Supreme Court orders review of lawyer penalties

42 cases sent back, some believe harsher discipline is in store

The state Supreme Court is taking a tougher stand on how lawyers are being punished, ordering the State Bar of California to take a second look at more than three dozen cases of disciplined attorneys.

The court’s move to turn back so many cases is unprecedented, and has sent a jolt through the state's legal community.

The justices did not say what it was about the misconduct cases that required additional review, but bar officials and lawyers who follow the discipline process said it is clear the court questioned whether the punishments were too lenient.

That means the cases against 42 lawyers, including four from San Diego, that once appeared settled are now in doubt. The misconduct in the cases runs the spectrum:

• A lawyer in Berkeley who represented a man charged with murdering a journalist smuggled a letter out of jail for him, then lied about it to police. Prosecutors said the letter was a hit list for witnesses against him in his upcoming trial. The bar settled the matter with a six-month suspension.

• A Newport Beach lawyer collected more than $100,000 in fees for working on loan modifications for clients in nine states. He wasn't licensed to practice law in any of the states, and in some of the cases did little or no work. The lawyer received a one-year suspension.

• San Diego lawyer Steven A. Guilin agreed to a six-month suspension of his license for misconduct in two instances, including forging a client's signature and another lawyer's, State Bar records show. He referred questions to his attorney, who declined to comment while the disciplinary matter is pending.

The decision not to approve the proposed disciplines indicates the Supreme Court is moving in a new direction under Chief Justice Tani Cantil-Sakauye, who became the court's leader in January 2011.

"This is unchartered territory," said Joe Dunn, the bar's executive director. "The court has never done this before. What's definitely clear to all of us in the legal profession is they are going to take a far more careful look at discipline cases under the new chief."

Cantil-Sakauye declined through a spokesman a request to comment about the court's approach to punishing attorneys because the cases are pending.

Richard Zitrin, a legal ethics professor at University of California Hastings College of the Law, said that the court was reacting to cases the bar had settled too easily while trying to clear out a backlog.

"Too often bad lawyers get off much too easily, and relatively innocuous but easy-to-prove violations get punished too severely," he said. The cases showed "the bar sacrificed the appropriate level of discipline for expediency. The Supreme Court was unhappy with that, and rightly so."

The cases had all been resolved through a kind of plea bargain, where the lawyers agreed to certain facts underlying their misconduct and both sides agreed on a punishment, without going through a trial before the State Bar court.

In the case of Guilin in San Diego, he agreed to represent a client in an immigration case, then submitted court filings indicating the client was representing himself, according to the bar's charging document, which he signed in January. He then signed the client's name to the filings, and neglected to serve the papers on the opposing side.

In the second instance, he was hired to file an appeal in an immigration case, but missed a filing deadline for the appeal. He then submitted documents trying to get the case reopened, but did so under the name of another lawyer - and forged that lawyer's signature on court filings, according to the charging document.

His lawyer, Ramona Hallam, declined to comment.

Under the state's lawyer discipline system, the State Bar investigates lawyer misconduct and recommends what punishment will be handed out, if any. Discipline ranges from probation to license suspension to disbarment. The discipline is not final until the Supreme Court formally approves it.

That is normally a routine process. The court nearly every week will have dozens of discipline matters scheduled for its weekly case conference and quietly approve them.

In the past five years, the bar has sent more than 3,800 cases to the Supreme Court, said Laura Ernde, a bar spokeswoman. Five were returned for further review.

Then, in June, the court abruptly sent back 24 cases in which discipline had been agreed to by the lawyer and the bar. The order said the cases had to be reviewed "in light of the applicable attorney standards," and cited two previous cases in which the court had ordered more severe discipline than the bar had recommended.

A few weeks later, lawyers with the bar identified another set of 24 pending discipline cases that Dunn said appeared to "fit the criteria for reconsideration" that the Supreme Court had indicated in June. Of those, the court returned 18 - deeming the balance, for some reason, did not need reconsideration.

Not everyone agrees the return of the cases signals a tougher stance by the court.

"The court didn't give a lot of guidance on whether they thought the discipline decisions were too harsh or too lenient," said David Carr, a San Diego lawyer and former discipline prosecutor with the State Bar for more than a decade.

He said the justices may have concluded that the factual explanation behind the discipline in each case was insufficient and simply wanted more explanation from the bar's lawyers.

Carr noted that all of the cases sent back concluded late last year, when the bar was working to reduce a backlog of disciplinary cases that had not been fully prosecuted.

Carr said that lawyers like Guilin, who had believed they were finished with the bar, will now have to go back and fight the cases again, and can probably expect a tougher time.

University of San Diego law professor Robert Fellmeth, an ethics expert and former state bar official, said the court was sending a warning shot that the discipline that had been worked out in the 42 cases was too light under legal standards.

"I think they're saying, 'We're here, and we're watching,'" Fellmeth said.

By The U-T San Diego

Source: The U-T San Diego