Bad Break Up

Conduct in the wake of the breakdown of a romantic and attorney-client relationship drew a proposed 18-month suspension from the California State Bar Court Review Department.

The relationship

In the summer of 2017, Vargas and Denise Diggs met online and began dating. At the time, Vargas resided in San Francisco and Diggs lived in the Los Angeles area. During the early stages of the relationship, around November 2017, the couple agreed to sublease an apartment in San Francisco for $2,750 per month. In April 2018, Diggs moved out and informed Vargas that she would no longer be paying any portion of the rent.

Prior to the start of their relationship, Diggs was renting a residence in the Los Angeles area. When Vargas and Diggs lived together in San Francisco, Diggs maintained that residence in Los Angeles. Over the course of their relationship, the couple’s interactions became increasingly strained. Despite their rocky relationship, Vargas agreed to represent Diggs in connection with landlord-tenant issues in Los Angeles. On February 5, 2018, Vargas filed a complaint in superior court against Diggs’s landlord, alleging breach of warranty of habitability issues and related torts with her residence, and on May 11, he filed an answer to an unlawful detainer complaint that the landlord had filed against Diggs.

The falling out is recounted in detail.

In count three, OCTC alleged Vargas violated section 6106 by (1) hacking and accessing Diggs’s private social media accounts; (2) running unauthorized credit reports using information he obtained from Diggs as her attorney; (3) using, changing, or creating social media accounts for her, or the data in those accounts, even though, on or about August 9, 2018, respondent was told by Diggs to stop using her social media accounts, running her credit report, and using her private information. This count also alleged Vargas acted without authority and without Diggs’s knowledge or consent.  The websites involved in the allegations were Experian, Verizon, Pinterest, Pure.dating (a dating app), Nextdoor.com, Microsoft, Dropbox, and DocuSign.

The hearing judge found Vargas culpable on all the allegations except two―she concluded there was no clear and convincing evidence that Vargas improperly accessed Diggs’s DocuSign account or that he created accounts in Diggs’s name on the dating apps Pure.dating or Mingle2.com, and OCTC did not appeal those factual findings. Section 6106 provides, in part, that the commission of any act involving dishonesty, moral turpitude, or corruption constitutes a cause for suspension or disbarment. As explained below, we do not find that the remaining allegations amounted to moral turpitude as charged.

In his response letter to the OCTC investigator, Vargas admitted to accessing or attempting to access Diggs’s Pinterest, Nextdoor.com, Microsoft, Dropbox, and Verizon accounts. Vargas argues he only accessed the accounts because Diggs had done the same with his accounts as early as 2017 when they first began dating. He testified they had a mutual agreement to share each other’s passwords for various social media accounts. Regarding Vargas’s use of Diggs’s social security number, Vargas testified that he obtained it from her prior to the start of the attorney-client relationship, only using it on the Experian website in an attempt to find her new address for the purpose of serving the small claims lawsuit, but stated he did not actually run her credit report. We see no evidence in the record that contradicts Vargas’s testimony on these points.

The State Bar Court

The record as discussed previously reveals numerous instances during the course of the attorney-client relationship where Vargas’s conduct fell far short of his duties to Diggs, and his actions ultimately became retaliatory and vengeful. Vargas clearly breached his statutory duty to Diggs, along with his common law duty to her, on multiple occasions by threatening to withdraw and not work on her case as he became upset over the course of their volatile romantic relationship. He continued to breach his duties to Diggs by engaging in a campaign of harassment against her after their romantic relationship ended that involved insults and crude messages, threats, sexually explicit photographs, unfounded accusations, and the small claims action, all of which are appalling and disturbing.

Sanction

We also find that an 18-month actual suspension is the appropriate recommendation to make, even though the culpability we find is less than the culpability the hearing judge found. This recommendation is in line with the similar cases of Rodgers and Hertz, and less than Torres, which had greater misconduct. We also determine it is necessary to recommend as probation conditions that, inter alia, Vargas establish rehabilitation to return to the practice of law and obtain mental health treatment in order to protect the public, the courts, and the profession. 

(Mike Frisch)