Friday, March 4, 2011

89A Installment.The Tore B. Dahlin matter: A case of spiteful sentencing. Part 2. Homophobia

Any one of several initially plausible theories, ranging from the state-bar's incompetence to its viciousness, might explain the severity it inflicted on Dahlin.

The first theory, suggested by scattered state-bar commentary, is that Dahlin, in reality, was disbarred for associated conduct rather than, as ostensible, the commingling of funds. The bar court wrote vaguely of the general aroma of dishonesty surrounding the "misappropriation," and though only sporadically, it alleged certain specifics, most significantly accusing Dahlin of prematurely representing to a superior-court judge that he had distributed all trust funds. Now, if this allegation were true, the offense would be very serious misconduct, certainly involving moral turpitude. Dahlin not only would have lied to the court but, committing the perfidy of disloyal dishonesty, lied to thwart the court's efforts to protect his clients' rights.

This theory implicates the state-bar's incompetence because if what's alleged were true, the bar—basing its case on the wrong infraction and, consequently, driven to exaggeration to justify disbarment—would have demonstrated by practically ignoring the truly disbarrable acts of dishonesty and disloyalty that it fails to grasp even the concept of moral turpitude. In some ways, this rings true. To the state bar, the worst misconduct involves money—regardless of how slight the attorney's fault—simply because the state bar is the payer of last resort when client funds are misappropriated.

But the theory caricatures the incompetence of the state bar, which disbarred Richard Fine for a single alleged misrepresentation to a judge. Extreme caution in accepting the allegations that this theory relies on is warranted, due to the state bar's lack of credibility. Its allegations of misrepresentation should not be granted automatic credence, particularly when the findings omit Dahlin's counter-contentions. More likely, the bar court, which didn't quote Dahlin's language or the superior court's, lacked a case against Dahlin for dishonesty or disloyalty.

The second competing theory has Dahlin disbarred for challenging the state bar's authority. Dahlin thinks his insistence on redacting confidential information incurred the state bar's enmity, but redaction doesn't affront the prosecutor. To the contrary, the more onerously state-bar prosecutors can burden a respondent, the happier they are; this explains the absence of a page limit on pleadings and petitions. The state bar is delighted when the respondent insists on laboring harder, as it furthers the bar's war of attrition and realizes the bar's hope of exhausting respondent or his resources.

The last possibility is that the state bar's animus was personal: the prosecutors and judges disliked the man. Personal prejudices shape an unaccountable police agency free to implement them, but which of Dahlin's traits could make the entire bar apparatus hate him? To answer the question, you must know more about Dahlin, something easy enough to discover: Dahlin is gay and demonstratively so; colloquially, he's a flaming homosexual, and to prove it, he made a gay movie.

State-bar homophobia is ironic in that Lesbians predominate among its deputy trial counsel. (Our Prosecutrix, Melanie J. Lawrence, swaggered into the courtroom looking like a boy.) Ironic but not contradictory, as Lesbians, who reject men, tend to be most offended by those returning the favor.

Public knowledge of Dahlin's sexual deviance helps discern the source of the state-bar's animus, but how many respondents whose offensive traits aren't so public receive the spite of the unaccountable state bar, effecting all the prejudices inherent in a mentally aberrant clique?


Anonymous said...

Stephen R. Diamond said...

Do you have an opinion regarding the Michale T. Pines matter, Anonymous?

Anonymous said...

politically speaking his acts were examples in the worthy tradition of civil disobedience, but seem recklessly in disregard of his own interests in his law license.

Anonymous said...

The State Bar Judge's opinion posted at Dahlin's state bar listing says he made 8 withdrawals of thousands of $$$ from that interest bearing account for his own personal use. Comment?

Anonymous said...

I guess you weren't one of the poor souls that were lied to and cheated on by Dahlin. He is a disgrace! He was disbared and should have had jail time.. miss use of clients funds is embezzlement! Lawyers have a bad rap because of people like him. I personally would love to see him spend some time in jail, he is not above the law. He handled my divorce, it took him 4 years to complete a simple divorce and now I know why... he spent the money in the trust and was buying time because he didn't have the money to pay it back. So for me 4 years on on going Lawyer's fee's and drama just because he used MY money to pay for the gay movie he produced. I hope he never EVER puts another person through the torment and drama I went through. So its really easy for you to sit there and say well he was disbared because he is gay... not the case at all. He is the biggest loser on the face of the planet and his punishment was not just... he should go to jail where all of the other criminals are.

Stephen R. Diamond said...

Tore asked that I post this comment. I'll review the discussion and comment later. (Comment divided into two parts because of space limitations imposed by blogging program.)


Please allow me to comment.

It appears that the Anonymous who posted on 7/14/11 was my client in the State Bar case. I still respect his privacy, so I will not give his name here as I discuss the charges. I will call his case the “Evan” case (not the real name).

Before I begin, I will respond to the comments of the Anonymous who posted on May 5, 2011. In the charges against me, the State Bar omits the fact that a lawyer is REQUIRED to pay himself from client trust funds when he earns fees that are secured by those funds. If the lawyer does not do so, he is guilty of commingling. So, the simple act of a lawyer writing a check to himself from client trust funds is not evidence of wrongdoing. I was not court-ordered to keep the funds in any particular account or bank, so I chose to secure the Evan funds outside of the local bank to avoid levies to those monies. Many people do not realize that when a lawyer is ordered to open a non-State Bar trust account, the lawyer must use his or her own social security or tax ID number, which puts the funds at risk if the lawyer has a judgment or tax creditor who can levy without notice. There is also a risk of ID theft. I had an opportunity to secure the client funds where there were no such risks, so I did, and I made mandatory fee payments from the local less-secure trust accounts. It worked fine, and the last of the funds were disbursed in 2005. The State Bar prosecutors and judge all admit that I made every trust payment and that everyone got their money when they were supposed to. The State Bar judge also made a finding that no clients were harmed.

In regard to the other comments of 7/14/11 Anonymous, the Evan case was quite honestly the ugliest and most prolonged divorce case that I had ever handled in my twenty years of law practice. This couple fought like cats and dogs over almost every issue. I won most of these court skirmishes for my client, but it took a long time to slog through. Every time you asked for a court hearing on a property or support matter, you had to wait two or three months to see the judge.

Delays in paying trust funds also occurred because the opposing lawyer was slow to negotiate with the couple’s creditors as he had been court-ordered to do. He was supposed to do the negotiations, and I promptly paid every time he did. We chose to do it this way because the opposing lawyer was very good at these creditor settlements (better than me), and he saved the couple many thousands of dollars. The trade-off was that he dragged his feet, once for an entire year. I was the one who kept reminding him and trying to push him along. He told me that he was busy, and he also had a death in the family. I was always the one who broke logjams by filing court motions when we reached impasses so that I COULD pay out the funds. I offered to do the negotiations myself so that I could pay out the funds faster, but the parties decided to keep letting the other lawyer do it. They saved money that way, but it cost them some time.

Stephen R. Diamond said...


The last logjam happened when the judge issued his findings after our final trial. His order about a $6,000 debt was ambiguous. The opposing lawyer wrote me a letter stating that the judge meant that my client was supposed to pay the entire $6,000, and he demanded that I draft the final judgment that way. I disagreed, and when I talked to my client about it, he felt that he should not have to pay. I could not settle this dispute with the other lawyer, so I am the one who then filed a motion with the court requesting a clarification from the judge so that we could resolve it and I could pay out the rest of the trust funds. Well, that meant another 3-month delay waiting for the court date. It was worth it because the judge did not say that my client had to pay the $6,000, and that made it possible for me to prepare and submit the final judgment, which I did promptly. The opposing lawyer could have negotiated the other debts in the meantime and I could have paid them, but he chose to wait until the final judgment was fully processed with the court, which meant another month delay for the paperwork to grind through the system and come back. Soon after the judgment came back, he negotiated the remaining debts, and I promptly paid them from the trust funds. I was then able to release the balance to the parties.

Stephen R. Diamond said...

My biggest problem with the State Bar prosecutors and State Bar judges was that in order to defend myself, I had to be able to provide information about other client trust funds that were secured and mixed with the Evan funds. A lawyer is forbidden by law from disclosing the private financial affairs of any client to the State Bar unless the client has complained about the lawyer or has given consent. I was handling trust funds for other clients at the time, none of whom complained about me and none of whom would consent to public disclosure of what I did for them. I therefore asked the State Bar prosecutors to agree to a seal on the financial information and records of those other clients so that I could demonstrate the flow of trust funds without making a public disclosure of my other clients’ information, but the prosecutors refused saying that it was not their policy to do that. I filed two written motions with the State Bar Court and made an additional oral motion asking for a seal, but they were all denied. The State Bar prosecutor finally agreed to a seal on the last day of trial, but the judge still would not agree.

I also made the mistake of signing the factual stipulation prepared by the prosecutor on the eve of trial to avoid cost assessments of as much as $30,000 of non-dischargeable debt that I would have had to pay by going through with the trial. The State Bar charges an enormous amount of money to an accused lawyer who wants to pursue justice in the system. I subsequently asked the State Bar Court to set aside the stipulation, but the judges would not do so even though the stipulation had never been formally approved by the trial judge in a written order with the required findings, and even though I had asked for the set-aside before my resignation was approved. It was signed during a moment of weakness and feeling worn down. The State Bar had waited four years to file charges against me in 2009, and the events had occurred during a time when my significant other of 9-1/2 years had died, followed by the death of my father. I had to keep thinking and reliving those terrible years because of this prosecution, and it took a toll on me. To all you homophobes out there, gay people can have very powerful and loyal relationships, and if they end because of death, it has a devastating emotional impact. When I look back on all the dysfunctional heterosexual relationships I witnessed as part of my divorce practice, I can tell you that sexual orientation has nothing to do with the quality of an interpersonal bond. It’s the people, stupid. (And I don’t believe that homophobia was behind the State Bar’s actions against me. At least I did not see any obvious red flags about it.)

If Anonymous of 7/14/11 is “Evan,” then I feel badly that he still carries the grudge and pain of that divorce even today. I had tried to make everything right with him by giving him a refund of $14,000 in fees after it was all over even though a 3-person fee arbitration panel said that I did not need to do so—that I had earned all the fees I charged him. He seemed satisfied that this refund made things right with him, and he signed a release stating that he was satisfied will all aspects of my handling of his divorce case.

So, “Evan,” if that is you writing as Anonymous, please allow me to apologize for any distress that you feel I caused you. I worked very hard for you, and I hope that your life is going well today.


Stephen R. Diamond said...

Sorry for the delay in this response: I've been out of commission because of illness.

Anonymous of May 5 asks for comment on the allegations of withdrawals from funds held in trust for Dahlin's personal use. Note that I argued only that Dahlin's punishment was excessively severe. (This also had been Dahlin's position in bar court—although not in his Comment here. The bar court admitted Dahlin caused no actual harm. It cites two California Supreme Court precedents for disbarment for misappropriation absent a prior disciplinary record: Chang v. State Bar and Kaplan v. State Bar, but in both of these cases, there was actual harm, in one case to clients and in the other to partners.

Anonymous of July 14 alleges that he or she suffered actual harm due to intentional delay. But the bar court did not reach this conclusion, and the allegation that Dahlin used the funds to make his gay movie is speculative at best.

Dahlin's argument, however, that the withdrawals were for fees incurred doesn't seem credible because the withdrawals depleted the entire account.

Anonymous said...

From Tore Dahlin:


Please allow me to respond to your last paragraph above.

The State Bar prosecutors and court have always recognized that I had additional funds and accounts OUTSIDE of County Bank from which I had made many of the trust payments. This is stated in the Notice of Disciplinary Charges, in the trial judge's findings, and in the Review Department opinion. So even though the County Bank accounts were depleted, everyone has always recognized that those were not the only two accounts from which I was making trust payments. As I explained to them, I had FOUR trust accounts, not just the two at County Bank. I was handling substantial trust funds for up to eleven clients at a time, and County Bank was not the only place I was keeping trust funds. It was very common for divorce lawyers to have multiple trust accounts, especially back in those days when the economy was doing well.

My experience with the State Bar was very disheartening. All I asked for was a fair hearing and simple seal on the records from the other accounts so that I could present my case and evidence, but the State Bar Court would not give it to me. They preferred to play a game of "Gotcha!" and railroad me out.

I had another person suggest homophobia, so maybe you are correct after all. Perhaps co-producing a PG-13 gay-friendly comedy has become a disbarable offense for lawyers...who knows. And no, client funds were not used to make it. The clients received all of their money. The movie was funded from the outside.

Anonymous said...

maybe the bar had more esoteric reasons for their action.