Appendix — Yokozeki v. State Bar of California

Supreme Court brief1974

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APPENDIX

436 Yoxozexi v. STATE BAR

11 C.3d 436; —— Cal.Rptr. ; P.2d

[L.A. No. 30194. In Bank. May 6, 1974.]

DAVID T. YOKOZEKI, Petitioner, v.

THE STATE BAR OF CALIFORNIA, Respondent.

SUMMARY

On the basis of its local committee’s findings of misappropriation of

a client's funds by an attorney, the Disciplinary Board of the State Bar

recommended disbarment. :

In a review of the board’s recommendation, the Supreme Court ordered

the attorney suspended for five years or until he has made full restitution,

whichever is the greater period. Moral turpitude and a violation of his

oath and duties as an attorney were found in evidence that he had con-

verted a clicnt’s realty and a promissory note secured by a deed of trust

on the client’s home to his own use. In the light of the accused’s failure

to show any real prejudice, the court found no ground for dismissing the

complaint, filed in the proceedings, in the client’s failure to file it until

about seven years after the questioned transactions, nor in the State Bar’s

alleged failure to timely process the complaint. Also, the court found no

merit in his request for a hearing de novo or an opportunity to present

additional evidence, based on his theory that he had been denied a reason-

able opportunity to defend. In rejecting this request, the court pointed

out that he had been afforded, but had failed to avail himself of, generous

opportunities to prepare his defense, obtain counsel, and appear at the

local committee’s hearing. (Opinion by The Court.) .

HEADNOTES

Classified to McKinney's Digest

(1) Attorneys at Law § 174(7)—Disbarment and Suspension—Proceed-

ings—Befere State Bar—Review—Scope and Extent—Review of

Findings.—The Supreme Court is not bound by the findings of the

s or wonwes

SARS RT GN ah LA DE

Yoxnozexi v. STATE BAR 437

11 C.3d 436; ~eme Cal.Rptr. , P.2d

Disciplinary Board of the State Bar and will exercise an independent

judgment on the weight and sufficiency of the evidence. However, the

findings are entitled to great weight and, in the court’s review of the

board’s recommendation, an accused attorney has a burden of show-

ing, in support of his contention of insufficiency of the evidence, that

they are nct supported by substantial evidence.

(2) Attorneys at Law § 174(6)—Disbarment and Suspension—Proceed-

ings—Before State Bar—Review—Scope and Extent—Matters Out-

side Record—Civil Fraud—Judicial Notice.—In a review of the rec-

ommendation of the Disciplinary Bcard of the State Bar, the Supreme

Court is not bound by findings made in a civil fraud action against

the accused attorney. However, that court may take judicial notice

of matters in such an action which arise out of a course of conduct

underlying the charges made in the disciplinary proceedings.

(3) Attomeys at Law § 176(5)—Disbarment and Suspension—Proceed-

re State Bar—Review—Evidence—Reasonable Doubts Re-

solved in Favor of Accused.—In reviewing a recommendation of the

Disciplinary Board of the State Bar, the Supreme Court will resolve

all reasonable doubts in favor of the accused attorney in deciding

whether his conduct, forming the basis of the proceedings, involved

moral turpitude.

(4) Attorneys at Law § 149(4)}—Disbarment and Suspension—Acts Jus-

tifying Discipline—Acts Involving Moral Turpitude and Dishonesty.

—A course of conduct involving moral turpitude and a violation of

an attorney’s oath and duties were demonstrated by evidence that he

converted, to his own use, a client’s real property and a promissory

note secured by a deed of trust on the client’s home, and participated

in a scheme to defraud the client’s potential judgment creditors.

[See Cal.Jur.3d, Attorneys at Law, § 63; AmJur.2d, Attorneys

at Law, § 50.]

(5) Attorneys at Law § 172(8)——Disbarment and Suspension—Proceed-

State Bar—Hcaring and Report—Application for Hear-

ing De Novo.—At attorney charged in disciplinary proceedings who

failed to appear or submit testimony in hearings, scheduled by the

local committee of the Disciplinary Board of the State Bar, which

resulted in a recommendation of discipline was not entitled to a hear-

ing de novo or an opportunity to present additional evi where

Dae cee ee et, See et

re Tae

Yorozexi v. STATE BAR

11 C.3d 436; —— Cal. Rptr. ——, P.2d

his contention that he had been denied a reasonable opportunity to

defend was negated by evidence that he had, without adequate jus-

tification, failed to avail himself of generous opportunities to prepare

his defense, obtain counsel, and appear at the hearings.

(6) Attorneys at Law § 172(1)}—Disbarment and Suspension—Proceed>

State Bar—Nature of Proceedings.—Disciplinary pro- t

ceedings before the state Bar are sui generis, are neither civil nor

criminal in character, and are not subject to the ordinary criminal

procedural safeguards.

(7) Attorneys at Law § 172(11)—Disbarment and Suspension—Proceed-

State Bar—Procedure Before Board—Attomey’s Duty

to Appear——A member of the State Bar has an obligation to appear

at his disciplinary hearing, and the hearing may properly proceed

in his absence.

(8) Attorneys at Law § 172(8)—Disbarment and Suspension—Proceed-

State Bar—Hearing and Report—Application for New

Hearing —A member of the State Bar who is the subject of disci-

plinary proceedings has a duty to present any evidence he deems

favorable to himself; a failure to do so may justify a denial of a me-

tion for a rehearing for the purpose of presenting additional evidence.

(9) Attorneys at Law § 172(11)}—Disbarment and Suspension—Proceed-

State Bar—Procedure Before Board—Subject’s Re-

sponsibility to Obtain Counsel.—An attorney charged in disciplinary

‘proceedings has a responsibility to obtain counsel if he wishes to be

represented at a hearing in the proceedings.

(10) Attorneys at Law § 163—Disbarment and Suspension—Proceedings

—Dismissal—“Delay” in Initiating Proceedings.—A client's failure

to file his complaint in disciplinary proceedings until about seven

years after the attorney allegedly converted the client’s properties to

his own use was no ground for dismissal of the complaint, where

the client negotiated with the attorney during the year following the

questioned transactions, brought a civil fraud action against the

‘attorney which resulted in a default judgment about four years later,

and initiated the disciplinary proceedings when it became apparent

that the attorney would not pay the judgment, and where the attor-

ney showed no real prejudice from the “delay” in filing the complaint

proceedings.

in those :

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A a CS Re

Brace... Bd, IRN Bre reteed Ona”

“YOKOZEKI v. STATE BAR 439

11 C.3d 436; —— Cal.Rptr. ——, a ee

(11) Attomeys at Law § 172(0.5)}—Disbarment and Suspension—Proceed-

State Bar—Limitation of Actions.—There is no limita-

tion period applicable to disciplinary proceedings before the State Bar,

mere lapse of time is no defense unless specific prejudice is shown.

(12) Attorneys at Law § 172(0.5)}—Disbarment and Suspension—Pro-

ore State Bar—Jurisdiction—Effect of State Bar's Fail-

ure to Adhere to Its Rules.—The State Bar's failure to adhere to its

rules in certain disciplinary proceedings does not deprive it of juris-

diction over those proceedings.

413) Attorneys at Law § 163—Disbarment and Suspension—Proceedings

—Dismissal—Timely Processing of Complaint—In the absence of a

showing of prejudice, dismissal of a complaint initiating disciplinary

proceedings is not required by the State Bar's failure to timely

process it.

(14) Attorneys at Law § 174(1)}—Disbarment and

State Bar—Review—Weight of Board's Recommenda-

tion.— Although the Supreme Court has the final word as to discipline

to be imposed on an attorney, the recommendation of the Disciplinary

Board of the State Bar is given great weight.

(15) Attorneys at Law § 175—Disbarment and

State Bar—Review—Burden of Proof.—In the Supreme

‘Court’s review of the recommendation of the Disciplinary Board of

the State Bar, the accused attorney has the burden of showing that

the recommendation is erroneous or unlawful.

(16) Attorneys at Law § 149(9}—Disbarment and Suspension—Grounds

and Defenses— Acts Justifying Discipline — Misappropriation of

Funds.—An attorney’s misappropriation of a client’s property is a

gross violation of general morality likely to undermine public confi-

dence in the legal profession and, therefore, merits severe punishment

in disciplinary proceedings.

(17a, 17b) Attorneys at Law § 174(10)}—Disbarment and Suspension—

Proceedings—Before State Bar—Review—Determination and Dispo-

sition—Order of Suspension.—Despite existence of mitigating cir-

cumstances, suspension of an attorney for five years or until he has

made full restitution, whichever is the greater period, was proper

pay 1978) z

C6 Pew ne

440 Yoxozeki v. STATE BAR

11 C.3d 436; —— Cal Rotr. ——, —— P24 ——

discipline under evidence that he had converted his client’s realty and ~

a promissory note secured by a deed of trust on the client’s home, and

had participated in a scheme to defraud the client’s potential judg-

ment creditors, where he appeared to be unrepentant and had not —

made, nor offered to make, full restitution.

(18) Attorneys at Law § 174(9)}—Disbarment and

‘ore State Bar—Review—-Determination and Disposition—

Matters Properly Considered—Restitution.—Restitution of property

misappropriated by an attorney may be considered in setting the de-

gree of discipline to be imposed on him.

(19) Attorneys at Law § 174(9)}—Disbarment and Suspension—Proceed- .

ings—Before State Bar—Review—Determination and Disposition—

Matters Properly Considered—Complainant’s Delay.—Delay in filing

a complaint initiating disciplinary proceedings against an attorney

may be considered in mitigation of discipline to be imposed.

(20) Attorneys at Law § 174(9)—Disbarment and Suspension—Proceed-

ings—Before State Bar—Review—Determination and Disposition—

Matters Properly Considered—Attomey’s Attitude.—The attitude of

the attorney to hearings in disciplinary proceedings of which he is

the subject may be considered in deciding on the appropriate sanction.

COUNSEL

Garry, Dreyfus, McTernan & Brotsky and Benjamin Dreyfus for Petitioner.

Herbert M. Rosenthal and Ronald W. Stovitz for Respondent.

OPINION a |

THE COURT.—This is a proceeding to review a recommendation of the

Disciplinary Board of the State Bar (Board) that petitioner, a member of the

State Bar, be disbarred from the further practice of law. The Board’s recom-

mendation is based on findings by a local administrative committee of the

State Bar that petitioner converted to his own use an apartment building

5 . Msc tavet a8

11 C.3d 436; —— Cal.Rptr. . P.2d

and a note secured by a trust deed on the residence of a client, contrary

to the purposes for which these assets had been transferred from the client

to petitioner.’ Although the committee’s findings were adopted in substance

by the Board, its recommendation of disbarment is harsher than the com-

mittee’s recommendation that petitioner be suspended from the practice of

law for a five-year period.

Petitioner contends that: (1) the evidence is insufficient to support the

findings; (2) he was denied a reasonable oppertunity to present his case

before the Board; (3) he was prejudiced by his former client’s seven-year

delay in the filing of the complaint with the State Bar and thereafter by the

tardiness of the State Bar in processing the complaint, and (4) disbarment

is an inappropriate sanction under the circumstances.

We reject the first three of these contentions. We decline, however, to

follow the Board’s recommendation of disbarment. Instead, we order that

petitioner make restitution to his former client and that he be suspended

‘from the practice of law for five years or until he has made full restitution,

whichever is the greater period.

Petitioner was admitted to practice in California in 1952. He has no

prior record of discipline. In early 1962 Dr. Chang Ha Kim consulted

petitioner in connection with a medical malpractice suit which possibly

exposed the client to personal liability beyond any insurance coverage.

Petitioner accepted a $2,000 retainer, filed pleadings in a separate declara-

tory relief action,? and suggested that Kim protect his assets by transferring

the same to To-Yo, Incorporated, a corporation controlled by petitioner,

to be held pending the outcome of the malpractice suit. Kim and petitioner

agreed to the transfers and in order to give the transaction the appearance

of propriety Kim was to receive from To-Yo, in exchange for his assets,

certain film rights which both he and petitioner knew were worthless.

Petitioner, by his conduct, is alleged to have violated his oath (Bus. & Prof. Code,

§ 6067) and duties (§ 6068) as an attorney and counselor at law. Such conduct

would constitute cause for disbarment or suspension (§ 6103). Specifically, he is

charged with wilfully violating rule 4 of the Rules of Professional Conduct and the

commission of acts involving moral turpitude and dishonesty. Rule 4 provides that

“A member of the State Bar shall not acquire an interest adverse to a client.” A

wilful breach of the rule subjects a member of the State Bar to reproval or suspen-

sion for a period not to exceed three years. (§ 6077.) The commission of acts in-

wee turpitude or dishonesty subjects a member to suspension or disbarment.

Unless otherwise specified, all statutory references are to sections of the Business

and Professions Code.

*Kim’s purported insurer had filed 4 complaint for declaratory relief, alleging that

was not covered against the malpractice Claim. Kim was represented by attor-

neys ciner than petitioner in the malpractice action.

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_—a : Yoxozext v. STATE BAR

11 C.3d 436; —— Cal.Rptr. —, —— P.2d

Accordingly, on February 12, 1963, Kim conveyed to the corporation his

interest in an apartment building and delivered a promissory note in the

amount of $65,000, which note was secured by a deed of trust to Kim’s

residence. Petitioner, on behalf of the corporation. executed a

separate writing which contained a promise to return the real estate and

the note secured by the deed of trust to Kim on an unspecified date in

1963.

In early 1963 petitioner, without Kim’s knowledge or consent, causéd

w To-Yo to execute and deliver to the Bank of Tokyo a deed of trust to Kim’s

i apartment building and an assignment of the note and deed of trust to Kim’s —

ie residential property. The documents were delivered to the bank in order ~

¥ to secure pre-existing notes on which the corporation and petitioner were _

‘8 obligated.

a In early 1964 the Bank of Tokyo attempted to-ccllect the note and ~

oy threatened to foreclose on Kim’s home. Kim confronted petitioner who ©

- requested additional time to “clear the matter up.” After petitioner failed

to act, Kim consulted another attorney who demanded an explanation from

. Petitioner then acknowledged that he had assigned Kim’s note

and its security, and had delivered a deed of trust to the apartment build-

"ing as collateral for bank loans to the financiallv distressed To-Yo. Peti-

tioner promised to repay the loans to the bank and did in fact discharge part

of the obligation, resulting in the retransfer of the interest in the

building to Kim late in 1964. However. petitioner failed to liquidate his

remaining obligations or to induce the bank to return Kim’s note and

reconvey the deed of trust to Kim’s home. 2

Kim sued petitioner and the Bank of Tokyo in early 1965 demanding

cancellation of the note and reconveyance of the deed of trust securing the

note. Kim’s verified complaint alleged that petitioner had fraudulently

‘induced him to transfer the properties and note by falsely promising to

return them.

Petitioner filed an unverified answer denying the allegations of the com-

plaint. Discovery proceeded through 1966. In 1968 Kim settled his differ-

ences with the bank whereby he paid the bank $14,000 in exchange for

the return of the note and the reconveyance of the security interest to him.

‘Petitioner discontinued the practice of law in California and moved to

Japan in October 1969. Two months later, in December. a default judg-

ment in the amount of $14,000 was entered in favor of Kim against peti-

tioner. The judgment has not been satisfied.

Petitioner failed to appear or submit any testimony at hearings scheduled

A ' 1.- sh aitiiiale acre Al

by the local administrative committee. Explanations of his conduct are

gleaned from an affirmative defense asserted in his answer to the complaint

and from his other communications to the State Bar. He claimed that there

was no attorney-client relationship between him and Kim in connection

with the transactions involving Kim’s assets: that other attorneys repre-

sented Kim in the malpractice suit; that the transfer of assets was made

pursuant to an investment by Kim in the To-Yo Corporation: and that

Kim consented to the subseauent assignments for security purposes to the

Bank of Tokyo. Petitioner was unclear as to the nature of the consideration

received by Kim for this “investment.” In his answer petitioner claimed

that Kim was to receive film rights of a value equal to the value of the

interests transferred to To-Yo. In one letter petitiorer claimed that Kim

was to receive a portion of the profits of the enterprise and at a later time

asserted that Kim was given an assignment of film rights. Petitioner claimed

| that the venture failed due to a breach of a distribution agreement on the

: part of a third party and other defaults not attributable to him.

Petitioner conceded that he held some of Kim’s assets until the mal-

practice suit was settled but claimed that the properties thus involved were

Certain contractual rights to purchase tracts of desert lands. According to

| petitioner these assets were transferred to him. were held only upon the

_ request of Kim without any charge or fee, and were retransferred upon

_ Kim's request.

The committee made and the Board adopted findings that petitioner had

misappropriated the deed to the apartment house, the note and the deed of

trust covering Kim’s personal residence.*

Sufficiency of Evidence

(1) Petitioner initially contends that the evidence was insufficient to

support the findings. Although we are not bound by the findings of the State

Bar and must exercise our independent judgment on the weight and suffi-

| ciency of the evidence (Glickman v. State Bar (1973) 9 Cal.3d 179. 184

| [107 Cal Rptr. 65, 507 P.2d 9531: In re Fahey (1973) 8 Cal.3d 842. 845

3 [106 Cal. Rptr. 313, 505 P.2d 1369]: Bernstein v. State Bar (1972) 6 Cal.

| 3d 909, 916 [101 Cal.Rptr. 369, 495 P.2d 1289}), the findings neverthe-

less are entitled to great weight and petitioner has the burden of showing,

» = ae eC

: ®Findings are made which are consistent with the account of events set out in the

text. In conclusion the committee found: “That [petitioner] converted the apartment

building and the Trust Deed upon the residence of Dr. Kim to his own use and pur-

poses contrary to the agreement between [petitioner] and Dr. Kim, and used said

for his own purposes by transferring said properties to the Bank of

. .

okyo to secure a pre-existing

Day 1974} 8

Pe ¢

OB, “aA . ~""""“"YOKOZEKI v. STATE BAR

11 C.3d 436; —— Cal.Rptr. —, —— P.2d —— —

in support of his contention, that they are not supported by substantia]

evidence (Schullman v. State Bar (1973) 10 Cal.3d 526, 529 [111 Cal. Rptr. —

161, 516 P.2d 865); In re Wright (1973) 10 Cal.3d 374, 377.[110 Cal.Rptr. ©

“348, 515 P.2d 292]; In re Higbie (1972) 6 Cal.3d 562, 569 [99 Cal. Rptr. |

865, 493 P.2d 97]). Petitioner fails to sustain this burden.

The record amply demonstrates petitioner misused the properties en-

trusted to him. Kim’s testimony, particularly with respect to petitioner's

proposal to hold Kim’s properties until the malpractice suit was settled

and also with respect to petitioner’s guilty knowledge of the impropriety

of the transfers to the bank, was corroborated by other witnesses. Addi-

tionally, the whole course of improper conduct is well demonstrated by

documentary evidence. Petitioner’s explanations, on the other hand, are

‘implausible. His assertion that there was no attorney-client relationship be-

tween him and Dr. Kim when the transfers occurred is contradicted by _

the $2,000 check from Kim to petitioner “for retainer in the malpractice

action” as well as by petitioner’s signature as the attorney of record on

the pleadings in the declaratory relief action. Petiticner’s contention that —

the transfer of assets represented nothing more than an investment in the

To-Yo Corporation is undermined by his conflicting explanations of Kim’s

participation as an investor. Petitioner’s claim that Kim consented to the

transfers of the properties to the Bank of Tokvo is rebutted by evidence

relating to transactions in which the bank was involved.

Finally, petitioner appeared to be unwilling to have his credibility tested. |

He made no statement under-oath in the civil suit against him commenced

by Kim and suffered a default judgment rather than procéeding to trial.

(2) Although findings in a civil fraud suit are not binding on us in this

proceeding (In re Wright, supra, 10 Cal.3d 374, 377), we can take judicial

notice of matters in a civil action which arise out of a course of conduct

underlying the charges against an attorney in disbarment proceedings (Lee _

v. State Bar (1970) 2 Cal.3d 927, 941 [88 Cal. Rptr. 361, 472 P.2d 449];

see Eschwig v. State Bar (1969) 1 Cal.3d 8, 18 (81 Cal.Rptr. 352, 459.

P.2d 904, 35 A.L.R.3d 662]). We note also that petitioner did not testify

or subject himself to cross-examination in these proceedings.

It is manifest for the foregoing reasons that petitioner’s attack on the

sufficiency of the evidence is without merit and we adopt the findings of

the committee. (3, 4) Although it is our duty to resolve all reasonable

doubts in favor of an accused member of the bar in deciding whether a

particular course of conduct involves moral turpitude (In re Fahey, supra,

8 Cal.3d 842, 845-846), we are compelled to conclude on the findings that

‘

IPPON POW HOR Na oe

YOKOZEKI v. STATE BAR — 445

11 C.3d 436; —— Cal.Rptr. —, —— P.2d

» petitioner’s acts do involve moral turpitude and constitute a violation of

» his oath and duties as an attorney. (See fn. 1, supra.)*

Opportunity to Defend

(5) Petitioner next contends that he was denied a reasonable oppor-

tunity to defend against the complaint. He now requests a hearing de novo

or, alternatively, an opportunity to present additional evidence since he was

not present nor represented by counsel at hearings scheduled by the com-

mittee. It appears, however, that petitioner did not avail himself of generous

opportunities to prepare his defense, obtain counsel, and appear at the

scheduled hearings. He is, accordingly, not entitled to relief.

_ Kim’s complaint of unprofessional conduct was filed in June 1970.

After a preliminary investigation a formal notice to show cause was served

on petitioner in Tokyo on December 25, 1971. Hearing was set for March

22, 1972, so as to afford time for discovery proceedings. Petitioner filed

a formal answer in early January 1972 and stated that he would be unable

to attend the hearing in California because of the expense involved as well

as his desire to fulfill commitments to do legal work in the South Pacific

area and Japan.’ Petitioner also requested an opportunity to take the

deposition in Tokyo of a loan officer of the Bank of Tokyo. Accordingly,

the hearing was continued to May 25, 1972.

On May 25, 1972, petitioner was still not ready to proceed as he had

not completed his discovery. The committee decided that the procedure

See ere

3 ads RN ewes aetna cet LAE ere

‘Even if we were to find in accordance with petitioner’s explanations he would

still be subject to disciplinary action. If we assume that Kim's transfers were in the

nature of an investment in To-Yo, petitioner did not reveal the corporation's shaky

financial status nor'give Kim any written evidence of his investment. All business

dealings between an attorney and client in which the attorney benefits are closely

scrutinized for unfairness on the attorney's part (Eschwig v. State Bar, supra, 1

Cal.3d 8, 16; Magee v. State Bar (1962) 58 Cal.2d 423, 430-431 [24 Cal.Rptr. 839,

374 P.2d 807]) and attorneys have been disciplined for inducing clients to invest

in enterprises without fully apprising them of the risks. (See. Himmel v. State Bar

(1973) 9 Cal.3d 16, 22-23 [106 Cal.Rptr. 638, 506 P.2d 1014): Clancy v. State Bar

(1969) 71 Cal.2d 140, 148-151 [77 Cal.Rptr. 657 454 P.2d 329); Krieger v. State

Bar (1954) 43 Cal.2d 604, 610-611 [275 P.2d 459].)

Furthermore, petitioner acknowledged that he held some of Kim's properties in

trust “until the medical malpractice action was settled.” Thus, by his own admission,

petitioner participated in a scheme to defraud Kim's potential judgment creditors,

which is a crime (Pen. Code. § 531). and a proper subiect for disciplinary action

(see Townsend v. State Bar (1948) 32 Cal.2d 592, 597-598 [197 P.2d 326}).

i 5Petitioner evidently was carrying out an extensive practice in the South Pacific.

_ He claims to be a member of the firm of Crain, Rathbun & Shoecraft, the “oldest

_ and most prestigious law firm in Guam and in the Trust Territory Islands of the

_ Pacific” as well as “chief counsel” for many “international conglomerate firms.”

Bi ills

TRE

‘446 Yoxozeki v. STATE BAR”

11 C.3d 436; —— Cal.Rptr. ——, —— P.2d ——

previously approved was too cumbersome and time consuming.® It re-

ferred the matter to another committee to formulate a more expeditious _

procedure. It was finally proposed that petitioner be sent a list of the names

of adverse witnesses, that he prepare cross-examination questions for each —

witness on the list, and that such questions be propounded to the witnesses —

immediately after they completed their testimony on direct examination.

Petitioner objected to this procedure since it forced’ him to prepare |

questions for cross-examination without prior knowledge of the witnesses’ ©

testimony on direct examination. The committee. however, approved this —

procedure at a meeting on August 21, 1972, and advised petitioner to ob —

tain counsel to represent him at the formal evidentiary hearing which was |

set for November 2, 1972.

Although the State Bar promptly mailed a record of these proceedings

to petitioner, he did not learn of these developments until carly October

since he had moved from Japan to Guam in July without notifying the

State Bar of his new address. In late October he requested a continuance

of the hearing stating that he had been unable to reach the attorney of his —

choice, Mr. William J. Bluestein.’ On November 2, 1972, the hearing

was continued to February 26, 1973, to give petitioner an opportunity to

obtain counsel and prepare. On November 9, 1972. the transcript of the

proceedings of November 2 was mailed to petitioner along with a letter

informing him that he was to retain counsel and be prepared for the hear-

ing before February 26, 1973.

Petitioner was additionally warned that the hearing would pruceed on

February 26 whether or not he had arranged to be represented by counsel.

Since Bluestein had told the State Bar that he was not petitioner’s counsel

and would not represent petitioner until a satisfactory fee arrangement had

been negotiated, the November 9 letter of the State Bar also requested

petitioner to inform the State Bar of the name of his attorney as soon as he

was retained.

Although petitioner negotiated with Bluestein for a fee arrangement,

he did not promptly forward the necessary funds to secure Bluestein’s

services. On January 3, 1973, Bluestein wrote petitioner asking for a

$500 retainer and requesting an immediate reply so he would be able to

hae rae so

“The previous arrangement was for the State Bar to present its witnesses on direct

examination and then send a transcript of the hearing to petitioner. Petitioner would

next compose questions for cross-examination of these witnesses which would be

sent to the State Bar to be propounded to the witnesses at a later hearing.

TPetitioner did not fave Bluestein’s correct address. The State Bar telephoned

Bluestein for petitioner and advised the latter of the correct address of the attorney.

ll . (Mav 1974 @

SBD OSE Gk Pl nA Sele Sy

9 Yoxozext v. STATE BAR 447

11 C.3d 436; —— Cal.Rptr. ’ P.2d

‘inform the State Bar whether or not he would be representing petitioner.

“On January 9 the State Bar wrote petitioner confirming the date of the

+ February 26 hearing and again warning him that he was expected to have

~ counsel ready by that date. On January 17 petitioner informed the State

3 Bar that he had not yet employed counsel since he had not raised the

- funds for a retainer. Petitioner did not forward the required sum until

i February 20. Unfortunately, it did not reach Bluestein until the very date

- of the hearing at a time when it was too late to appear or to represent

| petitioner at the hearing. Although Bluestein called the offices of the State

* Bar on the date of the hearing, he was unable to contact the examiner

| who had already left to attend the hearing. Bluestein did not officially

’ inform the State Bar that he represented petitioner until two days after the

4 | oy had been completed.

The foregoing record discloses that petitioner had ample opportunity to

| prepare for the hearing. More than 14 months had expired from the time

* theh notice to show cause had been served until the hearing was finally

a _ conducted. Petitioner was continually informed of the progress of the

-* proceedings. Because he had repeatedly advised the State Bar that he

{vould be unable to appear in person the committee had, in good faith,

~ made reasonable efforts to afford him an opportunity to defend against

_ the complaint under these difficult circumstances.

(6) Proceedings before the State Bar are sui generis, neither civil nor

criminal in character, and the ordinary criminal procedural safeguards do

not apply. (Lewis v. State Bar (1973) 9 Cal.3d 704. 713-714 [108 Cal.Rptr.

821, 511 P.2d 1173]; Bernstein v. State Bar. supra, 6 Cal.3d 909, 916;

_ Eschwig v. Sate Bar, supra, 1 Cal.3d 8, 18.) (7) A member of the

_ State Bar has an obligation to appear at his disciplinary hearing and the

hearing can properly proceed in his absence. (§ 6111: rule 32. Rules of

Proc. of the State Bar; see Alkow v. State Bar (1971) 3 Cal.3d 924, 933-

934 [92 Cal.Rptr. 278, 479 P.2d 638]; Wilson v. State Bar (1958) 50

_Cal.2d 509, 510-511 [326 P.2d 849].)- (8) A member of the bar has

_a duty to present any evidence he deems favorable to himself and a failure

to do so may justify a denial of a motion for a rehearing for the purpose

oi presenting additional evidence. (Barreiro v. State Bar (1970) 2 Cal.3d

912, 925 [88 Cal.Rptr. 192, 471 P.2d 992]; see Alkow v. State Bar, supra,

_at pp. 933-934; Wilson v. State Bar, supra, at pp. 510-511; In re Vaughan

- (1922) 189 Cal. 491, 497-498 [209 P. 353, 24 A.L.R. 858]. (9) Finaliy,

_ a member of the bar has a responsibility to obtain counsel if he wishes to be

"represented at a hearing. (See Hyland v. State Bar (1963) 59 Cal.2d 765;

4773-774 [31 Cal.Rptr. 329, 382 P.2d nes

theater 10360- _

1 448 Yoxozekr v. STATE Bar

11 C.3d 436; —— Cal.Rptr. ——, —— P.24 ——

In light of the foregoing it is apparent that petitioner has no cause to i

Kelly (1970) 397 U.S. 254, 269 [25 L.Ed.2d 287, 299-300, 90 S.Ct. =

such an opportunity, such procedures were necessitated by petitioner's ré- §

peated refusal to comply with his obligation to appear in California for

the hearing. The procedures were a bona fide effort by the committee to 7

ing by alternative means. The committee’s refusal to conduct the hearing ~

counsel; his election not to do so constitutes a waiver of any claims of —

irregularity he now urges.® +

The failure of petitioner to arrange to be represented by counsel at the |

hearing can be attributed only to his own defaults. Nearly six months |

due to petitioner’s lack of diligence in arranging for payment of the re- —

tainer fee.® His entire course of conduct in responding to the order to show |

cause reveals a lack of concern for the seriousness of the charges and a

| misunderstanding of the real priorities in the assignment of his time, effort

and energies to the problems confronting him.

Delay in Filing and Processing Complaint

Petitioner also urges that the complaint should be dismissed as he was _

also by the delay of the State Bar in processing the complaint. Neither of —

these contentions has merit.

of proceedings. He thus complains that he did not receive copies of certain docu- |

ments, that hearsay evidence was improperly used, and that the examiner was guilty ~

of prejudicial comments. Petitioner must be deemed to have waived such conten- ~

tions by failure of timely objections. Moreover, we are persuaded by the record that -

no prejudice appears.

®*There is no merit to petitioner’s further argument that the State Bar, as a cour- —

tesy, should have contacted Bluestein just before beginning the hearing. At the time .

Bluestein for the first time informed the State Bar that he was representing petitioner *

two days after completion of the hearing.

13 nenlany 191

FRO LAP Oe. oe MPT Ee nme

YOKOZEK! v. STATE BAR 449

11 C.3d 436; —— Cal.Rptr. ——, —— P.2d ——

(10) Kim attempted at length to resolve his difficulties with petitioner

through means other than complaining to the State Bar. The questioned

transactions occurred in 1963; Kim negotiated with petitioner for return

of his property in 1964; the civil suit was commenced by Kim in early

1965 and was not terminated until the ertd of 1969. Kim filed the complaint

with the State Bar in the middle of 1970, only when it became apparent that

petitioner was not going to pay the default judgment.

It is not unreasonable for a disgruntled client to attempt to resolve his

differences with an attorney through a civil action before filing a complaint

with the State Bar. (See Eschwig v. State Bar, supra, 1 Cal.3d 8, 14-15,

fn. 6.) Petitioner failed to present any evidence in his defense in the civil

action which involved the same course of conduct as in the case of the

proceeding before the State Bar. Consequently. his claim that he was

prejudiced by the deaths of three witnesses during the seven-year period

before the filing of the complaint is entitled to little weight, and he has

otherwise failed to demonstrate wherein any real prejudice lies.

(11) There is no limitation period applicable to disciplinary proceed-

ings before the State Bar; mere lapse of time is no defense unless specific

prejudice is shown. (Lewis v. State Bar, supra, 9 Cal.3d 704, 713-714;

Arden Vv. State Bar (1959) 52 Cal.2d 310, 316 [341 P.2d 6].)

(12, 13) Petitioner also claims that the charges should be dismissed

since the State Bar failed to comply with its own rules by tardiness in

processing Kim’s complaint.'* However, the failure to adhere to its rules

does not deprive the State Bar of jurisdiction (Rules of Proc. of the State

Bar, rule 20(a)), and a dismissal of the complaint is not required without

a showing of prejudice (Vaughan v. State Bar 1973) 9 Cal.3d 698. 702 [108

Cal.Rptr. 806, 511 P.2d 1158]). Far from being prejudiced by these delays,

petitioner was benefited. Although not specifically requested by petitioner

the delays were required in order for the State Bar to arrange for a trial

of the issues in petitioner’s absence. necessitated by petitioner’s election

not to appear in person at the hearing. (See Geibel v. State Bar (1938) 11

Cal.2d 412, 416-417 [79 P.2d 1073]. cert. den. 305 U.S. 653 [83 L.Ed.

423, 59 S.Ct. 248], rehg. den. 305 U.S. 676 [83 L.Ed. 438, 59 S.Ct. 361].)

As in the case of the claimed delay in filing the complaint, petitioner fails

to make any real showing of prejudice.

Jee alia wae ebaeatl sir heresies

1°Petitioner specifically claims there was no authorization for the delay in excess

of 225 days between the time of filing the complaint and the issuance of the notice

to show cause (see Rules of Proc. of the State Bar, rule 21(a)) or for the hearings

way hae rire for more than a total of 90 days. (See Rules of Proc. of the State

2 iS AOCLEOOR LEAT APT 2 . one ne Vente

450 YOxKOZEK!I v. STATE BAR

11 C34 436; ——~ Cal.Rptr. " P.2d

Discipline

Petitioner finally contends that disbarment is too severe a punishment

under the circumstances. (14) Although we have the final word as to

the discipline to be imposed (Glickman v. State Bar, supra, 9 Cal.3d 179,

184), the recommendation of the Board #s given great weight. (Schullman

v. State Bar, supra, 10 Cal.3d 526, 540.) (15) Petitioner has the burden

of showing that the Board’s recommendation is erroneous or unlawful.

(Persion v. State Bar (1973) 9 Cal.3d 456, 461 [107 Cal.Rpt:. 708, 509

P.2d 524]; In re Plotner (1971) 5 Cal.3d 714, 716 [97 Cai.Rptr. 193,

488 P.2d 385]; Mack v. State Bar (1970) 2 Cal.3d 440, 443 [85 Cal.Rptr.

625, 467 P.2d 225]; Sturr v. State Bar (1959) 52 Cal.2d 125, 127 [388

P.2d 897].)

(16) Misappropriation of a client’s property is a gross violation of gen-

eral morality likely to undermine public confidence in the legal profession

and therefore merits severe punishment. (Walter v. State Bar (1970) 2 Cal.

3d 880, 891 [87 Cal.Rptr. 833, 471 P.2d 481]; In re Urias (1966) 65 Cal.

2d 258, 262 [53 Cal.Rptr. 881, 418 P.2d 849].) However. there are a

number of mitigating factors in petitioner’s case. (172) He has no prior

disciplinary record. (Bradpiece v. State Bar (1974) 10 Cal.sd 742, 747

(111 Cal.Rptr. 905, 518 P.2d 337]; Mrakich v. State Bar (1973) 8 Cal.3d

896, 907 [106 Cal.Rptr. 497, 506 P.2d 633]: Bernstein v. State Bar, supra,

6 Cal.3d 909, 918; Himmel v. State Bar (1971) 4 Cal.3d 786, 798 [94

Cal.Rptr. 825, 484 P.2d 993]; Yapp v. State Bar (1965) 62 Cal.2d 809,

818 [44 Cal.Rptr. 593, 402 P.2d 361]; Burns v. State Bar (1955) 45 Cal.

2d 296, 303 [288 P.2d 514].) He has successfully continued his practice,

albeit outside of the State of California, after the transaction in question

without additional charges being lodged against him, and apparently has

the confidence of his colleagues in his current practice. (See Bradpiece v.

State Bar, supra, 10 Cal.3d 742, 747; Benson v. State Bar (1971) 5 Cal.

sated his client for the loss by inducing the bank to release its claim on

Kim’s apartment building. (18) Restitution of misappropriated property

may be considered in setting the degree of discipline. (Bradpiece v. State

Bar, supra, 10 Cal.3d 742, 748; Benson v. State Bar, supra, 5 Cal.3d 382,

388; Yapp v. State Bar,.supra, 62 Cal.2d 809, 818: Burns v. State Bar,

supra, 45 Cal.2d 296, 303; see Egan v. State Bar (1938) 10 Cal.2d 458,

461-462 [75 P.2d 67].) (19) The delay in filing the complaint against

petitioner may also be considered in mitigation of the punishment to be

imposed. (See Vaughan v. State Bar, supra, 9 Cal.3d 698, 703; Arden v.

State Bar, supra, 52 Cal.2d 310, 321].)

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POE PE DECMA Bn y

Yoxnozexki v. STATE BAR cael ae

11 C.3d 436; —— Cal-Rptr. ——, —— P:2d ——

Present here are other factors which militate against leniency in peti-

tioner’s case. Petitioner appears unrepentant. This is evidenced not only by

the fact that he has not made or offered to make full restitution to his

client either to cover Kim’s actual losses or to make payment of the $14,000

default judgment.

Further, he has failed to appreciate the seriousness of the charges in the

instant proceeding or to comprehend the importance of participating in

the disciplinary proceedings. Until recently,’' petitioner has repeatedly

declined to appear in California. (20) ‘The attitude of an attorney

toward disciplinary hearings properly may be considered when deciding on

the appropriate sanction. (Grove v. State Bar (1967) 66 Cal.2d 680, 684

[58 Cal.Rptr. 564, 427 P.2d 164]; see also Bradpiece v. State Bar, supra,

10 Cal.3d 742, 748: Benson v. State Bar, supra, 5 Cal.3d 382, 388.)

Petitioner is also a member of the bars of Guam, Trust Territory of the

Pacific, Okinawa and Japan, and he no longer practices in Californic.

Since his practice has not been directly affected by these proceedings he

apparently finds little incentive to take them seriously.

(17b) In view of the totality of the foregoing matters, we order that

petitioner make restitution to his former client and that he be suspended

‘from the practice of law for five years or until he has made full restitution,

whichever is fhe greater period. This order is effective 30 days after the

filing oi this opinion.

11Petitioner first offered to come to California when presenting his motion for a

ape de novo, which was after the local committee had its evidentiary hear-

ing and made its findings.

1974) 16

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