The Wrong Lopez
The California State Bar Court Review Department agreed that a one-year suspension should be imposed (as argued by the Office of Trial Counsel) but also agreed that misappropriation had not been proven (rejecting OTC’s contentions)
This case arises out of Tina Amouei Nia’s misconduct in two client matters. In one matter, a hearing judge found her culpable of failing to promptly pay client funds. In another, the judge found her culpable of failing to promptly pay client funds, failing to promptly notify clients of receipt of funds, accepting representation of clients with potential conflicts without obtaining their informed written consent, and making a false representation. These findings are uncontested on review.
At issue are two misappropriation counts the hearing judge dismissed (one from each client matter) and the factors in aggravation and mitigation. After weighing the aggravation (multiple acts and bad faith) and mitigation (good faith, extreme emotional difficulties, cooperation, good character, and community service), the judge recommended a 120-day actual suspension.
The State Bar’s Office of the Chief Trial Counsel (OCTC) appeals, seeking a one-year actual suspension. It argues Nia is culpable of the misappropriation counts and not entitled to any mitigation credit. OCTC also asks us to find lack of candor as additional aggravation.
Nia did not appeal or file a responsive brief on review.
After independently reviewing the record (Cal. Rules of Court, rule 9.12), we affirm the culpability findings of the hearing judge. We find no support in the record for OCTC’s theories of misappropriation, and thus affirm the dismissal of those counts. However, we agree that Nia deserves less overall mitigation and significantly more aggravation than afforded by the hearing judge. In particular, we are extremely troubled by Nia’s attempt to pass someone else off as the complaining witness to secure withdrawal of the disciplinary complaint. We also find that her lack of candor at trial on this issue further aggravates her misconduct, increasing our concern. Such deception is inappropriate and unbecoming of a member of the legal profession who is expected to adhere to the highest ethical standards. Accordingly, we find a one-year actual suspension is appropriate and necessary to protect the public and the legal profession.
The failure to prove misappropriation
We find that Nia’s claim of entitlement to the funds was based on several reasons. To begin, both the First and Second Retainer Agreements stated that Nia earned fees on awards beyond anything owed to “3rd party lien-holders.” Since no third party lienholders were owed for Lukens’s property damage claim, Nia believed she was entitled to fees, which Lukens did not question until after Nia withdrew them. Next, Nia testified that she explained to Lukens when she signed the Second Retainer Agreement that Nia would be taking attorney fees from the property damage recovery. The hearing judge found Nia’s testimony credible, and we give this finding great weight. (In the Matter of Respondent H (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 234, 240 [hearing judge’s credibility findings given great weight]; McKnight v. State Bar (1991) 53 Cal.3d 1025, 1032 [hearing judge best suited to resolve credibility questions].) Lastly, Lukens sent Nia’s office an email on October 1, 2010, stating that she was “checking in . . . regarding the loss of use and tow money.” However, she said nothing to indicate that she disputed Nia’s entitlement to fees.
There was, however, bad faith dishonesty with the Bar
Nia intentionally misrepresented to [investigator] Almaguer that Patricia Lopez was on the conference call and wanted to withdraw her State Bar complaint. Nia knew that Sylvia Lopez was the person on the phone, and, significantly, that Patricia Lopez, the actual complaining witness, had clearly declined to withdraw the complaint. Nia’s actions are exacerbated by the fact that she had previously called Patricia Lopez on numerous occasions and “harassed” her to withdraw her complaint. When Lopez refused, Nia resorted to this impersonation tactic.
We also agree with OCTC that Nia’s lack of candor on this issue at trial further aggravates her misconduct. She testified that she inadvertently called Sylvia Lopez, and did not realize she had the wrong Lopez on the phone. The hearing judge rejected Nia’s account, and, upon our independent review, we also find Nia’s version of events implausible. Nia had called Patricia Lopez several times in close proximity to the conference call with the State Bar, including the day before, when she spoke with her for 30 minutes. Nia obviously knew her phone number, her voice, and her English language skills, and, particularly, that Patricia Lopez did not want to withdraw her complaint.
But there nonetheless still mitigation given for cooperation.
The hearing judge gave Nia slight weight in mitigation for her cooperation with the State Bar. We agree. This case proceeded to trial on nine counts of misconduct in two client matters. Nia stipulated to limited facts that were easily provable and to culpability for only one count of misconduct.
(Mike Frisch)