“Perhaps”

A proposed 60-day suspension from the California State Bar Court Review Department

Diddo Ruth Clark is charged with three counts of misconduct related to her representation of her brother in an appeal: appearing for a party without authority, seeking to mislead a judge, and misrepresentation. The gravamen of these charges is that Clark continued to submit documents to the court on behalf of her brother after he had filed an incomplete substitution of attorney form and told Clark that he no longer wanted her to represent him.

The hearing judge found Clark culpable of one count, appearing for a party without authority, and recommended that she be actually suspended for 60 days. Clark appeals the
judge’s discipline recommendation, maintaining that she is not culpable. The Office of Chief Trial Counsel of the State Bar (OCTC) does not appeal and asks this court to uphold the judge’s culpability finding and discipline recommendation.

Upon our independent review of the record (Cal. Rules of Court, rule 9.12), we reject Clark’s arguments and, like the hearing judge, find her culpable of appearing for a party without authority. We affirm the judge’s findings of facts and law, and her aggravation and mitigation findings, except for one, and agree that a 60-day actual suspension is appropriate discipline.

The attorney had represented her brother in litigation against four other siblings.

Clear and convincing evidence from the record supports the fact that Clark knew Peter did not want her to appear for him in the appellate court proceeding as of October 20, 2015, when Peter specifically told Clark that he wanted her to stop filing documents and pleadings on his behalf. Peter had the right to prevent Clark from doing that regardless of the legal status of the substitution of attorney he filed.

She had prior discipline

OCTC asserts that Clark’s prior misconduct involved dishonesty to a court and occurred four and one-half years prior to her current misconduct. OCTC submits that therefore her prior record of discipline is a “significant factor in aggravation because it involved serious misconduct and is not remote in time.” Clark argues that no aggravation should be found because the prior discipline was based on a “false confession,” which had been improperly coerced by OCTC. We reject her argument because Clark stipulated to this prior misconduct. That matter is final, and we will not revisit it here.

Clark’s prior misconduct was serious because it involved dishonesty. In addition, we find that her failure to accept responsibility for her past wrongdoing causes concern because it shows that she does not fully understand her professional duties nor appreciate the gravity of her prior misconduct. Thus, we conclude that Clark’s prior discipline merits substantial weight in aggravation.

State of mind

We agree with the hearing judge that Clark honestly believed that she remained Peter’s attorney because she did not consent to the change as required by Code of Civil Procedure section 284. Between the time the substitution was filed and the court issued its order, Clark’s actions concurred with her honest belief that Code of Civil Procedure section 284 permitted her to continue to act as she did. She designated herself as Peter’s attorney during this time, and the court did not correct her until it issued an order nine months later. After that order, she changed her designation to “perhaps” Peter’s attorney.

The attorney produced a number of favorable character witnesses.

The recommendation is for a one-year suspension with all but 60 days stayed on conditions. (Mike Frisch)