*1 No. 32207. Dec. [L.A. 1987.] KAPELUS, Petitioner,

MARVIN B. v. CALIFORNIA,

THE STATE BAR OF Respondent.

Counsel Kaus, Miller, Hufstedler, &

Otto M. Dan Carlson Marmalefsky Beardsley for Petitioner. Rosenthal, Jr., Vida

Herbert M. A. J. Zanassi and Richey, Truitt Richard M. Holquin Respondent.

Opinion THE COURT.* recom- Th is review the unanimous proceeding mendation Review State Bar Court that Department Marvin B. Kapelus findings be disbarred. The recommendation is based on matters, in two in the separate one misconduct involving petitioner’s alleged representation of a Hammer matter), client in an (the employment dispute *5 and the other alleged from involving arising conflicts of interest petitioner’s personal participation, in a tax re- representation parties, of multiple duction (the State plan matter). LAPSC After consolidated the hearing, below, Bar hearing panel issued detailed which are described findings sanctions, unanimously recommended that an actual disciplinary including 60 suspension of days, be imposed. largely adopted The review department the hearing panel’s but not recom- findings, discipline, its recommended mending instead that (1) be the misconduct petitioner disbarred view of here, at issue (2) his lack disci- (3) of remorse and his record two prior below, plinary sanctions. As conclude that we should explained adopt we the department’s review recommendation of disbarment.

I. petitioner Because many of the State Bar’s we challenges findings, brief begin with a the review of which this court’s role principles govern State Bar disciplinary It that the Bar’s proceedings. is well established State Instead, are not findings this binding on court. this court must independent ly evidence, review the all pass upon sufficiency, its and resolve reasonable 1, doubts in favor of 12 attorney. (Alberton v. State 37 Cal.3d Bar (1984) 373, however, 686 Cal.Rptr. given must be 1177].) findings, [206 * Lucas, J., J., J., Mosk, Broussard, Panelli, J., J., J., Eagleson, Arguelles, Before C. (J. Anthony), Kline J.† Justice, District, Two, †Presiding Appeal, Appellate assigned Court of First Division Chairperson of the Judicial Council.

184 “ ‘ . . . on testimonial findings primarily rest great weight, and “[w]hen evidence, local administrative we are reluctant to reverse decision committee, conflicting statements in a better to evaluate position which was their character of after the demeanor of the witnesses observing ” 847, 852 . . v. Cal.3d testimony (1972) . State Bar (Vaughn [100 116, 713, Cal.3d State Bar 1257]; Chefsky (1984) 494 P.2d v. Cal.Rptr. Moreover, 349, the bur bears 82].) 680 P.2d Cal.Rptr. [202 by the are not supported that the the State Bar findings den showing 337, (Trousil Cal.Rptr. v. Bar 38 Cal.3d evidence. burden, demon “In must 695 P.2d meeting con conduct are not sustained charges strate that of unprofessional (Himmel v. State certainty.” and to a reasonable vincing proof Bar, Chefsky v. State 993]; 3d 484 P.2d Cal. 116, 121).1 36 Cal.3d supra,

II. The Hammer Matter Hammer met with petitioner and March Robert August 1977 States before the United appeal discuss an that Hammer was then pursuing employment Systems relating discharge Merit Protection Board assist that he agreed with the federal Petitioner testified government. Shoates, record, by writ- William nonattomey representative Hammer’s board letter in defense ing supplemental appeals Hammer’s discussed he and Hammer acknowledged Petitioner Washington. also petitioner’s government Hammer’s behalf filing lawsuit on although petitioner federal court at the Hammer’s appeal, conclusion of only if Hammer won maintains that he file action said would to file agreed administrative Hammer appeal, while testified *6 August the regardless Shortly the action after of the appeal’s disposition.2 Hammer, $600 which meeting, asked for and received petitioner testified Petitioner Hammer was a retainer for the suit. thought post-appeal these familiar Although concurring dissenting opinion some of and takes issue with proceedings for principles, by applied this standard has been court in State of review this approach. many years Legislature any disagreement this with has never indicated in favor of the at be resolved The statement that doubts” in the evidence should “reasonable torney the burden of simply corollary Bar bears a to the well established rule that the State convincing stan proving charges unprofessional evidence” conduct under a “clear and 675, 962, 968, Cal.Rptr. (See, e.g., fn. 2 dard. Guzzetta v. State Bar 43 Cal.3d [239 attorneys dissenting opinion, 172].) Contrary suggestion concurring of the convincing evidence” special regard; are not “clear and accorded treatment a similar Ettinger other, (See v. Board nonattomey applies proceedings. standard license revocation 853, Quality Cal.App.3d Medical Assurance action,” Six Unnamed Bivens v. characterizes this a “Bivens under 2 Petitioner lawsuit as 619, established the Agents (1971) Bivens Federal 403 U.S. 388 L.Ed.2d 91 S.Ct. 1999]. authority. In the right damages against agents acting of federal to sue to recover under color case, employ damages against federal petitioner filing a for Hammer’s instant considered suit slandering ers for Hammer. $600 administrative and writ- was his fee for record reviewing fee in the letter to the recovered the ing (Hammer board. has since appeals small court.) claims letter, legal

Petitioner wrote a defense supplemental three-page Hammer, 28, Although sent 1978. it to the board on March appeals appeal, Shoates continued to be Hammer’s of record representative petitioner wrote the letter on his name signed his letterhead attorney for as Hammer’s signing Hammer. Petitioner testified that his attorney was inadvertent.

The appeals board resolved the Hammer in the appeal beginning 6, 1980, of February 1980. of the February On the board sent one copy address; letter of denial Hammer in care of petitioner petitioner’s second was sent to letter copy Although copy Shoates. delivered Hammer, him petitioner clearly was addressed to letter never reached 1980, and Hammer did not learn that his had denied until June appeal been and, when independently contacted the June was appeals board on' sent copy the denial letter. 27, 1980,

On June Hammer tried several to reach petitioner times phone. He was told either petitioner’s secretary that was petitioner unavailable or out of the office. his Suspecting avoiding was calls, Hammer directly devised ruse and succeeded speaking petition- er. At that point, petitioner confirmed that Hammer’s had been appeal denied and told Hammer he had to reach him on a attempted phone number of occasions and had sent several to Hammer had letters which been returned as undeliverable and had been Ham- placed Hammer’s file. mer asked file and petitioner to send it to him. promised file,

When he did not Hammer receive the sent called twice and him a file, registered letter asking for but neither nor replied sent file. In August attorney, Hammer Donald consulted another Townley, who sent letter petitioner a on September requesting Hammer’s file. The file by Townley’s service on November picked up *7 11, 1980, but the transcript of the initial not in hearing administrative the file and there were no in the letters file to Hammer which had addressed been returned to petitioner Townley asked subsequently as undeliverable. petitioner several to transcript occasions forward the to administrative him, but petitioner never to the hear- At the State Bar responded requests. ing, petitioner transcript testified that he had earlier returned the to Shoates, but although testify Shoates did not at the it was hearing, stipulat- ed that he would that back have testified he never received the transcript from eventually transcript

from for of the Townley copy sent petitioner. the board. appeals aha, evidence, found, inter panel

On the basis of the above the hearing reason- taking that without petitioner willfully employment withdrew of rule 2- able to avoid foreseeable to his client violation steps prejudice Conduct,3 use willfully 111 of failed to reason- the Rules of Professional and communicate with Ham- able services diligence performing failing of former rule 6-101.4 mer the of his case in violation regarding status they should challenges both we conclude that Although petitioner findings, be sustained.

A. employment Withdrawal from fails initially support

Petitioner contends that the evidence taking that he withdrew from without reason finding willfully employment asserts, able interest. He avoid foreseeable to his client’s steps prejudice first, an entered into that evidence does not demonstrate that ever second, Hammer, and, if he did attorney-client with that even relationship was never objective representation enter such of the relationship, clearly established. however, agreed

Hammer testified that quite emphatically, petitioner him in a federal post-administrative gov- suit represent appeal ernment, testimony and of both observed the hearing panel—which Hammer’s no testimony credible; and we find Hammer petitioner—found addition, $600 basis for assessment. In which rejecting payment the con- received from Hammer petitioner provides support additional Hammer represent clusion had been retained at that point in a legal capacity. to the exact terms of

Although record leaves some question Hammer—i.e., was to between and whether agreement 2, ante, outcome file a Bivens action fn. (see p. 184) regardless federal provides in “. . Bar shall with part: 2-111 relevant . member of the State Rule [A] employment prejudice to steps draw from until he has to avoid foreseeable taken reasonable client, client, allowing rights including employ giving of his due to his time notice counsel, delivering papers property to which the client ment of other the client all entitled, complying applicable with laws and rules.” Hereafter, all rules Conduct of the State references to are to Rules of Professional of California. provided part: “A not will 4Former rule 6-101 member of the State Bar shall relevant fully . of his skill diligence judgment . . his best in the exercise to use reasonable [flail speed, the application learning accomplish, an effort to with reasonable *8 purpose employed.” for is which he only if the he file such an action appeal administrative or whether towas the conclu- Hammer the case the appeal—in supports won either evidence taking petitioner employment sion that withdrew from without improperly to received reasonable avoid to his client. When steps prejudice petitioner February by had been notice that Hammer’s denied appeal board, that law the review he have under federal appeals recognized should if review a subject judicial board decision was not final but was to appeals days the appeals were filed federal within 30 petition receipt court of the 7703(b)(1).) By failing notify board decision. U.S.C. Hammer (5 § to seek adverse decision ascertain whether Hammer wanted failing to review, judicial any Hammer had petitioner opportunity pre- foreclosed and, vail in any administrative Bivens appeal perhaps, subsequent action. Because to act at and did even petitioner speak failed that point, Hammer finally until able to reach him Hammer—through ruse—was later, phone several months the evidence supports we that conclude finding that reason- petitioner taking withdrew without employment able steps to avoid his client.5 prejudicing

This conclusion is by the which that peti- buttressed evidence suggests falsely tioner unsuccessfully told Hammer attempt- that had (petitioner) noted, to notify ed Hammer of the although board decision. As appeals told Hammer in June that he numerous to Ham- had sent letters file, mer that had been placed returned as undeliverable and in Hammer’s finally the file when was such attorney delivered Hammer’s new no letters circumstances, found. were Under the we conclude that the evidence sup- that ports finding petitioner abandoned his client without reason- taking him able steps protect from prejudice.

B. Failure to communicate with client also

Petitioner that contends the evidence does not support Hammer, that he finding “willfully” with suggesting failed communicate failure to communicate the result of simply negligence argument argued prejudiced by Petitioner at oral receiving that Hammer late no was not decision, appeals 30-day tice of the denial of period board since United States of 5 only 7703(b)(1) section upon personal receipt Code to run of the commences the claimant decision, appeals 30-day upon attorney board one’s service is not sufficient to start the (Kumferman Navy period. Department (Fed.Cir. 289.) v. 1986) 785 Petitioner’s F.2d argument 30-day meritless. of the record shows never advised Hammer statute, decision, right judicial nor of his even to so the appeals seek review of the board fact may days receipt that Hammer have had 30 or from date of his about decision—on petition responsibility June 1980—to file for review does not absolve opportunity judicial Hammer’s loss of September to obtain It was not until review. review, year expiration thirty-day period more than one after that Hammer learned from another that his claim was time-barred. *9 to Even decision Hammer. failing

officestaff to forward board appeals for negligence petitioner’s if we assume that such office-staff was responsible Hammer— to board decision to appeals initial failure forward the promptly he to Hammer though petitioner’s spoke that was when explanation that thereafter clearly peti- June 27—the evidence conclusion supports willfully Contrary petition- with Hammer. tioner failed communicate contention, is not limited to to communicate er’s evidence failure on June but initially conduct in Hammer’s calls refusing petitioner’s phone his failure to Hammer’s calls subsequent extends to respond the file to Ham- letter into failure to send inquiring petitioner’s registered Indeed, is further demon- mer. willful failure to communicate petitioner’s later requests his additional failure to respond strated administrative new missing hearing transcript; Hammer’s counsel for the if, testified, returned transcript even as had earlier Shoates, to inform Hammer’s there was no excuse for failure petitioner’s event, cases make it clear an new In past that fact. to the attorney’s to communicate with and inattention repeated failure ground case—is a proper needs a client—like that involved (See, McMorris discipline, attorney’s e.g., even if the conduct not willful. 623 P.2d v. State Bar 29 Cal.3d sum, finding that petition- we conclude that the evidence supports a proper er’s conduct connection with the Hammer matter constitutes basis for discipline.

III. The LAPSC Matter involvement a tax petitioner’s second matter issue concerns Psy- the Los Angeles reduction In 1969 plan. petitioner began representing involved corporation cho-Social Center a charitable (LAPSC), nonprofit year, That same educational research. psychological Harwin, business Cary complex devised nonattomey manager, business tax numerous advantage transaction LAPSC to take involving designed as general partners and acted Petitioner Harwin formed provisions. Pelwin, and Lushar Land partnerships Kapwin three limited known as the Petitioner, legal instruments Companies attorney, drafted (PKL). PKL, hereafter. described setting the loan documents up including in PKL made partners Pursuant to investors who were limited plan, advice, LAPSC then petitioner’s charitable contributions LAPSC. With to PKL. On receipt loaned between 85 and 90 of these contributions percent loan, (Tucker), Land Company in the PKL shares Tucker purchased development. estate limited in the of real business public partnership 1,800 in the Santa Monica Moun- asset acres of land Tucker’s principal *10 The tains. shares in for the LAPSC loan. security PKL’s Tucker served as nonrecourse, rem, agreement loan between PKL and LAPSC was a or loan, which meant were general person- that none of or limited partners ally loan; remedy liable in the event of the LAPSC’s sole nonpayment PKL to repay security. failed loan was to foreclose Under on PKL, Tucker was to plan, capital to make calls for additional periodic which in limited turn was to make partners.6 calls to the individual

There and were tax and LAPSC advantages business both anticipated PKL as a to 15 result of the tax benefit the 10 plan. LAPSC would from itself, interest percent investors’ donations it retained for from the income on its loan to PKL from the loan. and anticipated repayment The individual investors would be their able deduct contributions LAPSC, PKL would be loan able deduct the interest on the expense payments and to The pay pretax purchase interest with dollars. PKL, shares in Tucker advantages also offered tax including deprecia- tion deductions and use of the on sale capital gains structure the subsequent of shares in Tucker.7 transaction,

Unlike most of the individuals who peti- this participated Instead, tioner did not invest a 15 money PKL. he received percent subordinate share in the assets of his PKL—the Tucker land shares—as fee LAPSC, for services rendered to insuring which included that the mon- ey loaned LAPSC was to buy (2) drafting used shares in Tucker documents, necessary legal the loan PKL and including agreement between LAPSC. Petitioner and in- LAPSC management both characterized volvement with PKL as LAPSC’s “watchdog,” ensuring security—the shares in Tucker—was not impaired.

The did plan not run as re- smoothly requested PKL expected. ceived a loan extension from LAPSC quick because PKL did not realize a from the gain investment in Tucker. had a early The recession 1970’s on negative impact the housing industry and environmental concerns forced Tucker to 1,000 refrain from on building about acres of land. In general Harwin, the advice of partner Cary knowl- prior and without the or edge consent of PKL petitioner, decided not to meet call from Tucker. As a consequence, the Tucker shares into default and Tucker went them, foreclosed on eliminating only and its general partners’ PKL’s 6Tucker had partners, among number of limited partner whom were the three limited ships in partnership PKL. Under agreement, the Tucker calls made limited certain could be covered, defray partners the limited obligations. Tucker’s If calls Tucker were not sell partner. could the shares of the limited proceedings legality State Bar arrangement, did not whether address the or participation posed any LAPSC’s organization’s nonprofit threat to the its status. retention of shares, well; PKL in the LAPSC’s interest as when security interest but LAPSC, left without defaulted on its note to LAPSC was thus subsequently foreclosure, remedy. after the several of the individual limited Shortly Tucker, directly PKL partners in the defaulted shares purchased engi- evidence that Harwin had presented suggesting the hearing *11 security eliminate LAPSC’s neered the default divert PKL assets and interest.8 Friedman, by Barry Holly Dyer, represented

In limited partner Harwin, companies suit and against petitioner, filed the Pelwin Kapwin several limited for (two partners the three limited and partnerships) duty, testified that fiduciary breach of and other causes action. Friedman of the Dyer was was dissolution petitioner seeking named because also and and had to name all Kapwin general partners, Pelwin and partnerships, duty. of fiduciary not had a breach petitioner because committed Petitioner, as for Pelwin and general partner for himself as and counsel Harwin, Dyer, Dyer filed a in the action Kapwin, cross-complaint against Tucker, they conspired and numerous limited that had partners alleging Pelwin, Kapwin and wrongfully divert assets and defraud partnership cross-defendant, LAPSC. but also named LAPSC as a cross-complaint that solely jurisdictional requested did so purposes, expressly and LAPSC be as a realigned cross-complainant. of the February a settlement petitioner negotiated and Friedman action, and were both dismissed

Dyer cross-complaint and complaint sought assur- with In the Friedman prejudice. negotiations, course action subsequent ances from LAPSC not petitioner bring that would be such a Dyer. Petitioner stated that he “doubted” there would suit. later, however, file a

Three did fact May petitioner months LAPSC, the same Dyer alleging and on behalf of complaint against others and in the cross-com- essentially previous facts the same claims contained had that this suit he withdrawn plaint. filing Petitioner testified before PKL, certificate of not filed the general partner requisite had although Thereafter, office. County withdrawal with the Los Recorder’s Angeles Harwin, general partner between preconceived Petitioner testified that there was a scheme calls, Tucker, including Dyer, respond to partners, limited Tucker’s and several directly money buy subsequently shares put defaulted partners aside and have the limited Tucker, eliminating diverting partnerships LAPSC’s se thus from the from PKL’s assets Friedman, attorney Dyer, curity tes general Barry partners’ interest and interests. Cary Dyer partners respond to Tuck that not to tified Harwin advised and the other limited directly. purchase partnership calls from Tucker er’s and to defaulted units earlier and to recuse Dyer’s complaint peti- Friedman moved to reinstate The trial court those motions. granted tioner from LAPSC. representing evidence, (1) found On the basis of the the review foregoing department limited that in PKL adverse to the interests of the petitioner’s interest PKL or its limited partners and him from prevented impartially advising that (2) that was also to LAPSC in partners; petitioner’s interest adverse note drafted PKL was not adequately issued LAPSC including secured and exempted partners, petitioner, individual liability; personal willfully conflicting had represented interests without PKL in the indi- representing litigation against consent willfully vidual limited had also partners, represented LAPSC in conflicting interests without the consent requisite representing *12 its action against challenges PKL’s limited Petitioner each partners.

four findings.

A. limited interest with or PKL partners Conflict of

The review initially that department found petitioner, obtaining shares, which, share in partnership PKL unlike did partnership other not either an require initial or had subsequent investment of an capital, acquired interest “adverse to a 4.9 client” within the meaning former rule This finding was based that conclusion interest was adverse to petitioner’s the interests of the limited since it partners, was interest for petitioner’s the limited partners to continue respond additional requests Tucker, capital necessarily whereas it was not in the limited partners’ which, interest to continue to make additional contributions increasing shares, or maintaining value the Tucker would benefit of inure petitioner as well as to themselves. The concluded that conflict prevented petitioner from impartially advising PKL or the individu al partners.

We agree with petitioner that a finding of misconduct cannot be sustained on this theory. as Although, suggests, the State Bar interest in petitioner’s to, may with, PKL well have been adverse or at potentially least conflict the interests limited partners, evidence does not the State support Bar’s determination an attorney-client that ever relationship existed be- tween petitioner and the As petitioner points individual limited partners. out, clearly evidence all shows that of the individual investors retained counsel to advise independent them before limited becoming partners, that they were well aware of role on petitioner’s “watchdog” behalf provided: 9Former rule 4 “A acquire member of the State Bar shall not an interest adverse to a client.” any of the limited is no evidence that there suggests, LAPSC. As petitioner an to establish attempted advice or ever his sought professional partners general partner him. attorney-client relationship Although, with PKL, partners to the limited fiduciary duty owed a petitioner plainly of this case we at least on the facts the partnership, relation the actions of connection partner/limited partner” “general do not believe petitioner between attorney-client relationship to create an sufficient Thus, an interest adverse assuming acquired investors. individual did acquisition not clients that they because were to the limited partners, 4. former rule violate attorney-cli- an had the evidence does indicate that Although and loan the partnership with PKL itself—he drafted relationship ent partnership and defended the a loan extension agreements, prepared nothing petitioner’s to indicate by Dyer—there the lawsuit filed itself, PKL as contrasted interest of contrary interest in PKL was partner As a partners. general individual limited with the interests of the success, interest was parallel from PKL’s gain petitioner’s who stood to PKL’s, Thus, violate former rule did not rather than adverse. of, in, PKL. representation his interest and simultaneous by virtue of *13 B. interest with LAPSC Conflict of former violated found that additionally petitioner

The State Bar acknowledges, to LAPSC. Petitioner rule 4 an interest adverse acquiring course, client, his interest that personal of LAPSC his but contends that was in PKL adverse LAPSC’s interest. was not to to PKL was adverse interest in

The State Bar found that petitioner’s a loan from through the PKL assets had been obtained LAPSC because secured, exempted specifically and which adequately LAPSC which was not LAPSC, from per- including petitioner, of general the individual partners between a of the conflict Bar found that as result liability. sonal The State LAPSC, had failed properly petitioner his own interests and those of fully to or advisability provision the nonrecourse advise LAPSC of the of re- that, he be personally in would provision, the absence of that explain PKL. a general partner for the loan as sponsible in- adequately that he that the evidence demonstrates argues Petitioner as the notes nonrecourse. its consent to draft formed LAPSC and received Moran, director the executive to Dr. fully He testified that he explained was LAPSC, because this necessity the notes nonrecourse making be it would and that advantage of the tax plan, “vital” the success paper. recourse signed to have partner, as petitioner, general “suicide” for Additionally, question argues that he discussed with Moran petitioner fees, of his and that become the it was Moran who suggested LAPSC, in his fee. “watchdog” partnerships and take an interest of, to, Even acquisition if LAPSC consented petitioner’s was aware personal interest and the from partnership exemption notes, liability fashioning avoid culpability cannot in a an interest that was participating financial transaction which held adverse to his client. in PKL Since his interest petitioner acquired his conduct rule must be assessed under the of former properly provisions and past cases establish that rule acquisition prohibited nature, conflicting interests of this or whether not the client consented. (Ames v. State Bar (1973) 8 506 P.2d Cal.3d Ames, 625]). attorneys this court found that had violated former riile they when who purchased realty senior encumbrance on owned clients held junibr encumbrance in order interest protect clients’ threatened foreclosure of the clients though senior encumbrance. Even consented, harmed, the clients were not taken further the action was interests, the clients’ court held that former rule was absolute its terms and forbade the acquisition by attorney an interest adverse to his client. We found that only former rule designed prevent fraudulent conduct but also preclude the honest practitioner plac- ing himself a position where he be might to choose subsequently required between conflicting interests detriment to the ultimate of his client. While recognizing that former rule obviously every did not business “proscribe transaction engaged an attorney (8 p. 917), client” Cal.3d at that, rule, Ames held under that circum- duty had a to avoid an stances “where it reasonably may foreseeable that his be acquisition i.e., detrimental, adverse, (Id. 920.) to the interests of p. his client.” *14 bar, In the case at petitioner’s an in PKL acquisition of interest which he profit would from PKL’s success on its responsible but"not be personally loan from clearly LAPSC put him in a his financial position where personal interest inwas conflict with LAPSC’s interest in obtaining repayment full its loan. Although petitioner he the emphasizes acquired that partnership interest as his fee for assuming “watchdog” role of PKL’s on actions behalf, LAPSC’s he does not explain why he could not have obtained his fee an in alternative form that did not create the conflict of interest that was And, by the posed he mechanism chose. while also that petitioner asserts the nonrecourse nature the note essential to the success of the tax limited, in advantage plan order that share partners, general all could in depreciation they benefits same profits, as shared the proportion he fails adequately explain why he had a general partner participate that did equivalent oversight privileges

and could not instead have obtained of interest. not a conflict pose of himself as extension on behalf

Finally, when obtained loan petitioner his in PKL PKL interest general partners, as well as the limited partner interests: the extension became adverse to his client LAPSC’s patently client, petitioner at the of his LAPSC. Had petitioner expense benefitted PKL, LAPSC in have advised his interest he well acquired might adverse foreshadowed decline inability that of PKL to make its loan repayments Tucker, default on the loan the value of the shares in potential Tucker, LAPSC be better protected eventual foreclosure and that would shares security—the shares Tucker—while the itself on the foreclosing loan. Had an extension grant still had some value rather than to action, some able to recover least LAPSC taken such it would have been to PKL. Petitioner’s conflict of interest money precluded its it loaned had the loan granting him from LAPSC on the wisdom of advising impartially extension. sum, that finding the evidence supports we conclude that to LAPSC’s inter-

violated former rule an interest adverse by acquiring est.10 filing PKL's

C. Failure to consent obtain limited partners' before cross-complaint willfully finding Bar’s challenges

Petitioner also parties repre of all conflicting interests without consent represented it the limited Because senting against partners. PKL in its cross-complaint it limited partners, found that both PKL represented had limited consent of the individual concluded that failure to obtain the 4-101 violated rules them partners filing cross-complaint before and 5-102.11 failing rules 6 and for to dis 10The of former State Bar also found violation PKL, conflicting interests representing close LAPSC his adverse interest view, parties. In our the evi LAPSC all concerned and PKL without the informed consent of testimony prior support findings, established dence does not these since uncontroverted parties made original arrangement, all were implementation PKL/LAPSC *15 as for his dual role counsel petitioner’s of and to adverse interest to aware consented LAPSC Although to disclose to petitioner PKL Bar found that failed and LAPSC. the State that, loan, security tes inadequate, a number of witnesses as in rem its was a result of the tified, contradiction, this adverse interest. without that did disclose accept employment adverse Bar not provides: 11Rule4-101 “A member of the State shall client, of the client or former

to consent a client or former without the informed written client, by relating information a to which he has obtained confidential to matter reference by client.” employment of his such client or former reason or the course above, however, As that the discussed we have concluded evidence does not an finding attorney-client the State Bar’s that had support The State Bar relationship with the individual limited alternative partners. on ly argues ground that the violations can be sustained that charged if even still owed them petitioner, attorney partners, not the limited fiduciary duty because of of PKL. position general partner Although his fiduciary may some contexts an with a nonclient attorney’s relationship make it party who wishes improper agree represent (see, Raley to sue the nonclient H. v. e.g., Superior William Co. Court (1983) 149 in this Cal.App.3d 232]), case we correctly believe that was maintains there no impropriety, either actual or in his apparent, individual defending partnership against limited destroy who were or it. partners allegedly defraud attempting (Accord Meehan v. Hopps (1956) Cal.App.2d

Further, the evidence fails Bar’s support finding petition- er was privy to confidential information of the individual limited partners. seen, As we have those individuáis were represented counsel separate and there was no that petitioner evidence had access to any obtained confidential information of the limited partners. Accordingly, finding that petitioner violated 4-101 and 5-102 by rules the limited partners suing their without consent cannot be sustained. D. Failure to obtain consent the limited partners and LAPSC bringing against LAPSC’s action limited partners

before

Finally, petitioner challenges State Bar’s violat finding that he ed rule 5-102 bringing May LAPSC’s action limited partners without his conflict of revealing interest and obtaining written discussed, consent of all parties. Although, just the reasons agree we with limited petitioner that he had no to obtain the obligation consent of the action, partners before bringing such an we think the finding should be to, sustained the basis his failure make full disclosure and obtain of, the written consent LAPSC. PKL, client,

Petitioner that because argues his other not specifically LAPSC, named as a in the May defendant 1978 action there nowas was, conflict however, of interest for him to disclose to LAPSC. PKL provides: Rule 5-1Ó2 “(A) A accept member of not professional employ- the State Bar shall relation, disclosing interest, ment any, without first party, if with the adverse and his if any, subject employment. matter of the accepts A member the State em- who ployment under the rule shall employment. first obtain the client’s written consent such interests, (B) A member of represent conflicting the State Bar shall except with the writ- ten parties consent all concerned.” *16 action, and, addition, in petitioner, in such obviously defendant potential PKL, for liable to LAPSC was himself partner potentially as a general from defaulting the limited steps prevent partners his failure to take defend- name either PKL or himself as By failing calls to Tucker. their ants, liability from shielded both himself and one client petitioner 5-102, client, was obligat- LAPSC. Under rule petitioner of another expense And while obtain LAPSC’s written consent. ed to disclose this conflict and pursue LAPSC’s oral consent testified that did receive petitioner Moran, Moran, Dr. that the son of brought, Larry action which he testified that only after assurances given petitioner’s repeated LAPSC’s consent was Furthermore, in this petitioner’s culpability no of interest. there was conflict himself resolutely refused to recuse the fact that he regard aggravated trial by the court requested from the LAPSC action even after recusal was in that action. finding that we conclude that the evidence

Accordingly, supports May 1978 5-102 his conduct in relation to the violated rule petitioner LAPSC action.

IV. Discipline is, course, rec hearing panel’s a marked between the disparity There days sixty years with suspended ommendation that be two petitioner of disbar and the review recommendation suspension department’s actual determining judgment ment. While we exercise our independent 748, 757 31 Cal.3d v. State Bar punishment (Gordon the appropriate recommenda the review 137]), department’s Cal.Rptr. 38 Cal.3d (Smith v. State Bar weight. tion is entitled to great 698 P.2d it considered The review cited a number of factors department disci- prior two Petitioner’s increasing petitioner’s discipline disbarment. considerations, severity. their given important especially actions are plinary for his five months years In 1970 for three suspended was In 1979 he was in a mail fraud scheme.12 involvement and federal conviction company a client to a loan a fee for reproved receiving referring publicly a referral fee.13 he was notifying receiving without the client that 12 1969, (use violating Code section petitioner 18 United States convicted abetting), (aiding defraud) Code section the mails in a scheme to and 18 United States days) year and was- (subsequently to one hundred prison to one modified was sentenced 22, 1970, years. suspended petitioner July probation for five On this court placed on thereafter, conviction; was retroac pending appeal of his practice of law months, 22, 1970, July years to this conviction. tively for three and five due suspended, from consider properly argument, this court could question oral was raised whether At but appellate decisions had been to in unrelated past referred conduct *17 “ac- The review it department petitioner’s also indicated that considered aggressively tive in a tax avoidance scheme participation pursuing tell in which . . . It is difficult to litigation he had a conflict interest petitioner’s from this the review considered language department whether as, itself, increasing in a involvement “tax avoidance” reason for plan tax punishment. alleged Since the was not illegality plan Bar, we will not consider his benefits as an obtaining independent tax does, however, basis of discipline. fully finding The record support he conflict petitioner “aggressively” litigation in which had pursued interest, court’s re- to recuse himself the trial repeatedly refusing despite quest that he withdraw.

The review cited “fraudulent conduct department petitioner’s also effecting Dyer settlement” as a reason the recommended to increase discipline. This may characterization of conduct overstate petitioner’s Friedman, evidence presented this case. Both negotiat- ing the adverse testified that stated party, simply he claim “doubted” that LAPSC would file the individual limited partners of PKL. Friedman testified Although that he felt that petitioner filed, him that assuring no such suit would be absent more substantial intent, evidence of petitioner’s this rely fraudulent we are hesitant to incident as basis for discipline. increased

Finally, the review department lack of remorse pointed petitioner’s toward the victims of his misconduct as a basis increased discipline. Although, out, as petitioner is points in some circumstances lack of remorse fairly indicative increased v. State (see, e.g., Calaway culpability 41 Cal.3d 747-748 371]), 716 P.2d case we believe the record the review reliance on supports department’s factor, petitioner’s attitude as an aggravating accept since refused to even responsibility for those his com aspects of misconduct—his refusal to municate with Hammer bring and his failure to conflict of obvious interest in connection with the LAPSC suit to LAPSC’s attention—which are manifestly indefensible. course, note, determining take appropriate discipline, we

of the fact that we have found number of findings— that a the State Bar’s those particularly on its an resting attorney-client conclusion that relation ship existed between partners—are and the limited not supported had not proceeding. been filed considered the State Bar in this have parties Court issue, briefs on that case question but we conclude that to resolve that in this there no need because we find that the State basis Bar’s of disbarment is warranted on the recommendation solely emphasize matters on which the State Bar itself We that our decision rests relied. on the matters considered State Bar Court. *18 257, 38 Cal.3d McCray (1985) v. State Bar (See, the evidence. e.g., 691, Nonetheless, that we are mindful P.2d p. 83].) 273 696 Cal.Rptr. [211 protect public, are to primary assessing discipline in purposes high professional system in and to maintain legal confidence promote Bar, The 539.) 38 Cal.3d at p. v. State (See, e.g., supra, standards. Smith not petition established here were adequately ethical violations which were required has been misconduct; er’s first of in the court past, instances miscon for other serious him on occasions two discipline separate Bar, V, Standards Proc. of State div. (See Rules duct. 1, 1986) 1.7(b).)14 Jan. std. Atty. (eff. Sanctions for Prof. Misconduct addition, acknowledge the stubborn refusal petitioner’s that he will it difficult to feel confident of his actions makes impropriety in the standards high professional the required conform conduct to if permitted in other misconduct engaging future. The risk of petitioner considerable, and the public believe that the continue in is and we practice sufficiently suspension. a mere not be legal profession protected would 866, 128, 665 (Rimel Cal.Rptr. v. Bar 34 131-132 (1983) State Cal.3d [192 184, Cal.Rptr. P.2d v. Bar 31 Cal.3d 956]; (1982) Ambrose State [181 903, 643 B. be disbarred is Marvin

Accordingly, Kapelus it ordered that petitioner from the roll of name be stricken from the of law and that his practice It with the attorneys. requirements is further ordered that petitioner comply the acts of of that perform rule 955 of the California Rules Court and 40 days, 30 and that rule within (a) (c) subdivisions of specified is effective of this order. This order respectively, after the effective date finality of upon the decision.

MOSK, J. I dissent. ten, of this petition- of the behavior

On the unethical conduct scale one considered, the is er no his prior discipline rates more than a five. When misconduct 1.7(b) culpable professional “If of provides: Standard a member is found prior of may a record two proceeding discipline imposed be and the member has in which current 1.2(f), degree discipline in the impositions of discipline as defined Standard clearly mitigating compelling circumstances proceeding shall be unless the most disbarment predominate.” State hearing prior date of the new panel to the effective The decision in this case was filed Nevertheless, Bar v. State Greenbaum Bar standards sanctions. guide- 168, 754], recently that the new Cal.Rptr. noted 550-551 736 P.2d we Cal.3d court, lines, assessing appropri- may binding properly considered on this be while guideposts for new standards serve predating sanction for conduct the standards. The ate public, promo- attorney discipline—protection purposes this court to ensure high professional standards— legal system, in the and the maintenance tion of confidence consistency imposition of sanctions. in the particular greater achieve are met case and to Bar, 967-968; State Bar Kent v. (See, e.g., supra, v. 43 Cal.3d Guzzetta 1244.) 739 P.2d Cal.3d result, however, may number rise a or short that which point two. merits disbarment. observing

The State after evidence and hearing panel, taking witnesses, two discipline years recommended with conditions suspension sixty days of actual That be probation might included suspension. *19 I unduly lenient: would be a of period actual agreeable longer suspension. relatively But I believe disbarment marginal to be Draconian result for the conduct involved in this proceeding.

Broussard, J., Panelli, J., concurred. (J. KLINE Anthony), J.* I concur in the judgment ordering disbarment but respect dissent with the standard of review.

My conclusion that petitioner upon should be disbarred rests primarily the fact that he has suffered two prior impositions discipline. Standards recently promulgated by the prescribe State Bar disbarment in such circum stances, unless “the most circumstances compelling mitigating clearly pre Bar, V, dominate.” (Rules Proc. Atty. of State div. Standards for Sanctions 1 1, for Prof. (eff. Misconduct 1986) Jan. std. This court 1.7(b).) has deemed here, where, that sanction applicable even as the decision of the hearing (Greenbaum panel predated the new standards. v. State 43 (1987) Bar 543, 168, Cal.3d 550-551 Cal.Rptr. 754]; 736 P.2d Guzzetta v. see also [237 962, 675, State (1987) Bar 43 Cal.3d 967-968 741 P.2d Cal.Rptr. [239 me, For the dispositive is whether question there are sufficient mitigating presented circumstances in connection with war- present misconduct to rant an severe exception penalty that should otherwise apply. this

answering question I negative accord than does greater weight is, the majority to the factual I findings State Bar hearing panel; do necessary not find it to “resolve all in favor reasonable doubts result, attorney.” (Maj. p. As a I opn., 183.) do not find this case as close as majority makes it appear. view, my Tn judicial standard of review in bar traditionally applied cases is as disciplinary untenable a matter of as a law and obsolete matter * Justice, Two, Presiding District, of Appeal, Appellate Court assigned First Division Chairperson of the Judicial Council. 1 1.7(b) provides culpable Standard professional that “If member found misconduct may proceeding discipline imposed in which be and the member has record two prior impositions 1.2(f), of discipline degree discipline defined in Standard in the proceeding compelling mitigating current shall be disbarment unless most circumstances clearly predominate.” 200 I why believe identify and to what explain

social I write policy. separately is the more standard. appropriate

1. State Bar ordinarily to evaluate employed The standard of review hand, On the one to a contradiction. findings dangerously comes close judge observe and “greater opportunity because the has a hearing panel 13 Cal.3d (1975) v. State Bar credibility (Tomlinson of the witnesses” reiterates, 567, 335, 1119]), regularly 578 531 the court Cal.Rptr. P.2d [119 case, weight findings. it great panel’s as it does accords 302, P.2d Cal.Rptr. v. Bar 3d (Bach (1987) State Cal. [239 Cal.Rptr. v. Bar 41 Cal.3d 414]; Franklin State v. 37 Cal.3d Alberton 699]; *20 36, 373, 43 v. State Bar 34 Cal.3d 1177]; (1983) 686 P.2d Warner [192 912, 244, 30 916 v. State Bar Cal.3d 148]; (1982) 664 P.2d Garlow Cal.Rptr. out, 831, 1106].) The court as just frequently points 640 P.2d Cal.Rptr. [180 however, case, reasonable must resolve all as it also does in this that “we 683, 43 v. State Bar Cal.3d attorney.” (Galardi (1987) doubts in favor of the 774, 36 (1984) v. Bar 134]; Chefsky 689 P.2d State Cal.Rptr. 739 [238 349, 116, 82]; Vaughn v. State Cal.3d 121 680 P.2d Cal.Rptr. [202 847, 713, 1257].) P.2d 6 Cal.3d 852 494 (1972) Cal.Rptr. [100 is, course, a finding upon support to think a relied It of difficult if “all weight” accorded genuinely “great disbarment recommendation is innocence, where two or more of and that intendments should be favor shown, that infer- from a fact may be drawn equally reasonable inferences rather than be accepted ence to a conclusion of innocence should leading (In Francis- Association San of re Bar leading guilt.”2 one to conclusion of 621, of review does 185 P. Because the standard 7].) co Cal. 624 (1921) [198 sense, consideration inhibits de novo judicial not make it invites rather than of evidence.3 2 (9 Wit Ordinarily, conflicting inferences” to as “the rule of under what has been referred 288, kin, (3d 1985) 300), be favored Appeal, p. the inference that should Cal. Procedure ed. § Ry. (1939) 12 Co. (See, e.g., v. Elec. supports judgment. Hamilton is that which Pacific 598, has than that which that some inference other Cal.2d 602-603 P.2d fact 829] [“The [86 reasonable, may affords jury appear appellate tribunal to be the more been drawn to an question”]; v. American disturbing Mah See North no sufficient reason for the inference 421, 42, McIntyre 123]; v. & Roe (1923) Doe 426 P. 26 A.L.R.

Acc. Ins. Co. 190 Cal. [213 285, 21].) (1954) Cal.App.2d 287 125 P.2d [270 3 connection, distinguished hearing findings panel as to the facts must be In this of the discipline. degree The regarding the department the review from the recommendation of recommendation, findings, di is not that accorded the “great weight” unlike accorded attorney. significance The need doubts in favor of the accused minished to resolve dubious, however, disci- judicial to the recommended is because deference of this distinction

201 2. in a principle disbarment this court should resolve proceeding may reasonably

such doubts the evidence in favor the accused permit attorney theory has been on the applied proceeding “that disbarment 212, (Furman in character.” v. Bar (1938) 12 Cal.2d ^Mtim-criminal 93, 12]; 229 re Cal. 105 P. (1917) 1101]; P.2d In McCowan 177 see [83 [170 54, also Frazer v. State Bar 43 (1987) Cal.3d 567 737 [238 early This back Hay idea traces in Matter opinion 899], mond Cal. 385 P. (1898) which the court’s not to decision [53 disbar rested on by statutory or decisional assumption, unsupported authority, that an an attorney accusation “is in the of a nature criminal all charge, and intendments are in favor (Id., accused.” Luce, McDonald, 388; p. see also In re & Torrance 83 Cal. nature,” P. disbarment “is proceeding quasi criminal in its

[23 350] [because accused attorneys “are entitled to the benefit ... . . . presumption of good character”].) The principle thereby created have devel appears to out oped of the fact that disbarment deprives of important “personal and property rights.” (Disbarment Houghton 67 Cal. 511, 517 re 52]; P. Stephens (1890) 46]; Cal. P. In re Bar Francisco, Association San supra, Cal. 623.) *21 is It important to century, understand that the during 19th when conceived, in principle question was the State Bar exist did not Supreme Court did not review the determination or recommendation body another reached after the elaborate sort of hearings administrative Instead, with which we are now familiar. the court was to react ab obliged initio to an “accusation” that could be filed by anyone, including disgrun- tled former client (see, e.g., In re (1894) Burris 101 624 P. 101]), Cal. [36 legal adversary (see, e.g., In re Tyler Cal. (1886) 71 353 P. even 89]), or [12 an angry 511, court. re (In Philbrook (1895) 105 Cal. 471 P. 38 884].) P. [38 The evidence support “charges” was presented either to a referee by the designated court re (In (1890) Cobb 84 Cal. 550 re 293]; P. In [24 Lowenthal 2 (1884) Cal. 300 P. Unrep. or 657]) at a “trial” conducted [3 32, the court (In also, itself. re Cowdery 69 (1886) 47]; Cal. 34 P. see In [10 re Stephens (1888) 77 Cal. 646], 357 P. demurrer and overruling requir- [19 ing attorney file answer.) usually pline depends weight, any, actually if accorded the State factual Bar’s determi- nations. 4Although disbarment, principle originally only was applied gradu in the context it ally employed came be proposed discipline cases in which the was much less severe. Bar, (See, e.g., Vaughn v. supra, recommended]; State 6 [public reproval Cal.3d 847 v. Ashe 233,

State (1969) Bar Cal.Rptr. Cal.2d 123 suspension 453 P.2d rec months [77 737] [six ommended]; Hildebrand v. State Bar 18 Cal.2d 816 P.2d sus months [117 860] [six pension recommended].) which the rudimentary Supreme of this light disciplinary process, court, why it it easy as a trial is to understand essentially

Court functioned in favor evidentiary resolve doubts thought originally appropriate why this attorney. easy principle, But it is not to understand accused Bar, considering today, century survives a half after creation of the State administrative extraordinary attorneys receive protections during the whol- considering process,5 phases contemporary disciplinary ly process. different role this court that vitality of the continuing principle The that results from the confusion attorney” in favor of the reasonable doubts are be resolved “[a]ll Bar, 564, mistakenly which is (Frazer 569), v. State Cal.3d often supra, has been evident. proof,6 long to the State Bar’s burden of thought refer Bar, 612, 634; Vaughn In re 43 Cal.3d Rosenthal v. State (See, e.g., supra, 353, 858]; P. 24 A.L.R. Fish v. The State Cal. 495-496 (1922) 189 [209 Nonetheless, so-called 937].) Bar 214 Cal. re- never nearly century ago “intendment” of innocence fashioned v. e.g., law. Galardi (See, examined continues to resound within the case Bar, Bar, 683, 689; Chefsky v. State Cal.3d supra, State Cal.3d supra, Bar, 116, 121; 852.) 6 Cal.3d Vaughn v. supra, or “quasi- are “criminal” disciplinary proceedings notion bar view, criminal” in with the modem impossible character reconcile court, “is such objective proceedings endorsed that the repeatedly “to but ensure not to members of the impose upon profession” punishment courts, unsuit are protected that the and the public, profession (In 562, 570 6 Cal.3d Higbie (1972) able re legal practitioners. [Citations.]” notes, “[proceedings often 493 P.2d As court character, civil nor criminal generis, before the State are sui neither and the do not ordinary safeguards apply. criminal procedural [Citations.]” *22 602, 436, 521 Cal.Rptr. (Yokozeki (1974) v. State Bar 11 Cal.3d 447 [113 484; 9 Cal.L.Rev. added; (1921) italics see also Comment 858], P.2d 3d Spec. 19 Cal. (1977) McComb v. Commission on Judicial Performance 1, 459, 1].) 564 P.2d Cal.Rptr. Trib. 9 Supp. [138 5 Fellmeth, Initial Re process set forth description The most recent of this elaborate is Judiciary Supreme Assembly of the port the and Chief Justice and Senate Committees Bar Disciplinary System the California State Report Court: A the Performance of the of on 1, (June 1987) pages. (hereinafter Report). the 7-20 Fellmeth 6 that, attorneys necessary relief periodically petitioning for This court finds it to remind proceedings punish, not such purpose disciplinary proceedings Bar is because the State (Arden v. governed by in criminal trials.” proof “are not a doubt reasonable standard 713, 68, 1236]; v. State Bar (1987) Rosenthal Cal.Rptr. State Bar 43 739 P.2d Cal.3d 725 [239 612, 377, (1933) 723]; Ring v. Bar (1987) Cal.Rptr. The State 43 Cal.3d 738 P.2d 634 [238 course, 747, compels re 821].) suggest, same rationale 218 750 Of as I shall the Cal. P.2d [24 may from jection conflicting drawn the evidence principle inferences that be Bar. against the State should be this court in favor of innocence and resolved to criminal and resolution reasonable analogy proceedings also in favor of review is judicial doubts in the course of 6083, inconsistent subdivision with Business and Professions Code section 1927, ch. (c), originally (Stats. enacted 1927 as of the State Bar Act part 34, 26, State p. provides which review of decision of the 41), that upon § Bar “the is recommending disbarment or burden suspension practice upon or petitioner to show wherein the decision or action is erroneous statutory unlawful.” This is rendered presumption meaningless, undefined, standard of essentially enig- review left of the perpetuation that, matic proposition notwithstanding places the burden the statute on attorney, in will petitioning weighing the evidence reasonable doubts “[a]ll be . . resolved favor of the accused . .” v. State Bar (Himmel (1971) 786, 825, Cal.3d 793-794 [94

Furthermore, because the resolution reasonable doubts in favor attorney subjects findings recommendations to disciplinary higher scrutiny level of than that specified by Legislature, practice be cannot squared with statements of this court that disbarment proceed “ ‘ ings are “governed exclusively by the specifically covering Code sections Bar, them.”’” (Fish 215, v. The State 222; Vaughn, 214 Cal. In re supra, 189 Cal. supra, 496; Matter 157 Cal. of Danford P. 322].) Although this has statutory court applied few occasions presumption undiminished by the inno judicially created “intendment” of (see, cence Aydelotte v. e.g., State Bar Cal. of California P. 41]), it ordinarily refuses to be constrained of review scope prescribed by the Legislature.

3. The unusual power self-regulation conferred upon legal profession7 does not appear have notably been exercised in a manner. vigorous Indeed, many disbarment is in- proposed rarely more than occurs formed observers believe warranted.8 do attorneys practical Thus not as matter reguire the judicial added protection they receive. 7Lawyers only are the professional given state licensees whose constitutional association Const., VI, (Cal. 9) empowered status art. only profession the rules of § formulate Code, (Bus. al & 6076.5) pro conduct Prof. but also to control the administrative §§ *23 by Code, 6077, (Bus.

cess which those rules are 6078.) enforced. & Prof. §§ cases, “Except egregious in most always the the bar has cast a col been disinclined to out league lawyer-client for abuses within relationship. Every analysis major disciplinary the of grossly structures has found them garden variety problems insensitive both professional misconduct and to serious delay, neglect, incompetence Surveys of overcharging. of bar and procedures major in states reveal some of complaints are investi 90% dismissed without gation, grievances and national falling disciplinary jurisdiction, statistics of reflect that within public less in only than result 3% sanctions and in repeated .8% disbarment. Even instances the function justified by important

Nor can treatment be such special contrary, once lawyers society. pointed in our On the as this court perform interests, out, inherent and public of well as adequate protection “[t]he law, of a more require to the inseparable peculiarities pertaining practice in this than the profession detailed the state over the conduct supervision ” (In re (1921) or business. Galusha case almost other profession 697, of the State 406], added.) Subjecting findings Cal. P. italics than judicial scrutiny applies to an to a level higher Bar adverse it harder than it of other bodies makes corresponding findings licensing it be the Bar to the discharge responsibility imposed upon should for State this Legislature court. system unduly indulgent that the has been Acknowledging disciplinary recent- Bar has imposed erratically, and that has been punishment offense, “stem, fair, fit that are ly penalties endeavored fashion ought Solving Discipline uniform to be.” they (Heilbron, are where for Attor- (1986) 53.) Problem Cal. Law. the Standards promulgating were ney Sanctions for Misconduct in which adopted Professional for similar designed greater consistency “to achieve in sanction disciplinary Bar, V, Board of (Rules Introd.), offenses” Proc. div. supra, of State disciplinary Governors of the State Bar its concern that uniform expressed that a are not court “and standards ascertainable the decisions of this given variety disciplinary wide sanctions have been imposed view, deci- (Ibid.) offense.” Witkin out that supports pointing “[t]he moral reveal little in acts of imposed sions serious pattern discipline Witkin, Procedure, 557.) (1 Attorneys, Although turpitude.” p. Cal. § that, many in the absence judicial “apply general decisions rule circumstances, offenses mitigating for serious appropriate penalty . . . no (Id., imposed disbarment” “a number pp. 557-558), greater § (Id., than for acts moral greater penalty suspension involving turpitude.” 559.) p. § result inconsistency part the case law is at least the inherent standard of review that has been Given

confusing applied. neglect, incompetence rarely provoke revocation.” misrepresentation, license will 491, 547-548, fns. (Rhode, L.J. Moral Character as a Credential 94 Yale Professional also, Disciplinary En- omitted; Special Report see of A.B.A. Committee on Evaluation of forcement, Martyn, (1970); Disciplinary Enforcement Problems and Recommendations 705; Lawyer Beyond Steele Competence Lawyer Discipline: Bar? 69 Geo. L.J. Nimmer, 919.) J. Lawyers, Regulation, Res. 1976 Am. B. Found. & Clients and Professional strictly Califor- discipline imposed more statistics indicate that bar has been no Available 143, 144; [“Adjudi- (See, e.g., Report, supra, pp. nia than it been elsewhere. Fellmeth has per 1981. are states where were 22 in 1986. There were cated disbarments [There Fire levels.]”]; Under Egelko, Discipline State Bar capita rate is ten times these disbarment Cal.Law., 55, 59.) (1986) 6

205 the in subjectivity of ethical involved most determina concepts disciplinary 810, 252, (see Konigsberg tions v. State 353 U.S. 263 L.Ed.2d (1957) Bar [1 819, 77 S.Ct. But 722]), inconsistency just. some is inevitable and perhaps coherently the failure to permits define the of review—which scope to give court short shrift to Bar to undertake unfettered findings State and de v. Bar case-by-case (Schneider novo consideration “on a State basis” 784, 111, 43 led to (1987) 1279])—has Cal.3d unreasonable, wholly discrepancies that are Such unnecessary unjust. and discretionary adjudication by Roscoe image, conjured calls mind Pound, city by of administering justice gate the “oriental cadi of light by being.” nature the state of his for the time tempered digestion 20, (Pound, This Equity (1905) The Decadence Colum.L.Rev. 21.) of virtues, may have approach its but and decision-mak principled predictable ing is not among them.

4. If a disbarment can be because an proceeding “quasi-cúminal” deemed adverse decision operates deprive the of important accused (In Francisco, 621, rights vested re Bar Association San 185 Cal. supra, of then 623), the same characterization any should administrative apply proceeding that could result in in revocation of a required license legally order to ply a trade or Yet of profession. among the scores professionals state, tradespersons licensed benefit of a only attorneys enjoy the judicially developed “intendment” called upon favor innocence when to defend conduct found licensing been unethical. body have There no satisfactory rationale for this distinction. review,

For purposes judicial recommendation of the disbarment Bar State seems to materially me any from administrative indistinguishable decision revoking license.9 professional Because substantial such decisions vested, ly affect fundamental rights, California examine only trial courts not but, administrative record for errors of law like this court court, 9Because separa members the bar are officers of the to the constitutional due powers, tion regulatory an power legal profession courts have inherent over the they 439, possess professions. do not over (Brydonjack other v. State Bar Cal. Nonetheless, P. 66 A.L.R. power legislature impose “the reason able upon practice restrictions recognized of the law has been this state almost inception (Ibid.) the manner, terms, of statehood.” As stated Ex Parte 244: “The Yale Cal. practice, continuing prac of their conditions admission to of their tice, powers, well privileges, proper subjects legislative as their duties and are control to subject profession same extent and as in or same limitations other case Galusha, that is regulated supra, business created or statute.” See also In re 184 Cal. suggests legal profession legislative supervision where the court that the warrants closer than others. *25 206 matters, the evi independent judgment upon exercise their

disciplinary 234, 481 4 143 v. Pierno Cal.3d (Bixby (1971) Cal.Rptr. dence. [93 (1939) v. Bd. Directors Drummey As Funeral P.2d stated of for mandate to which 848], 13 Cal.2d 75 “the court the application [87 an exercise of a license must professional is made to secure the restoration . . the the facts. . the evidence independent weighing judgment [I]n findings by findings the of the board. The courts can and should be assisted of their the with a strong presumption the board come before court of correctness, the rests on the to convince complaining party and the burden contrary is to the of the evidence.”10 weight court that the board’s decision (Id., correctness, functional of is the p. 85.) at This which presumption recommenda statutorily accorded State Bar disciplinary of that equivalent Code, with subd. which is inconsistent (c)), tions & Prof. (Bus. § lead those that judicial for inferences that lead to innocence over preference I us. As have to be in cases such as the one before guilt, applied should justify is no reason the evidence relied upon earlier there suggested, eye with a more than jaundiced judicial disbarment should be viewed profess of the license other licensed upon justify any relied revocation 1 is If the courts and the legal profession ional.1 protection public, consideration, review then the benefit of doubt as a genuinely chief such misconduct, not may entertain ing given finding court should be is subject. who its contrary contrary weight is one which “A decision which is to the the evidence is normally weighs evi preponderance purpose of the evidence. The which a court way given Code section preponderates is to on a issue. Evidence dence determine which it law, by re provides percent proof part: ‘Except provided otherwise the burden of Thus, re by a quires proof preponderance unexplained of the evidence.’ an statement that evi viewing weigh is court shall the evidence a statement that it shall determine whether of, review.” preponderates against, under dence in favor or the administrative decision County (Chamberlain 368-369 Cal.App.3d v. Ventura Civil Service Com. 155]; People ‘preponder v. see also Miller 171 Cal. P. 468] [“ viz., says, outweighs, side ance the evidence’ . . . means it that the evidence on one what than, side, over, necessarily in number preponderates is more the other evidence on addressed”].) quantity, or in its effect on to whom it is witnesses but those evi- by contrary weight of the supported decision is or to the Whether an administrative is, be, resolving ordinarily reviewing dence can and indeed decided court without reasonably agency conflicting be drawn inferences that could both the administrative the evidence. court, only attorneys one It can of an decision from is true that obtain review adverse hand, attorneys proba multiple it at levels. On the whereas other licensees can obtain other event, and, only during bly greater protections process are have administrative Moreover, only right possessing right Supreme if the to review Court review. licensees evidentiary thought give attorneys an a sufficient benefit of one court were reason to licensees, re permit lower court enjoyed be to doubt no other better alternative would Comment, 138-139; At discipline. Report, supra, pages see also bar See Fellmeth view of torney Supreme Courts Direct Review the Discipline and the Court: Transfer of California (1984), 252. Appeal 72 Cal.L.Rev. *26 case, With to the instant it respect entirely seems to me reasonable (once disbar an proper unrepentant attorney, twice previously disciplined for conviction of a criminal offense who fraud), an element of involving conmits new acts of misconduct unabated circum by compelling mitigating stances, as called for the new State Bar As the who standards. bar leaders aware, promulgated those standards of deri were doubtless “[ejxpressions of lawyers sion and distrust too are be prevalent disregarded members of legal and it profession, only the action through organized bar that the high lawyers standards be maintained.” are entitled to can (I re Goldstein 411 Ill. N.E.2d n This court should not interfere in the effort to maintain such standards high absent stronger reason than is presented by this case.

Petitioner’s for a application rehearing was denied January J., Kaufman, opinion was modified to read did not printed above. participate therein.