A recent unpublished but public opinion from the State Bar Court Review Department tells a story unique in most observer’s experience: a disbarment recommendation from the Hearing Department is completely overturned on appeal and the case is dismissed.
Bradshaw created testimentary documents, including a revocable living trust, for his client Ora Gosney in 2006. After she fell and became incapacitated in August 2013, he became her conservator and spent money from her trust for repairs on her house, contracting the work to a company he had played some role in setting up. After he was removed as conservator by the San Francisco Superior Court, the State Bar Office of Chief Trial Counsel brought discipline charges alleging misrepresentations, a scheme to defraud the trust and misappropriation of money from the trust, all acts of moral turpitude in violation of Business and Professions Code 6106 the amounts paid for the repair work done on Ms. Gosney’s home. Mr. Bradshaw’s State Bar member page was tagged with a “Consumer Alert” badge when the discipline charges were filed. After a three week trial, the hearing judge issued her deciscion recommending disbarment and placing Bradshaw in involuntary inactive enrollment on August 30, 2018.
The Review Department reversed, finding that the evidnce for moral turpitude was not clear and convincing, the burden of proof in a disciplinary proceeding. It noted that Ms. Gosney wanted to keep living at home, that the work was necessary and priced at fair market value. Moreover, there was no evidence that Bradshaw, while involved in its creation, had an ownership interest, as found by the Hearing Judge.
The dismissal means that Bradshaw will be able to recover some of his out of pocket costs for the long trial and appeal but not his attorney fees. There will be no compensation for being branded as a consumer threat and for the year of ineligibility to practice law.
The Superior Court decision to remove Bradshaw as conservator undoubtedly loomed large in the decision to prosecute this case and the Hearing Judge’s decision as well. But civil and criminal courts do get it wrong and cutting through the deference given those decisions in the discipline system takes hard work and the skill of an experienced discipline defense lawyer. Bradshaw luckily had one and apparently the resources to keep fighting after a bruising trial. Yes, the system did work as it was supposed to but you can’t help wondering if this trip was really necessary.
A large part of the work of the California discipline system is dealing with attorneys who are convicted of crimes. This part hasn’t always gotten a lot of attention, something that may have changed with the highly publicized retroactive fingerprinting of attorneys by the State Bar of California. Perhaps that is because it doesn’t deal with the application of the Rules of Professional Conduct, which are the focus of many of the people in the ethics world. Committing crimes is so self-evidently wrong that it may seem uninteresting. Of course, it is extremely interesting to those directly involved. And should be to others because the criminal conviction cases can raise issues relevant to the wider society outside the confines of law practice.
A recent unpublished decision of the Review Department of the State Bar deals with one of the issues: domestic violence. In the Matter of Khaliq involves an attorney who was convicted of violating Penal Code section 273.5 after a plea. That section makes wilful infliction of corporeal injury on a spouse, co-cohabitant or other defined persons that results in a traumatic condition a “wobbler” crime, one that can be charged either as a felony or misdemeanor.
One of the most interesting things about Khaliq is that the hearing judge’s recommendation was disbarment, based on her findings that the surrounding circumstances involved moral turpitude. Discipline Standard 2.15(b) states that “[d]isbarment is the presumed sanction for final conviction of a felony in which the facts and circumstances surrounding the offense involve moral turpitude, unless the most compelling mitigating circumstance clearly predominate, in which case actual suspension of at least two years is appropriate.” Discipline Standard reThe Standards, despite their name, being merely guidelines, don’t control the result; the Supreme Court has said that appropriate discipline in a given case depends on “on a balanced consideration of the unique factors in each case.” In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr . 980, 2006, WL 2465633. That means that comparable discipline case law must be looked at as well.
The problem is that there is very little comparable discipline case law that comes anywhere close to imposing disbarment for an act of domestic violence.
The harshest reported discipline imposed has been In the Matter of Otto(1989) 48 Cal.3d 970 where State Bar recommendation of six months actual suspension was adopted by the Supreme Court in a one-page opinion. Otto had been found guilty of two felonies, violations of section 273.5 and Penal Code section 245, both reduced to misdemeanors. The State Bar found no moral turpitude, but we don’t know why, as the Otto decision contains no facts. Neither side appealed, and the Court was reviewing the case under its plenary power to review all discipline matters.
Another case of the same relative vintage, In Re Hickey (1990) 50 Cal.3d 571 involved a nolo contendere plea to a concealed weapon charge and an improper withdrawal in a client matter. Included in the surrounding facts and circumstances were, in the Supreme Court’s words, “evidence that the attorney had repeatedly engaged in acts of physical violence toward his wife and others and that his conduct arose from repeated abuse of alcohol, discipline was warranted….from which he had recovered, and was related to marital difficulties that had been resolved.” Although Hickey was charged with misdemeanor violations of Penal Code sections 245, subdivision (a)(1) (assault with a deadly weapon) and 273.5 (spouse abuse) “the criminal proceedings against petitioner were suspended pursuant to Penal Code section 1000.6, for the purpose of granting diversion, and petitioner was referred to the Anger Awareness Program.” Hickey, at 576. The recommended discipline, including 30 days of actual suspension, was adopted and imposed.
Looking Hickey with contemporary eyes, the level of discipline seems astonishingly low, especially given the evidence of chronic violence toward his wife, notwithstanding that it was connected with an alcohol abuse problem that was ostensibly mitigated. The Review Department in Khaliq noted:
We also acknowledge that prior discipline in domestic violence cases often has not reflected the changes in society and the current recognition of the seriousness of domestic violence. Many earlier cases resolved such matters with low levels of discipline, including minimal or no suspension. We agree with the hearing judge that it is important to reevaluate the appropriate discipline by considering current societal values and changing mores.
Khaliq, slip opinion at 17.
Yet, disbarment was a bridge too far for the Review Department majority. It noted that only two California discipline cases have imposed disbarment for acts of domestic violence, both involving homicide. It noted that Khaliq’s felony conviction was reduced to a misdemeanor at the time of sentencing; Standard 2.16(c) says that disbarment or actual suspension is the presumed sanction for final conviction of a misdemeanor involving moral turpitude. It agreed with the hearing judge that moral turpitude was involved in the surrounding circumstances, including a “prank” where respondent sent text messages to his former girlfriend purportedly from a potential employer, and a lie told about a domestic violence incident that occurred 12 years earlier in undergraduate school. As part of its balanced consideration of all relevant factors, it gave less weight to aggravating factors and more weight to mitigating factors, including character witness testimony from Khaliq’s family. The court looked at discipline decisions from other states, filling in the gaps in California case law. It ultimately recommended two years of actual suspension with probation and the requirement that the respondent prove his rehabilitation, fitness to practice and current learning and ability in the law in a petition under Standard 1.2.(c)(1) before resuming active status. Judge Purcell, dissenting, would have imposed three years of actual suspension. Not disbarment but not a cake walk, especially given the Office of Chief Trial Counsel’s zeal in opposing Standard 1.2(c)(i) petitions.
Khaliq is not citable as precedent, but in the small world of State Bar Court jurisprudence where everybody, including hearing judges, read Review Department decisions with great interest, it will have an impact. Lawyers who commit criminal acts of domestic violence will find tougher sledding in State Bar Court.
The death of beloved entertainer Doris Day at the age of 97 naturally evokes in a California ethics lawyer memories of another who was not at all beloved. Jerome Rosenthal. The “man who was too mean to die”, as described by one of the discipline prosecutors who spent 20 years disbarring Rosenthal.
Jerome Rosenthal was the lawyer for Ms. Day’s husband, Marty Melcher. Melcher and Rosenthal essentially stole most of the money that Doris Day made during her acting career, only discovered after Melcher died in 1968. Ms. Day and her son Terry Melcher filed their State Bar complaint against Rosenthal in December 1968. Following a nearly twenty year delay, much of it caused by Rosenthal’s delaying tactics, the California Supreme Court ultimately disbarred him in 1987 (Rosenthal v. State Bar (1987) 43 Cal.3d 612.) In the meantime, Ms. Day obtained a judgment against Rosenthal, a judgment that Rosenthal was able to tie up in the Court of Appeal for ten years (Day v. Rosenthal (1985) 170 Cal. App. 3d 1125.)
But Rosenthal wasn’t finished. He filed an unsuccessful action against the State Bar and the employees who prosecuted him (Rosenthal v. Vogt, et al. (1991), 229 Cal. App. 3d 69.) He filed unsuccessful action in Federal Court against the California Supreme Court and State Bar officers Rosenthal v. Justices of the Supreme Court of California, 910 F.2d 561, 563 (9th Cir. 1990.)
The words of the trial court in Day v. Rosenthal summarizes the essence of disaster than was visited on Doris Day:
“The tragic drama in this case started to unfold back in the late “40’s or early ’50’s when Jerome B. Rosenthal began to represent Doris Day and Martin Melcher. It involves…. an attorney so intent on doing business with his clients, with their money … that he lost sight of ethical and legal principles. “The case from beginning to end oozes with attorney-client conflicts of interest, clouding and shading every transaction and depriving Doris Day and Martin Melcher of the independent legal advice to which they were entitled. It involves kick-backs, favored treatment of one client over others; it involves amateurish attempts to deal in the hotel and oil business that would be humorous but for the tragic consequences. It involves the extraction of fees from Doris Day and Martin Melcher and fees from other clients or entities for the same work performed. It involves an undertaking to provide financial and investment advice and a complete and utter failure to provide it. It involves a tortured effort by Rosenthal to maintain for years in the future the indentured position in which he had held Doris Day since 1956, even after she had ceased to permit him to act as her attorney. It involves a percentage retainer agreement that in the context of the facts of this case is void and against public policy because of the violation of the rules of professional conduct….
“The evidence so reeks of negligence, a violation of the Rules of Professional Conduct and all that is basic in the traditional relationship of attorney and client as to require that the court, as best it can, undo the transaction that occurred so as to attempt to put Doris Day and her late husband’s estate back to a position as if they had not become enmeshed in the machinations of Rosenthal’s twisted sense of professional responsibility.”
Day v. Rosenthal, at 1134–35.
The Court of Appeals decision documents the many, many instances where that twisted sense of professional responsibility expressed itself, beginning with a 1956 contingency fee agreement purporting to award Rosenthal 10% of everything the Melchers made. “They created the foundation for Rosenthal’s abuses, overreaching and double-dealing. They made Rosenthal the Melchers’ accountant, investment advisor, record keeper and attorney. He became a quadruple threat, in complete control of the Melchers’ financial affairs, free of any checks or balances…. The agreements were short and deceptively simple. They did not spell out any of the ways in which Rosenthal would gain and the Melchers could lose. Yet, as the trial court found, Rosenthal never adequately informed the Melchers of the terms, conditions and implications of their respective 1956 retainer agreements.” (Day v. Rosenthal, at 1144.)
Only one good thing can be said to have come from the Man Who Was Too Mean to Die. The lengthy and tortured history of the discipline case against him highlighted the limitations of the volunteer system of discipline adjudication. It helped point California in the direction the full time professional State Bar Court, recommended by Prof. Robert Fellmeth as part of the discipline reforms of late 1980’s and ultimately implemented in September 1989.
Aside from this small point, Jerome Rosenthal’s career stands as a monument to the darkest that the legal profession has yet produced. Doris Day deserved better but she came back and fought and tried to make the world a better place in her work for animal welfare, a bright light in contrast to all that blackness.
Another interesting State Bar Court decision, this one unpublished. In the Matter of Bhardwaj. Aside from another reminder that lawyers can be disciplined for conduct occurring outside the practice of law when they represent themselves, there is an interesting discussion of one of the things the respondent was sanctioned for an elaborate system of abbreviations meant to circumvent the word limitations in the Court of Appeals. The Office of Chief Trial Counsel argued that it’s violated the lawyer’s duty to uphold the law (Bus. & Prof. Code section 6068(a)) and was an act of moral turpitude (Bus. & Prof. Code section 6106.) Neither, said the Review Department, citing to their own published decision In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476, because court rules are not equivalent to statutes, and the au courant definition of moral turpitude from the Supreme Court, In re Lesansky (2001) 25 Cal.4th 11. Rather, respondent was rather “too clever by half”. This was clever enough, however, to constitute an aggravating factor.
No example of what this abbreviation system looked like in practice or was so dense as to amount to a secret code.
Exactly what determines when a published decision will appear on the State Bar Court’s website is a little mysterious. Gordon and Gonzalez are disbarment cases and the State Bar Court may have waited until the California Supreme Court acted on its disbarment recommendations before publishing their decisions. The recommendation in Amponsah is a one-year actual suspension, with a two year stayed suspension and probation. At this writing, it has not yet been transmitted to the high Court.
The real fun for those who follow the State Bar Court is figuring out why these decisions were deemed worthy of publication. Publication gives the opinion precedential value in State Bar Court under State Bar Rule of Procedure 5.159. Subsection E describes the criteria for publication:
(E) Criteria for Publication. By majority vote, the Review Department may designate for publication an opinion which:
(1) Establishes a new rule, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies, or criticizes with reasons given, an existing rule;
(2) Resolves or creates an apparent conflict in the law;
(3) Involves a legal issue of continuing interest to the public generally and/or to members of the State Bar, or one which is likely to recur;
(4) Makes a significant contribution to legal literature by collecting and analyzing the existing case law on a particular point or by reviewing and interpreting a statute or rule; or
(5) Makes a significant contribution to the body of disciplinary case law by discussing the appropriate degree of discipline based on a set of facts and circumstances materially different from those stated in published opinions.
Most Review Department decisions don’t make the cut and are unpublished and not citeable as precedent. Any given observer might read one of those decisions and conclude that it would fit within the criteria established by the Rule 5.159(e); clearly, selection reflects an exercise of the Review Department’s discretion. Its collective mind can be changed, and Rule 5.159(h) allows “any person” to request publication of a decision or to request depublication of a decision. Unpublished decisions have become published at the request of the Office of Chief Trial Counsel (OCTC), e.g., In the Matter of Nasser, as well as the Association of Discipline Defense Counsel, e.g., In the Matter of Yee. Gordon and Gonzalez may have been originally unpublished opinions subject to such a request; the current unavailability of the State Bar Court on-line docket makes it impossible to confirm that now.
The Gordon decision is truly a toadstool and a highly toxic one at that. The Respondent engaged in nationwide loan modification practice in partnership with a non-lawyer that included the mailing of many misleading direct mail letters, some seeming to come from the Department of Housing and Urban Development, the use of a number of different entity names and websites, and the collection of $11.4 million in advanced fees from from more than 2,000 in violation of Civil Code section 2944.7. The Consumer Finance Protection Bureau (CPFB) obtained a permanent injunction against Mr. Gordon in 2012 shutting down the operation. The Office of Chief Trial Counsel, in one of the infrequent applications of its power to seek interim remedies under Bus. & Prof. Code section 6007(c), obtained an order for his involuntary inactive enrollment from the State Bar Court in November 2012, based on the CPFB’s injunction as well as a large number of client complaints.
The misconduct was serious, probably serious enough to justify disbarment given the lack of mitigating factors and several aggravating factors. But the icing on Mr. Gordon’s cake was a weighty aggravating circumstance: his multiple threats against an OCTC investigator and prosecutor. Based on these threats, the prosecutor obtained restraining orders against Mr. Gordon. The Review Department spends three pages of the decision describing these threats in detail.
The scope of the egregious underlying conduct and the serious aggravating circumstances would seem to fit comfortably within Rule 5.159(e)(5) by furnishing a significant contribution to disciplinary case law materially different than prior case law. After discussing its prior published discipline cases involving loan modification misconduct, the Court states that
While the loan modification cases discussed above provide guidance, this case is unique. Due to the scope of Gordon’s scheme and the egregious aggravation, our recommendation may go beyond the discipline recommended in a typical loan modification case. (See In re Morse [(1995) 11 Cal.4th 184] at p. 207 [scope of attorney’s misconduct necessitated court go beyond recommendations in other false advertising disciplinary cases].)
The citation to Morse is significant because of Morse’s procedural history. Mr. Morse engaged in a massive direct mail solicitation effort (over four million mailers) to persuade homeowners to hire him to file statutory homesteads with a deceptive mailer designed to look like it came from a lender. The subject California Attorney General and the Alameda County District Attorney filed a successful action against Morse in for an injunction to halt his operation, upheld on appeal. Nonetheless, the Review Department, based on precedent, recommended only a 60-day actual suspension. The Supreme Court found this wanting and ordered discipline including three years of actual suspension. Moreover, it chided the State Bar Court for being overly dependent on its analysis on decisions whose facts were less serious. The Supreme Court articulated the inquiry this way:
These decisions provide some guidance, but our determination of the appropriate discipline ultimately depends on the answers to two key questions. First, what did Morse do wrong? Second, what is the discipline most likely to protect the public, the courts, and the profession, or stated conversely, to deter Morse from future wrongdoing?… Morse also appears unwilling to accept any meaningful discipline. The hearing judge recommended only a 15-day actual suspension, an exceedingly light sanction. Rather than count his good fortune, Morse felt wronged, arguing to the review department that the suspension was excessive. When the review department increased the actual suspension to 60 days, still a minor sanction, Morse sought our review.
Morse is a “correction” decision and its impact wasn’t limited to Mr. Morse. The presiding judge of the State Bar Court, who sits in the Review Department, and the Hearing Judge in the matter were not re-appointed. OCTC prosecutors (including me) felt emboldened, and the office began to focus on appellate advocacy in the Review Department. Gordon has more than a passing similarity to Morse. Both cases show that while precedent is important in State Bar Court, it isn’t as important as it might be in other courts. Of course, the test articulated in Morse is simple but somewhat circular since figuring out the appropriate discipline is what its all about anyway.
Gonzalez is a duller and sadder affair. Mr. Gonzalez, admitted in 2002, was disbarred on his third strike since 2011. The first discipline involves failures to perform, to communicate, to account for fees and to return client files that began in 2005. Mr. Gonzalez failed to fulfill the conditions attached to that discipline and was disciplined for that in 2012. The third strike involved both client misconduct similar to the first discipline and a failure to comply with California Rule of Court 9.20, the rule requiring notice of suspension to clients and others, among other things.
The Hearing Judge recommended an actual suspension of two years and until restitution was made to the clients, based on the judge’s reasoning the misconduct in “Gonzalez II occurred after much of the present misconduct.” (See In the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602, 619: weight of aggravation for prior discipline record depends on whether attorney had the opportunity to heed import of prior proceeding before committing misconduct at issue.) The Review Department disagreed, finding that “Gonzalez committed most of his present misconduct in 2011 and 2012, when he knew of both prior discipline cases.” Standard 1.18 suggests disbarment on the third strike unless compelling mitigation can be shown. The Hearing Judge assigned significant mitigating weight to the stroke Mr. Gonzalez suffered in 2012. Again, the Review Department disagreed, finding that the expert medical evidence did not show “clear and convincing” causation between the medical problems and the misconduct.
Gonzalez may be useful precedent on the application of Standard 1.8 and the quanta of evidence necessary to establish causation for medical problems. But it doesn’t stand out brightly against the unpublished decisions that apply the same sort of analysis, for instance In the Matter of Na, which also discusses Standard 1.8 but comes to a different result, two years actual suspension. If OCTC asked for this case to be published, I would love to read their argument.
Amponsah is a “second strike” case where OCTC sought disbarment for a failure to comply with California Rule of Court 9.20 and violation of two probation conditions. Case law says that disbarment is the presumptive discipline for failing to comply with Rule 9.20. Mr. Amponsah was able to show that he made unsuccessful attempts to comply with the Rule and the emotional difficulties he suffered after the imposition of prior discipline played in role in his failure to timely comply. Moreover, no client was harmed and he admitted his culpability. The Hearing Judge found “suspension rather than disbarment is appropriate because [Amponsah’s] misconduct is not indicative of his ability to conform to ethical norms” and recommended an actual one-year suspension. The Review Department, in the exercise of its de novo review (see Rule of Procedure 5.155(a)) weighed the mitigating factors a little differently but adopted the same recommendation.
Amponisah has presidential value in its analysis of the mitigating factors. OCTC sought disbarment below and, losing, appealed the case. Publishing the decision might be a signal to OCTC discouraging appeals where the record establishes appropriate mitigation.
This isn’t specifically provided for in the rules but in the relatively small world of disciplinary jurisprudence, but it is within the discretion of the Review Department hinted at in Rule 5.159(e).
But the nature of that small world points up a seeming contradiction in the use of Review Department decisions as precedent. OCTC lawyers, defense lawyers, and Hearing Judges are all going to be reading (or should be reading) both the unpublished and the published decisions to understand how the Review Department is analyzing issues and taking guidance from them. The Review Department gets to choose (by majority vote) which decisions will be used in the future, but not which arguments. Unpublished decisions may play a bigger role in discipline jurisprudence than in civil court, a role not obvious, making the publication status both important than it seems, but also pointing up the publication is a decision made by the Review Department for its own reasons, some that might not fit completely within the confines of the Rule.