# Appendix — In re Kavalaris

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0746%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1088

## Text

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

A-]

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

B-1]

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.

B-13

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.

B-15

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

B-17

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

B-18

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

B-19

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

B-21

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,

B-23

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

B-24

‘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

B-26

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

B-27

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.

B-28

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

C-]

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

C-3

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

he SRS oh Sia Be a Tetags +E AD ee

it Si OA IIL RS AS he a

AL Re a

tts OAc

st le

|
‘
!
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).

C-10

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.

C-29

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

C-31

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

C-33

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

C-38

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

C-39

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

C-40

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

C-56

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

C-57

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

C-59

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

D-1

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

E-]

(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

E-2

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.

E-4

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0746%3A2. Public record. Not legal advice.