Twohy v. State Bar

• Decision Date: 03 April 1989
• Docket Number: No. S005429,S005429
• Citation: 769 P.2d 976,256 Cal.Rptr. 794,48 Cal.3d 502
• Court: California Supreme Court
• Parties: , 769 P.2d 976 Richard J. TWOHY, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

Page 794

256 Cal.Rptr. 794

48 Cal.3d 502, 769 P.2d 976

Richard J. TWOHY, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

No. S005429.

Supreme Court of California,

In Bank.

April 3, 1989.

Richard Judson Twohy, in pro. per.

Diane C. Yu, Oakland, Truitt A. Richey, Jr., and Phyllis J. Culp, San Francisco, for respondent.

BY THE COURT: ^*

We review the unanimous recommendation of the Review Department of the State Bar Court that petitioner, Richard J. Twohy, be disbarred. Petitioner contends that the recommendation of disbarment is excessive in light of the mitigating factor of his addiction to "crack" cocaine and his alleged recovery from such addiction subsequent to the incidents upon which the review department's recommendation is based. Because the record does not establish that petitioner has fully recovered from his cocaine addiction and since the review department properly considered the mitigating and aggravating evidence presented in the case, we reject petitioner's contentions, adopt the review department's findings and impose its recommendation of disbarment.

I.

Petitioner was admitted to the practice of law in California on January 23, 1973. He has twice previously been disciplined for misconduct. On March 21, 1984, he was ordered suspended for three years. The suspension was stayed and petitioner was placed on three years' probation. The terms of probation included quarterly reporting to a probation monitor, taking and passing the professional responsibility examination within one year, and restitution of client funds within one year of April 20, 1984. (Bar Misc. No. 4695.) On November 15, 1984, in a separate disciplinary matter, petitioner was ordered suspended for 30 days. That suspension was also stayed and a three-year probation was ordered to run concurrent with probation in Bar Miscellaneous No. 4695. (Bar Misc. No. 4820.)

Petitioner failed to take and pass the professional responsibility examination as ordered. Consequently, his probation was revoked and he was suspended on May 17, 1985. Ten months later, petitioner passed the examination, and the order of suspension was vacated.

During the period of suspension, however, petitioner represented a defendant in a criminal matter, and as a result he was subsequently convicted of the unlawful practice of law. (BUS. & PROF. CODE, §§ 6125¹, 6126.) We referred the conviction to the State Bar for its report and recommendation as to whether the offense involved moral turpitude. The State Bar Court concluded that petitioner's willful misrepresentation to the court that he was a person entitled to practice law did involve moral turpitude. (Bar Misc. No. 5144.) On July 29, 1987, we acted upon that report and suspended petitioner from the practice of law pending final disposition of his appeal of the section 6125 conviction. ²

Two weeks prior to his being placed on interim suspension, however, we found petitioner had not complied with the reporting and monitoring terms of either of the two probations. Accordingly, we revoked probation and ordered petitioner suspended for the combined period of three years and thirty days, effective August 14, 1987. (Bar Misc. No. 4695; Bar Misc. No. 4820.) Thus, petitioner is currently on suspension from the practice of law until September 13, 1990.

Petitioner contends the two prior disciplinary matters (Bar Misc. No. 4695; Bar Misc. No. 4820) were the products of unfair hearings ³ and thus should not be considered in determining the appropriate sanction for the instant matter. Petitioner's challenges to the prior disciplinary hearings, however, are no longer cognizable.

In Bar Miscellaneous Nos. 4695 and 4820, petitioner failed to petition this court for review. When, as we did in these matters, we have issued an order pursuant to a disciplinary recommendation by the State Bar and no petition for review has been timely filed, a disciplined attorney's only recourse is to file a petition for rehearing within 15 days of the filing of the decision, pursuant to California Rules of Court, rule 27. ( § 6084.) Petitioner, having failed to petition for rehearing in Bar Miscellaneous Nos. 4695 and 4820, is thus precluded from otherwise challenging these decisions which have long been final. Accordingly, we consider petitioner's prior discipline as an aggravating factor in determining the disciplinary sanction appropriate to the instant matter. (Rules Proc. of State Bar, div. V, Standards for Atty. Sanctions for Prof. Misconduct, stds. 1.2(b)(i), 1.7.) ⁴

We proceed to a discussion of the matter now before us. As in all attorney disciplinary matters, we independently examine the record, reweigh the evidence and pass on its sufficiency. (Franklin v. State Bar (1986) 41 Cal.3d 700, 708, 224 Cal.Rptr. 738, 715 P.2d 699; Codiga v. State Bar (1978) 20 Cal.3d 788, 796, 144 Cal.Rptr. 404, 575 P.2d 1186.) In so doing, the findings of the State Bar are entitled to great weight and it is the petitioner's burden to show the findings are not supported by the record. (Coppock v. State Bar (1988) 44 Cal.3d 665, 677, 244 Cal.Rptr. 462, 749 P.2d 1317.)

The instant proceeding was initiated by a notice to show cause issued on January 14, 1987, charging petitioner with (a) wrongdoing in the course of his representation of Brian D. Runke and (b) failure to cooperate with the State Bar in its investigation of the Runke matter. The hearing panel made findings and recommended that petitioner be disbarred. Petitioner failed to request review of this recommendation and the review department, pursuant to Rules of Procedure of the State Bar, rule 450(b), issued an ex parte resolution adopting the decision of the hearing panel on December 16, 1987.

A. The Runke Matter

In July 1984, Brian D. Runke retained petitioner to defend him against drunk driving charges. Runke paid petitioner a total of $725 as retainer. Petitioner represented Runke in the Department of Motor Vehicle administrative proceedings and at the municipal court trial-setting conference on August 24, 1984. At that conference, Runke's matter was set for hearing on October 3, 1984. Petitioner failed, however, to advise Runke of the October 3 hearing.

On the hearing date, neither petitioner nor Runke was present in court and a bench warrant issued for Runke's arrest. Runke received the bench warrant in the mail ordering him to appear in court on October 11, 1984. Runke advised petitioner of this date.

On October 11, 1984, Runke appeared in court, but petitioner did not. Runke telephoned petitioner, who said he would come to court, but he did not. Accordingly, the court ordered Runke to discharge petitioner and to accept a public defender at that time.

Runke was thereafter unable to contact petitioner. After making numerous unsuccessful attempts to reach petitioner by telephone, Runke sought and obtained a $700 award against petitioner in a local bar association arbitration proceeding. Although aware of the arbitration award, and in spite of Runke's written demand, petitioner did not pay anything to Runke or reply in any manner. Runke then filed an action in small claims court against petitioner, but was unable to locate petitioner to serve the complaint. Subsequently, the State Bar initiated its investigation.

In late October or early November of 1986, Runke spoke with petitioner on the telephone and was told that he would be receiving a check from petitioner. Shortly thereafter, Runke received a check for $700 and so informed the State Bar.

Accordingly, the hearing panel concluded that petitioner had: (a) failed to communicate with Runke, or to keep Runke reasonably informed of court dates and the significant progress of the matter for which petitioner was retained, in violation of section 6068 ⁵ and State Bar Rules of Professional Conduct, ⁶ rules 6-101(A)(2) ⁷ and 6-101(B)(1) ⁸; (b) failed to take timely action and to appear at scheduled court appearances on Runke's behalf in the criminal matter pending against Runke in violation of section 6103 ⁹ and rule 2-111(A)(2) ¹⁰; and (c) willfully failed, when discharged by Runke, to return the advance fee of $725 paid to petitioner by Runke, $700 of which had not been earned, in violation of rule 2-111(A)(3). ¹¹ The panel further found that these violations constituted acts of moral turpitude. Petitioner has not challenged these findings and we adopt them.

B. Failure to Cooperate with the State Bar

In its investigation of Runke's complaint, the State Bar sent two letters to petitioner informing him of the complaint and requesting his response. The letters were sent to petitioner's address on file with the State Bar and neither was returned as undeliverable by the post office. Nonetheless, petitioner failed to respond to either letter or to cooperate with the State Bar in its investigation of Runke's complaint. ¹²

The hearing panel therefore concluded that petitioner had failed to cooperate and participate in the State Bar's investigation of the matters alleged in this proceeding against petitioner, in violation of section 6068, subdivision (i) ¹³ and section 6103. ¹⁴ Petitioner has not challenged these findings and we adopt them.

C. Mitigating Evidence

1. Petitioner's Cocaine Addiction

Petitioner testified to being under the influence of cocaine since "1980 or '81," and that he was using cocaine during the time of his misconduct in the Runke matter. Since April of 1987, petitioner has voluntarily participated in a treatment program consisting of weekly individual counseling sessions and participation in Cocaine Anonymous meetings.

Petitioner's drug counselor in the treatment program has written letters attesting to petitioner's satisfactory and consistent participation in the program and the progress petitioner has made in controlling his addiction. The counselor did not testify at petitioner's hearing, however, and was thus unavailable for cross-examination. Moreover, at his hearing, petitioner testified...