The California state Bar Court Review Department

This case illustrates two different issues important to the development of lawyer disciplinary law. First, it reemphasizes the improper use of Business and Professions Code section 6068, subdivision (a) (duty of attorney to support constitutions and laws of United States and California), when an applicable rule of professional conduct is charged. Second, and most salient, this matter reflects the important role of mitigation and aggravation evidence in assessing appropriate discipline. Indeed, the facts developed in this matter represent an effective presentation of mitigation in support of a downward departure from the discipline set forth in the Standards for Attorney Sanctions for Professional Misconduct. Where, as here, a respondent exhibits overwhelming and convincing mitigation, discipline for even very serious misconduct may be mitigated.

Respondent George Martin Derieg committed misconduct in a single client matter, including misappropriating client funds and making misrepresentations to a probate court regarding those funds. A hearing judge recommended a 15-month actual suspension. The Office of Chief Trial Counsel of the State Bar (OCTC) appealed, arguing Derieg should be disbarred, or at least subject to a two-year actual suspension continuing until Derieg proves rehabilitation, fitness to practice, and learning and ability in the general law. Derieg does not appeal and asserts the hearing judge’s recommendation is “more than adequate.”

Upon our independent review of the record (Cal. Rules of Court, rule 9.12), we affirm the hearing judge’s recommendation of a 15-month actual suspension. Derieg’s mitigation weighs heavily in reducing the discipline of his serious misconduct, which was aggravated by a finding of multiple acts of wrongdoing. A 15-month actual suspension is sufficient to fulfill the purposes of discipline in this case. Derieg does not challenge culpability on review, practiced for 11 years before committing the misconduct, promptly repaid the funds, completed a seminar on probate practice, hired an experienced paralegal, and has expressed remorse. He established sufficiently compelling mitigating circumstances, demonstrating that actual suspension, not disbarment, is appropriate here. In addition, as detailed post, disbarment is not necessary here to protect the public, the courts, and the legal profession.

Oath issue

we affirm the hearing judge’s dismissal of count six with prejudice. (In the Matter of Kroff, supra, 3 Cal. State Bar Ct. Rptr. at p. 843.) We find that the judge appropriately found Derieg culpable of the properly alleged former rule 4-200(A) violation contained in count seven, as discussed post. (See In the Matter of Phillips, supra, 4 Cal. State Bar Ct. Rptr. at p. 323 [illegal fee under former rule 4-200(A) where attorney did not obtain court approval as required under Prob. Code].)