Alberton v. State Bar

• Decision Date: 20 September 1984
• Docket Number: S.F. 24703
• Citation: 686 P.2d 1177,37 Cal.3d 1,206 Cal.Rptr. 373
• Court: California Supreme Court
• Parties: , 686 P.2d 1177 Richard G. ALBERTON, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

Page 373

206 Cal.Rptr. 373

37 Cal.3d 1, 686 P.2d 1177

Richard G. ALBERTON, Petitioner, v.The STATE BAR OF CALIFORNIA, Respondent.

S.F. 24703.

Supreme Court of California In Bank.

Sept. 20, 1984.

Herbert M. Rosenthal, Truitt A. Richey, Jr., and Richard J. Zanassi, San Francisco, for respondent.

BY THE COURT:

The Review Department of the State Bar Court has unanimously recommended that petitioner, Richard G. Alberton, be suspended from the practice of law for five years, that execution of the suspension be stayed, and that petitioner be placed on probation for five years with certain conditions, including actual suspension for the first year of the probationary period.¹This court adopts the review department's recommendation.

I.

On June 11, 1982, petitioner was charged with numerous statutory and rule violations warranting discipline, including: (1) violating his oath and duties as an attorney (Bus. & Prof.Code, §§ 6067,6068, and6103 )²; (2) committing acts involving moral turpitude, dishonesty or corruption ( § 6106); (3) committing an act of deceit with intent to deceive the court( § 6128, subd. (a)); (4) wilfully delaying his client's suit with a view to his own gain (id., subd. (b)); (5) performing legal services for a client when he knew or should have known that he did not possess the learning and skill ordinarily possessed by lawyers who perform similar services without associating or consulting another lawyer who possesses the requisite learning and skill (rule 6-101(1)); (6) failing to use reasonable diligence and his best judgment to accomplish the purpose for which he was employed (rule 6-101(2)); (7) misleading a judge by a false statement of fact (rule 7-105(1)); and (8) failing to deposit client funds in an identifiable client trust account (rule 8-101(A)).³All allegations of misconduct arose out of petitioner's representation of Rosalind C. in a criminal action.

The hearing panel found five of the eight allegations true.It concluded that petitioner had willfully violated sections 6067,6103and6106, andrules 6-101(1),6-101(2)and8-101(A), but found insufficient evidence to sustain the rule 7-105,section 6068, andsection 6128 violations.The review department unanimously adopted the hearing panel's findings and conclusions and made one additional finding.⁴

II.

Petitioner was admitted to the practice of law on June 20, 1950.He has been disciplined on three prior occasions resulting in two private reprovals ⁵ and one public reproval.⁶

In 1980, petitioner was a sole practitioner working out of his home in San Francisco.He practiced primarily in business and real estate law, although he occasionally handled criminal, family, personal injury and probate matters.

In May of 1980, ⁷petitioner was retained by Rosalind C. (hereafter Ms. C.) to represent her in a criminal matter in Chico.Ms. C. had been arrested for issuing checks without sufficient funds.(Pen.Code, § 476a.)Petitioner and Ms. C. did not make any arrangements as to fees or reimbursement of expenses at that time.

In June, petitioner contacted the district attorney regarding Ms. C.'s case.The prosecutor agreed to charge the offense as a misdemeanor if Ms. C. would make full restitution.However, apparently no restitution was made by July, and on July 3rd, a felony complaint was filed.

On August 13th, Ms. C. was arraigned in municipal court.In accord with local practice, petitioner did not appear at the arraignment.⁸At the arraignment, Ms. C. pled not guilty and a preliminary hearing was set for August 21st.

At the State Bar hearing, Ms. C. testified that she informed petitioner of the preliminary hearing date and that he assured her he would be present.However, petitioner testified that he did not recall if he was informed of the date, but that in any event he did not think there would be a preliminary hearing because of his plea negotiations with the district attorney.

On August 21st, petitioner failed to appear for the hearing.Judge Rutherford, who was presiding in the case, telephoned petitioner to confirm the representation of Ms. C.After arranging a date that would be convenient with petitioner, the judge rescheduled the preliminary hearing for September 4th.

On September 4th, Ms. C. appeared for her preliminary hearing, but petitioner did not.⁹Ms. C. was upset by petitioner's absence and was concerned that she would lose her job if she had to make any further court appearances.Judge Rutherford then continued the preliminary hearing to September 11th and provided Ms. C. with a "Mills waiver form"¹⁰ so that she would not have to appear personally if she wished to enter a guilty plea on that date.¹¹

On September 11th, petitioner made his first appearance on behalf of Ms. C.He presented Judge Rutherford with Ms. C.'s completed Mills waiver form.However, the judge could not accept the plea because petitioner had filled out the form incorrectly.¹²The judge admonished petitioner and told him to return with a properly filled out waiver form on September 15th, a date petitioner selected.

On September 15th, petitioner failed to appear.At the State Bar hearing, petitioner testified that he had not been able to contact Ms. C. between September 11th and 15th to have her sign the new waiver form.Apparently, there had been some confusion with another client which resulted in his decision not to go to Chico.He called the clerk to request a continuance.When petitioner failed to appear at the hearing, Judge Rutherford telephoned him.He explained that he had tried to contact the court for a continuance, and that he had been in court in the Bay Area that day.

As a result of petitioner's failure to appear, the judge issued a bench warrant for Ms. C. to retain jurisdiction.Also, an order to show cause re contempt was issued as to petitioner for his failure to appear.A hearing was set on the two matters for October 2nd.

On October 2nd, petitioner appeared before Judge Rutherford and was found in contempt.The judge suspended petitioner's sentence and referred the matter to the State Bar.¹³

On the same day, petitioner presented Ms. C.'s properly completed Mills waiver form to the court.The court accepted her plea of guilty and continued the case to October 30th for sentencing.

Sometime prior to October 2nd, petitioner had received $345.15 in cash from Ms. C. for the purpose of making restitution to Safeway where she had cashed the insufficient fund checks.At the October 2nd hearing, petitioner tendered Ms. C.'s restitution money to the district attorney but was told to pay Safeway directly.Since he anticipated that he would be able to tender payment in court, petitioner had not allotted sufficient time to go to Safeway that day.¹⁴After the hearing, petitioner flew to Los Angeles without making restitution.Petitioner thereafter placed the restitution money in his office safe.

At the State Bar hearing, petitioner testified that on October 3rd, he informed Ms. C. that he was going to reimburse himself $115 from the restitution money for travel expenses, and that she agreed to make up this amount.However, on two different occasions prior to the State Bar hearing, petitioner stated that he reimbursed himself for travel expenses before informing Ms. C. of such action.¹⁵Ms. C. testified that petitioner did tell her that she owed him for travel expenses, but never informed her that he would use part of her restitution money for that purpose.The hearing panel found that petitioner was not authorized to make that deduction and that he failed to discuss it with his client prior to making it.

On October 26th, Ms. C. went to petitioner's home.She requested the return of her money so that she could make the necessary restitution.¹⁶Petitioner then wrote a personal check to Safeway for $345.00.At the time he wrote the check, petitioner knew he did not have sufficient funds in his account to cover the check, but he intended to make a deposit before Ms. C.'s arrival at Safeway so that the check would be honored.

On October 27th, Ms. C. presented the check to the store manager at Safeway.The manager then called petitioner's bank and learned that there were insufficient funds to cover the check.He returned the check to Ms. C., threatened to have her rearrested, and then called petitioner.Petitioner promised to make a deposit later that afternoon or the following day.¹⁷

Although petitioner and Ms. C. disagreed as to whether petitioner ever informed her that the check would have to be covered prior to presentation, the hearing panel found that petitioner failed to cover the check before it was presented to Safeway.

On October 30th, prior to the sentencing hearing, petitioner made restitution to Safeway on behalf of Ms. C. and obtained a receipt from the store manager.He then appeared with Ms. C. at the hearing.

At the hearing, Judge McNelis presided in Judge Rutherford's place.Contrary to both petitioner's and Ms. C.'s expectations, Ms. C. was sentenced to 90 days in county jail and was ordered to surrender immediately.While it is unclear as to whether Judge McNelis was informed that restitution to Safeway had been made, it is undisputed that petitioner failed to present the Safeway receipt to the court.

While in custody, Ms. C. dismissed petitioner and obtained new counsel.The following day, Judge McNelis held a new sentencing hearing and reduced Ms. C.'s sentence to 20 days, apparently based on the fact that restitution had been made.

On October 23, 1981, petitioner obtained a default judgment against Ms. C. for $2,065 for fees and expenses in the criminal proceeding.(Seeante, fn. 4.)

Based on these events, the hearing panel found that petitioner failed to (1) maintain a trust account and to place Ms. C.'s funds in such an account, (2) obtain her consent to reimbursement of travel expenses out of her restitution funds, and (3) keep intact a disputed portion of the...