Bar Charges Dismissed With Prejudice
The California State Bar Court Review Department has dismissed a case in which the hearing judge had found misconduct and recommended disbarment
After a four-day trial, a hearing judge found Robert Howard Sack culpable of committing an act of moral turpitude by making false statements in connection with his personal application for unemployment mortgage assistance benefits. The judge recommended that Sack be disbarred, given his disciplinary history…
After independently reviewing the record (Cal. Rules of Court, rule 9.12), we conclude the evidence falls short of establishing that Sack committed the charged misconduct. We therefore dismiss this case with prejudice.
The case
In a narrowly drawn Count One of the [Notice of Disciplinary Charges] , [Office of Chief Trial Counsel] alleged that Sack violated Business and Professions Code section 6106.2 It charged that he misrepresented he was “unemployed” and that “his only source of income was [California Employment Development Department (EDD)] benefits” in an application for personal mortgage assistance with a program called Keep Your Home California (KYHC). In finding culpability, the hearing judge found that “the record clearly establishes” that Sack “deliberately” made the alleged misrepresentations. Specifically, the judge found that Sack “applied for KYHC benefits based only on his being unemployed and not on his being underemployed.” We find, however, that the evidence does not support either the allegation or the hearing judge’s finding…
We also acknowledge that our finding runs contrary to that of the hearing judge. We conclude, however, that the judge overlooked Wendorf’s credible testimony that the “Unemployment” box checked on the UMA application referred to Sack’s wife, not Sack, and that Sack had income other than EDD benefits from his part-time work as a paralegal. Further, some of the judge’s other findings were not supported by clear and convincing evidence. For example, the judge found that “KYHC’s record of an October 15, 2012 telephone conversation with [Sack] . . . supports a finding that [Sack] affirmatively misrepresented his employment status and the sources of his income to KYHC . . . .” In fact, no such call occurred, as shown in the KYHC record. Instead, this record merely indicated the date on which Wendorf entered information gleaned from Sack’s EDD file, including his award letter, into KYHC’s client notes.
The Review Department conclusion
In sum, OCTC failed to prove the specific misconduct alleged in the NDC. Count One charged that Sack made two misrepresentations on September 25, 2012 in his UMA application. OCTC did not amend the NDC to assert a new theory of professional liability. (See Rules Proc. of State Bar, rule 5.44(C) [court may permit amendment, but respondent entitled to reasonable time to respond and to prepare defense if he objects to evidence].) We must determine Sack’s culpability based on the allegations before us. Given the trial evidence, and resolving all reasonable doubts in Sack’s favor (Alberton v. State Bar (1984) 37 Cal.3d 1, 11), we find he is not culpable of making the misrepresentations charged in Count One. Accordingly, we dismiss this case with prejudice for lack of evidence.
Given the conclusion, no sanction analysis was considered. (Mike Frisch)