Weber v. State Bar

• Decision Date: 15 December 1988
• Docket Number: No. S005002,S005002
• Citation: 253 Cal.Rptr. 573,47 Cal.3d 492,764 P.2d 701
• Court: California Supreme Court
• Parties: , 764 P.2d 701 Sherman S. WEBER, Petitioner, v. STATE BAR OF CALIFORNIA, Respondent.

Page 573

253 Cal.Rptr. 573

47 Cal.3d 492, 764 P.2d 701

Sherman S. WEBER, Petitioner, v. STATE BAR OF CALIFORNIA, Respondent.

No. S005002.

Supreme Court of California In Bank.

Dec. 15, 1988.

Sherman S. Weber, Los Angeles, in pro. per.

Diane C. Yu, Truitt A. Richey, Jr., Richard J. Zanassi and Dominique Snyder, Office of Gen. Counsel, State Bar of California, San Francisco, for respondent.

BY THE COURT:

We review the unanimous recommendation of the Review Department of the State Bar Court (hereafter the department) that petitioner Sherman S. Weber be disbarred from the practice of law in California. After considering the record and petitioner's objections, we follow the department's recommendation.

I. FACTS

We adopt the department's findings as follows: ¹

Petitioner was admitted to the practice of law in California in 1969. In 1974 petitioner drafted a will for John D. Stram (John). The will provided that John's entire estate would go to his son Ronald Stram (Ronald), and that petitioner would serve as both attorney and executor and receive fees for his services in both capacities.

John died May 21, 1981. On December 22, 1981, petitioner filed an amended inventory and appraisement with the probate court. The document listed the estate's value as approximately $200,000, including personal property, trust deeds, real property, cash, and $60,000 worth of municipal bonds. Shortly after the document was filed, petitioner and Ronald discovered additional municipal bonds--worth another $100,000--in John's safe deposit box. ² Petitioner filed a supplemental inventory and appraisement reflecting the discovery.

Ronald questioned the propriety of petitioner receiving separate fees for work as attorney and as executor, and negotiated an oral agreement with him whereby petitioner promised to pay Ronald $4,000 out of his statutory probate fee in exchange for Ronald's performance of the executor's duties. Although Ronald performed many such duties over the following months, ³ he never received the promised $4,000 payment. ⁴

On July 22, 1982, petitioner filed the final accounting of the estate with the probate court. In his petition he claimed $13,566 for attorney and executor fees, and requested the fees be satisfied by municipal bonds to the extent cash was unavailable. He also requested authority to retain $25,000 in bonds in case additional tax assessments were imposed against the estate as a result of ongoing audits he asserted had been undertaken by the Internal Revenue Service (IRS) and the Franchise Tax Board.

On August 9, 1982, the court ordered that petitioner be paid his requested fee and authorized him to retain $25,000 in bonds for a period of six months because of the ongoing audits. It further ordered that petitioner immediately distribute all other estate assets to Ronald. Petitioner subsequently distributed the trust deeds, but failed to distribute the remaining bonds and cash. He also refused to accept available cash in payment of his fee, and instead retained two municipal bonds the combined value of which was $18,312.56.

The six-month period during which petitioner was authorized to retain the $25,000 in bonds expired in February 1983. Ronald contacted petitioner at that time seeking distribution of the remaining assets. Petitioner told him the distribution was being delayed because the IRS had not yet completed its audit of the estate tax return. He made similar statements to Ronald on numerous occasions during the remainder of 1983.

In December 1983 Ronald contacted the bank at which the estate account was located. He learned that instead of containing approximately $25,000 as he had believed, the account had a current balance of only $521.06. Ronald then contacted the IRS, which informed him it had at no time undertaken an audit of the estate tax return. Ronald met with petitioner shortly thereafter, but did not tell him what he had learned. At that meeting petitioner told Ronald that the bank account had a balance of approximately $25,000, and again stated that the IRS audit was ongoing. ⁵

Ronald subsequently retained other counsel and informed the probate court of the difficulties he had encountered seeking a distribution of assets. ⁶ The court ordered petitioner to appear on January 13, 1984; when petitioner appeared on that day, the court ordered him to distribute all remaining assets by January 18, 1984. Petitioner filed a "Supplemental Accounting by Executor and Final Distribution" on January 18, 1984, stating, among other things, that he held $24,789.11 in cash as well as $125,000 worth of bonds for the estate. He refused to actually distribute the assets, however, unless Ronald signed a document releasing him from all liability for his handling of the estate. Ronald refused to sign such a release.

On January 30, 1984, the Ventura Superior Court issued an order to show cause re contempt for petitioner's failure to obey the August 9, 1982, distribution order. At a hearing on the matter on February 10, 1984, the court ordered petitioner to comply with the distribution order. When petitioner insisted he would not comply unless he first obtained a written release from liability, the court found him in contempt and ordered him jailed. After spending five hours in jail, petitioner agreed to turn over all the estate's assets by 5 p.m. on Monday, February 13, 1984.

On February 13, 1984, petitioner gave Ronald the remaining bonds and presented him with a check--dated February 14, 1984, and drawn against the estate checking account--for $24,789.11. Ronald's counsel telephoned the bank, which informed him the account contained insufficient funds to cover payment of the check. The funds remained insufficient the following day; the court, when so informed, issued a bench warrant for petitioner's arrest. ⁷ It recalled the warrant, however, when the check finally cleared on February 16. On the following day the court suspended petitioner as executor of the estate.

On May 7, 1984, the court held a hearing on petitioner's "Petition for Extraordinary Fees and Costs," which he had filed prior to the contempt hearing. Petitioner did not attend, but instead sent an attorney who requested a continuance on petitioner's behalf and then departed after the court denied the request. The hearing proceeded, and the court (1) denied petitioner's earlier filed motions, (2) permanently removed him as executor of the estate, and (3) ordered him to pay $81,504.34 to Ronald. That figure represented, among other items, $15,000 in punitive damages, $8,746.56 for bonds taken by petitioner in excess of his fee, $9,000 for a bond the court determined was missing from the estate, and $21,310.67 as double value of property petitioner had concealed or embezzled. The judgment was entered on May 24, 1984.

On petitioner's appeal, the Court of Appeal affirmed the judgment and we denied review. Petitioner also filed a federal action against Ronald, Ronald's attorneys, the entire Ventura Superior Court, and the Court of Appeal, alleging a conspiracy to violate his civil and constitutional rights. The district court dismissed the action, and the dismissal was affirmed on appeal. (Weber v. Nordman, Cormany, Hair & Compton (9th Cir.1987) 829 F.2d 41.)

II. STATE BAR PROCEEDINGS

On October 6, 1986, a notice to show cause was filed with the State Bar Court. The notice--which had been served on petitioner a few days earlier--informed him that a formal disciplinary hearing would be held to consider disciplinary charges against him, and advised him of the particular transgressions of which he was accused. A mandatory settlement conference was scheduled for February 2, 1987. Petitioner, although notified more than 90 days in advance, did not attend the settlement conference; a formal hearing was then scheduled for March 24, 1987.

At the formal hearing, petitioner requested a continuance on the ground that he needed time to obtain counsel. He also moved to disqualify the referee on the basis of a "peremptory challenge," and to disqualify the hearing examiner on the ground that she had behaved abusively toward him. The referee denied all three motions; the supervising referee, after reviewing the rulings at petitioner's request, did the same. The hearing then proceeded and was concluded the same day.

On March 30, 1987, petitioner filed another action--this time in Los Angeles Superior Court--against Ronald and his attorneys. In that action, in addition to reasserting his conspiracy theory, petitioner sought to have the judgment against him of May 24, 1984, set aside on the ground that it had been obtained through perjury. On April 17, 1987, the State Bar Court granted the State Bar's application to present additional evidence in the State Bar Court proceedings. That document brought to the court's attention petitioner's perjury allegations--which, as will appear, the record demonstrates were patently false. On April 30, 1987, petitioner filed an amended complaint asserting supplemental causes of action and naming the entire Ventura Superior Court and Ventura County as additional defendants.

On April 1, 1987, petitioner filed still another action in Los Angeles Superior Court--this time against the State Bar, its officials, the hearing examiner, and the referee--accusing them of conspiring to deny his civil and constitutional rights, and accusing the referee and hearing examiner of improper conduct.

On May 14, 1987, the hearing panel unanimously recommended that petitioner be disbarred. Petitioner twice sought and was denied a hearing de novo. On December 10, 1987, the department also unanimously recommended that petitioner be disbarred.

The department concluded that petitioner (1) violated the court order of August 9, 1982, by keeping funds and documents beyond the six-month deadline set by the court; (2) knowingly made false representations to the court and to Ronald regarding the initiation of tax audits; (3)...