A Question Of Authority

The California State Bar Court Review Department found that a charged attorney engaged in no ethical misconduct

Roger Sandberg Hanson, a criminal defense appellate attorney, is charged with two counts of misconduct in one client matter: appearing for a party without authority and engaging in moral turpitude for misrepresentations made during a disciplinary investigation.

The hearing judge found Hanson culpable of both charges and recommended that he be actually suspended for 90 days and placed on probation for two years. Hanson appeals the judge’s discipline recommendation, maintaining that he is not culpable as charged. The Office of Chief Trial Counsel of the State Bar (OCTC) does not appeal and asks this court to uphold the hearing judge’s recommendation.

Upon our independent review of the record (Cal. Rules of Court, rule 9.12), we find no clear and convincing evidence to support culpability as to the charged misconduct, and we further find that there appears from the facts to be no other alternative theory of culpability. The evidence fails to establish that Hanson appeared without authority or committed an act of moral turpitude. Accordingly, we dismiss this proceeding with prejudice.

The client’s sister initially had retained attorney O’Connell

O’Connell hired Hanson to help him with the Avalos case, which he told Avalos’s sister in late August 2015. On August 29, 2015, Hanson called Avalos’s sister, who expressed her concerns regarding O’Connell’s services. Specifically, she complained that O’Connell had not adequately answered her questions and that he had not yet contacted her brother. At no point during this call did Avalos’s sister inform Hanson that the family wanted to terminate the representation.

 Hanson allegedly had filed a habeas petition without authority and was found culpable by the hearing judge

Although Avalos’s sister did communicate with Hanson about the case, no evidence beyond her own testimony established that she had the authority to act on Avalos’s behalf. Avalos was the client. When Hanson learned from O’Connell that Avalos’s sister was trying to terminate the representation, Hanson immediately called her to inform her that she did not have the authority to do so because only Avalos had the ability to confer such authority. (3 Witkin, Summary of Cal. Law (11th ed. 2017) Agency and Employment, § 144, pp. 197–199 [authority conferred on agent by words or acts of principal].) Hanson and O’Connell did not have notice from Avalos that he had given his free and intelligent consent for his sister to make decisions regarding his representation. O’Connell and Hanson had a duty to protect Avalos and his interests.

As to misrepresentation

We disagree with the hearing judge’s culpability determination. Although Hanson did talk to Avalos’s sister on September 1, 2015, as noted above, she did not have the authority to terminate the representation. The record clearly shows that at all times, Hanson believed that  only Avalos could terminate the representation, which he tried to make clear to Avalos’s sister. Without authority from Avalos, his sister could not terminate either O’Connell or Hanson.

(Mike Frisch)