. 1.2(e)(iii)) circumstance gating rectification, atone- circumstances mitigating pertaining or aggravating ment, 1.2(b)(v), 1.2(b)(vi), victims (stds. 1.2(b)(iii), cooperation 1.2(e)(vii)).6 1.2(e)(v), 1.2(b)(iii) stds. (See factor. mitigating
Absence of bad faith is another In conceal- mitigation].) faith as 1.2(e)(ii) [good aggravation], faith as [bad standards, aggrava only mitigation significant as of harm is not 6Under the the extent apart prior his disci assessing of misconduct tion but also seriousness suspension or disbarment misleading a court calls for “actual plinary Culpability of record. de harmed or misled and victim the misconduct is depending upon the extent to which the degree to which it relates to magnitude act misconduct and the pending upon the of the (Std. 2.3.) discipline prescribed The minimum [attorney’s] practice of law.’’ acts within the (std. only of actual commingling misappropriation is three months without or, compelling if 2.2(b)), misappropriation entrusted funds calls for disbarment whereas year (std. clearly suspension for at least one mitigating predominate, actual circumstances 2.2(a)). *16 780 court, in sending proposed from the and his
ing he was suspension, petitioner to counsel while under opposing stipulation Furthermore, no mistakenly believed he his client’s interests. serving was accompanied to have overreaching attempt appears at misappropriation funds. Such circumstances lessen the the of client trust commingling act Bar 8 Cal.3d (Ames (1973) an v. State attorney’s seriousness of misconduct. 489, 910, they in what [attorneys 506 P.2d acted Cal.Rptr. 921 625] [106 562, Higbie In re 6 Cal.3d 573 interests]; (1972) clients’ best thought were not motivated [attorney’s 493 P.2d wrongdoing Cal.Rptr. [99 97] enrichment].) personal in the present these of the misconduct found mitigating
Against aspects in weighed must be inherent record proceeding aggravation in thread this attempts State Bar find common discipline. prior urge peti and the three which past disciplinary proceedings usually increased imposed misdeeds present require discipline tioner’s v. Bar 35 (1983) course of State Cal.3d (McMorris for a “habitual conduct” 431]) P.2d or “a of offenses for Cal.Rptr. repetition 85 672 [196 v. State disciplined” (Marsh accused has been Bar previously which an 403]). P.2d (1934) Cal.2d [39 fact, set of is underlying proceedings quite
In each facts various First, the others. the State Bar publicly reproved petitioner different from Next, he was a he was falsely telling deputy for traffic officer sheriff. put on and year’s probation assisting conservatorship proceedings, one for note, on a client from promissory against an action a former whom bringing financial information. was an incidental (There he had confidential acquired that in the had concealed finding conservatorship proceeding petitioner client, he was from the court his but not professional relationship court.) In the third charged misleading proceeding, separately sixty years actually days was for three put probation suspended venture, a client to invest in a business in which inducing involved, that were reasonable and another client were on terms not fair and failed to disclose material facts.
Notwithstanding types differences of misconduct prompting orders, an “provided oppor these each of them has disciplinary [petitioner] his to the ethical of the tunity profession” to reform conduct strictures (Arden v. Bar 739 P.2d State 43 Cal.3d mistakes, these learn 1236]). from his Despite opportunities that, of the absence of immediate again regardless has committed misdeeds harm, necessarily understanding by reflect a further lack of ly resulting of his professional responsibilities. *17 of disbar- Bar recommendation the State Court’s already explained, As the of circumstances compelling mitigating the light ment is excessive of Nonetheless, pro- a of lengthy period in this found proceeding. misconduct bation, from followed actual practice, substantial including suspension Examination, the necessary is for Responsibility of the Professional passage courts, legal and the profession. the the public, of protection
Disposition from the suspended Fred H. be practice It is ordered that Arm on this years of from the date which decision of law five period final, be and stayed of the of suspension becomes and execution order to be with monitor referee probation placed probation, and the of Procedure of the 611 of Rules assigned pursuant rules Bar, years, following (1) of five to the conditions: subject State for a period actually he shall be period, for the first months of the eighteen probationary California; he com- (2) law in the State of shall suspended practicing with the State Act and Rules of Professsional the of Bar ply provisions California; of he file with the State (3) Conduct the State Bar of and shall Bar such his conditions of concerning compliance proba- the reports tion as directed monitor referee. probation We further order that of actual period petitioner’s suspension v. he take Examination (Segretti and Professional pass Responsibility Bar 929]), State 15 Cal.3d 890-891 544 P.2d and that he with the of rule 955 of the comply provisions paragraph (a) of order, days California Rules of Court within 30 after the date of this and file days with the Clerk of the Court thereafter an affidavit within Supreme as for in of this rule. showing compliance (c) provided paragraph Probation, this By order is referred to the of State Department Court, Bar of a monitor referee. He shall assignment probation prompt- ly review the terms and conditions of with that referee to probation his of of probation. establish manner schedule with the terms compliance fully He shall with the referee to enable the referee to cooperate discharge his duties 611 of the of the Bar. pursuant Rules of Procedure State
At the of the of if has expiration period probation, complied with law probation, practice terms order from the suspending petitioner years for a five be satisfied and the terminated. period shall finality This Cal. (See order is effective of this decision in this court. upon Court, Rules of rule 24(a).) the State
EAGLESON, J. reject from the decision to majority’s I dissent five impose of disbarment and to Bar Court’s unanimous recommendation months’ suspension. actual years’ upon eighteen conditioned probation Bar system. State trip disciplinary This is fourth petitioner’s through are underlying each majority proceeding insists that acts However, ante, (Maj. 780.) present “different.” opn., p. past all contain the element of deceit. violations *18 bar, 1974, a years he to the obtained petitioner In two after was admitted in a money and them to settlement for his clients induced invest sizable of his venture. and the extent misrepresented business He its profitability disclose the involvement. Petitioner also failed to own financial personal a eventually The clients obtained character of other investors. questionable in (This resulted (Bar 4830.) fraud him. No. matter judgment against Misc. 1985, 1, and February effective sixty-day suspension a order which became in matters at made one of two petitioner is relevant misrepresentations here.) issue later, 1975, himself as a year petitioner falsely deputy
One identified to a viola stop. guilty sheriff routine traffic He misdemeanor pled Code, 31). (Bar to a giving (Veh. tion of false information officer police § 3809.) Misc. No. 1979, years, after incident only
In without for four having practiced about a for use furnished confidential information former client petitioner in a that him to the court against legal proceeding, misrepresented contested client, no the former and filed attorney-client he had relationship (Bar lawsuit the former behalf of client. against client on another separate 4623.) Misc. No.
The State Bar finds in two petitioner Court now misconduct culpable matter; and (1) misleading juvenile new matters: the court in a 1985 court ac- in 1986 withdraw his from the client trust (2) failing funds Rufos’ The count within time after interest therein fixed. reasonable his became State these acts majority correctly sustains the Bar Court’s that findings 6068, Business (d), violated and Professions Code sections subdivision 6103, and former of the of Professional 7-105(1) 8-101(A) rules Rules Conduct. The Bar Court also found that violated State properly (dishonesty Business and Code 6106 and moral turpi- Professions section ante, 768.) disbarment). (See maj. tude as grounds suspension p. for opn., However, mere errs in the first incident as a majority characterizing ante, The ma- (Maj. pp. 770.) “failure to disclose” information. opn.,
783 “affirmatively” misrepresented acknowledges that jority February appear able to might referee that he court for him se unavailable order made per knew our even he though ante, 774.) day. (Maj. p. opn., 60 days beginning appearances court and opposing Smith (Referee two witnesses testimony The State Bar not appear said could also Anderson) suggests petitioner counsel Because such pending. “matters” February legal because he had other made, that we assume false when were knowingly statements Bar Cal.3d (Jackson v. State with an intent to deceive. acted Bar (1944) v. State 47]; Pickering P.2d see also P.2d 1].) 24 Cal.2d 144-145 [148 threat is a majority, petitioner presumptive
As conceded ante, Attorney 778.) Standards legal community. (Maj. p. opn., for attor Sanctions for Professional Misconduct recommend disbarment unless most neys with “the prior discipline” compelling “two impositions Bar, V, div. std. exist. Proc. of State mitigating (Rules circumstances” *19 19, 1990, court stated: “Our 1.7(b) (Standards).) Recently, on March this are the attorney disciplinary protecting concerns principal proceedings and legal maintaining confidence the public, preserving public profession, . . . not attorneys. standards for will high professional [Citation.] ‘[W]e a of unless reject recommendation the Standards arising application have the grave propriety we doubts as to the of recommended discipline.’ ante, 358, 319, re 365-366 787 P.2d (In Billings, Cal.Rptr. [267 [Citation.]” to 617].) majority opinion The insufficient heed these bedrock pays princi ples. cases,
In rare attorney we have not disbarment until the has imposed v. 43 (See, suffered three Kent State Bar Cal.3d prior e.g., (1987) disciplines. 729, 77, State Bar 1244]; (1987) 737-738 739 P.2d Arden v. Cal.Rptr. [239 713, 68, However, 43 1236].) Cal.3d 727-728 739 P.2d the Cal.Rptr. [239 majority no case less than disbarment an upon cites sanction imposing attorney is his undergoing proceeding who miscon- disciplinary fourth dishonesty. duct Such conduct often calls for the consisting largely of measures, strictest and in disbarment has sometimes resulted disciplinary attorneys (See, with no record. In re 49 prior e.g., (1989) Rivas Cal.3d re Lamb 946]; (1989) 800-802 781 P.2d In Cal.Rptr. [263 v. 765]; Cal.3d 245-249 776 P.2d see also Carter Cal.Rptr. [260 State Bar (1988) 894].) Cal.3d 751 P.2d The insists is a case. It claims that “miti- majority petitioner two special “grave facts raise doubts” as the recommended no gating” discipline: (1) to ante, resulting harm”; (Maj. and “bad faith.” “significant opn., pp. no 779-780, matter, majority Std. In the court the cred- citing 1.2(e).) his of client while avoiding any representation
its actual matter, not notes that he did majority the Rufo the opinion In suspension. money dissatisfy or the clients. misappropriate 1.7(b). meaning Such facts are not within the Standard “compelling” or that pressure, no that acted under unusual There is evidence the he raises only argument mitigate aberrational. The to his conduct was him to order did not 60-day suspension require first incident is that the Court, rule and that notify anyone 955), the Cal. Rules of discipline (see make if had felt free to client could have been harmed counsel opposing his However, majority as legal during suspension period. maneuvers “duty his client did not entitle toward persuasively responds, petitioner’s create, undisturbed, a false that impression him to leave knowingly (cid:127) (cid:127) (cid:127) [1f] be representing suspension. would client period ,. take are duty steps . has whatever Absent withdrawal. is not the hiatus in necessary prejudiced repre- assure that client ante, Here, only it (Maj. 775.) sentation.” opn., p. appears “false was to create” such a “knowingly order response impression.” will read to mean that disbarment is not war- majority opinion court, lie” in did not only
ranted told a “little white because money clients. fortuities not intentional negate steal from his These do his 12-year Over a has manifested deceptive span, petitioner conduct. chronic ethical standards all who insensitivity elementary imposed upon *20 occasions, two has victim- prior hold the law. On privilege practicing dishonesty, I adopt ized clients. Because of his consistent would pattern of disbarment. proposed discipline Lucas, J.,* J.,C. (Harmon G.), and Scoville concurred. * District, Three, Justice, Presiding Appeal, Appellate Fourth Division Retired Court of
assigned Chairperson of the Council. Judicial