California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - OCTOBER 2001
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - November 2001
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News / News Briefs
Applicants sought to oversee bar's diversion program
Let's have another cup of - legal advice
Foundation leads students to capital
Six honored for professional service
Warwick, six others named to California Judicial Council
Several thousand lawyers suspended for failing to pay dues, certify MCLE
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Trials Digest
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Opinion
From the President - Remembering the fallen
The rule of law is our strongest weapon
Pro bono work is lawyers' duty
Letters to the Editor
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Law Practice - Success: The top eight requirements
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You Need to Know
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MCLE Self-Study
Planning for education expenses
Self-Assessment Test
MCLE Calendar of Events
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Discipline
Ethics Byte - Lawyers move on in usual way despite disaster
Former city councilman spent his son's settlement
Attorney Discipline
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Public Comment

DISCIPLINE

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CAUTION!
More than 174,000 attorneys are eligible to practice law in California. Many attorneys share the same names. All discipline reports are taken from State Bar Court documents and should be read carefully for names, ages, addresses and bar numbers.
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DISBARMENTS

MICHAEL FRANCIS CLARKE [#93638], 50, of West Hollywood was disbarred July 20, 2001, and ordered to comply with rule 955 of the California Rules of Court.

Clarke was summarily disbarred following 1997 felony convictions of mail fraud and failure to file a tax return.

He allowed a non-attorney to use his name and bar membership number to obtain personal injury recoveries for clients and claims he had never seen.

He had been on interim suspension since July 23, 1998. Clarke had no prior record of discipline.

Clarke had challenged the disbarment, asking the court to examine the totality of the facts surrounding his conviction. He said he agreed to the plea bargain only because it "brought an acceptable measure of closure to a potentially devastating criminal case" and he did not realize the plea would lead to summary disbarment. His case was denied review by the Supreme Court.

DUNCAN THOMAS MORAN [#157560], 36, of Santa Monica was disbarred July 20, 2001, and ordered to comply with rule 955.

Moran was summarily disbarred following 1999 convictions of assault with a deadly weapon, evading a police officer, two counts of possessing a controlled substance, two counts of narcotics possession, driving under the influence with a prior conviction and driving with a blood-alcohol level exceeding .08 percent. He pleaded no contest to the charges and was sentenced to three years' imprisonment and ordered to participate in a one-year substance abuse treatment program. He currently is working at a minimum security fire camp.

The bar placed Moran on interim suspension following the convictions.

On Dec. 29, 1998, Moran led Santa Monica police officers on a chase and attempted to run over one of them. Around 4 a.m., three police officers saw Moran driving a Toyota Tercel which had two flat tires; he was swerving and failing to heed posted signs. At least one officer attempted to pull the car over, but Moran did not stop.

He eventually lost control of the car, which struck a curb and landed on a corner of the sidewalk. He backed the Tercel away from the patrol car and drove away. Shortly thereafter, the car struck some logs. Moran was arrested and a search of his car turned up alcohol containers and more than one type of prescription medication.

Medical records showed Moran was suffering from an undiagnosed bipolar disorder at the time and had previously been diagnosed an alcoholic. The criminal court ordered him into a residential treatment program after his arrest.

Moran has a history of drunken driving that began in his teens. His first charge, at 17, was dismissed. But he was convicted of DUI about a year later. In 1984, he received another DUI after a collision that resulted in a death. In 1996, he had another series of drug-related arrests, one of which involved a high-speed pursuit.

Moran was disciplined twice since his admission to the bar in 1992. He received two years of probation and a 60-day actual suspension in 1997 after he stipulated to misconduct in six client matters, most of them personal injury cases he accepted on a contingency fee basis. He failed to perform legal services competently, communicate with clients or promptly pay settlement funds. He also improperly withdrew from employment. Also in 1997, Moran was suspended for failing to pay bar dues.

KENNETH DAVID BUCKWALTER [#50213], 54, of Auburn was disbarred July 22, 2001, and ordered to comply with rule 955.

Buckwalter did not appear at the disbarment hearing. The disbarment was the result of his failure to comply with terms of an earlier discipline and misconduct in a 1998 client matter.

He was retained for $3,000 to represent a couple in clearing title to property willed to them. He filed a complaint for partition of the property, but the dispute could not be resolved because of an error in the property's description. He promised to correct it, but didn't. The clients then got no response to their inquiries. The couple terminated his employment and asked for the return of their file. Buckwalter returned it more than two months later.

The bar court found Buckwalter failed to perform competent legal services, promptly return a file after termination or communicate with the clients.

After he was disciplined in September 2000, he failed to submit quarterly and final probation reports. The discipline originated from a 1997 suspension after Buckwalter failed to perform legal services competently, entered into a business transaction with a client without obtaining the required written consent and knowingly acquired a pecuniary interest adverse to his client without providing the required written notice or obtaining the required written consent.

In 2000, Buckwalter was again suspended after he failed to provide adequate notice of the 1997 suspension to opposing counsel or the court in an El Dorado County case; the notice he sent was dated properly but not mailed until three weeks after the deadline. He filed an affidavit with the State Bar Court, stating he had complied with rule 955. While suspended, Buckwalter made two court appearances in connection with the El Dorado case and entered into an agreement on behalf of his client.

Aggravating factors include Buckwalter's record of discipline, multiple acts of wrongdoing and failure to participate in the bar's proceedings.

SUSPENSIONS/PROBATION

HOWARD C. KNADLER [#85063], 49, of Colfax was suspended for four years, stayed, and actually suspended for two years and until the State Bar Court grants a motion to terminate the suspension and he proves his rehabilitation. The order took effect June 6, 2001.

In a default proceeding, the bar court found that Knadler failed to properly maintain his client trust account or hold client funds in a trust account. He wrote 17 checks against insufficient funds over a three-month period.

In addition, the court found he commingled personal and client funds by writing 10 checks on the trust account for personal and business expenses unrelated to any client, including payments to a paralegal for office expenses and body work on his car. He also made 56 deposits totalling more than $29,000 into the account. The money came from personal, family and non-client related business sources, including his mother, his general account and the sale of his crops.

Knadler has two prior disciplines, the first for misusing his client trust account by writing bad checks and checks for personal and non-client business, the second for failing to comply with probation conditions attached to the earlier discipline.

MICHAEL LEIGH REAGAN [#82583], 58, of Westminster was suspended for five years, stayed, placed on five years of probation with an actual three-year suspension and was ordered to prove his rehabilitation, make restitution, take the MPRE and comply with rule 955. The order took effect June 9, 2001.

Reagan stipulated to 11 acts of misconduct in five separate cases.

In a personal injury case, Reagan failed to pay his client's medical provider, allowed the balance in his client trust account to fall below the required amount on 10 different dates, and misappropriated almost $3,000 from his client, an act of moral turpitude.

In a second personal injury matter, Reagan wrote checks to his client's doctors, but they were returned because the doctors had not agreed to reduce their bills. He never resolved the dispute or  paid medical liens owed by his client. The balance in his client trust account fell below the required amount six times and Reagan misappropriated client funds, an act of moral turpitude.

He failed to perform legal services competently or keep another client informed about developments in her case. Although he filed a complaint in court, he did not serve the defendant with either the summons or the complaint and he took no further action. When the defendant moved to dismiss, he did not appear at the hearing.

His client learned of the hearing independently and appeared unrepresented. Reagan did not respond to her inquiries, so she hired new counsel.

Despite more than 15 calls from another client about his share of a settlement, Reagan did not pay the man his funds, instead offering a variety of excuses for not going to the bank or mailing a check. He misappropriated more than $6,000 from the client.

Reagan also practiced law while suspended for non-payment of bar dues. When his law firm fired him, he had 12 active cases. He did not pay another client his share of a settlement that was deposited in Reagan's trust account.

In mitigation, Reagan has no prior record of discipline.

He submitted a statement to the bar court indicating he suffered a serious illness in the 1980s (a blood clot in his brain). When he returned to work, he began to drink and ultimately suffered from severe depression. He has controlled those problems and takes medication to deal with medical problems stemming from the blood clot.

MICHAEL ANTHONY RODRIGUEZ [#153962], 35, of Chicago was suspended for six months, stayed, placed on two years of probation with an actual 30-day suspension, and was ordered to take the MPRE within one year. The order took effect June 9, 2001.

Rodriguez' problems resulted from his arrangement with Montana Financial, a paralegal company that marketed its services primarily to low-income Spanish-speaking individuals. Rodriguez reviewed bankruptcy petitions prepared by Montana, signed the petitions as attorney for the clients and appeared at the creditor's hearing, all for a $100 per client fee. He never received any money directly from clients, never met any clients and never went to Montana's offices.

Rodriguez was paid for only 10 court appearances. After he terminated his relationship with Montana, he learned the firm continued to use fee agreement forms bearing his name and purported signature.

Rodriguez stipulated that he failed to provide competent legal services in three separate matters.

In one matter, he did not review a client's bankruptcy petition before it was filed, didn't provide legal assistance and failed to appear at three hearings. The only debt - delinquent child support payments - was non-dischargeable, but Rodriguez did not inform his client.

He didn't consult with clients in another bankruptcy proceeding, which was not warranted due to the small amount of debt to be discharged. The petition also contained incorrect information.

Another client paid Montana $4,000 in fees which he charged to his credit card. He then incorrectly listed the fees as a dischargeable debt; Rodriguez did not delete the listing on the petition, nor did he explain that listing the fee could be considered fraudulent. He signed a petition stating he had explained the various types of bankruptcy proceedings and available relief to his clients when in fact he did not do so.

In mitigation, Rodriguez cooperated with the bar's investigation, he has a record of providing pro bono services, and he submitted letters attesting to his good character.

ERIC TARANKOW [#101427], 52, of Los Angeles was suspended for one year, stayed, placed on two years of probation and was ordered to take the MPRE within one year. The order took effect June 9, 2001.

Tarankow stipulated to one count of failing to obey a court order.

He did not appear at two hearings in an immigration matter. He tried to withdraw as his client's attorney two days before the first hearing, but the judge ordered him to appear, warning that failure to do so would result in a complaint to the State Bar.

When Tarankow did not show up, the judge continued the hearing to another date, but Tarankow failed to appear then as well.

He also was disciplined in 1996 for failure to perform legal services competently, deposit client funds in a trust account or promptly pay out client funds.

In mitigation, he cooperated with the bar's investigation and took steps to demonstrate remorse.

CHRISTOPHER M. VACARRO [#123775], 42, of Newport Beach was suspended for one year, stayed, actually suspended for 60 days and until the State Bar Court grants a motion to terminate the suspension, and was ordered to take the MPRE. If the actual suspension exceeds two years, Vacarro must prove his rehabilitation. If it exceeds 90 days, he must comply with rule 955. The order took effect June 9, 2001.

Vacarro has three convictions for driving under the influence, the last in 1998. His blood alcohol level was .29 and he was driving on a suspended license.

He also was convicted in 1996 and 1993.

The bar court found that his misconduct warranted discipline but did not amount to moral turpitude.

JAY CURTIS COX [#147858], 39, of Boise, Idaho, was suspended for two years, stayed, placed on three years of probation with an actual one-year suspension and was ordered to prove his rehabilitation and take the MPRE. Credit toward the actual suspension will be given for an interim suspension which began Aug. 14, 2000. The order took effect June 14, 2001.

Cox stipulated to four counts of misconduct in three cases, each a criminal conviction in 1999.

He pleaded guilty twice to possession of methamphetamine, as well as alcohol-related reckless driving and driving with a suspended license.

Cox has been placed on interim suspension twice, with orders to comply with rule 955. He submitted one affidavit late and the other was on time.

In mitigation, he has no other discipline, acknowledges his wrongdoing and has the support of his current employer and former colleagues in efforts to turn his life around.

CHARLES B. DINSMORE [#87112], 53, of Haverton, Pa., was suspended for one year, stayed, placed on two years of probation with a 90-day actual suspension, and was ordered to take the MPRE within a year and comply with rule 955. The order took effect June 14, 2001.

Dinsmore stipulated to 10 counts of misconduct in three matters in New Jersey, where he was suspended by the Supreme Court.

He failed to perform any legal services for a client charged with disorderly conduct or return a $500 advance fee until a fee arbitration complaint. He also improperly withdrew from employment and failed to cooperate with the bar's investigation.

He settled a personal injury case for $20,000, but did not pay his client's medical bills or refund the balance of the funds to the client, nor did he cooperate with the investigation.

Following an audit by the New Jersey office of attorney ethics, Dinsmore was charged with misappropriating client funds and conduct involving dishonesty and deceit. That investigation is still pending and Dinsmore is contesting the charges.

In the third case, he did not file a bankruptcy petition promptly, and when it was filed it was deficient and required another filing. Dinsmore's check for the filing fee was returned for insufficient funds, causing dismissal of the bankruptcy petition.

The California bar court found that Dinsmore's actions in New Jersey warrant the imposition of discipline in California.

In mitigation, he has no prior record of discipline, demonstrated his remorse and suffered from emotional or physical difficulties at the time of the misconduct.

ELVA GONZALEZ-FUNES [#128177], 44, of Miami was suspended for one year, stayed, and was placed on two years of probation with a nine-month actual suspension and until she makes restitution and presents a physician's opinion that she is fit to practice law. She also was ordered to take the MPRE and comply with rule 955. If the actual suspension exceeds two years, she must prove her rehabilitation. The order took effect June 14, 2001.

Gonzalez-Funes stipulated to three counts of misconduct in three consolidated cases.

In the first, she wrote nine checks totaling $21,000 against insufficient funds in her client trust account.

In the second matter, she settled a personal injury case and informed her clients they each would receive $1,185 from the settlement. Through inadvertence, checks totaling $6,670 were never deposited in Gonzalez-Funes' trust account. Nonetheless, she wrote four checks totaling that amount.

Two of the checks, one for a doctor and the other Gonzalez-Funes' fee, were endorsed over to another party for cash. The other two, for the clients, were less than the amount they were promised and they refused to accept them.

Gonzalez-Funes stipulated that she failed to ensure the drafts were deposited in a client trust account and failed to adequately supervise the payment of client funds.

After settling another personal injury matter, she was to keep $2,500 in her client trust account to pay medical providers, but allowed the balance to fall below that amount. Despite the client's requests, Gonzalez-Funes did not provide him with his file or with a copy of any check disbursing funds to the doctors.

Instead, she told the client the doctors had been paid. As in the previous case, two checks written to medical providers were endorsed over to another party for cash. Gonzalez-Funes also told the client he had to pay $50 for his file.

She stipulated that she did not maintain settlement funds in a trust account and did not adequately oversee the payment of those funds to lienholders.

In mitigation, Gonzalez-Funes suffered extreme physical disabilities, making her unable to attend to the daily requirements of her practice. She eventually closed her practice and moved out of state.

WILLIAM JOHN HOUSER JR. [#141329], 55, of Reseda was suspended for six months, stayed, and placed on two years of probation. The order took effect June 14, 2001.

Houser pleaded no contest in 1999 to corporal injury to a spouse or cohabitant. He was arrested after police were summoned to his home and witnessed him grabbing the victim and shaking her violently as her head hit the floor. The victim was treated for bruises to her back, arms and head.

Houser later violated his probation by attempting to contact the victim in violation of a restraining order.

In mitigation, he had an alcohol problem and enrolled in a domestic violence program.

Houser also was disciplined in 1998 for failing twice to pay sanctions. The first was for filing a frivolous appeal from a judgment of dismissal and the second was for filing a frivolous appeal from a sanction order for prosecuting a frivolous lawsuit.

TRACY LYNN STEWART [#92958], 63, of Torrance was suspended for six months, stayed, placed on three years of probation with an actual 30-day suspension and was ordered to make restitution. The order took effect June 14, 2001.

In one matter, Stewart stipulated that she failed to perform legal services competently, inform the client of significant developments or refund unearned fees.

She substituted in as counsel in an appeal from a criminal conviction. The appeal was dismissed due to failure to file an opening brief, but the court later issued an order to extend the time; the opening brief was due 30 days later.

Another dismissal was issued; again it was vacated when the court granted Stewart's motion for a time extension. The opening brief was not signed and the appeal was dismissed again. The client learned of the dismissal by calling the court.

Stewart then told the client she would file a petition for a writ of habeus corpus, but failed to do so.

The appeal ultimately was reinstated by the California Appellate Project, which was unsuccessful in contacting Stewart about the case. The client won a small claims judgment for the $5,000 fee, but Stewart did not refund the money.

In another case, Stewart did not comply with probation conditions attached to a 1999 stipulation she reached with the bar as a result of misconduct in 12 consolidated cases. She did not file three quarterly reports, a mental health report or a law office management plan on time, and did not file two statements by a treating psychiatrist or psychologist. She acknowledged receiving no psychotherapy during a five-month period.

She has three prior disciplines: a 1996 private reproval for failure to perform competently, return client files, refund unearned fees or cooperate with the bar's investigation; a 1998 suspension for failing to comply with probation conditions attached to the reproval and for a conviction for driving with a suspended license; and another suspension the following year for misconduct in 11 consolidated matters, including failure to perform, return client files or communicate with clients and improperly withdrawing from representation.

In mitigation, Stewart is receiving treatment for emotional or physical problems, was under severe financial stress and cooperated with the bar's investigation.

DAVID J. CASTENHOLZ [#130687], 47, of Huntington Beach was suspended for two years, stayed, and placed on two years of probation with a 60-day actual suspension. He also was ordered to take the MPRE within one year. The order took effect July 1, 2001.

Castenholz stipulated to failing to supervise an authorized signatory on his client trust and general accounts, but he was granted leniency because the resulting troubles were not caused by him, but by those he worked with as a contractor.

In August 1993, Castenholz moved into a Los Angeles office suite shared by several attorneys. He began working with another attorney there on a contract basis, handling some litigation work. Castenholz made numerous court appearances for the other attorney and prepared pleadings for him. The attorney later asked Castenholz to take on all his litigation work and to become a signatory on accounts to assist with settlements.

Castenholz opened the client trust accounts and authorized the attorney's office administrator as an additional signatory. He was unaware at the time that the accounts would be used improperly or that the attorney and his administrator were embroiled in a dispute.

The attorney moved out of the office on a weekend in early 1995, without notifying Castenholz, and took some of his files.

Castenholz later found that without his knowledge, proceeds from several of the attorney's non-litigation cases were deposited and withdrawn from the litigation accounts. He also learned the administrator was taking on cases using his name. In response, Castenholz closed the accounts.

There were six cases in all. In one 1994 personal injury matter, the administrator forged the names of Castenholz and the client to approve a settlement and then intercepted the $11,000 check. The funds were not returned to the client  until 1996. In another case, the administrator solicited two clients to employ Cas-tenholz, without his knowledge.

Since that time, Castenholz has spent considerable time and money in an effort to remedy the problems. Before working with the other attorney, he had a small and thriving practice.

Castenholz failed to keep a ledger for each client or maintain bank statements and canceled checks.

Castenholz admitted he was "incredibly naive, used poor judgment" in opening the accounts and was negligent in failing to supervise them. He had practiced law for almost eight years without incident. He was unknowingly used by the office administrator in his battle against the other attorney. He noted that had he paid closer attention to trust account activity, he might have discovered the fraudulent acts sooner.

Because his conduct did not involve dishonesty or greed on his part, the bar recommended less severe discipline. Castenholz gained nothing from the fraud and lost time and money trying to investigate the situation. He spent nearly $30,000 of his own money, and his marriage ended in a separation.

Since extricating himself from involvement with the attorney and administrator, his handling of cases has been impeccable.

He had no prior record of discipline and has been actively involved in charity work with Global Partners for Develop-ment, a nonprofit which supports and funds development in Kenya, Tanzania and Uganda. He served as president of the organization for five years, has been its general counsel since 1986 and is now a director of the organization.

MICHAEL HENRY CLEPPER [#30863], 66, of Riverside was suspended for three years, stayed, placed on probation for two years with a 60-day actual suspension, and was ordered to take the MPRE within one year and prove his rehabilitation and fitness to practice. The order took effect July 1, 2001.

Clepper stipulated to failing to perform competently, return unearned fees, release files, respond to client inquiries or cooperate with the bar's investigation.

In 1990, an Alaska resident hired Clepper to register a divorce judgment, paying him $1,500 in advance fees. For nearly six years, Clepper failed to respond to the client, who finally demanded the return of her fees and file. Clepper, in turn, sent her a bill for $1,334.25

In another case, he took $3,500 in advance fees to handle a divorce in 1998, then did little more than send a letter or two to the opposing party and conduct one telephone conference, a $793 value. The client demanded her money back, but Clepper did not repay the rest of the fees until he was under pressure by a State Bar investigation. In the third case, he substituted as attorney in a family law case, then did not return calls related to a child support matter in which payments were increasingly in arrears.

Clepper showed a pattern of misconduct and has a prior record of discipline. In 1990, he received two years of probation for improperly withdrawing from employment, failing to perform and failing to return unearned fees.

In mitigation, in 40 years of practice, he was disciplined just once, a decade ago. He served as a judge advocate for the U.S. Air Force and has received honors and awards for his services as an attorney.

RODNEY JAMES ESPINOZA [#117657], 45, of Covina was suspended for one year, stayed, actually suspended for six months and until the State Bar Court grants a motion to terminate the suspension, and was ordered to comply with rule 955. The order took effect July 1, 2001.

In a default proceeding, the bar court found Espinoza failed to comply with conditions of his probation. He did not file quarterly reports and failed to take the MPRE.

In 1997, he was disciplined for failing to maintain legal and just actions or report and pay judicial sanctions.

In violating his probation, Espinoza showed indifference to rectifying or atoning his misconduct. His failure to participate in the proceeding also was cited as an aggravating factor.

KENNETH DALE FAIR [#87535], 55, of Anaheim was suspended for one year, stayed, placed on probation for two years and was ordered to make restitution. The order took effect July 1, 2001.

Fair stipulated to incompetent performance, failure to inform a client of significant developments and improper withdrawal from employment in a workers' compensation case in 1994 and 1995. After taking over the case from another attorney, he was late with discovery responses. He did not reply to the opposing counsel's request to provide the responses and failed to appear at a hearing at which sanctions of $678 were imposed. Fair was ordered at the hearing to respond to discovery.

He did not comply with the court's order by the deadline. Opposing counsel again wrote to Fair, enclosing a copy of the court order, but got no response. A motion to dismiss the case was filed; Fair did not oppose the motion or appear at the hearing. A judgment was entered against Fair's client.

Fair did not inform his client of any of the case's problems. He abandoned prosecution of the case and allowed it to be dismissed with prejudice.

Fair has a prior record of discipline. He stipulated to 15 counts of misconduct in 10 consolidated cases in 1998. The misconduct entailed the unauthorized practice of law, failure to perform legal services competently, communicate with clients, refund fees, return client files, comply with the probation requirements of an earlier discipline or cooperate with the bar's investigation, and improperly withdrawing from representation.

Fair also was disciplined in 1995 for misconduct in five client matters, including failing to perform legal services competently, pay out client funds, communicate with clients or cooperate with bar investigations and for improperly withdrawing from employment.

STEVEN E. McNICHOLS [#151934], 62, of San Francisco was suspended for 90 days, stayed, placed on four years of probation and was ordered to take the MPRE within one year and pay $5,000 in restitution. The order took effect July 1, 2001.

McNichols stipulated to misconduct in two cases. In 1994, he failed to promptly comply with reasonable requests for information made by a client.

The client retained McNichols in August 1994 to pursue administrative mandamus; between March and August 1995, the client inquired about the petition and was told by McNichols that he was awaiting a hearing date. In September, the client requested that McNichols obtain a hearing date because he wanted to retire. He also asked for a written accounting of the attorney's time. McNichols instead telephoned the client, then filed the petition in October. He provided an accounting the following summer, then failed to respond to a request for a status report in 1997.

In August 1997, McNichols agreed to refund the client's $5,000 if he did not prevail in court. The client filed a complaint with the State Bar the following year. McNichols did not take further action on behalf of the client and he did not refund the fees.

In 1999, he represented a couple in the woman's employment matter; the couple discharged McNichols about a week later and requested a return of a $5,000 fee. McNichols agreed to return the fee but was financially unable to do so.

In mitigation, McNichols had no prior record of discipline in many years of practice. He cooperated with the bar's investigation, showed remorse and acted in good faith. He suffered from generalized anxiety disorder, a stress-related condition, and has sought care. McNichols has virtually stopped practicing law, except for monitoring two appellate cases, has filed a disability claim and is now living in Mexico, where he hopes to pursue a career as a writer. Effective Sept. 22, 2000, he voluntarily enrolled as an inactive member of the California bar. 

MICHAEL THOMAS MORRISSEY [#62195], 52, of San Jose was suspended for two years, stayed, placed on probation for two years with a 45-day actual suspension, and was ordered to prove his rehabilitation and fitness to practice. The order took effect July 1, 2001.

Morrissey stipulated to failing to comply with terms of probation imposed in 1998. He submitted proof of paying $1,000 in restitution to a client but failed to submit proof of paying interest due. He also did not submit proof of completing eight hours of MCLE, ordered as part of his probation, until January 2001.

The probation was imposed as part of an earlier discipline related to four consolidated cases.

In mitigation, he cooperated with the bar by agreeing to the discipline without a hearing. He had tried for 10 months to learn the terms and conditions of his probation but due to the 1997 veto of the bar's fee bill, the discipline system was virtually shut down and no one responded to his requests. He received the information in May 1999. Morrissey's transgression was failing to advise the bar of his compliance.

JAMES EDWARD NEWNHAM [#118711], 46, of San Bernardino was suspended for one year, stayed, placed on probation for two years and was ordered to take the MPRE within one year. The order took effect July 1, 2001.

Newnham stipulated to failing to perform competently, respond to client inquiries, inform a client of significant developments or cooperate with the bar's investigation. Newnham did not file any motions or requests for modification in a child support case, yet he charged the client an additional $500 fee. When the client requested an explanation for the extra charge, Newnham said he would contact the client but instead stopped returning the client's calls. The client sent a certified letter requesting the return of his file, but Newnham did not respond. He also did not return the client's unearned fees.

Newnham's actions significantly harmed the client and he was ordered to pay $1,000 in restitution. He has a prior record of discipline - a 1998 public reproval for failing to perform with competence.

HUEY PERCY SHEPARD [#31096], 65, of Inglewood was suspended for six months, stayed, placed on probation for two years and ordered to take the MPRE within one year. The order took effect July 1, 2001.

Shepard stipulated to using his client trust account for business and personal purposes. Between April 1997 and March 1999, he issued checks against insufficient funds on 11 occasions. On one 1998 date, he wrote a $700 check when the account was nearly $120 overdrawn.

All the checks were issued for personal or business purposes. Shepard has since stopped using his trust account in this manner and has hired a bookkeeper to maintain and balance the account.

In mitigation, Shepard did not cause harm to any clients, cooperated with the bar's investigation, showed remorse and has no prior record of discipline. He is a retired judge who has served as a judge and court commissioner for about 16 years.

ANDREW K. ALGER [#142838], 43, of Fair Oaks was suspended for two years, stayed, and actually suspended for six months and until he pays $2,500 in restitution and the State Bar Court grants a motion to terminate the actual suspension. He also was ordered to take the MPRE and comply with rule 955. The order took effect July 13, 2001.

In a default proceeding, the bar court found that Alger failed to perform services competently, inform clients of significant case developments and pay court sanctions; he also improperly withdrew from employment.

In the first of two cases, Alger in 1996 filed an answer and cross-complaint for clients in a Sacramento County civil suit; however, he did not provide the clients with court documents or inform them of some court appearances, including a settlement conference and a hearing on an order to show cause.

When the opposing party reneged on a $136,500 settlement agreement, Alger did not enforce the settlement, take the matter to trial or proceed with the case. He took no further action, and the clients hired new counsel in 1997.

In the second case, he filed a lawsuit for a client in March 1995 and communicated with her in the early phases of litigation, but thereafter failed to perform legal services. He did not respond to the opposing party's discovery requests and failed to appear four times, with one missed court date resulting in sanctions. He also did not inform the client of these events. At a June hearing, the case was dismissed and Alger received further sanctions for failing to appear and for failing to file required documents. He did not pay the sanctions.

The client made several attempts to contact Alger and learn the status of the case. He did not respond, nor did he inform her the case had been dismissed. The client was forced to pay $1,000 to settle the sanctions.

The bar court cited as aggravating factors Alger's multiple acts of wrongdoing and the significant harm caused by his misconduct. He was indifferent toward rectifying the situation and has yet to reimbuse the client for the sanctions. He did not cooperate with the bar's investigation.

Alger has a prior record of discipline. He was publicly reproved for failing to perform services competently in two client matters, failing to communicate with one client and failing to cooperate with the bar's investigation.

CONSUELO T. ANCOG [#178642], 44, of Huntington Beach was suspended for three years, stayed, placed on probation for three years with an actual one-year suspension and was ordered to pay $6,523 in restitution, take the MPRE and comply with rule 955. The order took effect July 13, 2001.

Ancog stipulated to misconduct in two consolidated cases. In the first, she failed to return unearned fees or respond to the bar's investigation.

Ancog was retained with $1,500 in advance fees in a 1998 divorce but the client terminated her about two months later and asked for a return of unearned fees. Ancog instead sent an invoice, claiming she had prepared papers, although they had not been filed. She agreed she owed the client $633, but the bar investigated when Ancog had not returned unearned fees by April 1999. She responded only after receiving three letters from the bar, but by August, she still had not provided a refund.

In the second case, Ancog was retained to collect a $21,343 judgment following a divorce. She again took $1,500 in advance fees. She collected the funds in October, but when she wrote a check from the client trust account the next month, the balance was only $13,274. It had fallen below the required amount on several dates since the judgment was collected.

Ancog paid the client $17,000 more in December, but has not paid the balance, which with additional money owed the client, totals $5,890. The client sent a letter demanding the money, which Ancog did not acknowledge, then retained another attorney to collect the money. Ancog did not respond to the attorney's attempts to communicate with her.

Aggravating factors included violating trust, causing harm to a client, indifference and failing to return money owed. In mitigation, Ancog paid the $17,000 in restitution on her own. She was suffering from difficulties in her personal life at the time of the misconduct. 

JON LOUIS AUGUST [#58801], 58, of Ann Arbor, Mich., was suspended for 30 days, stayed, placed on probation for one year and ordered to take the MPRE. The order took effect July 13, 2001.

August stipulated he violated terms of his 1998 probation when he failed to file a quarterly report, mental health reports or CPA reports due in July and September 2000.

The disciplinary action dates back to 1995. In 1998, he received a 90-day actual suspension and two years of probation as a result of a client trust account violation and four counts of violating probation.

The original case involved four matters in which August failed to release client property, properly handle client trust funds, maintain complete records, promptly pay funds a client was owed, deposit funds in a trust account, perform competent legal services and respond to inquiries.

MICHAEL P. FEDYNYSHYN [#123566], 43, of San Diego was suspended for 90 days, stayed, placed on probation for one year and ordered to take the MPRE. The order took effect July 13, 2001.

Fedynyshyn stipulated he failed to meet conditions of a September 1999 public reproval. He did not file a quarterly report, attend ethics school, take the MPRE and complete three hours of MCLE.

The disciplinary action dates back to 1997. In 1999, he failed to pay court sanctions or comply with conditions of a private reproval stemming from two consolidated cases.

The cases involved accepting employment adverse to a client without consent, failing to return unearned fees, respond to inquiries and cooperate with the bar's investigation. Fedynyshyn's actions showed a multiple pattern of misconduct.

ALAN WAYNE JOHNSON [#149396], 58, of Torrance was suspended for five years, stayed, and placed on probation for five years with a two-year actual suspension. He was ordered to pay $600 restitution and a total of $1,600 in sanctions, take six hours of MCLE, develop an office management plan, prove his fitness to practice and comply with rule 955. The order took effect July 13, 2001.

At the request of both Johnson and the bar's office of chief trial counsel, the matter was reviewed after a hearing judge's decision. The review department upheld the earlier judge's ruling in five consolidated cases, but rejected a dismissal of charges in the sixth case.

Bar court Judge Ronald Stovitz wrote that while he did not take issue with the hearing judge's dismissal of charges that Johnson failed to return unearned fees or proceed diligently, he disagreed that Johnson should be exonerated of charges of moral turpitude and failure to respond to inquiries. As a result, Stovitz recommended an increase in Johnson's punishment to include the two-year actual suspension.

In April 1996, Johnson was retained to prepare papers to set aside a default judgment in a credit dispute. The client gave him two declarations, but between April and August, Johnson did not return the client's many phone calls. After the State Bar intervened, he wrote to the client, enclosing motion papers he filed on her behalf and apologizing for his failure to communicate. Johnson had signed the client's name on a declaration, but did not file it in court or serve opposing counsel.

In another April 1996 case, Johnson failed to provide competent services, doing nothing for a client whose driver's license was suspended. He failed to communicate with the client for four months and did not return unearned fees.

A third misconduct case arose from an April 1996 matter in which Johnson performed incompetently by failing to file papers seeking visitation rights. When the client couldn't reach the attorney, he checked into the matter and learned nothing was filed. The client confronted Johnson, who conceded he had "dropped the ball." He told the client he could secure an October hearing date, but the client later learned the date had never been set. He terminated Johnson's employment.

Johnson failed to provide the client with an accounting, refused to return $500 in unearned fees, and made false statements about the status of the case. He also breached confidence when he told another person that the client was a convicted felon.  

Johnson represented a fourth client in two unlawful detainer actions. He did not file a response to a motion to compel, resulting in $600 in sanctions. He again failed to reply to discovery or pay the sanctions, resulting in the case's dismissal. The hearing judge found he failed to perform competently and did not adequately respond to inquiries from June 1995 to early 1997.

In another eviction case, Johnson failed to perform competently when he didn't show up at a hearing and two pretrial conferences and failed to oppose release of the client's rent deposit. His inaction resulted in the case's dismissal. He also failed to respond to inquiries or inform the client of hearing dates.

The sixth case arose from Johnson's failure to comply with a 1997 public reproval. He missed two restitution payments, later paying in full, failed to file two quarterly reports and did not take the MPRE by the deadline. The reproval stemmed from a 1995 case in which Johnson stipulated he failed to return an unearned fee.

Aggravating factors in the current matter include the prior discipline, multiple acts of wrongdoing and dishonesty, causing harm to clients and lack of candor in the bar court proceeding.

In mitigation, witnesses attested to Johnson's good character and competence as an attorney.

DAVID YOSHIO NAKAHARA [#80461], 50, of Las Vegas, Nev., was suspended for two years, stayed, placed on probation for three years with a five-month actual suspension and was ordered to comply with rule 955. The order took effect July 13, 2001.

Nakahara stipulated to misconduct in two consolidated cases, one of which stemmed from an earlier disciplinary matter. In 1995, he represented a family friend in a personal injury case. He deposited a $7,500 settlement into his general account rather than a client trust account. He then failed to maintain sufficient funds in his trust account to cover medical liens he agreed to pay on behalf of the client. He also commingled funds by depositing personal checks into the trust account.

The family friend did not complain about Nakahara to the State Bar; the bar learned the check to a medical provider had bounced.

After a 1998 case led to probation and a 45-day actual suspension, Nakahara failed to file three quarterly reports, violating his probation.

Nakahara was disciplined on two other occasions. In 1993, he received a private reproval with public disclosure for failing to perform competent legal services or communicate with a client. In 1995, he received a stayed suspension and one year of probation for failing to comply with conditions attached to the private reproval.

INTERIM SUSPENSION

DARICK WAYNE HOLT [#117879], 46, of Los Angeles was placed on interim suspension June 7, 2001, following a felony conviction of possessing a controlled substance. He was ordered to comply with rule 955.

MICHAEL PATRICK COMORRE [#56777], 53, of Anaheim was placed on interim suspension June 26, 2001, following a felony conviction of possessing an illegal assault weapon. He was ordered to comply with rule 955.

LESLIE LAYTON HARTWELL [#66139], 52, of Duarte was placed on interim suspension June 27, 2001, following a felony conviction of vandalism. He was ordered to comply with rule 955.

KENNETH A. WALTON [#192272], 33, of Sacramento was placed on interim suspension June 28, 2001, following felony convictions of federal mail fraud and fraud by wire, radio or television. He was ordered to comply with rule 955.

RICHARD SHELBURN PAUL [#90142], 56, of Newport Beach was placed on interim suspension July 7, 2001, following a felony conviction of making a death threat. He was ordered to comply with rule 955.

GABRIEL SCOTT GANOR [#189905], 33, of Venice was placed on interim suspension July 12, 2001, following a felony conviction of bringing a controlled substance or drug paraphernalia into a correctional facility. He was ordered to comply with rule 955.

RESIGNATION/CHARGES PENDING

JEFFREY JOSEPH HEGBERG [#189105], 32, of Palm Desert (May 19, 2001)

TIMOTHY PAUL MILLER [#108480], 34, of Riverside (May 19, 2001)

ANGELA F. WALLACE [#134188], 40, of Beverly Hills (May 19, 2001)

BARBARA A. JENSEN [#170330], 50, of Indio (June 3, 2001)

CHANCE XCALIBER OBERSTEIN [#152557], 43, of Costa Mesa (June 3, 2001)