Rhodes v. State Bar
| Decision Date | 24 July 1989 |
| Docket Number | No. S007750,S007750 |
| Citation | 49 Cal.3d 50,260 Cal.Rptr. 266 |
| Court | California Supreme Court |
| Parties | , 775 P.2d 1035 George H. RHODES, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent. |
Paul J. Geragos, Mark J. Geragos, Geragos & Geragos, Los Angeles, for petitioner.
Diane C. Yu, Oakland, Truitt A. Richey, Jr., and Marta B. Galeano, and Lawrence C. Yee, Office of Gen. Counsel, State Bar of Cal., San Francisco, for respondent.
In this proceeding we review the recommendation of the Review Department of the State Bar Court that petitioner, George H. Rhodes, be suspended from the practice of law for a period of five years; that execution of the suspension order be stayed; and that he be placed on probation for five years subject to certain conditions, including two years of actual suspension. 1 This recommendation follows his misdemeanor conviction for violating Labor Code section 212 and misconduct related to several disciplinary matters. Petitioner contends that the review department's recommendations of discipline are excessive and not supported by the evidence.
After considering the record and the arguments of petitioner, we adopt the review department's recommendation in all respects, except that we do not require that petitioner retake and pass the Professional Responsibility Examination.
Petitioner was admitted to the practice of law in California on January 5, 1966. He was previously disciplined in 1984 for failing to maintain his client's funds in full in his trust account thereby commingling, misappropriating and converting a portion of that client's funds to his own use in violation of former rule 8-101 of the Rules of Professional Conduct. 2 (Bar Misc. No. 4814.) Petitioner received a two-year suspension, stayed, on the condition that he be placed on probation. 3
The present proceedings concern a conviction referral matter regarding a nolo contendere plea to a misdemeanor violation of Labor Code section 212, subdivision (a), 4 and 11 additional charges of disciplinary violations. The two matters were consolidated and a hearing conducted before a hearing panel consisting of a single referee. Petitioner does not dispute the substance of the referee's findings.
Petitioner had a continuing relationship with the Truckee River Bank that allowed him regularly to issue checks with insufficient funds in his account. From time to time, however, the bank refused to honor such checks, leaving petitioner unsure whether a particular check would be honored. Petitioner issued a check in the amount of $375 for wages. The bank did not honor the check and charges were filed against petitioner. On January 2, 1985, petitioner pleaded nolo contendere to a misdemeanor violation of Labor Code section 212, subdivision (a), for failure to have sufficient funds in his checking account at the bank to cover the check. The trial court placed petitioner on informal probation for one year, sentence suspended, and found that petitioner's conduct did not involve moral turpitude. Petitioner subsequently paid the wages in full.
Count 1 concerned petitioner's improper business transactions with a client. In 1981, petitioner borrowed a total of $6,000 from his client. He failed to make the promised payments, but did issue two checks to the client, each of which was returned for insufficient funds. In 1983, petitioner's client succeeded in obtaining a judgment against him, but was unable to collect because petitioner filed for bankruptcy. Petitioner failed to disclose fully his precarious financial situation to his client before obtaining the loans, failed to advise his client to consult with independent counsel, and failed to obtain his client's written consent to the transaction.
Count 2 concerned petitioner's continuous deposit of personal as well as clients' funds in his client trust fund account and his withdrawal of funds from the account for his personal use. Petitioner also used this account to advance filing fees for clients; two checks used to pay filing fees were returned for insufficient funds.
Counts 3 through 5 concerned checks issued by petitioner that were returned for insufficient funds by the Truckee, California, branch of Bank of America. Finding that petitioner had reasonable grounds to believe the bank would honor his checks, the referee found no violation of the Business and Professions Code or the Rules of Professional Conduct of the State Bar as to these counts.
Counts 6 and 7 concerned three checks issued by petitioner in 1982 that were returned for insufficient funds by a San Francisco branch of Bank of America. Petitioner had no agreement with that bank to honor his overdrafts and had reason to believe that his account did not have sufficient funds to cover those checks. 5
Count 9 concerned a check issued against petitioner's personal account for the purchase of a car. The check was returned for insufficient funds, and after repeated demands for proper payment, petitioner issued a check written against his separate court costs account, but it was also returned for insufficient funds. Petitioner knew or should have known that these checks would not be honored. Petitioner regularly deposited personal, as well as clients' funds in his court costs account and used that account for the payment of his personal expenses.
Count 10 concerned the commingling of personal funds in his clients' trust account and conversion of these funds for his personal use. Petitioner regularly used his court costs account to pay a client's payroll taxes. One check issued for that purpose was returned for insufficient funds. Petitioner knew or should have known the check would not be honored. In 1983, this client declared bankruptcy and requested that petitioner return funds that the client had advanced to petitioner to pay for taxes. Petitioner failed to repay the money until 1985.
Finally, count 11 concerned petitioner's refusal for a period of six years to return funds held for his client at the client's request. The balance in petitioner's trust account during that period was frequently lower than the amount owed to his client.
The hearing panel found petitioner had violated several of the Rules of Professional Conduct of the State Bar as well as Business and Professions Code sections 6068, subdivision (a) [duties of attorney], and 6103 [violation of oath or attorney's duties]. 6 Finding that none of the incidents of misconduct involved acts of moral turpitude, the hearing panel recommended a two-year suspension, stayed, and probation for two years subject to conditions including an actual suspension of three months.
The review department adopted most of the hearing panel's findings; however, it determined that petitioner violated Business and Professions Code sections 6068, subdivision (a), and 6103 as to counts 3, 4 and 5. The review department found, contrary to the hearing panel, that petitioner knew his account contained insufficient funds to cover the checks and had no way of knowing whether the checks would be honored by his bank.
The review department also disagreed with the hearing panel's recommendation of discipline, and recommended discipline of five years' suspension, stayed, with a probationary period of five years subject to conditions including actual suspension for two years. The department voted 11 to 1 in favor of the recommended discipline, with the sole dissenting referee recommending disbarment.
In attorney discipline matters we independently review the record, reweigh the evidence and pass on its sufficiency. (Farnham v. State Bar (1988) 47 Cal.3d 429, 433, 253 Cal.Rptr. 249, 763 P.2d 1339; Franklin v. State Bar (1986) 41 Cal.3d 700, 708, 224 Cal.Rptr. 738, 715 P.2d 699.) However, the findings of the State Bar are entitled to great weight and are presumed to be supported by the record. (Coppock v. State Bar (1988) 44 Cal.3d 665, 677, 244 Cal.Rptr. 462, 749 P.2d 1317.) The burden falls upon petitioner to show that the findings are not supported by convincing proof to a reasonable certainty. (Ibid.)
Petitioner first contends that the State Bar Court erred by instituting proceedings on counts 2, 3 and 4 because it failed to consolidate them with his previous disciplinary proceeding (hereinafter the Lindblad matter) even though he had approached the State Bar with evidence of these matters before it filed the order to show cause in the Lindblad matter. Petitioner asserts that the State Bar's proceedings are quasi-criminal in nature and that the State Bar cannot proceed on these counts because they are res judicata or alternatively that he has already been in jeopardy.
Rule 511 of the Rules of Procedure of the State Bar provides that if the State Bar decides to terminate its investigation of alleged misconduct, then the State Bar, with some exceptions, is barred from instituting further proceedings against the member based upon the same alleged facts. 7 Here, however, the State Bar did not say it was terminating its investigation, but noted that it was still investigating the alleged misconduct. 8 While the State Bar could have consolidated the Lindblad matter with petitioner's other alleged incidents of misconduct (see rule 262, Rules Proc. of State Bar), "[t]here is no mandatory consolidation provision, and it is apparently common for disciplinary matters involving the same member to be handled independently." (Smith v. State Bar (1985) 38 Cal.3d 525, 536, 213 Cal.Rptr. 236, 698 P.2d 139.) Counts 2, 3 and 4 therefore did not have to be consolidated with the earlier proceedings, and are not res judicata in this proceeding. In addition, we note that a disciplinary proceeding is not a criminal action and ordinary criminal procedural safeguards do not apply. (Goldman v. State Bar (1977) 20 Cal.3d 130, 140, 141 Cal.Rptr. 447, 570 P.2d...
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