In the Matter of Frank H. Whitehead, Jr.
(Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 354

Overview

Attorney Frank H. Whitehead, Jr. faced seven counts of professional misconduct, including allegations of commingling client funds with personal accounts, failure to supervise associates, lack of communication with clients and successor counsel, and failure to cooperate with the State Bar’s investigation. The hearing referee found culpability on three client matters and one count of non-cooperation, while dismissing others for insufficient evidence. On review, the State Bar sought greater penalties. The Review Department upheld most findings and added a charge for failure to perform services competently, ultimately imposing a one-year stayed suspension, 45 days actual suspension, and five years of probation.

Facts of the Case

Whitehead represented several clients between 1980 and 1987. In Count One (Collins), he was retained to file an appeal following a civil judgment. Although he filed a notice of appeal and obtained a cost reduction, delays in preparing the appellate brief led to dismissal of the appeal. Whitehead later secured reinstatement before being discharged. Despite the client’s complaint and a fee arbitration award, he refunded the entire $1,500 promptly.

In Count Two (Gomez), he received a $1,750 settlement check for a client while his trust account was frozen due to a marital dispute. To protect the funds from attachment, he deposited the check in his personal account, intending to remit the client’s share immediately. Though the account briefly fell below the settlement amount, Whitehead maintained equivalent funds via cashier’s checks and delivered the full $2,000 promptly after confirmation from the client’s new counsel. The Review Department found this to be improper commingling but not misappropriation or moral turpitude.

In Counts Three and Four (Ramirez), the clients had sporadic communication, and evidence showed no harm or delay caused by Whitehead. The referee dismissed these charges.

In Counts Five and Six (Gonzalez, Berrios, and Giordani), Whitehead filed a construction defect suit in the wrong venue. His associates mishandled the matter, failed to pay court sanctions, and allowed dismissal. He later refiled the case, but limitations had expired. The Review Department found that he failed to supervise his associates, amounting to incompetence under Rule 6-101(A)(2). His failure to respond to inquiries from successor counsel also constituted a violation of section 6068(a).

In Count Seven, he stipulated to failing to respond to multiple State Bar letters, violating section 6068(i). Whitehead cited emotional stress from a divorce and depression during the period.

Defenses and Mitigation

Whitehead introduced substantial mitigating evidence: psychiatric testimony, extensive character references, and evidence of rehabilitation from alcohol dependency. He demonstrated candor, remorse, and cooperation at the hearing. Witnesses described him as honest, diligent, and of good moral character. The referee determined he posed no ongoing risk to the public and emphasized that many of his clients were Spanish-speaking with limited legal access, making an actual suspension unduly punitive.

Outcome

The Review Department agreed that commingling occurred but found no misappropriation or moral turpitude. It modified the decision to include a finding of failure to perform competently in the supervision of associates. Weighing his prior private reproval (from 1977), multiple acts of misconduct, and mitigating factors, the court recommended:

• One-year suspension, stayed
• 45 days of actual suspension
• Five years probation with strict conditions, including counseling, testing, ethics school, and trust account monitoring

Sanctions Table