Appendix — In re Kavalaris

7 Supreme Court, U.S

rizL?

991513 map? : 2000

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1999

IN THE MATTER OF CHARLES HAROLD

KAVALARIS ON DISCIPLINE

Petitioner

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI TO THE

SUPREME COURT OF CALIFORNIA

CHARLES H. KAVALARIS

425 East Santa Clara Street

Suite 150

San Jose, CA 95113

1-408-295-9796

Petitioner Attorney Pro Se

ieee eee

Table of Contents

Order of the California Supreme Court, December 15,

1999

Decision of Hearing Judge of State Bar Court of the State

Bar of California, June 14, 1998

Petition for Writ of Review to the California Supreme

Court

Review Department order of February 25, 1998

State Statutes

SBC No. 95-O-17608

$08 1332

IN THE SUPREME COURT OF CALIFORNIA

EN BANC

FILED

DECEMBER 15, 1999

Robert Wandruff, Clerk

Deputy

IN THE MATTER OF CHARLES HAROLD KAVALARIS

ON DISCIPLINE

Petition for writ of review is denied.

It is ordered that Charles Harold Kavalaris, State Bar

ey

No. 46853, be suspended from the practice of law for three years

and until he has shown proof satisfactory to the State Bar Court

if his rehabilitation, fitness to practice and learning and ability in

OLA RI,

the general law pursuant to Standard 1.4(c)(ii), Standards for

Attorney Sanctions for Professional Misconduct, that execution

of suspension be stayed, and that he be placed on probation for

four years subject to the conditions of probation, including one

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year actual suspension recommended by the Hearing Department

of the State Bar Court in its decision filed June 14, 1999. It is

further ordered that he comply with rule 955, California Rules of

Court, and that he perform the acts specified in subdivisions (a)

and (c) of that rule within 30 and 40 days respectively, after the

date this order is effective. * Costs are awarded to the State Bar

pursuant to Busn. and Prof. Code section 6086.10.* See

Business and Professions Code section 6126, subd. (c).

GEORGE

Chief Justice

A-2

THE STATE BAR COURT

OF THE STATE BAR OF CALIFORNIA

REVIEW DEPARTMENT - SAN FRANCISCO

In the Matter of ) Case No. 95-0-17608 NRL

)

CHARLES H. ) DECISION AND

KAVALARIS ) RECOMMENDATION

)

No. 46853 )

A Member of the )

State Bar )

)

DECISION

Introduction:

This is a contested proceeding. Office of the Chief Trial

Counsel (OCTC) was represented by Donald Steedman.

Respondent Charles H. Kavalaris (Respondent) represented

himself. The parties stipulated to a majority of the facts, and a

brief trial was held on April 27, 1999. Following receipt of briefs,

tentative rulings on culpability issued May 14, 1999. Tnal

concerning the appropriate level of discipline was held June 3,

1999. Following oral argument and supplemental briefing, the

matter stood submitted on all issues on June 11, 1999.

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For the reason hereafter stated, Respondent is found

culpable of the disciplinary charges brought against him. It is

recommended that he be suspended from the practice of law for

three years, that execution of the suspension be stayed, and that

he be placed on probation for four years, with conditions

including an actual suspension of one year, continued sobriety,

and treatment for depression.

Respondent was admitted to the practice of law in

California on June 26, 1970, and has been a member of the State

Bar of California since that time.

Findi Fact in C One tt bt

From 1979 until March, 1991, Respondent was the law

partner of Lanny E. Poel. At all times mentioned, Mr. Poel was

an attorney licensed to practice in California. The partnership

terminated in March, 1991.

From 1985 until 1990, Mario Gullo was the Secretary-

Treasurer of the San Jose Teamsters Union, Local 287. He

retired from the Teamsters in 1999. Mr. Gullo was not an

attorney.

In 1985, Mr. Poel, Respondent, and Mr. Gullo would refer

personal injury clients to Mr. Poel and Respondent in exchange

for approximately ten percent of any attorney’s fees earned by

Mr: Poel and Respondent. Beginning in 1985, Mr. Gullo referred

numerous cases to Mr. Poel and Respondent. In return,

beginning in 1985, and ending in 1991, Mr. Poel and Respondent

paid Mr. Gullo over $130,000.00 in “referral” fees.

Beginning in 1987 and continuing until May, 1991, Mr.

Poel and Respondent also made additional payments totaling over

$150,000.00 to other non-lawyers in exchange for case referrals.

These were all fee-sharing arrangements similar to the one with

Mr. Gullo.

Respondent has raised an affirmative statute of limitations

defense concerning counts one through three. The facts

concerning that defense are as follows:

In the course of a nationwide investigation of the Teamsters

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Union, a federal District Court appointed an investigation officer.

In November 1991, the officer conducted a deposition of Mr.

Gullo, in which he was asked questions about his arrangements

with Respondent and Mr. Poel, As a result of false answers to the

officers’ questions, in 1995 Mr. Gullo was indicted for perjury.

He pleaded guilty and was sentenced in 1996.

There was a newspaper article concerning Mr. Gullo’s plea

in the San Jose Mercury News on November 6, 1995. The article

named Mr. Poel and Respondent as participants in the kickback

scheme. An attorney for the State Bar read the article and

initiated a State Bar Initiated (SBI) Investigation.

Correspondence between the State Bar, Mr. Poel’s

attorney, and Respondent’s then counsel was exchanged. Mr.

Poel and Respondent admitted all the facts of the scheme, and

gave the State Bar documentary evidence of the payments. The

State Bar’s investigation file indicates that the Bar investigator

tried to get permission to talk to Mr. Gullo, but apparently never

did so. At all times, the investigatory file refers to this as an SBI

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matter.

Conclusions

The Court rejects Respondent’s defense that counts one

through three are barred by the statute of limitations.

Respondent acknowledges that the investigation into these counts

was initiated by reason of a newspaper article read by an attorney

for the State Bar un 1995. He also acknowledges that the statute

of limitations contained in rule 51 of the Rules of Procedure of

the State Bar applies only to investigations initiated by reason of

a complaint from a person. However, he argues that Mario Gullo

necessarily became the “complaining witness” in the matter once

it was investigated, that the case could not have gone forward or

been proven without him, and that rule 51 therefore applies to

conduct which admittedly ceased in 1991.

Respondent’s reasoning is faulty. Mario Gullo never

complained about Respondent’s misconduct. He had no reason

to, since he was the beneficiary of Respondent’s illegal scheme.

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The case was easily proven without him; Respondent’s former

partner (as well as Respondent) admitted the entire matter, and

supplied documentary evidence of all the transactions as well. In

fact, there appears no evidence in the investigatory file that

anyone from the State Bar ever spoke with Mr. Gullo. The

investigation was initiated solely by the State Bar, by reason of

the newspaper article reporting Mr. Gulio’s conviction. It does

not fall within the purview of rule 51.

Counts One through Three

As agreed by the parties to the stipulation, there is clear and

convincing evidence that, by reason of paying kickbacks to Mr.

Gullo for the referral of personal injury cases, Respondent

wilfully violated rules 1-320(A) and 1-320(B), and 1-120 of the

Rules of Professional Conduct, and rules 3-102(A) and 3-102(B)

of the former rules of Professional Conduct (which were effective

from 1975 until 1989), which rules prohibit a lawyer from

splitting fees with a non-attorney. His actions also constituted

conduct involving moral turpitude, in wilful violation of section

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6106 of the Business and Professions Code.

In 1996, Respondent maintained a client trust account at a

Wells Fargo Bank. On August 6, 1996, Respondent wrote a

check from the account in the amount of $40,000.00; on August

8, 1996, he wrote a check from the account in the amount of

$770.00. There were insufficient funds in the trust account to

cover these checks. On November 21, 1996, Respondent

commingled $1000.00 of his personal funds into the trust

account.

Initially, Respondent claimed that the overdrafts were due

to his bank improperly placing “holds” on deposits. This was not

accurate. In his pretrial statement, Respondent admitted the trust

account violations alleged in counts four and five. There is clear

and convincing evidence that by writing checks against

insufficient funds in his trust account on two occasicns, and by

commingling personal funds into his trust account, Respondent

wilfully violated rule 4-100(A) of the Rules of Professional

Conduct.

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: :

Find; “Fact in C Six through Eig!

As a result of prior discipline, Respondent had been

ordered by the Supreme Court to take and pass the Multistate

Professional Responsibility Examination (MPRE) by February,

1998. He failed to do so. On February 25, 1998, he received an

order from the Review Department of the State Bar Court,

notifying him that he would be suspended from the practice of

law on March 17, 1998, due to this failure

Respondent claims that when he received this order, he

placed a telephone call to Lisa Vorgias, a State Bar attorney who

had handled one of his previous matters. He claims that Ms

Vorgias told him how to file a motion to stay the suspension, and

—stated that she would not oppose such a motion.

Ms. Vorgias’s recollection is much different. She recalls

speaking with Respondent, but not until much later, after she

received a copy of the Review Department’s Apmil 10, 1998,

order denying Respondent’s motion.

In any case, Respondent attempted to file a motion for stay

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of suspension on March 6, 1998. The motion was rejected for

lack of proof of service. The motion was refiled and served on

March 16, 1998. No response was filed by OCTC; Ms. Vorgias

stated that she did not receive the motion, although it was

properly served. Despite the lack of opposition, the Review

Department denied the motion as moot on April 10, 1998.

Respondent had taken but not passed the March 1998

MPRE_ He filed a second motion for relief from suspension on

Apnl 17, 1998. This motion was opposed by the State Bar on

Apni 29, 1998. That motion was denied also. Thus, Respondent

was completely unsuccessful in staying the suspension, which had

taken effect March 17, 1998. :

Despite having actual knowledge that he was suspended

from the practice of law, Respondent represented a client in an

arbitration on April 10, 1998, made a court appearance on Apnil

10, 1998, completed the settlement of a case in late Apmil, 1998,

and appeared in another arbitration on May 4, 1998

Conclusions:

Respondent’s defense, that he was somehow misled by

agents of the State Bar into believing that his suspension for

failing to pass the MPRE would be stayed, is not accepted. Even

if Respondent’s recollection of events is credited, at most he was

advised by an attorney from the State Bar that he would have to

file a motion to get the suspension stayed, and that she would not

oppose it. He did this,.but his motions were denied. No agent of

the State Bar could stay the suspension; only the Review

Department of the State Bar Court could affect that action.

Respondent had no reasonable basis to believe that he was

entitled to practice law on the dates in question.

There is clear and convincing evidence that, while

suspended from practice for failure to pass the MPRE,

Respondent nevertheless practiced law on four separate

occasions. This conduct clearly establishes that Respondent

wilfully violated sections 6068(k), 6106, 6125, 6126(a), 6126(b),

6127 (a), 6127(b) and 6128(a) of the Business and Professions

Code.

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Plime an ae >

The standards for Attorney Sanctions for Professional

Misconduct (Standards) indicate that suspension or disbarment

is the appropniate sanction for conduct involving moral turpitude,

and for trust account violations. OCTC argues for disbarment.

Respondent argues that only an a (sic) period of probation is

warranted. Factors in mitigation and aggravation, as well as

applicable case law, influence the decision as to what level of

discipline is appropriate.

Alcoholism:

Respondent testified, and has previously stipulated that he

is an alcoholic. While he does not attempt to blame his

misconduct on his addiction many of his decisions in the period

from 1985 until 1996 were unfluenced by his drinking.

Respondent has checked himself into the hospital for treatment

for alcoholism at least three times since 1992. After the first two

hospitalizations he remained sober for some period of time but

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then returned to drinking. Respondent has now been sober since

March 26, 1997. He takes antabuse medication. He attends

Alcoholics Anonymous and the Other Bar several times a week.

He has a sponsor. He appears to have a good network in place

to support his continued sobriety. This factor will be taken into

account.

Famil | Medical Probl

Durning the years 1995 to 1996, Respondent went through

a divorce, which compounded personal and financial problems

which had existed for some time. He does not point to these

matters as excusing any of his misconduct, although they

undoubtedly contributed to his inattention to his professional

responsibilities. Respondent has also been diagnosed with acute

depression, which has been controlled through medication since

the fall of 1997. It was an episode of deep depression which

caused Respondent not to take and pass the MPRE in a timely

fashion, resulting in his suspension from practice in 1998.

Staleness of Gullo Matter:

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Although not barred by the statute of limitations, the Gullo

matters are very old. The misconduct occurred from 1985 until

1991, and ceased eight years ago. The Court takes judicial notice

that this factor was considered as mitigating by the parties when

they settled the case involving Respondent’s former partner, Mr.

Poel. '

Cooperation:

OCTC argues that Respondent has not been cooperative

in this matter. The Court disagrees.

When the Gullo matter first came to the State Bar’s

attention, Respondent and former partner hired an investigator to

review their records and obtain all the documentary evidence of

the transactions.

Additionally, Respondent stipulated to the facts regarding

culpability in this matter, saving OCTC and the Court valuable

] The Court notified the parties at the June 3, 1999 tnal

that it would take judicial notice of the stipulation in the Poel

matter. OCTC’s motion to reconsider, by way of letter brief, is

denied.

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trial time. The Court has found Respondent to be respectful and

cooperative.

Pro E sites.

Respondent has acted as a judge pro tempore for the courts

in which he regularly appears for many years. He also offers pro

bono legal assistance to other members of the Alcoholics

Anonymous meetings. These contributions to the community are

entitled to mitigating weight.

Aggravation:

Prior Hi

Respondent has a prior history of discipline. In the matters

resulting in Supreme Court Order SO56769, effective February

6, 1997, Respondent stipulated that he failed to communicate

with a client in 1989, failed to pay and report sanctions in 1991,

failed to properly withdraw from a case in 1993, failed to report

other sanctions in 1994, and received a second conviction for

driving under the influence in 1995. The agreed-upon discipline

was a Stayed six month suspension and two years of probation.

:

3

In 1998, Respondent was found to have violated his

probation in the earlier matter by failing to file one probation

report on time, and attending Ethics School late. For this

misconduct, Respondent received an actual suspension for sixty

days.

Multiple acts:

Respondent acknowledged that while suspended from

practice for failure to pass the MPE, he retained sixty client files,

did not work on them, and did not advise his clients of his

suspension. The Court considers this conduct to have been less

than forthright. However, it must be noted that Respondent was

under no court order or rule which obliged him to notify any

courts or clients of his administrative suspension for failure to

take and pass the MPRE.* There is no evidence that his conduct

caused harm to any client or case. The Court does not view this

2 The State Bar Court has only the most limited of

authority, under present rules of court, to order compliance with

rule 955 of the Rules of Court. It has no such express authority

in connection with administrative suspensions for failure to take

and pass the MPRE.

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conduct as being the extremely serious aggravating factor which

OCTC argues that it is

Harm Resulting from Acts of Moral Turpitude

An important factor where an act of moral turpitude has

been committed is the degree to which the victim of the act is

harmed. Here, Respondent’s moral turpitude finding is based on

the kickback scheme which he and Mr. Poel arranged with Mr.

Gullo and others. There is no showing that any of the clients

referred as a result of this arrangement were harmed.

Respondent testified that all of their cases were handled properly,

and that they received the full amounts owing to them from the

settlement or resolution of their cases. All payments to Mr. Gullo

and the others came from Respondent’s and Mr. Poel’s fees.

(The Court takes judicial notice that the parties agreed in Mr.

Poel’s stipulation that no clients were harmed.)

However, while their (sic) was no direct harm to clients,

there was harm to the partner in the kickback arrangement.

When the “beneficiary” of the scheme lied about it under oath,

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apparently to protect Respondent and Mr. Poel, he resigned from

his union office and suffered a perjury conviction. Although

Respondent and Mr. Poel paid his attorney’s fees, and paid him

a civil settlement, those payments cannot make up for the fact of

his criminal conviction or the effect on his reputation.

There was also harm in a broader sense to the

administration of justice. The public policy of the State of

California is that attorneys may not split fees with non-attorneys.

As applied in the present situation, that policy furthers the goal of

having members of the public freely choose their legal

representatives. Unsavory kickback arrangements such as this

one significantly harm the reputation of the legal profession and

the public’s perception of the legal system.

Lack of Deceit:

Another factor to be considered is the extent to which the

act of moral turpitude was carried out through dishonesty and

deceit. Here, although the kickback scheme itself was illegal, it

was carried out with remarkably little guile. Mr. Gullo was paid

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with checks, and 1099 tax forms were filed on his behalf. When

the State Bar inquired, these records were promptly turned over.

Thus, no aggravating factor of surrounding dishonesty is found.

Di ae

The misconduct in the present matter both predates and

spans the period of time during which

Respondent committed prior misconduct. The violations

in the Gullo matter lasted from 1985 until 1991. There appears

to be no reason why the Gullo matter could not have been tried

or settled with the matters involved in Respondent’s prior

disciplinary case, (sic) in 1996. That matter must be evaluated

together with the earlier matters, rather than against the

background of a-prior history of discipline.

The 1996 trust account violations are more troubling. They

occurred shortly after Respondent had agreed to the stipulation

in the first disciplinary matter. Even if inadvertent, these

violations show a lack of concern over the proper operation of a

client trust account. Further, although Respondent agreed to

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seek treatment for his alcoholism in the 1996 stipulation, he now

states that he has been sober only since March of 1997.

Respondent’s agreement in the first disciplinary matter appears

to have had little impact on his willingness to meet his

professional obligations.

Most troubling are Respondent’s decisions to continue

practicing law even though he knew he was suspended from

practice, (sic) in 1998. That conduct occurred repeatedly, after

Respondent had been sober for a year, after he had received

treatment for depression, and while he was well aware how

seriously the State Bar considered violation of the conditions of

his probaiion. Respondent’s actions show a disregard for the

orders of the Supreme Court and the Review Department of the

State Bar Court.

In asking for a disbarment recommendation, OCTC relies

upon the cases of Morgan v. State Bar (1990) 51 Cal. 3d, 598,

and In the Matter of Taylor (Review Dept. 1991) 1 Cal. State Bar

Ct. Rptr. 563. The misconduct in Morgan was dissimilar, and

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more serious than the misconduct here.

Although unauthorized practice of law was involved, as

here, Mr. Morgan’s additional offense was gaining a pecuniary

advantage over a client through use of her credit cards, which did

involve deceit and harm to the client. He had four prior

disciplinary proceedings for extremely serious misconduct,

including misappropnations of client funds, which had resulted in

accumulated suspensions of two years and probation over eleven

years. Here, Respondent’s only prior disciplinary suspension was

for sixty days, for probation violations, and his previous

probation was for two years.

In the Taylor matter, the essential distinguishing factor is

that it proceeded as a default, which always causes a grave

concern that the attorney has completely abandoned any attention

to his professional responsibilities. That appeared from the

record to have been the case with Mr. Taylor, who not only

practiced law while suspended, but deceived his client and the

court while doing so, and additionally failed to communicate with

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toch < Fel iat etc

NA RPS RAT pet I Pe ae

clients, return unearned fees, files, and papers. He had recently

been suspended for six months in a protveeding in which he also

did not participate. That situation is readily distinguishable from

the present matter, in which respondent has participated.

The Court agrees with OCTC that a severe sanction is

warranted in this case. However, it does not agree that any

sanction less than disbarment will be effective. It must be

remembered that the purpose of discipline is not punishment of

the attorney, but rather protection of the public, the courts, and

the reputation of the legal profession. (E.g. Chadwick v. State

Bar (1989) 49 Cal. 3d. 103, 111.) It is true that Respondent

violated his earlier conditions if probation. However, those

violations were the result of Respondent’s misunderstanding of

the requirements, rather than an intentional desire to ignore his

obligations.

The Court concludes that a lengthy period of actual

suspension and a lengthy period of probation, which will require

Respondent to remain sober, and in treatment, are the appropriate

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remedy in this matter. Respondent is warned that this is in every

respect his last chance to retain his license to practice law. If he

commits any violation of the terms of his probation, or again

practices law while on actual suspension from practice, the

inevitable result will be his disbarment

RECOMMENDATION

For the reasons stated, it is recommended that Respondent

be suspended from the practice of law for three years, and until

he has made the showing of rehabilitation, fitness to practice, and

knowledge, and ability in the general law required by standard

1.4(c)(ii), that execution of that suspension be stayed, and that

Respondent be placed on probation for four years with the

following conditions

l That for the first year of probation, Respondent

shall be actually suspended from the practice of

law

2 During the period of probation, Respondent shall

comply with the provisions of the State Bar Act

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Ce ee eee

Re 06 et tes + ea hnclle Nt atte Gn ee

5

WW

and Rules of Professional Conduct.

Subject to assertion of applicable privileges,

Respondent shall answer fully, promptly, and truthfully

any inquiries of the Probation Unit of the Office of

Tnals which are directed to Respondent personally or

in wniting relating to whether Respondent is complying

or has complied with these terms of probation.

Respondent shall promptly, and in event after more

than ten (10) days, report to the membership records

office of the State Bar and to the Probation Unit,

Office of Chief Tnal Counsel, 1149 S. Hill Street, Los

Angeles, all changes of information, including current

office or other address for State Bar purposes, as

prescribed by section 6002.1 of the Business and

Professions Code.

Respondent shall report not later than January 10,

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Apni 10, July 10 and October 10 of each year or

part thereof during which the probation is in

effect, in writing, to the Probation Unit, Office of

the Chief Trial Counsel, Los Angeles, which

report shall state that it covers the preceding

calendar quarter or applicable portion thereof,

certifying by affidavit or under penalty of perjury:

(a) in his first report, whether he has complied

with all the provisions of the State Bar Act,

(sic) and Rules of Professional Conduct since

the effective date of said probation;

(b) in each subsequent report, whether he has

complied with all the provisions of the State

Bar Act, (sic) and Rules of Professional

Conduct during said period;

(c) in a final report to be filed no earlier than

twenty days before the termination of his

probation, that he has complied with all the

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‘y Cintamani

Soe Niue tie Gr WERT Lea Buel Ge

provisions of the State Bar Act, (sic) and

Rules of Professional Conduct.

6. Respondent shall abstain from the use of any

alcoholic beverages, (sic) and shall not use or

possess any narcotics, restricted drugs, controlled

substances, marijuana, or associated paraphernalia,

except with a valid prescription. Respondent shall

continue to attend at least four meetings per month

of Alcoholics Anonymous, the Other Bar, or a

similar counseling session which has as its purpose

the maintenance of Respondent’s sobnety.

Respondent shall provide satisfactory proof of

attendance during each month to the Probation Unit

in his quarterly reports.

i 7. Respondent shall continue his treatment for

depression with a duly licensed psychiatrist,

psychologist, or clinical social worker, at his own

\\\

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expense He shall provide evidence to the

Probation Unit of his treatment in his quarterly

reports If the psychiatrist, psychologist, or

clinical social worker determines that Respondent

no longer requires treatment for depression or

other mental infirmity, Respondent may file a

motion for modification of this condition with the

Hearing Department of this Court attaching a

written statement from the psychiatrist,

psychologist, or clinical social worker, certifying

by affidavit under penalty of perjury that no

further reports are required.

It is not recommended that Respondent be

ordered to attend Ethics School or Trust

Accounting School again, ashe ha -cently done

so.

The period of probation shall commence as of the

date on which the order of the Supreme Court

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aaa Lit Erinn aa bee om, MAES: +

imposing discipline in this matter becomes effective.

10 At the expiration of the period of this

probation, if Respondent has complied with

the terms of probation, the order of the

Supreme Court suspending Respondent from

the practice of law for a period of four years

shall be satisfied and that suspension shall be

terminated.

It is not recommended that Respondent be ordered to take

and pass the Multistate Professional Responsibility Examination

within one year after the effective date of the Supreme Court

order in this matter, as he has recently done so.

It is recommended that Respondent be ordered to comply

with the requirements of Rule 955 of the California Rules of

Court within thirty calendar days of the effective date of the

Supreme Court order imposing discipline in this matter, and file

the affidavit provided for in paragraph (c), showing his

compliance with said order, within 40 days of the effective date

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of said Supreme Court order.

COSTS

It is further recommended that costs be awarded to the

State Bar pursuant to section 6086.10 of the Business and

Professions Code and that such costs be payable in accordance

with section 6140.7 of that Code.

Dated: June 14, 1998

Nancy Roberts Lonsdale

Judge of the State Bar Court.

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CO al ht cin aA et Si a NES eran ay ac ATMO

Eas nee he

CHARLES H. KAVALARIS

Kavalaris Law Corporation

425 East Santa Clara Street, Suite 350

San Jose, CA 95113

408-295-9796

Petitioner Attorney Pro Se

THE SUPREME COURT OF THE STATE OF

CALIFORNIA

In the Matter of Docket No. $081332

)

)

) State Bar Case No. 85-0-12550

)

)

CHARLES H. ) Verified Petition for

KAVALARIS ) Writ of Review

)

) (Ca. Rules of Court, Rule 952

)

)

No. 46853 )

Member of the State Bar )

)

I.

Introduction

The Petitioner, Charles H. Kavalaris, an attorney at law for

twenty nine years, petitions for review of the recommendation of

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the Honorable Nancy Lonsdale, Hearing Judge of the State Bar’s

Court. Said recommendation requests the issuance of an order

by this Court imposing a one year actual suspension of the

Petitioner’s twenty nine year license to practice law. Exhibit A.

The Petitioner asserts said recommendation is unlawful and

erroneous.

The transcript of the trial has been ordered and payment for

the same has been made. Exhibit B. This Petition must be

submitted without the transcript due to time constraints, because

the transcript has not yet been received. Exhibit B. Issues and

argument contained in this Petition are limited to the written

exhibits and court orders of which judicial notice is required. '

California Evidence Code section 452 provides for judicial notice

of records on file with courts. As held in People v. Preslie (1977) 70 Cal.

App.3d 486, 493, 138 Cal. Rpt. 828,"It is manifest that section 452,

subdivision (d). by its terms authorizes taking judicial notice of records on

file in the action before the trial court whether or not they are in evidence in

the proceedings and whether or not the trial judge relied upon them.”

California Evidence Code section 452 (d) states that “Judicial notice may be

taken of the following matters to the extent that they are not embraced within

Section 451: (d) Records of (1) any court of this state or (2) any court of

record of the United States or of any state of the United States.”

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RP Adm in?

The hearing judge erred as a matter of law in issuing the

recommended one year actual suspension. She punished the

attorney and denied him equal protection of the law by punishing

the attorney for his sustained period of proven rehabilitation from

alcoholism for two and a half years. She denied the attorney a

fair hearing and punished him for his disease instead

The hearing judge denied the attorney the equal protection

of the law in failing to mention and weigh the following

mitigating factors which are recognized in the Standards for

Attorney Sanctions for Professional Misconduct as circumstances

which shall be considered mitigating factors in arriving at the

proper disposition of the case: the absence of a prior record for

fifteen years of the attorney’s twenty nine years of practice; the

good faith of the member; the lack of harm to a client or person

who is the object of the misconduct; extreme emotional

difficulties and physical illness and clear and convincing evidence

that the attorney no longer suffers from such difficulties or

disabilities; spontaneous candor and cooperation displayed to the

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victims of the misconduct and to the State Bar during the

disciplinary investigation and proceedings; objective steps taken

tO spontaneously demonstrate remorse and recognition of the

wrongdoing found or acknowledged which steps were designed

to timely atone for any consequences of the misconduct; the

passage of considerable time since the acts of professional

misconduct occurred followed by convincing proof of subsequent

rehabilitation; and excessive delay in conducting the disciplinary

proceedings, which delay was not attributable to the member and

which delay prejudiced the attorney. The hearing judge failed

to credit the above mitigating factors, although the attorney has

been an attorney at law for almost three decades without any

misconduct except for the acts described herein for a limited

period of time. The equal protection of the law was violated by

the recommendation which issued from a judge who exhibited her

bias against recovering alcoholics by misstating the records and

refusing to provide the petitioner attorney any credit for the

above eight mitigating factors which are contained in her

C-4

recommendation but for which no credit in the one year actual

suspension recommendation was provided.

Precedent indicates that the disposition recommended

should have been a maximum of a ninety day period of actual

suspension.

A. Grounds for Review

Pursuant to California Rules of Court, Rule 954 review of

the recommendation of the Honorable Nancy Lonsdale of the

State Bar of California is (1) necessary to settle important

questions of law, (2) petitioner did not receive a fair hearing, 3)

the recommendation is not supported by the weight of the

evidence and 4) the recommended discipline is not appropriate in

light of the record as a whole.

B. Important Questions of Constitutional Law

This Petition is filed pursuant to California Rules of Court,

Rules 952(a) concerning review of decisions of the State Bar

Court of the State Bar of California. This Petition is filed as the

constitutional issues concern 1) the denial of the equal protection

C-5

of the law by a hearing judge’s discriminatory and biased

treatment against a recovering alcoholic and refusal to follow

precedent, 2) the denial of a fair procedure by the State Bar of

California, and 3) the denial of lawful notice of prohibited and

required acts in violation of the fair notice doctrine.

Due to the importance of these United States constitutional

issues, this Petition should be entertained as the recommendation

based on the clear errors of law by the Honorable Nancy

Lonsdale of the State Bar Court of the State Bar of California

render the recommendation unconstitutional under the mandates

of the United States Constitution.

Il.

The One Year Actual

Suspension Recommendation

is Unlawful and Erroneous

The purpose of State Bar disciplinary proceedings is not

to punish the attorney, but to protect the public, to preserve

public confidence in the profession, and to maintain the highest

possible professional standards for attorneys. Chadwick v. State

C-6

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4

5

Bar (1989) 49 Cal 3d 103, 111; Cooper v. State Bar (1987) 43

Cal 3d 1016, 1025; standard 1.3. Before imposing discipline, an

independent review must be conducted to determine whether the

recommended discipline is appropriate. (In re Ford (1988) 44

Cal.3d 810, 815 [244 Cal. Rpt. 476, 749 P.2d 1331].) In arviving

at an appropnate discipline, all relevant factors, including

mitigating circumstances, must be balanced on a case-by-case

basis. (Schneider v. State Bar (1927) 43 Cal. 3d 784, 798 [239

Cal. Rpt. 111, 739 P.2d 1279].) The discipline ultimately imposed

must be consistent with its purpose, that of protecting the public,

the courts, and the legal profession from unfit practitioners. (In

re Nevill (1985) 39 Cal.3d. 49 Cal. 3d 257, 776 P.2d 1021.

F, The One Year Actual Suspension Based on

Prior History is Unlawful and Excessive

The one year actual suspension recommendation lists

under “Aggravation” that there is a “Prior History.” It then

recites a prior probation order of 1997 and a claimed violation of

the probation order of 1997 as prior history. Exhibit A:9, para.

two and three. However, the recommendation states that, “The

C-7

musconduct in the present matter both predates and spans the

penod of time dunng which Respondent committed prior

misconduct The violations in the Gullo matter (fee-splitting

matter) lasted from 1985 until 1991. There appears to be no

reason why the Gullo matter could not have been tned or settled

with the matters involved in Respondent's first disciplinary case,

in 1996. The matter must be evaluated together with the earlier

matters, rather than against the backdrop of a prior history of

discipline * A 11:24-27, 12 1-4

The attorney's closing brief makes clear that in 1996

when the pnor matter was pending, the attorney sought to

consolidate the matters as the attorney admitted culpability of the

tee-splitting charges, but the State Bar prosecutor prevented

consolidation Exhibit D:3. para. two states that, “. Tnal

Counsel... overlooks the fact that Respondent immediately and

unequivocally accepted responsibility for the Gullo matters and

overlooks his former lawyer's repeated requests to resolve this

matter by consolidating Gullo with other matters which was

C-8

reyected out of hand by Lisa Vorgias (State Bar deputy trial

counsel)” While the hearing judge stated that the prior history

should not be an aggravating factor as the matters should have

been consolidated and heard together, she, in fact, treated the

matters as separate and the former matter as a prior aggravating

discipline record which was unlawful and erroneous

G. The One Year Actual Suspension based on

a Prior History of a Probation Violation

when There was no Actual Notice of the

Probation Terms is Unlawful and Excessive

The petitioner was admitted to the practice of law on June

26, 1970 After twenty seven blemish-free years of practicing

law, the 1997 disposition provided for a stayed suspension and

two years of probation (Exhibit C) The acts of misconduct

were not returning a client’s phone call or answering a client’s

letter in 1992, not reporting two sanctions’ orders in 1991 and

1994 although they had been reported to the State Bar, being one

month late in paying a sanction order in 1991, paying a sanction

order to the wrong party in 1991, not obtaining a court order

withdrawing from employment earlier than in 1993, although

C-9

there was no showing of prejudice to a client, and being

convicted of driving under the influence of alcohol in 1995.’

There were no mitigating factors listed other than the attorney’s

then twenty seven year period of blemish-free practice. Exhibit

C:36; State Bar Exhibit 4-0036.

The attorney was subject to a California Supreme Court

2

“Beginning in August 1992, Mr. Barba left phone messages for respondent

to call him back. By letter dated October 27, 1992, Mr. Barba requested in writing

a Status report on his case. Respondent failed to respond to these communications.”

(Exhibit C-18; State Bar Exhibit 4-0018) The attorney was ordered to pay $2,000.00

sanctions or $1,000 to the County and $1,000 to a Dr. Levin by June 30, 1991. In

July of 1991 he paid $2,000 to the County. Three years later Dr. Levin demanded

$1,000. “Respondent reasonably believed that his obligation to Dr. Levin had been

met by his previous payment to the County... [He] promptly paid Dr. Levin. ...

Respondent wilfully violated section 6068(b) and 6103 in that he failed to

promptly pay the court-ordered sanctions.” Exhibit C-20; State Bar Exhibit

4-0020). Respondent failed to report the sanctions. “He reasonably believed

that the sanctions had been reported to the State Bar because he received a

copy of the referral letter from the Superior Court to the State Bar....

Respondent wilfully violated ...section 6068(0) by failing to report the court-

ordered sanctions to the State Bar.” Exhibit C-23; State Bar Exhibit 4-

0023). “In June of 1993, respondent requested permission of his client to

withdraw...when that permission was denied, [he] petitioned the court for

permission to withdraw... [A]rbitration dates were pending. By failing to

request permission of his client, or alternatively by failing to request

permission of the court. prior to June, 1993 respondent violated Rule... 3-

700(A)(2).”. Exhibit C-25:23-28,. 26; State Bar Exhibit 4-0025-26.)

Respondent failed to report $1,075.00 in sanctions. At the time, [the client]

had already complained to the State Bar. Exhibit C-28; State Bar Exhibit 4-

0028). Respondent was convicted of driving under the influence of alcohol

in 1995 with a pnor conviction. Exhibit C-30-31; State Bar Exhibit 4-0035-

36).

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order which did not list any probation conditions. Exhibit C-1

(State Bar Exhibit 4-0001). The California Supreme Court order

stated that the attorney was “placed on probation for two years

subject to the conditions of probation as recommended by the

Hearing Department of the State Bar Court in its Order

Regarding Stipulation filed August 27, 1996.” Exhibit C-1 (State

Bar Exhibit 4-0001). The Hearing Department Order Regarding

Stipulation was not served on the attorney, but solely on his

counsel of record. Exhibit C-57 (State Bar Exhibit 4-0057).

The lack of actual notice of the probation conditions

imposed on an attorney is a serious due process problem in the

State Bar system and appears to be unconstitutional. A

probationer is entitled to actual notice of each probation

condition provided to him by a judge in open court, a probation

officer, and a meeting with a probation officer explaining each

probation condition and how to comply before said probation

conditions are enforceable. As held in Pollard v. United States

352 U.S. 354; 77S. Ct. 481, 1 L. Ed.2d 393 (1957), the absence

C-11

of an accused from the courtroom when probation is imposed

invalidates the judgment and probation order. Fed. Rules Crim.

Proc., 43°

Attorney disciplinary proceedings are quasi-criminal in nature.

In re: Ruffalo 390 U.S. 544, 551, 88S Ct 1222, 1226, 20 L. Ed. 2d. 117

(1968). Probation is a criminal disposition subject to the due process rights

of a cnmunal proceeding. “The night to be present at the return of a verdict

1s rooted un the due process clauses of the Fifth and Fourteenth Amendments

of the United States Constitution. United States v. Gagnon, 470 U.S. 522,

526, 84 L. Ed 2d 486, 105 S Ct 1482 (1985); sce also Snyder v.

Massachusetts, 291 U.S. 97, 105-06, 78 L. Ed. 674, 54 S. Ct. 330 (1934) A

defendant is constituuonally “guaranteed the right to be present at any stage

of the criminal proceeding that is critical to its outcome if his presence would

contnibute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S.

730, 745, 96 L. Ed. 2d 631, 107 S. Ct. 2658 (1987). See Ariz. R. Crim. P.

19.2 (“The defendant has the nght to be present at every stage of the trial,

including ... the return of the verdict.") As stated in In re Klein 197 Cal.

App. 2d 58. 17 Cal. Rpt. 71. (1" App. Div. 1 1961), at 64, “The right to be

present when sentence is pronounced derives from the common law.

Schwab v. Berggren (1891) 143 U.S. 442, 446-448 [12 S. CT. 525, 36 L.

ED 218] )” The Court in In re Perez 65 Cal. 2d 224, 418 P.2d 6; 53 Cal.

Rpt. 414 (1966), at 229. stated that, “There are substantial reasons for the

presence of the accused and the aid of counsel at the pronouncement of

judgment. There may be good cause why judgment should not be pronounced

(Pen Code. @ 1200). e.g.. the accused may be insane or have cause to offer

in arrest of judgmeni or for a new tral (Pen. Code, @ 1201); he may have

evidence and argument in mitigation of punishment when a choice of

sentence 1s available, when probation has been revoked in his absence he

may be able to show that it should be reinstated... Thus, In re Klein, supra,

197 Cal. App.2d at pp. 62. 65, specifically held that pronouncement of

judgment under the provision of section 1203.2a purporting to authorize

sentencing in the absence of defendant violated the rights ‘to appear and

defend. in person and with counsel’ (Cal. Ccnst., art. 1, @ 13), and that

acceptance of probation by the accused did not imply acquiescence in that

provision of section 1203 2a and waiver of those constitutional nghts.” If

judgment is pronounced in his [the accused's] absence, and no justifying

C-12

Since the attorney was never present when probation terms

were first recommended and then imposed and the California

Supreme Court order does not set forth the probation terms as is

required for their enforceability,’ the claim that a prior history of

circumstances are shown, the judgment must be set aside. (People v.

Brown, supra [ (1951) 102 Cal. App.2d 60 [226 P.2d 609].; People v.

Fields, 88 Cal. App.2d 30, 33 [198 P.2d 104]: In re Klein 75 Cal. App.2d

600, 603 [171 P.2d 471]; People v. Hawthorne, 63 Cal. App.2d 262, 264

[146 P.2d 517]; sec People v. Williams, 24 Cal.2d 848, 853 [151 P.2d 244];

Staples v. Commonwealth, 140 Va. 583, 587 [125 S.E. 319], Siegel v.

State, 201 Wis. 12, 17 [229 N.W. 44]; cases collected in 24 C.J.S., Criminal

Law, (a) 1574). Since the accused attorney was not present when the

California Supreme Court issued its judgment nor was he present when the

State Bar's court recommended any probation terms, the prior history of a

probation violation proceeding should be struck as the probation conditions

of the ethics school and the quarterly reports were not lawfully imposed.

4 Article VI. section 14 of the California Constitution provides in

pertinent part, "Decisions of the Supreme Court and courts of appeal that

determine causes shall be in writing with reasons stated." The order has no

reasons stated. In People v. Grant 113 Cal. App. 3d 457, 170 Cal. Rptr.

218 (3% App. 1980), the court invalidated probation when the judge just read

into the record the probation report. The Court stated that, “Where a court

(as here) attempts to support its sentence choice by merely reading the

probation officer's report into the record while stating neither the "primary

factor or factors that support the exercise of discretion" (Cal. Rules of Court,

rule 443) nor the “ultimate facts which the court deemed to constitute

circumstances in aggravation" (Cal. Rules of Court, rule 439(c)). it falls well

short of its statutory duty.” In this case, the order does not read into the

record the offense, the reasoning behind the disposition. the probation terms.

or why the probation terms that are not specified are required. The attempt

to claim there was a probation order and that certain unspecificd terms were

in such an order must fail. The order has none of the claimed terms. There

are no reasons stated.

C-13

a probation violation should be treated as an aggravating factor

is unlawful and excessive. The claimed probation terms were not

valid, having been entered in the absence of the accused attorney

and never served on him

It denies due process and the equal protection of the law to

claim that the California Supreme Court order may violate the

express mandate of the California Constitution and the Court’s

duty to specify the sie te factors, the exact terms of

probation, and why the probation terms were being imposed in

this case. “The threshold prerequisite to an equal protection

claim, however, is unequal treatment of persons who are similarly

situated.” (People v. Jerex (1989) 208 Cal. App. 3d. 132, 138-

139). “The Equal Protection clause imposes a requirement of

some rationality in the nature of the class singled out.” James

v. Strange 407 U.S. 128, 140 (1972), quoting Rinaldi 384

U.S., at 308-309, and that rationality is absent here..... giving

preference to a discrete class merely to accomplish the

elimination of hearings on the merits, is to make the very kind of

C-14

nil Zotac Anita hcl

arbitrary legislative choice forbidden by the Equal Protection

Clause. Reed v. Reed 404 US. 71, 76 (1971). Logan v.

Zimmerman Brush Co. 445 U.S 442, at 442 (J. Blackmun

concurring). Since all other probationers are entitled to be

present, to a statement in the presence of the accused by a judge

of a constitutional court as to the factors involved in the

disposition and a statement of what the probation terms are with

exactitude, and why those specific terms are required, and the

Constitution required that the California Supreme Court state its

reasons in writing for such terms, and it failed to do so, the

claimed probation order did not conform to the requirements of

due process or of equal protection of the laws, and was therefore

unenforceable. It is not an aggravating factor as it was

constitutionally infirm and unenforceable.

The recommendation states in relying on this claim of a

prior history that “In 1998 Respondent was found to have

violated his probation in the earlier matter by failing to file one

probation report o11 time, and attending Ethics School late. For

C-15

See

this misconduct, Respondent received an actual suspension of

sixty days.” Exhibit A:9 three para. The recommendation states

that, “It is true that respondent violated his earlier conditions of

probation However, those violations were the result of

Respondent's misunderstanding of the requirements, rather than

an intentional desire to ignore his obligations.” Exhibit A:13:

para. three. There was no actual notice of the probation terms

in any court order served on the attorney. This renders the

probation terms unconstitutional. This renders the claim of a

prior history based on a claim of such probation violations

unlawful and excessive.

H. The Extensive Record of Rehabilitation from

Alcoholism and Family Problems was Entitled

to Great Weight as a Mitigating Factor and It

was an Error of Law to Treat them as

Aggravating Factors

The recommendation issuing from hearing judge Nancy

Lonsdale is biased against those suffering from and who have

recovered from alcoholism, even though it is acknowledged by

this Court that alcoholism is a disease. This Honorable Court has

C-16

no ec ide ag all

ss

acto a ance ease lian ill

stated that, “{A]ccording to a consensus of the medical

community, alcoholism is a treatable disease.” See Sundance v.

Municipal Court (1986) 42 Cal. 3d. 1101, 1114-1115, 232 Cal.

Rpt. 814, 729 P. 2d. 80).

Through continued abstinence, an alcoholic may arrest the

deleterious manifestations of the disease. Hundreds of thousands

of Americans are recovering alcoholics, completely abstinent

from alcohol or other mind-altering chemicals. (Alcoholic’s

Anonymous World Services). An alcoholic’s rehabilitation is

almost universally predicated on a choice to confront his or her

drug problem, followed by abstinence sustained through ongoing

participation in a supportive program, such as Alcoholics

Anonymous. (See In re: Kersey (D.C. App. 1987) 520 A. 2d.

321, 325-326.” Billings v. State Bar of California (199) 267

Cal. Rpt. 319, 324.

While the case law from this Honorable Court indicates that

two and a half years of sustained abstinence and recovery, and

daily and weekly programs of rehabilitation with Alcoholic

C-17

Anonymous and other programs is a substantial mitigating factor

in determining what is the appropriate disposition concerning the

need to protect the public, hearing judge Nancy Lonsdale treats

such recovery as an aggravating factor, rather than a laudable

mitigating factor. See Howard v. State Bar (1990) 51 Cal. 3d.

215, 270 Cal. Rpt. 856, 793 P. 2d. 62. In her recommendation,

she states that, “Further, although Respondent agreed to seek

treatment for his alcoholism in the 1996 stipulation, he now states

that he has been sober only since March of 1997. Respondent’s

agreement in the first disciplinary matter appears to have had little

impact on his willingness to meet his professional obligations.”

(Exhibit A-12:8-13).

The attorney did comply with his professional obligations

under the exact language of the stipulation. Ms. Lonsdale

misstated the order and the attorney’s compliance. She

misrepresented the facts. The stipulation stated that, within thiriy

days of the effective date of the order, the attommey would provide

evidence of his enrollment in a program of substance abuse

C-18

recovery. Exhibit C-2. (State Bar Exhibit 4-0052,) third

paragraph. Said order went into effect on February 6, 1997.

Exhibit C-1 (State Bar Exhibit 4-001). The attorney enrolled in

the substance abuse recovery program by March 7, 1997, or

within the thirty day required period, and the decision

acknowledges that the attorney has now been sober for over two

years since March 26, 1997. Exhibit A:8:2. This Honorable

Court has indicated that rehabilitation, recovery, and sobriety for

over two and a half years is a factor which is entitled to

substantial mitigating weight rather than condemnation and

punishment. As stated by this Honorable Court in Howard,

supra, at 858,” The referee... credited expert testimony that [the

attorney] fell in the highest percentile of those whose recovery

programs were likely to be successful, particularly since she had

been sober for more than two years. He concluded that her

chemical dependency was well under control and predicated that,

under appropriate supervision, it would continue to do so.”

Attorney Howard received a six month actual suspension when

C-19

, —_ mi a

’

E

§

:

the standards provided for a one year actual suspension for

misappropnation of client funds. Her sobriety for two and a half

years before the hearing, which is the same as this Petitioner, was

lauded and given substantial mitigating weight in reducing a

normal one year actual suspension to a six months actual

suspension. Instead, Nancy Lonsdale increased an appropriate

disposition of a ninety day actual suspension to a one year actual

suspension, because she desired to punish the attorney for being

an alcoholic who had been abstinent and in complete recovery for

only two and a half years.

The hearing judge ignored the causal connection between

the attorney’s fee-splitting and failure to supervise his trust

account concerning two returned checks and a $1,000

commingling deposit and his alcoholism and the attorney’s

recovery from the same. The hearing judge exhibited her bias

and prejudice against the attorney as a recovering alcoholic with

her demeaning statements about the attorney’s illness and her

misrepresentations of the facts and the orders to his detriment.

C-20

-

’

7 =

|

She misstated the facts as she thinks badly and poorly of any one

who is so weak of character that he has the inns of alcoholism.

The disease is a biochemical disorder over which an attorney has

no control, in which he never can be cured, and where the only

hope is for the attorney through massive support mechanisms on

a daily basis to remain abstinent. That is what the attorney has

done for over two and a half years. Instead of receiving laudable

credit for his accomplishment and achievement, the hearing judge

condemned his perceived weakness of character in suffering from

the disease of alcoholism and not only accorded his successful

rehabilitation no mitigating weight, but treated it as an

aggravating factor instead. She said, “Respondent testified, and

has previously stipulated, that he is an alcoholic. While he does

not attempt to blame his misconduct on his addiction, many of his

decisions in the period from 1985 until 1996 were influenced by

his drinking. — has checked himself into the hospital

for alcoholism at least three times since 1992. After the first two

hospitalizations he remained sober for some period of time but

C-21

i then returned to drinking. Respondent has now been sober since

March 26, 1997. He takes antabuse medication. He attends

Alcoholics Anonymous and the Other Bar several times a week.

He has a sponsor. He appears to have a good network in place

to support his continued sobriety. This factor will be taken into

account.” Exhibit A:7:21: 26, 8:1-5.

The decision fails to provide any mitigating weight for the

attomey’s successful rehabilitation from his disease of alcoholism

for over two and a half years. The attommey’s law partner who

also engaged in the fee-splitting arrangement with the same

persons received probation. As stated in the recommendation,

“The Court notified the parties at the June 3, 1999 trial that it

would take judicial notice of the stipulation in the Poel matter.”

Exhibit A:8: footnote 1. Why should an attorney who engaged

in the same conduct receive an actual one year suspension

compared to probation for his law partner? The only

consideration is that this attorney should be punished for being an

alcoholic, and that is what the hearing judge did in the instant

om C-22

case. She condemns the attorney for being so weak as to be

hospitalized three times for treatment of his disease. She

condemns him for remaining sober after two hospitalizations for

‘abe period of time,” but then “return[ing] to drinking.” She is

critical that he is so weak that he must take medication for his

disease, must attend AA and the Other Bar several times a week,

and must have a sponsor. This is a “good network,” but it is not

counted as a meaningful rehabilitation over a sustained period of

time or something worthy of mitigating credit. It is “solely a

factor taken into account.” This evaluation is unlawful. The

hearing judge exhibits bias and prejudice against those suffering

from the disease of alcoholism. She refuses to apply the

standards providing for substantial mitigating factor credit for a

meaningful and sustained period of rehabilitation and recovery of

an attorney from the disease of alcoholism. Howard, supra.

Rules of Procedure of the State Bar of California, Title IV, part

A, std. 1.2(e) (iv).

The attomey voluntarily stipulated to extensive

C-23

=< sti lee

2

¥

:

rehabilitation measures which resulted in the California Supreme

Court order which took effect on February 6, 1997. He became

completely clean and sober on March 26, 1997 and has remained

so since then for over two and a half years. He voluntarily agreed

to provide the State Bar with a physical address and a telephone

number where he could be reached within twelve hours; to

abstain from the use of any alcoholic beverages; to not use nor

possess any nafcotics, dangerous, or restricted drugs, or

associated paraphernalia except with a valid prescription; to

enroll in a program of substance abuse recovery which met with

the approval of the Probation Unit, Office of the Chief Trial

Counsel; to provide satisfactory evidence of his compliance with

such program; to contract for, at his own expense, with a licensed

medical laboratory facility capable of conducting tests and

analysis of blood and/ or urine, which is certified by the National

Institute on Drug Abuse that meets with the approval of the

Probation Unit, or a hospital facility that meets with the approval

of the Probation Unit, Office of the Chief Trial Counsel, so as to

C-24

be tested at the request of the State Bar within a twelve hour

period of notification and provide the results from that approved

laboratory or hospital facility screening within ten (10)days of

receipt to the State Bar. He agreed to provide blood and/or urine

samples to the approved laboratory or hospital facility in such

manner as may be specified by the laboratory to ensure specimen

integrity. He agreed to provide the Probation Unit any and all

waivers necessary to allow the Probation Unit to verify with the

approved laboratory or hospital facility the accuracy of reports

submitted by him. He voluntarily agreed that his failure to submit

a report when due, or his failure to submit a report that is

consistent with the requirement of the condition of probation, or

his submission of a substance abuse testing report which

evidences the presence of a substance nie be considered a

violation of the abstinence provision of this condition of

probation and a violation of probation.°

a) The alcohol rehabilitation measures that the attorney voluntarily

agreed to appear at Exhibit A:53-54 (State Bar Exhibit 4:0053-0054) as

follows: ALCOHOL ABUSE\DRUG ABUSE CONDITIONS OF

C-25

ieee

These rehabilitation measures the attorney voluntarily

PROBATION, CURRENT ADDRESS AND TELEPHONE NUMBER-That

Respondent maintain with the Probation Unit, Office of the Chief Trial

Counsel. a current address and a current telephone number at which

Respondent can be reached and respond within twelve (12) hours.

ABSTINENCE-That Respondent shall abstain from use of any alcoholic

beverages, and shall not use or possess any narcotics, dangerous, or restricted

drugs. or associated paraphernalia except with a valid prescription.

SUBSTANCE ABUSE TREATMENT PROGRAM- Within thirty (30) days

of the effective date of the discipline ordered herein, the Respondent shall

provide evidence io the Probation Unit, Office of the Chief Trial Counsel, of

his enrollment in a program of substance abuse recovery which meets with

the approval of the Probation Unit. Office of the Chief Trial Counsel. The

Respondent must provide satisfactory evidence of his compliance with such

program with each report required under these conditions. SUBSTANCE

ABUSE TESTING-The Respondent shall be responsible for contracting. at

his own expense, with a licensed medical laboratory facility capable of

conducting tests and analysis of blood and/ or urine, which is certified by the

National Institute on Drug Abuse that meets with the approval of the

Probation Unit. or a hospital facility that meets with the approval of the

Probation Unit, Office of the Chief Trial Counsel. That subject to the

discretion of the Probation Unit, Office of the Chief Trial Counsel, the

Respondent shall be contacted by telephone by a member of the Probation

Unit staff, on a random basis, and directed to submit to an approved

laboratory or hospital facility, screening of his blood/urine within twelve (12)

hours of notification. Respondent shall provide the results from that

approved laboratory or hospital facility screening within ten (10)days of

receipt. The blood and/or urine samples shall be furnished by Respondent

to the approved laboratory or hospital facility in such manner as may be

specified by the laboratory to endure specimen integrity. The Respondent

shall provide the Probation Unit any and all waivers necessary to allow the

Probation Unit to verify with the approved laboratory or hospital facility the

accuracy of reports submitted by Respondent. OTHER-Failure by

Respondent to submit a report when due, failure to submit a report that is

consistent with the requirement of this condition of probation, or submission

of a substance abuse testing report which evidences the presence of a

substance subject to the condition shall be considered a violation of the

abstinence provision of this condition of probation and a violation of

probation.”

C-26

undertook, completed, and complied with in good faith for over

two and a half years. In addition, as the recommendation

acknowledges, the attorney “‘also offers pro bono legal assistance

to other members of his Alcoholic Anonymous meetings.”

Exhibit A:9: para one. As is often the case with recovering

alcoholics, the attorney also suffered the stress of a divorce in the

years 1995 to 1996 which admittedly “contributed to his

inattention to his professional responsibilities.” Exhibit A:8: first

para. As is often the case with sobriety for an alcoholic, the

attorney was “diagnosed with acute depression, which has been

controlled through medication since the fall of 1997.” Exhibit

A:8: first para. The attorney has made a demonstration of a

“meaningful and sustained period of successful rehabilitation.”

Rosenthal v. State Bar (1987) 43 Cal. 3d. [658] at 664, 238

Cal. Rptr. 394, 738 P. 2d. 1336. “By reliable evidence [the

petitioner has indicated] that a long-standing addiction is

permanently under control.” Gary v. State Bar (1988) 44 Cal.

3d. 820, 828 [244 Cal. Rptr. 482, 749 P. 2d. 1336.] The

C-27

attorney presented clear and convincing evidence that he has

successfully maintained a program of rehabilitation for a sustained

period of time and in a meaningful manner. This should

effectuate a reduction in the recommended one year actual

suspension to a ninety day actual suspension as credit should be

given to a twenty nine year attorney who has proven that he has

rehabilitated himself physically and mentally from the effects of

a normally fatal disease.

L The Absence of a Prior Record for Fifteen

Years was not Listed as a Mitigating Factor

The hearing judge did not find respondent's twenty nine

years of practice as a mitigating factor, presumably because of his

prior discipline. However, the prior misconduct occurred during

the same time period as the present misconduct and both the prior

and current misconduct occurred within a narrow time frame.

Therefore, it is appropriate to consider respondent's approximate

fifteen years of blemish-free practice prior to the first act of

misconduct as a mitigating circumstance. (Shapiro v State Bar

(1990) 51 Cal.3d 251, 259; Jn the Matter of Burckhardt (Review

C-28

Dept. 1991) 1 Cal. State Bar Ct. Rptr. 343, 350-351.) It was

unlawful and erroneous for the hearing judge to fail to provide

mitigating factor credit for the attorney’s fifteen years of blemish-

free practice of law.

Under standard 1.2(e)(I), even if the misconduct warrants

an actual suspension, a long period of blemish-free practice is

given great weight in determining the disposition so as to

substantially reduce the period of actual suspension. Chefsky v.

State Bar (1984) 36 Cal. 3d. 116, 132, fn. 10, 202 Cal. Rptr.

349, 680 P. 2d. 82, Waysmann v. State Bar (1986) 41 Cal. 3d.

452, 457, 224 Cal. Rptr. 101, 714 P. 2d. 1239. In Gold v. State

Bar (1989) 264 Cal. Rptr. 125, the attorney did not file a lawsuit

within the statute of limitations, misrepresented a settlement to

his client, paid his own money to the client, and did not advise his

client that she had recourse against him in legal malpractice. A

recommended ninety day actual suspension was reduced to a

thirty day actual suspension by reason of the fact that the attorney

had practiced law without incident for twenty five years.

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In Friedman v. State Bar (1990) 50 Cal. 3d. 235, 245,

266 Cal. Rptr. 632, 737 P. 2d. 359, at 637, the fact that the

attorney had practiced law for more than twenty years with an

unblemished record before the misconduct occurred was held to

be “highly significant for purposes here.” In assessing this

factor’s weight to be accorded, the court stated, Friedman,

supra, at 637, that “it is a particularly strong mitigating factor in

this case, given petitioner’s substantial years of practice.” In

Hawes’ v. State Bar 274 Cal. Rptr. 2 (1990) the attorney was

found culpable of six separate counts of abandonment of clients

and of failure to return unearned fees. Because of his twenty year

record, the recommended discipline was reduced to a one year

actual suspension. In Drociak v. State Bar (1989) 278 Cal.

Rptr. 86, the attorney used a pre-signed verification to answer

interrogatories. This was considered a fraud on the court since

the client did not actually see and sign the answers ‘© the

interrogatories such that the declaration under penalties of perjury

submitted was false. Because of his twenty seven year blemish-

C-30

free career, Drociak received a thirty day actual suspension. —

The fifteen year blemish-free period of practice of the

attorney was entitled to weight as a mitigating factor to reduce

the recommended one year actual suspension to a ninety day

actual suspension. The hearing judge’s failure to provide

mitigating factor credit for the attomney’s long period of blemish-

free practice was a denial of the equal protection of the law and

therefore unlawful and erroneous. Aronin v. State Bar of

California (1989) 276 Cal. Rptr. 160, at 167.

J. The Absence of Subsequent Complaints was not

Accorded any Mitigating Factor Weight

~The trust violations occurred in the summer of 1996 and

the commingling on November 21, 1996. Exhibit A:5: first para.

The fee-splitting occurred from 1985 to 1991. Exhibit A: 2:20-

23. The attorney noi passing the Multi-State examination by two

points occurred in March of 1998. Exhibit A: 6: para 13. The

absence of any difficulties in the last year since the misconduct

occurred “shows [that the attorney has] an ability to adhere to

acceptable standards of professional behavior.” Cain v. State

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Bar (1978) 21 Cal. 3d. 523, 526, 146 Cal. Rptr. 737, 579 P. 2d.

1053. Asin In re: Highbie (1972) 6 Cal. 3d: 562, 573, 99 Cal.

Rptr. 865, 493 P. 2d. 97, where the attorney continued to

—-

practice law for over two years after his incarceration and

~ successfully represented his clients’ interests and obtained their

trust in those two years, this was regarded as a significant

mitigating factor. Four years of successful practice following the

misconduct was credited as a mitigating factor in Bradpiece v.

State Bar (1978) 21 Cal. 3d. 523, 526, 146 Cal. Rptr. 737, 579

P. 2d. 1053. Since the attorney has now been educated

concerning his professional responsibilities by attending the State

Bar Ethics School and being tutored for his successful completion

of the Multi-State Professional Responsibility essiliaien, and

there has been no new complaints since the deposit of his

personal funds of $1,000.00 to the trust account in 1996, the

absence of subsequent complaints should have been credited as

a mitigating factor.

\\\

K. No Weight was Accorded the Attorney’s

Objective Steps Spontaneously

Demonstrating his Remorse and His

Recognition of his Wrongdoing

The recommendation admits that the attorney took

objective steps spontaneously to demonstrate his remorse and

recognition that his fee-sharing arrangement with Mr. Gullo was

wrong as were the trust violations. But the recommendation

fails to accord this mitigating weight. The recommendation states

that the petitioner and his law partner paid Mr. Gullo’s attorney’s

fees voluntarily. It also states that petitioner and his law partner

voluntarily paid Mr. Gullo a civil settlement. Exhibit A:11: para.

one. The two trust checks that were processed by the bank,

although there were insufficient funds, were promptly made

good, and the attorney deposited $1,000 of his own money into

the trust account so that there would be no possible overdrafts.

The attorney also admitted the fee-splitting and the trust

violations immediately. Exhibit A:5:10-18, 8:22-24, 9:1-9. When

“an attorney displays candor, cooperation, and remorse

throughout the disciplinary proceedings, and a willingness to

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accept punishment and to rehabilitate himself,” this is a significant

mitigating factor. Bradpiece v. State Bar (1974) 10 Cal. 3d.

742, 748, 111 Cal. Rptr. 905, 518 P. 2d. 337, Hipolito v. State

Bar of California (1989) 257 Cal. Rptr. 331, at 334. In

Chadwick v. State Bar of California (1989) 260 Cal. Rptr.

538, at 541, this Honorable Court stated that, “[W]e believe,

based on his testimony and his actions, that petitioner is

remorseful - recognizes his wrongdoing. We consider this to

be mitigating under standard 1.2(e)(vi).” Standard 1.2(e)(vi1)

provides that “circumstances which shall be considered mitigating

are objective steps promptly taken by the member spontaneously

demonstrating remorse, recognition of the wrongdoing found or

acknowledged which steps are designed to timely atone for any

consequences of the attorney’s misconduct.” As_ the

recommendation states, but does not recognize as a mitigating

factor, ““When the Gullo matter first came to the State Bar’s

attention, Respondent and his former partner hired an investigator

to review their records and obtain all documentary evidence of

ca eta rr ven oe

the transactions. Additionally, they each fully admitted their role

in the scheme. Mr. Poel was able to reach agreement with the

Bar; for reasons which remain unclear, despite many attempts,

Respondent was unable to convince the State Bar attorneys to

reach a siniaion with him. Additionally, Respondent stipulated

to the facts regarding culpability in this matter, saving OCTC and

the Court valuable trial time. The Court has found Respondent

to be respectful and cooperative.” Exhibit A:8:22-24, 9:1-9.

While the attorney’s cooperation in supplying all of the

evidence against himself after hiring an inyestigator to gather the

evidence for the State Bar and in immediately admitting his

violations, paying the attorney’s fees for Gullo and paying him a

civil settlement voluntarily are in the record, the hearing judge

denied the attorney the equal protection of the law in refusing to

accord the attorney’s demonstration of remorse and

acknowledgment of his wrongdoing any mitigating weight.

L. The Passage of Considerable Time

Followed by Convincing Proof of

Subsequent Rehabilitation was _ not

Credited

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The acts that are involved are fee-splitting with a non-

lawyer, two trust account checks which were paid against

insufficient funds, a $1,000 personal deposit into the trust

account to protect against overdrafts, and a claim of unauthorized .

practice of the law. The attorney admitted culpability of the first

two items spontaneously and immediately. The third claim is that

the attorney of twenty nine years who received no suspension

order from his licensing court engaged in the unauthorized

practice of law when he continued to use his license when an ex

parte claim of a State Bar employee was mailed on February 25,

1998 claiming that he had taken the attorney’s license effective in

two weeks time, when the attorney had filed for a stay, honestly

believed it was stayed, and had no notice in advance that a State

Bar employee could constitutionally ex parte take his license.

Refer Exhibits E-J. Prior thereto, the last act of claimed

misconduct was in on November 21, 1996 when the attorney

deposited $1,000 of his personal monies into his trust account to

cover for any possible overdrafts. Exhibit A:5: para one. The

C-36

attorney became clean and sober on March 26, 1997 and has

remained so for over two and a half years to the present time.

Exhibit A:8, first sentence. There has been the passage of

considerable time followed by convincing proof of subsequent

rehabilitation. As in Chadwick, supra, at 544, this is entitled to

mitigating weight. The Standards for Attorney Sanctions for

Professional Misconduct provide that this is entitled to mitigating

weight. Std. 1.2 (e)(viii). The recommendation fails to provide

any mitigating weight for this factor in arriving at the one year

actual suspension recommendation.

M. The Excessive delay in Conducting the

Proceedings, which Delay was not

Attributable to the Attorney and which

Prejudiced the Attorney was not Credited

as a Mitigating Factor

The Standards for Attorney Sanctions for Professional

Misconduct provide that excessive delay in conducting the

proceedings not attributable to the attorney and which prejudiced

him is entitled to mitigating weight. This matter was subject to

an investigation which commenced on November 6, 1995.

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Exhibit A:3: third para. The attorney admitted culpability

immediately. “When the Gullo matter first came to the State

Bar’s attention,... [the attorney and his partner) each fully

admitted their role in the scheme.” Exhibit A: 8:24, 9:1-4.

For four years the State Bar refused to seieaa this matter.

As stated in the recommendation, “...[T]he Gullo matters are very

old. The misconduct occurred from 1985 until 1991, and ceased

eight years ago. The Court takes judicial notice that this factor

was considered as mitigating by the parties when they settled the

case involving Respondent’s former partner.”

Exhibit A:8:16-21. Although this is a comment concerning

“Staleness of Gullo matter,” there is no mitigating credit in the

recommendation provided this attorney, unlike the treatment that

was accorded his former partner, for the excessive delay of the

State Bar in conducting the proceeding when the attorney four

years prior thereto had admitted culpability. Four years from

admission of liability to trial is far too long a delay in conducting

the proceeding. The attorney should not be penalized with a one

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year actual suspension now when the State Bar deliberately

delayed four years in bringing this matter to trial, and the acts of

misconduct are now a decade old and are ancient history with

the attorney leading an exemplary personal and professional life

now for over two and a half years.

I. There was a Lack of Harm to Clients or

Persons which was not Accorded any

Mitigating Weight

The recommendation is unlawful as it fails to provide for

the mandatory mitigating factor of no harm to any client or to the

person who is the ‘tines of the misconduct. The Rules of

Procedure of the State Bar of California, Standards for Attorney

Sanctions for Professional Misconduct, state under Standard 1.2

(d) that, “Circumstances which shall be considered mitigating

are:... (i!) lack of harm to the client or person who is the object

of the misconduct.” The misconduct found falls in three

categories: fee-splitting with a non-lawyer, two trust account

checks paid although there was insufficient funds and $1,000 of

personal funds deposited into the trust account, and not passing

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an examination in a year and continuing to practice law while

there was no order from the licensing court prohibiting the same

and a misunderstanding concerning a stay.

The recommendation taints the findings by claiming that the

fee-splitting with a non-lawyer is “a kickback scheme.” Exhibit

A:4: para. 4, , A:10, para. Three. There was no kickback. There

was no scheme. A portion of the attorney’s fee was shared with

a non-lawyer as a referral fee. Exhibit A:2, para. 17. A

“kickback scheme” is “a bribe,” or “a commercial bribe paid by

a seller to a purchasing agent in order to induce the agent to enter

the transaction.” There was no evidence of a bribe. There was

no evidence that the payment was to induce the agent to enter

into a transaction with the attorney. Mr. Gullo was a teamster’s

official. The attorney was a member of the union. Gullo referred

cases to the attorney and his partner. The attorney and his

partner “paid Mr. Gullo with checks and 1099 tax forms were

filed on his behalf.” Exhibit A:11:20-21. While the hearing judge

wishes to suggest that the referrals would not have been made to

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the attorney and his partner unless a bribe was paid, there was no

evidence of any bribe. The hearing judge’s claims that this was

a kickback scheme when there was no evidence of the same is

reflective of her overreaction and failure to attend to the law as

it is set forth. This was a fee-splitting arrangement which was

prohibited by the rules of professional conduct, but it was not

sinister nor illegal. The payments were open and obvious and

made by check and the attorney prepared and filed tax forms

indicating the payments made to Gullo.

The recommendation has a heading “Harm Resulting from

Acts of Moral Turpitude.” Exhibit A:10: para. three. It states

that,” There is no showing that any of the clients referred as a

result of this arrangement were harmed. Respondent testified

that all their cases were handled properly, and that they received

the full amounts owing to them from the settlement or resolution

of their cases. All payments to Mr. Gullo and others came from

Respondent’s and Mr. Poel’s fees. (The Court takes judicial

notice that the parties agreed in Mr. Poel’s stipulation that no

C-4]

clients were harmed.) However, while there was no direct harm

to clients, there was harm to the partner in the kickback

arrangement. When the ‘beneficiary’ of the scheme lied about it

under oath, apparently to protect Respondent and Mr. Poel, he

resigned from his union office and suffered a perjury conviction.

Although Respondent and Mr. Poel paid his attorney’s fees, and

paid him a civil settlement, those payments cannot make up for

the fact of his criminal conviction or the effect on his reputation.”

~ Exhibit A:11: para. one.

There was no harm to any client or to any one who was the

object of the fee-splitting arrangement. Gullo was not the object

of the fee-splitting. He was the partner in it. There was no

evidence that the attorneys suggested, condoned, or requested

that Gallo lie under oath about the payments he received from the

attomeys. There was no evidence that the attorneys suggested,

condoned, or requested that Gallo resign from his office. There

was absolutely no evidence that Gallo lied under oath to protect

the attorneys. The attorneys did not know that they could not

pay referral fees under the rules of professional conduct. They

paid Gullo by check. They filed Form 1099's with the IRS

indicating that they paid Gullo the referral fees and sent the form

to Gullo for him to attach to his income tax returns. As the

recommendation admits, the payment of the fees to Gullo “was

carned out with remarkably little guile.” Exhibit A-11, third para.

How can the independent intervening act of a third person, who |

is not a client and not the object of the misconduct, of lying,

resigning from his job, and then being convicted of perjury for

lying be possibly attributable to the attorney? There is no

vicarious harm theory in quasi-criminal attorney disciplinary law.

The harm to be charged to the attorney has to be caused by the

attomey’s act of professional misconduct, not by other acts of a

third party that are completely independent of the attorney’s act

of professional misconduct. Gullo lied. That is not the attorney’s

fault. Gullo’s lying was not a natural and necessary consequence

of the fee-splitting. Gullo’s resignation was not such a natural

and necessary consequence of the fee splitting nor was his

C-43

conviction for perjury for lying. Gullo did those acts on his own..

The recommendation is unlawful as it claims harm is an

aggravating factor, but there was no harm to a client or to the

object of the misconduct as required for assessment of harm as an

aggravating factor. The claimed harm was not the result of the

attorney misconduct. It was the result of a third party’s

independent and claeniae ante.

The recommendation asserts that “there is harm in a

broader sense to the administration of mn The public policy

of the State of California is that attorneys may not split fees with

non-attorneys. As applied in the present situation, the policy

furthers the goal of having members of the public freely choose

their legal representatives. Unsavory kickback arrangements such

as this one significantly harm the reputation of the legal

profession and the public’s perception of the legal profession.”

The above is a non-sequitur. There was no unsavory kickback

arrangement. There was payment of a referral fee after a case ,’

had concluded to a non-lawyer. No member of the public was

C-44

restricted in his or her selection of an attorney. Mr. Gullo’s

referral of clients to the attorney and his partner did not limit the

choice of lawyers that the member of the public had It

augmented them. With the current proposal to undo the ban on

splitting fees with a non-lawyer for multi-disciplinary practices of

law and accounting, there is no natural harm to the public nor

significant harm to the reputation of the legal profession and the

public’s perception of the legal profession by an attorney splitting

fees with a non-lawyer. The prohibition on fee-splitting with a

non-lawyer is directed at a lay person directing the exercise of

professional judgment by a lawyer by causing the attorney to

reject acceptable offers of settlement, because the attorney has to

split the fee with a non-lawyer. That is the only harni that is

envisaged from a fee-splitting arrangement. The recommendation

indicates that no such harm occurred. Exhibit A:10, para. three.

iil.

The Ex Parte Suspension by a State Bar

Employee was Unconstitutional and Void

A significant United States constitutional issue is whether

C-45

the delegation of this Honorable Court’s attorney licensing duties

as a constitutional court of law to the private State Bar of

California offends the basic precepts of due process of law and

the equal protection of the law. The United States Supreme

Court has held that “an attorney may not be excluded from the

practice of law in a manner or for reasons that contravene the

Due Process or Equal Protection Clause of the Fourteenth

Amendment." Willner v. Committee on Character & Fitness

(1963) 373 U.S. 96; 83 S. Ct. 1175; 10 L. Ed. 2d 224, at 102

This Honorable Court’s 1997 order provided that the

attorney was required to take and pass either the California

Professional Responsibility Examination or the Multi-State

Professional Responsibility Examination within one year of the

effective date of the order, which was February 6, 1997. Exhibit

C. This Honorable Court’s order does not state that a lay

person is going to take the attorney’s license ex parte if the

attorney did not pass the exam in the year.

This Honorable Court could have enforced its order by way

of a noticed contempt citation served on the attorney with a

minimum thirty days provided to the accused attorney to file his

response and have a hearing. The hearing would precede the

punishment as is required for due process of law. Armstrong v.

Manzo 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d.

62 (1965). Bell v. Burson 402 U.S. 535, 29 L. Ed.2d. 90, 91 S.

Ct. 1586, at 539 (1971). The hearing would be conducted on

whether the attorney’s non-compliance with this Honorable

Court’s order was willful and what, if any, sanctions should be

imposed on the attorney.

An attorney is entitled to sufficient time to prepare and

defend and fair notice of the facts relied on in support of a claim,

so he may prepare and defend. In re: Gault 387 US. 31, 34, 18

L. Ed.2d. 527, 87 S. Ct. 1428 (1967). Part of the function of

notice is to give the charged party a chance to marshal the facts

in his defense and to clarify what the charges are in fact. See In

re Gault, supra, at 33-34, and n. 54 (1967). Procedural due

process rules were meant to protect persons not from a

C-47

deprivation, but from the mistaken or unjustified deprivation.

Carey v. Piphus 435 U.S. 247, 259, 98 S. Ct. 1042, 1050, 55 L.

Ed.2d. 252 (1978). Thus, they impose constraints on government

action. Mathews v. Eldridge 424 U.S. 319, 332, 96 S. Ct. 893,

901, 47 L. ED. 2d. 18 (1976). In operation, due process requires

notice of the cause or causes in sufficient detail and sufficient

time to fairly enable a party to show any error that may exist, the

right to be advised of the names and the nature of the violation

alleged, the right to a meaningful opportunity to be heard in his

own defense, and a hearing before a tribunal that both possesses

some academic expertise and has an apparent impartiality towards

the clams. Pickering v. Board of Education 391 U.S. 563, 578

n.2, 88 S. Ct. 1731, 1739 n.2, 20 L. Ed.2d. 811 (1968). See also

Goss v. Lopez 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d. 725

(1975).

An accused attorney must be provided both procedural

and substantive due process of law. He must be given written

notice informing him of the specific issues that he must meet, at

C-48

the earliest practicable time, and in any event sufficiently in

advance of the hearing to permit preparation. In re: Gault,

supra, at 31-34. Had due process of law been applied, the

attorney would have been provided notice of a proceeding to

enforce the court order and to sanction the attorney for his non-

compliance. He would have been provided the opportunity to

present his defense, to wit, he was physically and mentally unable

to take the examination. As a clean and sober recovering

alcoholic, he had “ an episode of deep depression which caused

[him] not to take and pass the MPRE (Multi-State Professional

Responsibility Examination) in a timely fashion...” Exhibit A:8:

para. one. Instead the attorney’s license was taken first by a

State Bar employee ex parte on fifteen days notice with no

advance notice, no hearing, no ability to defend, and no due

process of law. Exhibit C. The employee claims that he is taking

the license on the authority of a rule of court. Exhibit C.

However, the California Constitution and the equal protection of

that law guaranteed to the petitioner under the fourteenth

C-49

amendment to the United States Constitution prohibit a rule of

court providing for substantive law rather than court procedure.

The Introductory Statement to the California Rules of

Court states “Unless otherwise indicated, each rule in these

California Rules of Court was adopted by the Judicial Council

under its constitutional authority to adopt rules for court

administration, practice and procedure not inconsistent with

statute,” or under express authority granted by the Legislature.

Article VI, Section VI of the California Constitution

provides that “To improve the administration of justice the

[Judicial] Council shall... adopt rules for court administration,

practice and procedure, not inconsistent with statute.”

A review of the legislation concerning the Judicial Council

indicates there is no provision expressly authorizing it to decide

any issues concerning the powers of the State Bar. The statutes

and the case law clearly provide that,”’the board [of the State Bar]

has power to discipline members of the State Bar by reproval,

public or private, or to recommend to the Supreme Court the

C-50

suspension from practice..,” section 6077, and “the board [of the

State Bar] has the power to recommend to the Supreme Court

the disbarment or suspension from practice of members or to

discipline them by reproval, public or private, without such

recommendation.” section 6078. The Statutes and case law

indicate the State Bar may not suspend licenses. It may

recommend action. It may not take action itself. It is a

corporation and not a court of law. Article VI, section 9,

California Constitution.

The United States Constitution prohibits the taking of an

attorney’s license by one who did not grant it. This Honorable

Court grants the license. It is the only entity that may take it. He

who grants the license is the only one who may take away is a

fundamental precept of due process of law established by the

United States Supreme Court over one hundred years ago. The

United States Supreme Court in Ex Parte Robinson (1873) 86

U.S. 505; 22 L. Ed. 205; 19 Wall. 505, at 511 held that a court

which did not admit the attorney had no power to disbar him. The

C-51

United States Supreme Court stated that, “ This power (To

suspend or disbar) is possessed by all courts which have authority

to admit attorneys to practice.” The State Bar and its claimed

Court have no authority to admit an attorney to the practice of

law. California Business and Professions Code sections 6000 et.

seq.

The United States Supreme Constitution states that, “This

Constitution and the laws of the United States which shall be

made in pursuance thereof ... shall be the supreme law of the

land; and the judges in every state shall be bound thereby; and

anything in the constitution or laws of any state to the contrary

notwithstanding.” Article VI, clause 2, United States

Constitution. This Supremacy Clause mandates that this

Honorable Court enforce the decisions of the United States

Supreme Court which invalidate that portion of California Rules

of Court, Rule 951(b) which states that, “The State Bar Court

shall have the power ... to suspend a member for failing to take

and pass such examination.” The The State Bar and its Court do

C-52

not admit attorneys, so they may not constitutionally suspend

them.

“The judicial function is to declare law and to determine

rights of parties to controversies.” County of Contra Costa v.

California, 222 Cal. Rptr. 750, 177 Cal. App.3d. 62 (Cal. App.

3 Dist. 1986). An unlawful delegation of judicial power occurs

when a person other than the judicial officer entrusted with the

judgment makes the judicial decision. See United States v.

Raddatz 447 U.S. 667, 100 S. Ct. 2406, 65 L. Ed.2d 424

(1980), Sunshine Anthracite Coal Co. v. Adkins 310 U.S. 381,

60 S. Ct. 907, 84 L. Ed. (1940). In Burlington Northern v.

Department of Revenue 934 F 2d. 1064 (Ninth Cir. 1991), at

1073, when a judge ‘”delegated the judicial decision making

function as to the entire case....” to a non article III judge, this

was held to be the unlawful delegation of judicial power to a non-

judge.

As in United States v. Raddatz, 447 U S. 667, 65 L. Ed.

2d 424, 100 S. Ct. 2406 (1980), judges may not abdicate their

C-53

judicial duties and powers to non-judicial persons without

violating basic due process of law. The non-judicial and non-

governmental status of the State Bar of California and its agents

was described by the United States Supreme Court in Keller v.

State Bar of California, 496 U.S. 1, 110 S. Ct. 2228, 110 L.

Ed. 2d. 1 (1990), overruling 255 Cal. Rptr. 542 (1989), at 13, as

follows:

“The State Bar of California was created, not to

participate in the general government of the State. but to

provide specialized professional advice to those with the

ultimate responsibility of governing the legal profession.

Its members and officers are such not because they are

citizens or voters, but because they are lawyers."

Petitioner posits that that portion of California Rules of

Court, Rule 951 (6) which purports to authorize the State Bar of

California to suspend attorneys for not taking and passing the

professional responsibility examination is unconstitutional as it

unlawfully delegates this Honorable Court’s judicial power to a

private person with no supervision, no oversight, no monitoring,

no controls, and no standards set forth in derogation of the fifth

and fourteenth amendments’s due process and equal protection

C-54

clauses to the United States Constitution.

The ex parte suspension mailed on February 25, 1998 by

regular mail to the attorney to be effective on March 17, 1998

with no notice, no hearing, and no grounds which issued by Mr.

O’Brien of the State Bar was unconstitutional and void for six

reasons. The rule of court relied on is void as it violates the

constitutional prohibition on a rule of court being inconsistent

with the state statutes which prohibit the State Bar suspending

attorneys. The rule of court relied on is unconstitutional as the

unlawful delegation of judicial power to a private person. The

taking was by a person who did not grant the license and was

prohibited from taking it.

The taking of the license was without notice. The taking of

the license was without a hearing. The taking of the license was

irrational, arbitrary, capricious, and lacking in any substantive due

process of law.

Fundamental due process of law requires notice before a

vested license to practice law may be taken from an attorney. It

C-55

also requires that an attorney be provided a meaningful

opportunity to be heard in own his defense at a meaningful time

and place and before someone who has some competence. There

has to be reason. There has to be reasoning. There has to be

grounds. There has to be a hearing. There has to be a judge and

a process. As the efforts of the attorney to stay the

unconstitutional ex parte taking of his license make clear and the

confusion about the effect of his stay request, this attorney could

not have been punished for contempt of court for not complying

with the order because he did not have the physical nor mental

ability to take and pass the examination at the time proscribed in

the order of one year. While the attorney could not

constitutionally have been punished for not complying with the

order, his license was taken without his being guilty of anything

for over seven months. Exhibits E-J. This appears to be

irrational, punitive, arbitrary, and lacking in substantive due

process of law.

By reason of the patent unconstitutionality of the ex parte

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suspension of Mr. O’Brien, the recommendation is erroneous and

unlawful in claiming that the attorney was guilty of the

unauthorized practice of law when he was forced with no notice

to protect his clients from the damage and harm the State Bar

was seeking to inflict on innocent members of the public by

taking their lawyer sien them without notice, grounds, or a

hearing. Exhibit A:5: para three-four, 6-7: para. one and two.

- The petitioner requests that this Petition be entertained to

determine whether such ex parte suspensions by an employee of

the State Bar of California are constitutional so that there is a

record of this Honorable Court’s determination for the United

States Supreme Court.

Conclusion

Due regard to the purposes of imposing discipline as set

forth in standard 1.3 (i.e., the protection of the public, the

maintenance of high professional standards, and the preservation

of public confidence in the legal system.), would appear to

support entertaining the instant Petition. The obligation of the

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hearing judge was to include the mitigating factors presented and

to provide them with weight in the determination of the

appropriate disposition. However eight mandated mitigating

factors which would reduce the recommendation to no more

than ninety days were anita As such, the recommendation is

unlawful and erroneous.

The petition should be entertained so that the

constitutionality of the ex parte seven months’ suspension by an

employee of the State Bar because the attorney did not pass the

professional responsibility examination in one year may be heard

and decided. Ifthe seven months’ actual ex parte suspension is

unconstitutional, this proceeding should be dismissed. The

attorney has already served more time on an unlawful suspension

than the disposition in this matter would warrant.

Equity and Justice would appear to recommend that this

Honorable Court entertain this significant Petition and its

important constitutional issues.

RESPECTFULLY SUBMITTED,

~ Dated: October 12, 1999

itioner Attorney Pro Se

Verification

I have read the foregoing Petition for a Writ of Review and

State it is made on my own personal knowledge, information, and

belief, and this verification is executed this —— day of October,

1999 at San Jose, California.

RESPECTFULLY SUBMITTED,

Dated: October 12, 1999

yioner Attorney Pro Se

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SO056769

REVIEW DEPARTMENT OF THE

STATE BAR COURT

IN BANK

IN THE MATTER OF CHARLES

HAROLD KAVALARIS

A MEMBER OF THE STATE BAR OF

CALIFORNIA.

Under the authority of subdivision of (b) of rule 951,

California Rules of Court, Charles Harold Kavalaris is miaieied

from the practice of law in this state effective March 17, 1998,

pending proof of passage , since he has not passed the California

Professional Responsibility Examination or the Multistate

Professional Responsibility Examination within the time

prescribed in the Supreme Court order of January 7, 1997. (See

Segretti vy. State Bar (1976) 15 Cal. 3d. 878, 891, fn. 8; In the

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Matter of Layton (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr.

366, 381, fn.9)

James W. Obrien

Presiding Judge

THE STATE BAR ACT

California Business and Professions Code

Sec. 6079.1 STATE BAR COURT HEARING JUDGES

(a) The Supreme Court shall appoint a presiding judge of

the State Bar Court and no fewer than seven hearing judges, and

any additional hearing judges as may be authorized by the

Legislature, to efficiently decide any and all regulatory matters

pending before the Hearing Department of the State Bar Court.

(c) The board shall screen and rate all applicants for

appointment or reappointment as a State Bar Court judge, and

submit its nominations to the Supreme Court, unless otherwise

directed by the Supreme Court. . .

(d) For judges appointed pursuant to this section or Section

6086.65, the board shall fix and pay reasonable compensation and

expenses and provide adequate supporting staff and facilities.

Sec. 6079.5 CHIEF TRIAL COUNSEL; APPOINTMENT;

TERM; QUALIFICATIONS

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(a) The board shall appoint a lawyer admitted to practice in

California to serve as chief trial counsel. . .

Sec. 6086.5 STATE BAR COURT; ESTABLISHMENT,

POWERS; RULES

The board of governors shall establish a State Bar

Court, to act in its place and stead in the determination of

disciplinary and reinstatement proceedings and proceedings

pursuant to subdivisions (b) and (c) of section 6007 to the extent

provided by rules adopted by the board of governors pursuant to

this chapter. . .

Sec. 6086.10 PAYMENT OF COSTS’ OF

DISCIPLINARY PROCEEDINGS

(a) Any order imposing a public reproval on a member of

the State Bar shall include a direction that the member shall pay

costs. In any order imposing discipline, or accepting a

resignation with a disciplinary matter pending, the Supreme Court

shall include a direction that the member shall pay costs.

(b) The costs required to be imposed pursuant to this

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section include all of the following:

(1) The actual expense incurred by the State bar for the

original and copies of any reporter's transcript of the State Bar

proceedings, and any fee paid for the services of the reporter.

- (2) All expenses paid by the State Bar which would

qualify as taxable costs recoverable in civil proceedings.

(3) The charges determined by the State Bar to be

"reasonable costs” of investigation, hearing, and review. These

amounts shall serve to defray the costs, other than fees for the

services of attorneys or experts, of the State bar in the

preparation or hearing of disciplinary proceedings, and costs

incurred in the administrative processing of the disciplinary

proceedings and in the administration of the client security fund..

(d) In the event an attorney is exonerated of all charges

following a formal hearing, he or she is entitled to rembursement

from the State bar in the amount determined by the State bar to

be the reasonable expenses, other than fees for attorneys or

E-3

ee

experts, of preparation for the hearing. (Added by Stats. 1986,

ch. 662.)

CALIFORNIA RULES OF COURT

Rule 951 (b) Professional Responsibility Examination

The State Bar Court shall have the power to extend the

time within which a member of the State Bar must take and pass

a professional responsibility examination, to suspend a member

for failing to take and pass such examination, and to vacate a

member’s suspension for failing to take and pass such

examination.

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