Three Strikes And Out In California
The California State Bar Court Review Department recommends disbarment of an attorney
Dennis Patrick O’Connell, a criminal defense attorney, is charged with 19 counts of misconduct in four client matters. Those charges include four counts each of failure to perform with competence, refund unearned fees, render appropriate accounts to clients, and obtain consent from incarcerated clients before accepting attorney fees from their family members. He was also charged with improper division of a fee for legal services and failure to promptly release a client’s file. This misconduct is similar to O’Connell’s wrongdoing in two prior disciplinary matters.
The hearing judge found O’Connell culpable of 16 of the 19 charges and recommended that he be actually suspended for two years and until he provides satisfactory proof to this court of his rehabilitation, fitness to practice, and present learning and ability in the general law. The Office of Chief Trial Counsel of the State Bar (OCTC) appeals the hearing judge’s discipline recommendation and asserts that disbarment is appropriate. O’Connell also appeals, maintaining that he is not culpable as charged.
After independently reviewing the record (Cal. Rules of Court, rule 9.12), we affirm most of the judge’s findings of fact and culpability determinations. However, as this is O’Connell’s third discipline case, disbarment is appropriate under standard 1.8(b). In not recommending disbarment, the hearing judge incorrectly found that it was not warranted because O’Connell’s misconduct did not show a “habitual course of conduct.” But this showing is not required where an attorney has two prior disciplines and standard 1.8(b) applies. We do not find sufficient justification to depart from standard 1.8(b), particularly since O’Connell has committed nearly identical misconduct in his prior cases. We recommend the standard’s presumptive discipline of disbarment as necessary to protect the public, the profession, and the administration of justice.
Sanction analysis
We find no reason to depart from the presumptive discipline of disbarment under standard 1.8(b). The State Bar Court has had to intervene three times to ensure that O’Connell adheres to the professional standards required of those who are licensed to practice law in California. He has failed to meet his professional obligations since 1999 and did not present compelling mitigation. We conclude that further probation and suspension would be inadequate to prevent him from committing future misconduct that would endanger the public and the profession. (In the Matter of Moriarty (Review Dept. 2017) 5 Cal. State Bar Ct. Rptr. 511, 528 [disbarment appropriate under standard 1.8(b) for third disciplinary matter where aggravation outweighed mitigation, no compelling mitigating circumstances, and multiple instances of similar wrongdoing in disciplinary record].) The standards and decisional law support our conclusion that the public and the profession are best protected if O’Connell is disbarred.
(Mike Frisch)