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

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DISBARMENTS
DONALD ARTHUR ASPLUND [#60470], 61, of Burlingame was disbarred Aug. 16, 1998, and was ordered to comply with rule 955 of the California Rules of Court.

Asplund misappropriated $18,500 from an estate for which he served as executor.

The money came from two bank accounts on which Asplund wrote four checks without authorization. During periodic conversations with a beneficiary of the estate, Asplund assured her that he was proceeding with the estate administration and that he had listed a property for sale, when in fact he had not done so.

Although he initially responded the beneficiaries' inquiries, he did not respond to a request for an accounting and a copy of the inventory and appraisal. When the clients became suspicious, they hired a new attorney and Asplund was removed as executor.

When ordered by the court to file an accounting of the estate, Asplund deposited $15,757 in one account and $7,500 in another, amounts which exceeded the amount he had taken. (Eventually, $3,500 was returned to him.)

He admitted that he had taken funds, which he called short-term loans.

The bar court concluded that Asplund failed to perform legal services competently, breached his fiduciary duty as an attorney and representative of the estate, failed to preserve entrusted funds properly, commingled funds, failed to provide an accounting for funds as requested, made false statements to the estate's beneficiaries, and failed to provide an accounting or turn over estate records.

Misappropriation of entrusted estate funds constitutes moral turpitude.

In mitigation, Asplund practiced law for 19 years without a record of discipline.

The court rejected his potential claim that he was emotionally unable to deal with the disbarment proceeding, because he offered no proof. Nor did he show that his mental state caused the misappropriation in the first place.

Asplund did not participate in the disbarment proceeding.

"Conduct of the type engaged in by [Asplund] significantly tarnishes the reputation of the legal profession," wrote hearing Judge Nancy Roberts Lonsdale. Asplund "is not someone who can be trusted to safely handle the affairs and funds of members of the public."

HERMAN COWAN JR. [#111342], 40, of Oakland was disbarred Aug. 16, 1998, and was ordered to comply with rule 955.

In a default proceeding, the State Bar Court found that Cowan committed 11 counts of misconduct in three client matters. They included failure to provide an accounting to one client, perform legal services competently, return unearned fees or cooperate with the bar's investigation, and misrepresentation of the status of a case. He also failed to appear on time at numerous court appearances during a criminal trial and violated court orders, constituting acts of disrespect to the court and of moral turpitude.

In the first matter, Cowan was hired by a woman to represent her son in a criminal case. The mother paid Cowan $1,000. When the son dismissed Cowan, the mother asked for an accounting and a refund of any unearned fees. Cowan did not do so.

In another matter, a client hired Cowan to file a petition for legal separation from her husband, paying him $1,000 in advance. He never filed any papers or refunded any fees.

Cowan also represented a client in a criminal case, but did not appear at 11 hearings before the trial began. He was sanctioned $1,000.

During the trial, he was late or absent numerous times. Cited for contempt, he told the court he suffered from alcoholism, said he was enrolled in a three-month rehabilitation program and asked for a continuance. He was granted a continuance, but subsequently failed to appear on three more occasions.

There was no mitigation.

Cowan has a prior record of discipline, all apparently inseparable from his substance abuse. In 1991, he was privately reproved for failure to appear at scheduled court proceedings, pay sanctions, keep his bar membership records current or cooperate with the bar's investigation.

In 1992, he was suspended and placed on probation after he violated the terms of the probation associated with the private reproval. Continued violations of that probation led to suspensions and additional probation in 1993 and 1994, despite his claims that he was drug-free.

Noting that public protection is the first priority of attorney discipline, hearing Judge Eugene E. Brott wrote, "Where there are substantial doubts about whether an attorney will conform his future conduct to the professional standards demanded of California attorneys, the Supreme Court has not hesitated in ordering disbarment."

Cowan, he continued, "remains a risk to the public, his future clients and the legal profession. Disbarment is the proper remedy."

JAMES L. HERMANSON [#57289], 59, of San Diego was disbarred Aug. 16, 1998, and was ordered to comply with rule 955.

In a default proceeding, the State Bar Court found Hermanson culpable of wilful misappropriation, moral turpitude, failure to deposit client funds in a trust account, pay out client funds on demand, perform legal services competently, keep his address current with the State Bar or cooperate with the bar's investigation.

His misconduct was similar in two client matters, and he was suspended in 1997 for virtually identical misconduct — failing to pay medical lien providers out of the settlement funds of eight clients.

In the most recent misconduct, Hermanson failed to pay his client's doctor from a $64,000 personal injury settlement. Instead, his client trust account repeatedly fell below the balance required, and ultimately was placed on inactive status by the bank due to lack of activity.

Hermanson failed to pay the same doctor in a second personal injury case as well. He also changed his address without notifying his client

In recommending disbarment, Judge Carlos E. Velarde noted that misappropriation of client funds is "a grievous breach of an attorney's ethical duties and . . . generally warrants disbarment."

Alluding to Hermanson's continued failure to comply with his professional responsibilities, Velarde wrote, his "laissez-faire attitude militates against any disposition other than disbarment."

GUIDO ROY SMITH [#75055], 47, of Orange was disbarred Aug. 16, 1998, and was ordered to comply with rule 955.

Smith failed to comply with an earlier rule 955 order, requiring him to notify his clients and all other interested parties of his suspension and submit an affidavit to that effect to the Supreme Court. Failure to comply with 955 is grounds for disbarment.

That discipline was the result of an agreement between Smith and bar prosecutors in which Smith stipulated that he failed to perform legal services competently.

He has been disciplined twice previously. In 1992, he was publicly reproved in two consolidated cases for failure to keep clients informed about the status of their case, communicate with clients, perform legal services competently, or cooperate with a bar investigation. He also withdrew from employment without protecting his client's interests.

The following year, he was disciplined again and ordered to make restitution. His misconduct in that matter included failure to perform competently or refund unearned advanced fees, and improperly withdrawing from a case.

In recommending Smith's disbarment, bar court Judge Madge S. Watai wrote, "[He] has demonstrated an unwillingness to comply with the professional obligations and rules of court imposed on California attorneys although he has been given the opportunity to do so."

Watai said Smith's disbarment was necessary to protect the public, the courts and the legal community and to maintain high professional standards.

SUSPENSIONS/PROBATION
CAROLYN JOAN WALLACE [#63119], 53, of Malibu was suspended for one year, stayed, and place on two years of probation. The order took effect July 19, 1998.

Wallace's misconduct resulted from her representation in the early 1990s of a client in a real estate matter. She filed a complaint on behalf of her client, but did not file a timely answer to a cross-complaint, although she attempted to do so. The cross-complaint was filed in October 1991, and the court entered a default in the matter in January 1992. Because Wallace's answer, which had been rejected by the court, was not returned to her until February 1993, she did not learn about the default and made no effort to set it aside until July 1993. The case was ultimately dismissed for delay in prosecution.

Wallace stipulated that she failed to perform legal services competently.

Following the dismissal of the lawsuit, Wallace's client sued her for malpractice. Wallace failed to appear at a status conference and later at a court hearing. The court ordered sanctions of $1,000 which Wallace did not pay due to her financial difficulties. She also did not report the sanctions to the State Bar as required.

Wallace has a prior record of discipline; she was suspended in 1995 for misconduct in six consolidated matters. She failed to complete legal services competently, communicate with clients, return a client file or unearned fees, and deposit client fees in a client trust account. She also wrote checks against insufficient funds.

In mitigation, she has experienced family problems and severe financial difficulties.

JAMES C. LOPEZ [#153229], 41, of Campbell was suspended for 90 days, stayed, and placed on one year of probation. The order took effect July 19, 1998.

Lopez stipulated to misconduct in two immigration matters.

In the first, he appeared in court on an asylum application for a family. When the family did not appear, Lopez told the court they were having transportation problems, which was not true. In fact, the family believed (incorrectly) that Lopez had told them not to appear. Lopez stipulated that he misled the court.

In the second case, Lopez represented a woman and her two sons in a deportation matter. The woman had been ordered deported to Nicaragua after she failed to appear for an INS interview. While the case was pending, the woman's husband became a naturalized U.S. citizen.

The client submitted all necessary documents to Lopez, who was seeking a reconsideration of the deportation order.

Among the documents was a certificate purporting to show that Lopez' client had not been married in Managua. Lopez became concerned because the client's son's birth certificate indicated a married name for his mother in Nicaragua. Without telling the client he was delaying filing a motion to reopen her case, Lopez tried to verify the client's marital status through the American consulate in Managua. His client and her two sons were arrested and deported to Nicaragua.

Lopez stipulated that he failed to keep his clients informed about developments in their case.

Lopez was publicly reproved in 1995 for failure to perform legal services competently, keep clients informed, and refund unearned fees.

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