Maltaman v. State Bar

Sept. No. 25098. 1987.] [S.F. MALTAMAN, Petitioner, v. P.

JOSEPH CALIFORNIA, Respondent. BAR OF THE STATE Counsel Maltaman, for Petitioner. per., P.

Joseph pro Jr., Rosenthal, Wachter for and Andrea Richey, Truitt A. Herbert M. Respondent.

Opinion THE COURT. The StateBar Court Joseph recommends that Maltaman, 1955, Paul Gauci a member of the State Bar since be disbarred. The referree made findings, by that from adopted review department, matters, 1976 to in two violated his oath and separate duties as an attorney and committed acts moral involving turpitude dishonesty. He has no “formal” prior disciplinary proceedings.

The record generated by the State Bar Court that substantial suggests warranted, discipline is but it does not the disbarment recommen- support dation. Accordingly, we will á of five impose discipline years’ probation, with a year minimum one of actual suspension, contingent both on petition- er’s passage the Professional his full Responsibility Examination and compliance Court, rule California Rules of during as applicable the periods of actual A suspension probation. brief comment is war- ranted in connection with our decision to reduce the disci- recommended pline.

We must rely heavily the State Bar Court’s disciplinary findings recommendations, and we do not hesitate to impose suggested discipline when presented However, record, with a record it. justifies which this like others we are receiving with leaves increasing frequency, gaps material the analytical path charges and conclusions to proof findings recommendation.

Here, inas other instances (e.g., Guzzetta v. State Bar p. post, Cal.Rptr. 741 P.2d 172]), [239 neither the nor the ultimate charges findings and conclusions relate individual facts to specific professional Indeed, duties and rules the State Bar Court concludes have been violated. the instant findings only conclusions bear to the general relationship charges and proof; several instances—some significant—conduct charged, or not proved, is found and relied as a basis for upon discipline.1 An factual important dispute obliged which the State Bar Court was resolve de novo has been addressed in both the order to show cause and findings only by a noncommittal against reference to civil verdicts prior petitioner. Assuming the State Bar thereby Court the civil intended adopt findings, the evidence does not support attorney them for disci purposes pline. noted,

As recently we carefully prepared records are essential disciplinary fulfilment the State Bar and this court of our to ensure responsibility Guzzetta, As we imprecision only. noted in such . . of this court work “[n]ot makefs] more difficult since we are forced to determine the discipline basis for the recommended reasoning, brings deductive but question it also into adequacy given of the notice to an at torney disciplinary charges. of the basis (post, p. 1.) at fn. [Citations.]”

932 morally attorneys (Guzzetta, are competent qualified.

that practicing attention We call to the State Bar’s 968.) problems at such supra, post, p. so, that, their recurrence. by confident we will doing prevent that, difficulties, the Bar findings these we State Court’s Despite uphold and, matter, willfully disobeyed orders important in one court another, by judicial client to mislead sought advantage attempting oath duties. extremely attorney’s officer. Both breaches of an are serious lied on several necessarily The valid also findings imply Indeed, disingen- he has exhibited occasions in the disciplinary proceedings. showing understanding uousness lack of candor little throughout, alleged, of the misconduct or of the role the seriousness certain attorney. is therefore discipline duties of an Substantial warranted. evidence, and conclusions are mismatched charges, findings, Because the and, separately be discussed unfortu respects, in a number of each must evidence, In detail. matters of we accord the State nately, some deference, based evalu particularly when findings great Bar Court’s are here. We must credibility, not conclusive findings ations but ourselves, all reasonable doubts in the attor resolving the evidence weigh findings are showing bears the burden ney’s favor. evidence, satisfy may by demonstrating he it by but supported “ to a by convincing . . proof ‘that the . are not sustained charges ” (Alberton 37 Cal.3d 12 v. State Bar certainty.’ reasonable [206 Bar v. State Cal.3d 1177]; Chefsky 686 P.2d Cal.Rptr. 82], added.) 680 P.2d italics Cal.Rptr. [202 Cause The Notice Show 4, 1985, included filed (notice), September notice to cause show incidents, and Dorham matters. In charges Spang to two respect case, in his professional alleged petitioner, as follows: Spang notice 1977 holographic capacity, concerning advised Frances Spang wills, deed, interests in her tenancy and a which joint acquired counsel residence. He “failed advise seek independent legal Spang’s After concerning and to consent get writing.” the transaction died, In probate. ensuing Frances wills for holographic he offered 17, 1983, contest, May about that the 1976 will and deed jury found on or influence, and undue the 1977 procured were will trial, day All or about last fraud. were set aside. On of the contestant, (Amette), threatened Amette Hubbard and later so the will Harass- Prohibiting harassed her that Injunction she “filed a Petition for 15, 1983, Ar- ment” him. against telephoned On or about June petitioner represented nette’s home and her he knew she was though asked to speak by counsel. case,

By his no point actions in the the notice at this (making (1) reference to had know- specific rules) charged petitioner statutes or ingly an to a client with- acquired unfair and unreasonable interest adverse out full disclosure or an for the client to seek advice from opportunity counsel, independent failed to truthful means a (2) employ “[cause] by confided to officer “an artifice or sought judicial and to mislead [him]” law,” false engaged (4) statement of fact or offensive (3) personality, adverse com- attempted represented party, (5) direct communication with dishonesty, (6) mitted an act of moral and violat- turpitude, corruption, ed his oath and duties. matter,

In the alleged Dorham the notice as follows: petitioner represent- ed Kay. Gordon proceeding Judge Dorham in a dissolution before At a 7, 1984, February interlocutory contested on the court an hearing granted decree and made oral and visitation. After a rulings support various counsel, posthearing clarify rulings, by conference to attended both counsel, Cole, court asked the a written de- Christopher prepare wife’s Thereafter, cree. submitted his own order which he proposed petitioner knew or should inaccurate and slanted. Subsequently, have known was at a on his “Motion to Conform Order to the appeared hearing basis, Minutes.” The court the motion as lacking legal reprimanded denied petitioner for a frivolous-motion sanc- pattern deception, granted $250, tions in personally the amount of to be to Cole paid forthwith. Petitioner never the sanction. paid

Thereafter, notice, Kay’s entered courtroom alleged Judge trial, He during jurors present. recess in a criminal while and others were refused, he approached Kay. a bailiff and demanded to see When Judge shouted, “Tell the that this courtroom is not his boudoir” judge private hastily left the room. matter,

By his without charged (again actions the Dorham notice citation of statutes or disre- specific rules) (1) displayed officers, maintain spect judicial the courts and failed to counsel or (2) only those just, actions or he believed untruthful proceedings (3) employed means in artifice and litigation, (4) sought judicial mislead a officer statements, false (5) offensive displayed personality required cause, justice of his give good failed to the obedience due in faith to a order, dishonesty, corruption, court in moral (7) engaged turpitude, violated his oath and duties. peti A a recitation section of the notice contained general separate 6068, matters, tioner, subdivi sections by conduct in both had violated his 6103,3 Business and Professions sions and 61064 of the (a), (b), (d), (f),2 and Code, 5-101,5 7-103,6 Rules of Bar’s of the State 7-105(1)7 and rules and Professional Conduct. Evidence business, elderly an services for legal, personal and performed Fran- with relationship Frances He a Spang. Nick and maintained

couple, heavily for and came to on him depend ces after Nick’s death in she attorney: duty [10(a) sup To part of provides pertinent in is the an 2 Section6068 “[i]t [10(b)To the States and of State. maintain port the Constitution and laws of the United this pur justice [10(d) judicial employ, . . To for the respect courts of officers. . due the [10 truth, maintaining only to him such means as are consistent with pose of the causes confided any judicial by statement judge to mislead or officer an artifice or false and never seek the [10(f) personality, . no fact fact law. . To abstain from all offensive and to advance of or [H]. witness, by justice party required or the of prejudicial reputation to the honor or of a unless allegation .” matter that charged. Despite with he is . . an in the Dorham the cause which jus in its proceeding” without belief petitioner tice, an “action or and] maintain[ed]” “counselled (c), specifically charge a which the notice did not violation of section subdivision actions, duty attorney’s proceedings or defenses as an counsel or maintain such includes “[t]o only just, charged public a appear legal except person with to him or the defense of a as offense.” requir the provides: “A wilful or violation of an order of court Section 6103 disobedience attorney] profession, of his ing or forbear an act connected with or in the course do [an him, forbear, by any ought good of oath taken or in faith to do or violation which he attorney, suspension.” such constitute causes for disbarment or of duties as involving provides part: in act moral tur pertinent “The commission of 4 Section lawyer’s] dishonesty corruption, pitude, or the act committed the course whether [a not, otherwise, or attorney felony or misdemeanor or and whether the act is a relations an suspension.” for or constitutes cause disbarment transac “A of the State shall not enter into a business provides: 5 Rule5-101 member Bar security, pecuni acquire ownership, possessory, an or other knowingly tion a client or ary terms in which member to a client unless the transaction and interest adverse fully disclosed acquires Bar the interest are fair and reasonable to the client are State reasonably writing have to the client manner and terms which should transmitted client, the ad by given opportunity to seek been the client is a reasonable understood transaction, (3) the con independent client vice of of the client’s choice on the counsel writing sents in thereto.” directly or indi “A provides: 6 Rule7-103 member of the State Bar shall not communicate rectly subject of upon he controver party represented with a whom knows to be counsel sy, express apply to communications without the consent of such counsel. This rule shall officer,board, public body.” with a committee or tribunal, a member provides pertinent presenting a part: Rule 7-105 “In matter to to him maintaining causes confided [][](1)Employ, purpose State Bar shall: for the judicial truth, judge, only such means as are and shall not seek mislead consistent with jury by officer or an ...” artifice or false of fact or law. statement formally and assistance in all her affairs. In Frances companionship executed a written will It left the bulk of the estate prepared petitioner. sister, Amette, to Frances’ Amette’s Suzann Hubbard Ed- daughter (Suzann), alternatively wards to an educational trust for Suzann’s minor son Shane Dunn. for Shane and executor of Petitioner was named trastee beneficiary. will but was not a

Frances died on offer the 1974 April 1979. Petitioner did not will Rather, her on probate. wills executed Febru- presented holographic 4, 1976, 15, 1977, house, ary and March both of which left Frances’ asset, estate’s most valuable to petitioner. Suzann, Teal,

Amette by Attorney and offered the 1974 represented will. ensued, Will contests and obtained appointment special admin- istrator of the estate. and Amette Suzann his removal on sought grounds self-interest. While deposing petitioner Teal learned that in regard, 1976, Frances had executed and recorded a deed joint a naming petitioner tenant of her residence.8Amette and filed a petition requesting Suzann joint tenancy influence, deed be set aside on grounds of fraud and undue Code, thus returning the residence to the probate estate. (Prob. 851.5.) § 1980, In January Judge Pfotenhauer entered an order which removed petitioner as personal interest,” representative for “possible conflict of administrator, named Amette special account, directed to file an him ordered to “deliver to Arnette all ... of the property Hubbard forthwith,” estate and restrained him from “selling, hypothecating, [or] transferring any 1980, interest in” the Spang In July residence. Judge Ertola entered a further order clarifying petitioner’s duty to turn over possession “joint tenancy” property, keys including and to realty. deeds Petitioner did not comply either order. 17, 1983, May

On Judge Marie-Victoire entered judgment jury on special verdicts in the consolidated probate action. The jury found that the deed and the holographic wills were procured undue through petitioner’s influence, and that the 1977 holographic will was also procured fraud. The court ruled these documents void and admitted the 1974 will to probate. 1984, appealed judgment, February and in set a court $60,500.

stay Proc., 917.4, bond of (See Code Civ. 917.9.) Apparently §§ petitioner never posted the bond. 27, 1976, will, February days The deed holographic was executed on after the first 19,

was recorded on March 1976. 1983, Teal permission,

In with court May apparently acting late Kokezak, on locksmith, the locks changed Amette Thomas who retained locks did to the new key that her the house. Amette found Subsequently, early peti- In June they changed again. not work and that had been Forc- Obtained to Surrender Possession tioner sent Kokezak a “Demand ible Entry.”9 25, 1984, directing petition- entered a order May Judge specific

On Arata received written er and whether or immediately,” “forthwith any order, “turn . . . Hubbard over to copy administrator] [as residence, her “access and all locks” of the to allow keys home, on the change any property, to the enter locks possession” not to entering her from prevent refrain from acts which would on mailed to using entry Notice of the order was premises. July 1984.

On to hold petitioner December Amette noticed motion declara- May Supporting based on disobedience order. contempt tenants tions Amette and Teal asserted that had installed 27, 1985, hearing as of On after a August February house 1984. 31, contempt. January Judge Wonder filed an holding petitioner order the premises, of again petitioner The order directed to transfer possession require- him If these and it also commanded turn over all rents received. to 1985, 4, to was pay ments not satisfied February petitioner were $100 day compliance. estate in sanctions for each until he was 20, 1985, order contempt On Wonder entered a second Judge June to the orders on his disobedience against continuing based petitioner, 27, made that findings were 1985. May February Specific orders, comply to was able of the petitioner personal knowledge prior was them, willfully. again, petitioner them Once with and had violated rents, and $100-per-day keys, over possession, commanded to turn issuance also directed continued. court sanction for was noncompliance Hub- administrator. of a for the to the premises special writ of possession locks. only by bard possession rechanging regained or- comply he had “refused” acknowledged Petitioner not he did ders of the residence because they insofar as demanded surrender locks, later change then hearing point one 9 Amette testified at that at she had to identity, peti testimony changed found again. them There no direct as to the locksmith’s was locksmith, de particulars tioner’s are of these demand or the relevant dates. Certain order, December special contempt rived from the motion for a dated administrator’s peti copy Bar 23. of the demand and introduced in evidence as State exhibit A disputes none of the tioner to Kokezak is as motion. Petitioner included an exhibit to the facts recited. view, they consider them “valid and to that extent. In legal” administrator, were directed to him as not in his individual special capacity tenant, as deter- surviving joint joint tenancy yet and covered assets not mined to Ertola Judge be of the estate. part probate According petitioner, order, July threatened to hold him in for disobedience to the contempt attorney but an that was order to show cause was never served “because the assigned probate those informed Ertola that the prepare papers Judge jurisdiction joint tenancy court has no over assets.” testified, or-

Similarly, he Arata’s petitioner ignored Judge posijudgment 25, 1984, May der of him removed grounds special on it was directed to administrator, actually to the he held title. individual which capacity hear- technicality,” “It is matter of observed at the disciplinary However, ing, technicality.” “and but at the time the estate nothing law May 1984 sought before Wonder for disobedience to the contempt Judge order, he did not then have grounds possession defended premises, and admitted I not be in of court “Judge contempt Wonder could if I do not a trial to have Petitioner asserts was denied possession.” present fully, this defense but that defense “nonpossession” appears based merely intervening on his of tenants during period. installation contempt claimed he denied a trial at the second again Wonder, to evict hearing before but the court he was Judge attempting told the tenants. about a Finally, hearing at the disciplinary testified asserted, There, third an contempt date. hearing unspecified to deliver judge failing posses- unidentified found him not in contempt sion and him amount- arrearages, allowed to be for rent purged contempt $4,800, ing to some if “which was done.” they days, were within three paid No records of this in evidence.10 proceeding were introduced

The influence evidence of Frances upon fraud and undue highly trial), circumstantial. At the civil trial sometimes called (hereafter relatives—Amette, Suzann, several of her Thomas the decedent’s nephew Frances’ Spang, and Thomas’ mother Marie Page—testified changes reclusive, formerly behavior from 1975 she had Though always onward. heavily relied on and attention these relatives to provide companionship she by as “craved.” She to call or pretexts stop would them employ get on, time, however, often as she After a from 1977 possible. and particularly began by, to hang they stopped refuse admittance up when telephone, supports petitioner’s 10 The Appeal’s unpublished opinion probate appeal Court of in the May claim purged appeal that contempt. he was of The court on dismissed when learning contempt provided he contempt. Upon informed was in that “the order which vacated,” January dismissing “rehearing” appeals granted basis for had been it these 17, 1986. When offered or visits them. outings and decline to leave the house for Maltaman, affairs, Mr. that respond in her she would personal assistance occasion, and sometimes of On lawyer, everything. her would take care that she everything, tearfully, say she that had control would not could and that she to them since he was expected, was afraid speak in. back get could key he and she feared she leave because had weak-willed, ner- Frances as While certain of these witnesses described loneliness, fearful, vous, neurotic, Page said by her easily manipulated that and Amette also testified strong-minded Spang she Was and stubborn.11 found using language Frances without assistance of capable was not wills.12 holographic Vassallo, at testified trial notary public, Charles a real estate broker tenancy deed. Vassallo joint about of the preparation recording Malta, he that the agreed knew as a schoolmate wartime community acknowledged is He further “tight.” Maltese in San Francisco when Maltese matters to occasionally legal referred However, any close social needed. Vassallo disclaimed language ability was lawyer, Page talking years to her Noting Frances’ reluctance in to talk to her before later guy [meaning petitioner].” give impression that of that did her Frances “was ascared All February my other 12 The “This last will and testament. 1976 will reads as follows: my right Spang in state anymore. I I Frances D. Wills have made before do not count mind, my my Personal I at 200 with all the Household will house Waterville Street Person and Dearest things Joseph a Wonderfull after I Die to P.H. Maltaman. He has been my grief leave and sickness. I Friend to me I ever He of me threw have had. has taken care 10,000.00 of Shane Joseph as for the education dollars which P.N. Maltaman has Trust boys. I post.] for these two Dunn He know what to do and Shad Edwards. discussion [See 20,000.00 my my my Suzann M. Hubbard and Niece leave dollars and stock to Sister Amette Living living my F. to the Hubbard one half to each if alive on I leave 1000 dollars death. Brother, Sisters’, among My equal them Nephews Husband and Nieces of Nicholas bond, Funeral, Will, my take Joseph this No and will P.H. Maltaman will take care of written, Wishes, Signed my my my rest if own hand is left on death. This is Will and Calif, Francisco, and dated at San I bom.” where was un- I become get March “If I sicker and weaker and 1977 will reads follows: should business, my myself my able and conserva- guardian care order take I wish and else, my be- my sister Attorney specially tor shall no Friend and Joe Maltaman and one my get out of put cause I I want to know that Joe Maltaman will not me in a home and don’t dollars, my and to gave my own In I 5000.00 home. the chase sure die I sister Amette to gave dollars, schooling of niece I Shane to for the 5000.00 Jo Maltaman 10000.00 dollars college schooling in college boy and Shad in each for ther each shall have 5000.00 dollars my my and Jo fumitor Attorney My Maltaman all is in it and friend and house and my my personal care of belongs, jewlry my take proper. Maltaman will and the rest of Jo say if again I funeral with Shur Will as executor. Co. 25th Mission will take care of this Doctors one orders guardian don’t believ sick shall with and I a Jo Maltaman need my [illegible] put to in and gave me in a home and This written out of house I to him. today Tuesday own hand March 1977 at San Francisco.”

939 any cooperation and he denied relationship petitioner,13 or business with the deed. with petitioner procuring him selected simply Frances had

Vassallo testified he assumed deed was book. The in the telephone brokers among neighborhood Akins, previously Akins had in his office. Mary who worked typed will; again, to the 1974 and was a witness worked part-time petitioner the conse- to Frances Vassallo explained Vassallo denied connection. ac- acting understood and was tenancy. She insisted she joint quences deed, she hurry in a to record the her She was wishes. cording appeared She City purpose. her to Hall for Vassallo to drive pestered oriented, of others. She did seemed to need the support alert and she though deed, simply of the but had advised preparation not indicate that petitioner terms him.14 she was on gave good the impression centered control over Frances’ affairs Specific evidence $5,000 names of account. In savings Bank America around a account, name from the and petitioner’s Amette and Suzann were removed done for “conve- was testified at trial that this was substituted. Petitioner as sudden he checks for such emergencies nience” so that could write death, a account as initially listed the medical After Frances’ expenses.15 asset, on the subsequent accounting, apparently but omitted it in a probate trial, At estate. that as a asset it was not of the premise joint tenancy part expenses.16 testified that it exhausted to death petitioner pay was $10,000 the education also a trust fund for acknowledged the existence of 12, ante.) fn. (See Frances’ Shane Dunn and Shad Edwards. grandnephews, long- had The evidence also that Frances and her relatives discloses Frances standing about where she should live. Amette wished dispute Amette move Frances desired into an mobilehome adjacent Sebastopol; residence, do. to live Arnette refused with her in the San Francisco which counsel, dis acting Vassallo petitioner, On as his own cross-examination who was was proceeding which represented closed that in a dissolution had Vassallo’s wife Vassallo, “disrupted” a business completed. according never capacity, In that engaged. transaction in which Vassallo was then trial, “gathered” said he deposition, portions At his introduced at Vassallo of which were her, ex said, way she everything for “He does advised deed. Vassallo man, very good She man. plained say good He it. . . . She did she liked him a lot. was praised him.” matter, because made deposition At his in the civil said the substitution nec probably wasn’t dependent me. ... It place completely Frances “wanted to herself with essary, to make some except probably the house and wanted me she wouldn’t leave deposition “pathetic.” drawals for her. . . .” He described her in the trial, was a non- testimony petitioner claimed the account deposition prior In the civil alive, that, ownership rights Frances was probate never asserted while asset and said while he “[m]aybe keep it.” I’ll sev- Amette wrote through September

From August In Sebastopol. to eral his Frances urging cooperation getting letters Sebastopol, Amette Suzann in visited September an confrontation over the issue. angry the three had death, began Frances shortly at trial that after Nick’s Petitioner testified reviewing “important pa- him on the companionship pretext calling for her. Petitioner to limit his He sometimes cooked sought He visits. pers.” “nui- Frances as a his actions as charitable and saw regarded testified he sance,” not a friend.17 Frances’ advice offered versions of his varying response trial, he said he did intended to him the house. At

early give 1976 that she advised her “terms” to include the will and not tell Frances what firms names of law attorney. gave neighborhood He two contact another his He then confronted with he had recommended. was which he believed her to There he indicated he told her he did not want testimony. deposition residence, him sure to be any since or was bequest gift him the give he not wish to lawyer-client their did relationship, contested in view of said he advised her to contact In the deposition, petitioner be involved. asked, her to look in attorney?” he told attorney; when she another “Which attorneys. Then “I any [specific] book. did not recommend telephone a deed for that prepare ... to make a deed. I said I would she wanted purpose.” hearing), petition- called hearing (hereafter

At the sometimes disciplinary executing or bequeathing er that he Mrs. testified “dissuade[d] times, he denied as a tenant.” At all grant naming joint deed [him] execution, indirect, recording or in the drafting, direct or participation, will holographic He the 1977 any of the documents.18 claimed challenged only after Frances’ death. discovered that, wage dispute proceeding, representing There her in an earlier was evidence while arose wage dispute “partially completely had described Frances as senile.” claiming had been she petitioner stopped payment housekeeper, when to a on Frances’ check overpaid. pre use in description for hearing, petitioner property At the Frances had a testified that deed, joint ten paring joint tenancy already naming and Nick existed her since deed Nick’s, substituting ants. name for prepare Petitioner said him she asked deed holographic Iwill refused. Petitioner she me the first [asked] recounted that “when showed will, idea,. she helped you you responded her gave who this . . .” She and who Dunbar, grants if she attorney, “that apparently heard a radio talk Mr. an who said Pe property during contest it.” somebody, able to her lifetime to her relatives would never be holograph the first hearing titioner also reiterated at the him his claim that when she showed will, contested, asked When she going they ic “I told her this will is to be will succeed.” chose, why give be an attor happen she could not the house to “I told her I whomever she ney.” trial, she continuing At fear that petitioner had mentioned Frances’ hearing, out and At the put placed would of her house a home. woman, lonely forgive that she did not

testified Frances “was indeed and live her.” her sister for not with coming down Sebastopol Finally, Amette occasions hearing during testified at that on two courthouse corridor. litigation, she encountered probate petitioner occasion, On each she asked to be allowed into the to retrieve person- house al that the in it was everything house and property. responded his, he had sold or to the and Amette given everything Army, Salvation only enter body.”19 would “over his dead When she would not let she vowed it, away him get “said he’d Maltese Mafia after petitioner send his me.” matter,

With respect to the the referee made specific findings, not, by the that adopted (1) review “did after department, petitioner acquir- ing knowledge wills], and advise to seek holographic [deed [Frances] counsel,” that a independent legal (2) was entered on judgment special verdicts fraud undue influence in and finding (but the deed wills that deed and wills had in been fraud procured by or that undue fact entered, influence actually that the two orders were occurred), (3) contempt (4) “petitioner consistently years that has over the 1976 through March with, disregarded, failed to comply legal, valid and no- ignored ticed court orders and that proceedings,” petitioner “repeatedly refused Bar,” cooperate with the State personally attempt- home, ed to contact Suzann knowing represented by at Amette Teal was and without Teal’s consent.20

The Dorham Evidence Gordon C. Dorham retained (Gordon) petitioner in dissolution matter. 7, Gordon’s wife Ruthelle represented Attorney Febmary was Cole. On 19 Among house, testified, $850 the items never recovered from the Amette was in cash kept emergencies. Frances finding personal latter generally 20 This of unauthorized communication conforms to the charge attempted finding contact is such about June 1983.” The “[o]n supported testimony a citation to State 5 and civil trial Ar Bar exhibits which are the however, respectively. nette and Suzann testimony, Our of that no evi examination discloses dence whatever that personally Frances’ death and contacted Amette’s home after Amette had represent probate retained Teal her in Both Amette and Su matter. after service, zann testified to graveside conversations at funeral and Amette men Frances’ conversations, tioned courthouse petitioner. initiated also said she received none Amette day began. (See threats from caller discus on the before the trial contest of the will female incidents, Nor, however, post.) finding describing. These appear sion obviously, do not to be what the Amette, finding can refer Su Sebastopol, to which visit to That, zann, course, died, all can long testified. occurred Frances before finding adversary. (See the basis for a represented not be contact dis unauthorized with a post.) cussion in Kay Judge Department held before a contested hearing transcribed.

early of but not reported which were portions interlocutory an Kay orally granted Judge In transcribed portion, support, After child and rulings. setting spousal and made decree other oral Jr., son, Gordon, small custody couple’s he awarded of joint legal visitation to custody enjoy in Ruthelle. Gordon was out-of-home physical notice, 24 hours every upon hours odd weekend rights (1) as follows: two month, hour, (3) 6 15th of the and 7 each p.m., one additional between (2) Christmas, Easter, Gordon, Jr., years age, every three of once reached Birthday, Day and Labor even-numbered July, Fourth of Washington’s Day, and Memorial every Day, Thanksgiving, Year’s and years, and New once birthdays, years, (4) the child’s and father’s odd-numbered weekends, 6 Gordon, Jr., all first third years reached five of age, about Sunday. No made on the record Friday 6 mention was to p.m. p.m. satisfy to wages sup- Gordon’s or benefits assignments garnishments obligations.21 port decree, Cole, 9, 1984, interlocutory by drafted

On March a formal in the transcribed filed. In to the matters addressed expressly addition wage February present of the 7 it that hearing, provided (1) portion “[t]he effect,” to new Or- remain in as “modified reflect these assignment shall $100.00 ders,” withheld shall remain at per that to be arrearages “[t]he full,” $650 that month until the are arrearages paid “[o]f . Vacation Trust held the Sheriff. . after money garnishing [Gordon’s] the spousal be be towards Fund” should released Ruthelle “to applied with the February arrearages,” child 1984 and towards due for support be remainder to released Gordon. 15, 1984, “Conforming

On entitled March noticed motion sheet, 28 (Judge Department order to and as announced.” On the face hearing. Attached was Kay’s in as the site of the department) was typed motion, Gordon declared In the proposed “conforming” order. notice day, Fa- visitation under for an additional penalty perjury except during mentioned Day, “inadvertently ther’s omitted and not which was 21 . . “. Court February hearing as follows: pertinent, Insofar as of the read minutes $200/month custody; grants interlocutory, community joint legal property. Court orders no January Hus year $350/month 1985. ending end of support; spousal support child as of for wife; Plysical custody visita husband plan/other plans. band maintain health benefit [sz'c] - home; ba month same every 15 of each rights tion out of th one or two hours other weekend Christmas, holidays: years following p.m. years sis from minor 3 old even 6:00-7:00 When - Day, Easter, years Year’s July, Day Washington’s Birthday; New odd 4th Labor years of birthday. Day, birthday respondent’s After Thanksgiving, child’s [M]emorial Attorneys’ Sunday . fees starting Friday pm pm.. . age, 6:00 6:00 1st and 3rd weekends at $2,500 prepared.” judgment . . . total. Direct trial,” court after “is the order made this proposed attached order hearing immediately as the same was from the bench at pronounced . close of trial. . .” The notice also order is not “[p]resent asserted evidence, supported & without trial thereon.” by (1) order differed from the as filed proposed judgment adding Day day Father’s as a visitation in all years (while father’s omitting birthday odd-numbered full years), (2) weekend visits to providing Gordon, Jr., five, begin when rather reached three than an (3) including visitation, annual summer all commencing (4) omitting and refer- ences garnishment to and vacation fund. wage trust 4, 1984,

Ruthelle filed an opposition, April on filed a on “response” Gordon’s behalf. There petitioner “declare[dj” on “personal other that knowledge,” among things, proposed his judgment “entirely was by supported” the trial record and the court minutes for addition of except visitation, Day Father’s deliberately that court emphatically “[t]he refused to make any ruling wage assignment,” on he that was “not seeking a new trial nor an for (Italics order modification.” added.)

Petitioner’s included no “response” reference to the typed department However, which matter to was be heard. the face of the filed document bore the handwritten notation 13 4-6-84.” “Dept. Department 13 was the domestic relations department.

Apparently, both counsel before appeared Judge Grant of Department on 6. She April reassigned the matter to Department it where was heard by Kay Judge on April Judge Kay 19. sarcastically announced it as a motion, in “unique” effect an appeal to the court’s clerk of order pro- nounced and He signed. immediately demanded to know petitioner’s “statu- tory authority” for the motion. responded that a it was “com- procedure monsense” necessary because the written judgment prepared “my did not opponent” conform to the oral order. permitting

Without further argument, Judge Kay a then delivered heated matters, said, lecture. Despite other he pressing petitioner’s though basis, motion no statutory both carefully he and his clerk had reviewed they minutes the “verbatim transcript;” every found that “each separate order” in the submitted than proposal petitioner was “different that I which have The court that fail- pronounced.” suggested petitioner’s ure to 28” on type “Department response his the matter to be caused . . . “naturally 13. Department misdirected” It deemed the proposed order “contemptuous,” saying petitioner lucky should “thank stars” [his] that “I am hold a The was going contempt hearing.” motion denied that, he was though The

“with extreme court advised prejudice.” here,” and take “entirely remedy his “to order a wrong transcript was an . . .” appeal, afternoon,” Cole but curtly “good

At the court bid counsel point, on frivolous inteijected a for fees request ruling request for As about complain motion. argument began, petitioner interrupted his client should why court’s use of the word and asked “contemptuous” re- Kay be an subjected expense Judge now the additional appeal. deliberately pre- “contemptuous sponded thought petitioner every order;” it could inaccurate false not otherwise so paring order, “a unsigned, perma- The court said it had made respect. anybody nent to look at.” part of files you’d ... If then occurred: following interchange “The Court: like, you If I State you right will cite Bar now. [fl] Mr. Maltaman: so, ahead, I do to do Your Honor. so. go wish Mr. [fl] The Court: fl[] Honor, Because, I think I take on the Your would like to issue Maltaman: every I in contemptuous respect, that said was I was question wrong [fl] All I I State Bar to such right. you disciplin- do so. cite to the The Court: may ary they deem proceedings appropriate, Mr. Maltaman: [fl] face, All I be very glad right.” Which would to The Court: [fl] sanctions, $250 to frivolous-delay paid in be The court Cole granted 128.5. Code of Civil Procedure section petitioner personally pursuant $650 garnished objected signed judgment wrongly Petitioner then that the in arrearages applied against from Gordon’s vacation trust fund be not make that the court “did and child Petitioner noted spousal support. February hearing. responded in The court rulings” that at the respect agreed it had it alone.” Petitioner “specifically stated I was leave going but the court the wage assignment had said it not touch” going “was $650 again garnishment. claimed that order supported no prior as it remain court that would by remarking concluded discussion “[i]t words, was, Mr. Malta- that’s only you clear can those meaning put .” man. . . an Kay

At the testified that Judge Cole and disciplinary hearing, both February report- unreported immediately conference took after the place said, oral ed of the court’s hearing. purpose, they clarify portions Its was to detailed ruling. Both stated that attended and that counsel took notes. meeting. Petitioner denied he at the present was included, that to the

Cole testified discussion addition posthearing issues, visitation that needed “something regarding wage assignment , garnisheed had been money . . . [Gordon’s] clarified and some fund, garnisheed wage assignment things, Those vacation [fl] his notes reviewed Cole had not to the trial.” money prior had been done assert- Kay testimony. simply Judge conference before posthearing was ed, judgment proposed “[not] stating specifics, petitioner’s without ruling.” consistent with the court’s Depart- between mixup to the respect

There sharp disputes were a superior testified she was 28. Julie DeChavez ment 13 and Department to April 13. Prior in Department clerk 1984 worked April court who (i.e., case the Dorham Kay whether Judge asking she received a call from 13. She checked set in conform) Department motion to was petitioner’s on the face of was; indicating setting initial such found it her own 28. Judge Department did specify motion which original papers, petitioner’s set in De- have been that the matter should Kay confirmed to DeChavez matter was why the to determine 28. DeChavez called partment Grant Kay Judge 13; “Judge indicated that in Department this, DeChavez about it.” From already talked Department [of 13] 13. DeCha- the matter heard Department inferred that wished She did Kay petitioner’s response. vez called back and Judge reported and did not know response papers 13” on “Department write who had. 13 on in Department notice to appear testified that he received some

Cole 13 then rerouted date. The hearing presiding judge Department peti- conversation with 28. recalled a telephone matter to Cole Department not recall its contents. to the but could hearing, tioner prior clerk, said Kay’s who Judge a call from Petitioner testified he received not Kay did Judge since Department the matter was rerouted to being Later, say to phoned matters. DeChavez usually handle domestic relations asked what but agreed it not be 13. Petitioner Department would heard taken off DeChavez advised it would would to the motion. happen result, petitioner to avoid that Seeking calendar rather than rescheduled. 13, advise he and Cole suggested appear Department to DeChavez that In a matter. reassigning of the and obtain an order Judge Grant mixup, conversation, denied to this agreed procedure. Cole telephone 13” notation. any knowledge about the “Department in late 1984. Kay’s April bailiff Judge Thomas testified he was Catchings in the notice. more or less as set forth He recounted the “boudoir” incident to remark report petitioner’s He that he into chambers to indicated went courtroom, was gone. Kay; they returned to the Judge when cross-examination emerges from his Petitioner’s version of this incident on the directly testified Catchings argument; and his never opening only Kay’s He courtroom Judge matter. to establish that he entered sought him there; him arid told he was examine records the bailiff approached last not about “what occurred Judge Kay upset welcome because was still week” at this (presumably hearing). point, petitioner It was April that he made the “boudoir” remark. suggested, matter, by the specific findings, adopted In the Dorham the referee made at confer- department, present posthearing review that that or- ence; many filed a order “differing particulars proposed . . . the matter to be misdirected by Judge;” dered and clarified caused failed, refused, 13; intentionally wholly neglected” “has Department order; and made the “bou- with court’s frivolous-sanction comply voice, manner, doir” “in a tone and loudness to be heard others remark statutory no conclusion that present.” pro- Also included was a “[t]here cedure, law, file a motion motion such prepare [petitioner’s conform].”

Discussion Bar Court also made findings, In addition to its the State incident-specific that had refused to general findings “repeatedly cooperate Bar,” moral and had violated turpitude, had committed acts of State (d), and (a), (b), sections subdivisions Business and Professions Code 5-101, 7-103, and 7-105 of the Rules of (f), and rules like the do relate findings, charges, Professional Conduct. Since the misconduct, we must discern rules and statutes to individual acts these reasoning. deductive relationship conclusion We infer the State Bar Court’s proffering wills, fraud and through deed which he holographic procured influence, the wrong depart- undue Dorham matter to (2) misdirecting ment, Dorham order for in the knowingly signature false (3) offering case, 6068, 7-105(1) subdivision and rule (d) violated sections judi- to mislead (both untruthful means forbidding litigation attempts his willful cial officers). We the State Bar Court concluded that assume cases, violated sec- failure to in both with court orders comply 6068, laws and attorney tions an to (a) support subdivision (requiring orders). 6103 to court Constitution) (forbidding and bad-faith disobedience that, It and wills further deed procuring Spang concluded apparently counsel, 5- rule without violated directing independent Frances an attorney may acquire 101 circumstances which an (governing client). interest adverse to his

947 Amette dur- communicate with The that finding petitioner attempted he violat- conclusion that is the basis for the ing the will contest apparently that an knowledge with ed rule 7-103 such communication (forbidding remark apparently prompted adverse The “boudoir” party represented). 6068, (b) (respect subdivisions the determinations that he violated section required not judicial officers) (d) (offensive personality for courts and the citation moral finding turpitude, The of justice). general refer to grounds discipline), apparently section 6106 (moral turpitude acts, with respect the disobedience found deceptive misleading and Dorham matters. to both Spang instances the evidence does numerous suggests We that there are agree important and conclusions.

support findings evidentiary deficiencies. Bar Court noted the civil determination State case, influence in the but the civil verdict

committed fraud and undue from the significance apart underlying have no judgment disciplinary validity of if strong presumption sup facts. While the civil bear a findings evidence, them by substantial we must nonetheless assess indepen ported the more standard of dently stringent proof applicable disciplinary under (In 374, 348, re 10 Cal.3d 377 Wright (1973) Cal.Rptr. proceedings. [110 189, 515 v. Bar 64 Cal.2d 192-193 292]; (1966) P.2d State [49 Lefner cf., 296, 410 Bernstein v. Committee Bar Examiners 832]; P.2d Cal.Rptr. 106, 101 443 Cal.Rptr. 570].) 69 Cal.2d P.2d (1968) [70 We at the disciplinary hearing22 find that the evidence produced claims “by fails and undue influence support convincing proof of fraud certainty.” and to a reasonable Petitioner concedes he had confidential There is substantial evidence of her relationship dependent Frances. nature, of in her affairs and of a generally, suspicious influence family (though dispute him over her close relatives disposition favoring However, a may decision). over her living arrangements explain fortiori, (and, fraud) influence also re finding or undue presumption actively evidence that the accused quires person participated affirmative Fritschi 60 challenged. (Estate document procuring specific Estate Mann 656]; Cal.2d 384 P.2d Cal.Rptr. [33 Cal.Rptr. 225].) 606-607 Cal.App.3d [229 inference stages, Petitioner denied such at all participation Several witnesses testified contrary only to the is based on speculation. 7; testimony through excerpts Bar from the civil as its exhibits The State introduced testimony testimony live of minor at the civil trial was not included. Additional witnesses hearing. presented disciplinary at was the she feared

about statements that “had control” and that Frances’ him, had but no one indicated she ever said that petitioner participated, joint tenancy in or directly indirectly, or either the handwritten wills the Vassallo, that presence, deed. She insisted to the broker out of petitioner’s took she her in the deed. She acting according executing was to own wishes strong accomplished. initiative with Vassallo that matter getting (Frances Vassallo’s Maltese is somewhat Though background suspicious any not in the Maltese), strongly was he denied contact with petitioner matter. the wills indicated holographic

Witnesses testified that words used the assistance, great sophistication outside but our examination reveals no fn. grammar. (See ante.) jury may their The civil have provisions assumed, contrary testimony, that he not atten- give to would petitioner’s “senile,” he tion to he found and a “nuisance” unless “pathetic,” someone may in return. It inferred that something intended to obtain also have being Frances’ fears of forced petitioner played upon well-documented however, only her We that Again, conjectures.23 home. these are conclude “reasonably of direct in the “convincing” proof participation certain” wills is lacking.24 deed and holographic 5-101, rule proof prohibiting

Petitioner also finds no violated a client. Again, the of interests adverse to the conten acquisition improper Bar the violation consisted in tion has merit. The State Court indicates to counsel when she told him to advise Frances consult failing independent only jury’s finding pro for the that the 1977 will was speculate One can on the basis else, spe will nominates “and no one curred fraud. We note that Frances’ 1977 arise, my [petitioner] cially that need “because I know that sister” as her conservator should my put get I out of own home.” The will later re will me in a home and don’t want put inme a home and out of the peats “shall be the one with orders not to during Sebastopol, peti gave also his 1977 visit to I to him.” There was evidence that house Perhaps jury peti begged help put Frances in a home. inferred that Amette to him tioner thereby provide for title reneged promise lifetime home care return on tioner is, course, promise. no evidence of such There direct residence. judgment, Appeal affirming the civil the Court found unpublished opinion In its jury It that the could findings influence. ruled for the of fraud undue sufficient evidence (1) holographic evidence that participation in wills from petitioner’s infer the deed active affairs, will, (2) utterly dependent him in all her was on prepared he had Frances’ 1974 she documents, challenged (3) phrases in the to use certain words she lacked education friend, deed, boyhood Vassallo, prepare petitioner’s used to the Maltese broker presumption acting petitioner’s advice. Once “assumed” Frances was Vassallo arose, court, jury whether was entitled to decide of undue said the influence principle that all applied appellate-review adequate The court denials were an rebuttal. contrary favorably party, “disregardpng] the show- prevailing to the facts are viewed most Appeal overstated disciplinary suggests Court of ing.” record A examination of close noted, event, evi- previously “substantial against petitioner. In certain of the evidence necessarily “convincing proof. . . a reasonable judgment is not support the civil dence” certainty,” impose discipline. find in order to which we must that suggestion petition- she intended to him her house. The State Bar’s give deposition, er conceded the trial is incorrect. In his civil at the civil point attorneys” but did any said he “did not recommend petitioner [specific] trial, he lawyer. At advise Frances to look in the book for another telephone firms, first reviewing deposi- said he recommended but after specific two correct, attor- tion I her to agreed, “Maybe that is did not recommend . . . .” ney, (Italics added.) course,

Of 5-101 the recom- in the letter or of rule nothing spirit requires client be lawyers. wisely mendation of The rule that the specific provides given the to consult counsel “of opportunity independent her] [his attorney choice.” well might recommendations an interested Specific inhibit, aid, advice. We find objective rather than the client’s effort to obtain no for opportunity evidence that failed to afford Frances an consultation with counsel.25 independent

Further, noted find no for previously (fn. ante), support we the State Bar Court’s that to contact finding attempted personally Amette at home after trial she was counsel. Neither the civil represented nor the disciplinary hearing entirely included evidence to that effect.26Also tell, so far unsupported, as we can is the that finding petitioner “repeatedly refused to with the Bar” cooperate State to the matter. respect Spang

The State Bar Court found a long history of “valid and ignoring case, noticed court orders” in the and that petitioner was twice cited contempt that matter. We must assume this evidence and finding 25Alternatively, petitioner suggests duty attorney no arises under rule 5-101 when the seeks participation grant avoid all plausi the client’s efforts to him benefits. The contention is precludes lawyer “enterpng] ble. The rule a business transaction” with a client or “knowingly acquirpng] ownership, possessory, security an pecuniary or other interest ad fair, reasonable, verse to a client” fully unless the transaction is disclosed in under terms, (2) given standable opportunity” client “is a reasonable to seek the advice of inde counsel, pendent writing. “knowingly acquire” client consents in While the phrase capable application, of broad requirements prac at least two of the rule’s have little application lawyer tical sought to a situation in which the benefitted to avoid the transaction. charge during The notice had also included a threatened Amette the trial sought injunction. and later so harrassed her that she an Evidence was introduced at the dis ciplinary hearing during threatened a courthouse confrontation to send “the (ante p. 941), responded by Maltese Mafia” erecting after Amette at and that she locked gates day stone and electric wires around her home. Amette also testified that I before “[t]he lady, go got phone spoke English, was to cent, to court I call and it was a and she broken an ac court, dead,’ says you go you’re and then and she do not she screamed ‘or and she banged up phone. (The petitioner, . . .” discloses that parents, record bom to Maltese mother.) deny lived with his either the Petitioner does “Maltese Mafia” threat or that in junctive occurred; only suggests, disingenuously, proceedings that the State Bar did not this, Despite finding introduce evidence of their outcome. all the State Bar Court made no charge threats and harrassment. However, as disciplinary peti- in the recommendation. weighed significantly out, and allegations, objected tioner the notice included no such he points on the when counsel for State Bar to introduce evidence attempted subject. Bar’s that notice provide explicitly

The State Rules Procedure “[t]he rules, statutes, . . to have violat- . cite the or court orders been alleged shall ed, shall in concise specify or to afford the basis for action proposed, acts, violation or alleged terms the omissions or which constitute facts violations, . . .” italics (Rule or the basis for action proposed. also, be “informality” Yet the that shall added.) provides pleading rule ignored. pleading proof may Even a “material” between variance terms, “just” an and a variance shall not be cured amendment “actually party deemed “material” unless it misled the adverse to his preju- .” or . . Civ. upon (Code dice in his action defense the merits. maintaining Proc., added.) italics § his in the objection

When to the evidence of disobedience petitioner’s overruled, he no that evi- sought matter was continuance meet dence, his through but an of his conduct own testimo- provided explanation discussion, he ny. Significantly, he does not claim was (See post.) prevented defense, in his and he arguments other evidence or any presenting is no Accordingly, before us. there arguments asserts no new evidence or his “actually prejudice” by he was misled ... that basis for conclusion We do not condone charges and the evidence. variance between attorney’s sensitive an cases are imprecise disciplinary charging However, no we see claim notice. inadequate that he was prejudiced finding evidence and here to of the obstacle our consideration disobedience. did not violate the his noncompliance contends that next relevant, section Business and Professions Code

only deems prohibition he attorney disobeys a court 6103. when an That section authorizes discipline with or order “connected in the course or forbear an act requiring him to do forbear, . . .” or . faith to do profession, ought good which We (Italics Here, private litigant. he acted as a added.) urges, agree violation of finding there no Court’s basis for the State Bar orders directed section 6103 noncompliance occurred. Petitioner’s him did possession, as a removed or as a claimant personal representative, simply occur of his profession” connection in the course or “[in with] because he is a lawyer.

However, finding Bar Court’s overlooks State he also violated and 6106 of the (a) (b), sections subdivisions attorney Business and Professions Code. an obliges “sup Section “maintain due to port (subd. respect Constitution and laws” (a)) justice courts of officers” Under section judicial (subd. (b)). “any dishonesty act moral or whether the involving corruption, turpitude, otherwise, act is attorney committed in the course his relations as an . . . lawyer’s] constitutes cause for disbarment or suspension.” (Italics [a that, circumstances, added.) We conclude under certain an attor disobedience, ney’s even when he acts in a nonprofessional or personal 6068, violates section capacity, (a) (b), subdivisions and constitutes “moral within turpitude” of section 6106. meaning every

Not act of disobedience which 6103 if would violate section com lawyer mitted while as a also acting constitutes a violation of the other cited sections when committed an attorney in his private capacity. Otherwise section 6103’s phrase “acts connected with or in the course of his profes sion” would be But superfluous. serious and fundamental of obstructions the judicial system the member has sworn to willfully committed uphold, faith, bad suggest a of lapse character and a the legal for disrespect system which bear directly attorney’s on the fitness to law. practice (Cf. v. 214, Morrison State Board Education 1 Cal. 3d 220 (1969) et seq. [82 175, Cal.Rptr. 461 P.2d 375].) course, Of no attorney should be acting good sanctioned simply faith on a plausible claim of 31 right. (Cf., Marriage Flaherty (1982) In re Cal.3d Thus, 650 Cal.Rptr. 646 179].) noncompliance P.2d [183 involves moral turpitude for attorney if acted disciplinary only the purposes in either “objective” or “subjective” if bad faith. “Bad faith” is established (1) no plausible existed, ground for attorney did noncompliance not believe he had even if such plausible grounds for noncompliance, grounds arguably existed. (Cf., Flaherty, 649-650.) at supra, pp.

burden of rea establishing moral and to a “by convincing turpitude proof certainty” sonable rests with the State Bar.

Petitioner’s “serious and fundamental” noncompliance was enough to support a he acted in bad finding assuming of moral turpitude, faith. The orders he transfer of estate assets to ignored directed the decedent’s noncom personal and heir. Petitioner’s representative persistent pliance no in the produced litigation process. mere minor inconvenience Rather, delay by years predictable effect of his disobedience was to possession of owners. property rightful value its significant most, all, however, if he is accused urges, of the orders invalid, of disobeying technically duty were him of the relieving comply. 952 became final technical extent the orders

Such are waived arguments right in the can be belief challenge. plausible There no without appropriate final, invalid. considers personally orders one ignore unchallengeable from 197627 history extending of disobedience The State Bar Court cites Nonetheless, 1983 it that the orders issued appears 1985. before joint tenancy beyond deed were probate aside the judgment setting void. jurisdiction court’s and therefore limited, includes the to remove jurisdiction, though power

Probate adverse to specific property who claim interests personal representatives Code, Wemyss (1975) 521 et see Estate (Prob. seq.; estate § v. Gross Cal.App.3d Cal.Rptr. 134]; Needham [122 to adjudicate such claims Cal.App.2d Cal.Rptr. 664]) [7 Code, 152 851.5 et Estate (Prob. seq.; Cal.App.3d § of Drucker However, claim]). we find no tenancy 511-512 Cal.Rptr. [joint 345] [199 for a removed statutory or constitutional basis an order that representative, tenant, a surviving a claim that he is joint who under possesses property his successor before his probate must nonetheless surrender the to property 851.5, claim been Under Probate Code section adjudicated. has estate, a decedent’s against peti where one claims ownership property or may by either the claimant the adminis tion to resolve the claim be filed Proc., may 409) A Civ. (see of the lis Code pendens trator estate. § That, realty. to dispute respect such title recorded to disclose surrender, statutory means pre be the to appears rather than forced is resolved. dispute alienation until the venting Moreover, issued in the “surrender” orders the prejudgment 1240 lists the appealable Probate Code section case were nonappealable. court, the list has been long of the probate orders judgments and 45 54 Cal.2d Estate (E.g., deemed exclusive. [286 ofSchechtman a to surrender representative prop directing P.2d An order 345].) deposed erty is not included.28 to his successor through pro disobeyed in 1979. The It is what orders difficult to discern and the orders mentioned bate until after Frances’ death matter was not commenced in the record all date from 1980 onward. “ Code, [granting 1240 are those Among appealable Probate section the orders made (a).) provision But this testamentary (Subd. or does revoking letters or of administration.” per Section 1240 appear encompass subsequent for surrender assets. also order appeal- administrator” appeal “[(Instructing directing

mits an or from an or executor order statutorily petition (Subd. (/).) language proceeding, a for in able. But relates to a limited this Code, Finally, 588.) (Prob. we are not representative structions made con § himself. (id., 1240, “[sjettling or cerned here with orders an account of an executor administrator” § Thus, orders, only review alter prejudgment as to the jurisdictional raise the issue extraordinary natives to seek relief were contempt There were no proceedings. pretrial proceedings, contempt finding a “bad faith” susceptible simply we do not consider cf., extraordinary (But seek review of the orders. because he declined to record 7-106(A).) ABA Code DR The contains Responsibility, Model Prof. actually belief in legal right no evidence that lacked a orders. ignore prejudgment court,

In to this the State Bar focuses on the /wstjudgment its brief two citations as for the grounds discipline recommended. contempt of a ground mere fact citation is no an contempt discipline attorney.29 however, We agree, that the circumstances of petitioner’s postjudg ment demonstrate “bad faith” noncompliance disobedience which would warrant discipline. orders,

Unlike the earlier the postjudgment commands to surrender pos- session of the Spang clearly residence were within the fundamental court’s jurisdiction over subject parties With matter. as an active final, litigant, the court had entered a self-executing judgment which direct- ly entitled special administrator of possession premises. (See the Code, 852, Prob. 853.) Since petitioner stay to bond set post failed the §§ court, the probate the judgment was not stayed Civ. pending (Code appeal. Proc., 917.4, 917.9.) §§ orders,

The postjudgment “surrender” like their counterparts, pretrial Code, were nonappealable. (See they Prob. 1240.) urges Petitioner now § defective, were procedurally again him they because were not to addressed in the correct capacity,30and they because not “writs did constitute proper of Code, possession.” (See 1230; Proc., Prob. et Code Civ. 712.010 § §§ However, seq., discloses, 715.010 et seq.) far so as the record ; (id., (k)), “[d]irecting subd. . payment (m)), . the of a claim” subd. or debt [or] “[distributing property” (id., (p)). subd. 29 do, however, Amendments to the State Bar expressly Act in 1986 that the State require “any Bar judicial of imposed against attorney, except sanctions sanctions [an] notified discovery monetary failure to make ($1,000).” sanctions of less than one dollars thousand Code, (Bus. 6089, & (b).) Prof. subd. § 1984, argument apparently 30 This May stems from the fact that order of drafted the Teal, Administrator, captioned of Compelling Suspended “Order and Further Orders Instructing sug Court Representative." Nothing subsequent Personal orders else this or gests petitioner only was being capacity representative ordered to act in his of former estate. Instead, de- never these cited for contempt. raised when twice points disingenuous fenses to unmeri- patently he claims have were presented torious, not good- did stem from an actual noncompliance suggesting faith legal right. belief in in the “inability” contempt said he raised defense first January 1985. The that he implication was place which took

proceeding, of the residence to Amette because he could then turn over possession not But currently possession. May were had tenants who installed that; from just him disobeying prohibited doing order he accused of immediately” keys, to turn over it “forthwith and commanded locks, refrain from possession,” changing allow Amette “access nature, any prevent obtaining] which would avoid acts “of [Amette no peti The record contains evidence property. access and use of” the it was May with the terms order when ability comply tioner lacked event, by willfully avoid and fraudu contempt he could not issued. In re Cardella ability comply. (See, e.g., In lently himself of the depriving he review of 908].) sought P.2d And no (1941) Cal.App.2d [117 judgment. contempt against to defend the second attempted testified he Similarly, petitioner he had been able by showing yet in June judgment, contempt the terms of the order ignores defense patently his tenants. Yet this evict January citation. underlay second contempt January which tenants; it to transfer directed order eviction require did not rents collected. There is previously and to over pay possession” “control and ability the lease or rental assign lacked the no ever evidence no review.31 arrearages. sought agreement Again, pay inference that Thus, any objections to the post- the record supports if are after- plausible, even judgment petitioner, now raised orders that noncompli- and his thoughts, fraudulently, he the orders that evaded basis, this the evidence ance it occurred. On was in bad faith at the time in the disobedience postjudgment warrants that petitioner’s the conclusion in Business and Profes- as described turpitude, case involved moral system, sions judicial for law and disrespect Code section proscribed Code 6068. by and Professions section Business matter,

In that the Dorham Bar Court found concluded State law, petitioner means filed a used deceitful motion authorized contempt hearings. The complains issue he received no trial at either of the full event, judgments. contempt failure In it is irrelevant waived his to seek review of the noncompliance turpitude. to whether his was in bad and thus moral faith constituted order, willfully disobeyed offensive litigation, displayed a sanctions we must personality demonstrating disrespect judicial Again, officer. separate wheat from chaff. essentially

It that made an audible sarcas- appears undisputed tic remark Judge Kay judge’s about while in the court- standing occupied room, that, excuse, Attorney without has never Cole apparently paid he $250 in sanctions are Judge Kay. ordered The other issues more complicated.

The conclusion that “statutory filed motion without in law” is Though erroneous. has never the statu supplied [basis] tory authority for motion and has differently described the relief sought occasions, on various the motion itself indicates it seeks to conform the judgment written to the court’s oral ruling minutes. Whatever the merits of the request, it authorized under Code of Civil Procedure section court, motion, which paragraph permits the “correct clerical entered, mistakes its judgments or orders as so as to conform directed,. the judgment or order .”32 . .

The evidence that petitioner “caused” his motion to be misdirected away from Judge Kay is close. His original motion papers designated correct court superior department, and there was no direct he was evidence for the responsible handwritten 13” on “Dept. finding the response. seems based on that, DeChavez’s testimony why when explain asked to matter was calendared in Department ambiguously answered that Judge Grant and Judge Kay “had already talked about it.” conversation,

Petitioner presented a different version of the DeChavez saying he agreed the matter should an go 28 but Department proposed initial appearance Department rescheduling. solely for purposes Since neither corroborated, version is credibility which is one of dispute the State Bar Court resolved against We to that determina- petitioner. defer it, tion. Applying we find that disingenuous, unhelpful, apparently false statement an DeChavez inference supports basis, sought confusion, to exploit the On scheduling created. however we uphold effect, deceitfully the State Bar finding, Court’s that petitioner misdirected his motion to the wrong court department. 32 event, In puzzling Kay upon we find Judge the the Bar Court focus both and State allegedly the good petitioner’s interposed “unauthorized” in nature of motion. A motion faith grounds simply could never be discipline premise on the that the motion was law, expressly recognized

then or in statute. that, at both the

The although present State Bar Court also found clarification case at a posthearing contested in the Dorham hearing conference, many particulars filed order differing “a proposed necessary inference . . . Judge.” from that ordered and clarified the knew his conclusion) is that (in view of the “deceitful means” to the court. and intended mislead order was inaccurate proposed did from materially order differ The visitation provisions petitioner’s 7, 1984, February orally hearing at the pronounced reported those However, the leaves unclear what that record hearing. from the minutes of at February of the portions hearing was discussed in untranscribed 7, the court had February conference. Before the unreported posthearing wage on matters. interlocutory assignment rulings rendered apparently date, but, of that mentioned in the oral reported rulings These were not Cole, meet- they subsequent unreported to were discussed at the according decree, court, Attorney wage the referred to signed Cole’s draft ing. matters, materially from re- and in it differed the assignment respect that the Petitioner’s eliminated references ported pronouncement. oral proposal extent, more assignment; to version conformed wage that judgment. the closely signed to the oral than did pronouncement conform, de- In his motion response opposition refused” to rule on deliberately emphatically clared that court “[t]he Judge Kay agreed At hearing, issues. wage assignment April remarks those issues. These the court had said it “was not touch” going discussion, Kay and Judge some apparently during unreported occurred “would remain as it was.” indicated he meant wage assignment had that quo” “status on But there is direct pre-February no evidence record, at the issue. on the either Judge Kay April never specified petitioner’s proposed judg- or in how hearing disciplinary proceeding, Attorney Cole not re- ment differed actual ruling. court’s notes, matter. viewed his recollection independent and he had no circumstances, Under statement judge’s apparent unreported these leaves that he “rule issues upon” wage assignment would not “touch” or The vacuum of room for that ordained. about what result interpretation whether, record, information, turn, off the also leaves open question the court also it —to the summer agreed believed agreed—or extent, To record weekend terms visitation he included his order. no was a deliber- provides finding clear basis for a petitioner’s proposal attempt ate to deceive. hand,

On the other typically defense on the issue is conform, In suspiciously disingenuous. hearing his motion to and at motion, petitioner sought by describing his position prior buttress statements of the Kay court which both he and to assume Judge appeared Yet, had been made off the record. disciplinary proceeding, petitioner excused in his did not inaccuracy order attend proposed stating conference, claim unreported posthearing a the State Bar Court spe- cifically rejected after weighing testimony his uncorroborated against contrary Attorney declarations of Cole does not Judge Kay. say that remarks judge’s were made in his at some other time. presence Moreover, petitioner caused his client in the to declare under oath “motion to conform” that the judgment therein court’s proposed incorporated order “as pronounced the bench.” That statement is (Italics added.) balance, patently false. On inaccuracy we deem the of deliberate finding “by established convincing certainty.” and to reasonable proof

Appropriate Discipline hand, The issue of the one appropriate difficult. On discipline many of the facts violations upon by relied the State Bar Court in recommending validly disbarment have not been find proved. We no “con vincing” evidence that (1) a deed wills procured holographic influence, from Frances by fraud and Spang (2) undue these presented intent, documents in the will contest deceitful with improperly counsel, failed advise Frances consult independent personally contacted an adverse in the also no represented party Spang case. We see basis for the disobeyed State Bar Court’s court findings orders over 10-year the State Bar. “cooperate” and failed to period

Moreover, found, alleged certain of other misconduct while not condoned, to be would not warrant disbarment alone and does not standing appreciably a harsh support makeweight. such recommendation even as a Included this are failure petitioner’s “boudoir” remark and his category $250 pay Attorney sanction Cole. hand, On the other validly some of the misconduct is remaining, shown grounds for substantial In the State Bar discipline. we particular, accept means, Court’s finding including presentation used deceitful officer, of a knowingly judicial litigation false order to a in order to obtain in the advantage Dorham case. Dishonest acts in are a basic court role, Code, 6068, oath, violation an attorney’s (Bus. & Prof. and duties. § Conduct, (a), (b), subds. Bar We (d); 7-105.) State Rules rule have Prof. 958 Bar in Davis v. State

condemned such conduct terms. strongest (E.g., 441, 231, Olguin v. 1276]; (1983) 33 Cal.3d 239-240 655 P.2d Cal.Rptr. [188 876, 195, 616 858].) 28 P.2d State Bar Cal.3d 199-200 (1980) Cal.Rptr. [167 willful, se to a Additionally, bad-faith disobedience petitioner’s residence, of the posttrial possession ries of orders that he surrender of serious acts litigant, even as a constitutes though private committed fitness to on his disrespect legal system bearing moral for the turpitude 6068, Code, 6106.) There are (b), (Bus. (a), & Prof. subds. practice. §§ in respects falsely that testified several strong inferences And, no it (See Olguin, though proves pre disciplinary proceeding. supra.) is threat to Amette finding, “Maltese Mafia” charge cise cause for concern. Moreover, though

No are presented. circumstances mitigating an honest upon factor when based lack of remorse is not an aggravating 743, Bar 41 Cal.3d 747 v. State (Calaway (1986) belief innocence [225 267, Bar Hall v. Committee Examiners 371]; 716 P.2d Cal.Rptr. 730, 848, 602 P.2d a failure to 768]), 25 Cal.3d 744-745 Cal.Rptr. [159 conceded, contemptuous is and a of conduct which appreciate gravity relevant to the are matters the disciplinary proceedings, attitude toward Alberton, Pe 16.) at p. 37 Cal.3d supra, sanction. appropriate (See are conduct disingenuous explanations titioner’s lack of candor and evidence of an such attitude.33 serious, moral turpitude, involves is proven misconduct this case sys legal

and is confidence of the public kind which undermines involved, however, have not tem. we generally is Even where deceit mis and habitual ordered is other serious disbarment there except where cf., 131-132; Ridley e.g., conduct. at (See, pp. 36 Cal.3d e.g., Chefsky, supra, 873, 551, v. State 493 P.2d Cal.Rptr. Bar 561 6 Cal.3d [99 have we 105].) discipline, record no prior Because has no to deter future inadequate evidence that sanction short of disbarment 34 Cal.3d misconduct v. Bar (1983) Rimel State protect public. (See 34 Bar (1983) v. State Warner Cal.Rptr. 956]; P.2d [192 Cal.3d 148].) 664 P.2d Cal.Rptr. [192 33By petitioner be during disciplinary proceeding, his own questioning admission at the system is hypertechnical legal lieves in a perception view of the law. One infers his arena, simply lawyers pursue a combat maneuver where selfish interests their clients intimidation, understanding asking giving quarter. displays no little legal ethical applicable standards to his affairs. conduct circumstances, Under all the that the State Bar Court’s we conclude followed, recommendation of disbarment but that substantial should be discipline is appropriate. we Accordingly, suspend- order ed from the be practice years; of law for five that execution of suspension stayed and placed probation years be on five with actual suspension for the year Notwithstanding forego- first of such the probation. ing, both the actual the of shall continue suspension period probation and until such time as has taken and the Professional passed Respon- sibility Examination Examiners. by the Bar of Bar given State Committee The remaining of all conditions are that probation petitioner comply with of the provisions State Bar Act the Rules of Professional Conduct and with such other reporting may as State Bar monitoring procedures the reasonably require. The periods probation of and actual shall suspension commence immediately upon finality the of decision. this Petitioner shall also Court; of comply rule 955 the California Rules of the spe- acts in cified subdivisions of that rule be 30 (a) (c) shall within performed and 40 days, after this respectively, decision becomes final.

LUCAS, view, record, C. J.I dissent. In my its various short despite comings, amply the State Bar’s supports unanimous recommendation that petitioner be disbarred.

I reject that, matter, majority’s conclusion in the there insufficient evidence to establish that petitioner exerted undue influence of preparation joint tenancy the two wills It is holographic deed. well settled may that undue influence established circumstantial evi- (Estate 1, Indeed, dence. 984].) Jamison 41 Cal.2d. 8 (1953) P.2d [256 will, cases such this one and unwitnessed not involving holographic it is surprising that there is no direct evidence of undue influence. case,

In the present several of decedent’s relatives testified as follows: decedent a lonely was on impressionable woman who had depended until, attentions, them a deal great suddenly, began she their either spurn by hanging up they when telephone called or allow them refusing entry into her house. She fear was expressed her and said she petitioner, reluctant speak to her relatives because she afraid would Moreover, discover they had other. she tear- communicated with each fully said that had “control” over her. When asked explain terrible,” comment she replied that she but “something had done refused Moreover, elaborate further. she because peti- declined to leave her house tioner had refused to so return her after to him keys given she them that he could feed her she dogs while she was in the feared hospital, that he would lock her out.

960 circumstances, relied properly

Under these I conclude the State Bar in a by findings While jury not bound verdict the civil matter. we are action, civil of the findings “if the of the trial court and findings [disci- us come to with plinary] they board are substantial evidence supported seeking one review strong validity. burden is presumption upon sup- findings of the its are recommendation the board to show that evidence, or unlaw- by the its is erroneous ported recommendation re P.2d Wright ful.” (In Cal.Rptr. Cal.3d [110 v. 292], Cal.Rptr. Bar 64 Cal.2d citing State 192-193 [49 Lefner Here, various testimony 832].) P.2d addition to the of decedent’s relatives, the previ- the are with the evidence that jury’s findings consistent ous, her kin and bequeathed witnessed will had Mrs. to Spang’s property client, his regard who of trust with petitioner, occupied position the findings, not the of her In civil object bounty. rejecting was natural the of on that majority the of places testimony reliance on great however, friend, I, his Vassallo. would boyhood real estate broker Charles of civil which hearing panel, not disturb the the and the judgments jury they of as testified. credibility the assess the the witnesses opportunity Bar (See Cal.Rptr. Baranowski v. State 24 Cal.3d (1979) [154 613].) 593 P.2d notes, misconduct, majority

In addition to the serious as the foregoing related various court orders comply bad faith failed to matter, deceitfully Moreover, the in the he: (1) action. Dorham deliberately pre- misdirected the court wrong (2) a motion to department; sarcastic, my and in order; sented the made a (3) court with an inaccurate offensive, opinion Kay; pay failed Judge remark about highly $250 may acts individually the these sanctions court. While imposed they justify I merely warrant a believe concert period suspension, sanction Bar. State proposed recommendation, moreover, State is consistent with disbarment weAs January

Bar’s 1986. discipline on guidelines which took effect 543, 550-551 recently v. Cal.3d noted Greenbaum State Bar the guide- Cal.Rptr. 754], predates 736 P.2d even if misconduct [237 lines, they may appropriate nonetheless determine properly be considered Here, indicate discipline. guidelines committed acts which disbarment, shall gravity result in either depending suspension Misconduct, stds. Atty. Prof. wrongdoing. (Standards for Sanctions for 2.3 2.6.) &

To determine to the of the offenses in this case we must look gravity concedes, circumstances. there aggravating mitigating majority As the however, circumstances, are no factors. The list of mitigating aggravating Indeed, in subdivi- lengthy. five of the six factors enumerated aggravating sion 1.2 “mul- (b) standard are Petitioner’s misconduct involved present. acts of as as “bad faith” and “dishon- tiple wrongdoing” (subd. (b)(ii)), well esty” wills (subd. (b)(iii)). holographic His undue influence in procuring client,” joint tenancy and the deed “harmed and the “admin- significantly justice” istration of harmed bad faith disobedi- repeated likewise Moreover, ence of court orders. (Subd. (b)(iv).) inasmuch actions either in judicial were bad faith or involved deliberate deception officers, his lack of remorse . . . atone- demonstrates “indifference toward ment for the . . Finally, of his . misconduct.” consequences (Subd. (b)(v).) a lack of candor” the State Bar “displayed during proceedings. (Subd. (b)(vi).) believe,

My I fact that colleagues, place undue reliance on the Where, this, has no prior record of in a such as the acts of discipline. case serious, wrongdoing are numerous and justified disbarment is despite lack of previous Bambic v. State Bar disciplinary proceedings. (See 40 Cal.3d I Cal.Rptr. 862].) 707 P.2d Accordingly, [219 would adopt the State Bar’s recommendation that disbarred.

Case Details

Case Name: Maltaman v. State Bar

Court Name: California Supreme Court

Date Published: Sep 8, 1987

Citation: 741 P.2d 185

Docket Number: S.F. 25098

Court Abbreviation: Cal.