California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - APRIL 1999
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - April 1999
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News
Legal specialist exam set Aug. 19
Sullivan to take reins at Stanford Law School
Only two appointed members remaining on State Bar board
Legal services board has five vacancies
Davis taps Michael Kahn
State Bar honors Justice Mosk with Witkin Medal
Board tentatively approves budget based on dues of $384
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Opinion
If it distracts, so be it
Let's cut back on jury service
Limit bar to admissions and discipline
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From the President - Door to justice must be open
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Letters to the Editor
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Law Practice - Preparing for a successful mediation
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Appointments - Apply to serve on a bar committee
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Legal Tech - DSL speeds up Internet - at a reasonable price
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New Products & Services
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MCLE Self-Study
Taxes and long-term care
Self-Assessment Test
MCLE Calendar of Events
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Trials Digest
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Discipline
Ethics Byte - Fiduciary duties basis for all rules
Attorney nabbed at State Bar offices for soliciting murders
Attorney Discipline
Ethics for the 21st Century - A canon for the future
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Public Comment

DISCIPLINE

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CAUTION!
More than 165,830 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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SUSPENSIONS/PROBATION
The probation of FREDERICK HILL STEIN [#86535], 48, of Dix Hills, N.Y., was revoked, the previous stay of suspension was lifted, and he was actually suspended for two years. The order took effect July 19, 1998.

Stein was disciplined in 1996 with a stayed three-year suspension and three years of probation with conditions including a one-year actual suspension and quarterly probation reports. He submitted two reports late, but failed to submit two others or to prove that he attended ethics school and a client trust account record-keeping class. As a result, his probation was revoked.

The discipline resulted from failing to perform legal services competently in two civil cases and failing to return client files and unearned fees in one of the matters.

Because he filed late a rule 955 affidavit attesting that he notified all clients and other pertinent parties of his suspension, he was placed on two years of actual suspension in 1997, with a requirement that he prove his rehabilitation.

Stein has lived in New York since 1993, and according to the court, has shown no interest in returning to California to practice.

KENNETH DALE FAIR [#87535], 52, of Anaheim was suspended for two years, stayed, placed on two years of probation with an actual six-month suspension and until he makes restitution, and was ordered to comply with rule 955 of the California Rules of Court. If the actual suspension exceeds two years, he must prove his rehabilitation. The order took effect July 22, 1998.

Fair stipulated to 15 counts of misconduct, including the unauthorized practice of law, failure to perform legal services competently, communicate with clients, refund fees or return files.

He also withdrew from representation without protecting his client's interests, did not comply with probation conditions imposed in an earlier disciplinary order, and did not cooperate with the bar's investigations.

In a personal injury matter, Fair did not file a civil action in a timely fashion due to a calendaring error. He did not respond to his client's inquiries about the case, and when the client hired a new attorney, he did not return his files.

He also did not file a worker's compensation case before the statute of limitations expired, nor did he communicate with that client.

Fair was suspended from practice in 1996 as a result of failure to pass the professional responsibility exam, but represented several clients while suspended. Although he assigned several matters to associates in his office, he did not notify his clients of his suspension. In one matter, he failed to withdraw as attorney of record, resulting in a continuance of a trial date.

Just prior to a mandatory settlement conference in a worker's comp matter, Fair advised opposing counsel of his suspension. Unable to arrange for another attorney to appear, Fair attended the settlement conference but did not address the court. He had not notified either his client or the court of his suspension.

Fair was disciplined in 1995 and did not comply with some conditions of his probation, including failure to provide quarterly probation reports or to implement a law office management plan.

That discipline resulted from a failure to communicate with clients, perform legal services competently, respond to status inquiries, return client files and cooperate with the bar's investigation.

MANTON LAWRENCE SELBY II [#44350], 55, of San Francisco was suspended for one year, stayed, placed on two years of probation with a requirement that he make restitution, and was ordered to take the MPRE within one year. The order took effect July 22, 1998.

Selby stipulated that he did not respond to his client's requests for information about the status of a case, and he withdrew from representation without taking steps to protect his client's interests. He also failed to return the client's unearned fees.

The client had retained Selby to set aside a default judgment in 1995. However, Selby did not file the required motion, nor did he return several telephone calls seeking information.

Selby has been disciplined twice previously. In 1989, he was privately reproved for failing to perform legal services, and he was suspended and placed on probation in 1992 for failure to act competently, pay out client funds, or communicate with a client.

In mitigation, no client was harmed by his most recent conduct, and he cooperated with the bar's investigation.

THOMAS G. KEY [#152520], 48, of Tustin was suspended for six months, stayed, placed on two years of probation with conditions including restitution, and was ordered to take the MPRE. The order took effect July 22, 1998.

Key was retained to obtain alien labor certification for a client who paid more than $6,000 in legal fees. Key never filed the documents, provided an accounting or refunded the unearned fees.

He has no prior record of discipline and cooperated with the bar's investigation.

IRIS LYNNE JOHNSON-BRIGHT [#91735], 47, of Culver City was suspended for three years stayed, placed on three years of probation with an actual nine-month suspension and until she makes restitution, and was ordered to take the MPRE within one year and comply with rule 955. If the actual suspension exceeds two years, she must prove rehabilitation. The order took effect July 22, 1998.

Johnson-Bright sought review of a State Bar Court finding that she failed to perform legal services competently in two counts and failed to refund unearned advanced fees.

The review department upheld the hearing judge with one exception, gave additional weight to some of the aggravating factors, and increased the recommended discipline.

Johnson-Bright originally was charged with misconduct in two matters. In the first, the bar court found that in a personal injury matter, she failed to appear at depositions and did not respond to the client's attempts to contact her.

In addition, the court found that although the client hired another attorney, Johnson-Bright made arrangements for a different attorney to step in without informing her client or obtaining his consent. In a second matter, Johnson-Bright was hired to represent a client in an action by a bank to recover on a promissory note secured by an automobile that could not be identified because of a false identification number.

Although Johnson-Bright filed a notice of hearing on demurrer and points and authorities, she never filed the demurrer. The bank's counsel agreed to a time extension, but Johnson-Bright never filed the papers and the client's default was entered.

When she later filed a motion to set aside the default, the motion contained representations that conflicted with statements she had made to opposing counsel. She later did not appear at a hearing, and a judgment was entered against her client in the amount of nearly $50,000.

Johnson-Bright again tried to set aside the default, again did not appear at a hearing, and was sanctioned $750. A motion for reconsideration was denied, as was an appeal which was dismissed as untimely.

Throughout the proceedings, Johnson-Bright misled her client about the status of the case, an act of moral turpitude. The client ultimately settled with her bank for a payment of $55,000.

It took Johnson-Bright two years to return her client's file, and she never responded to a request that she refund fees from the bank civil matter.

Johnson-Bright failed to appear for any of the three days of her discipline trial before the State Bar Court, although she had been ordered to do so. The review department found that she falsely told her attorney she was in trial at the time and that she was ill.

"Such conduct demonstrates a lack of concern for the disciplinary process, and a lack of appreciation for the seriousness of her misconduct," the wrote Review Judge James Obrien.

He noted that Johnson-Bright repeatedly sought continuances, usually the day of trial.

During one proceeding before the bar court, Johnson-Bright's attorney asked to be relieved as attorney of record because of irreconcilable differences with her client. When the motion was denied, the attorney declined to participate in oral argument. Johnson-Bright was not present.

Johnson-Bright has a prior record of discipline. In 1992, she was suspended and placed on probation for negotiating a settlement for a client without authorization, endorsing the settlement draft without the client's knowledge, and misappropriating the proceeds.

STEVEN FRANK ANDERSON [#103994], 47, of Sacramento was suspended for one year, stayed, placed on one year of probation with a 30-day actual suspension, and was ordered to take the MPRE within one year and make restitution to the client. The order took effect Aug. 16, 1998.

In a default proceeding, the State Bar Court found that Anderson failed to perform legal services competently, communicate with his client or cooperate with the State Bar's investigation.

Anderson was hired to review documents regarding the estate of his client's deceased father and to prepare a letter to the executor of the estate. In addition, the client hired him to represent him in a Social Security Administration appeal.

Anderson did not appear at two hearings on the appeal, and did not respond to his client's many telephone calls about the case over a four-month period.

The client hired another attorney, who asked Anderson to return the documents. Eventually, the client sought a refund of the $725 he paid as advanced fees. Anderson did not honor either request.

In mitigation, Anderson has no prior record of discipline in 14 years of practice.

DANIEL DAVID DYDZAK [#121857], 39, of Los Angeles was suspended for one year, stayed, placed on three years of probation with an actual 30-day suspension, and was ordered to make restitution and take the MPRE within one year. The order took effect Aug. 16, 1998.

Dydzak stipulated to eight counts of misconduct in five client matters.

In the first, he failed to promptly pay his client settlement funds in a wrongful termination case. He made a partial payment to the client and claimed the remainder was disputed legal fees. Dydzak eventually paid the full amount, but not for a year.

He also failed to maintain the disputed funds, which amounted to $5,000, in his client trust account, and stipulated that he misappropriated client funds.

In another matter, Dydzak was retained to file a defamation case after false information was published on the internet about his client. After three months, the client terminated his services and asked for a refund of a $1,500 retainer fee and the return of documents. Dydzak did neither.

He stipulated that in other cases, he did not communicate with clients, refund unearned legal fees or return client files.

In mitigation, Dydzak has no record of discipline since his 1985 admission to the bar, and he provided numerous letters from clients attesting to his good character.

ANDREW FRISCH [#141624], 41, of Downieville was suspended for two years, stayed, and was placed on probation for two years with an actual six-month suspension and until he makes restitution to a client. He was ordered to take the MPRE and to comply with rule 955. If the actual suspension exceeds two years, he must prove his rehabilitation. The order took effect Aug. 16, 1998.

In a default proceeding, the State Bar Court found that Frisch collected an unconscionable fee and solicited and accepted a loan from a client without getting written consent to the transaction or advising the client to seek outside legal advice.

Frisch's problems resulted from his representation of a client in an automobile accident. Frisch and the client entered into a written fee agreement which provided for a fee of 25 percent of the gross recovery and reimbursement of costs. It did not acknowledge that the client paid a $1,000 retainer fee up front, and it purported to curtail the client's right to terminate Frisch as his attorney.

A month after signing the fee agreement, Frisch requested a $1,000 loan from the client, which was agreed to. Nothing was put in writing.

When the case settled for $15,000, Frisch requested and received a fee of $4,500. However, he already had received $1,000 from the client, and 25 percent of $15,000 is only $3,750.

When a second insurance company settled for $10,000, Frisch demanded his full share of $2,500.

When the client realized Frisch had been overpaid by $1,750, he requested a refund. When he received no response, he called Frisch, but hung up when Frisch became abusive.

Frisch later called and said he did not owe the client any money. He never refunded the $1,750 or repaid the $1,000 loan.

KIM CALDER HAYES [#133757], 48, of Berkeley was suspended for six months, stayed, placed on probation for two years with an actual 30-day suspension, and was ordered to take the MPRE within one year. The order took effect Aug. 16, 1998.

In a default proceeding, the State Bar Court found that Hayes abandoned a client, and failed to perform legal services competently, communicate with the client or return the client's phone calls.

Hayes agreed to secure a dissolution of his client's marriage, but did little work on the case for more than two years. After numerous telephone calls and three letters, he finally informed the client that he no longer was in practice due to financial reasons and illness.

In mitigation, Hayes has no record of discipline in nine years of practice.

FRANKLIN K.P. MOORE [#134411], 37, of Puerto Vallarta, Mexico, was suspended for two years, stayed, placed on two years of probation with a 60-day actual suspension, and was ordered to make restitution and comply with rule 955. If the actual suspension exceeds two years, he must prove his rehabilitation. The order took effect Aug. 16, 1998.

In a default proceeding, the State Bar Court found that Moore failed to perform legal services competently, communicate with a client, return client papers promptly or cooperate with the bar's investigation. He also made a misrepresentation to the bar, an act of moral turpitude.

Moore was hired in 1996 to produce a subordination agreement for a couple for the purpose of refinancing their home.

He never returned any phone calls, and when they asked that their paperwork be returned, Moore did not do so.

Although he did not respond to two letters from the bar, he sent a letter stating he had returned the clients' original file to them and was sending a copy of the file to the bar. He also asked the bar's investigator to call him.

He never returned the investigator's call.

The clients had to go to Moore's office to get their paperwork back. He never returned the unearned fees the clients paid him.

Moore was suspended and placed on probation in 1997 for failure to perform legal services or return unearned fees and for making misrepresentations to a bar investigator.

STEVEN C. PECK [#97343], 46, of Van Nuys was suspended for one year, stayed, placed on three years of probation with a 60-day actual suspension, and was ordered to take the MPRE within one year. The order took effect Aug. 16, 1998.

Peck stipulated to seven counts of misconduct, most involving his handling of attorneys fees.

In the first matter, Peck informed his client that his fee for handling a collection matter would be $10,000 plus costs. The client paid him $11,000.

Peck then received more than $138,000 from a title company as payment of a pre-judgment writ of attachment. He paid his client $97,941.05 as his share.

The client sued Peck seeking recovery of unearned and/or excess fees and won a judgment of $25,000, the court's jurisdictional limit. The court said the client actually was entitled to more than $33,000 from Peck.

Peck then filed a motion for a new trial, which was denied. The court sanctioned him $1,000.

He never paid either the $25,000 or the sanction.

Peck was replaced as the attorney in a bankruptcy case and was ordered by the court to disgorge attorneys fees amounting to $4,200 within 10 days. He never did so.

He then was held in contempt, but did not pay the fees for two months or the interest on the principal for three months.

In mitigation, Peck has no prior record of discipline and believed he was owed the attorneys fees the courts found were unearned.

KENNETH P. SAMMUT [#175669], 30, of Sacramento was suspended for two years, stayed, placed on probation for three years with a six-month actual suspension and was ordered to take the MPRE within a year and comply with rule 955. The order took effect Aug. 16, 1998.

In two default matters, the State Bar Court found that Sammut committed numerous acts of misconduct which began less than a year after he was admitted to practice. The wrongdoing includes four instances of failure to perform legal services competently, one count of failure to communicate with a client, one count of failure to return a client's file, and five counts of failure to cooperate with the bar's investigation.

Three other charges of failure to perform were dismissed by the court.

In most of the cases, Sammut represented defendants on DUI charges.

He twice advised clients not to appear at hearings, but he did not appear either. As a result, his clients' driver's licenses were suspended.

Although the court found Sammut's actions serious, it also said his misconduct could be remedied if Sammut begins to honor his professional obligations. He apparently was given little training or supervision at his law firm, and the court urged him to educate himself about proper law office management and client service.

ARTHUR FREDERICK SILBER [#130768], 50, of Los Angeles was suspended for two years, stayed, placed on two years of probation with a 120-day actual suspension and was ordered to comply with rule 955. The order took effect Aug. 16, 1998.

Silber was disciplined in 1997 and, as part of the order, he was required to comply with rule 955 of the California Rules of Court by notifying all his clients and other interested parties of his suspension. He was required to submit an affidavit to that effect with the court.

His failure to file the affidavit on time led to the new discipline.

The original discipline resulted from a failure to respond to a client's inquiries about the status of a case, perform legal services competently, return client papers, or keep his address current with bar records, and for withdrawing from a case without protecting his client's interests.

In mitigation, Silber cooperated with the bar's investigation and demonstrated remorse for his conduct. He also suffered from extreme clinical depression for two years, has undergone treatment and is responding well.

WILLIAM DOUGLAS WEIGAND JR. [#27613], 71, of San Fernando was suspended for one year, stayed, placed on one year of probation with a 60-day actual suspension and was ordered to take the MPRE within one year. The order took effect Aug. 16, 1998.

Weigand was placed on inactive status for seven months in 1995-96 for failing to file a written response to a notice to show cause in a bar discipline case.

During that time, he made 19 court appearances although he was not entitled to do so.

In mitigation, Weigand did not review the notice of his inactive status and did not knowingly engage in the unlawful practice of law. He did not harm any clients and cooperated with the bar's investigation.

He has a prior record of discipline: he received a public reproval in 1996 for failure to perform legal services competently.

WILLIAM ARMAND WRIGHT [#75236], 55, of Roseville was suspended for 90 days, stayed, placed on two years of probation and was ordered to make restitution. The order took effect Aug. 16, 1998.

Wright was employed by a client in 1995 to pursue civil actions against a woman the client said committed various misdeeds 45 years earlier. The allegations included murder and kidnap, as well as the client's belief the woman had stolen inventions from him and wrongfully obtained property belonging to his family.

The client provided no evidence other than written narratives.

Although Wright hired a private investigator to look into the charges, he did not advise the client about what rights or causes of action he might have, that such actions might be barred by statutes of limitation, or that they might lack merit.

Wright never established that his client had a case.

Nonetheless, Wright charged the client $9,200 for meetings over an eight-month period during which the client told stories about his inventions and the wrongs committed against his family.

Wright stipulated that he failed to properly withdraw from employment despite the fact that he knew or should have known the client was bringing an action without probable cause.

Wright was publicly reproved in 1996.

In mitigation, he cooperated with the bar's investigation.

ALBIN E. DANELL [#33124], 64, of San Jose was suspended for six months, stayed, placed on two years of probation, and was ordered to make restitution. The order took effect Aug. 27, 1998.

Danell stipulated that he entered into a business transaction with a client which was not reasonable to the client; that he did not transmit the terms of the transaction to the client in writing; and that he did not obtain the client's written consent or advise the client to seek the advice of independent counsel.

Danell held an ownership interest in a mining corporation for which he served as vice-president and secretary, and he was the owner of record of a dormant gold mine located in Nevada County.

In 1994, Danell's client, whom he represented in a marriage dissolution and a wrongful termination case, received $35,000 from a certificate of deposit.

The same month, Danell entered into a written agreement with the client for the purchase of a five percent interest in the gold mine for $50,000. The agreement was signed by the mining company president, who was Danell's paralegal.

Under the terms of the agreement, Danell received $35,000 from his client and the remaining $15,000 was to be paid out of the income from the mine.

At the time of the transaction, Danell knew his client had recently lost his job and was working only one day a week. He also knew the mining company did not have the funds necessary to conduct mining operations. In fact, his client's money was the only money raised for such purposes.

Nonetheless, the client's money was spent for the anticipated mining operations and for payments on the property. Danell did not keep any of the money for personal gain.

In a stipulation reached with the State Bar, Danell acknowledged that he is liable for the return of the $35,000.

Danell was privately reproved in 1997 for failing to perform legal services competently.

In mitigation, he has an extensive background of bar activities, including serving as a delegate to the Conference of Delegates, was a judge pro tem in Santa Clara County municipal court, is a federal arbitrator and a certified counselor in domestic violence, and was president of the Los Altos Chamber of Commerce and the Los Altos Jaycees.