Tardiff v. State Bar

• Decision Date: 03 July 1980
• Citation: 27 Cal.3d 395,612 P.2d 919,165 Cal.Rptr. 829
• Court: California Supreme Court
• Parties: , 612 P.2d 919 David C. TARDIFF, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent. L.A. 31207.

Page 829

165 Cal.Rptr. 829

27 Cal.3d 395, 612 P.2d 919

David C. TARDIFF, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

L.A. 31207.

Supreme Court of California, In Bank.

July 3, 1980.

Rehearing Denied July 30, 1980.

Mitchell W. Egers and Hanson & Egers, Los Angeles, for petitioner.

Herbert M. Rosenthal, Gael T. Infande, San Francisco, and Robert M. Sweet, Los Angeles, for respondent.

BY THE COURT.

This is a proceeding to review the recommendation of the State Bar Court that petitioner David Tardiff be reinstated to the practice of law subject to a two-year probationary period with stipulated conditions pertaining to the handling of clients' funds. We conclude that petitioner should not be reinstated.

The two-member hearing panel in this proceeding filed a proposed decision recommending the unqualified reinstatement of petitioner. The examiner for the State Bar filed a statement in opposition to the proposed decision and sought advisory review of it. The examiner claimed that the proposed decision portrayed an inaccurate and incomplete picture regarding the rehabilitation of petitioner. The examiner further suggested that if petitioner were to be reinstated it should be done conditionally, and he submitted a list of recommended conditions. This recommendation provided the substance of a stipulation in which petitioner agreed to accept the conditions stated in exchange for the examiner's agreement to withdraw his opposition and request for advisory review. The hearing panel approved the stipulation and, as stated, recommended reinstatement subject to a two-year probationary period.

Petitioner, age 44, was admitted to practice law in 1963. He was employed for a year and a half as a prosecutor in the city attorney's office of Los Angeles and thereafter went to work for another attorney. He later left that employment to open his own office. The misconduct for which petitioner was disbarred occurred during the period he maintained his own office. During 1967 and 1968 petitioner "failed to report his receipt of drafts in settlement of his clients' claims, forged their names to the drafts, commingled the proceeds, and misappropriated the funds to his personal use." (Tardiff v. State Bar (1971) 3 Cal.3d 903, 904, 92 Cal.Rptr. 301, 301, 479 P.2d 661, 661.) In connection with this activity, petitioner pleaded guilty to criminal charges of forgery and grand theft. At his disbarment proceedings petitioner testified that he converted the funds in order to alleviate financial pressures brought about by his attempts to portray a successful Beverly Hills lawyer, which were compounded by the necessity of expensive hospital care for his premature twins. On January 25, 1971, we entered our order disbarring petitioner.

In November 1978, petitioner sought reinstatement. At hearings held in May and June 1979, he presented evidence of his rehabilitation. Eight witnesses testified on his behalf, including five lawyers. Each lawyer attested to petitioner's rehabilitation and present learning in the law. Particularly informative was the testimony of Attorney Arthur Morganstern who has known petitioner since 1972. When he first knew petitioner, petitioner was depressed, immature and separated from his wife. Since 1974, Mr. Morganstern has observed both physical and emotional changes in petitioner. Petitioner lost weight, became interested in physical fitness, reconciled with his wife, became a more open person and less interested in material things. Mr. Morganstern believes that petitioner is now mature and trustworthy.

Dr. Ronald Markman, a psychiatrist who treated petitioner and his wife in 1972 and 1973 (and has seen petitioner on two occasions since) testified that petitioner had confused value judgments and difficulty organizing his lifestyle in 1972. He observed a great deal of improvement in petitioner during the year and a half of treatment and thinks that petitioner does not now possess the spendthrift and emotional habits that led to his disbarment. It was his opinion that petitioner is now a trustworthy person who is much more realistic in his thinking about financial problems. Dr. Markman thought that petitioner could handle being a lawyer now and that the potential for recurrence of petitioner's former behavior is "almost nonexistent."

Petitioner's wife testified that since his psychiatric treatment her husband has undergone gradual change to the point where they work together paying their bills. There has been a 100 percent improvement in their marriage and family life. Petitioner accepts responsibility for his prior misconduct and feels very badly about the harm he caused others. Mrs. Tardiff does not think that there is any likelihood that petitioner would do the same thing again; he is a different person now.

Petitioner testified that he has made restitution to all of his victims and that his only substantial remaining debts are loans from a relative and an acquaintance. He intends to repay these loans but has not been able to do so yet. Petitioner has kept up with the law and has recently taken and passed the Professional Responsibility Examination. Petitioner stated that he has a new self-image and that he no longer cares for the approval of more materialistic members of society. He asserted that he does not now spend money foolishly and that if he were ever to get into financial difficulty again, he would resolve his problems differently than before.

The evidence presented at the hearing also included testimony about a number of unfavorable matters. It is these matters that the State Bar examiner relied upon in opposing the hearing panel's proposed recommendation of unconditional reinstatement. These are matters which occurred within three to four years following petitioner's disbarment and include petitioner's delay in making restitution, his writing bad checks, obtaining loans under alleged deceitful circumstances, and unauthorized practice of law. The State Bar examiner asserted that petitioner had a cavalier attitude toward restitution. During the disbarment proceedings petitioner stated that he could repay all six of his victims within three months. (Tardiff v. State Bar, supra, 3 Cal.3d at p. 907, 92 Cal.Rptr. 301, 479 P.2d 661.) He now admits that he knew he could not do so; his claim to the contrary was part of his unrealistic and inappropriate conduct at the time. Most of petitioner's victims were not paid until two or three years later, and one of them was not paid until one week before the hearings in this matter.

The evidence in this case, in our view, does not support the conclusion that petitioner was unwilling to make restitution to his victims. Although complete restitution took several years, petitioner paid what he could afford to the probation office, which allocated particular amounts to the victims. ¹

Petitioner obtained a number of loans which he failed to repay within the time promised. In 1970, petitioner borrowed $4,000 from his wife's uncle, Mack Strahl. Petitioner failed to repay the loan as scheduled, and Mr. Strahl filed a complaint in 1971 alleging, inter alia, fraud based on petitioner's failure to provide a deed of trust on his home, which was to be the security for the loan. Petitioner testified that he did not take the fraud allegation seriously. He acknowledged that Mr. Strahl was to receive a deed of trust but contended that Strahl's agreement to make the loan was based on other considerations than the obtaining of a deed of trust. ² Although the examiner concluded that petitioner acted dishonestly in dealing with Mr. Strahl and his attorney, attempted to conceal his whereabouts, and was not candid with the hearing panel regarding this matter, such a characterization appears to be an exaggeration of the testimony given. Petitioner admitted that he made little or no effort to stay in touch with Mr. Strahl, but there is no indication that petitioner purposefully attempted to conceal his whereabouts. Nor does petitioner's unsureness about certain details of the transaction necessarily indicate a lack of candor; it could also be a result of the passage of time and petitioner's distraction at the time with his numerous other financial problems.

In November 1973, petitioner borrowed $4,000 from Ms. Maria Arteaga, a client of his then employer, Attorney Jed Kelson. Petitioner proposed that Ms. Arteaga make him the loan while he was accompanying her to the bank to negotiate her $16,000 settlement check. He did not suggest that she seek advice of independent counsel, did not give her security for the loan and gave her a 60-day promissory note knowing that he could not repay the loan that quickly. Petitioner did not reveal his intentions to Kelson because he believed that Kelson would advise his client not to make the loan. Petitioner used the proceeds of the loan to make restitution to one of the victims in his disbarment proceeding in order to clear up her lawsuit against him so that he could proceed with the pending purchase of his house. Ms. Arteaga was not repaid until 1977, after she had filed an action against petitioner.

In 1972, petitioner borrowed $2,500 from Ms. R., whom he had been dating while separated from his wife. Again, petitioner promised to repay the money within an unrealistically short time period. Ms. R. admitted at the hearing that she knew at the time that petitioner was on probation for embezzlement, but she nevertheless stated that she was under the impression that petitioner was still an attorney because he told her he needed the money to go into practice with Jed Kelson, a practicing attorney. (Petitioner went to work for Kelson as a law clerk.) Petitioner repaid this woman in 1977 after she filed suit against him.

Ms. R. arranged, at petitioner's request, for an additional $1,000 to be borrowed at the same time from her friend Evangeline Sachs. Mrs. Sachs and her husband made numerous attempts to obtain the money, but it...