Monday, June 19, 2017

Incredible But Not Dishonest

An unpublished opinion of the California State Bar Court Review Department concludes that an attorney accused of ethics violations cannot claim ineffective assistance of counsel

Fletcher argues that he was denied a fair trial because he received ineffective assistance of counsel. Specifically, he asserts that his counsel’s lack of understanding of State Bar hearing procedures prejudiced him. However, the Supreme Court has held that the right to effective assistance of counsel depends on a demonstrated right to counsel, which does not exist in disciplinary proceedings. (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116.) Thus, an assertion of ineffective assistance of counsel has no merit here. The Supreme Court has made clear that a respondent’s “only due process entitlement is to a fair hearing overall. [Citations.]” (Dahlman v. State Bar (1990) 50 Cal.3d 1088, 1094-1095.) The hearing judge provided Fletcher with a fair hearing, as required.

The attorney accepted fees from third parties to defend a client charged with murder and had failed to comply with the required formalities for such an arrangement

First, Fletcher asserts that he did not violate rule 3-310(F) because he represented Daniel on a pro bono basis. We affirm the hearing judge’s finding that this assertion is not credible. The fact that Fletcher never returned the funds given to him by Gonzales and C. Daniel is inconsistent with his assertion that his services were pro bono. Alternatively, Fletcher admits  that he did not comply with rule 3-310(F), but asserts that it was only a technical violation as Daniel testified that he knew that Gonzales and C. Daniel were paying his fees. However, Daniel’s awareness cannot substitute for the informed written consent required by the rule. Fletcher further states that any violation is not willful since he did not know that he had received funds for Daniel’s fees because his accountant and office staff handled his bank account. But he is not relieved of his nondelegable responsibility to comply with the rules regarding client funds because someone else manages his bank accounts.

One aggravating factor was prior discipline.

In the first case, no. 03-O-02625, Fletcher stipulated to culpability under section 6068, subdivision (b), for failing to maintain the respect due to courts and judicial officers based on nine acts of contempt in a criminal trial, including laughing at the judge and accusing him of racial bias. Fletcher was sentenced to two days in jail and fined $400 for these acts of contempt. In the second case, no. 05-O-04499, Fletcher stipulated to culpability under section 6068, subdivision (b), for arriving late to a trial, refusing to explain his tardiness, and accusing the judge of racial prejudice. The judge ordered sanctions of $1,000 for this behavior. 

Re the attorney's story

The hearing judge assigned “serious” aggravation for “hard to believe” testimony, based on language in Brockway v. State Bar (1991) 53 Cal.3d 51, which analyzed aggravation for lack of candor under former standard 1.2(b)(vi). The judge found that “almost all” of Fletcher’s testimony was inherently implausible. Unlike the candor finding in Brockway, this finding appears to focus on Fletcher’s lack of credibility, not his dishonesty. The hearing judge did not make an express finding that the testimony lacked candor or was dishonest. Absent such a finding, we decline to assign aggravation for lack of candor.

The court proposes a stayed one-year suspension with probation, rejecting the Hearing Department's recommended 45-day suspension. The OCTC supported suspension as well.  (Mike Frisch)

Bar Discipline & Process | Permalink


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