Two in trouble for missing Supreme Court hearing

The State Bar Court, asked by the Supreme Court to help sort out whether two attorneys who didn’t show up for a scheduled hearing should be held in contempt, found that one lied and both shirked their ethical duties.

After a two-day hearing in April, bar court Judge JoAnn Remke concluded that RAUL AGUILAR [#56419], a San Francisco lawyer and party to the case in question, “lied in a number of statements he made to the Supreme Court” and failed to show respect to the court. Further, she found, ALLEN KENT [#39717], who resigned his position as Aguilar’s chief litigator the week before he was to argue the case, did not fulfill his professional obligations as attorney of record when he failed to show up for the hearing.

The case in question was the result of an arbitration dispute between Aguilar and his former divorce attorney (see Ethics Byte column). Oral argument was scheduled for Feb. 10, but no one appeared to argue Aguilar’s side.

Aguilar, 62, said he planned to apologize to the justices at an order to show cause hearing a month later, but changed his mind under aggressive questioning by Chief Justice Ronald George. Remke said she believed he lied at that hearing.

Kent, 64, worked for the Aguilar and Sebastiani firm for 11 years before Aguilar gave him a memo in early February outlining a series of complaints about his work and telling him his salary would be reduced by $25,000. On Feb. 5, Kent left the office, turning in his keys and business credit card.

Kent had been Aguilar’s lawyer throughout the arbitration case and had given Aguilar an outline of his planned oral argument in early January. When the Supreme Court filed its calendar in mid-January, Kent notified Aguilar that there was a conflict with another hearing that he subsequently rescheduled.

At about the same time, Aguilar learned that a judgment for almost $500,000 had been entered against him in a dispute with his landlord and all the firm’s funds held in non-trust accounts had been attached. As a result, he was under severe financial pressure, and, he testified, was distracted from his legal work.

The Supreme Court hearing was placed on the firm’s calendar and Remke found that Aguilar saw the schedule prior to Feb. 5. When Kent left the firm, he told an associate about the oral argument scheduled for Feb. 10, but Aguilar told the associate they did not need to appear.

Prior to the hearing, neither Aguilar nor Kent informed the court that Kent was no longer employed at the firm or that he would not appear for oral argument. When court administrator Frederick Ohlrich reached Aguilar on Feb. 10, Aguilar said twice he was unaware his case was scheduled that day.

Aguilar then wrote a letter to the Supreme Court Feb. 11, saying he was unaware of the date or time of the oral argument and was not familiar with the scope of the issues in his case. Remke said both statements were lies, as was an assertion by Aguilar that he had not discussed his case with Kent.

In addition, Remke said Aguilar lied when he told the chief justice at the order to show cause hearing in March that he did not know the case was scheduled for oral argument Feb. 10 and that documents reflecting the calendar did not cross his desk. Further, she said, Aguilar lied to both George and Justice Joyce Kennard when “he repeatedly claimed that he was not involved in resolving the scheduling conflict” between his case and another set for the same day.

Remke said there was no conclusive evidence that Kent lied in any statements he made to the Supreme Court, and she attributed the inaccuracies in his declaration to “imperfect memory” and to the fact that Kent did not have access to his files after he left the Aguilar firm.

Nonetheless, she found that even though he no longer worked for Aguilar, his ethical responsibilities remained and he should have taken steps to protect his former boss. He remained Aguilar’s attorney of record and should have filed either a substitution of attorney or a motion to withdraw as counsel, Remke said. Kent violated professional rules by improperly withdrawing from representation, she concluded.

Remke found that Aguilar also breached his ethical duties by not replacing Kent as his attorney in the Supreme Court case. “Aguilar knew of Kent’s departure and the need to take immediate action to handle his cases,” the judge wrote. “In fact, Aguilar was aware that oral argument . . . had been scheduled and would take place in five days after Kent’s departure. Yet, he did nothing.”

His conduct, she concluded, breached his obligation to maintain respect to the Supreme Court.

Aguilar and Kent were ordered by the Supreme Court to respond to Remke’s findings by the end of May.