In the Matter of Garth F. Heiner

Facts Leading to Discipline

Garth F. Heiner was admitted to the California State Bar in 1971. Beginning in approximately 1983 and continuing for several years, Heiner engaged in a persistent pattern of misconduct across multiple client matters. The misconduct spanned probate, civil litigation, and criminal representation and included neglect of legal matters, failure to perform services competently, failure to return unearned fees, misappropriation and concealment of client funds, issuance of checks with insufficient funds, and acts of dishonesty toward clients and courts.

In 1988, based on the seriousness and breadth of the misconduct, Heiner was placed on involuntary inactive enrollment pursuant to Business and Professions Code section 6007(c). Two disciplinary matters were consolidated, involving more than a dozen counts. A referee initially recommended disbarment, but on review in 1990 the Review Department remanded several counts for retrial due to fairness concerns while affirming other culpability findings.

On remand, after extensive proceedings, the hearing judge found Heiner culpable on additional counts of client neglect, failure to return files and unearned fees, misappropriation, and deliberate dishonesty, including concealing misappropriations and issuing NSF checks. Evidence in aggravation also showed that while on inactive status, Heiner engaged in further dishonest conduct in personal and business transactions.

Charges

Across the consolidated proceedings, Heiner was found culpable of violations including:

• Failure to perform legal services competently
• Failure to return unearned fees and client files
• Misappropriation and concealment of client funds
• Issuance of checks with insufficient funds
• Acts of dishonesty and moral turpitude
• Unauthorized practice of law following inactive enrollment

Defenses Raised

Heiner challenged both the factual findings and the procedural handling of the case. He argued that certain counts were unsupported by clear and convincing evidence, that amendments to charges were untimely or improper, and that the proceedings were unduly delayed. He also relied on mitigation, including lack of prior discipline, personal and financial difficulties, and family-related stressors during the period of misconduct.

In addition, on review, Heiner successfully argued that time spent on involuntary inactive enrollment should be credited against the waiting period to seek reinstatement, analogizing inactive enrollment to interim suspension.

Court’s Ruling

After de novo review of the full record, the Review Department adopted the hearing judge’s findings and conclusions and recommended disbarment. The court emphasized the seriousness, duration, and repetitive nature of the misconduct, the presence of bad faith and dishonesty, and the inadequacy of mitigation to outweigh the aggravating factors.

The Review Department rejected the Office of Trial Counsel’s renewed argument that Heiner should not receive credit for time spent on involuntary inactive enrollment. The court held that inactive enrollment serves the same public-protection function as interim suspension and that fairness and Supreme Court precedent required comparable treatment. Heiner was therefore entitled to credit for time spent on inactive enrollment toward the five-year waiting period for reinstatement.

Sanctions

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