Fitzpatrick v. State Bar

• Decision Date: 11 October 1977
• Citation: 569 P.2d 763,20 Cal.3d 73,141 Cal.Rptr. 169
• Court: California Supreme Court
• Parties: , 569 P.2d 763 Robert L. FITZPATRICK, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent. L.A. 30666 and L.A. 30642.

Page 169

141 Cal.Rptr. 169

20 Cal.3d 73, 569 P.2d 763

Robert L. FITZPATRICK, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

L.A. 30666 and L.A. 30642.

Supreme Court of California.

Oct. 11, 1977.

Rehearing Denied Nov. 10, 1977.

Robert L. Fitzpatrick, in pro. per.

Herbert M. Rosenthal and Ronald W. Stovitz, San Francisco, for respondent.

BY THE COURT ^*

This is a proceeding to review recommendations of the Disciplinary Board of the State Bar in L.A. 30642 that petitioner be suspended from the practice of law for five years on conditions of probation, including actual suspension of from two to five years and in L.A. 30666 that petitioner be suspended from practice for three months. The board further recommends in L.A. 30666 that, in the event discipline is imposed in the first action, petitioner be suspended for one year consecutive to any actual suspension imposed in the first action. Although the two disciplinary proceedings were separately argued before the board, we exercise our prerogative to consider the proceedings contemporaneously. (Silver v. State Bar (1974) 13 Cal.3d 134, 117 Cal.Rptr. 821, 528 P.2d 1157; Black v. State Bar (1972) 7 Cal.3d 676, 103 Cal.Rptr. 288, 499 P.2d 968; Cutler v. State Bar (1969) 71 Cal.2d 241, 78 Cal.Rptr. 172, 455 P.2d 108.) We have concluded that due to the gravity of petitioner's repeated offenses, petitioner should be disbarred.

Petitioner was admitted to practice in 1965. He was suspended from practice on May 21, 1975, as a result of his conviction of selling, furnishing, or giving away cocaine. (Health & Saf.Code, § 11352.) On August 18, 1976, when his judgment of conviction was reversed, we vacated the interim suspension order.

In L.A. 30642, he is charged in three counts with the violation of his oath and duties as an attorney (Bus. & Prof.Code, §§ 6067, 6068, 6103), the willful violation of rule 9 of the Rules of Professional Conduct (present rule 8-101, commingling of client's funds), and the commission of acts involving moral turpitude and dishonesty (Bus. & Prof.Code, § 6106). In L.A. 30666, he is charged with the violation of his oath and duties as an attorney (Bus. & Prof.Code, §§ 6067, 6068, 6103) and the commission of acts involving moral turpitude and dishonesty (Bus. & Prof.Code, § 6106).

The current charges arose from petitioner's conduct in four separate legal matters. For convenience and clarity, the Tibbetts and Green matters will be treated together, while the Baxter and Wilson matters will be treated separately.

The Tibbetts and Green Matters

In June 1971 petitioner was retained to defend Larry Tibbetts and Kenneth Green against felony charges brought against them. Petitioner had represented Green in a previous case. Bail for each was set at $6,250. Petitioner advised Charles Green, Kenneth's father, that his son was in jail and that $6,250 was needed for a cash bond, ¹ and requested him to send the $6,250 to petitioner's trust account with the Bank of America in Los Angeles. Petitioner also contacted Tibbetts' mother and advised her that $6,250 was needed as bail to get her son out of jail. Mrs. Tibbetts understood that this sum was for cash bail which would be returned. Pursuant to petitioner's instructions, Mrs. Tibbetts wired the $6,250 to petitioner's trust account in Los Angeles.

Petitioner used no portion of the $12,500 paid to him by his clients' parents for cash bail. Rather, on the days he spoke to each of the parents, petitioner arranged to have Tibbetts and Green released from custody on $6,250 bail bonds furnished by a bail bond agency. Petitioner paid the $625 premium on each bail bond.

Petitioner admitted that he withdrew the $12,500 from his trust account since he did not regard the sum as trust money, thereby causing his trust account balance to drop to $23. Petitioner testified that he informed Mrs. Tibbetts and Mr. Green that he would never allow his clients to post cash bond, for, if cash bond is posted, the judge is likely to impose the amount of cash bail as the fine in the event of conviction. Rather, petitioner regarded Tibbetts' payment as "collateral" for the bail bond on her son and allegedly removed the money from his trust account over a period of several weeks and placed it in his safe. Petitioner could not explain why he removed the money over a period of weeks rather than removing it at once. Petitioner claims that Charles Green authorized him to apply the $6,250 which Green provided toward current and previous legal fees incurred by Kenneth Green; Charles Green denied that any such agreement existed.

Some time after their release, Tibbetts and Green learned that commercial bail bonds rather than cash bonds had been used. When they told petitioner to substitute the cash for the bail bonds, petitioner advised them that the substitution would require that they be rebooked. Green and Tibbetts then suggested that the cash be placed in a savings and loan association to draw interest, but petitioner never followed their instruction.

In November 1971, when petitioner realized there was a conflict of interest between Green and Tibbetts, he substituted out as counsel for Tibbetts. Ludwig Gerber, with whom petitioner shared office space, became counsel for Tibbetts. Tibbetts "reluctantly" agreed that $2,000 of the $6,250 sent to petitioner by his mother for bail could be paid to Mr. Gerber for his services in the criminal matter. ²

Although the bonds were exonerated in May 1972, petitioner did not return the $12,500 to his clients' parents at that time. Tibbetts testified that from May to August 1972, he repeatedly requested the return of the $4,250 still owed his mother. On three occasions, petitioner falsely told Tibbetts he had sent the money to Mrs. Tibbetts. When Tibbetts discovered the money had not been sent, petitioner gave various excuses. In July 1972, Tibbetts filed a complaint against petitioner at the State Bar.

On August 8, 1972, after being advised by the State Bar of the complaint against him, petitioner paid Mrs. Tibbetts the $4,250. Petitioner explained the delay in sending Mrs. Tibbetts her money by asserting that Larry Tibbetts wanted the money for himself, that petitioner had explained to Tibbetts that he could not give him the money without a letter of authorization from Mrs. Tibbetts, and that the letter was never received. Since petitioner contends that Charles Green orally authorized him to use the $6,250 as partial payment of legal fees incurred by his son, petitioner has made no attempt to return any of this amount to Green.

In the Tibbetts and Green matters both the local committee and the board concluded that petitioner was guilty of commingling and misappropriating by withdrawing funds received in trust from Mrs. Tibbetts and Charles Green to be used in connection with obtaining the release of their sons on bail, and treating these funds as his own.

Petitioner challenges the committee's finding that Charles Green never authorized petitioner to apply any portion of the $6,250 toward legal fees incurred by his son. Since the only evidence supporting a finding that an agreement existed between petitioner and Mr. Green is petitioner's own testimony, petitioner's credibility as a witness is in issue, and we must give great weight to the finding of the administrative committee which saw and heard the witnesses. (Selznick v. State Bar (1976) 16 Cal.3d 704, 708, 129 Cal.Rptr. 108, 547 P.2d 1388; Ridley v. State Bar (1972) 6 Cal.3d 551, 559, 99 Cal.Rptr. 873, 493 P.2d 105; Corn v. State Bar (1968) 68 Cal.2d 461, 466-467, 67 Cal.Rptr. 401, 439 P.2d 313.) The record adequately supports the committee's finding that Charles Green never authorized petitioner to apply the bail money toward legal fees.

Prior to the board hearing, Mr. Howard, a member of the board, disqualified himself at petitioner's request, since Mr. Howard had been with the Los Angeles District Attorney's office which prosecuted petitioner for a felony in 1975. Petitioner alleges that although Mr. Howard did not participate in the action of the board, his return to the meeting prior to the discussion by the board had a highly prejudicial effect on the board.

In Burns v. State Bar (1955) 45 Cal.2d 296, 303, 288 P.2d 514 we expressed doubt over whether disqualification of a member of the Board of Governors would justify setting aside a disciplinary proceeding. (Fish v. State Bar (1931) 214 Cal. 215, 225, 4 P.2d 937.) In any event, disqualification of a member of the Board of Governors would not invalidate the prior proceedings before the local committee; in cases in which a disqualified member of the board votes to impose discipline on an attorney, the most the attorney could claim would be a remand to the board for a new recommendation by qualified members. (Geibel v. State Bar (1939) 14 Cal.2d 144, 147, 93 P.2d 97; Burns v. State Bar, supra, 45 Cal.2d 296, 303, 288 P.2d 514.)

In the present case, Mr. Howard, the disqualified member of the board, did not vote or participate in the proceedings of the board in any way. The fact that petitioner assumes prejudice from Howard's presence is not sufficient to sustain his contention, since petitioner does not show actual prejudice. (Farnham v. State Bar (1976) 17 Cal.3d 605, 609, 131 Cal.Rptr. 661, 552 P.2d 445; Yokozeki v. State Bar (1974) 11 Cal.3d 436, 449, 113 Cal.Rptr. 602, 521 P.2d 858.)

The burden of demonstrating that the board's findings are unsupported by the evidence rests upon petitioner (Geffen v. State Bar (1975) 14 Cal.3d 843, 852, 122 Cal.Rptr. 865, 537 P.2d 1225); although petitioner claims the board's findings that he commingled and misappropriated clients' funds finds no support in the evidence, the preceding statement of facts clearly demonstrates ample support for the findings. Because the findings are adequately supported by the record, they should be adopted by this court. (Geffen v. State Bar, supra, 14 Cal.3d 843, 122 Cal.Rptr. 865, 537...