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

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SUSPENSIONS/PROBATION
SIDNEY E. ARDEN [#26926], 77, of La Quinta was suspended for one year, stayed, placed on three years of probation with an actual 60-day suspension, and was ordered to take the MPRE within one year. The order took effect Sept. 10, 1998.

Arden was disciplined as a result of his handling of the estate of a deceased client. He billed his client's stepdaughter $5,213 for probating the will, and although the superior court did not approve the claim, it was paid.

Arden also sought and received a $25,000 advance from the estate in anticipation of his legal fees. That amount also had not been approved, as required, by the court.

Eventually, the executrix of the estate replaced Arden, and he promptly turned over all files to the new attorney. At the same time, the executrix revoked her earlier approval of Arden's bill and notified the court of the $25,000 payment. Arden was ordered to repay the estate the entire $30,200, but his attorney notified the court he did not have the money to do so.

At a later hearing, the court rejected Arden's claims for services rendered to the client before his death and for reimbursement for fees and costs for the services performed on behalf of the executrix. It also found that the $30,200 was paid improperly and ordered Arden to repay that amount plus interest, for a total of more than $46,000.

Arden could not pay, did not seek a loan and later discharged his obligations in bankruptcy proceedings.

The State Bar Court found that Arden violated the probate code by failing to obtain court approval for the fees and the $25,000 advance. It also found he violated court orders to repay the estate.

In mitigation, Arden practiced law for 40 years without any misconduct, suffered profound health problems, including a major stroke which left him incapacitated, and lost his home of 30 years to foreclosure.

DAVID CYRANO DANTES [#102442], 52, of Canoga Park was suspended for two years, stayed, placed on two years of probation with an actual 30-day suspension, and was ordered to prove his rehabilitation and to take the MPRE within a year. The order took effect Sept. 10, 1998.

Dantes stipulated to two counts of commingling personal funds in his client trust account.

Because Dantes did not file tax returns for 1989-1992, the Franchise Tax Board levied his general account on several occasions. He hired an accountant, stopped using his general account, and began to pay personal expenses from his trust account. Between 1994 and 1996, he wrote 23 checks for personal business on the account.

In mitigation, Dantes cooperated with the bar's investigation, attended ethics school and the client trust accounting school, and has no record of discipline since he began practicing in 1982.

IRENEO M. GALICIA [#143394], 46, of Industry was suspended for five years, stayed, placed on five years of probation with an actual two-year suspension, and was ordered to make restitution, prove his rehabilitation and take the MPRE. The order took effect Sept. 10, 1998.

In a default proceeding, the State Bar Court found that Galicia failed to notify a client that he had received a check to pay her medical bills, render a complete accounting of funds to the client, hold funds in trust, promptly return a client's file, or cooperate with the State Bar's investigation. He also misappropriated client funds and withdrew from employment without protecting his client's interests.

Galicia represented a client in a personal injury case, agreeing to a contingency fee of one-third of any settlement. When her insurance company (Prudential) sent a check to Galicia and the client to pay her medical expenses, Galicia deposited it into an account which was not his client trust account. The client did not learn about the money for a year and a half.

Galicia later received a $7,500 settlement for the bodily injury portion of his client's claim from a second insurance company and gave his client her share. However, he never reimbursed Prudential $2,500 it was owed for medical bills it had paid.

When the client learned that Prudential had not been reimbursed, she attempted to reach Galicia but was unsuccessful. Prudential later sued her to recover money advanced under the medical pay portion of her policy. The client hired a new lawyer.

Prudential eventually dropped the suit, but not before the client incurred significant legal fees. Galicia never reimbursed Prudential.

Bar investigators believe Galicia has moved to the Philippines.

LAZARO J. MACHADO [#134209], 42, of Garden Grove was suspended for three years, stayed, and placed on probation for three years with a nine-month actual suspension and until he proves his rehabilitation. He was ordered to comply with rule 955. The order took effect Sept. 10, 1998.

Machado stipulated to three counts of misconduct: failure to act competently and communicate with a client, and practicing law while suspended.

Machado filed a civil complaint against his client's former business partner, but the case was dismissed when Machado failed to make any appearances or comply with court rules. In response to a motion Machado filed, the case was later reinstated and he was ordered to pay a $100 sanction. The court ordered the case transferred to municipal court, but despite two orders to pay transfer fees, the fees never were paid and the case was dismissed again.

Machado did not return his client's phone calls or notify him the case was dismissed. He also did not respond to two certified letters from the client.

Machado was suspended from practice for nine months in 1996, but did not notify his client of the suspension. By continuing to represent the client and giving him legal advice during the course of the suspension, Machado engaged in the unauthorized practice of law.

Machado has been disciplined twice previously.

JAMES McKIERNAN [#55913], 52, of San Luis Obispo was suspended for two years, stayed, placed on three years of probation with a 90-day actual suspension, and was ordered to take the MPRE and comply with rule 955. The order took effect Sept. 10, 1998.

McKiernan stipulated to misconduct in 14 consolidated cases, most involving his inadequate supervision of his staff.

McKiernan, who was admitted to practice in 1973, opened his own office in San Luis Obispo in 1989. He established a reputation in the community for successfully handling high profile tort cases with an emphasis on personal injury.

He also advertised extensively and his practice increased. He employed between 21 and 23 employees and had a caseload of 200 to 400 matters. The office was open from 8 a.m. to 9 p.m. weekdays, and 9 to 5 on weekends. In addition to high profile cases, McKiernan accepted many small cases, primarily because his office was technologically advanced.

In early 1990, the local courts began a fast-track program which McKiernan believed he could adhere to. However, he was unable to properly supervise his staff, and it was during this period that numerous complaints were made to the State Bar.

In several instances, McKiernan's staff settled cases without consulting their clients and endorsed clients' names on settlement drafts. An associate substituted out of a case without telling the client why. One client authorized a settlement after her case had been settled and money received.

McKiernan's staff did not keep clients apprised of developments in their cases or communicate with clients.

Once complaints to the bar became public, rumors spread that McKiernan's practice was about to be shut down. Several press accounts detailed allegations against McKiernan, some of which were never charged. The widespread publicity had a devastating effect on McKiernan's practice as well as his personal life.

The disproportionately damaging impact of disciplinary proceedings upon McKiernan was considered a mitigating factor.

JOSEPH M. MONTOYA III [#86477] 45, of Paramount was suspended for three years, stayed, placed on probation for three years with an actual one-year suspension and requirements that he make restitution, complete four hours of MCLE in law office management, prove his rehabilitation, take the MPRE and comply with rule 955. The order took effect Sept. 10, 1998.

Montoya violated the conditions of a 1994 probation by failing to complete four hours of MCLE courses in law office management. A separate probation order required that he file quarterly probation reports, complete six hours of MCLE courses in law office management and make restitution to an individual.

He did not comply with any of the three conditions.

Montoya has four instances of prior discipline, beginning in 1992.

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