Tarver v. State Bar

• Decision Date: 25 October 1984
• Docket Number: S.F. 24697
• Citation: 688 P.2d 911,207 Cal.Rptr. 302,37 Cal.3d 122
• Court: California Supreme Court
• Parties: , 688 P.2d 911 Robert A. TARVER, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

Page 302

207 Cal.Rptr. 302

37 Cal.3d 122, 688 P.2d 911

Robert A. TARVER, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

S.F. 24697.

Supreme Court of California,

In Bank.

Oct. 25, 1984.

Rehearing Denied Jan. 17, 1985.

[37 Cal.3d 126] [688 P.2d 912] Robert A. Tarver, San Mateo, pro se.

Herbert M. Rosenthal, Truitt A. Richey, Jr., San Francisco, and Ellen A. Pansky, Los Angeles, for respondent.

BY THE COURT:

We review a recommendation of the Review Department of the State Bar Court that Robert A. Tarver, petitioner, be disbarred from the practice of law in the State of California. In three separate instances, petitioner was found, inter alia, to have commingled and misappropriated client funds, signed a settlement draft and release without authorization, and charged an unconscionable fee. (Bus. & Prof.Code, §§ 6067, 6068 and 6103.) We will adopt the review department's recommendation.

Petitioner was admitted to practice in 1951 and practiced law from that date until his interim suspension in an unrelated matter on September 1, 1982 (Bar Misc. 4559). In the present case, the review department

after hearing adopted the findings of the hearing panel with a few additions and unanimously recommended that petitioner [688 P.2d 913] be disbarred. We turn first to the underlying complaints.

1. Estate of Laura S.

Petitioner, who drafted the will of Laura S., represented her estate as attorney and executor after her death in 1974. Before his formal appointment as executor or attorney and before performing services on behalf of the estate, petitioner obtained from Charles S., Laura S.'s son, $1,500 as a "retainer" for his services. Petitioner claimed that this fee was for services related to excluding from the taxable estate certain property which Laura S. had given her heirs before her death. The review department concluded that these services were performed on behalf of the estate and that a request for compensation should have been made to and approved by the probate court.

Petitioner received numerous checks on behalf of the estate but did not open a separate estate trust account. He placed some of the money received in a personal account, and other money was deposited in a trust account in which the balance fell below the sum attributable to the estate on two occasions. Six checks received by him in January 1977 were never deposited by him in any account.

After the estate heirs made several fruitless requests to petitioner to settle the estate, they successfully moved to have him removed as executor in March 1977. Petitioner thereafter filed two accountings with the probate court, both of which were rejected. He was ordered to reimburse the estate for certain funds, but failed to do so until a bench warrant had been issued.

The review department adopted the hearing panel's findings and conclusions that by his actions petitioner "abandoned his client for a substantial period of time, failed to deposit trust fund monies in a trust account, commingled clients' funds with his own and failed to comply with reasonable orders of the court." To these, the review department added the conclusion that petitioner "had misappropriated trust funds."

2. Thomas F. Action

Thomas F. retained petitioner in May 1977 to represent him regarding a claim arising out of an automobile accident. The client signed a written contingency fee agreement providing for fees of 33 1/3 percent of any pretrial settlement. Petitioner, who had been a friend of Thomas F.'s family for years, often saw his client at a local restaurant where Thomas F. worked and discussed his case there.

In September 1977, petitioner agreed to settle the claim with the insurer for $2,250. Petitioner signed his client's name to the settlement release and returned it to the insurance company without indicating that the signature was not actually Thomas F.'s. Petitioner also signed the draft and deposited it in his trust account but did not notify Thomas F. either before or after settlement of the actions which he had taken.

Thomas F. testified that he was unable to reach petitioner starting in September 1977, and in January 1978 he retained other counsel, Gordon Rockhill, to pursue the matter. When Rockhill filed suit and notified the insurer that he had done so, the company informed him that the matter had been settled. Thomas F. stated that Rockhill's reiteration of this information was the first knowledge he had that his claim had been settled.

Petitioner testified that he had verbal authorization to sign the release and draft and had been unable to find Thomas F. in order to tell him that the claim had been settled. Moreover, he asserted that he was also owed $350 for services in an unrelated criminal matter which had been dismissed. Thomas F. expressly disclaimed these assertions. Moreover, the trust account into which the settlement draft had been deposited fell below the amount even petitioner claimed was due to Thomas F. and he was unable to show any billings for the extra fee he claimed was owed in the criminal matter.

The review department concluded that petitioner had failed to use reasonable diligence and skill in performing his services, failed to notify his client of the receipt of his funds and "committed acts involving dishonesty and moral turpitude by" violating the fee agreement, forging his client's signature, settling without authority, deceiving the insurance company, making false representations to his client and Rockhill, and misappropriating and converting his client's funds. It also noted that petitioner exhibited no remorse, but rather still felt that his acts were justified.

3. Charles S. Fee Dispute

Petitioner successfully represented Charles S. in an age discrimination action in which he recovered $31,243.25 for back wages and reinstatement. The court also ordered payment of $20,600 in attorney's fees. Petitioner was assisted at trial by a second attorney, Floyd Demanes, to whom he paid $10,835.81. Demanes and Charles S. did not enter into any fee agreement and it was the client's belief that Demanes' fee would come out of petitioner's share.

Petitioner asserted that in a written agreement Charles S. agreed to a fee of 33 1/3 percent of any pretrial settlement and 40 percent of any award after trial, and that the agreement encompassed not only actual monetary awards but also the actuarial value of Charles S.'s future earnings should he be reinstated. Petitioner was unable to produce the fee agreement at the bar hearings, and Charles S. testified he had never signed such an agreement and his understanding was that petitioner would be entitled to a fee based only upon actual monetary recovery. His version was confirmed by a coworker who had consulted petitioner at the same time as Charles S. and who stated that no fee agreement had been signed by either of them nor had a fee based on future wages been discussed.

After judgment was rendered in the age discrimination suit, the defendant in that action forwarded the back pay check to petitioner, who, after holding the check for approximately 30 days, on December 3, 1976, met with his client. Petitioner requested that Charles S. sign the check and informed him that he was entitled to the entire amount as fees. After Charles S. resisted, petitioner agreed to give him a check for $8,500 (which petitioner characterized as a loan during the hearings). The client then endorsed the check, and testified he did so because he believed he otherwise would get no money. Petitioner did not inform him that he had been awarded fees by the court.

Petitioner deposited the endorsed check and then obtained a cashier's check in the exact sum necessary to cure a default and prevent the foreclosure sale that day of a building which he owned. Forty percent of the back pay award would not have provided enough money to cure the default.

When Charles S. consulted other attorneys about his entitlement to the back pay award, petitioner then submitted an additional bill for $24,240.21 to his client and followed this billing with a lawsuit. Petitioner's computations of the fee to which he was entitled are reproduced in the margin. ¹ The fee he claimed was due was in addition to the sums paid to Demanes.

The review department found that petitioner was guilty of overreaching in negotiating a fee with his client and in persuading him to take only $8,500 from the endorsed back pay award check. (To date

                that is the only sum Charles S. has received from petitioner.)   In addition, it specified [688 P.2d 915] that the fee was unconscionable, and observed that there was a question regarding an attorney's entitlement to fees in addition to a court-awarded amount in an age discrimination action.  After finding that the bar had demonstrated the illegality of such a fee, the review department nonetheless concluded that there was no showing that petitioner was aware that a fee beyond the court-awarded amount might be illegal
                

DISCUSSION

I. Recusal of Referee

Petitioner asserts that Referee Howard E. Gawthorp should have recused himself from the hearing panel because he served as a deputy district attorney in San Mateo County during the time in which petitioner was a trustee for the San Mateo Community College District. Contending that significant animosity had existed between the district attorney's office and petitioner and that that office often took positions opposed to petitioner individually and as a trustee, petitioner insists that Gawthorp should have stepped down.

Rule 230 of the State Bar Rules of Procedure describes how a referee may be challenged. ² Petitioner raised no objection to Gawthorp's participation until six weeks after the parties had rested in the hearing proceeding. At the initial hearing attended by petitioner's counsel, Walter H. Harrington, Jr., Harrington and Gawthorp acknowledged that they had worked together in the district attorney's office and were acquainted. Neither petition...