I Declare

An unpublished recommendation for disbarment of the California State Bar Court Review Department rejected a number of charges because the evidence was presented by declaration rather than live

This is respondent Lorraine Dickson’s second disciplinary proceeding. It involves our evidentiary rules, on the one hand, and Dickson’s serious misconduct, on the other. During the first part of Dickson’s trial, the Office of the Chief Trial Counsel of the State Bar (OCTC) presented its case in six client matters by relying on direct testimony from witnesses and documentary evidence. After a break of several months, and over Dickson’s objections, OCTC presented its case in the remaining matters by relying on declarations, in lieu of live testimony, and other documentary evidence. Ultimately, the judge found Dickson culpable of 44 counts of misconduct, and further found five factors in aggravation (prior record, multiple acts/pattern of misconduct, dishonesty and concealment, significant harm, and indifference) and one factor in mitigation (emotional/physical difficulties). The judge recommended disbarment.

After independently reviewing the record (Cal. Rules of Court, rule 9.12), we find that the judge erred in relying solely on the witness declarations in lieu of testimony to support his findings in eight client matters. We dismiss those matters, and the counts therein, with prejudice. Nevertheless, we affirm the judge’s disbarment recommendation because Dickson is culpable of 21 counts of misconduct, which is serious in its breadth and reveals an ongoing disregard for the public, the courts, and the legal profession.

The change in procedure came at a break in the proceedings

Over six days in the fall of 2012, OCTC presented its case in six client matters through the testimony of witnesses, including Dickson, and documentary evidence. In turn, Dickson cross-examined the witnesses. The trial was then continued to May 2013 because Dickson underwent emergency surgery.

Thereafter the evidence consisted of declarations, which led the Review Board to conclude

the judge did not err in admitting the declarations. Admission was proper under rule 5.104(C) because the statements are relevant, and signed declarations are the type of evidence relied on in serious matters.  Nevertheless, as out-of-court statements offered to prove the truth of the matters stated, the declarations are hearsay evidence, not direct testimony, even though the judge gave Dickson an opportunity for cross-examination…

Further, in the eight at-issue matters, the charges were based on clients’ disputed versions of events. Without direct testimony, the judge did not have the opportunity to observe the clients’ demeanor or evaluate their credibility — essential information where a complaining witness’s version of events is the basis for the allegations…

As such, we find the judge improperly relied on declarations “to support a finding.” (Rules Proc. of State Bar, rule 5.104(D).) He could only “use” this hearsay to explain or supplement “other evidence.” (Ibid.) The evidence in the following matters is comprised almost exclusively of hearsay declarations and other hearsay documentary evidence…

The few exhibits containing evidence that is admissible over objection in civil actions, such as party statements, do not provide clear and convincing proof of Dickson’s culpability.

This strikes me as a significant decision.

Can California readers tell us the reason why so few disciplinary decisions are published? (Mike Frisch)