Snyder v. State Bar
| Decision Date | 08 January 1990 |
| Docket Number | No. S009779,S009779 |
| Citation | 265 Cal.Rptr. 429,49 Cal.3d 1302,783 P.2d 1146 |
| Court | California Supreme Court |
| Parties | , 783 P.2d 1146 Douglas William SNYDER, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent. |
Kenneth Kocourek, Diamond Bar, for petitioner.
Diane C. Yu, Truitt A. Richey, Jr., San Francisco, and Richard J. Zanassi, for respondent.
In this proceeding we review the recommendation of the Review Department of the State Bar Court that petitioner Douglas W. Snyder be suspended from the practice of law for five years, with the suspension stayed and petitioner placed on probation for five years on several conditions, including actual suspension for two years and until petitioner shows proof of his rehabilitation, fitness to practice, and learning and ability in the general law. Petitioner contends the recommended discipline is excessive in comparison to that imposed on other attorneys for similar conduct. We find that the recommendation, except for the rehabilitation hearing requirement, is warranted by the seriousness of petitioner's conduct and is consistent with our previous decisions.
Petitioner was admitted to practice in California in July 1980. 2 In March 1984, petitioner was retained to represent Allen Silverstein (who was then a personal friend of petitioner's) in a personal injury action. Under a written fee agreement, petitioner was to receive one-third of any settlement recovered on Silverstein's behalf. In April 1984, petitioner received an insurance draft in the amount of $15,000 as full and final settlement of the action. Petitioner and Silverstein each endorsed the draft, and petitioner deposited it in his client trust account. With Silverstein's consent, petitioner withdrew $5,000 from the trust account as his contingency fee, and withdrew a second $5,000 for the purpose of opening a short-term certificate of deposit on Silverstein's behalf. The remaining $5,000 stayed in the client trust account.
Over the next several months, petitioner made a series of disbursements on Silverstein's behalf:
(1) Because Silverstein's driver's license had recently been revoked, and because petitioner was registered to purchase automobiles at insurance salvage auctions, Silverstein asked petitioner to purchase (at a cost of $2,300) a car for him and disburse $446 for repairs and $750 for auto insurance.
(2) Silverstein authorized petitioner to disburse $150 for repairs to petitioner's own car, which Silverstein had damaged earlier.
(3) Because Silverstein had been living in petitioner's house for several months, petitioner withdrew $900 as rent and $200 for Silverstein's long-distance telephone calls.
(4) As his fee for legal services rendered in connection with a separate matter on Silverstein's behalf, petitioner disbursed $800.
(5) Petitioner wrote $958 in checks in response to miscellaneous requests by Silverstein.
Silverstein expressly or implicitly consented to each of the foregoing disbursements, which totalled $6,504, leaving a balance of $3,496 owed him by petitioner.
In August 1984, Silverstein sought to cash the certificate of deposit. Petitioner informed him that nothing was left of the settlement proceeds, and admitted he had used some of the money for his own expenses. 3 3 The State Bar began investigating the case in late 1984.
In June 1986, Silverstein retained an attorney, Thomas Beck, to assist him in recovering his share of the settlement proceeds. To ascertain the exact amount owing, Beck repeatedly requested that petitioner provide documentation of the disbursements. Petitioner, having no records of the transactions involving Silverstein's money, failed to respond. (According to his testimony, he has since learned to use a computer to keep track of his transactions and help maintain adequate records.)
In November 1986, petitioner offered to repay Silverstein $3,400 in monthly installments of $100. After one payment, petitioner defaulted. In June or July 1987, Silverstein rejected petitioner's subsequent offer to reimburse him in the amount of $3,300 plus interest. Finally, in April 1988, petitioner tendered and Silverstein accepted payment of $3,993 as complete restitution. At numerous times between April 1984 and April 1988, the balance in petitioner's client trust account was below $3,496.
The hearing panel found petitioner misappropriated and commingled client funds in violation of former rules 8-101(A)(2) and 8-101(B)(4) of the Rules of Professional Conduct, 4 and failed to maintain adequate records of client funds and transactions in violation of rule 8-101(B)(3). Although it found these violations constituted acts of moral turpitude, in mitigation it recognized that petitioner (1) had no prior record of discipline, (2) suffered an emotional breakdown in 1984 when his wife deserted him, forcing him to care for their 11-year-old child and deal with serious financial problems, (3) voluntarily stopped practicing law from 1984 to 1987, with the sole exception of his representation of Silverstein (petitioner admits he erroneously considered his relationship with Silverstein one of mere friendly consultation rather than attorney and client), (4) made full restitution to Silverstein, (5) acted out of "friendship" in purchasing a car for Silverstein, and (6)engaged in only an "isolated" instance of misappropriation. The panel recommended that petitioner be suspended from the practice of law for five years, with the suspension stayed on various conditions, including actual suspension for two years and the requirement that he see a psychiatrist for at least one year.
The review department, by vote of 12-3, adopted the findings of fact and conclusions of the panel, modifying its recommendation of discipline in only one respect: petitioner should be actually suspended for two years and "until he has shown proof satisfactory to the State Bar Court of his rehabilitation, fitness to practice and learning and ability in the general law pursuant to Standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct...." Two of the dissenters asserted the recommended discipline was excessive; the third thought it insufficient.
Petitioner challenges neither the State Bar Court's findings of fact nor its conclusions of law. He simply asserts the discipline recommended by the review department is excessive.
In assessing what discipline is warranted by petitioner's conduct, our paramount concern is protection of the public, the courts, and the integrity of the legal profession. (Tarver v. State Bar (1984) 37 Cal.3d 122, 133, 207 Cal.Rptr. 302, 688 P.2d 911.) Although we exercise independent judgment in examining the facts before us our review is generally limited to evidence presented in the disciplinary proceedings below. (Palomo v. State Bar (1984) 36 Cal.3d 785, 797, 205 Cal.Rptr. 834, 685 P.2d 1185.) Moreover, we accord great weight to the recommendation of the review department (Tarver, supra, 37 Cal.3d at p. 133, 207 Cal.Rptr. 302, 688 P.2d 911), and petitioner bears the burden of proving the recommendation erroneous or unlawful. (In re Vaughn (1985) 38 Cal.3d 614, 618, 213 Cal.Rptr. 583, 698 P.2d 651.)
Petitioner challenges the review department's recommendation in three respects. First, he claims a two-year actual suspension is excessive, given the evidence of substantial mitigating factors introduced at the hearing and recognized by the hearing panel. 5 Second, he maintains that a two-year actual suspension is disproportionate to the discipline imposed in similar recent cases. Third, he asserts the requirement that he prove his rehabilitation before being able to practice again is "grossly unfair" and unnecessary given the nature of his misconduct. For the reasons set forth below, only the third contention has merit.
The State Bar Court found petitioner misappropriated client funds and failed to keep adequate records of transactions involving such funds. We have repeatedly held that misappropriation is a serious offense warranting severe discipline in the absence of "clearly extenuating circumstances." (Waysman v. State Bar (1986) 41 Cal.3d 452, 457, 224 Cal.Rptr. 101, 714 P.2d 1239; Sevin v. State Bar (1973) 8 Cal.3d 641, 646, 105 Cal.Rptr. 513, 504 P.2d 449; Benson v. State Bar (1971) 5 Cal.3d 382, 387-388, 96 Cal.Rptr. 30, 486 P.2d 1230.) Indeed, standard 2.2 of the Standards for Attorney Sanctions for Professional Misconduct (Rules Proc. of State Bar, div. V), which serve as advisory guidelines for discipline, provides: Petitioner does not claim his misappropriation of Silverstein's funds was not wilful or that the amount of funds misappropriated was insignificant; he merely asserts that the mitigating circumstances render actual suspension unwarranted.
As noted above, the State Bar Court recognized six substantial mitigating factors in this case. 6 Although these factors show disbarment is not warranted, they are not so compelling that petitioner should not be actually suspended for two years.
The first mitigating factor recognized by the hearing panel--petitioner's lack of a prior record of discipline--is unpersuasive in this case. A "blemish-free record of ... relatively short duration is entitled to little weight in mitigation." (In re Demergian, supra, 48 Cal.3d at p. 294, 256 Cal.Rptr. 392, 768 P.2d 1069; Rosenthal, supra, 43 Cal.3d at p. 664, 238 Cal.Rptr. 394, 738 P.2d 740; Smith v. State Bar (1985) 38 Cal.3d...
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...the public, the courts, and the integrity of the legal profession guides our imposition of discipline. (Snyder v. State Bar (1990) 49 Cal.3d 1302, 1307, 265 Cal.Rptr. 429, 783 P.2d 1146.) In this respect, we accord great weight to the recommendation of the review department. Petitioner bear......