Wednesday, February 16, 2011

89th Installment.The Tore B. Dahlin matter: A case of spiteful sentencing. Part 1. The disbarment

Sentencing severity is rarely a hot kanBARoo court topic, since any public punishment is equally devastating when the state bar feverishly universalizes knowledge of a Member’s punishment history, but Tore B. Dahlin’s disbarment is the rare illuminating severity case. Dahlin’s disbarment is exceptionally disproportionate to his offense, and his account of his prosecution exceeds demonstrating the state-bar’s capriciousness, to reveal the mainsprings of its viciousness.

In obedience to court orders, family-law attorney Dahlin opened two interest-bearing trust accounts holding approximately $70,000 and $60,000, but for reasons in dispute, he withdrew the money. Commingled or not, the funds were disbursed promptly, and if a client hadn't unwarrantedly complained to the bar, no one, not the bar, not the clients, would have known of any irregularity, because Dahlin’s handling of the funds was undetrimental. (The state bar alleges Dahlin delayed discharging client debts for six months, but no official pressure or complaint was required to release the funds.)

To measure the magnitude of Dahlin’s transgression, we must be clear on why the law requires attorneys to keep money in trust accounts: a private account risks the client’s funds if a hypothetical creditor levies on it. As the Supreme Court observed in Bernstein v. State Bar (1972) 6 Cal.3d 909, 916-7 [citing Peck v. State Bar (1932) 217 Cal. 47, 51]), keeping client funds in a private account potentially risks them, although the funds emerge unscathed,. But a moral gulf divides an attorney who, in this speculative sense, has jeopardized client funds from one who loses the client’s funds or even misses a disbursement deadline.

Essentially, Dahlin’s offense was commingling rather than misappropriation, as he never denied his clients access to their funds. The Supreme Court explained the distinction in Lawhorn v. State Bar (1987) 43 Cal.3d 1357—a matter matching Dahlin’s in seriousness—where, without depriving the client, respondent failed to keep client funds in trust. (Lawhorn’s offense was more severe than Dahlin’s in that a client was forced to complain to the state bar before Lawhorn released the funds, but on the other hand, Dahlin’s involved more money and two contemporaneous clients.) The Lawhorn court held, “We conclude that the case should be treated as one falling between wilful misappropriation and simple commingling.” Lawhorn was suspended for two years; so when the state bar initially agreed to suspend Dahlin for two years (a term Dahlin regards as fitting), it was agreeing with me on Dahlin’s degree of culpability.

The state bar initially treated Dahlin’s victimless transgression proportionately, but for reasons Dahlin never understood—and kanBARoo court will undertake to explain—the state bar escalated its punitiveness while it prosecuted Dahlin, who had initially reached an agreement with the bar prosecutor for a two-year suspension. When the bar assigned a new prosecutor to the case, Deputy Trial Counsel Oropeza, she disagreed with her predecessor, forcing Dahlin to accept a three-year suspension and stipulate misleadingly to facts implying he committed thievery. The forced confession, meanwhile, portrayed Dahlin so unfavorably that the judge rejected the plea agreement. The bar now sought disbarment, and Dahlin went from suspension for two years to rejection of his resignation with charges pending. The resignation route had been closed by a new rule requiring, if he was to exercise his erstwhile right to resign, a false confession the state bar could no longer extract. Forgone conclusion: Dahlin was “tried” and disbarred.

Even the bar court could understand that it had to justify the sentence’s severity, and it cited three California Supreme Court cases for its contention that disbarment is sometimes the appropriate punishment for a single act of misappropriation with mitigating factors. But Dahlin’s matter doesn’t come close.

The first case the bar court cited is In re Abbott (1977) 19 Cal.36 249, which the bar court summarized this way: “[T]aking of $29,500 showing of manic-depressive condition, prognosis uncertain.” The bar court omitted the small fact that Abbott had pleaded guilty to grand theft.

The second case cited by the California Bar is Chang v. State Bar (1989) 49 Cal.3d 114, which the bar court summarized, “An attorney misappropriated almost $7,900 from his law firm, coincident with his termination by that firm.” The full story. The attorney stole pretended legal fees from the trust fund, despite having assured the client that he provided the services as a courtesy.

The third cited case is Kaplan v. State Bar (1991) 52 Cal.3d 1067. The bar court’s prĂ©cis: “An attorney with slightly over 11 years of practice and no prior record of discipline was disbarred for misappropriating approximately $29,000 in law firm funds over an 8-month period.” The reality. Respondent deposited 24 checks into his personal bank account (one offense?) and didn't intend to restore the money, which paid for his father’s medical expenses.

Unlike Dahlin, these attorneys couldn’t repay their clients. In partial contrast, the Lawhorn client received payment, but only after a client filed a complaint with the Bar. Whereas in full contrast, Dahlin’s clients suffered no inconvenience in accessing deposited funds.

Why was Dahlin disbarred for an offense worth a two-year suspension? Next Installment will examine why the state bar punished Dahlin so severely.

Monday, February 7, 2011

88th Installment. Did chief trial counsel take a bribe from Girardi and Lack?

Circumstantial evidence raises reasonable suspicion that Thomas V. Girardi and Walter J. Lack bribed the new chief trial counsel to dismiss their matters. There's no better explanation, and these very wealthy lawyers have the means. The motive, too. The more successful your practice, the more you lose when the state bar destroys it.

For those who missed it, here’s the story, set in exotic Nicaragua:

Attorneys for plaintiff agricultural workers complaining of injury from Dole Food Company’s pesticides retained the highly successful law firms Girardi/Keese and Engstrom, Lipscomb & Lack, but the Nicaraguans sued Dole Food Corporation. Lack discovered the discrepancy and entreated the Nicaraguans to correct the name. They didn’t, and reminders of the omission constantly refreshed Lack’s memory, leaving no question that he approved a deceitful cover up of the error.

Lack and Girardi contracted to collect from the intended defendant in the United States and Venezuela, and in pursuit, Lack maintained an appeal where he argued falsely that the judgment named Company. His office doctored and misrepresented documents to prove the point. Lack balked at ending the frivolous litigation even after an appellate expert convinced Girardi.

The 9th Circuit U.S. Court of Appeals suspended Lack for six months and reprimanded Girardi—the penalties seem light because judicial sanctions are scaled down—after the court appointed respected ethicist Judge A. Wallace Tashima as Special Master. The high-stakes-gamble characterization in the first sentence of Judge Tashima’s summary provides the most insight: Girardi and Lack stood to profit immensely, but nobody—not even Judge Tashima—is telling the measure of the immensity.
In a high-stakes gamble to enforce a foreign Judgment of nearly a half billion dollars, Respondents initiated and directed years of litigation against Defendants. Respondents efforts went beyond the use of "questionable tactics" - they crossed the line to include the persistent use of known falsehoods. This litigation was based on three falsehoods: that Dole Food Company was named as a judgment debtor by a Nicaraguan court, that the Nicaraguan court corrected any mistakes it might have made regarding Dole Food Company in its judgment by the Writ of Execution, and that Respondents had submitted the corrected Writ of Execution to the state court and the federal district court. Respondents made these false representations knowingly, intentionally, and recklessly. Their actions vexatiously multiplied the proceedings at great expense to Defendants and required the Ninth Circuit to deal with a frivolous appeal.
The California State Bar refrained from its usual thuggery. It dismissed all charges, claiming that the 9th Circuit had sufficiently punished respondents, who were, in any event, innocent of intentional misconduct. Extreme differences from regular state-bar practices uniquely distinguish these matters:

First, deceiving the 9th Circuit is unquestionably “moral turpitude.” Lying to a tribunal, particularly for personal gain, is disbarrable, as Richard Fine discovered when disbarred for moral turpitude because of a single, trivial, and defensible technical misrepresentation.

Second, disciplinary tribunals mutually defer. Respondents thoroughly litigated their state of mind in proceedings presided over by the Special Master, famed ethicist A. Wallace Tashima; and Girardi and Lack’s lawyers were more skilled than the state-bar-defense establishment’s offerings. Is the tin-pot “chief trial counsel” conceited enough to reach a different conclusion?

Third, the state bar never ordinarily describes a respondent’s state of mind as intentional. The operative term is willful, stretched beyond recognition.

Fourth, punishment imposed by another tribunal never discharges respondent’s culpability. A felony conviction results in disbarment without ado, and the state bar doesn't subtract a contempt of court.

Nonpecuniary ties, connections, and favoritism can’t explain discrepancies so extreme, but some disagree. One contrary theory speculates that Girardi’s associate Howard B. Miller, last year’s state-bar president, pulled strings for his boss. But a past occupant of that ceremonial office—even a current president—influencing the chief trial counsel is the tail wagging the dog.

Descent into thievery is the fate of blundering cops who are law unto themselves. For let’s be clear: nobody blames Lack and Girardi for using every resource to avoid the State Bar’s grip. Unlike the judges of the 9th Circuit, I don't grieve for the super-exploitative Dole Food Company, which, despite actual service, refused to appear as defendant and manipulatively complained for its due-process rights.

Let’s also be clear: the intelligent perspective isn’t for “disciplining” Girardi and Lack. Rather, the state bar should extend the courtesies afforded Girardi and Lack to all respondents.