|DONALD ARTHUR ASPLUND [#60470], 61, of Burlingame was
disbarred Aug. 16, 1998, and was ordered to comply with rule 955 of the California Rules
Asplund misappropriated $18,500 from an estate for which he served as
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
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
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
Watai said Smith's disbarment was necessary to protect the public, the courts and the
legal community and to maintain high professional standards.