Friday, February 9, 2018

Notice Issue After Cruelty To Cats Conviction

The California State Bar Court Review Department favors no actual suspension of an attorney suspended on a interim basis for cruelty to animals for lapses in compliance with the suspension order.

The crimes drew this coverage from CBS SF Bay Area

An Oakland attorney was convicted Thursday of felony animal cruelty for failing to properly care for the more than 100 cats who lived in her home in West Oakland, many of whom died or had to be euthanized.

In announcing her finding against 62-year-old Jan Van Dusen in her non-jury trial, Alameda County Superior Court Superior Court Judge Gloria Rhynes said Van Dusen subjected the cats in her home to “needless suffering” and acted “in a grossly negligent manner.”

Oakland Animal Control officers who raided Van Dusen’s house on Magnolia Street in October 2011 said they found about 100 cats, most of them feral, including 11 cats that were dead and had been placed in a freezer.  Another 18 cats had to be euthanized because they couldn’t be treated and most of the remaining cats also had developed medical problems, animal officials said.

Van Dusen contended at her trial that she didn’t do anything illegal and that she took in sick and homeless cats that no one else wanted.

Van Dusen, who remains free on her own recognizance, could face up to three years in state prison when Rhynes sentences her on July 25 but court officials indicated that the most likely outcome is that she will be placed on probation.

However, her felony conviction means that the state bar could suspend or disbar her.

The trial was the second for Van Dusen. Her first trial ended in a mistrial last year when jurors deadlocked 11-1 in favor of convicting her.

Oakland Animal Control officials said the conditions in Van Dusen’s home were rancid and the smell of urine and feces was overwhelming.

Under cross-examination by prosecutor Tim Burr last week, Van Dusen admitted that her house smelled like urine because of all the cats that lived there but “not that much.”

She conceded that some of the cats she was caring for suffered from diarrhea but claimed that the diarrhea problem spread only because of the negligence of a friend she had hired to help take care of the cats.

Van Dusen’s attorney, Frank Offen, said in his closing argument Thursday that she “had been taking good care of the cats” until October 2011, when he said things “went haywire” because her friend didn’t follow through on his commitment to help take care of them.

Offen said Van Dusen wasn’t able to stay home and take care of the cats in October 2011 because she was busy with a trial in Martinez.

He said, “If she didn’t go to work, she couldn’t buy food or medication for the cats and pay the water bill and the mortgage.”

But Rhynes said the fact that Van Dusen was busy with a trial in Martinez “does not absolve her of criminal conduct.”

Rhynes said “the magnitude of the conditions and the magnitude of the suffering” led her to find Van Dusen of felony animal abuse.

“Witness after witness testified about the horrific conditions,” Rhynes said.

The cats “needed food, water and shelter in order to have a meaningful quality of life,” Rhynes said.

Here on compliance with the suspension

Jan Elizabeth Van Dusen seeks review of a hearing judge’s decision finding her culpable of one count of failing to obey a Review Department interim suspension order in a criminal conviction matter. In pertinent part, the Review Department’s order required Van Dusen to comply with rule 9.20(a) and (c) of the California Rules of Court and notify all clients and co counsel in pending matters of her suspension, as well as any court and opposing counsel or unrepresented adverse parties in pending litigation, and file a declaration showing her full compliance. The hearing judge found that Van Dusen failed to: provide the necessary notice to the bankruptcy trustee (trustee) in two pending Chapter 13 matters; properly serve the notice on clients and opposing counsel in other state and federal cases; and timely and properly file proof of compliance. After weighing these multiple acts against her 25 years of discipline-free law practice, the judge recommended a 30-day actual suspension.

On review, Van Dusen raises a number of challenges and asks that we exonerate her and dismiss this disciplinary proceeding. Most pointedly, she argues that she had no notification duties in the two bankruptcy matters because they were neither her “pending” cases, nor were they “litigation” for purposes of rule 9.20. The Office of Chief Trial Counsel of the State Bar (OCTC) does not appeal and requests that we affirm the hearing judge.

We independently review the record (rule 9.12) and find that Van Dusen’s bankruptcy cases were subject to rule 9.20. They involved active petitions to the bankruptcy court for legal redress, where Van Dusen was the attorney of record, and she was therefore required to notify the court and the assigned trustee of her suspension. While she failed to do so, we find that she made attempts, albeit unsuccessful, to fulfill her notification requirements and to timely file her compliance declaration. Her efforts, combined with her extensive legal career spanning more than two decades with no discipline, merit significant mitigation and a departure from the presumed sanction of actual suspension. We find that a one-year stayed suspension with conditions, rather than the 30-day actual suspension recommended by the hearing judge, is appropriate discipline that protects the public, the profession, and the courts.

The notification obligation applies here

we find that “litigation” is most certainly pending when an attorney avails himself or herself of the adjudicative functions of a court, seeking legal redress on behalf of a client. Van Dusen’s argument that bankruptcy is not “litigation” within the meaning of rule 9.20 ignores the salient point that the trustee and the bankruptcy court have their own interests in managing cases and court resources. As such, her failure to notify them of her inability to appear and represent clients undermines the very purpose of the rule.

Attacks on the process failed

As a matter of well-settled law, no intrinsic bias exists by virtue of the State Bar Court’s placement within the umbrella organization of the State Bar.

No suspension

When we consider her shortcomings, which occurred over a relatively minor period of time, in juxtaposition to the significant backdrop of her 25 years of discipline-free law practice, we find that the net effect of Van Dusen’s mitigating and aggravating factors justifies a departure from the standard. Her misguided and unsuccessful efforts at compliance with rule 9.20 do not relieve her of culpability as she desires, but we find they do support lesser discipline than called for in standard 2.12(a). For these reasons, we find that a one-year stayed suspension, together with our recommended conditions, is appropriate discipline that serves to protect the public, the courts, and the legal profession.

The attorney has filed a pleading attacking the conviction as a basis for professional discipline. 

I was basically convicted of having a dirty house for four days while caring for a large group of feral cats. (This was during a diarrhea outbreak that had hit other rescue households as well.) During these four days, I was in trial in another county and temporarily staying near the court in Martinez. Obviously I was unavailable to personally clean my rescue household either during the trial or during trial preparations immediately before trial. After my cleaner pulled two no-shows in a row and alerted his co-conspirators, a friend agreed to clean up the mess my hired cleaner had caused, plus keep up with the daily cleaning while I was in trial. This friend and the cleaners she hired to help were all paid by me. They worked diligently to clean up the mess until they were barred by police from entering my house on the morning of the seizure. Emails reveal that authorities knew of the cleanup and raced to seize my animals before my cleaners could finish the job. (There is no statutory authority to seize without a prior hearing where the allegedly poor conditions are being remedied.)

(Mike Frisch)

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