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Attorney Privilege 

The state bar is supposed to punish dishonest attorneys. Instead, it too often coddles them

Wednesday, Jul 18 2007
Paul Weakland needed a lawyer. His girlfriend had obtained a restraining order against him after they quarreled. In Weakland's telling, upset over his reluctance to marry her, she claimed he posed a physical threat to her; he countered that she lied to authorities to retaliate against him. Whatever the precise truth, he found himself unable to return to their Sunset District apartment, and sought an attorney to help him fight the order.

A call to a lawyer referral service led him to Kathleen McCasey, a San Francisco family law attorney with a small practice in the Fillmore. Weakland recalls that at their first meeting, in August 2003, she told him, "I'm going to take care of you." He paid her $3,500 to represent him.

Weakland arrived in family court in early September for a motion hearing to rescind the restraining order. McCasey was nowhere to be seen. The judge continued the hearing to October, but over the next three weeks, court records show, McCasey ignored Weakland's repeated phone messages and missed two meetings with him.

She chose the wrong client to snub. A former Army Ranger who survived the cauldron of Vietnam, the 53-year-old Weakland, a commercial diver by trade, isn't the acquiescent type. He submitted a complaint against McCasey to the State Bar of California, the regulatory agency that licenses attorneys. For good measure, he also filed a fraud report with the San Francisco Police Department.

A state bar complaint analyst sent McCasey notice of Weakland's grievance and requested a written response. She never replied. In December 2003, looking to recoup his $3,500, he prevailed in a fee-arbitration proceeding before the San Francisco Bar Association. McCasey, again a no-show, disregarded the ruling.

Weakland soldiered on. Five months later, he won a judgment against McCasey in small claims court for the amount of the arbitration award. Soon after, perhaps fearing the judge would sanction her if she defied the order, McCasey mailed Weakland a $3,500 check. It bounced, prompting him to file a second police report.

McCasey eventually sent him a cashier's check in June 2004. But when she blew off a subsequent court hearing — Weakland had discovered he could collect interest from her — the judge awarded him an additional $1,000. McCasey obliged by writing him another bad check. She finally settled the debt in August, a full year after he hired her.

The payment failed to pacify Weakland. Still bound by his ex-girlfriend's restraining order, thanks to McCasey's vanishing act, he had to live for a time on his boat docked in Bodega Bay. He pressed the state bar to crack down on McCasey, convinced he wasn't the sole casualty among her clients. His instinct proved true.

Court records reveal McCasey bungled three other cases during a 17-month span going back to April 2003. One involved Raymond Wong, who retained her in February 2004, five months after Weakland first complained about her to the state bar. Wong wanted to appeal a no-contact order obtained against him by his ex-wife that prevented him from visiting their two children, who lived with her. Before departing on a trip to China, he asked McCasey to call him with updates on the case. She neither phoned him nor filed his appeal.

Wong complained to the state bar in August 2004. Despite his and Weakland's grievances, however, more than two years elapsed before McCasey faced formal discipline. Last December, the California Supreme Court suspended her right to practice for 60 days. Weakland greeted the news with bitter disbelief.

"She's ruining people's lives and she gets a slap on the wrist," he says. "She should be disbarred." McCasey declined to comment to SF Weekly.

Weakland's lament could double as the motto for clients across California who believe the state bar coddles wayward lawyers at the public's expense. Indeed, the penalties imposed on McCasey almost qualify as draconian when compared to the free pass given to the vast majority of lawyers accused of misconduct.

From 2004 to 2006, while receiving written complaints against 41,635 California attorneys, the state bar deemed less than one-fourth worthy of investigation, according to agency statistics. During the same period, 1,468 lawyers were punished for wrongdoing, a figure that represents less than 1 percent of the practicing attorneys statewide. Aggrieved clients and consumer advocates disparage that prosecution rate as a paltry return on the $43 million the state bar spends annually on its attorney discipline program.

Beyond the modest number of penalties meted out, critics assail the system as perilously slow. On average, cases that yield sanctions take 18 months to move from the complaint stage to the state Supreme Court for final approval, with delays of two to three years not unusual. In the interim, a lawyer bears no obligation to notify current or prospective clients of the bar's investigation — potentially putting multiple cases at risk, as McCasey showed.

State bar officials, while conceding the agency has its flaws, contradict the allegations of leniency. So do defense attorneys who handle discipline disputes, contending that bar prosecutors have pursued harsher sanctions since the state Supreme Court's ruling in a recent disbarment case. But severity remains a matter of perspective. To those already deceived by a lawyer, the discipline system can leave them feeling cheated twice. "The bar isn't looking after us," Weakland says. "It's protecting dirty attorneys."

San Francisco attorney Jagdip Sekhon botched seven immigration cases between 1996 and 2001. In four political asylum hearings, court records state, he neglected to submit the required written briefs, resulting in deportation orders against his clients. For his misdeeds, the state Supreme Court handed Sekhon a one-year suspension in 2004 — with the entire term stayed, enabling him to keep working as long as he heeded the bar's ethics code.

Around the same time, the court suspended Oakland attorney Deborah Duggan for 13 months for fumbling 20 cases. In three of them, after collecting retainers from clients, she never filed their lawsuits. A few months ago, the court extended Duggan's suspension to three years, but only after she failed to reimburse ex-clients or attend legal ethics classes, as required by her probation.

Sekhon and Duggan did not respond to interview requests. But their respective cases raise questions about why attorney malfeasance that might appear to warrant long suspensions or outright disbarment — at least in the view of victimized clients, if not most non-lawyers — instead draws milder sanctions.

Legal observers fault an inbred discipline system.

"That's what happens when attorneys are policing other attorneys," says Suzanne Blonder, senior counsel for HALT, a nonprofit legal reform advocacy group in Washington, D.C. "You end up with a system that forgets about clients."

California ranks as one of only six states in which non-lawyers play no role in the discipline process from the adjudication side. In most states, bar panels that review discipline decisions have at least one public member to give voice to client concerns. In California, the duty falls to judges. "If a jury of laypeople can decide a death penalty case or a multimillion-dollar civil case," Blonder says, "they're certainly able to decide about whether attorney misconduct occurred."

Last year, in its nationwide survey of lawyer discipline, HALT rated California's system fifth worst. (Utah claimed the bottom spot; Connecticut ranked first.) The study knocked the state bar for the sluggish pace of its prosecutions and for imposing inadequate penalties.

Headquartered in San Francisco, the State Bar of California, in its role as the state Supreme Court's administrative arm, acts as the sieve for complaints against lawyers. Allegations flow through the Office of the Chief Trial Counsel, where complaint analysts assess whether a grievance merits deeper investigation, a review generally completed within 60 days.

A complaint advances if facts suggest an attorney breached the bar's Rules of Professional Conduct or the state's Business and Professions Code. An agency investigator then probes whether violations occurred, an inquiry that tends to run six to 12 months, depending on a case's complexity. Those findings pass to a bar prosecutor, who decides whether to bring charges in State Bar Court, the adjunct of the state Supreme Court that deals with attorney discipline cases.

A case sits on the Bar Court's docket for an average of six months, and if it later goes to the court's review panel, another two to three months may pass before the Supreme Court receives it. (The Supreme Court adopts the Bar Court's decision as the final judgment, with rare exceptions.)

In 2006, out of 14,230 complaints filed with the bar, more than 11,000 were closed after the initial evaluation, primarily owing to what analysts judged as a lack of validity or evidence. Bar officials say the lion's share of grievances — chief among them, clients grousing that their lawyer lost a case — fall shy of ethics and business code violations.

The 3,200 cases forwarded to investigators included some left over from late 2005; nearly two-thirds wound up dismissed. Another 400 ended upon an attorney's death, or a lawyer's resignation or disbarment in a preexisting discipline matter. Almost 300 cases culminated with warning letters and written agreements in lieu of discipline.

By year's end, prosecutors had brought charges against 505 lawyers, most often alleging dereliction of cases or mishandling of client funds. That's less than 4 percent of the total number of complaints filed with the bar last year.

"There's no question that the bar's discipline system is just skimming the surface of bad lawyer conduct," says San Francisco attorney Richard Zitrin, an expert on legal ethics. "Too many lawyers get away with bad behavior." Zitrin has written his share of letters on behalf of attorneys facing penalties, attesting to their good character. Nonetheless, he says, "Lawyers who get disciplined by the state bar deserve the discipline — and deserve harsher consequences."

The State Bar Court decided 417 disciplinary cases in 2006, disbarring 71 lawyers and suspending 250. Judges slapped 96 lawyers with public or private reprovals — essentially, written admonishments. In addition, 84 lawyers resigned with charges pending.

The Bar Court weighs mitigating factors before imposing sanctions, ranging from an attorney's discipline record and mental health to how much time has passed since the misconduct. Such considerations can produce rulings that read like misprints.

During a monthlong stretch in 1999, attorney Julie Wolff dumped 39 cases referred to her through an indigent litigant program in Sacramento County, deserting 300 clients. Yet in 2004, a Bar Court judge let her off with a public reproval, citing Wolff's clean discipline history and the four-year gap between her file purge and the Bar's investigation. Last December, the Bar Court's appellate review panel applied a degree of corrective logic, hitting Wolff with an 18-month suspension.

The state bar's annual reports on lawyer discipline omit details on the average length of suspensions approved by the court. But an SF Weekly review of cases since 2004 involving Bay Area attorneys indicates that most run six months or less. McCasey's lasted 60 days, ending in February.

The Bar Court's discipline order states that McCasey suffered from unspecified "extreme emotional difficulties or physical disabilities" at the time of her offenses.

A frustrated Weakland meted out his own justice: He placed copies of the court's ruling in the mailboxes of her neighbors in Alamo. "If the bar wasn't going to give her what she deserved," Weakland says, "I figured I could try to embarrass her a little bit."

Disciplinary action taken against California attorneys enters the public record unless a lawyer agrees to a private reproval before the bar files charges. (The agency posts the discipline history of its members at But unlike in Oregon and West Virginia, where every written grievance against an attorney is disclosed, complaints against California lawyers stay under wraps if dismissed by the bar.

Robert Hawley, the agency's deputy executive director, asserts that California's policy cleaves the middle ground between the public's right to know and shielding lawyers from gratuitous character attacks. "An attorney's reputation is sort of their stock in trade," he says. "Their reputation shouldn't be dinged unless the complaints are found to have validity."

HALT's Blonder agrees — to a point. She might fully endorse California's approach if the bar brought charges and imposed sanctions more quickly. But given the delays, she says, "You're leaving people vulnerable. You're not shedding enough sunlight on the process."

The bar requires a lawyer, if suspended for 90 days or longer, to notify clients, opposing counsel, and the courts, but unsuspecting clients can still remain in the dark. Two years ago, South San Francisco attorney Justin Dahlz received an 18-month suspension for pocketing more than $20,000 in settlement funds intended for five clients. The sanction marked his fourth since 1996.

The suspension took effect in January 2005. Yet the 70-year-old Dahlz continued working, filing motions in at least two cases. He stopped only when Victoria Townsend, the opposing counsel in one case, learned of his suspension and informed his client and the judge. Early last year, facing charges of practicing while on suspension, Dahlz resigned from the bar. He couldn't be reached by SF Weekly for comment.

To Townsend, however, his actions typify a dysfunctional discipline system. "You're putting the responsibility on the person accused of egregious conduct to then tell everyone about it," she says. "That's insane."

Lissa Jacobson suspected Robert Cram of abducting a pair of feral cats that lived in the backyard of her Sherwood Forest home. The two neighbors had recently tangled in court after Cram trimmed four trees along their shared property line, with Jacobson obtaining a small settlement from him. As revenge, she alleged, he trapped and disappeared Persia and Mittens, the strays she had watched over for years.

Jacobson wanted to sue — if an attorney would take the case. A succession of lawyers turned her down. Christine Garcia, however, sensed a cause célèbre in the offing.

A member of the city's animal control and welfare commission, Garcia advertises her "vegan-owned" Presidio practice as "The Animal Law Office." She filed Jacobson's suit in Superior Court in 2002 without interviewing anyone besides her client, court records show. Her sprawling, 14-count complaint alleged that Cram inflicted emotional distress, violated the Food and Agriculture Code, and committed "trespass to chattel." She asked for damages of $876,000, or about 35 times what Jacobson says she planned to seek.

Court documents also show that Garcia mailed letters to Cram's neighbors accusing him of "malicious actions"; her Web site referred to the suit as a "wrongful death case."

Cram had legally trapped feral cats on his property and delivered them to the Society of Prevention for Cruelty to Animals so that they could be fixed and released back into the neighborhood. An SPCA worker affirmed that claim in a defense deposition. (Cram declined to comment to SF Weekly.)

In November 2003, the suit was tossed at trial, and Garcia and Jacobson were ordered to pay $77,000 to cover Cram's attorney's fees. The judge blasted Garcia for exploiting a meritless case "to vent her political and philosophical beliefs regarding animal rights," and for preying on Jacobson's "one-sided vendetta" against Cram.

Garcia took the unusual step of adding her name as a plaintiff when she appealed the case in 2004. The move set up a complicated three-way standoff among her, Jacobson, and Cram that led to the appeal's demise. Jacobson, who had hired a new attorney, was forced to cover the $77,000.

Cram's lawyer and Jacobson complained to the State Bar, and last October, the Supreme Court ordered Garcia to serve a four-month suspension, ruling that she "failed to perform legal services competently." The court also found she had added her name to the appeal knowing Jacobson might be stuck paying the entire sanction award as a result.

And yet, to listen to the 32-year-old attorney, she's the victim. "I've been treated so unfairly. I don't really think I deserve what I've been put through," Garcia told SF Weekly before declining to comment further.

San Francisco attorney Jonathan Arons, who represented Garcia before the bar, said even less about her case. But as a member of the small fraternity of lawyers who defend their brethren in discipline cases, he contends the bar has of late taken a tougher approach. He traces the trend to a state Supreme Court ruling in 2005 in the case of a Pacific Palisades lawyer.

The court disbarred Ron Silverton in 1975 following his conviction on fraud and conspiracy charges in an insurance scam. Unlike other states, California lacks a permanent disbarment statute; attorneys who lose their license can apply for reinstatement after five years. Silverton gained re-entry to the bar in 1992, but new allegations of misconduct surfaced in 2003, with clients alleging that he had charged exorbitant fees and siphoned settlement money. In disbarring him a second time, the Supreme Court chastised the bar for straying too far from sanctioning guidelines.

Arons accuses bar prosecutors of reacting to the ruling in the extreme, pushing for the harshest sanctions possible without regard for an individual's circumstance. "The resolution needs to fit the offense," he says. "It shouldn't be cookie-cutter justice."

Likewise, Walnut Creek lawyer Jerome Fishkin charges that bar prosecutors "have become lazy. They just check a box and ask for the maximum [penalty]."

A former bar prosecutor who moved into private practice 15 years ago, Fishkin offers the example of an attorney disciplined for neglecting a client's case. When the Bar Court imposed a 30-day suspension, prosecutors appealed, demanding the time be doubled. The court obliged, but Fishkin questions the rationale. "They probably spent an extra $100,000 to get 30 more days," he says. "What's the point? Who's really served by that?"

To which Robert Fellmeth says, "People depend on attorneys. When they screw up, there has to be consequences." Fellmeth, head of the Center for Public Interest Law in San Diego, formerly served as the bar's discipline monitor. In that role, he audited the system's performance, and he dismisses defense attorney arguments as so much whining.

"Practicing law is a privilege, not a right," he says. "People — clients — are relying on you. You don't want to see lawyers have their reputations needlessly sullied, but there has to be a safeguarding of consumer interests."

In fact, the California Supreme Court has written that "the purpose of disciplinary proceedings is not to punish the attorney, but to protect the public, to preserve public confidence in the profession and to maintain the highest possible professional standards for attorneys."

Robert Hawley, the bar's deputy executive director, admits to the awkwardness of both shielding consumers and acting as a buffer between lawyers and vindictive ex-clients.

At the same time, he quips, "As long as everyone's complaining, you must be on the right track."

Hawley and Scott Drexel, who heads the chief trial counsel office, deny the bar goes easy on its members. That criticism, if still persistent, has quieted since the agency switched in 1988 from a discipline system filled by volunteers to one staffed by full-salaried professionals. But they concede that, like any bureaucratic body, the agency is limited by budget.

The bar spends $43 million a year on its discipline system, with most of the funds generated through annual membership dues. The money, however, goes to more than investigating and prosecuting cases, covering the costs of the State Bar Court, substance abuse counseling for attorneys, and fee arbitration, among other programs.

As a result, Drexel says, "We're not necessarily interested in prosecuting every tiny technical violation or ethics lapse." But, he quickly adds, "It's a legitimate concern whether attorneys are treated more lightly than they should be."

Lissa Jacobson, angry about her cats, looks back at her legal fiasco and blames herself for sticking with her young attorney. But she also faults Garcia for attempting to turn a lawsuit into an advocacy campaign, and for the $77,000 in sanctions she had to pay. The Supreme Court eventually ordered Garcia to make restitutions to Jacobson, who earns a living as a day trader, but the total will amount to only a few thousand dollars.

Not long after finally extricating herself from Garcia, Jacobson left California. But her financial and psychological wounds remain all too fresh. "I was completely betrayed by the very person who was supposed to be representing me. It's devastating."

About The Author

Martin Kuz


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