“Less Than Stellar” Not Unethical

The California State Bar Court Hearing Department orders dismissal of bar charges against an attorney who was alleged to have instituted a frivolous personal injury claim where workers comp was the sole remedy.

He was not charged with incompetence.

Here, it was alleged that Respondent’s employment by Zhang in pursuing a personal injury claim against Yang between August 3, 2010 and February 22, 2016, constituted a violation of rule 3-200(B) because Respondent knew or should have known that the objective of such employment was to present a claim in litigation that was not warranted under existing law. This court disagrees.

Generally, workers’ compensation payments are the exclusive remedy of the employee when the injury is sustained by an employee arising out of and in the course of the employment. (Lab. Code §§ 3600, subd. (a) and 3602, subd. (a).) Though ineffectively argued, Respondent attempted to claim that his client, as a cook, was working outside the course of his employment while trying to repair a roof fan.

This argument, in and of itself, appears reasonable. Respondent, however, ran into trouble as a result of his inability—despite multiple opportunities—to draft a complaint that could survive a demurrer. This failing was just one example of Respondent’s less than stellar work on behalf of his client. Respondent also failed to appear for at least two hearings (including an OSC) and repeatedly filed cursory documents which appeared to be hastily written and generally devoid of any relevant authority.

But while the record calls into question the competence of Respondent’s representation, that is not what is at issue here. Respondent has been charged with a Violation of rule 3-200(B). The evidence before this court does not demonstrate, by clear and convincing evidence, that Respondent presented or maintained an unwarranted claim. Accordingly, Count One is dismissed with prejudice. 

The hearing judge also found insufficient proof of an improper motive. (Mike Frisch)

See comment below for correction.