In the Matter of George Nunez

Review Dept. 1992 · 2 Cal. State Bar Ct. Rptr. 196

Facts

George Nunez was admitted to the California Bar in 1976 and had no prior record of discipline. The misconduct at issue arose from his representation of Lydia Myers, a bus driver employed by the Kings Canyon Unified School District. Myers was disciplined following an administrative hearing and later sought to challenge the outcome in court.

In March 1984, Nunez entered into a written contingent fee agreement to represent Myers in a wrongful termination action. The agreement provided for a 50 percent contingent fee and expressly required Nunez to advance all reasonably necessary litigation costs, with reimbursement only in the event of recovery. Myers advised Nunez that the administrative hearing had been reported and that the transcript would be important to her case. Nunez requested and received $2,000 from Myers, which she borrowed from friends, for the purpose of obtaining the transcript.

Despite the terms of the contingent fee agreement, Nunez treated the $2,000 as earned legal fees. He issued a receipt describing the funds as “fees received” and deposited the money into his general business account rather than a client trust account. Nunez never ordered the transcript and did not document any modification to the written fee agreement.

Nunez initially performed legal services, including filing a tort claim and later a wrongful termination lawsuit in superior court. In 1986, the school district moved for summary judgment based on Myers’ failure to pursue administrative mandamus, a jurisdictional prerequisite. Rather than oppose the motion, Nunez stipulated to dismissal of the civil action without prejudice so Myers could pursue mandamus relief.

After the dismissal, Nunez took no further action to protect Myers’ legal rights. He insisted that he would not proceed unless Myers advanced additional funds for the transcript, despite the written agreement requiring him to advance costs. Over the following years, Nunez failed to respond to Myers’ repeated inquiries, missed scheduled appointments, and did not inform her that her case had been dismissed. Myers ultimately learned of the dismissal from the State Bar.

In 1989, Myers demanded return of her file and a refund of the $2,000. Nunez did not promptly return the file, claiming he could not locate it, and did not refund the money. The hearing judge credited Myers’ testimony over Nunez’s, citing her reliability and Nunez’s lack of supporting documentation.

Disciplinary Charges

• Bus. & Prof. Code § 6068(a) — Failure to communicate adequately with a client.
• Bus. & Prof. Code § 6068(m) — Failure to respond to reasonable client inquiries.
• Rule 3-110(A) — Failure to perform legal services competently.
• Rule 3-700(A)(2) — Improper withdrawal from representation.
• Rule 4-100(A) — Failure to deposit advanced costs into a trust account.
• Rule 4-100(B)(4) — Failure to promptly return client papers and property.

Defenses Raised

• Funds Were Fees, Not Costs: Nunez argued that the $2,000 constituted earned fees based on an alleged prior oral agreement, notwithstanding the written contingent fee contract.
• Client Failed to Advance Costs: He contended that his cessation of work was justified because Myers did not advance additional transcript costs.
• Abandonment Precludes Communication Violations: Nunez asserted that once the representation effectively ended, he could not be disciplined for failing to communicate.
• Procedural Due Process: He claimed the notice to show cause inadequately described the time frame of the alleged misconduct.

Court’s Ruling

The Review Department rejected Nunez’s defenses and adopted the hearing judge’s core findings. The court found clear and convincing evidence that the $2,000 payment was an advance for costs, not fees, and that the written contingent fee agreement controlled. Nunez therefore violated Rule 4-100(A) by failing to place the funds in a trust account.

The court further concluded that Nunez wilfully failed to perform legal services and improperly withdrew from representation by abandoning Myers’ case after dismissal, despite having an opportunity to pursue administrative mandamus. His repeated failure to respond to Myers’ inquiries supported violations of sections 6068(a) and 6068(m).

The Review Department held that abandonment of a client does not preclude separate findings of failure to communicate. It also rejected Nunez’s procedural objections, concluding that he had adequate notice and a fair opportunity to present evidence.

While recognizing serious harm to Myers, including the loss of legal rights, the court gave substantial mitigating weight to Nunez’s extensive community service, pro bono work, and lack of prior discipline.

Sanctions

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