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.

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