Bate v. State Bar

Opinion

THE COURT.

Petitioner Randle Bate was admitted to the practice of law in California in 1969, and has no prior disciplinary record. In October 1980, the State Bar charged petitioner with wilfully misappropriating monies entrusted to him by two separate clients. The State Bar Review Department recommends that petitioner be suspended from the practice of law for a period of five years and that execution of suspension be stayed and petitioner placed on probation for five years with actual suspension for the first three years, and other specified conditions.

Petitioner sought review of the bar’s recommendation after being advised that we were considering imposition of more severe discipline. Although petitioner concedes that he wilfully misappropriated a client’s funds, he contends that the discipline recommended by the review department is adequate and should not be increased by us.

We conclude that although the review department’s recommendation regarding the period of suspension and probation is adequate, it should be supplemented by requiring that petitioner make restitution in the sum of $2,221.15 to his client, Paula H. (H.).

Facts

Petitioner, a practicing attorney in the Los Angeles area for 10 years, was charged with wilfully misappropriating monies belonging to one client and wilfully misappropriating funds entrusted to him for the medical expenses of another client. Because petitioner was absent from this country voluntarily while a fugitive from justice in another matter, the State Bar Court hearing panel was unable to locate him and served notice of the pending hearing by means of publication. Hearing was held in the absence of petitioner or counsel on his behalf. The panel found both charges of misappropriation to be true and recommended disbarment. It noted that petitioner had no prior disciplinary record, although he had been suspended by the State Bar for nonpayment of dues.

[923]

In accordance with the practice of the State Bar, the review department reviewed the panel’s decision (Rules Proc. of State Bar, rule 450(b)). At the hearing, petitioner, then in state prison following his arrest and conviction for crimes involving possession and sale of narcotics, was represented by appointed counsel. The review department adopted, with slight amendment, the panel’s findings of fact as to count one involving H., but found that there was no clear and convincing evidence to support the allegations regarding the second matter. By a vote of eight to six, it modified the panel’s recommendation by reducing the discipline as described above. (Of the dissenters, four members believed that the discipline imposed was excessive, while two members believed that the record did not contain clear and convincing evidence to support any finding of misconduct.)