SHARKS EATING SHARKS
My Adventure in California’s Attorney Discipline System
The title of this booklet is deliberately provocative. Lawyers are often called “sharks” because of their reputation for being aggressive and predatory. But having been a lawyer, I understand them, and I like most of them. Sharks that is, not lawyers. (Joke.)
Before closing shop in 2010, I spent the last ten years of my law practice in the family courts of California’s San Joaquin Valley, mostly in Stanislaus County (Modesto), San Joaquin County (Stockton), and Merced County (Merced). I did mostly family law. Practicing there had a small town feel, and we were blessed with some really good judges and commissioners. I can say without equivocation that most of my peers were great people who truly cared about their clients, worked very hard for them, and who obtained their job satisfaction when they felt that they had helped a client.
Most of us worked diligently to settle our cases on terms that were fair to both sides so that our clients would not need to go through the anguish of litigation. The judges encouraged settlement, but when we absolutely could not accomplish that, the judges and commissioners listened attentively and strove to be fair when disputes were presented to them. The judges were usually able to balance down-to-earth common sense justice with the technicalities of the law. I admit that I became spoiled practicing law in the Modesto area. The downside is that it did not prepare me for the rude shocks that I would experience when I entered the State Bar Court system.
FATE LINES UP THE DOMINOES
I had been an attorney for about fifteen years before starting my bizarre journey through the State Bar discipline system in the year 2005. I was busy, had many clients, and was handling a lot of trust money in assorted divorce cases.
Most lawyers in California are blissfully ignorant about what actually goes on in the discipline process. I had occasionally heard rumblings from unhappy lawyers who wanted to replace the State Bar with something different, but I had dismissed their complaints as sour grapes. Little did I know that I would one day join them.
In the early 2000’s, I signed up a client who would become one-half of the nastiest divorce that I had ever handled. The bickering was endless. Divorce can do this to the nicest people. And to complicate matters even more, Sebastian’s soon-to-be ex-wife Shirley was in a romantic relationship with her second lawyer as we were battling to get through it all.
The case dragged on for several years as they fought over child custody and visitation, support, property, and debts. We managed to get the house sold along the way, and I wound up holding the net proceeds in trust to distribute to the parties after Shirley’s lawyer negotiated settlements with their creditors.
As if the Cipponeri case was not enough, I had another case that was almost as nasty in its own way. Again I represented the husband, this time Don Boggs. His wife Gloria was allowed to live in the marital residence, but she suddenly decided that she did not want to pay the mortgage. I had to do some Herculean work to save the house from being lost in a foreclosure auction. After my success, we got it listed and sold on the regular market, and I was put in charge of the net proceeds from that sale. Those were the glory days before the economic collapse when homes still had equity.
Meanwhile, I was handling substantial trust funds for other clients, but their cases were saner…at least to the extent that any divorce case can be “sane.” I was paying out all of the trust sums owing to my clients, their creditors, and the parties as the payments came due, just as I had been doing for all of my other clients. In my twenty years of law practice, I never failed to make a trust fund payment when it came due.
All of this was happening during a difficult emotional period in my life. My father had died in July 2004 from a prolonged bout with cancer. Two years earlier, my significant other of 9-1/2 years had died after a nine-month battle with illness. They were two of the closest and most important people in my life, and the emotional fallout affected how I handled life in general. So, out of concern for my clients and my legal assistant Lori—a single mom who was raising an 8-year-old son and caring for her elderly mother—I decided to find another attorney to take over my practice so that I could devote time to my emotional recovery. I kept only ten cases that were near completion, including Cipponeri and Boggs, which did little to promote calm in my life.
In either late 2004 or early 2005, Sebastian made a complaint to the State Bar about my handling of his trust funds and about feeling overcharged. Meanwhile, Gloria Boggs was demanding that I pay her $14,000.00 from the trust funds in her case, and her lawyer threatened to report me to the State Bar unless I did so, but I also said “no” to her. Gloria was only entitled to $11,000.00. She made her complaint around early 2005, but in the meantime we obtained a court order that confirmed my position: she was only entitled to $11,000, so I sent that amount to her attorney. When I told him about his client’s State Bar complaint, he replied, “Her complaint is bullsh*t.” He understood that they had been wrong.
Come early 2005, I paid out all of the remaining trust sums owing in the Cipponeri case. Sebastian was unhappy that I kept about $5,000 of his portion to pay my fees which totaled more than $20,000 altogether. Sebastian and I went to mandatory fee arbitration through the Stanislaus County Bar Association. A three-person arbitration panel found 100% in my favor—that Sebastian owed me all of the fees that I had billed him.
By the time of the fee arbitration, I had hired lawyer Arthur Margolis to represent me in the State Bar investigation. Art is a terrific lawyer with a good sense of humor who really cares about his clients. He told me what I had done wrong in my handling of the trust funds:
I was not holding the Cipponeri funds in the special account that had been established for those monies. Instead, I decided to secure the funds outside of County Bank because of my worries about security in my rented office where copies of checks and my signature were scattered in files all over the place. I became nervous about check fraud and identity theft because I was holding a lot of money in trust for a bunch of people.
Furthermore, when a lawyer is ordered to set up an interest-bearing trust account on behalf of a client, he must use his own social security number on the account. If that lawyer has judgment or tax creditors, that trust account can be levied and the client could lose some of the money. A State Bar Trust Account avoids these problems, but the interest on the account is paid to the State Bar instead of the client, so a lawyer cannot use a State Bar Trust Account when he is ordered to set up an interest-bearing account on behalf of the client.
But…it was still wrong for me to do what I did even though no one was financially harmed by it. I don’t blame the State Bar for being concerned. It’s their job to be concerned about that kind of thing.
After fee arbitration with Sebastian, he and I talked some more. I began to think that some of his feelings were sincere and not just an attempt to extort money. (It is a not-so-well-kept secret that many people have learned to use the threat of a State Bar complaint to avoid paying a lawyer’s bill.) So, we worked out what he thought was a fair fee for my services, and I gave him a substantial refund even though the arbitration panel had said that I did not need to. Sebastian signed a statement acknowledging that he was satisfied with my handling of all aspects of his case.
Around this time, too, I finished paying out the remaining trust funds that I was handling for other clients, including Boggs. I was relieved to get the money out of my hair. I also took the State Bar Trust Accounting School in July 2005 to brush up on what I did not know. After taking the course, there were never any issues about how I handled trust funds for all the years to follow. In the meantime, in late 2004 and 2005, I was making great strides in dealing with my loss issues by getting counseling and reading extensively about the grieving process.
So, it all ended well. Or so I thought. But the nightmare had only just begun. I still had to deal with the State Bar.
LOOPHOLES AND MAC TRUCKS
Laura Sharek is a State Bar investigator in the San Francisco office of the State Bar. I have come to respect her over the years. She is diligent, hardworking, and fair. But as soon as she refers a matter to the prosecutors, the case leaves her hands. The accused lawyer must start to deal more directly with the Office of the Chief Trial Counsel—the “OCTC,” as they call it.
So there we were in 2005, pretty much everything was done and behind me, but now the State Bar was only getting started. The investigator issued a subpoena to County Bank for the Cipponeri account records, and the records of my State Bar Client Trust Account (the “CTA”). They wanted several years’ worth, including copies of all cancelled checks. Fair enough, except that the cancelled checks in the CTA would reveal financial transactions that I had done for other clients who were not involved in the Cipponeri and Boggs cases, and who had never complained about me. That is when I learned the first of many troubling facts:
The State Bar, and the prosecutors who work for it, are not bound by the attorney-client privilege. In California, there is a law that states, “It is the duty of an attorney to…maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Emphasis added. I will call it the “Peril Law.” (Business & Professions Code section 6060(e))). But the State Bar lawyers are not subject to the Peril Law because people who complain about their attorneys do not become clients of the State Bar or its lawyers. They merely become witnesses. Not only that, most State Bar hearings are open to the public. The public may look at the papers filed in the State Bar Court about almost any case.
Think about it.
As soon as a client complains about a lawyer to the State Bar, they automatically waive the attorney-client privilege. This means that confidences and secrets that a client had entrusted to the lawyer leave the protections of the attorney-client privilege and the Peril Law. Every confidence and secret that anyone tells to a lawyer in California is at risk of becoming a public record if a person makes a complaint about that lawyer to the State Bar. It is a giant loophole in California’s confidentiality laws—a loophole big enough to drive a Mac truck through. It guts the heart of the attorney-client relationship.
This blew my mind. I learned that this all came about because some people complained that attorney discipline proceedings in the past were too secretive. They argued that the public has an interest in making sure that attorney discipline does not behave like an “old boy’s network” that sweeps misconduct under the rug. There were some advocacy groups that pressured the California legislature into opening up the proceedings. It is an example of good intentions leading to bad results. Why?
First of all, in California we already recognize that there is a greater public interest in keeping certain types of court cases secret. The most obvious example is juvenile court, including cases that involve taking children away from parents for neglect or abuse. The public certainly has a vital interest in making sure that juvenile court cases are handled properly since they go to the very heart of people’s Constitutional rights in their children, and to the very thing that we hold most dear: our children. But we still do not let the public attend juvenile court hearings, and juvenile court files are still kept under seal and closed to the general public. This is because we recognize that children have certain privacy rights that must be protected.
So, read the Peril Law again: “It is the duty of an attorney to…maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” That is mighty strong language. That shows that we place a very high value on attorney-client confidentiality. And if you should ever become a lawyer’s client, I’m sure that you would like to have the law enforced. California—and, in fact, every state—has a stronger interest in preserving this confidentiality than it does in making attorney discipline cases accessible to the public. Let me give you a couple of scenarios to demonstrate why:
1. Next to agriculture, intellectual property is probably California’s most important resource. Patents keep much of Silicon Valley alive, and copyrights keep Hollywood going. That helps California’s economy. And in many businesses, trade secrets can be vital, especially in competitive global enterprises. Many California lawyers advise these companies and help them with these matters on a day-to-day basis. What happens if such a company wants to complain about its lawyer? As soon as that lawyer turns over the client file to the State Bar—which the lawyer must do when the State Bar demands it as the result of a client complaint—all of the information in that file leaves the protection of the attorney-client secrecy laws, including sensitive trade secret information, intellectual property information, and financial information that a company may legitimately want to keep secret. Not only that, but the State Bar may eventually start posting some of that information on the internet! I kid you not! It happened with my clients, as you will see. This can create a tremendous disincentive for business clients to complain about a California lawyer, no matter how justified such a complaint may be. It might even create a disincentive for some companies to do business in California, or set up headquarters here. Why take such risks?
2. Any celebrity or person who is prominent in the community would need to think twice before making a State Bar complaint if they had revealed any embarrassing facts to the lawyer. The lawyer’s file containing a record of those facts will wind up in the hands of people who are not bound by the attorney-client privilege and Peril Law. And trust me, the people who work in the State Bar prosecutor’s office are just as gossipy as any other people. Some people may not even want it known that they had consulted or used a lawyer, and they have a right to that privacy. But make a complaint to the State Bar…? The information could wind up going viral.
And it gets worse.
Even people who have never complained about their attorney, and who might even be ecstatic at their attorney’s performance, risk having some of their financial matters made public if an entirely unrelated client of that attorney makes a Bar complaint.
Attorneys are encouraged to set up a State Bar Client Trust Account (the “CTA”). A lawyer will typically use this as an all-in-one trust account to deposit money from multiple clients. This is especially true of personal injury lawyers who routinely receive settlement monies and then disburse them to clients and their medical providers. As a matter of law, the State Bar is entitled to a lawyer’s complete CTA records at any time, and the Bar will actively seek them if there is a complaint from any client about how the lawyer handled trust funds. But what if a different client of that lawyer wants her financial information kept secret? Maybe she doesn’t want anyone else to know how much she received in a personal injury settlement, or what kind of medical treatment she received. Tough. Even though we consider medical and financial privacy to be constitutionally protected, that information, by way of the canceled CTA checks, will wind up in the hands of people who are not beholden to the same secrecy laws as the person who wrote the checks.
This does not mean that such information becomes publicly available as soon as the State Bar receives it. People cannot just go in and see what the State Bar has acquired during its investigation. It starts going public bit by bit through papers that are later filed in the State Bar Court, especially when the State Bar prosecution files its written complaint against the lawyer called the “Notice of Disciplinary Charges. ” Other papers filed by the prosecution or accused attorney may also contain information about the client, and so the public disclosure is made gradually. If the matter goes to a trial, it is possible that the entire client file could be introduced into evidence, and that means every secret of the client enters the public domain.
Now, the State Bar Court does have some rules about sealing sensitive information, or information about unrelated clients. Such information can also be redacted (blacked out or deleted) from documents that might be made public. The judge can order that certain court proceedings be closed to the public. That’s enough protection, right?
Wrong! It is usually up to the attorney who is being prosecuted to ask the court to redact or seal information about unrelated clients. The attorney is not allowed to do this on behalf of a client who has complained about him. The big problem is this: the State Bar prosecutors and judges will rarely do this on their own initiative! Not only that, there is often a conflict-of-interest. It may be better for the accused attorney’s defense to disclose such information, and that frequently happens in State Bar cases.
As I was just about to learn, the biggest danger of public disclosure of privileged information comes not from the accused lawyer, but from the State Bar prosecutors! From almost the first day that the State Bar became involved in my case, I found myself in the incredible position of having to fight against the prosecutors to protect the information of clients who had not complained about me. I discovered that the more I did this, the more the prosecutor wanted to punish me.
The creepiness was just getting started.
THE BOTTOMLESS INVESTIGATION
When the prosecution issued its subpoena for my CTA records, I told several of my clients about it. I knew that some of them did not want their records disclosed. One client had even turned down a chance to be on the Judge Judy show because, as she said, “I don’t want the whole world knowing my business!”
Three former clients wanted to challenge the subpoena, and they used a separate lawyer to file a request in State Bar Court to “quash” it. Of course, we expected the prosecutor to oppose the request, which she did. We also expected the Court to deny the request because the Bar is entitled to those records as a matter of law, but…we also expected that those clients would be allowed to redact (black out) their personal information from the canceled checks. After all, they had nothing to do with the Cipponeri and Boggs cases, so why should their financial privacy be invaded and be at risk of public disclosure later?
The prosecutor refused to make any sort of agreement for redaction, and the judge ignored the issue. As a result, unredacted checks went straight from County Bank to the prosecutor’s office. My clients’ sensitive and constitutionally-protected financial information was now in the hands of people who were not bound by the same attorney secrecy laws that I was, and the information was now at risk of entering the public domain if my case were to go to trial.
I was appalled.
After that skirmish, about a year-and-a-half went by with no further requests or pleadings from the prosecutor’s office. What were they doing? Why was it taking so long? The California legislature had passed a law stating its intention that complaints against lawyers should be decisively acted upon within one year of receipt. (Business & Professions Code section 6094.5). The weakness of this law is that the language was only advisory, and there was no statute of limitations (“drop dead date”) for filing formal charges against a lawyer. The State Bar was allowed to make up its own rule, so it decided to give itself five years.
Five years?! Almost nobody gets a five year statute of limitations. Personal injury and wrongful death cases must be filed with the court within two years after the incident. Why? Because the more time passes, the more difficult it is to remember things, and the more difficult it is to get evidence and witnesses to trial. The statute of limitations for filing a lawsuit for breach of written contract is four years, but that’s because the contracts are in writing, and it’s usually just an accounting issue. It also gives the creditors time to try other collection remedies before clogging the courts with small claims actions and lawsuits.
But five years?! It is clear that the State Bar snubbed its nose at the California legislature when it made this rule for itself. Most attorney discipline actions depend heavily on human witnesses and memory, just like personal injury cases. People move, people die, their memories fade. This can work against either side. The State Bar may no longer be able to call the witnesses it needs to put on a good trial, or the accused attorney may have the same problem. The public is not served in either event.
As I would later come to learn, the long period of silence in my case was spent by the prosecution dredging every database possible to get personal and private information about me and members of my family. They dug up records going back literally decades: apartment addresses where I had lived, where I had worked, credit information, old bank accounts that I had long ago forgotten about, properties that my father had owned, business entities that I had created. There were hundreds of pages of this information. When I later received copies of it, I was shocked. The OCTC had intruded into my personal life to a degree that I had never experienced before. None of it had any relevance to the Cipponeri and Boggs cases.
But they weren’t finished. The next action they took after the year-and-a-half delay was to issue another bank subpoena. This time it was for all of my personal bank information. They wanted every bank statement and canceled check that I had written from my combined business/personal account covering a period of several years! Those canceled checks would have revealed where I shopped for food, where I bought my shoes, what my hobbies were, where I traveled, who I bought books from, etc., etc.
My attorney Art Margolis filed a motion to quash this intrusive subpoena. He did a masterful job, and Judge Armendariz in San Francisco granted my motion on November 13, 2007. The judge agreed that the prosecutor’s office was overreaching.
There was more silence from the prosecutor’s office—close to a year. Then they sent a written demand in which they wanted many of the same things that Judge Armendariz had already told them they couldn’t have! They also demanded the names and contact information of everyone for whom I had handled trust funds, even though it was against the law for me to disclose that information even to the State Bar unless the clients authorized me to do so—and the prosecutors knew this, but they tried anyway. I ignored the demand. Although the prosecutors did not go to court seeking an order compelling me to answer, they would punishment me later for it.
It is difficult to put in words the feeling of deep personal violation that I experienced that year—of an intrusive malevolence that cared little for human feelings or even the law. It is as though the State Bar sees a client complaint as a ticket for digging deeply into a lawyer’s personal life beyond any relation to what is being complained about. The bright spot in all of this was Judge Armendariz. And it stunned me as I participated telephonically in that hearing how rude the prosecutor was to her during oral argument, and as my motion was being granted. The prosecutor seemed to view the judge as an impediment to the good works of the OCTC—as a stupid person who did not see the rightness in what the prosecutor was doing.
Finally, on November 18, 2008, more than three-and-a-half years after receiving Sebastian’s complaint, the prosecutor’s office was ready to file charges. But first, they had to send me a letter….
NOT MUCH OF A LOVE LETTER
Before filing a formal “Notice of Disciplinary Charges,” the prosecutor must send a “notice of intent” letter to the accused attorney describing the charges that the OCTC intends to bring. This procedure allows settlement negotiations. If the negotiations fail, then the accused attorney may request an “Early Neutral Evaluation Conference,” which is a settlement conference with a judge to see if the matter can be resolved before the filing of formal charges. This a good procedure, but only if both sides are committed to a fair settlement.
The prosecutor’s letter was full of errors. She was trying to say that I still owed Gloria Boggs more money even though the family court order was extremely explicit that I did not, and that no court anywhere had the ability to award her any more money. My lawyer and I spent quite a bit of time hammering out a response, which resulted in many changes being changed, and the claim that I owed money to Gloria Boggs was dropped.
Finally, Art and the prosecutor worked out a tentative agreement. Certain additional charges would be dropped, and it would be made clear that no clients were harmed by my actions. I would be disciplined with a two-year actual suspension. The suspension was fine, but I still took issue with some of the wording.
So we all went to the Early Neutral Evaluation Conference. The agreement was told to the judge, and she thought it was OK. Ms. Brune from the OCTC then left the courtroom so that I could talk alone with the judge and my lawyer (who was on the telephone from Los Angeles). I had trouble with the “misappropriation” and “moral turpitude” charges since I had everyone’s trust sums secured and had paid everyone on time and in full as all trust payments came due. The judge analyzed the issues for me in a way that I could at least bite the bullet and sign. The conference ended on a good note. My lawyer would submit a revised stipulation of facts to Ms. Brune based on what we had discussed with the judge, I would sign, and we would be done. In the meantime, I would make myself ready to start my two-year suspension. I felt relieved to have the matter finished.
It was not to be. Enter new prosecutor Maria Oropeza.
It often felt like Trial Counsel’s office changed prosecutors in my case like people change shirts. There had been at least three or four different prosecutors involved in my case as it slogged on. Immediately after the ENEC, my case was assigned to Maria Oropeza. It was like going from solid ground to quicksand.
Ms. Oropeza decided that she was going to have none of what had been agreed to at the ENEC. None of the judge’s input meant anything. None of the changes prepared by Art were acceptable to her, and she refused to discuss alternative wording to reach a happy middle. The charges would remain exactly as written, or no deal. The settlement fell apart.
Finally, on March 13, 2009, Ms. Oropeza filed the Notice of Disciplinary Charges (“NDC”). It was four years, almost to the day, after Ms. Sharek’s initial letter about Sebastian Cipponeri (March 4, 2005). Sure, the OCTC had met the five-year filing requirement, but I already knew that it would be hard to get a fair trial anymore. People had moved, and even I was having a hard time remembering some of the details about these old cases.
The NDC raised an important issue with me. It becomes part of the public court file, and it is posted on the internet for the whole world to see! It made public an enormous amount of confidential client information that I, as the Cipponeri’s and Boggs’ lawyer, would never have been allowed to disclose without client consent. The NDC stated exactly how much money the Cipponeris and Boggs had received from the sale of their homes. It gave details about some of the debt payments that I had made to their creditors, and it even identified some of them. It quoted from privileged attorney correspondence. If I, as a lawyer, had posted that same information on the internet, I would have risked lawsuits from my clients, and the State Bar would have been expected to discipline me. This is why, to repeat, every person who complains to the State Bar about a lawyer risks public disclosure of confidential information.
And yet the State Bar does this to hundreds of people every year!
Maybe the Cipponeris and Gloria Boggs do not care and are just glad to see “justice being done.” But did the State Bar prosecutors at least ask them if it was OK to make the information publicly available and post it on the internet? Some people might have good reason for wanting such financial details kept private, like my client who did not want to go on the Judge Judy show, or the private high tech company that needs to keep trade secrets. And what about my own client Don Boggs who did not make a complaint about me, but who might have had privacy concerns. Was he asked? I am sure that the answer is “no.” This is another way in which non-complaining clients are at risk of having private information publicly broadcast by the State Bar.
And once this information goes viral, damage can be impossible to fix.
The posting of the NDC on the internet has been controversial for another reason. Most of the public does not understand the game of Prosecution v. Defense.
It is standard practice in our criminal and State Bar courts for the prosecutor to throw in everything but the kitchen sink in the original complaint. They know that there will be negotiations that will most likely lead to a dropping of some charges and a change in wording to others. But the public does not understand this, especially in regard to the filing of State Bar charges against a lawyer. The public will read the NDC and generally believe everything in it. Yes, the accused lawyer may file a written response to the NDC which will also be posted on the internet, but that does not always help since that response might be in the form of legalese, like simple “I admit” or “I deny” statements, or technical objections that don’t tell a story. And people who read the NDC might not take the time to read the lawyer’s response anyway.
As a result, the public posting of the NDC becomes a knowing defamation against the lawyer by the State Bar. The prosecution knows that some of the charges will be dropped or will not hold up in court, but the charges are posted on the internet anyway because that is how the game is played. The cumulative effect is bad for the profession and bad for the public. If the State Bar habitually posts distorted and unbalanced charges against lawyers as it did in my case, the State Bar creates an impression that lawyers, as a whole, are worse than they really are. This, in turn, contributes to a decline in public trust of the profession.
The NDC in my case created a false impression mostly by omission. The NDC makes it seem like I just pocketed a lot of client money and ran off with it. It fails to add the information that all trust sums were paid to all clients on time and in full during all of the years discussed in the NDC…and throughout my entire legal career, for that matter.
In many ways, misrepresentation through omission is one of the most insidious forms of lying. It is a common propaganda tool, and it is a common way of smearing people’s reputations. I wondered, why does Maria Oropeza insist on doing this? Why won’t she just add the information so that the world has an accurate picture of what really happened? Why did her supervisor Donald Steedman condone her actions when I talked to him about it? As I would come to learn, this is part of the culture of the State Bar prosecutor’s office, especially at the San Francisco office, and I am by far not the only victim.
In 2009, another lawyer that I often dealt with told me that she was resigning from the State Bar. I was stunned. She was a good lawyer, diligent, and good at settling cases. She was well-liked by the other lawyers in town and by the judges. She told me that charges were being brought against her by the State Bar, but she did not have the money to hire a State Bar defense lawyer. She had the same experience I did: the charges were one-sided, distorted, and created a false picture of her. She said that every time she tried to talk to the prosecutor in her case—a man in the San Francisco office—he would yell at her and not let her speak. Any kind of rational settlement discussion was impossible with him. She suffered from a chronic illness that was made worse by stress, so she made the painful decision to resign.
And I would start hearing more stories like this as my own case continued down an increasingly twisted path.
After my attorney filed an Answer to the NDC, I found that I could no longer afford him. Family law attorneys in the San Joaquin Valley certainly earn a living, but it is not a road to great wealth. In anticipation of being suspended, I had begun to wind down my law practice, and so my income declined. I hated losing Art, but it was not fair that I incur further debt to him that I might have difficulty paying. There’s an old saying that only a fool has himself for a lawyer, and financial necessity made me one of those fools.
The California State Bar has a program called the “Alternative Discipline Program” (“ADP”). It is designed to rehabilitate lawyers who commit misconduct because of substance abuse or psychological problems. It is a stringent program that a lawyer must diligently adhere to for five years, during which time his discipline might be lessened. I had thought of applying. The deep anxiety and depression caused by the deaths of my significant other and father played a big role in my less-than-clear thinking about money matters in those days. And I wasn’t sure that I had entirely recovered because I was being forced to keep reliving those terrible years in my mind as a result of this discipline action, which occasionally revived the bad emotions.
I decided to take the plunge. I filed a request with Judge McElroy in San Francisco to be allowed onto the program. Maria Oropeza opposed my request, but that was par for the course. If I wanted something, she would immediately be against it. That was just how she was. Judge McElroy granted my request.
I immediately enrolled and started weekly group sessions in Fresno. I loved it. We were led by a local therapist, and it was nice to be in a setting where I could “let it all hang out” with other lawyers who had gone through the discipline system themselves, and who were there to work on self-improvement. It was nice getting to know other lawyers at that level. By then, I was pretty fed up with being a lawyer. But after just a couple of group sessions, I began to feel better about it. The original pride that I had felt about being an attorney, and using my profession to help others, resurfaced.
But those good things were not to last. There were two requirements to continue with the ADP:
1. Random urine testing for drugs and alcohol. This meant calling every day and rushing to the nearest lab to give a urine sample by the end of the same day if randomly chosen.
2. Reaching a stipulation of facts about my case with Maria Oropeza.
Requirement #1 was stressful. I had started traveling around California to pursue new work and do some projects. There were times when I could barely make it to the nearest lab on time. One time I was late and practically had to grovel to be allowed to pee into a cup. The reason for the requirement is that most people in the ADP are there for substance abuse issues. I had never had such problems in my life, and so it seemed like a pointless requirement for me. But, I complied.
Requirement #2 was well nigh hopeless. I had tried twice to set up a meeting with Ms. Oropeza to see if we could work out a statement of facts that was not so distorted and that both of us could live with, but she refused to meet with me saying that she was not required to do so. I spoke to her supervisor, and after that Ms. Oropeza agreed to a meeting at the State Bar offices in San Francisco.
My meeting with Ms. Oropeza was civil but unfruitful. I explained that I was willing to accept the punishment, all I wanted was a write-up that was accurate and complete so that people reading it would have true picture of what happened. We just went around in circles. She ended the meeting by saying she would drop a few of the charges (but not the ones that irked me the most), that my actual suspension must be three years instead of two, that there would not be a “no harm” statement as before, and none of the information I wanted to add would go into the write-up. Yes, this was a demonstration of her power over me. She was getting revenge for me having challenged some of the prosecution’s actions in State Bar Court (my “non-cooperation”), and she was tightening the screws to get me to yield. I bit my tongue and told her, OK, I will agree to the three years, all I want is a proper write-up. Her attitude: no dice.
But it was about to get worse.
I had moved to southern California to pursue some opportunities. I enrolled in an afternoon ADP group in Beverly Hills led by a wonderful and compassionate therapist. Because of the projects that I was pursuing, I was bouncing all over the state, and the lab testing requirement had become impossible to cope with. I was forced to eat out a lot, and one day to my horror I discovered that I had eaten a salad with a lot of poppy seeds in the dressing, which put me at risk of coming up positive for opiates! The group leader said that sometimes the ADP committee in Los Angeles will excuse participants from the testing requirement if they did not have a drug or alcohol problem, and she recommended that I try this. But first, there was the hurdle of the factual write-up. I would not be allowed to continue with the ADP anyway unless Ms. Oropeza and I could reach an agreement about the facts of my case.
So, I left the ADP with the idea of going back as soon as I could reach a factual stipulation, and then I would petition for the lab testing exemption. But Ms. Oropeza was not about to cooperate.
After my file was transferred from San Francisco to the Los Angeles branch of the State Bar Court, the prosecutor’s office decided to leave Ms. Oropeza on my case even though she was still based in San Francisco and there were plenty of other prosecutors who could have taken over in Los Angeles. When I had originally made the transfer request, Ms. Oropeza was strongly opposed to it and vowed in court that she would stay on the case even if the judge ordered the transfer. The defiance in her voice was startling. Had she fallen in love with me? (Joke.)
The first hearing in Los Angeles was before Judge Honn, who handled the ADP cases. I was there in person, and Ms. Oropeza appeared by telephone. Judge Honn said that I had to make a decision on the spot: go on the “ADP track,” or go on the “litigation track.” I couldn’t do both. If I wanted to do the ADP, I had to agree to all of the accusations in the Notice of Disciplinary Charges essentially as written. I told the judge that the NDC was too distorted and created a false impression. He said “choose.” I sat there a few moments to reflect, and with great reluctance I decided, “the litigation track.” My ability to return to the ADP was ended.
This court hearing demonstrated how much coercive power the State Bar has given to its prosecutors, and how that invites abuse. The prosecutors have the power to deny a lawyer the ability to go on the ADP even when a judge approves it. The prosecutor need only be unreasonable about the factual stipulation. Or the lawyer must succumb and sign what is ultimately a false confession: a confession of wrongdoing that the lawyer knows is not accurate.
It was at that moment that I began to think of all this as a railroading process. I had not thought of it in those terms before because the judges in San Francisco had acted in a genuinely independent manner in my case, and I felt that they were the saving grace of the entire system. But the slippery slope was about to get even more slippery.
THE HANGIN’ JUDGE
Judge Honn assigned my case to Judge Miles for trial. Judge Miles had a reputation as the “hanging judge” because he meted out severe discipline for lawyer misconduct. I thought to myself, well, it’s out of the frying pan and into the fire.
Shortly after the assignment, Ms. Oropeza filed a request to move the case back to San Francisco! Her point was that witnesses were located in northern California, and San Francisco would be more convenient for them. Although I opposed her request, I did not much mind it since I was going back and forth between Los Angeles and northern California anyway. Judge Miles granted Ms. Oropeza’s motion, but decided that he would remain as the judge instead of giving it back to a San Francisco judge. He would travel and stay in San Francisco to do the trial! It turns out that Judge Miles was originally from San Francisco. I thought to myself that I like San Francisco, too, but was I going to have to reimburse the State Bar for his travel expenses?
Judge Miles set a trial date, a new deadline to finish evidence-gathering (“discovery”), and a settlement conference with Judge Platel just a week or two before trial was scheduled to start. But by this time, I barely had one witness left. The four-year delay in filing charges (followed by another year going through this process) caused me to lose nearly all of them:
* A family court judge, who would have been able to rebut the charge that I had tried to mislead him in a court paper and at a hearing in October 2004, could no longer remember the details of the hearing since more than five years had passed.
* Gloria Boggs’ attorney, who could have clarified his statement, “Her complaint is bullsh*t,” retired from law while my case was dragging along. He moved to a remote home in the mountain community of Ahwanee, California. His phone number was not working, so I drove to his hard-to-find address. I left a note on his door, and he contacted me by email. He could not remember any of the details of the Boggs divorce, and he made it very clear that he wanted nothing to do with my State Bar case.
* A former employee who had moved and could not be located.
* A witness who had died the year before.
I was hanging by a fingernail and relying on a single witness who lived in Taiwan. I scheduled a deposition of her in Taipei, which required a lot of juggling to arrange. Her deposition date was a few days after the settlement conference, and just a few days before the close of discovery. I sent a notice to Ms. Oropeza. True to her style, Ms. Oropeza issued a written objection saying that I was not allowed to do that deposition, and there were all kinds of rules against it. We discussed this matter with Judge Miles who told Ms. Oropeza in no uncertain terms that I would be allowed to take the deposition as planned, and that she was wrong in her legal analysis. I appreciated Judge Miles for this and respected his independence, even if he might wind up hanging me later.
The settlement conference with Judge Platel in Los Angeles was really the last hope of avoiding a trial. I knew that I could not go to trial for one simple reason: if I did, I would owe the State Bar at least another $10,000.00. That is the price for a trial in the State Bar Court if you have committed any kind of misconduct. The price can climb another $9,000.00 or so if either side does not like the trial judge’s decision and seeks a higher court review. So going to trial meant that I was facing a $10,000 to $20,000 fee to the State Bar even if I got what I wanted, which was a more balanced factual finding.
This is how it works:
The State Bar has created a rule for itself that is unheard of in any other court. If a lawyer receives any kind of discipline, he must reimburse the State Bar for its prosecution costs, most of which is its lawyer time. In other words, I would have to pay for Ms. Oropeza’s time prosecuting me. The State Bar has developed a fee schedule for billing an errant lawyer for the prosecutor’s time.
You might think, well, that’s only fair. If a lawyer commits misconduct, why shouldn’t he be required to reimburse the State Bar to discipline him? Why should the other members of the Bar shoulder that cost through their dues? I admit that this is a seductive argument, and I might have fallen for it myself if I had not experienced the actual consequences of it.
The reimbursement rule puts the entire financial risk on the accused attorney. There are no financial consequences to the State Bar for making exaggerated charges or being unreasonable about settlement. As long as there is any discipline, the State Bar gets its money from the lawyer. Here is a quick example:
Let’s say that the State Bar accuses a lawyer of something very serious and demands disbarment, but they will settle for a 3-year suspension, nothing less. The lawyer feels that even three years is unjust. They go to trial, and the judge recommends a 1-year suspension. The accused lawyer has resoundingly won, but he must still pay the $10,000 to the State Bar because there was still some discipline. If the prosecutor does not like the outcome, she can appeal it, and the lawyer may have to pay another $9,000 or so even if the higher court affirms the trial court’s decision.
This system creates a built-in financial incentive for the prosecutors to inflate the charges and become unreasonable about settlement with any lawyer who is discovered to have committed misconduct. If that lawyer has some integrity and goes to trial, voila!, there is another $10,000 or more that lawyer must pay to the State Bar.
More importantly, the reimbursement rule becomes a bludgeon to make an accused lawyer capitulate. It is another powerful tool of coercion. When I had my meeting with Ms. Oropeza, she reminded me of this cost. The message was clear: sign this false confession, or you will have to pay us another $10,000 to $20,000. She made it a point to let me know that I already owed around $7,000 for the State Bar’s prosecution costs up until that point. The whole affair could wind up causing me to owe the State Bar in the neighborhood of $30,000 if I insisted on taking it to a judge! From a person in my shoes, it becomes a form of extortion: “Aha! We caught you doing something wrong. You either admit to charges that you know are distorted, or you will have to pay us tens of thousands of dollars for the privilege of going to a judge to ask him to change the distorted things we wrote about you and posted on the internet.”
The reimbursement rule is another one of those “State Bar only” rules. The State Bar Court is supposed to operate under California’s civil laws and the Code of Civil Procedure (the “CCP”). The CCP does not allow this kind of uneven playing field between litigants in other courts. Instead, section 998 of the CCP has a procedure called “Offer to Compromise.” When two sides are involved in a civil lawsuit (which is essentially what a State Bar action is), either side, or both sides, can send a formal letter to the other side making a settlement offer. If that settlement offer is rejected, and the person who made the offer gets a better outcome at trial, the other side must reimburse the attorney fees and litigation costs that were incurred after the 998 offer was made.
The 998 rule is terrific. I used it when I handled regular civil cases. It creates a strong incentive for both parties to make reasonable settlement offers, and to be reasonable in their settlement discussions. If the 998 procedure applied to State Bar cases, the prosecutors would be compelled to think carefully about settling the matter instead of feeling that they can just steamroll ahead without consequences as they do now. The only time there is a consequence to the State Bar is if there is no discipline at all, then the State Bar must reimburse the attorney. But such cases rarely reach the trial stage.
Of course, there would be objections from the Bar about using CCP 998. “Oh, then the Bar will go broke from the fees we would have to pay to the defendants’ attorneys. It will turn the State Bar proceedings into a casino.” There is a solution. The State Bar can institute a modified form of CCP 998 that would allow an accused attorney to make an Offer to Compromise to the prosecution. If the offer is rejected and the attorney gets a better result at trial, he simply would not need to reimburse the State Bar for its prosecution costs incurred after the offer was made. That would be fair, and it would take away the financial incentive for prosecutorial distortion and abuse. But the State Bar has never deigned to do that.
These things were on my mind as we approached the settlement conference date with Judge Platel. Ms. Oropeza knew that the punishment was not important to me. I no longer cared if I was disbarred. I had moved on. I just wanted an accurate and balanced write-up. But it had become clear to me that the State Bar had rigged the rules to create an uneven playing field, and I had to think twice about incurring more debt in the State Bar Casino of Justice.
So I had a lot of hope riding on the settlement conference. I spent a lot of time preparing a written settlement conference statement and attaching exhibits. Under the rules, Ms. Oropeza was supposed to be there in person, and Judge Platel had a reputation for being experienced. He also worked in the same courthouse as Judge Miles. I knew that a good roll-up-your sleeves settlement conference judge sitting face-to-face with the attorneys from both sides, case files in hand, can work wonders. And there seemed to be enough time on Judge Platel’s calendar to really have a meaningful talk.
I wish someone had been with me while I was having these thoughts and said, “Oh, you poor deluded creature. Will you never learn?”
A RAINY DAY IN LOS ANGELES
The day for settlement conference arrived. It was raining. I had my boxes of case files with me. But I was concerned. Ms. Oropeza had not sent me her settlement statement or proposed write-up like she was supposed to. It would have been nice if I had had a chance to read them beforehand.
When I reached the courtroom, Ms. Oropeza was not there. She was supposed to be. What happened?
It turned out that the heavy rains in California had caused Ms. Oropeza’s flight to be cancelled. She was on the telephone. I groaned inwardly because I knew that settlement conferences are not as effective that way, which is why there is a rule that both counsel are supposed to be physically present.
Judge Platel came out of his chambers and sat down. He had already spoken to Ms. Oropeza before I arrived. She hung up the phone, and it was obvious that Judge Platel did not care that she was not there in person. He did not reschedule the conference for the next day or another day soon. We would just proceed.
He asked me if I had received Ms. Oropeza’s write-up with the amended language. I had not. He gave me his copy that had just been faxed to him. He said that it was a take-it-or-leave-it offer, today only, and that it was a “gift.” He said that he would have no trouble disbarring me as the trial judge if the accusations were true. I groaned inwardly again. It was obvious that he had not read my settlement conference statement and knew little about the case.
“Do you need some time to read it?” he asked me.
“Well, duh,” I thought to myself, sometimes being the smartass, but of course I was polite and just said, “Yes, please.”
“OK, come get me when you’re finished.”
He went back into chambers. I’m not sure if he started reading my settlement conference statement because it seemed that he was busy working on other cases. So I sat alone in the courtroom with a long document prepared by Ms. Oropeza that I had never seen before but was supposed to make a life-changing decision about in the next fifteen minutes. Yes, Ms. Oropeza had dropped a few of the charges, but the worst of them were still in there without any of the language that I felt it needed. It was essentially the same distorted write-up as before. Judge Platel was my last hope. If he and I could sit down in chambers with Ms. Oropeza on speakerphone to discuss my concerns, we might make some progress.
I let the judge know I was ready to talk about it. He came out and sat in the courtroom again. I told him that I was OK with the three-year actual suspension that Ms. Oropeza was recommending, but the wording still made it sound like I had just pocketed a lot of client money and run off with it. There was no reference to the full and timely payments. He replied, “I don’t care if you had the money in other accounts. If you did not have it in the accounts that you were supposed to, I would have no trouble disbarring you. This stipulation is a gift. You should sign it.”
I told the judge that he was good at twisting my arm, could he try to twist Ms. Oropeza’s arm a little? It was important to me for readers of the stipulation to understand what happened to the money and how it was paid. There was one little sentence near the end of the stipulation about me having paid “restitution,” but that hardly told the story.
“If you want to talk privately with Ms. Oropeza about it,” the judge replied, “you can use my phone. But what she is giving you is a gift. I understand from her that it is a today-only. I don’t think you’ll do this well at trial.”
It was obvious that he was not going to help me. Talking to Ms. Oropeza without a judge to mediate was pointless. The clock was ticking, and time was running out to finish the settlement conference.
I succumbed. I could not afford another $10,000 to $20,000 of debt on top of what I already owed the State Bar. To my shame, I caved in to the financial coercion. Had it not been for the high price of admission into Judge Miles’ courtroom, I would have gladly risked disbarment to get a trial.
I signed. Judge Platel’s manner had been courteous and professional toward me, so I merely thanked him and gave him the paper. But the settlement conference had been meaningless. Yes, I was appreciative that Ms. Oropeza had recommended something less than disbarment, but she knew how important the wording issue was to me.
It was still raining when I exited the State Bar offices on Hill Street in downtown Los Angeles. I was done. It was all over. Now I could just move ahead with my future.
IT AIN’T OVER ‘TIL IT’S OVER
I went back home, packed away my State Bar documents, and cancelled the deposition in Taipei. Now it was just a matter of waiting for the stipulation and suspension to be approved by the California Supreme Court—a formality. That was something that the prosecutor’s office would handle.
Just about a week later, a letter arrived in my mailbox. It was from the State Bar Court in Los Angeles. I figured it was a copy of the stipulation with Judge Mile’s signature on it. It wasn’t. It was an order. Judge Miles refused to approve the deal! Reading between the lines, it was obvious that he thought I should be disbarred because the allegations in the stipulation—my coerced confession—were too serious for a mere suspension. The trial would start in about a week.
It is difficult to express how disgusted I felt. Not at Judge Miles—I almost couldn’t blame him considering how Ms. Oropeza had drafted the document—but at Ms. Oropeza and Judge Platel. I had been right all along! My dogged persistence trying to get the wording more balanced was not an unreasonable annoyance as Ms. Oropeza was treating it, it was necessary to get to make our agreement acceptable to the court! Neither Ms. Oropeza nor Judge Platel had said anything to indicate that there was even a possibility that Judge Miles might reject the agreement. How long had Ms. Oropeza been working for the State Bar? Ten years? Shouldn’t she have known? If Judge Platel had done what I had pleaded for him to do, which was to mediate a more balanced write-up, the rejection would probably not have happened!
I called Ms. Oropeza. I was polite. I thanked her again for recommending something less than disbarment. But I pointed out that her recommendation for a three-year suspension did me no good if it is rejected because her write-up makes everything seem worse than it really was. The wording that I had been wanting her to add (and some that I had been wanting to her remove because it simply was not true) was exactly what was needed to make her recommendation acceptable to the judge. Now that we’ve seen Judge Miles’ reaction, could we try to work out wording that everyone can live with?
Nope. No changes.
So there I was. I was faced with a trial. I had no witnesses left. Although Judge Miles allowed an extension to take the deposition of my witness in Taiwan, it was impossible to reschedule it by the new deadline he set. Furthermore, I had lost ten days of discovery time that I had planned to use to gather other evidence, and those days were not restored in the judge’s order. But he did later do one very decent thing. I had complained about the settlement conference with Judge Platel, and Judge Miles arranged a new settlement conference with Judge McElroy in San Francisco. That was not something that Judge Miles needed to do, and I still appreciate it even today.
And then Judge Miles suspending the trial date. Suspending the trial date was a double-edged sword. I wished that he had done it after the new settlement conference so that there was more pressure on Ms. Oropeza to settle. I sensed that she did not really want to go to trial. Without an imminent trial date, Ms. Oropeza would not be as motivated to be reasonable.
I dutifully prepared my settlement conference statement for Judge McElroy. As a starting point for discussion, I prepared a proposed statement of facts. I left out the things that were most controversial to Ms. Oropeza, for example, where and how I had secured the trust funds, and opted instead for simple statements that all sums owing were made in full and on time as they came due, something that was not in dispute. My goal was to satisfy Ms. Oropeza’s integrity while at the same time providing balance. And I was fully prepared to accept a 3-year suspension. Just give me a fair and balanced write-up!
In my new settlement conference statement, I included a description of what the State Bar calls “mitigating facts.” “Mitigating facts” are those facts that demonstrate the misconduct to be less serious than it seemed, or that show a lawyer deserves a reduced level of punishment. All State Bar Court judges are supposed to consider mitigating facts in discipline cases. These are the ones that I listed for Judge McElroy:
No prior discipline: I had no prior instance of discipline and was admitted to practice in 1987. Ms. Oropeza was kind enough to always include this as a mitigating fact.
No harm: I did not financially harm my clients. The prosecutor’s office originally put that in the write-up. Ms. Oropeza took it out and would never put it back.
Candor/cooperation: I cooperated with the investigation and disciplinary proceedings. Yes, we had our skirmishes along the way, but I was still cooperative and, in hindsight, a bit more candid than I should have been. When I filed the motion to quash the intrusive subpoena into my personal bank account, I was accused by the prosecution of not being cooperative and that I was trying to stymie the investigation. This accusation was another form of psychological coercion since non-cooperation can be grounds for a more severe level of discipline. This kind of bullying causes some lawyers to buckle under to wrongful demands made by the prosecutor’s office. As I learned in my own case, wrongful demands from the OCTC are routine. So, standing up to the the State Bar prosecutors when they go too far is not non-cooperation even if they treat it that way.
Ms. Oropeza was also rankled when I blacked out the names of unrelated clients from a copy of my monthly trust ledgers that I had provided to her. She again accused me of being obstructionist and claimed that she would be able to get a judge to force me to give her the unredacted ledgers even though she would not agree to seal those records. I knew very well that I was still duty bound to protect the financial privacy of all past clients who had not waived the attorney-client privilege and who had not complained about me to the State Bar. So Ms. Oropeza punished me by refusing to list candor and cooperation as mitigating facts even though she was wrong about the redaction.
Remorse: Remorse can be expressed and demonstrated in many ways. Remorse is acknowledging that one had done wrong, making efforts to fix any damage, and then fixing the causes of the problem. Although there was no financial damage to any client, I knew that I needed to fix myself, and hence I went on my healing sabbatical in late 2004 before the State Bar even got involved. That was a tangible manifestation of remorse.
Restitution: This is included in Ms. Oropeza’s write-up in a single easy-to-miss sentence. In the context of the overall write-up, it sounds like I just pocketed a lot of client money, presumably hurt the clients, and then later found a way to pay the money back to them. That’s not how it happened. The timely trust payments that I made were not “restitution”; they were the regular payments that I was required and expected to make.
The restitution in this case would have been the fee refund that I paid to Sebastian. Sebastian had already received every penny of trust funds that he was entitled to. The refund was over and above that. It compensated for any psychological stress or outrage to his moral sensibilities that I may have caused. Financially, it put him ahead of the game. And I felt better about myself for making that payment even though the arbitration panel said that it was not owed to him.
In a sense, I had also given restitution to Gloria Boggs. She, too, had gotten every penny of trust money due to her. In addition, if I had not saved the house from the consequences of her foolishness, there would have been no $11,000 for her to complain about to the State Bar. I billed the time I spent to save the house to my client Don, but then I substantially discounted his fees. In essence, I had provided free legal services that had benefited Ms. Boggs substantially.
Delay: Ms. Oropeza refuses to admit this since her office had filed the Notice of Disciplinary Charges within the five-year limit. But the world does not stop just because the State Bar gives itself five years. Waiting four years damaged my ability to present an adequate defense.
Good Faith: My good faith intention to pay all trust funds was demonstrated by the fact that everyone was paid on time and in full over a period of years. None of the multiple other clients for whom I was handling trust funds made complaints to the State Bar.
Emotional Difficulties: The deep anxiety and depression caused by the death of my significant other in 2002 and of my father in 2004 contributed to the events. Ms. Oropeza refuses to admit this since I did not get a psychological evaluation to “prove it.” I saw a note in the materials sent to me by the prosecutor suggesting that I had not been affected at all! Do the prosecutors not understand human emotions?
Rehabilitation: The conduct in question had occurred between five and eight years earlier. I demonstrated my subsequent rehabilitation by taking the State Bar Trust Accounting School in July 2005 on my own initiative, and there have never been any issues regarding my handling of trust funds since then. The prosecutor refuses to admit this because, as far as I can tell, nothing that happens of a positive nature during the discipline process counts, no matter how many years the discipline process drags out. But, if the lawyer does anything of a bad nature during that time…whoa! The prosecutor will jump on it.
The day for the new settlement conference with Judge McElroy arrived. I did not have high hopes. By then, I had learned more about Maria Oropeza. She had a reputation for being one of the most stubborn prosecutors in the office, even when she was wrong, and the judges knew her to be “that way.” So part of my problem in this entire affair was just the “bad luck of the draw” in having her assigned to my case. But the reputation of the other San Francisco prosecutors was not much better.
Another problem is that some of the prosecutors, like Ms. Oropeza, had little prior lawyering experience outside of the State Bar, and so they did not get to really know many lawyers in “the real world.” Most of the lawyers they come into contact with are the supposedly “bad” ones—the ones who commit misconduct—and the handful of attorneys who represent them. As a result, it is easy for the prosecutors to get a black-and-white outlook, to see accused lawyers in a darker light. That makes it easier to justify coercion against them, and to create an uneven playing field where abuse is deserved and seems to be for the public good.
With only a few exceptions, most of the State Bar judges seem more balanced. They appear to have had more worldly experience in their professional lives, so they understand people better. But they cannot choose who the State Bar will hire as prosecutors. Those hiring decisions are up to the Office of Chief Trial Counsel of the State Bar, not the judges.
I was looking forward to meeting with Judge McElroy. She was the one who had allowed me onto the Alternative Discipline Program over the objection of Ms. Oropeza. But judges don’t have any real power in settlement conferences. They cannot make orders. They can only mediate and try to persuade. At least Ms. Oropeza would be physically present this time, but without the pressure of an imminent trial, I was not sure how much good that would do.
Judge McElroy met with each of us separately, with Ms. Oropeza first. When it was my turn, I was not surprised by the news. Ms. Oropeza would not budge. The judge had read my settlement conference statement, and she agreed that if the mitigating facts were incorporated into the write-up, there would be no problem getting it approved with the discipline that Ms. Oropeza and I had agreed to. We discussed the financial consequences of going to trial, and the Judge told me that there was a recent appellate court decision that could make those reimbursement fees non-dischargable in bankruptcy. She mentioned that the total cost to me could go as high as the $30,000 range. I realized then that the State Bar could hound me for the rest of my life with bank levies and wage garnishments to get that $30,000…even if I “won” at trial! I do not believe that Judge McElroy told me those things to coerce me. I sensed that she had encouraged Ms. Oropeza to reach some kind of middle ground.
So I made the decision to resign from the State Bar. There was no way that I could pay a $30,000 price tag to get into Judge Miles’ courtroom.
But do you think that even resigning is easy?
THE HIGH PRICE OF ESCAPE
The California Supreme Court must accept a resignation. And sometimes they don’t. Sometimes they will reject a resignation and force the matter back to trial. They usually do this if they think that the lawyer should be disbarred instead of being “allowed” to resign. So it’s not a sure thing.
But the Supreme Court dreamed up another rule that became effective January 1, 2010. There must be a factual stipulation signed by the lawyer and prosecutor in order for a resignation to be accepted.
Yes! You read that correctly! The Supreme Court will not let me leave the State Bar unless I sign Ms. Oropeza’s distorted stipulation. And if I don’t sign it, the Supreme Court is going to order my case back to Judge Miles and bill me for the trial whether I show up or not. And then the State Bar can hound me for the rest of my life to collect the money.
The State Bar has just turned the corner into becoming a cult. Cue the song Hotel California.
Before January 1, 2010, lawyers could resign with charges pending, and there was no write-up at all. (However, it was hard to get readmitted later, and lawyer had to wait at least five years before even trying). Now lawyers can’t just leave anymore. The State now demands a heavy price for leaving: “Sign a confession even if it’s not accurate, or become deeply indebted to us. Those are the only two choices you have.”
There is a saying, “The road to Hell is paved with law. In Hell there is nothing but law.” I’m not ready to entirely embrace that saying. After all, good laws that are fairly enforced protect and keep us civilized. But you get the idea. Unbalanced laws and treacherous legal procedures create a hellish environment, and with this latest rule, the State Bar discipline system morphed into its own little Hell for lawyers.
There is another saying, “The road to Hell is paved with good intentions.” Ask anyone who supports the current system and they will give you all sorts of convincing arguments why each rule I have criticized is good. The arguments they give to you sound sensible, but it is an entirely different story when you look at the real-world effects.
I knew it was a lost cause trying to convince Ms. Oropeza to make any changes to her write-up, so I called her and said that I was going to resign. She agreed to recommend it, but hinted with a giggle that I might want to consider agreeing to disbarment to make sure it really went through. I did not giggle back. The sentence about restitution was still in her newest draft, and I convinced myself that people would understand what that really meant. Of course, I was fooling myself. I drove to the State Bar offices in San Francisco where I met with Ms. Oropeza to sign the resignation papers and another copy (but only slightly modified version) of the distorted stipulation.
Driving back home, I thought, “OK, finally, now we’re done. Right? I’ve resigned. Maria is going to recommend the resignation to the Supreme Court. I can just move on. Right?”
RIDING THE REMKE EXPRESS
There is no worse insult that you can say about a legal system or a judge than to say that they “railroad” people. “Railroading” is an inflammatory word, and is not one to be bantered about lightly.
There are two common definitions of “railroading” at play here (from Dictionary.com):
Meaning #1: “To convict (a person) in a hasty manner by means of false charges or insufficient evidence.”
Meaning #2: “To rush or push (something) through quickly in order to prevent careful consideration and possible criticism or obstruction.”
The State Bar prosecutors were never hasty when it came to their own actions. But when they demanded something of the accused lawyer, they cracked the whip. An accused lawyer might not hear from the State Bar for a year or year-and-a-half as happened to me, but when prosecutors got going again, suddenly everything was a big rush. I remember my lawyer Art gallantly working nights and weekends to meet near-impossible discovery deadlines imposed by the State Bar—deadlines backed by the implied threat, “if you don’t comply, your client is screwed. If you don’t comply, there is no mitigation for cooperation.” No lawyer in any other kind of court would tolerate that kind of behavior. It does nothing to enhance the quality of State Bar justice, but it does plenty to frazzle the accused lawyers and the attorneys who represent them.
Up until now, most of the State Bar judges in my case had been buffers against prosecutorial excess—they had been havens of some sanity. But now I was about to enter the Review Department and deal with the presiding judge of the entire State Bar Court system, Judge Joann Remke.
Now, let me say that I have never met Judge Remke. She might be one of the best and brightest, someone that I might instantly like if I met her. My impressions are solely based on what she did with my resignation papers.
When a “resignation with charges pending” is submitted to the California Supreme Court, the prosecutor must submit a recommendation with an explanation why the resignation should be accepted. The stipulation of facts is part of that package. It is all sent to the State Bar Court’s Review Department. Judge Remke was assigned the task of reviewing my resignation, which included the distorted stipulation that Ms. Oropeza had prepared and to which I had finally succumbed.
Another document was also prepared and submitted at the same time. It was a supplemental report prepared by another State Bar lawyer, Victoria Molloy, based on information provided to her by Ms. Oropeza. The supplemental report states the reasons for the prosecutor’s recommendation.
I read the report, and it seemed inadequate to me. It didn’t explain what had happened any better than Ms. Oropeza’s distorted stipulation. Both documents failed to answer the questions that anyone would ask who read them: “So what happened to the clients’ money? Did Dahlin just keep it? It says here he paid ‘restituion.’ Was it full restitution? Partial restitution? What was that all about?” These were all questions that would have been answered if Ms. Oropeza had included the wording I wanted. But by this time I figured, “Hey, it’s out of my hands. What Maria and the other State Bar lawyer put into their report is their business. Victoria Molloy works in the department that handles resignations, so she must know what she’s doing.”
On May 23, 2010, after reading the resignation paperwork, Judge Remke issued an order. It wasn’t so much an order as it was a set of questions. She essentially wanted to know, so what happened with the money? What was this restitution? Does Dahlin still owe the clients any money? Are there any claims against the State Bar restitution fund?
So much for believing that people would understand what really happened by reading Ms. Oropeza’s stipulation and her one sentence about “restitution”! My little bubble of self-delusion was popped. This was a judge who was accustomed to reading these documents, and even she couldn’t understand the whole story, even with that supplemental report! And I thought to myself: This stipulation is the best document that the State Bar of California can produce about one of its members? This is the document that the State Bar of California wants to publish? The State Bar of California can’t do any better than this?
At that moment I felt ashamed for having let Ms. Oropeza pressure me into signing. But that is what years of pressure, coercion, economic duress, and having to constantly relive the most traumatic years of your life (the deaths of my two family members) can do to a person.
I picked up the phone and called Victoria Molloy. She assured me that she would contact Ms. Oropeza to obtain the information requested by Judge Remke and submit a new report. I asked her, “How about if we put that information into the stipulation itself?” “Oh, no,” she replied, “I’m not authorized to do that. You would have to talk to Ms. Oropeza.” At age 57, I don’t have enough hair on my head to pull out anymore, but if I had, I would have done it at that moment.
I received a copy of Ms. Molloy’s new report. I could not believe my eyes. She quoted from a letter that Sebastian Cipponeri had written to me in early 2005, which was several months before the State Bar had gotten involved. In that letter, Sebastian discussed the trust accounting. His accounting showed that all of the trust funds had been paid out to everyone. He was satisfied with that. His only complaint was the $5,000 that I had kept for my attorney’s fees.
This was the first time that the State Bar prosecutors acknowledged this! They had the letter in their possession for more than five years! They knew about the letter. Why is it only now that they are bringing it out? Why have they refused to incorporate some of that information into the stipulation like I had been asking them to do? The problem with leaving the information in a separate document is that it will get buried in the court file. It needs to go into the final stipulation of facts—the document that most people are likely to read.
That was the last straw. I also responded to Judge Remke’s questions. I did it with a motion to withdraw my resignation, set aside the stipulation, and dismiss the case. Five years of this insanity was punishment enough for anything that I might have done.
True to form, Maria Oropeza could not simply call me, admit that Judge Remke’s questions showed that the stipulation was inadequate, and offer to change the wording to bring it up to snuff. Instead, as always, her psyche was still driven to ram it through as it was. She filed an 18-page opposition to my motion with legal authorities that I am sure took far more time to prepare than fixing her stipulation would have, and which I am sure the State Bar will bill me for.
The day I received Ms. Oropeza’s opposition in the mail, I started working on my reply. It took several days to do the legal research and draft the pleading. I finished and it sent by overnight mail within two-and-a-half days. But Judge Remke was not about to wait for my reply as judges customarily do. No, she was going to help Maria Oropeza ram this through. On June 24, 2010, she issued a decision the day before my reply reached the court.
Her decision? She would not allow the distorted stipulation to be set aside. Despite the fact that her own questions pointed out the big flaws in it, Judge Remke apparently decided that a signature is a signature, so tough sh*t. And I had five days from the day her clerk mailed her order to make a decision: (1) withdraw my resignation and have Judge Miles decide the level of discipline based on the stipulation, or (2) withdraw my motion and move ahead with the resignation.
Judge Remke had just put me on her railroad express. I found her order in my mailbox the day before I had to notify her of my decision. Normally people have ten days or so to respond to most things to allow for the delay in mail delivery, but Judge Remke would have none of that, she only gave me five. I had been out of town on business and had almost extended my trip another three days, which would have resulted in my missing her deadline entirely. So, now I began to see where the prosecutors were getting some of their cues.
I decided to reject both of Judge Remke’s options. The “choice” was cynical. Judge Miles had already rejected a substantially similar stipulation because he did not feel that a three-year suspension was adequate punishment given how the facts were presented. Given this new stipulation, Judge Miles would, of course, feel the same way since it was hardly changed from the one he had rejected before. He would feel obligated to disbar me since the rules will not allow him to consider any facts outside the stipulation, including all of the mitigating facts beyond the two meager ones stated in the stipulation.
I therefore decided to appeal Judge Remke’s decision. The appeal would have to be made to the California Supreme Court. I faxed a written notice of my intention to her on the deadline date, with a copy faxed to Ms. Oropeza. My notice contained a declaration stating my reasons, including a complaint that Judge Remke had not waited to read my reply before making her decision. I stated my understanding that I had sixty days to file the appeal.
But apparently Judge Remke was determined to beat me to the punch and have me disbarred as quickly as she could. On July 15, 2010, out of the blue before I had a chance to file my appeal, she issued another order saying that I “did not file a response” to her order. My notice of intention to appeal was, of course, my response, but obviously to her it was “non-responsive,” meaning that it did not directly answer her question. So because I had “not responded” by making one of the choices she presented, she made the “choice” for me. She ordered that my resignation be withdrawn, the distorted stipulation remain binding, and the matter go back to the hearing department (which would be Judge Miles) to decide the level of discipline. And in her order she wrote, “…the pending proceeding should be handled in an expedited manner.” (Emphasis mine.) She knew very well what she had just done. She had just railroaded me into a disbarment.
Today is July 20, 2010, five days after I received Judge Remke’s latest order. My story is obviously not over. I will still be filing the appeal. Once Judge Miles recommends my disbarment, I will have the right to appeal that decision, but to the review department which is presided over by Judge Remke. I think we can already predict how that will go.
In October 2009, Governor Schwarzenegger took the unusual step of vetoing the 2010 funding for the State Bar. He cited the 1997 veto of Governor Wilson who had called the Bar “overly political, unresponsive to its membership, and inefficient.” Governor Schwarzenegger noted that these problems still remain. He pointed to the fact that the costs of the discipline system had skyrocketed between 2004 and 2008 despite a decline in disciplinary inquiries. The Governor added, “…the State Bar cannot continue with business as usual.” Bar President Howard Miller said that the Governor’s concerns were “legitimate” and promised to fix them. An accord was reached, and funding was restored. Of course, nothing changed.
My experience tells me why the costs of the discipline system have skyrocketed. The State Bar system is an outrageously litigious venue. The recent “get tough on lawyers” attitude has done nothing to increase public protection; it has only led to longer cases and more extreme forms of coercion. The prosecutors’ privacy intrusions, abusive tactics, and inflexibility cause the State Bar to expend large amounts of unnecessary time on their cases, and the outcomes are often unjust.
Supervising prosecutor Donald Steedman once told me that they settle 80% of their cases. I can only ask, how many of those are settled fairly? My case became part of that 80% when I caved. My friend who had to resign was also part of that 80%. As I came to learn, a great many other cases are “settled” in the same way.
As for me, I have given up any idea that this system can be corrected internally or through the judicial system. It is, after all, operated by the California Supreme Court. Governor Schwarzenegger’s short-term funding veto did not fix the problem. The only way to change it is through legislation or the initiative process.
I have had it in the back of my mind to try some reform activity. But I decided to wait until I saw how my case played out a little more. Judge Remke’s actions told me that the situation is hopeless.
I am now starting an advocacy group called California Lawyers for Discipline Reform. The goal is to use the legislative or initiative process to replace our current system with something better. This would be accomplished by taking these steps:
1. Learning about the attorney discipline systems in other states, and finding the best one in terms of public protection and fairness to the attorneys.
2. Drafting legislation or a ballot initiative to institute a similar system in California.
3. Finding a sponsor for the legislation, or organizing a ballot petition drive.
4. Raising awareness of the damage that the State Bar system causes to the public and the profession through the creation of a video documentary to be widely distributed online and on disc.
I hope you will join the effort whether you are a lawyer, former lawyer, or person who is concerned about public protection and the quality of justice.
For more information, and for updates on my story as it develops, please go to:
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To contact me, please email email@example.com.
Copyright © 2010 by Tore B. Dahlin. All rights reserved.
Important Note: California Lawyers for Discipline Reform (CLDR) is an advocacy group only and does not provide legal services or advice. Please consult a licensed attorney for any legal needs.