In the Matter of Respondent DD

Review Department (2024) 6 Cal. State Bar Ct. Rptr. 90

Overview

This published decision clarifies an important principle in California attorney discipline: the existence of aggravating circumstances does not automatically preclude an admonition.

Respondent committed a single count of commingling under Rule 1.15(c) by issuing 14 checks from his client trust account (CTA) to pay personal and business expenses during the early months of the COVID-19 pandemic. No client funds were lost and no client was harmed. The Review Department affirmed the hearing judge’s decision to issue an admonition rather than formal discipline.

Background: A Long Discipline-Free Career

Respondent was admitted in California in 1992 and had practiced approximately 28 years without discipline before the events at issue. Prior to California licensure, he had also practiced in Maryland and Pennsylvania without incident.

His practice evolved over time:

• Immigration and asylum matters
• Advising boxing promotion companies and negotiating contracts
• Bankruptcy representation
• Small business and individual clients in mixed hourly/contingency matters

He opened his first client trust account in 2016, relatively late in his career. Before that, his practice did not require regular CTA use.

The COVID-19 Disruption

The misconduct occurred between March 2020 and June 2021 — the first 16 months of the pandemic. During that time:

• Bank branches closed, limiting in-person banking.
• The CTA did not allow online transactions.
• Respondent’s hourly client base sharply declined.
• His bookkeeper shifted to part-time due to health and family issues.
• Respondent faced personal stressors, including his father’s death and his mother’s stroke.

With limited staff support and physical access constraints, Respondent began writing checks directly from his CTA to pay business expenses. Fourteen checks totaling approximately $30,366 were issued.

Critically:

• The CTA contained sufficient earned and undisputed fees to cover all disbursements.
• No client funds were depleted.
• No client complained or suffered harm.

Culpability: Rule 1.15(c) Commingling

Rule 1.15(c) prohibits commingling attorney funds with client funds and requires that earned fees be withdrawn at the earliest reasonable time.

Even though:

• Respondent had sufficient earned fees in the CTA,
• No client funds were misappropriated,
• No client was harmed,

the court held that writing personal and business checks directly from the CTA caused client funds to lose their separate identity, constituting commingling. Intent to deceive is not required for a violation.

Presumptive Discipline vs. Admonition

Standard 2.2(a) provides a presumptive three-month actual suspension for commingling. However, admonition is permitted under Rule 5.126(A) if:

• The matter does not involve a Client Security Fund claim,
• The offense is not a “serious offense,”
• No significant harm resulted, and
• The violation occurred under mitigating circumstances.

Mitigation (Compelling)

Respondent voluntarily completed Ethics School and CTA School, required his accountant to attend CTA School, and implemented improved accounting safeguards.

Aggravation

The sole aggravating factor was multiple acts of wrongdoing (14 checks), which the court assigned limited weight because they comprised a single commingling count.

Key Legal Clarification

The court rejected OCTC’s argument that:

• All commingling is inherently “serious” misconduct.
• The presence of any aggravation automatically bars admonition.
• An admonition is only available for “very minor” misconduct.

The court emphasized that Rule 5.126 focuses on intentional dishonesty, moral turpitude, and corruption — none of which were present.

Holding

Practical Takeaways

• Commingling does not require client harm to constitute a violation.
• Mitigation can justify deviation from presumptive suspension.
• Aggravation does not automatically eliminate admonition eligibility.
• Prompt remedial education and procedural reform are powerful mitigation tools.
• Long discipline-free practice remains highly persuasive mitigation.