The Importance Of Honesty

The California State Bar Court Review Department proposes that an attorney without a record of prior discipline be disbarred

This matter emphasizes the importance of honesty in the practice of law. Where multiple instances of misrepresentation and misappropriation occur along with other misconduct, the most serious discipline is appropriate even in cases where an attorney has no prior misconduct.

In her first discipline matter, Linda Darlene Lucero proceeded to trial on a total of 33 counts in this consolidated matter. The 33 counts alleged multiple instances of failure to deposit client funds into a trust account, misappropriation of client funds, failure to turn over client files, failure to perform with competence, and misrepresentations to clients and to the Office of Chief Trial Counsel of the State Bar (OCTC). The hearing judge found Lucero culpable on 32 of the 33 counts, that aggravation outweighed a single mitigation factor, and recommended disbarment.

Lucero disputes the culpability findings on 28 of the 32 counts but concedes culpability as to four. Lucero also challenges the trial itself, asserting it was “unfair” because: (a) the hearing judge did not, sua sponte, provide an accommodation pursuant to the Americans with Disabilities Act (ADA) and rule 1104 of the State Bar Court Rules of Practice; (b) ex parte communications occurred between the hearing judge and OCTC; and (c) the judge exhibited bias. Lucero also disagrees with the judge’s analysis of aggravation and mitigation factors. Lastly, she argues an actual suspension or less is the appropriate discipline in this matter. OCTC agrees with the judge’s determinations regarding culpability, aggravation and mitigation factors, and that Lucero’s conduct warrants disbarment.

Upon our independent review (Cal. Rules of Court, rule 9.12), we reject Lucero’s claims of procedural unfairness and find her culpable on 31 of the 32 counts of misconduct found by the hearing judge. Due to the serious nature and extent of her misconduct and the weight of aggravating factors in relation to mitigation, disbarment is the appropriate sanction to protect the public, the courts, and the legal profession.

The ADA claim was raised because the hearing had been conducted remotely

We find no instance where Lucero made a written or oral request for an accommodation either before or during trial. We find no instance, prior to or during trial, where Lucero identified a physical or medical issue about her inability to hear. Lucero concedes on review there were only implied, constructive requests. We find no instance where Lucero made a showing at trial (or on review) that she is a “disabled individual” as that term is defined in the applicable statutes and rules. Nor does she articulate what accommodation was needed.

What the record does show is that Lucero occasionally experienced technical difficulties that had limited and sporadic impact on her ability to hear. Lucero was not the only trial participant to experience transitory technical problems. Interestingly, Lucero often claimed it was OCTC counsel she could not hear during trial. There were times other participants also had difficulty hearing OCTC counsel, which further undercuts Lucero’s contention that it was her disability that was the basis of her inability to hear. During the course of trial, OCTC counsel made adjustments to his microphone or his position, which cured the problem.

Moreover, a full review of the record also shows Lucero frequently claimed to not understand questions put to her; not an inability to hear. In this regard, the record has numerous instances where the hearing judge attempted to aid Lucero.

Bias claim

On review, Lucero asserts there were ex parte communications between OCTC and the hearing judge and provides three examples. We find each of the three claimed ex parte communications allegations to be speculative, conclusory, and without evidentiary support. First, Lucero contends OCTC counsel’s response to a court clerk on the third trial day about OCTC’s poor sound quality that “[the judge] said the same thing[;] [i]t sounds like I’m sitting in a wind tunnel,” is evidence of a case-related ex parte communication because on other trial days the judge commented she could hear OCTC counsel. This is pure conjecture. Lucero’s next assertion of an ex parte conversation involves OCTC counsel opining to Lucero, in a telephone call, that the judge raised the topic of a voluntary settlement conference because the judge “wanted her to see she did not have a chance.” At trial, Lucero raised the issue with the judge, who unequivocally denied any ex parte communication with OCTC. Finally, Lucero’s third example of a purported ex parte conversation is premised on the judge’s questions to Lucero about the configuration of her office before there was evidence on that topic. Lucero asserts that the only way the judge would know what questions to ask would be due to ex parte conversations with OCTC. Lucero ignores the fact that OCTC proffered an OCTC investigator’s report that included a description of the interior of her office as a new exhibit during trial. The judge stated on the record she had reviewed the new report before she questioned Lucero on the topic.

Similarly, Lucero’s bias accusations leveled at the hearing judge are without support in the record. At oral argument Lucero claimed the judge called her “absurd.” In fact, Lucero used the term, and the judge simply returned the phrase when addressing Lucero’s factually inaccurate claim that during the trial a phone was not ringing in her office. Lucero also claimed on review the judge improperly instructed a witness (Johnny Murphy) not to answer Lucero’s question about whether he had been incarcerated around the time she purportedly sent a letter terminating her representation.

This claim

ignores the principle that a judge “has both the discretion and the duty to ask questions of witnesses, provided this is done in an effort to elicit material facts or to clarify confusing or unclear testimony.”

Misconduct

Lucero is culpable of multiple misrepresentations to OCTC regarding the Amir, Johansen, Oren, and Aviles matters. She conceded culpability for her misrepresentation to the expert witness in the Amir matter. Lucero lied to OCTC during its investigation when she claimed to have repaid Oren’s funds. These acts of moral turpitude are serious misconduct.

Discipline

We recommend that Linda Darlene Lucero, State Bar Number 283081, be disbarred from the practice of law in California and that her name be stricken from the roll of attorneys.

(Mike Frisch)