California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - AUGUST 1998
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DISCIPLINE

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CAUTION!
More than 162,180 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
KIRSTEN BETH ANDERSON [#140011], 43, of San Jose was disbarred May 20, 1998, and ordered to comply with rule 955 of the California Rules of Court.

Anderson was disbarred following her failure to comply with rule 955, a requirement of a February 1997 suspension order. That order was the result of her failure to comply with requirements of a 1995 public reproval.

The public reproval was based on misconduct in three separate client matters, as well as failure to cooperate with the State Bar and maintain an accurate address since 1993.

“[Anderson] has not participated in these disciplinary proceedings, which raises a grave concern that she has no regard whatsoever for her professional obligation,” wrote the bar court judge.

JEANNE E. GREENAWALT [#129240], 54, of Los Altos was disbarred May 20, 1998, and ordered to comply with rule 955.

Greenawalt was found culpable of 16 counts of misconduct involving three client matters. She also neglected to file quarterly probation reports, as required by a 1996 discipline order. In addition, she moved from her office and left no forwarding address for her clients or the bar’s membership department.

She did not answer the charges nor participate in disciplinary proceedings, resulting in the entry of default.

The court found that one client lost any chance to recover in a personal injury matter because of Greenawalt’s misconduct and the expiration of the statute of limitations on her claim.

In addition, she did not forward another client’s portion of her settlement funds and she failed to return another’s unearned fees.

Because Greenawalt disappeared, abused her trust with three clients, misappropriated trust funds from a previous client and did not comply with terms of her probation, the court found disbarment warranted.

“Under these circumstances, the court cannot assure the public or the profession that [Greenawalt] is able to conform her behavior to that expected of attorneys in California . . . . The risk that she will engage in additional misconduct is sufficiently high to warrant her disbarment,” wrote the bar court’s judge.

BEN DARWIN HYDE [#134972], 40, of San Diego was disbarred May 20, 1998, and ordered to comply with rule 955.

Hyde was disbarred following his failure to comply with rule 955, a requirement of a May 1997 discipline order.

His disbarment stems from a July 1996 suspension after he was found culpable of misrepresentation and failing to perform legal services, communicate with his client and another attorney, and cooperate with the bar’s investigation.

His probation was revoked after he violated certain conditions: he failed to provide an accounting of advanced fees to two clients and submit proof to the bar.

Hyde did not participate in the disbarment proceedings and the court found he was either unwilling or unable to comply with his professional obligations and rules of conduct imposed on lawyers.

MICHAEL MONROE KIMBROUGH [#129110], 37, of Banning was disbarred May 20, 1998, and ordered to comply with rule 955.

Kimbrough was found culpable of misconduct in two client matters. In addition, he neglected to meet any conditions of a 1995 suspension order, including restitution to four former clients.

Among other things, in a client matter involving a foreclosure, Kimbrough failed to competently perform legal services. In a collection matter, he again failed to competently perform legal services, respond to a client’s reasonable case status inquiries, return unearned fees and respond to the bar’s investigation.

Although the bar’s office of trial counsel recommended a two-year actual suspension, the hearing department judge wrote that Kimbrough “has shown himself to be unable or unwilling to comply with the conditions of the probation already imposed.”

In addition, Kimbrough’s failure to cooperate with the bar’s investigation or participate in disbarment hearings were seen to show a lack of respect for disciplinary proceedings.

CESAR ENRIQUE TREVINO [#153117], 37, of San Diego was disbarred May 20, 1998, and ordered to comply with rule 955.

Trevino failed to file affidavits of compliance with rule 955 as ordered in May and October 1996.

His prior record of discipline was considered an aggravating factor. In August 1996, Trevino was privately reproved after he vouched for his client in a bail hearing. Despite knowing that her departure from the jurisdiction was a violation of her bond conditions, he took his client to Las Vegas in order to marry her.

On a second occasion, Trevino boarded a plane with the former client, knowing that the contemplated departure was a violation of her bond.

In May 1996, Trevino received a 90-day actual suspension for misconduct which included his failure to comply with conditions attached to the private reproval. He also failed to keep his membership records current with the State Bar.

In October 1996, Trevino received a one-year suspension for failing to file a satisfaction of judgment as ordered by the municipal court.

The bar court found that since Trevino defaulted in the disbarment proceedings, no mitigating or extenuating factors were presented or found.

“It would undermine the integrity of the discipline system and damage public confidence in the legal profession if [Trevino] were not disbarred for his unexplained and wilful disobedience of two Supreme Court orders,” wrote the bar court judge.

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SUSPENSIONS/PROBATION
LEE R. ALBERT [#84921], 47, of Riverside was suspended for six months, stayed, and placed on probation for one year, effective April 29, 1998.

In a wrongful termination matter, Albert failed to oppose a defendant’s motion for summary judgment or appear at a hearing.

In aggravation, Albert has a prior record of discipline. He received a 90-day actual suspension in 1994 for misconduct which included failure to perform legal services competently and respond to a client’s case status inquiries.

In mitigation, Albert suffered from emotional and family difficulties during the period of his misconduct due to his mother’s death and conflicts with family members regarding her decision to remain on life support. In addition, two longtime family pets, a cat and a dog, died a few weeks before his mother.

DOUGLASS EDWARD HUBERT [#32173], 61, of Monterey was suspended for two years, stayed, and placed on probation for three years with conditions including 90 days of actual suspension and a requirement that he make restitution. He was ordered to pass the MPRE and comply with rule 955. The order took effect April 29, 1998.

In this decision, Hubert was found culpable of seven counts of misconduct involving one client matter.

He abandoned a client, and failed to communicate, return unearned fees and the client’s file, cooperate with the bar’s investigation and keep his bar membership records current.

In 1995, Hubert was employed by a client for representation in a divorce matter. A critical part of the case was defending an attempt by the client’s former spouse to have the jurisdiction of child support proceedings transferred from Monterey to Baltimore.

When the client’s current wife called Hubert a few months later to check on the status of the case, he had no recollection of it.

The client, who was in the military, discovered a few months later that Hubert’s phone had been changed to an unlisted number and he had moved with no forwarding address.

In addition, he investigated his court records and found that Hubert had not filed anything in connection with his case.

In mitigation, Hubert has been in practice for 34 years with no prior record of discipline.

Hubert’s failure to participate in discipline proceedings prior to the entry of default was considered an aggravating factor. His inaction resulted in some harm to the client, and his disappearance and failure to return unearned fees to the client also were seen as aggravating factors.

Although the office of the bar’s trial counsel had not included restitution of $1,200 in unearned fees, the hearing department judge included it as a condition of probation.

WILLIAM NESH [#82507], 47, of Toluca Lake was suspended for six months, stayed, and placed on probation for three years, including a 30-day actual suspension, effective April 29, 1998. He was ordered to pass the MPRE.

In four client matters, Nesh stipulated to failure to maintain settlement funds in his client trust account, promptly pay medical liens, notify a client of his receipt of settlement funds, promptly release a client’s file, and promptly pay client funds. He also represented clients with adverse interests and loaned money to clients without a written promise to repay.

In one case, Nesh was employed by a couple to represent them in a personal injury matter. A lawyer in Nesh’s office settled the matter for $28,000 and the couple claimed they were told they would receive $10,000 as their portion.

However, Nesh’s office informed the couple they would receive $974.50 as their share if the medical liens were paid in full. The couple refused to accept the offer and Nesh then offered to send them a check for $6,500. The couple again refused, but Nesh sent the check anyway, with a notation that it was a “full and final settlement.”

The couple employed another attorney who told Nesh the check would not be cashed unless he acknowledged that it would not preclude them from seeking additional funds from him.

Nesh refused and the couple initiated an arbitration hearing. The couple was awarded $9,039.70, plus interest, which Nesh honored.

In aggravation, Nesh has a prior record of misconduct, a public reproval in 1995. In addition, his current misconduct involved multiple acts of wrongdoing.

In mitigation, Nesh was candid and cooperated with the bar’s investigation, and he acted in good faith.

AUSTIN A. DITTER JR. [#50407], 56, of Citrus Heights was suspended for two years, stayed, and placed on probation for two years on the condition that he is actually suspended for 60 days and until he makes restitution, effective May 2, 1998.

If he is actually suspended for two years or more, he will remain suspended until he has shown proof of his rehabilitation. He was ordered to pass the MPRE and comply with rule 955.

In this default decision, Ditter was found culpable of eight counts of misconduct involving one client who hired him to pursue an appeal of a case she lost in superior court.

Ditter failed to perform legal services competently, communicate, return unearned fees, cooperate with the bar’s investigation and change his membership records address. He also practiced law while suspended for nonpayment of fees.

In mitigation, Ditter had no prior record of discipline in his 15 years of practice.

Considered as an aggravating factor was Ditter’s failure to participate in disciplinary proceedings prior to entry of default, including his failure to answer the notice of charges. The court found there was some client harm and his failure to return $1,300 in unearned fees also was an aggravating factor.

ROGER VALDON CHASTAIN [#47573], 58, of Pearl, Miss., was suspended for two years, stayed, and placed on probation for two years with a 90-day actual suspension, effective May 8, 1998. He was ordered to pass the MPRE and comply with rule 955.

In 1994, Chastain was convicted of five misdemeanor counts of failure to pay federal income taxes from 1985-89. He was sentenced to four months in federal prison and ordered to pay back taxes amounting to $48,000 and a $50,000 fine.

Chastain began to have trouble paying taxes in 1982, but filed returns for many years until 1992. He kept in touch with the Internal Revenue Service and some years his taxes were eventually paid through a combination of liens and voluntary payments.

In 1993, Chastain settled a large case and bought a new car and some other large items. He also offered to settle his tax bill for about $20,000. “Apparently, considering this ‘too little, too late,’ the IRS declined to settle and referred the matter for criminal prosecution,” wrote the bar’s hearing judge.

Further investigation showed that Chastain had a substantial income during the years in question and took several vacations, including a trip to Europe. Through the years, he increasingly used his client trust account and cash to pay expenses, as the IRS had liens on his regular bank account and he could not obtain credit.

The bar determined that Chastain’s misconduct “is similar to that in cases involving criminal convictions for failure to file tax returns, although more extensive than the misconduct in the reported cases.”

Although the bar’s office of trial counsel recommended a six-month actual suspension, the hearing department did not agree that Chastain’s misconduct was worse than that of an attorney found guilty of failure to file returns. “This seems to the court less serious than the attorney-taxpayer who does not file returns at all, hoping to evade liability altogether,” said the decision.

However, the court ordered a 90-day actual suspension, “to convince [Chastain] of his absolute obligation to abide by tax laws.”

GREGORY J. DORST [#113922], 42, of Arcadia was suspended for two years, stayed, was placed on three years of probation with a one-year actual suspension and was ordered to take the MPRE. The order took effect May 8, 1998.

In a default decision, the State Bar Court found that Dorst recklessly failed to competently perform legal services and respond to a client’s reasonable case status inquiry, and that he committed an act of moral turpitude.

Dorst was employed by a client to represent him in a lawsuit in 1993. The client paid $10,000 in advanced attorneys’ fees with an agreement that an additional 35 percent contingency fee would be paid upon recovery from the defendant. There was no written fee agreement.

For more than two years, Dorst falsely told the client that he had filed the lawsuit, but ignored his requests for a copy of the suit. Repeated telephone calls also were not returned and, in February 1997, the client discovered Dorst’s phone was disconnected. The State Bar provided the client with Dorst’s new number, but again, he received no response.

The bar court’s hearing department considered the harm to Dorst’s client significant; his misrepresentation precluded the client from seeking other counsel. “Whether or not his cause of action was valid, [the client] lost his opportunity to have the matter heard in a court of law,” wrote the hearing judge.

Additional factors in aggravation included Dorst’s prior record of discipline. In May 1997, in two consolidated cases, Dorst was disciplined for failing to communicate with two clients and properly represent one of the clients, resulting in the dismissal of a critical part of the client’s case.

Dorst failed to show remorse for his current misconduct by returning some or all of his unearned fees. Due to the sparse record and lack of allegation that Dorst failed to return unearned fees, Dorst was ordered to offer to arbitrate the matter with his client.

Dorst’s lack of participation in the discipline proceedings indicated a lack of respect for the proceedings and an opportunity to offer evidence in mitigation.

JOHN ROBERT PERRY [#147787], 45, of Carlsbad was suspended for five years, stayed, placed on six years of probation with a 42-month actual suspension and until he proves he has made restitution of more than $29,000 or reimbursed the Client Security Fund. The order took effect May 8, 1998.

Perry’s misconduct involved 19 matters and a multitude of client trust account violations.

His misconduct included failure to communicate with clients, maintain the required balance in his client trust account, pay medical liens, and communicate settlement offers and the receipt of funds to clients. He also commingled personal and client funds.

In aggravation, Perry’s misconduct involved multiple acts of wrongdoing and significantly harmed his clients when he failed to pay out settlement proceeds to clients and medical providers for as long as four years.

In mitigation, Perry was candid and cooperated with the bar’s investigation and has displayed a willingness to make restitution.

During the period of his misconduct, Perry experienced serious family problems. His wife unsuccessfully underwent several treatments for substance abuse, leaving him as the sole caregiver for his four young children.

His children experienced psychological problems due to their mother’s alcohol abuse and hospitalization. His wife then moved to Tennessee and persuaded Perry to close his office, pack up the children and join her.

However, when they arrived, she had disappeared. Meanwhile, the family home in Vista was burned by vandals and Perry experienced several delays in dealing with the insurance claim. In addition, his wife would not cooperate with the insurance company’s investigation of the claim.

During this period, Perry’s father died and he had to deal with his own sorrow, his mother’s depression and her declining health.

While he was relocating to Tennessee, his paralegal in his California law office disappeared. Her loss was an additional blow to his ability to communicate with and serve his remaining clients.

GINA S. BERRY [#155032], 33, of Ventura was suspended for one year, stayed, and placed on probation for two years with a 90-day actual suspension and a restitution requirement, effective May 14, 1998.

She was ordered to pass the MPRE and comply with rule 955.

Berry’s misconduct involved three separate clients and their parole hearings.

In one case, Berry was hired by a client for representation at his parole recision hearing.

The client’s hearing was held and his parole revoked, with a date set for a suitability hearing. Berry accepted additional fees to work on a writ of habeas corpus for her client, but she failed to file it.

She later promised to visit the client on a certain date, but failed to call or show up. The client’s wife wrote to Berry and requested a status update on her husband’s case, but she never received a response.

Berry then informed the client’s wife that she was moving to a law office in Simi Valley, but asked her to continue sending correspondence to her Oxnard address. She told the wife not to contact her at her new firm since she would be practicing in a different area of law.

Berry failed to respond to the wife’s letters and telephone calls asking for a case status update and informing her of the date of her husband’s suitability hearing. She failed to inform her client that she could not represent him at his parole suitability hearing and contacted the parole board regarding her withdrawal only a day before the hearing.

In addition, she neglected to keep the bar’s membership department apprised of her address change.

In aggravation, her misconduct involved multiple acts of wrongdoing.

In mitigation, she acted in good faith when she returned unearned fees to one client.

Her discipline-free prior record was not entitled to any weight in mitigation because she had practiced only a short time when the misconduct occurred.

The previously ordered probation of GERALD FINK [#34969], 63, of Los Angeles was extended for six months, effective May 14, 1998.

Fink failed to comply with conditions of a 1997 suspension order when he did not provide proof of psychiatric or psychological treatment during the required time period.

In aggravation, Fink has two prior instances of discipline on his record.

In mitigation, Fink was unable to continue paying for psychiatric treatment due to a marked decrease in income following his actual suspension. Through a friend, he was eventually able to obtain a referral to a licensed clinical social worker who provides treatment at a reduced rate.

ALAN J. SCHULTZ [#82726], 53, of Encino was suspended for five years, stayed, and placed on probation for seven years on the condition that he is actually suspended for four years and until he has provided proof of his fitness to practice. He was ordered to pass the MPRE and comply with rule 955. The order was effective May 14, 1998.

Schultz’ misconduct involved 14 client matters and included, among other things, numerous instances of failure to pay medical liens, accepting settlements without his clients’ approval, client trust fund violations and failure to perform legal services competently.

In one instance, Schultz filed a wrongful discharge complaint on behalf of a client, but did not provide a retainer agreement. After the client accepted a $240,000 settlement offer, she objected when Schultz told her he wanted half the proceeds. Schultz received and deposited the settlement check without the client’s knowledge.

Schultz issued the client a postdated check for $115,000 and asked her to check with him before she deposited the draft. Two months later she was told she could deposit the check, only to have it returned for insufficient funds.

When Schultz learned the check bounced, he issued his client a cashier’s check as a replacement and another check written on his client trust account for $10,000 to compensate her for the problems she had with the bounced check. However, the $10,000 check also bounced.

Schultz neglected to maintain the disputed portion of the client’s settlement funds in trust until an agreement had been reached. In addition, when the client requested a breakdown of the funds, Schultz failed to respond.

In aggravation, Schultz’ misconduct involved multiple acts of wrongdoing, concealment, deceit and numerous instances of misuse and mismanagement of his client trust account.

In mitigation, with the exception of one case, Schultz was candid and cooperated fully with the bar’s investigation. He has acknowledged his wrongdoing and demonstrated willingness to rectify the consequences of his misconduct.

Other factors taken into consideration for the purposes of determining appropriate discipline included his lack of a prior record of misconduct.

In addition, Schultz has been treated for a chemical dependency and attends meetings of Alcoholics Anonymous. During the period of his misconduct, Schultz was embroiled in embittered and protracted litigation regarding a personal business interest, which resulted in his neglect of clients and failure to supervise his law practice.

He has been especially diligent in promptly distributing entitled funds to his clients.

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INTERIM SUSPENSION
JONATHAN LOUIS SMALL [#94327], 45, of Los Angeles was placed on interim suspension May 7, 1998, following his conviction on one count of solicitation of insurance fraud and one count of committing the crime of capping. He was ordered to comply with rule 955.
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RESIGNATION/CHARGES PENDING
REYNALDO GARCIA GOMEZ [#148433], 34, of Hayward (May 8, 1998)
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SUSPENSION/FAILURE TO PASS PRE
RICHARD MICHAEL CANTILLON [#27479], 70, of Riverside (April 16, 1998)

BRET G. CLAWSON [#141521], 39, of Murrieta (April 16, 1998)

ARTHUR FREDERICK SILBER [#130768], 50, of Los Angeles (April 16, 1998)

JOHN M. BLACKBURN [#87393], 60, of Brighton, Colo. (May 6, 1998)

TOD A. DiTOMMASO [#130564], 36, of Beverly Hills (May 6, 1998)

MATTHEW CHARLES LONG [#55857], 65, of Los Angeles (May 6, 1998)

GEORGE H. McNEAL JR. [#42987], 57, of Los Angeles (May 6, 1998)

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PUBLIC REPROVAL
VINCENT C. MILANI [#181543], 28, of San Francisco (March 5, 1998)

JOHN OWEN STANSBURY [#43117], 56, of Oakland (March 7, 1998)

DONETIA R. MESHACK [#118044], 40, of Los Angeles (March 11, 1998)

LONNIE BURTON SPRINGER JR. [#37032], 66, of Lompoc (March 26, 1998)

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REINSTATEMENT
BARRY GERALD SANDS [#45887], 55, of Los Angeles (April 2, 1998)