Two who missed Supreme Court hearing found in contempt

If you have an oral argument scheduled before the California Supreme Court, you’d better keep that appointment. The court delivered that message in no uncertain terms to two northern California attorneys who missed a February hearing by finding both men in contempt and fining them.

RAUL AGUILAR [#56419], 63, of San Francisco was ordered to pay $1,000, and his former employee ALLEN J. KENT [#39717], 65, of Corte Madera was fined $250.

The court was unanimous in its finding that Aguilar lied to them about his non-appearance and referred him to the State Bar for further investigation and, if appropriate, additional disciplinary sanctions.

“Under the circumstances, we believe the evidence amply supports the State Bar Court’s finding that Aguilar lied to this court when he stated repeatedly that he was unaware, prior to Feb. 10, 2004, of the date and time of the scheduled oral argument in Aguilar v. Lerner,” the justices wrote in an unsigned decision.

“It is, of course, an extremely serious breach of an attorney’s duty to a court to lie in statements made to the court . . . and an intentionally false statement made by an attorney to a court clearly constitutes contempt of court.”

The court split over whether Kent should be held in contempt, with three justices saying he did not deserve that sanction. Phil Ryan, Kent’s attorney, said he will ask the court for a rehearing.

“The majority have elevated a breach of etiquette to a breach of ethics,” Ryan said, explaining that he believes the court’s finding amounts to a new legal principle. “A majority of the court . . . has now held that a lawyer who is discharged from a firm or who retires from a firm or who leaves one firm to go to another or who is sent to the bench shoulders an affirmative duty to inform all courts in which he or she has ever appeared of their new employment status. There’s no question about it. It’s a new principle.

“Whether the new rule can be applied retroactively in a quasi-criminal proceeding raises constitutional questions which may even be of a federal nature.”

Justices Joyce Kennard, Kathryn Werdegar and Janice Rogers Brown said Kent should have notified the court that he would not appear “as a matter of courtesy” but that his law firm had the responsibility of assigning another attorney to appear.

Aguilar and Kent found themselves in hot water with the justices after no one showed up for a scheduled Feb. 10 oral argument in a malpractice suit Aguilar filed against a divorce attorney. The court asked the State Bar Court to investigate and answer five specific questions about the two men’s actions.

Judge JoAnn Remke found that Aguilar lied to the Supreme Court and failed to show it proper respect. Although bar prosecutors determined that Kent had not breached any ethical standards, Remke found that he did not fulfill his professional obligations when he didn’t show up for the hearing.

Kent had signed all documents submitted to the court and had informed the court he would appear for the oral argument. However, five days earlier, he left his job as chief litigator at Aguilar & Sebastiani in San Francisco. His departure “did not automatically terminate his professional responsibilities either to his former client or to this court,” the majority found. “We conclude that there was no adequate justification for Kent’s failure to inform the court that he would not appear on Feb. 10.”

The court came down much harder on Aguilar, finding his derelictions “significantly more serious” than Kent’s. They unanimously found that he lied repeatedly in both written and oral statements when he said he was unaware of the hearing. Aguilar had claimed that he was under serious financial pressure and forgot the date of the hearing. His attorney said Aguilar “truthfully reported his own state of mind” when he told the court clerk he was unaware of the hearing.

“The evidence . . . casts grave doubt on even this limited claim,” the justices wrote. They pointed out that Kent informed Aguilar about the hearing about a month in advance and Aguilar also reviewed the court’s calendar a few days prior to the hearing. In addition, when an associate asked him about the scheduled oral argument, Aguilar replied, “Oh, we don’t need to go to that.”

“We find Aguilar’s attempt to provide an innocent explanation of this statement unconvincing,” the justices wrote, “particularly in light of Aguilar’s lack of veracity with regard to the other statements discussed.”

In addition to making false statements, the justices said Aguilar, as the managing attorney at his firm, should be held in contempt for failing to assign another attorney from his office to handle the matter.