California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - APRIL 2000
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - April 2000
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News Briefs
Election schedule set for board, CYLA vacancies
Bar court judge appointments process to be reviewed
Newest board member dies
Ventura County mobile legal center cited by ABA
ABA offers three CLE programs
Bar, Western State plan annual ethics symposium
Penalty for late bar dues moved to April 28
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Legal Tech - UM: The leading edge of convergence
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Opinion
From the President - Link starting salaries with service
Easy to destroy, hard to rebuild
2 trains on a collision course
Keep the judiciary independent
Letters to the Editor
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MCLE Self-Study
Viewing the Subdivision Map Act
Self-Assessment Test
MCLE Calendar of Events
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Public Comment
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Discipline
Ethics Byte - More on the written agreement
Charges of grand theft, sexual battery lead to bar hearing
Attorney Discipline

DISCIPLINE

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CAUTION!
More than 169,300 attorneys are eligible to practice law in California. Many attorneys share the same names.

All discipline reports should be read carefully for names, ages, addresses and bar numbers. Attorneys must report address changes within 30 days.

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DISBARMENTS

JOSEPH MICHAEL COLLER [#79893], 49, of Granada Hills was disbarred Nov. 18, 1999, and ordered to comply with rule 955 of the California Rules of Court.

Coller failed to meet the conditions of a 1998 discipline order requiring him to comply with rule 955 by notifying his clients and other pertinent parties of his suspension from practice and submitting an affidavit to that effect to the Supreme Court.

He had stipulated to misconduct including failure to communicate with clients, perform legal services competently, pay out client funds and maintain client funds in a trust account, and to collecting an illegal or unconscionable fee. His conduct amounted to moral turpitude due to misappropriation of client funds.

He was suspended for 10 months and until he made restitution.

The disbarment was ordered after a default proceeding.

Coller “has demonstrated an unwillingness to comply with the professional obligations and rules of court imposed on California attorneys although he has been given several opportunities to do so,” wrote hearing Judge Carlos E. Velarde.

“ . . . It would undermine the integrity of the disciplinary system and damage public confidence in the legal profession if (Coller) were not disbarred for his unexplained wilful disobedience of the Supreme Court’s order.”

BARRY B. ESKANOS [#125092], 40, of Yuba City was disbarred Nov. 18, 1999, and ordered to comply with rule 955.

Eskanos settled a case involving an automobile fire for $107,500, receiving three separate payments. Eskanos’ trust account records showed he wrote 12 checks, totalling $42,789.06 to “cash,” and one check for $17,439.06 was used to purchase a cashier’s check payable to “Sacramento Jaguar.”

He disbursed the amounts owed to his clients and one insurance company, but $71,928.25 owed another insurer, CSAA, was not paid.

His records show no entry reflecting a transfer of that amount to any other account.

CSAA eventually sued Eskanos, who claimed he had mailed the payment but it was refused, and later said he would not appear at a hearing because his default in the case was vacated. Neither claim was true.

The court awarded CSAA $88,466.67, which included $10,000 in punitive damages.

Eskanos paid the judgment by a check drawn on a stock brokerage account held in the joint personal names of two Colorado residents whose surname is Eskanos. At the time, the balance in his trust account was almost $37,000. (At one point, it dropped below $500.)

The bar court found that Eskanos failed to perform legal services competently, failed to maintain CSAA’s funds in trust, and engaged in acts of moral turpitude by making misrepresentations to CSAA and misappropriating funds. He also failed to cooperate with the bar’s investigation.

In mitigation, Eskanos had a discipline-free record and he presented five witnesses who attested to his good character. However, none of the witnesses was familiar with the charges against him.

Eskanos presented no defense at his trial before the bar, asserting his Fifth Amendment rights. He was criminally charged as a result of the matter, and although the charges were dismissed, the investigation continues with the possibility he may be recharged. He rejected a draft protective order offered by the court, and maintained he could not call witnesses or cross-examine those called by the bar. Although he alluded to exculpatory evidence, he declined to present it.

The court said it feared Eskanos might commit further misconduct and concluded he “should not be permitted to practice law again without first proving, by clear and convincing evidence in a reinstatement proceeding, his rehabilitation and present moral qualifications for readmission.”

JAMES HALL THOMAS [#41143], 63, of Lodi was disbarred Nov. 18, 1999, and ordered to comply with rule 955.

Thomas was suspended for two years in 1996 and ordered to attend ethics school within a year. He failed to do so.

He has a record of discipline in two prior matters. In 1982, he was given a stayed suspension and ordered to make restitution to three clients. At the time, he’d been suspended for two years for non-payment of bar dues.

The discipline was the result of failure to perform legal services competently or communicate with clients and improper withdrawal from employment.

He paid his dues in 1993 and the stayed suspension and probation from 1982 took effect at that time. In 1996, he was disciplined again for failing to comply with conditions of the 1982 probation, including filing quarterly probation reports.

He never paid the restitution ordered in 1982.

In recommending Thomas’ disbarment, the bar court pointed out that he has been continuously suspended since 1980, and has failed to make restitution, comply with probation conditions, attend ethics school or participate in two disciplinary proceedings.

DONALD VINCENT POHLMEYER [#89056], 50, of Union City, N.J., was disbarred Nov. 25, 1999.

Pohlmeyer was disbarred in New Jersey in 1997, after the Office of Attorney Ethics found that he misappropriated $35,960.33 from an estate for which he was the administrator. He also failed to communicate with his client, pay out client funds or cooperate with the investigation of his activities.

Under the California Business and Professions Code, professional misconduct committed in another state is evidence that the attorney is culpable of misconduct in this state. The State Bar Court determined that Pohlmeyer’s conduct in New Jersey violated the California Rules of Professional Conduct and the State Bar Act.

There was no mitigation.

MIGUEL ANGEL VERDUGO [#73020], 55, of Northridge was disbarred Nov. 25, 1999, and ordered to comply with rule 955.

Verdugo violated a 1998 disciplinary order requiring him to comply with rule 955 of the California Rules of Court by notifying all clients, opposing counsel and other pertinent parties of his suspension and submitting an affidavit to that effect to the Supreme Court.

Failure to comply with rule 955 is grounds for disbarment. He did not participate in the disbarment proceeding.

Verdugo has a history of failing to comply with probation conditions attached to disciplinary orders.

In 1993 and 1995, he was suspended for abandoning a client and failing to communicate. In 1996, he was suspended for failure to comply with conditions of the 1993 order. In addition, he violated a court order, failed to perform legal services competently, respond to client inquiries or cooperate with the bar’s investigation, and he withdrew from employment without protecting his client’s interests. At that time, he was ordered to comply with rule 955.

He was disciplined again in 1998 for failure to comply with probation conditions.

In recommending Verdugo’s disbarment, the bar court said he “has demonstrated an unwillingness or an inability to comply with his  professional obligations and the rules of conduct imposed on lawyers.”

MICHAEL J. MORIARTY [#51185], 56, of Corte Madera was disbarred Nov. 26, 1999, and ordered to comply with rule 955.

In three consolidated cases, the State Bar Court found that between 1988 and 1994, Moriarty committed multiple acts of wrongdoing  involving six clients and demonstrated a pattern of dishonesty.

He failed to perform legal services competently, failed to promptly pay settlement funds, violated court orders, filed a frivolous lawsuit and was disrespectful to the court. In addition, he commingled funds, mismanaged his trust account, forged signatures, made misrepresentations to the court and committed acts of moral turpitude.

In one matter, Moriarty represented the plaintiff in a products liability case. The court declared two mistrials because of Moriarty’s conduct, which included misleading the jury, making references the court specifically told him to avoid, and continued argumentative statements. Moriarty was sanctioned more than $43,000 and was found in contempt twice.

The bar court found that Moriarty violated court orders, engaged in trial misconduct, failed to maintain respect for the courts and misled the jury.

In a legal malpractice action, Moriarty made a false declaration to the court and made a false accusation against the opposing party. He did not promptly pay a medical provider in a personal injury case, and failed to maintain settlement funds in trust or supervise his trust account. His gross mismanagement of his trust account amounted to moral turpitude.

At his clients’ insistence, he continued to pursue a medical malpractice case which had been dismissed because of his misconduct. Nevertheless, he failed to appear at a hearing.

He forged six proofs of service in that matter, was sanctioned by the court and never paid the sanctions, and falsely told the court a list of experts had been served on opposing counsel.

Although Moriarty had a 33 percent contingency fee agreement with his clients in an insurance fraud matter, he unilaterally kept the entire $9,000 he received in settlement. He deposited the fund in his general account instead of his trust account and did not notify his clients that he’d received the money.

In mitigation, Moriarty had no record of discipline in 16 years of practice. Although he presented three character witnesses, they were unfamiliar with the extent of Moriarty’s misconduct, so the weight given their testimony was somewhat lessened. In addition, two judges and two attorneys presented evidence of Moriarty’s bad character.

Moriarty told the bar court he needed a continuance of the disciplinary trial dates because he had a trial scheduled in Placer County. However, the opposing counsel testified that there was no conflict on one of the days.

Furthermore, during the Placer trial, Moriarty allowed his expert witness to testify that he had no relationship with Moriarty other than as a professional consultant. In fact, Moriarty represented the expert in a lawsuit. The bar court found that Moriarty intentionally suborned perjury, which it called “moral turpitude of the most extreme nature.”

In recommending Moriarty’s disbarment, bar court Judge Nancy Roberts Lonsdale wrote that his “conduct long ago entered the realm of intentional, deceitful actions. . . . This type of egregious dishonesty simply cannot be countenanced in an attorney of (his) experience and years. . . . He cannot be trusted to remain as a member of the State Bar without public endangerment.”

SUSPENSIONS/PROBATION

VALERIE SUE WEISS [#126500], 39, of Los Angeles was suspended for two years, stayed, placed on two years of probation with an actual 90-day suspension, and was ordered to prove her rehabilitation, take the MPRE within one year and comply with rule 955. The order took effect Sept. 17, 1999.

The State Bar Court found that Weiss committed misconduct in four consolidated cases.

In one matter, she served as a court-appointed trustee for a couple’s marital assets and represented the husband in a divorce proceeding. As trustee, Weiss was to collect monthly trust income, pay the mortgage and disburse the balance equally between the couple. She wrote two checks to the wife against insufficient funds.

After she was replaced by another lawyer, she did not respond to requests from the new lawyer or the wife for an accounting and for her client’s file.

In a second matter, Weiss represented a client and her siblings who were contesting a will. She unwittingly wrote a check for the filing fee against a client trust account which was closed. When the check bounced, Weiss assumed it had been returned by her client’s bank and demanded the client write another check.

When the client and her siblings terminated Weiss’ employment and demanded a return of their file, she refused to do so.

At the time the client fired Weiss, the files were at the client’s home at Weiss’ request. The client planned to reorganize them. Weiss demanded the client return the files to her and the client said she would do so after reviewing them for discrepancies in Weiss’ billings.

Weiss accused the client of stealing the files and twice asked the police to contact the client. The client then returned the files.

The client also had paid Weiss with a $2,500 check drawn against her credit card, which contained a notation that it was not valid after a certain date. Although the credit card company said it would honor the check, Weiss demanded a new check, then cashed them both.

In a third matter, Weiss filed a class action lawsuit against the federal, state, county and San Diego city governments after her legally parked car was towed and impounded. The tow was the result of Weiss’ failure to pay five expired-meter violations and four citations for failure to display registration tags on her license plate.

The federal district court found that the suit was frivolous and vexatious.

The bar court found in a fourth matter that Weiss failed to maintain the respect due courts of justice when she entered a courthouse after hours to file documents. At the time, she was suffering from severe pain due to surgery; she told the court the incident was a “once in a lifetime event.”

In mitigation, Weiss is remorseful about the court incident. Little weight was given to other mitigation she presented, including seven years of discipline-free practice and physical disabilities and emotional difficulties at the time of the misconduct.

STEPHEN BERNARD [#56553], 53, of Los Angeles was suspended for two years, stayed, and placed on probation for three years with an actual six-month suspension and until he proves his rehabilitation and places $5,500 in an interest bearing account in trust for a former client. He also was ordered to take the MPRE and comply with rule 955. The order took effect Oct. 15, 1999.

Bernard misappropriated client funds and failed to maintain client funds in trust in a personal injury case. He settled the case and disbursed funds to a medical provider and his client. Before the client cashed the check, he allowed the balance of his trust account to fall below the required amount because he paid personal expenses from the account.

In another personal injury matter, Bernard committed the same violations. He again allowed the balance of his trust account to dip below the required amount by paying personal bills with client funds.

In mitigation, he has no record of discipline since his 1973 admission to the bar, he was engaged in a bitter divorce and child custody battle at the time of the misconduct, and he was using illegal drugs. He voluntarily sought treatment and currently undergoes therapy.