A Whole Lotta Misconduct

The perceived weakness of a client’s case is no justification for mishandling it, according to a recent decision of the California State Bar Court Review Department.

The court recommends disbarment in light of an extensive record of prior discipline.

From the very outset of his retention by Smiley, [attorney] Lotta believed her case was weak. His doubts were confirmed after she was deposed by her former employer, Rite Aid, yet he neither withdrew nor took affirmative steps to protect her interests. Instead, Lotta pursued an unauthorized strategy of inaction, intentionally failing to respond to Rite Aid’s discovery requests or to oppose its motions to compel, for summary judgment, and for terminating sanctions. Ostensibly, his objective was to avoid revealing to Rite Aid the weakness of Smiley’s case.

Lotta did not effectively communicate his dire assessment of the case or his plan of inaction to Smiley, who continued to believe that her claims had merit and that he would pursue them. Not surprisingly, Lotta’s strategy led to the dismissal of Smiley’s case and the imposition of sanctions and costs against her. This outcome understandably dismayed and bewildered Smiley, who in her plainspoken testimony below, asked the very questions that are central to this matter: “So, if you ain’t got a case, then why did he take the case and send you through all this here . . . ? Why you accept the case? I would have went to another attorney to get me an attorney . . . .”

On sanction

 In assessing the proper discipline for Lotta’s misconduct, we consider two of his three prior discipline records, and find that standard 1.8(b) applies. Because his mitigation is not compelling and does not clearly predominate over his misconduct, we recommend that Lotta be disbarred, particularly in light of his lack of insight into the nature and seriousness of his present and prior misconduct, which has resulted in harm in at least 11 client matters.

The attorney had sought no further discipline in light of an earlier 90-day suspension. (Mike Frisch)