In the Matter of Temkin (1991)

Citation: 1 Cal. State Bar Ct. Rptr. 321
Court: State Bar Court, Review Department
Judge: Stovitz, J.

Background and Facts

Respondent William H. Temkin, Jr., admitted to practice in 1963, was a general partner in Normandie Towers, Ltd., a limited partnership formed to build senior housing with federal financing. One limited partner, William Nemour, faced a large judgment debt. Nemour’s creditor, Richard Eddy, sought to attach Nemour’s partnership interest. Temkin filed a declaration asserting he had purchased Nemour’s interest months earlier for over $300,000, effectively shielding it from the creditor’s reach.

The civil courts, however, later found that the supposed transfer was a fraudulent conveyance designed to conceal Nemour’s interest from creditors. They held that Temkin had never actually paid for the partnership share and had prepared documents—an amended certificate of limited partnership—backdated to create a false appearance of legitimacy. The certificate’s notarization date was later discovered to have been altered with “white-out,” further supporting the finding of deception. The Court of Appeal in Eddy v. Temkin (1985) 167 Cal.App.3d 1115 affirmed the finding of fraud.

Based on these findings, the State Bar initiated disciplinary proceedings alleging Temkin filed a false declaration in superior court and participated in preparing documents used to mislead the court. A hearing referee found that Temkin failed to exercise due diligence in learning the true facts before signing his declaration but did not find that he had acted with moral turpitude or dishonesty. The referee recommended a one-year suspension, stayed, with 45 days’ actual suspension.

Review Department Proceedings

On review, Judge Stovitz and the Review Department found the referee’s findings incomplete and internally inconsistent. The referee had found that Temkin misled the court but simultaneously found no dishonesty—two conclusions the Department deemed “irreconcilable.” The Review Department noted that a violation of former Rule 7-105(1) (now Rule 5-200), which prohibits misleading the court, typically constitutes an act of dishonesty under Business and Professions Code §6106.

The Department also found procedural flaws: Temkin was found culpable of violating §6068(b) (failure to maintain respect for courts) even though that charge had not been included in the Notice to Show Cause. Similarly, violations under §§6068(a) and 6103 were duplicative or misapplied. The Review Department emphasized that civil judgments, though not binding, may be admissible and carry a presumption of validity in bar proceedings when they address the same factual issues.

Key Issues and Findings

• Credibility and Findings: The referee failed to make critical determinations regarding Temkin’s credibility, particularly whether he knowingly made false statements.
• Standard of Proof: The Review Department reiterated that culpability in disciplinary cases must be proven by clear and convincing evidence, not merely a preponderance as in civil court.
• Rule 7-105(1) and §6106: The Department observed that if Temkin’s declaration was false, it would likely constitute both misleading the court and moral turpitude.
• Procedural Defects: The referee’s conclusions relied on uncharged or duplicative statutes, requiring retrial.

Outcome

The Review Department remanded the case for retrial to the full-time Hearing Department of the State Bar Court. It held that credibility assessments and factual findings were insufficient to determine whether Temkin’s actions amounted to intentional deceit or merely negligence. The Department noted that future proceedings must clarify whether the declaration’s falsehoods were willful or careless and whether they rose to the level of moral turpitude under §6106.

Legal Principles and Significance

The decision reaffirmed that attorneys owe a duty of truthfulness to the courts even when appearing in propria persona. Violations of Rule 7-105(1) typically imply moral turpitude because they involve false statements intended to mislead a judicial officer. The Review Department cautioned that where the record contains conflicting testimony and documentary evidence, credibility determinations must be explicit. The opinion became a guidepost for ensuring completeness and coherence in disciplinary findings.

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