Blair v. State Bar

Opinion

THE COURT. This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar (the board) that the petitioner be suspended from the practice of law for two years on specified conditions of probation, including actual suspension of six months. Petitioner was admitted to practice law in California in 1963 and, as will appear, he has a prior disciplinary record. Petitioner raises certain procedural objections and also contends that the recommended discipline is too severe. We will uphold the board’s recommendations.

1. The Hayes Matter

In 1974, Michael Hayes retained petitioner to prosecute a personal injury claim. The case was settled for $9,250 and on January 9, 1976, [410]petitioner received and deposited the settlement draft in his client’s trust account. On January 15, 1976, petitioner paid to Hayes $3,389.97 from the settlement funds, and agreed to pay from the remainder of the funds various obligations (medical expenses and legal fees owing to another attorney). Despite his promise, petitioner delayed in .paying these bills for 19 months, and until after Hayes had complained to the State Bar.

At the State Bar hearing Hayes testified that he contacted petitioner four or five times between January 15, 1976, and October 13, 1977, and that on each occasion petitioner assured him that the bills either had been, or soon would be, paid. (Petitioner disputed Hayes’ testimony in this regard.) Eventually, after the State Bar wrote to petitioner concerning Hayes’ complaint, petitioner paid the bills.

Petitioner’s reason for the delay was the “hustle and bustle” of his law practice; in addition, he had suffered a high turnover of secretarial help and both he and his secretary had been the victims of certain acts of violence which disrupted his practice. The board found, however, that petitioner wilfully failed and refused to disburse promptly the funds which Hayes had entrusted to him.

In addition, the evidence indicated that during the period from January 15, 1976, to October 13, 1977, petitioner’s client’s trust account was overdrawn on 3 occasions, totalling 10 days, and that during this period the balance in the account had dropped below the amount entrusted to him by Hayes for a total of 137 days. Petitioner testified that he received overdraft notices from his bank on several occasions, and that he deposited his own personal funds into the account to correct the overdraft. He admitted periodic withdrawals from the trust account for purposes other than the payment to himself of earned fees or costs advanced. The board found that petitioner wilfully misappropriated funds belonging to Hayes, and that he wilfully commingled his personal funds with clients’ trust funds.