Montalto v. State Bar

Opinion

THE COURT. Petitioner seeks review of a recommendation of disbarment by the Disciplinary Board of the State Bar. Admitted to practice in 1962, she has no prior disciplinary record.

In October 1972, formal proceedings were instituted against petitioner as a result of her conduct in three cases arising in Los Angeles and Ventura Counties.

[233]In the first case (McNeil) petitioner was retained by Mr. McNeil in January 1965 to handle a personal injury claim.1 After approximately six months, petitioner negotiated a settlement with the defendant’s insurer, who mailed petitioner a check in the amount of $1,250 payable to “Bruce K. McNeil and his attorney, Agnes M. Montalto.” On receipt of the check, petitioner deposited it, endorsed with her signature and the purported signature of her client, in a trust account she maintained for her clients. She did not notify McNeil of the payment. The trust account, often overdrawn, was finally closed in July 1971.

After negotiating the settlement, petitioner met with McNeil and persuaded him to execute a release of his claim, advising him several months would elapse before he could expect payment. Thereafter McNeil’s attempts to reach petitioner by phone or mail were unavailing, and he finally visited her office in the fall of 1970.

During this visit McNeil learned of the settlement and received petitioner’s promise to send his portion of the award within a week. The promise was never performed. Petitioner admits her indebtedness to her client but as yet has failed to make restitution.

In the second matter (Doll) petitioner was retained by Mrs. Doll to obtain a dissolution of marriage. Mrs. Doll filled out the required petitions for dissolution and paid petitioner $200 to cover filing fees, costs, and legal services.

Anxious about the progress of her dissolution, Mrs. Doll phoned petitioner on several occasions and was informed Mr. Doll had been served with the petition and that petitioner was waiting for a court date. In actuality neither filing nor service had occurred.

Subsequently Mrs. Doll learned her husband had not been served, but she agreed to meet him pursuant to arrangements made by petitioner. At this meeting with the Dolls, petitioner induced Mr. Doll to sign a “non-harassment agreement” and a form in which he promised to appear in the action and to waive notice.