Chefsky v. State Bar

• Decision Date: 10 May 1984
• Docket Number: S.F. 24571
• Citation: 202 Cal.Rptr. 349,36 Cal.3d 116
• Court: California Supreme Court
• Parties: , 680 P.2d 82 Robert M. CHEFSKY, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

Page 349

202 Cal.Rptr. 349

36 Cal.3d 116, 680 P.2d 82

Robert M. CHEFSKY, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

S.F. 24571.

Supreme Court of California In Bank.

May 10, 1984.

As Modified Oct. 4, 1984.

Robert M. Chefsky, Hayward, petitioner, pro se.

Office of Gen. Counsel, State Bar of California, San Francisco, for respondent.

BY THE COURT: ^*

This is a proceeding to review the recommendation of the State Bar of California that petitioner, Robert M. Chefsky, be disciplined for (1) misappropriating funds, (2) failing to perform services for or to communicate with several clients, and (3) withdrawing from representation without taking steps to prevent prejudice to his clients. All the acts of misconduct occurred during the second half of 1978 and the first half of 1979.

I.

Petitioner was admitted to the practice of law in California on June 17, 1959. He has been a member of the California bar continuously since that date with no prior record of discipline.

On November 19, 1981, petitioner was charged with a number of statutory and rule violations with regard to the affairs of five clients: (1) Business and Professions Code section 6067 ¹ (failure to discharge his duties to the best of his knowledge and ability); (2) section 6103 (wilful violation of a court order); (3) section 6106 (commission of an act involving moral turpitude, dishonesty or corruption); (4) rule 2-111(A)(2) of the Rules of Professional Conduct ² (withdrawal from employment without taking steps to avoid prejudice to client); (5) rule 2-111(A)(3) (withdrawal from employment without refunding any unearned portion of fees paid in advance); (6) rule 6-101(2) (wilful or habitual failure to use reasonable diligence and best judgment to accomplish the purpose for which he was employed); (7) rule 7-105(1) (misleading a court by a false statement of fact or law); (8) rule 8-101(A) (commingling funds); and (9) rule 8-101(B)(4) (failure promptly to pay, on request, funds in his possession which belong to his client).

Following a hearing, ³ the panel issued detailed findings which are described below. Further, the panel found that petitioner habitually violated rules 6-101(2) and 2-111(A)(2), and that this conduct involved an act of moral turpitude (§ 6106).

The hearing panel recommended that petitioner be suspended for three years; that the execution of the order of suspension be stayed, and that he be placed on probation for a period of three years. The conditions of probation included actual suspension for one year, restitution of sums advanced by a former client, quarterly reports to the State Bar Court, and passage of the Professional Responsibility Examination within one year.

With the exception of three findings of moral turpitude for allegedly falsely testifying before the hearing panel, the review department adopted the hearing panel's findings and recommended discipline.

II.

Petitioner challenges many of the hearing panel's findings. The scope of this court's review is well-established. " 'Findings by the local committee and the Disciplinary Board are not binding on this court, and we will weigh the evidence and pass upon its sufficiency. All reasonable doubts will be resolved in favor of the accused .... [Par.] The findings, however, must be given great weight, and "When the findings ... rest primarily on testimonial evidence, we are reluctant to reverse the decision of the local administrative committee, which was in a better position to evaluate conflicting statements after observing the demeanor of the witnesses and the character of their testimony." ... The burden is on the petitioner to show that the findings are not supported by the evidence or that the recommendation is erroneous.... In meeting this burden, the petitioner must demonstrate that the charges of unprofessional conduct are not sustained by convincing proof and to a reasonable certainty.' " (Vaughn v. State Bar (1972) 6 Cal.3d 847, 852, 100 Cal.Rptr. 713, 494 P.2d 1257, citations omitted.)

The Martha F. Matter

In August 1978, Martha F. retained petitioner to take possession of and distribute an inheritance which had been left in a savings account by her deceased mother, Rosa H. ⁴ Petitioner spoke with an officer of the bank, who then sent him a cashier's check for the full amount of the inheritance, along with a letter containing the names and addresses of the six surviving children. Petitioner deposited the money in his trust account, except for $100 which he retained by agreement as his fee for the distribution.

Ms. F. heard nothing further from petitioner after August of 1978. Neither she nor any of the other heirs received checks from him. She repeatedly left messages with his answering service, and on one occasion she went to his office and left a note under his door. Petitioner did not respond to any of her messages.

In April 1979, Ms. F. filed a claim for the undistributed estate in small claims court. Petitioner did not appear, and Ms. F. was awarded a default judgment on May 21st. On June 26th, petitioner appeared at judgment debtor examination proceedings. He stated to the judge that he had the money and that he would write Ms. F. a check for the full amount as soon as he returned to his office. As a result, the court ordered the case dropped from the calendar.

A week later, Ms. F. had not received the check so she commenced proceedings to attach petitioner's bank account to satisfy the judgment. She eventually received $449.56 from his commercial account. At the State Bar hearing, petitioner gave Ms. F. a money order for the balance.

Petitioner's defense was that Ms. F. wanted him to turn over the entire fund to her, and he was concerned about his liability to the other heirs if he did so. He testified that he wrote several letters trying to locate heirs for whom he did not have current addresses and to ascertain the wishes of the other heirs about turning over the entire fund to Ms. F. ⁵ However, at the State Bar hearing he was unable to ascertain from reviewing his own file whether he had received responses from the other heirs. He explained that his secretary quit in November of 1978, and thereafter he had only part- time or temporary secretarial help. He did not regularly open or file his mail after the beginning of 1979.

At the time petitioner told the court that he would send Ms. F. the check he had sufficient funds to do so. However, at the State Bar hearing, he could not remember whether those funds had been in his trust account or elsewhere. Bank records in evidence before the hearing panel revealed that in September and December of 1978, the balance in his trust account fell below the amount which he was holding for the Rosa H. heirs. No 1979 records were offered into evidence.

The hearing panel found that petitioner violated his oath to discharge faithfully his duties as an attorney (§ 6067) and his duty to maintain the respect due to the courts of justice and judicial officers (§ 6103), and that he failed to use reasonable diligence to accomplish the purpose for which he was employed. (Rule 6-101(2).) It also found that he committed acts of moral turpitude and dishonesty in three respects: by commingling and misappropriating his client's funds (rule 8-101(A)); by failing promptly to pay out these funds to Ms. F. when she requested them (rule 8-101(B)(4)); and by making a false statement of fact to the court to seek to mislead it (rule 7-105(1)). (See § 6106.)

Petitioner challenges the three findings of moral turpitude. He argues that no moral turpitude was involved in commingling or misappropriating the funds which he received from the bank, since he maintained the funds in a trust account and was not aware that the account balance dropped below the amount of the Rosa H. estate. He notes that he was frequently out of town during the relevant time period and did not consistently examine his trust account records.

The record supports petitioner's claim that initially the money was properly deposited in a client trust account. However, the hearing panel's finding that it was subsequently misappropriated is also supported by legally sufficient evidence. "The fact that the balance in [that] trust account [fell] below the amount due his client will support a finding of wilful misappropriation." (Jackson v. State Bar (1979) 25 Cal.3d 398, 403, 158 Cal.Rptr. 869, 600 P.2d 1326; Black v. State Bar (1972) 7 Cal.3d 676, 691, 103 Cal.Rptr. 288, 499 P.2d 968; Vaughn v. State Bar, supra, 6 Cal.3d 847, 851, 100 Cal.Rptr. 713, 494 P.2d 1257.) And "[e]ven if petitioner's conduct were not wilful and dishonest, gross carelessness and negligence constitute a violation of an attorney's oath faithfully to discharge his duties and involve moral turpitude." (Jackson v. State Bar (1979) 23 Cal.3d 509, 513, 153 Cal.Rptr. 24, 591 P.2d 47.) Furthermore, petitioner's repeated refusal to communicate with Ms. F., or to respond to her demands that he account to her for the estate, will justify a finding that the misappropriation was wilful. (Jackson v. State Bar, supra, 25 Cal.3d at p. 403, 158 Cal.Rptr. 869, 600 P.2d 1326.)

Petitioner next challenges the finding that he failed promptly to pay out the funds on request. He argues that Ms. F. did not provide him with the names and addresses of the other heirs, and that she demanded the entire sum for herself. Yet the record is clear that petitioner did not take any reasonable measures to disburse the funds promptly. At most, he wrote only once to the heirs whose names and addresses had been provided by the bank. He could not recall if he had received any responses to these letters. Moreover, he did not give Ms. F. even the one-seventh of the estate to which he conceded she was entitled, nor did he send checks for the remaining shares to any of the other heirs. He failed to respond to frequent inquiries from Ms. F. as to what he was doing with the money.

Finally, petitioner argues...