In the Matter of Bert B. Babero

Facts

Bert B. Babero was a California attorney who became subject to discipline arising from two unrelated matters that were consolidated in the State Bar Court. The first involved a 1987 criminal conviction for driving under the influence of alcohol and fighting in public. The second, and ultimately decisive, matter involved Babero’s failure to comply with a prior California Supreme Court order requiring him to satisfy the notice and affidavit obligations of former rule 955 of the California Rules of Court.

In the prior disciplinary case, the Supreme Court imposed a three-year stayed suspension, five years of probation, and a six-month actual suspension. The Court also ordered Babero to pass the Professional Responsibility Examination and to comply with rule 955 by notifying clients, courts, and opposing counsel of his suspension and by filing a sworn affidavit of compliance with the Supreme Court.

Although Babero did not initially receive the Supreme Court’s order due to mail delivery issues, he received actual notice from the State Bar Court’s probation department in late September 1990. Despite having sufficient time thereafter to comply, Babero failed to provide the required written notices to clients, courts, or opposing counsel, failed to properly substitute out of pending matters, and failed to file a timely and accurate rule 955 affidavit.

In anticipation of his suspension, Babero transferred more than 200 client matters to successor counsel by signing hundreds of blank substitution and association of counsel forms. He did not obtain client consent, did not ensure filings were completed, and did not retain a list of transferred cases or clients. Several matters remained pending with Babero still listed as attorney of record.

Babero eventually submitted a declaration purporting to explain his compliance efforts, but the declaration was untimely, contained inaccuracies, and misrepresented facts concerning notice and hearing dates. The Supreme Court referred the matter to the State Bar Court for a determination of willfulness and discipline.

Charges

• Willful failure to comply with former rule 955 by failing to notify clients, courts, and opposing counsel
• Failure to file a timely and accurate affidavit of compliance with the Supreme Court

The consolidated conviction referral matter based on Babero’s DUI and public fighting conviction was dismissed after the hearing judge found no moral turpitude or other misconduct warranting discipline.

Defenses

Babero conceded that he failed to comply with rule 955 but argued that disbarment was disproportionate. He asserted that he acted in good faith, attempted partial compliance, and relied to his detriment on misunderstandings regarding deadlines and advice allegedly received from his probation monitor and former counsel.

He further argued that no clients were actually harmed, that some representations were limited in scope, and that his criminal conviction should not aggravate the rule 955 violations.

Court’s Ruling

The Review Department independently reviewed the record and agreed that Babero’s failure to comply with rule 955 was willful. The court rejected Babero’s claims of good faith reliance, noting that the record contradicted his assertions and that he failed to raise or support those defenses at the hearing level.

The court found substantial aggravation, including Babero’s irresponsible mass transfer of cases, failure to safeguard client interests, lack of candor in his declaration, continued inaction in pending matters, and an overall pattern of indifference to the consequences of his misconduct. His failure to pass the Professional Responsibility Examination as ordered, while not prior discipline, was also relevant to assessing his inability to comply with Supreme Court directives.

Although the conviction matter was properly dismissed and not considered in aggravation, the Review Department concluded that Babero’s mitigation was minimal and fell far short of the rare cases in which disbarment has not been imposed for willful rule 955 violations. Unlike attorneys in cases such as Durbin or Shapiro, Babero failed to notify all clients, failed to correct deficiencies, and failed to present substantial mitigating evidence or proof of rehabilitation.

Consistent with Supreme Court precedent emphasizing that disbarment is generally the appropriate sanction for willful violations of rule 955, the Review Department concluded that public protection and the integrity of the profession required disbarment.

Sanctions