Bambic v. State Bar

Decision Date04 November 1985
Docket NumberS.F. 24773
Citation707 P.2d 862,219 Cal.Rptr. 489,40 Cal.3d 314
CourtCalifornia Supreme Court
Parties, 707 P.2d 862 Eugene A. BAMBIC, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

Eugene A. Bambic, in pro. per., and Kenneth A. Kocourek for petitioner.

Herbert M. Rosenthal, Truitt A. Richey, Jr., Ellen A. Pansky, Antonia Darling and Marsha McLean-Utley for respondent.

BY THE COURT *

The Review Department of the State Bar Court has unanimously recommended that petitioner, Eugene A. Bambic, be disbarred for numerous acts of alleged misconduct. This court concludes that disbarment is warranted.

I.

On October 1, 1982, in two notices to show cause, petitioner was charged with violating his oath and duties as an attorney (Bus. & Prof.Code, §§ 6067, 6068, and 6103), committing acts involving moral turpitude and dishonesty (Bus. & Prof.Code, § 6106), and willfully violating rules 2-111, 6-101, 6-102, 7-103 and 8-101 of the Rules of Professional Conduct. 1 Petitioner did not file an answer to either notice.

Thirty-seven counts of unprofessional conduct were alleged. Seven of those were dismissed for insufficient evidence or to facilitate prompt resolution of the entire proceeding. The hearing panel unanimously found the remaining 30 allegations to be true and recommended disbarment. 2 The review department unanimously adopted the hearing panel's findings.

II.

Petitioner was admitted to the practice of law on June 21, 1966. He has no prior record of discipline. 3

The 30 incidents of misconduct involved 41 clients and occurred over a 3-year period, from 1979 to 1982. The misconduct falls into five general categories.

The first category involves petitioner's mishandling of client funds. In 19 separate instances petitioner misappropriated client funds in amounts varying from $300 to $60,000. 4 (Rule 8-101; §§ 6103, 6106.) Also, in many of these cases, petitioner issued checks to his clients which were returned for insufficient funds. 5

In addition, in a majority of these cases petitioner settled his clients' claims without their knowledge or consent. In 12 matters petitioner willfully failed to promptly advise clients of his receipt of settlement funds. (Rule 8-101.) In seven matters petitioner willfully failed to account for or to deposit in his client trust account funds which he had received. (Rule 8-101; §§ 6103, 6106.)

The second category involves 18 instances in which petitioner forged or caused to be forged his clients' signatures or submitted forged documents to third parties. ( §§ 6103, 6106.) The forged signatures appeared on settlement agreements and checks, and release forms. In several matters petitioner also willfully filed motions for dismissal without his clients' knowledge or consent.

The third category involves petitioner's failure to act competently. In six matters petitioner willfully failed to use reasonable diligence and his best judgment in protecting his clients' interests. (Rule 6-101; §§ 6103, 6106.) Also, in six cases petitioner willfully failed to communicate with his clients regarding the status of their cases. In one such matter petitioner willfully failed to perform all services for which he was retained.

The fourth category concerns rule violations regarding petitioner's withdrawal from employment. In two cases petitioner willfully failed to refund the unearned portion of advanced fees when he withdrew from employment. (Rule 2-111(A)(3).) Also, petitioner willfully failed to take reasonable steps to avoid prejudice to his client prior to filing a motion to be relieved as counsel. (Rule 2-111(A)(2).)

The final category concerns violations of several miscellaneous disciplinary provisions. Petitioner willfully attempted to limit his liability to a client for his malpractice. (Rule 6-102.) Further, he willfully communicated with a party represented by counsel about a subject in controversy without counsel's consent. (Rule 7-103; §§ 6103, 6106.) Finally, in several matters petitioner made material misrepresentations to his clients.

Petitioner does not challenge the hearing panel's findings. In any event, an independent review of the record reveals that all of the findings are well supported by the evidence.

The following examples illustrate the type of misconduct in which petitioner engaged. In 1977, Rose K. retained petitioner to represent her in a wrongful death action against the United States Navy. Without her knowledge or consent, petitioner eventually negotiated a $60,000 settlement. Petitioner gave his secretary an exemplar of Rose K.'s signature and directed her to sign Ms. K.'s name to the release. Petitioner then submitted the release to the Navy. After receiving a $60,000 settlement check from the Navy, petitioner failed to inform his client that he had received funds on her behalf. He then cashed the check and used the $60,000 for his own purposes. Petitioner never gave Ms. K. any of the money from the settlement proceeds. He also submitted a second release to the Navy containing his client's forged signature.

In 1976, in another wrongful death action, petitioner was retained by Mr. C. and his four minor children. Petitioner settled the case for $57,499 with Mr. C.'s approval. Thereafter, petitioner forged or caused to be forged his clients' signatures on the settlement checks. Mr. C. and his children received only one penny of the settlement proceeds. 6

In a third matter, Mr. B. retained petitioner to represent him in a medical malpractice suit. In January of 1981, following an arbitration hearing, Mr. B. was awarded $50,000. Within a few days of the award, petitioner had a messenger pick up the settlement check from the defense attorney. Petitioner signed the check, had his client's signature forged, and cashed it a few days later. Thereafter, Mr. B. learned through a doctor involved in the case that the case had been settled. When he met with petitioner a few weeks later, he was informed that the arbitrators would not make a decision until March of 1981. To date Mr. B. has received none of the settlement proceeds.

The pattern in most of these cases is clear. The client would retain petitioner. Petitioner would settle the case, usually without his client's knowledge or consent. Petitioner would forge or cause to be forged his client's signature on the settlement checks. He would then misappropriate most if not all of his client's proceeds. And in many cases, when petitioner issued a check to his client, the check would be returned because of insufficient funds.

In other matters, the client would retain petitioner and petitioner would fail to perform services for him. Attempts to contact petitioner concerning the status of his case would be unsuccessful.

III.

Petitioner first contends he was denied due process when the hearing panel denied his request to continue the hearings to permit his newly retained counsel to familiarize himself with petitioner's case. In order to properly analyze this claim, a review of the procedural history of the present proceeding is necessary.

In October of 1982, copies of the two notices to show cause which instituted the disciplinary proceedings (see ante, fn. 2) were served on an attorney authorized by petitioner to accept service. Approximately three months later, at the first hearing in L.A. 3643, petitioner appeared with counsel, Arnold Stone. 7 At the hearing, Stone requested a continuance. The hearing panel continued the matter two weeks to provide petitioner an opportunity to submit a written motion for a continuance. 8 Petitioner did not file a motion and the hearing proceeded as scheduled. Petitioner did not appear.

The hearings continued through March of 1983 and concluded on May 4th. Petitioner did not appear at any of those hearings. At the May 4th hearing, petitioner was represented by different counsel, Kenneth Kocourek.

In February of 1983, when the hearing in L.A. 3644 commenced, petitioner appeared without counsel. 9 He then failed to appear at the next two scheduled hearings. On April 4th, the last day the State Bar presented its evidence, petitioner appeared with newly retained counsel, Kenneth Kocourek. 10 At that hearing petitioner moved for a two- or three-week continuance to permit Kocourek to familiarize himself with petitioner's case. The hearing panel denied the motion for the purpose of presenting a defense but granted it for the purpose of presenting mitigating evidence.

"Continuances of disciplinary hearings are disfavored, and a request for continuance must be supported by a factual showing of good cause. (Rule F.3, State Bar Court Rules.) ... A strong rule against unnecessary delay is essential to ensure that the public will be protected by the prompt discipline of erring practitioners. [p] Moreover, ... State Bar proceedings cannot be compared to criminal actions, and criminal procedural safeguards do not apply. Generally, an accused attorney has the obligation to obtain representation if he wants it, to appear at the hearing, and to present evidence. The hearing may proceed despite his voluntary absence, and his failure to participate is not grounds for a rehearing to present additional evidence. (Yokozeki v. State Bar (1974) 11 Cal.3d 436, 447 [113 Cal.Rptr. 602, 521 P.2d 858].)" (Palomo v. State Bar (1984) 36 Cal.3d 785, 791-792, 205 Cal.Rptr. 834, 685 P.2d 1185; see also Dixon v. State Bar (1982) 32 Cal.3d 728, 736.)

The record reveals that petitioner had ample opportunity during the six months in which the formal disciplinary proceedings occurred in which to prepare and present a defense. Petitioner repeatedly failed to appear at the hearings and to present evidence. In addition, although the orders to show cause in this case advised petitioner that any request for a continuance should be supported by a showing of good cause, no such showing was made. Finally, when provided an opportunity to submit a written motion for a continuance, petitioner failed to do so.

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