Maltaman v. State Bar

• Decision Date: 08 September 1987
• Docket Number: S.F. 4098
• Citation: 741 P.2d 185,239 Cal.Rptr. 687,43 Cal.3d 924
• Court: California Supreme Court
• Parties: , 741 P.2d 185 Joseph P. MALTAMAN, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

Page 687

239 Cal.Rptr. 687

43 Cal.3d 924, 741 P.2d 185

Joseph P. MALTAMAN, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

S.F. 4098.

Supreme Court of California.

Sept. 8, 1987.

[741 P.2d 186] Joseph Maltaman, Daly City, for petitioner

Herbert M. Rosenthal, Truitt Richey and Andrea Wachter, State Bar of California, San Francisco, for respondent.

BY THE COURT:

The State Bar Court recommends that petitioner Joseph Paul Gauci Maltaman, a member of the State Bar since 1955, be disbarred. The referee made findings, adopted by the review department, that from 1976 to 1985, in two separate matters, petitioner violated his oath and duties as an attorney and committed acts involving moral turpitude and dishonesty. He has no prior "formal" disciplinary proceedings.

The record generated by the State Bar Court suggests that substantial discipline We must rely heavily on the State Bar Court's disciplinary findings and recommendations, and we do not hesitate to impose the suggested discipline when presented with a record which justifies it. However, this record, like others we are receiving with increasing frequency, leaves material gaps in the analytical path from charges to proof to findings and conclusions to recommendation.

is warranted, but it does not support the disbarment recommendation. Accordingly, we will impose a discipline of five years' probation, with a minimum one year of actual suspension, both contingent on petitioner's passage of the Professional Responsibility Examination and his full compliance with rule 955, California Rules of Court, as applicable during the periods of actual suspension and probation. A brief comment is warranted in connection with our decision to reduce the recommended discipline.

Here, as in other instances (e.g., Guzzetta v. State Bar (1987) 43 Cal.3d 962, 239 Cal.Rptr. 675, 741 P.2d 172), neither the charges nor the ultimate findings and conclusions relate individual facts to specific professional duties and rules the State Bar Court concludes have been violated. Indeed, the instant findings and conclusions bear only a general relationship to the charges and proof; in several instances--some significant--conduct not charged, or not proved, is found and relied upon as a basis for discipline. ¹ An important factual dispute which the State Bar Court was obliged to resolve de novo has been addressed in both the order to show cause and the findings only by a noncommittal reference to prior civil verdicts against petitioner. Assuming the State Bar Court thereby intended to adopt the civil findings, the evidence does not support them for purposes of attorney discipline.

As we recently noted, carefully prepared disciplinary records are essential to fulfilment by the State Bar and this court of our responsibility to ensure that practicing attorneys are competent and morally qualified. (Guzzetta, supra, 43 Cal.3d at p. 969, 239 Cal.Rptr. at p. 677, 741 P.2d at p. 175.) We call such problems to the State Bar's attention confident that, by doing so, we will prevent their recurrence.

Despite these difficulties, we uphold the State Bar Court's findings that, in one matter, petitioner willfully disobeyed important court orders and, in another, sought advantage for a client by attempting to mislead a judicial officer. Both are extremely serious breaches of an attorney's oath and duties. The valid findings also necessarily imply that petitioner lied on several occasions in the disciplinary proceedings. Indeed, he has exhibited disingenuousness and lack of candor throughout, showing little understanding of the seriousness of certain of the misconduct alleged, or of the role and duties of an attorney. Substantial discipline is therefore warranted.

Because the charges, evidence, findings, and conclusions are mismatched in a number of respects, each must be discussed separately and, unfortunately, in some detail. In matters of evidence, we accord the State Bar Court's findings great deference, particularly when based on evaluations of credibility, but the findings are not conclusive here. We must weigh the evidence ourselves, resolving all reasonable doubts in the attorney's favor. Petitioner bears the burden of showing the findings are not supported by the evidence, but he may satisfy it by demonstrating " 'that the charges ... are not sustained by convincing proof and to a reasonable certainty.' " (Alberton v. State Bar (1984) 37 Cal.3d 1, 12, 206 Cal.Rptr. 373, 686 P.2d 1177; Chefsky v. State Bar (1984) 36 Cal.3d 116, 121, 202 Cal.Rptr. 349, 680 P.2d 82, italics added.)

THE NOTICE TO SHOW CAUSE

The notice to show cause (notice), filed September 4, 1985, included charges with By his actions in the Spang case, the notice (making at this point no reference to specific statutes or rules) charged that petitioner had (1) knowingly acquired an unfair and unreasonable interest adverse to a client without full disclosure or an opportunity for the client to seek advice from independent counsel, (2) failed to employ truthful means in a "[cause] confided to [him]" and sought to mislead a judicial officer by "an artifice or false statement of fact or law," (3) engaged in offensive personality, (4) attempted direct communication with a represented adverse party, (5) committed an act of moral turpitude, dishonesty, and corruption, and (6) violated his oath and duties.

                respect to two incidents, the Spang and Dorham matters.  In the Spang case, the notice alleged as follows:  petitioner, in his professional capacity, advised Frances Spang concerning 1976 and 1977 holographic wills, and a 1976 joint tenancy deed, by which he acquired interests in her residence.  He "failed to advise SPANG to seek independent legal counsel concerning the transaction and to get SPANG'S consent in writing."   After Frances died, he offered the holographic wills for probate.  In the ensuing contest, a jury found on or about May 17, 1983, that the 1976 will and deed were procured by petitioner's undue influence, and the 1977 will by his fraud.  All were set aside.  On or about the last day of the trial, petitioner threatened the will contestant, Arnette Hubbard (Arnette), and later so [43 Cal.3d 933] harassed her that she "filed a Petition for Injunction Prohibiting Harassment" against him.  On or about June 15, 1983, petitioner telephoned Arnette's home and asked to speak to her though he knew she was represented by counsel
                

In the Dorham matter, the notice alleged as follows: petitioner represented Gordon Dorham in a dissolution proceeding before Judge Kay. At a contested hearing on February 7, 1984, the court granted an interlocutory decree and made various oral rulings on support and visitation. After a posthearing conference to clarify the rulings, attended by both counsel, the court asked the wife's counsel, Christopher Cole, to prepare a written decree. Thereafter, petitioner submitted his own proposed order which he knew or should have known was inaccurate and slanted. Subsequently, petitioner appeared at a hearing on his "Motion to Conform Order to the Minutes." The court denied the motion as lacking legal basis, reprimanded petitioner for a pattern of deception, and granted frivolous-motion sanctions in the amount of $250, to be paid to Cole by petitioner personally and forthwith. Petitioner never paid the sanction.

Thereafter, alleged the notice, petitioner entered Judge Kay's courtroom during a recess in a criminal trial, while jurors and others were present. He approached a bailiff and demanded to see Judge Kay. When refused, he shouted, "Tell the judge that this courtroom is not his private boudoir" and hastily left the room.

By his actions in the Dorham matter, the notice charged (again without citation of specific statutes or rules) that petitioner had (1) displayed disrespect for the courts and judicial officers, (2) failed to counsel or maintain only those actions or proceedings he believed just, (3) employed untruthful means in litigation, (4) sought to mislead a judicial officer by artifice and false statements, (5) displayed offensive personality not required by the justice of his cause, (6) failed to give the obedience due in good faith to a court order, (7) engaged in moral turpitude, dishonesty, and corruption, and (8) violated his oath and duties.

A separate section of the notice contained a general recitation that petitioner, by his conduct in both matters, had violated sections 6068, subdivisions (a), (b), (d), and (f), ² 6103, ³ and 6106 ⁴ of the Business and

Professions Code, and rules 5-101, ⁵ 7-103 ⁶, and 7-105(1) ⁷ of the State Bar's Rules of Professional Conduct.

THE SPANG EVIDENCE

Petitioner performed legal, business, and personal services for an elderly couple, Nick and Frances Spang. He maintained a relationship with Frances after Nick's death in 1973, and she came to depend on him heavily for companionship and assistance in all her affairs. In 1974, Frances formally executed a written will prepared by petitioner. It left the bulk of the estate to Frances' sister, Arnette, and Arnette's daughter Suzann Hubbard Edwards (Suzann), or alternatively to an educational trust for Suzann's minor son Shane Dunn. Petitioner was named trustee for Shane and executor of the will but was not a beneficiary.

Frances died on April 8, 1979. Petitioner did not offer the 1974 will for probate. Rather, he presented holographic wills executed by her on February 4, 1976, and March 15, 1977, both of which left Frances' house, the estate's most valuable asset, to petitioner.

Arnette and Suzann, represented by Attorney Teal, offered the 1974 will. Will contests ensued, and petitioner obtained appointment as special administrator of the estate. Arnette and Suzann sought his removal on grounds of self-interest. While deposing petitioner in that regard, Teal learned that in 1976, Frances had executed and recorded a deed naming petitioner a joint tenant of her residence. ⁸ Arnette and...