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Discipline for taking no action in 10 years in habeas case

A Yolo County attorney who failed to file an opening brief in a capital appeal case for 10 years — despite eight extensions — was publicly reproved in October and given a year of probation. THOMAS L. RIORDAN [#104827], 50, of Davis also was given a stayed six-month suspension and remains on active status after the Supreme Court accepted a State Bar Court review panel discipline recommendation Oct. 24.

Although he had no death penalty appellate experience, Riordan was appointed in 1991 to represent Richard Turner, who had been sentenced to death after a first degree murder conviction in San Bernardino. Riordan had applied for appointment at the urging of a partner in his Sacramento law firm. He worked with lawyers from the California Appellate Project (CAP), who reviewed his drafts and provided material on death penalty appeals such as sample briefs and relevant case law. At Riordan's request, the court later appointed Robert Sanger as associate counsel to assist him.

Eight years after the initial appointment, the court notified Riordan that the appellant's opening brief (AOB) was due Aug. 16, 1999. It subsequently granted seven time extensions before telling Riordan no more extensions would be available. Nonetheless, it granted an eighth extension before denying a ninth request in December 2000.

Riordan did not file the AOB and instead asked to be relieved as counsel the following February. The court denied the request and ordered him to file the brief by the following July. When he missed that deadline, the court held Riordan in contempt, removed him as counsel of record, fined him $1,000 and ordered him to reimburse the court for fees totaling $42,378 for preparation of the AOB.

The State Bar Court found that Riordan failed to perform legal services competently, obey court orders or report the sanction to the bar. Riordan sought a reversal of the findings and the bar sought a higher level of discipline.

Nonetheless, a three-member review panel upheld the bar court's findings, rejecting Riordan's argument that his failure to file the brief was the result of the court's refusal to allow him to withdraw and his co-counsel's belief that the draft brief was constitutionally inadequate. The court pointed out that after working diligently on the appeal initially, Riordan spent two and a half weeks on it in 2000 and did "no substantial work" on it the following year. Despite knowing that the case was not simple, he procrastinated, sought extensions and "fostered the impression" he was working on it, said Judge Madge Watai.

"Given the length of time (Riordan) was involved in the appeal, it is simply inexplicable that he could not or did not either obtain adequate assistance or take timely steps to withdraw, particularly in a case involving the death penalty where diligent representation was of paramount importance," Watai wrote. "Neither the court's refusal to permit (Riordan's) withdrawal nor perceived inadequacies of his draft by others excused (his) protracted delay and utter failure to file the AOB."

Watai and the panel also rejected Riordan's argument that he did not comply with the Supreme Court's orders because he thought his draft brief was insufficient to adequately protect his client's interests and that Sanger had assumed the task of filing the brief.

Noting that Riordan did not abandon his client altogether, the review court determined that his 17 years of practice without any discipline, as well as his good character and cooperation, outweighed the aggravating circumstances. Further, it found his actions did not involve moral turpitude. "Because of his ineptitude or lethargy, or both, (Riordan) allowed the appeal to languish," the court concluded.

Riordan left the law firm in 2002 after it was suggested he seek employment elsewhere due to his handling of the appeal.

Sanger continues to represent Turner and filed a habeas petition in 2004.

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