Facts

Thomas Riordan was appointed lead counsel for Richard Turner’s automatic appeal from a capital sentence in 1991. Despite lacking death penalty appellate experience, Riordan accepted the appointment. He worked with California Appellate Project (CAP) staff attorneys for guidance. After unsuccessfully seeking to withdraw, Riordan obtained eight extensions of time to file the appellant’s opening brief (AOB) over almost two years but ultimately failed to file it.

In 2001, the California Supreme Court relieved Riordan as counsel, found him in contempt, ordered him to pay a fine and reimburse the Court for fees paid to prepare the AOB. Riordan failed to timely report these sanctions to the State Bar. The State Bar filed disciplinary charges, and the hearing judge recommended public reproval.

Procedural Posture

Both Riordan and the State Bar appealed the hearing judge’s decision. Riordan sought reversal of the culpability findings, while the State Bar urged an actual suspension. The Review Department reviewed the record independently.

Issue(s)

Did Riordan’s conduct warrant disciplinary action, and if so, what was the appropriate level of discipline, considering the seriousness of the misconduct and any mitigating or aggravating factors?

Holding

The Review Department affirmed the culpability findings but modified the discipline to a six-month stayed suspension and one year of probation, finding public reproval insufficient.

Reasoning

The Review Department found clear and convincing evidence to support the culpability findings:

• Failure to Perform Competently: Riordan recklessly failed to perform legal services competently by not filing the AOB despite numerous extensions. The Court has not accepted Riordan.
• Failure to Obey Court Orders: Riordan willfully violated Section 6103 of the Business and Professions Code by failing to comply with the Court’s orders to file the AOB. The bad faith is not a requirement.
• Failure to Report Judicial Sanctions: Riordan failed to timely report the judicial sanctions as required by Section 6068. The duties should be fulfilled and no independent is a reasonable justification.

The State Bar was given good faith.

Defenses Raised

Riordan argued that (1) his request to withdraw was denied, and his draft AOB was deemed inadequate by his co-counsel, (2) the State Bar failed to prove bad faith in violating Section 6103, and (3) that his good faith belief that the AOB was insufficient excused his failure to comply with court orders.

Mitigation and Aggravation

Mitigating factors included Riordan’s seventeen years of practice with no prior discipline, successful post-misconduct practice, good character, and cooperation with the State Bar. Aggravating factors included multiple acts of wrongdoing and harm to the administration of justice.

Disposition & Sanction

The Review Department recommended a six-month stayed suspension and one year of probation, with conditions including compliance with the State Bar Act, reporting requirements, meeting with a probation deputy, attending ethics school, and passing the Multistate Professional Responsibility Examination.

Practical Implications

• Attorneys must diligently pursue their cases and meet court deadlines, even in challenging circumstances.
• Attorneys are expected to obey court orders and report judicial sanctions promptly.
• Extensive experience and good character do not excuse serious ethical lapses.

Citations & Links

• In the Matter of Riordan, (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41
• Business and Professions Code Section 6103
• Business and Professions Code Section 6068