Another Marijuana-Related Disbarment
The California State Bar Court Hearing Department recommends disbarment f or misappropriation
All three matters arose from DeAguilera’s representation of clients seeking to operate medical marijuana dispensaries (MMDs) in Southern California, in 2013–2015, pursuant to California Proposition 215 and augmenting state laws. At that time, Proposition 215 allowed the dispensing of marijuana to medical patients. However, federal and state law provided criminal sanctions for the use, possession, cultivation, and transportation of marijuana. The medical marijuana laws did not preempt California cities from enacting land use controls prohibiting or strictly regulating the placement and operation of MMDs. (See generally City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 737–740, 762–763.)
DeAguilera had extensive experience in California municipal government and land use matters commencing long prior to his admission to practice law in 1993. He testified that he had served, inter alia, as Assistant City Manager of Victorville, City Manager of Adelanto just after its incorporation, Planning Director of Loma Linda, Environmental Review Board Officer of San Bernardino County, and Planning Officer for the redevelopment and conversion of Norton Air Force Base in San Bernardino County to civilian use. He had also worked on water, land use, and redevelopment matters, respectively, in the Lake Tahoe area and with the City of Los Angeles. By 2013, he was quite familiar with the state of the law affecting the authority of local government to regulate MMDs, including the Supreme Court’s decision in City of Riverside, supra
The violations
After a four-day trial, a State Bar Court hearing judge found James DeAguilera culpable of five instances of professional misconduct in two client matters. In one of the matters,
DeAguilera was found to have violated ethical rules by failing to deposit into a proper client trust account (CTA) $50,000 of cash being held for his client’s business venture, and to have committed two acts of moral turpitude, first, by misappropriating $22,600 of his client’s trust funds, and second, by misrepresenting facts to his client. In a second client matter, the hearing judge found that DeAguilera failed to give his client a prompt accounting of advance fees he had received; and, in jointly representing this client and another, failed to follow the ethical rules to disclose to both clients the potential conflicts of interest they could face and to obtain their written consent to continued representation as required by the ethical rules.
On review
We have independently reviewed the record (Cal. Rules of Court, rule 9.12). We hold that, except for the rule violation of a failure to disclose a potential conflict of interest in the
second client matter, clear and convincing evidence1 supports all of the hearing judge’s findings and conclusions of culpability, and that the found misappropriation and misrepresentation did arise from willful misconduct. We reject DeAguilera’s defenses as unsupported. We determine that his misappropriation was serious enough to warrant disbarment even if he had no prior discipline. But since rehabilitative measures of prior discipline did not prevent the present misconduct, which started even before his probationary period had ended, and considering the serious aggravating evidence and minimal mitigation, we can only protect the public, courts, and legal profession adequately by recommending disbarment, as did the hearing judge.
(Mike Frisch)