Comstock Load

The California State Bar Court Review Department rejected mitigation found by a hearing judge and recommended disbarment of an attorney who had failed to comply with notice obligations of an earlier suspension.

This case illustrates the perils faced by an attorney who disregards the most basic of his discipline responsibilities. In this proceeding, Victor Marcel Comstock faces discipline for the third time for failing to file a compliance affidavit as required by California Rules of Court, rule 9.20(c). For this violation, the hearing judge recommended Comstock receive a two-year actual suspension, conditioned upon satisfactory proof of his rehabilitation. The Office of the Chief Trial Counsel of the State Bar (OCTC) appeals and urges that disbarment is the appropriate discipline. Comstock does not appeal. He concedes culpability and supports the hearing judge’s recommended discipline.

…we give less weight in mitigation for Comstock’s recovery from his emotional difficulties and substance abuse, which span almost 30 years and were a significant factor in his misconduct. His four months of sobriety at the time of trial is an insufficient period to show the requisite rehabilitation.

A suspended attorney must file an affidavit demonstrating compliance with the order of suspension.

Here, the attorney failed to do so in a timely manner but eventually complied.

He described how OCTC’s petition for disbarment shocked him into action; he retained counsel and he enrolled in the State Bar’s Lawyer Assistance Program (LAP), seeking treatment to assist him in recovery. On October 2, 2013, the hearing judge found “good cause” to grant Comstock’s motion, lifted the default, and ordered that his verified answer be filed.

Since then, Comstock participated fully in these proceedings and has been wholly cooperative. Weeks before trial, he entered into a Stipulation as to Facts and Admission of Documents (Stipulation). OCTC tendered the Stipulation as its only evidence at the hearing below, and the hearing judge immediately made a culpability finding. This allowed the trial to proceed directly to the discipline phase, which consisted solely of Comstock’s testimony in mitigation.

Disbarment is appropriate, according to the review department

Where professional misconduct is attributed to chemical dependency, “a heavy burden remains on [the respondent] to demonstrate the kind of totally effective rehabilitation that would justify relief from or substantial reduction of discipline.” Here, we do not have adequate assurances that Comstock’s addiction no longer poses a risk to the public, the courts, and the profession. As such, we are unable to justify a departure from disbarment as provided by standard 1.8(b). (citations omitted)

My take:

I respectfully disagree.

The hearing judge’s analysis of the “wake up call” evidence gives me enough confidence to give weight to the attorney’s recovery efforts.

Based on my experience, I suspect that the untimely affidavit compliance puts him in the top percentile of suspended lawyers. 

Unless there is some evidence of practice in violation of the suspension order, the misconduct found here is not disbarment-worthy. (Mike Frisch)