Very Forgiving : State Bar’s Discipline System Hit

Some of his clients began having trouble with him as early as 1974, less than two years after he was licensed to practice law in California.

By the time Thomas Miles Brunwin was finally disbarred in February, the 56-year-old Los Angeles lawyer had left behind an untold number of victims whose legal problems not only went unsolved but were aggravated by his failure to act.

Margaret and Wallace Shaffer, for instance, paid him $1,500 to sue a title insurance company in a land ownership dispute. By the time they discovered that Brunwin never filed the suit, the statute of limitations had expired.

Brian and Norma Chambers advanced him $10,000 to defend their son on an out-of-state drug charge. Brunwin kept the fee even though, less than two weeks later, the charge was dropped. Through formal arbitration, the Chamberses eventually got back $3,500.

Wrongful-Death Suit

Another couple paid Brunwin $1,600 to file a wrongful-death lawsuit against a local hospital. Brunwin filed it, but five years later the suit was dismissed because he had not pursued the case. The couple learned of the dismissal after they had received a bill from the hospital demanding reimbursement for attorney’s fees.

Brunwin’s case is rare--but not because he stole, lied or cheated; scores of lawyers in California get caught doing that every year.

It is unusual only because he got the ultimate punishment: disbarment. And that came only after a private warning in 1980 and an 18-month probation in 1983 for similar conduct going back as far as 1974.

As thousands of other offenders have learned since 1928, the California State Bar’s slow-moving lawyer discipline system can be very forgiving. Many receive a second, even a third, chance before authorities resort to more than a slap on the wrist delivered in secret.

Earlier this month, the state Supreme Court disbarred a San Diego lawyer who had been convicted of killing his wife--after the State Bar had recommended only a 30-month suspension.

Called Insufficient

“It’s fair to say that, sometimes at least, penalties just are not sufficient,” said David M. Heilbron, incoming president of the State Bar. “We’re going to take a hard look at that.”

To be sure, the annual number of lawyers who are disciplined--about 150--is a minuscule percentage of California’s 87,500 lawyers. But as Brunwin’s case shows, one bad attorney can spread plenty of havoc.

Once hailed as “a model for the nation,” California’s attorney discipline system is increasingly being attacked for its snail’s-pace investigations and for its lenient sanctions. The attacks come at a time of explosive growth in the state’s lawyer population, accompanied by a huge and growing backlog of 3,000 complaints that have never been investigated.

The criticism has already produced new and significant consumer protection measures, some enacted as recently as this month.

On Sept. 14, for instance, the State Bar’s governing board voted to create a new office of investigations in hope of clearing the backlog of uninvestigated complaints.

And as of Sept. 16, the formal filing of disciplinary charges against a lawyer began being made public. Previously, disciplinary proceedings were secret until they were all but over.

“On the whole, it’s a good system,” said outgoing State Bar President Burke Critchfield. “But it can be better. And it will be.”

Among those determined to keep the heat on the Bar are state legislators. Tomorrow, for instance, the Senate and Assembly judiciary committees are to hold a joint, all-day hearing on the State Bar’s discipline system. Pointedly, it will be held in the Town and Country Hotel in San Diego--where the State Bar is holding its annual convention.

The State Bar is an organization to which all licensed lawyers in California must belong. On disciplinary matters, it is empowered to issue private or public reproofs; or it can recommend suspension or disbarment to the state Supreme Court, the final arbiter.

Since 1928, about 5,000 lawyers have been disciplined. The system today costs the State Bar about $8 million annually to operate. Last year, 8,329 complaints were lodged against lawyers.

Vague Definitions

A precise definition of what constitutes offenses that are subject to Bar discipline is hard to come by.

Deeds that call for discipline require evil intent, deceit or gross negligence, according to Susan Mahony-St. Clair, who heads the State Bar’s trial counsel office, which investigates and prosecutes ethics cases. “It’s almost a case-by-case analysis,” she said. Few cases are as clear-cut as Brunwin’s.

There are four basic disciplinary actions.

The mildest form is a private reproof, in which only the errant lawyer and the complaining client are notified that the lawyer’s conduct violated the State Bar Act or the Rules of Professional Conduct. The reproof may be taken into consideration in future disciplinary proceedings. Recent offenses that drew private reproofs include the use of a client’s money as a personal checking account and an indecent exposure conviction.

Public Reproof

The next step is a public reproof. It is the same as a private reproof except that an offender’s name and deed are publicized in press releases distributed by the State Bar and published in the monthly Bar publication, California Lawyer.

Offenses that typically lead to public reproofs involve failure to perform services such as filing lawsuits or timely appeals. In June, for example, Hiram Michael Martin of Los Angeles was publicly reproved because he “did not fully apprise the judge of all relevant facts” in a case.

Suspensions and disbarments require the approval of the Supreme Court, and either sanction is publicized not only by the State Bar but also by the court itself.

A suspended attorney is prohibited from practicing law for the stated time period, and often is required to inform all clients of his suspension and to pass the Professional Responsibility Examination, a standardized, multiple-choice ethics test.

High Court Action

It is not unusual for the Supreme Court to “stay” a sentence of suspension and instead put the offender on probation for all or a part of that time period, at the Bar’s recommendation.

In most cases, suspensions and disbarments involve offenses not much different than in cases that lead to milder sanctions, except perhaps in severity and frequency.

A record of previous disciplinary actions may lead to more severe sanctions. If, say, two lawyers committed identical offenses, one may be punished more severely if he or she has been disciplined before. Nearly all suspended or disbarred lawyers had first received some other milder form of sanction for other offenses.

Tax Conviction

Frank C. Morales of Los Angeles, for example, was suspended in 1983 for 18 months (although it was stayed) after a mid-1978 Municipal Court conviction for failure to withhold or pay payroll taxes and unemployment insurance. In 1979, on a different matter, he had been privately reproved for gross negligence.

In Pasadena, Martha Naylor Morgan last month was suspended for 30 days (and put on a year’s probation) for not communicating with a client. Last year, she was publicly reproved also for not communicating with a client as well as for refusing to return his fee and then lying to State Bar investigators.

And when Samuel Carter McMorris of Oakland was disbarred in 1983, it was the fifth time he had been disciplined. In 1977, 1978, 1979 and 1981, he was suspended, each time essentially for failure to perform services. Yet the Bar appeared willing in 1983 to take into consideration McMorris’ claim that poor health was partly to blame for his neglect. But the Supreme Court ordered McMorris be disbarred.

Mitigating Factors

Like McMorris, many lawyers on the precipice of punishment offer statements “in mitigation.” And sometimes they work.

For forging legal documents to evict tenants, for example, Deborah L. Middleton of Modesto received a one-year suspension in February. As mitigating factors, she noted that she was going through a divorce and was bedridden with a serious illness about the time of her “acts of dishonesty.” Middleton was actually suspended for only one month and put on probation for the other 11 months.

The Supreme Court, in about 90% of the cases, accepts the recommendations of the State Bar. But not always, as Jerry L. Rossman of Hayward discovered this summer.

Probation Recommended

The Bar had recommended that Rossman be put on probation for two years (by virtue of “staying” a two-year suspension) for omissions and delays in a conservatorship case that constituted “gross negligence” and “moral turpitude” and cost the estate $14,000.

Rossman had been disciplined before--a 1978 private reproof for inadequately participating in the felony trial of a client, which resulted in the reversal of the client’s conviction.

The Supreme Court, after reviewing his case, said the Bar’s recommendation was “too lenient.” It ordered a three-month actual suspension, noting that Rossman had lied in court while trying to “cover up his wrongdoings and to collect illegal fees.”

As the court wrote in the earlier McMorris case: “Although we give great weight to the State Bar’s recommendation, this court exercises its independent judgment in determining the appropriate degree of discipline to be imposed.”

Internal Disagreement

Sometimes the Bar’s review department cannot agree with its own hearing panel’s recommendations as to the appropriate punishment. This occurred in the case of Claude Eugene Dixon of Grass Valley, who was finally disbarred this summer.

Dixon in 1982 was found to have “borrowed” $10,000 from a client without the client’s written consent, lied in court on another matter and violated the confidentiality of the attorney-client relationship in order to harass and embarrass a client, among other offenses.

At the first stage, the State Bar’s hearing panel recommended that Dixon be disbarred.

Too harsh, said the Bar’s review department. It recommended a one-year suspension.

The Supreme Court imposed an actual two-year suspension, to be followed by three years of probation.

At the time, the court said Dixon’s conduct perhaps warranted disbarment. But it explained that it opted for a lesser punishment “in deference” to the review department.

New Troubles

Three years later, Dixon again was in hot water with the State Bar, essentially for taking thousands of dollars from clients for whom he did virtually no work.

This time, the Bar’s hearing panel recommended a six-month actual suspension.

Too lenient, said the review department. It recommended disbarment.

The court this time had no trouble making up its mind.

But suspensions and disbarments are not reserved exclusively for recidivists.

After a 1981 conviction for income tax evasion, Robert Earl Radke of Van Nuys was suspended for six months in 1983. And George Sanders Goldberg of Los Angeles was disbarred in 1982 as a result of his 1978 conviction for staging car accidents. A State Bar hearing panel had recommended a four-year suspension, but the review department recommended disbarment.

Sentencing Move

The recurring lack of agreement on the severity of punishment has prompted David Heilbron, a San Francisco attorney and incoming State Bar president, to introduce the notion of “determinate sentencing.”

Heilbron said it is time for the State Bar to “try to come up with rules that are clear and that indicate a range” of punishments for various offenses.

But overall, Heilbron is optimistic that the system can be improved to satisfy its severest critics.

“I’m happy with our commitment to deal with the problem,” he said in a recent interview. “But we’ve got to get moving quickly.”

One recent change is that, from now on, the offenses as well as the names of attorneys who resign while disciplinary charges are pending will be publicized. In the past, the names of those who resign with disciplinary charges pending are made public but not their deeds.

Legislation Approved

And in early September, Gov. George Deukmejian signed a far-reaching piece of legislation, sponsored by the Bar, to toughen the disciplinary mechanism.

The law, to take effect Jan. 1, empowers the Bar to effectively suspend lawyers--while a disciplinary investigation is under way--who pose “an imminent threat of harm,” such as being charged with a crime involving “moral turpitude” like murder, forgery, perjury, fraud, extortion, bribery or obstruction of justice. Now, there is no such mechanism except after criminal convictions.

The bill also requires the Supreme Court to summarily disbar a lawyer convicted of a crime involving an intent to deceive, defraud, steal or lie.

The new law also provides for expedited proceedings against lawyers who have been disciplined in another state in such a way so that, in California, only a hearing to determine the degree of punishment will be held--thus, in effect, bypassing the trial stage.

No Reciprocity

Until now, said Mahony-St. Clair of the Bar’s office of the trial counsel, “there isn’t any reciprocity.” If and when the State Bar becomes aware of misconduct in another state, she said, “we have to initiate an investigation of our own and re-prove the facts.”

The bill further allows any Superior Court on its own volition to assume jurisdiction over a law practice that has been abandoned. And it authorizes Mahony-St. Clair’s office to administer oaths, to subpoena witnesses and evidence and to enforce such subpoenas through contempt proceedings.

“We’ve come a long way from where we were just a year ago,” said Bar President Critchfield, a Livermore attorney.

Creation of New Office

One of the biggest steps was taken Sept. 14 when the Bar’s board of governors voted to create a new office of investigations, with an additional staff of about 15, to clear the backlog of uninvestigated complaints.

Creation of such an office--thus stripping Mahony-St. Clair’s office of its investigatory duties--had been the major recommendation of a special Bar subcommittee on expediting the discipline process.

Headed by U.S. District Judge Robert E. Coyle of Fresno, the panel said in its report in July that an office of investigations, if established quickly, could result in twice the efficiency in dealing with consumer complaints and could clear the backlog within two years.

Coyle said his panel justified the creation of a new office--and the inevitable management upheavals that would result in the short term--because “these are wartime conditions.”

Limited Cases

Under the reorganization, each Bar investigator would have no more than 40 cases at a time. Recently, each investigator has averaged up to 180 cases.

Coyle said the reorganization also would significantly streamline operations and reduce chaos. For instance, a consultant to the Coyle subcommittee this year received four different answers after asking four investigators the names of the people they reported to.

The Bar’s governing board directed J. David Ellwanger, the Bar’s chief executive officer, to implement the plan “as soon as is practicable.”

Most of the additional resources, including new investigators, would likely be located in Los Angeles, where two-thirds of the 8,000-plus annual consumer complaints originate.

As another way to reduce the backlog of complaints, governing board member Ronald L. Olson of Los Angeles suggested during the Sept. 14 board meeting that the State Bar recruit lawyers as volunteers to process the backlog.

Increase in Dues

The State Bar also wants the Legislature to increase its membership dues, largely to help pay for the recent initiatives enacted to expedite the discipline process. But the Legislature has adjourned until January without taking final action on the matter. Earlier, a conference committee agreed on a bill to allow a $35 increase in membership dues--$5 less than the Bar had sought.

In a further demonstration of their dissatisfaction with the Bar’s discipline process, members of that conference committee reduced the Bar’s authority to levy any dues from two years to one--thus preserving for themselves “checkpoints” in order to monitor progress made by the Bar in clearing the backlog of complaints.

There also has been talk of requiring disciplined attorneys to reimburse the State Bar for the disciplinary costs. But Mahony-St. Clair said that, while the idea is a “viable” one, most lawyers get into trouble in the first place because of financial as well as personal problems.

Money Was Lure

Money indeed was a factor that led Thomas Miles Brunwin astray, according to one of his former classmates at Southwestern University.

“He was going through a very trying period, with kids going to college,” said South Pasadena lawyer William C. Galloway. “And it just got worse and worse and worse,” he said. “It just got to be too much for him.”

Galloway represented Brunwin the first time Brunwin got into trouble with the State Bar. That resulted in an October, 1980, private reproof for “willful failure to pursue a matter with reasonable diligence, along with a failure to communicate with his clients. . . .”

18-Month Suspension

Almost exactly three years later, Brunwin was suspended by the Supreme Court because he had taken $1,500 from Glenna Widman to settle her mother’s estate but had done nothing and then refused to give her any explanation--or refund--even after a judge ordered him to do so.

But the 18-month suspension was stayed, meaning that Brunwin was put on probation for that period. The action was announced.

Unannounced at the time, though, was the fact that six new charges had been filed by the State Bar against Brunwin for continuing to commit “acts of moral turpitude and dishonesty.” Brunwin never responded to the charges and offered no evidence or explanation in his own defense.

Even then, a State Bar hearing panel was willing to merely suspend Brunwin for two years.

But the recommendation was overruled by the Bar’s review department, which recommended disbarment.

And on Feb. 21, California Chief Justice Rose Elizabeth Bird signed the official papers. It ordered that the name of Thomas Miles Brunwin “be stricken from the roll of attorneys effective forthwith.”

DISCIPLINING LAWYERS IN CALIFORNIA

These figures on disciplinary actions against lawyers in California were compiled from the state Supreme Court clerk’s office and the State Bar.

Calif. No. of No. of Year Pop. Lawyers Complaints Disbarment 1984 25.4 mil. 87,500 8,329 11 1983 24.8 mil. 80,047 8,094 12 1982 24.4 mil. 75,849 7,770 15 1981 23.9 mil. 71,495 6,946 20 1980 23.5 mil. 67,083 6,357 13

Recommended Public Private Resignations Year Disbarments Suspended Reproval Reproval Charges Pending 1984 18 81 23 48 12 1983 13 58 17 29 9 1982 17 72 21 53 15 1981 13 90 27 43 10 1980 13 53 11 42 6

HOW OTHER STATES COMPARE These figures on disciplinary actions against lawyers were compiled from the various state Supreme Court clerk’s offices and state disciplinary boards. All figures reflect 1984 decisions unless otherwise noted.

No. of No. of Public State Lawyers Complaints Disbarment Suspension Reprimand Arizona 8,800 788 5 11 13 Illinois 45,171 2,721 23 23 11 Florida (84-85) 34,849 5,514 17 51 32 Mass. (84-85) 31,399 1,522 10 26 1 Michigan (83-84) 21,467 2,808 18 35 19 New Jersey 27,801 1,079 10 13 3 New York (1983) 80,000 8,766 65 86 12 Ohio 31,000 1,200 2 42 18 Texas (83-84) 45,000 3,000 19 37 33

Private State Reprimand Other Arizona 41 -- Illinois 3 -- Florida (84-85) 56 167 Mass. (84-85) 21 37 Michigan (83-84) 155 4 New Jersey 27 -- New York (1983) -- -- Ohio -- -- Texas (83-84) 51 --

Florida and Massachussetts list “admonitions” against lawyers, Michigan lists probation decisions.

COMPLAINTS AGAINST LAWYERS

Last year, 8,329 consumer complaints against lawyers were filed with the State Bar of California. Such complaints are screened and processed by the 25 investigations in the State Bar’s Office of the Trial Counsel. From there on, many things can happen. Or not happen:

MEDITATION 30% PRIVATE REPRIMAND 3% NO VIOLATION OR INSUFFICIENT EVIDENCE 43.5% ARBITRATION 6% DISMISSED 5% FORMAL CHARGES 12.5%

Here’s what happens to those 12.5% that result in formal charges:

If the Office of the Trial Counsel believes that a complaint may involve a violation of the State Bar Act or of the Rules of Professional Conduct, it may issue a “show-cause” notice.

After meeting with the lawyer, the Office of the Trial Counsel may dismiss the matter or proceed with a disciplinary hearing. Staff attorneys in the Office of the Trial Counsel represent the State Bar as “prosecutors.” A volunteer referee (an attorney) presides. Either side may request three referees , in which case one is a non-lawyer. The referee may recommend disciplinary action or dismissal of case.

The decision is reviewed by the State Bar Court’s review department, which is not bound by the hearing department’s decision. It can issue private or public “reprovals,” but may only recommend suspensions or disbarments.

Only the state Supreme Court can suspend or disbar a lawyer. The court is not bound by the Bar’s recommendations, but follows the recommendations of the State Bar Court’s review department about 90% of the time.