Calvert v. State Bar

• Decision Date: 25 November 1991
• Docket Number: No. S015184,S015184
• Citation: 819 P.2d 424,54 Cal.3d 765,1 Cal.Rptr.2d 684
• Court: California Supreme Court
• Parties: , 819 P.2d 424 Cynthia S. CALVERT, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

Page 684

1 Cal.Rptr.2d 684

54 Cal.3d 765, 819 P.2d 424

Cynthia S. CALVERT, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

No. S015184.

Supreme Court of California In Bank.

Nov. 25, 1991.

[54 Cal.3d 769] [819 P.2d 425] Cynthia S. Calvert, in pro. per.

L.W. Holt, Berkeley, for petitioner.

Diane C. Yu, Richard J. Zanassi, Colin P. Wong and E. Lisa Vorgias, San Francisco, for respondent.

BY [54 Cal.3d 770] THE COURT: ^*

The Review Department of the State Bar Court (review department) has recommended that petitioner Cynthia S. Calvert be suspended from the practice of law in California for three years, that execution of the suspension order be stayed, and that she be placed on probation for one year upon conditions that include actual suspension from the practice of law for six months. The recommendation is based on the review department's findings that in one matter petitioner failed to perform competently, continued representation of her client though she knew she could not perform competently, and withdrew from employment without taking reasonable steps to avoid prejudice to the client.

Petitioner contends that a new hearing should be held before a new hearing panel because the hearing referee failed to disqualify himself when required by law to do so, that prejudicial errors in the exclusion of evidence require a new hearing, that certain aggravating circumstances were improperly found, and that the recommended discipline is excessive.

We conclude the following: petitioner waived the claim that the hearing referee improperly failed to disqualify himself; even though evidentiary errors occurred, they do not require a new hearing; the evidence is insufficient to support one of the three disciplinary violations found; two aggravating circumstances are unsupported by the record; and the recommended discipline is excessive. We further conclude that the period of actual suspension

[819 P.2d 426] imposed should be 60 days, not 6 months as recommended by the review department.

BACKGROUND

Petitioner was admitted to the practice of law in California in January 1978. Petitioner has a prior record of discipline; she was suspended for 90 days in 1990. The review department's decision states that petitioner has no prior record of discipline; the decision, however, was issued before the July 1990 order suspending petitioner. ¹

1. The McKnight Matter

This disciplinary proceeding arises from petitioner's representation of Doris McKnight (McKnight). This matter involves two critical issues: whether petitioner adequately communicated with McKnight, and whether petitioner's posttrial legal strategy was one that a competent attorney could reasonably have adopted. The parties presented sharply conflicting evidence on both critical issues. Because the evidentiary errors that are discussed below require an analysis of the effect of the errors on the hearing as a whole, a somewhat detailed review of the evidence is necessary. Although there were other witnesses, the key witnesses were McKnight and petitioner.

a. The State Bar's Evidence

In November 1982, McKnight substituted petitioner in place of Mary Louise Frampton (Frampton) as her attorney in an employment discrimination suit against her employer, Commercial Union Insurance Co. (Commercial Union). In May 1984, the case was tried. The trial court filed a statement of decision in McKnight's favor in September 1984 and awarded McKnight $23,895 in damages.

Five days later, petitioner wrote to McKnight that she had received the final decision of the court and would "see that judgment is entered and the cost bill and attorneys fee bill filed with the court and opposing counsel." But judgment was not entered. Commercial Union made a motion for a new trial, which was denied in November 1984.

In December 1984, petitioner wrote to McKnight, asking her to "get together all the bills and expenses [she] had incurred" so that petitioner could "file the judgment and cost bill ASAP." In early January 1985, McKnight delivered the requested documents to petitioner.

In January 1985, Commercial Union filed a notice of appeal, which was eventually withdrawn pending the entry of judgment. McKnight stated that petitioner called her to notify her that Commercial Union had filed the notice of appeal.

In February 1985, the Commercial Union office in Fresno closed. McKnight called petitioner and left word of the closure and her layoff with petitioner's secretary.

McKnight testified that, apart from receiving monthly billing statements and a letter concerning witness fees from petitioner, she had no further communication with petitioner until December 1985. But McKnight had attempted to speak with petitioner over the telephone at least once a month and more frequently toward the end of the year. McKnight stated that petitioner was not available and did not return her calls.

In late 1985, McKnight called the courthouse to check on the status of the case. She was informed that Commercial Union had abandoned its appeal in February 1985. In early December 1985, she called petitioner at home and spoke with her; petitioner told McKnight that she had not filed the judgment, apologized for not doing so, and said she would take care of the matter when she returned from Christmas vacation.

McKnight testified that she called petitioner's office nine or ten times in the first three months of 1986 and that she kept notes of the conversations with petitioner, her secretary, or her law partner. These notes were admitted into evidence. In February 1986, McKnight was told that petitioner had insufficient time to attend to her case and that her case was not "emergency work." In early March 1986, petitioner's secretary called McKnight and told her petitioner was working on her case. In late March, McKnight called petitioner's office for the last time. Petitioner would not speak to McKnight, but her secretary told McKnight that petitioner was working on her case.

In early April 1986, McKnight filed a complaint with the Client Relations Committee of the Fresno County Bar Association. In mid-May, Jan Biggs, an attorney handling the matter for the association, sent a letter to petitioner requesting that she contact him regarding the complaint. Biggs called petitioner three or four times in the weeks after he sent the letter, but petitioner did not reply to the letter or return his phone calls. In mid-June 1986, Biggs sent petitioner another letter about McKnight's complaint; petitioner did not respond.

In July 1986, McKnight filed a complaint against petitioner with the State Bar. In November 1986, she substituted her former attorney, Mary Louise Frampton, as her attorney to replace petitioner. Frampton subsequently caused the judgment to be filed, and made a motion for attorney fees. The trial court awarded attorney fees of $21,199.95. Commercial Union then filed a notice of appeal. Approximately six months after Frampton became McKnight's attorney, the court reporter's notes for the trial were destroyed. Thereafter, the parties settled the lawsuit for $21,500.

b. Petitioner's Evidence

Petitioner's evidence consisted of her own testimony and the testimony of Attorney Mary Louise Frampton. ² Frampton's testimony, which was stricken by the hearing panel, is discussed below in connection with the argument that it was error to strike it. ³

Petitioner testified that in early 1985, after Commercial Union filed its notice of appeal, she decided to use a strategy of waiting before having the judgment entered. This strategy was based on the "hard-line position" of Commercial Union and its attorneys, who were adamantly opposed to settlement and intent on vindication. Petitioner concluded that with the passage of time certain events might occur that would facilitate settlement of the case on favorable terms without an appeal.

Specifically, these anticipated events involved: (1) the planned retirement of McKnight's former supervisor, Mr. Rubke, who had appeared to be influential in Commercial Union's handling of the case and who had exhibited personal animosity toward McKnight; (2) an impending consolidation and reorganization of Commercial Union's management; (3) the impending closure of Commercial Union's Fresno office, at which McKnight continued to work; (4) the lessening of the "ego involvement" of Commercial Union's trial attorney with the passage of time; and (5) the possibility of a new attorney taking responsibility for the litigation. Petitioner concluded that if some of these events occurred, Commercial Union and its counsel would begin to evaluate the case "in a more realistic [fashion] ... not only legally but economically."

Petitioner stated that the judgment would include a provision that McKnight would receive 10 percent interest on the damages from the date the complaint was filed, and petitioner believed that this added to the attractiveness of the waiting strategy. Petitioner also explained that McKnight owed her approximately $6,000 in fees, that further expenses would be incurred on any appeal, and that the strategy would give McKnight "time to regroup."

Petitioner explained this choice of strategy to McKnight several times in 1985, and McKnight acquiesced in the strategy. Also, from February 1985 through May 1986, petitioner spoke with McKnight about her case several times, and was known by McKnight to be available to discuss the case at times convenient to McKnight.

When petitioner received the letter from the Fresno County Bar Association in May 1986, she telephoned McKnight. McKnight was very hostile to her. Petitioner asked McKnight to contact her later, but did not remember further details of the conversation. Petitioner explained that she did not respond to the letter from Attorney Biggs on behalf of the Fresno County Bar Association because Biggs had previously represented her in another matter and she had had a "very bad experience" with him, and because...