In the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631
Facts
Originating areas of law: (1) Family / Domestic relations — client retained attorney to seek a TRO during a paternity-related harassment dispute; (2) Personal injury — attorney filed a PI complaint but took no meaningful steps to prosecute before the five-year statute expired.
Count Two (Dunsmoor — Family/TRO): Attorney promised to obtain a TRO “within about a week,” then delayed, failed to communicate, and never obtained the order; after discharge he agreed to refund the unearned portion of a $3,000 advance but did not account or refund. A fee arbitration later awarded the client $1,725, which remained unpaid; the award became binding when no trial after arbitration was sought within 30 days.
Count Three (Sampson — Personal Injury): Attorney filed the complaint but conducted no discovery, failed to move the case forward, missed a §998 response, and let the five-year statute run; the case was dismissed, irreparably harming the client’s claim.
Noncooperation: Despite receiving multiple investigator letters, attorney made no response; participation at the later formal hearing did not cure the failure to cooperate with the investigation.
Charges and Proceedings
Culpability was found for: Rule 3-700(D)(2) (failure to refund unearned fee), Rule 3-700(A)(2) (prejudicial withdrawal/effective cessation without protecting client), Rule 3-110(A) (failure to perform competently), Bus. & Prof. Code §6068(m) (failure to communicate), and §6068(i) (failure to cooperate with investigation). Jurisdictional and due-process objections (service, limitations, selective prosecution, etc.) were rejected.
Sanctions Table
| Charge | Defense / Explanation | Mitigation | Aggravation | Outcome |
|---|---|---|---|---|
| Failure to refund unearned fee Rule 3-700(D)(2) |
Argued fee arbitration issues; claimed retainer was “true retainer,” later orally agreed to refund. | Some pro bono record (limited weight). | Harm to client; nonpayment despite binding award. | Violation found; restitution ordered to client or Client Security Fund. |
| Prejudicial withdrawal / abandonment Rule 3-700(A)(2) |
No intent to withdraw; continued representation claimed. | — | Time-sensitive TRO; cessation of services. | Culpable—effective withdrawal without protecting client. |
| Failure to perform competently Rule 3-110(A) |
Busy practice; file lost; oral response to §998 offer claimed. | — | Client lost entire PI cause of action. | Culpable—reckless neglect leading to dismissal. |
| Failure to communicate §6068(m) |
— | — | No warning re imminent statute; inaccessibility during TRO period. | Culpable—failed to keep clients reasonably informed. |
| Failure to cooperate with investigation §6068(i) |
Asserted privileges; nevertheless made no response to letters. | — | Ignored six investigator letters. | Culpable—must at least assert privilege in response. |
Result and Significance
The Review Department reduced the hearing referee’s proposed discipline and recommended: two years’ stayed suspension, two years’ probation, and nine months’ actual suspension, with restitution to the client (or the Client Security Fund, if paid). It emphasized that prejudicial withdrawal can be found without proof of intent where the attorney effectively stops providing services; noncooperation exists when an attorney ignores investigator letters rather than asserting privileges.
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Citation: In the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631.