Marquette v. State Bar

• Decision Date: 11 January 1988
• Docket Number: No. S001679,S001679
• Citation: 44 Cal.3d 253,746 P.2d 1289,242 Cal.Rptr. 886
• Court: California Supreme Court
• Parties: , 746 P.2d 1289 Walter L. MARQUETTE, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.

Page 886

242 Cal.Rptr. 886

44 Cal.3d 253, 746 P.2d 1289

Walter L. MARQUETTE, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.

No. S001679.

Supreme Court of California,

In Bank.

Jan. 11, 1988.

Walter L. Marquette, pro se.

Herbert M. Rosenthal, Truitt A. Richey, Jr., and Andrea Wachter, San Francisco, for respondent.

BY THE COURT: ^*

The Review Department of the State Bar Court has recommended unanimously that petitioner Walter L. Marquette be disbarred from the practice of law in the State of California. (Bus. & Prof. Code, § 6100; Cal. Rules of Court, rule 951.) The recommendation follows the findings of the hearing panel that petitioner (1) perjured himself on a lease application and willfully executed drafts for rental payments against insufficient funds; (2) willfully violated a court order to appear at a debtor's examination; and (3) misappropriated disputed client funds for his personal use and threatened criminal charges to gain advantage in a related civil dispute. In determining the appropriate discipline for these transgressions, the review department considered petitioner's two previous reprovals for professional misconduct.

Appearing in propria persona, petitioner contends, without authority and with essentially no citation to the record, that the hearing panel and the review department committed various errors of fact and law. Our independent review of the record reveals no basis for his assertions. We conclude that he should be disbarred.

I. FACTS

A. The 1975 Private Reproval

Petitioner was admitted to the practice of law in 1971. In April 1972, Larry P. retained him to assist in obtaining a discharge from the United States Navy. Petitioner accepted $2,500 to process the discharge application and to exhaust all available remedies if initially unsuccessful. Petitioner filed an application for discharge and attended a hearing in the matter, but thereafter took no further action. Although Larry P. tried repeatedly to contact petitioner, he failed to return his client's telephone calls and letters. Larry P. did not obtain a discharge and eventually completed his term of service.

The hearing panel determined that petitioner had willfully failed to perform duties for which he had been retained. He was privately reproved by the Disciplinary Board of the State Bar.

B. The 1978 Public Reproval

In April 1974, petitioner agreed to defend Charlotte N. in a criminal prosecution. Petitioner advised his client that he would appear on her behalf at a pretrial conference scheduled for May 1, 1974, and that she need not attend. Petitioner did not appear at the conference, and the court issued a bench warrant for Charlotte N.'s arrest. Two weeks later petitioner met with her in his office and clearly implied that he had appeared at the pretrial conference. After the meeting she repeatedly attempted to contact petitioner, but he did not return her telephone calls. She never spoke with him again.

In March 1974, petitioner agreed to represent Elsie S. Andersen in a dispute with the General Motors Corporation. Andersen subsequently paid petitioner $500 for his legal services. Andersen repeatedly attempted to contact petitioner thereafter, but received no response. Petitioner performed no legal services and retained the $500 paid to him for representation.

The hearing panel determined that in both the Charlotte N. and Andersen matters petitioner had willfully failed to perform legal services for which he was retained, and had intentionally abandoned his client. On April 7, 1978, the Disciplinary Board of the State Bar publicly reproved petitioner for his professional misconduct.

C. The Current Proceeding

The hearing panel made findings with respect to three separate incidents of alleged professional misconduct. The Review Department of the State Bar Court adopted the hearing panel's determinations in their entirety. They establish the following:

The Lee Matter

In March 1981, petitioner executed a lease application under penalty of perjury for a large home in Carmel Valley owned by Edwin Lee. Petitioner asserted in the application that his former landlord was named Matthew Cervelli, and that he had left his previous rented residence because the lease had expired. Petitioner also claimed that he had never been evicted, and that he had never willfully and intentionally refused to pay rent when due. Lee contacted Cervelli, who stated that petitioner was an excellent tenant who timely paid his rent.

Cervelli was not petitioner's prior landlord, however, but a close friend. The actual owner of petitioner's prior leased property was Angelo Taddeo. Petitioner had repeatedly failed to pay rent to Taddeo, who served petitioner in January 1981 with a three-day notice to pay $2,000 in rent due or quit the premises. Petitioner entered into a compromise involving the payment to Taddeo of a certain sum of cash, the execution of a promissory note for the balance of outstanding rent, and the surrender of the premises after a limited extension of his tenancy.

On the basis of the false representations made in the lease application, Lee rented petitioner his residential property. On five separate occasions in 1982 and 1983, petitioner knowingly executed checks to Lee for rent due against insufficient funds. The checks were dishonored, but subsequently paid.

The Taddeo Matter

Taddeo brought suit against petitioner after he made no payments on the promissory note executed as part of the compromise for unpaid rent. He obtained a judgment in the amount of $2,100 plus attorney fees, costs, and interest. After petitioner failed to pay the judgment, he was personally served with notice to appear at a debtor's examination. Petitioner did not appear and was held in contempt. Petitioner never satisfied the judgment.

The Thelma J. Matter

During 1982 petitioner represented Rickye K. in a federal criminal trial. Rickye K. was convicted and imprisoned. In petitioner's presence, Thelma J., the fiancee of Rickye K., delivered a cashier's check in the amount of $2,750 to Joseph Cassignelli, a court reporter, as a deposit for preparation of the trial transcript required for Rickye K.'s appeal. Petitioner assured Thelma J. that any unused portion of the deposit would be refunded to her. In April 1983 Cassignelli delivered a check made out to petitioner in the amount of $1,350 as a partial refund of the transcript deposit.

Petitioner called Rickye K. in prison. He told Rickye K. that he intended to deposit the check in his personal bank account and apply the sum to the balance owed him for Rickye K.'s representation. As petitioner stated before the hearing panel, "I said, I'm going to take this check, it's made payable to me, and I'm going to cash this check and apply it to what you owe me, because I understand, as you told me, it was money that you put up. He didn't say anything about it being Thelma [J.'s] check. He said well, buddy, I'm in jail, there's not much I can do about it."

Thelma J. informed petitioner that the money belonged to her and demanded that he return the refund. Petitioner refused, and has never reimbursed her. On at least one occasion petitioner stated to Thelma J. that if she persisted in her attempt to recover the money, he would "go to the Attorney General" and implicate her in matters for which Rickye K. had been prosecuted.

Conclusions

On the basis of these findings, the State Bar concluded that petitioner committed various acts of professional misconduct. Specifically, the State Bar determined that (1) petitioner's perjured statements on the lease application and his intentional execution of drafts against insufficient funds were acts of moral turpitude in violation of Business and Professions Code section 6106; ¹ (2) his failure to appear at the noticed debtor's examination was a breach of his oath to uphold the Constitution and laws and to maintain respect for the judiciary, in violation of sections 6106 and 6068, subdivisions (a) and (b); and (3) his misappropriation of the transcript refund check was an act of moral turpitude in violation of section 6106, and his threat to initiate criminal charges against Thelma J. constituted an improper attempt to gain advantage in a civil matter in violation of rule 7-104 of the State Bar Rules of Professional Conduct.

The State Bar also found multiple matters in aggravation. Petitioner had been disciplined twice previously for professional misconduct. He exhibited no remorse for the hardship caused others by his misdeeds, and asserted that all his acts were justified by personal and financial difficulties. Finally, petitioner was found to be "hostile to the State Bar and the conduct of this proceeding." Disbarment was accordingly recommended.

II. DISCUSSION

It is settled that we must independently examine the evidence and evaluate its sufficiency in matters concerning the discipline of an attorney. (Alberton v. State Bar (1984) 37 Cal.3d 1, 11, 206 Cal.Rptr. 373, 686 P.2d 1177.) All reasonable doubts must be resolved in favor of the attorney. (Ibid.) However, the findings of the hearing panel are entitled to great weight. (Greenbaum v. State Bar (1987) 43 Cal.3d 543, 549, 237 Cal.Rptr. 168, 736 P.2d 754.) When the findings rest primarily on testimonial evidence, " 'we are reluctant to reverse the decision of the [hearing panel], which was in a better position to evaluate conflicting statements after observing the demeanor of the witnesses and the character of their testimony.' " (Himmel v. State Bar (1971) 4 Cal.3d 786, 794, 94 Cal.Rptr. 825, 484 P.2d 993.)

It is also settled that petitioner bears the burden of demonstrating that the findings are not supported by the evidence. (In re Chira (1986) 42 Cal.3d 904, 908, 231 Cal.Rptr. 560, 727 P.2d 753.) "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." ( Himmel v. State Bar, supra, ...