Taking Time Off

The California State Bar Court Review Department has recommended disbarment for a sanctioned attorney’s failure to comply with the notification and candor obligations of a suspension order

For Mitchell’s various ethical violations, the hearing judge recommended a two-year stayed suspension, actual suspension of six months, and a two-year probation. On November 15, 2021, the Supreme Court adopted the recommendation and ordered Mitchell to “comply with California Rules of Court, rule 9.20, and perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar days, respectively, after the effective date of this order.”4 (S270462.) This recommendation was also included in the Hearing Department decision, which included a footnote alerting Mitchell that for purposes of compliance with rule 9.20(a), the operative date for identifying clients and others to be notified is “the filing date of the Supreme Court order, not any later ‘effective’ date of the order. (Athearn v. State Bar (1982) 32 Cal.3d 38, 45.)” The Supreme Court order also provided that failure to comply with rule 9.20 “may result in disbarment or suspension.” Mitchell’s suspension was effective on December 15, 2021.

Findings

Here, Mitchell used the guise of hiring a new associate to alert her clients that she was taking time off and would be substituting out of their cases. Although there was testimony that some clients were told about the suspension in person or on the phone, the record does not contain evidence that Ramirez, Casas, Allured, Smith, and Fuller were ever told about the suspension before it went into effect. Further, Chavez was not found to be indifferent, and he admitted to facts that established some culpability. Mitchell also committed additional misconduct beyond the rule 9.20 charges— failing to account to two clients, improperly acquiring a pecuniary interest adverse to a client, and failing to refund unearned fees. She accepted responsibility for none of her misconduct.

Mitchell’s failure to accept responsibility for her actions is quite concerning. (See In the Matter of Layton (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 366, 380 [ongoing failure to acknowledge wrongdoing instills concern that attorney may commit future misconduct].) She shifted blame to her staff, the associate attorney, and even her clients for her misconduct, and continues to do so. This aligns with her behavior at the time the Supreme Court filed the order imposing suspension. She had difficulty admitting to her clients that she was going to be suspended. Instead, she said she was going on vacation or taking time off, implying that she would be back soon to continue working on her clients’ cases. She said she “disappeared” from the office and thereby did not ensure the substitution forms were actually filed, yet argues that she believed she needed to substitute out of her cases in order to comply with rule 9.20. Mitchell lacks understanding of the seriousness of her misconduct and how her actions harmed the public, the courts, and the legal profession.

We agree with the hearing judge that the facts underlying this case are not comparable to other attorney discipline cases where disbarment was not imposed. Her case shares several similarities to Babero where the attorney “failed to notify all of his clients, any of his opposing counsel, or any of the tribunals in his cases, and failed to execute proper substitution of counsel forms.” (In the Matter of Babero, supra, 2 Cal. State Bar Ct. Rptr. at p. 333 [disbarment for violating predecessor to rule 9.20].) Like Babero, Mitchell “has not presented a convincing case of mitigation, diligence, and rectification” of her misconduct. (Id. at p. 334.) Rather, she neglected her notification duties, falsely verified to the courts that the information in her compliance declaration was correct, and showed no understanding of the potential harm to her clients and the public resulting from her misconduct.

Mitchell committed serious misconduct including failing to comply with the notice requirements of rule 9.20 and knowingly making false statements in her compliance declaration. Mitchell’s misconduct was central to the practice of law. Filing a false compliance declaration “not only undermines the ability of the courts to rely on the accuracy of sworn declarations, it also diminishes the public’s confidence in the integrity of the legal profession.” (In the Matter of Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 151, 157.) Mitchell’s dishonesty and subsequent indifference warrant disbarment here, and we affirm the hearing judge’s recommendation of disbarment.

(Mike Frisch)