Baca v. State Bar

• Decision Date: 24 December 1990
• Docket Number: No. S014282,S014282
• Citation: 52 Cal.3d 294,276 Cal.Rptr. 169,801 P.2d 412
• Court: California Supreme Court
• Parties: , 801 P.2d 412 Salvador Diaz BACA, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

Page 169

276 Cal.Rptr. 169

52 Cal.3d 294, 801 P.2d 412

Salvador Diaz BACA, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

No. S014282.

Supreme Court of California In Bank.

Dec. 24, 1990.

[52 Cal.3d 297] [801 P.2d 413] Salvador Diaz Baca, in pro. per.

Diane C. Yu, Richard J. Zanassi and Truitt A. Richey, Jr., San Francisco, and James R. DiFrank, Los Angeles, for respondent.

BY THE COURT:

We review the recommendation of the Review Department of the State Bar Court of the State of California (review department) that Salvador Diaz Baca (Baca) be disbarred from the practice of law in California. Baca failed to respond to the notice to show cause and allowed his default to be entered. He did not appear at either the Hearing Department of the State Bar Court (hearing panel) or review department proceedings. In fact, Baca failed to act or respond in any manner whatsoever until the State Bar's recommendation of disbarment was filed with this court. Although Baca claims he lacked notice of the State Bar proceedings against him, the evidence does not support his contentions. We conclude the recommendation of the review department should be adopted.

FACTS

Baca was admitted to the practice of law in California in 1977, and has been a member of the State Bar since that date.

The review department adopted the hearing panel's findings and added two conclusions of its own. The review department's recommendation of disbarment is based on three matters involving professional misconduct by Baca.

A. The Harvey Matter.

Baca was hired by Edward Harvey to represent him in an action for damages against the City of Compton. Baca was paid $120 for filing fees in January 1986. He did not deposit the money in his trust account; rather, he put it in his desk drawer. Baca never filed an action and he did not return the $120. Despite Harvey's repeated attempts to call Baca, Baca failed to communicate with Harvey after March 1986. Harvey's action is now barred by the statute of limitations.

The hearing panel concluded that Baca violated his oath and duties as an attorney (Bus. & Prof.Code, §§ 6067 and 6103) and, by his failure to return the $120, violated former Rules of Professional Conduct rules 2-111(A)(3) ¹ (failure to return unearned fees; see now, rule 3-700) and 8-101(B)(4) (failure to promptly return to the client funds to which the client is entitled; see now, rule 4-100). The review department added a conclusion that Baca violated former rule 6-101(A)(2) (intentional failure to perform legal services competently; see now, rule 3-500). The hearing panel noted that no evidence had been presented to show that Baca misappropriated the $120 or failed to provide an accounting.

B. The Puerta Matter.

Baca was hired to represent Hope Puerta in a workers' compensation matter. Puerta had previously been represented in the matter by a succession of three separate law firms. Each of the previous three law By mistake, the workers' compensation insurance carrier, prior to the signing of the order, had forwarded the entire $3,600 for attorney fees to Baca who, on December 27, 1985, deposited the entire amount in his general account. In March 1986, the insurance company notified Baca of its mistake in paying him all the attorney fees and Baca promised to rectify the matter. He failed to forward any of the money to the other attorneys.

[801 P.2d 414] firms had filed attorney lien claims in the Puerta matter. On January 6, 1986, the Workers' Compensation Appeals Board (WCAB) referee approved a compromise and ordered $21,688.53 paid to Puerta, $4,711.47 paid to the insurance company because of previous overpayments of temporary benefits, and $3,600 in attorney fees payable as follows: $1,400 to Salvador Baca; $700 to Gordon, Edelstein, et al.; $750 to Spatafore and Wheeler; and $750 to Ronald Gould. ²

On April 16, 1986, the WCAB held a hearing on the attorney fee issue. Baca did not attend. On April 23, 1986, and on May 29, 1986, the WCAB ordered Baca to repay the $2,200 he owed to the other attorneys. Baca again failed to pay and the insurance company paid the three law firms and brought contempt proceedings against Baca.

A contempt citation was issued against Baca. At a hearing on November 14, 1986, Baca pleaded no contest and offered as a defense that it was "impossible" for him to pay at that time. Baca alleged that his law office had only recently (in November 1986) begun making a profit. The WCAB judge found Baca in contempt and fined him $350. Baca made restitution to the insurance company on December 19, 1986.

The hearing panel concluded that Baca's conduct in the Puerta matter violated Business and Professions Code sections 6068, subdivision (a) (duty to respect the law), 6068, subdivision (b) (duty to respect the courts), and 6103 (violation of duties). The hearing panel also found that Baca's deposit of the entire $3,600 check in his general account and his failure to promptly pay the three attorneys, after repeated requests, constituted the conversion of funds belonging to others and the commission of an act involving moral turpitude (Bus. & Prof.Code, § 6106). Finally, the hearing panel found that Baca disobeyed a lawful order of the WCAB and was guilty of contempt (in violation of Bus. & Prof.Code, §§ 6068, subd. (a), 6068, subd. (b) and 6103). The review department added a conclusion that Baca's conduct violated former rule 8-101(B)(4) (failure to promptly pay to a client monies owed the client; see now, rule 4-100). ³

C. Failure to Cooperate with the State Bar.

Baca was charged with, and found culpable of, failure to cooperate with a State Bar investigation, in violation of Business and Professions Code section 6068, subdivision (i). A declaration of a State Bar investigator stated that he wrote to Baca six times during the course of his investigation and received no reply, and, in fact, never received any communication from Baca.

D. Mitigation and Aggravation.

In mitigation, the hearing panel noted that Baca has no prior record of discipline.

                [801 P.2d 415] Baca's refusal or inability to account for improper conduct involving trust funds (Rules Proc. of State Bar, Div. V, Stds. for Atty. Sanctions for Prof.Misconduct, std. 1.2(b)(iii);  all further references to standards are to these provisions) was considered an aggravating factor by the hearing panel.  The hearing panel also found Baca's misconduct in the Harvey matter significantly harmed Harvey.  His misconduct in the Puerta matter significantly harmed the three law firms, the insurance carrier, and the operation of the WCAB.  (Std. 1.2(b)(iv).)   A final aggravating factor was Baca's lack of cooperation with Harvey, a victim of his misconduct, and with the State Bar during the disciplinary investigation and proceedings.  (Std. 1.2(b)(vi).)
                

E. Recommendation of the State Bar.

The hearing panel, after review of the circumstances presented in this matter, recommended that Baca be disbarred. The review department, one member present not voting, unanimously recommended disbarment.

DISCUSSION

In reviewing the findings of the review department, we must exercise our independent judgment to determine whether the facts and circumstances of Baca's case justify the discipline recommended. (In re Ford (1988) 44 Cal.3d 810, 815, 244 Cal.Rptr. 476, 749 P.2d 1331; In re Vaughn (1985) 38 Cal.3d 614, 618, 213 Cal.Rptr. 583, 698 P.2d 651.) However, the review department's recommendation is entitled to great weight. (Slavkin v. State Bar (1989) 49 Cal.3d 894, 904, 264 Cal.Rptr. 131, 782 P.2d 270; In re Lamb (1989) 49 Cal.3d 239, 245, 260 Cal.Rptr. 856, 776 P.2d 765.) It is Baca who bears the burden of showing that the department's findings are not supported by the evidence or that its recommendation as to the appropriate degree of discipline is erroneous or unlawful. (In re Ford, supra, 44 Cal.3d at pp. 815-816, 244 Cal.Rptr. 476, 749 P.2d 1331.) Baca must demonstrate that the charges of unprofessional conduct are not sustained by convincing proof and to a reasonable certainty. (Kapelus v. State Bar (1987) 44 Cal.3d 179, 184, 242 Cal.Rptr. 196, 745 P.2d 917.)

In the Harvey and Puerta matters, the review department concluded that Baca had committed willful violations of Business and Professions Code section 6103. ⁴ As we held in Baker v. State Bar (1989) 49 Cal.3d 804, 263 Cal.Rptr. 798, 781 P.2d 1344, "[s]ince this section does not define a duty or obligation of an attorney, but provides only that violation of his oath or duties defined elsewhere is a ground for discipline, petitioner did not violate this section." (Id. at p. 815, 263 Cal.Rptr. 798, 781 P.2d 1344).

We turn first to Baca's allegation that he did not receive proper notice of the State Bar proceedings or of the entry of default. A notice to show cause was mailed to Baca on December 23, 1988. Baca claims he did not receive the notice until February 1989 because the notice had been sent to his former employer and had to be forwarded to him. Baca claims to have notified the State Bar of his change of address before the notice to show cause was mailed. However, the certification of Baca's membership record, provided by the supervisor of membership records and certification, shows that Baca did not inform the State Bar of his new address until January 12, 1989.

Even after Baca admittedly received the notice to show cause, he took no action. He claims he was suffering from depression and burnout, and was having domestic problems. He further states that his briefcase, which contained the notice to show cause, was "taken and hidden from him for one month." None of this, even if true, explains why Baca failed to take any action until the State Bar filed the recommendation of disbarment with this court. A member has a duty to respond to a notice to Baca next claims that a notice of time and place of hearing dated January 13, 1989, was sent to his former employer and was never received by Baca....