In the Matter of Burckhardt (1991)

Citation: 1 Cal. State Bar Ct. Rptr. 343
Court: State Bar Court, Review Department
Judges: Pearlman, P.J.; Norian, J.; Stovitz, J.

Background and Facts

Respondent Edward C. Burckhardt was admitted to the bar in 1972 and had previously been disciplined for similar misconduct. In this subsequent proceeding, the State Bar charged him with multiple violations involving client abandonment, unauthorized practice of law, deceit, and failure to cooperate. Burckhardt defaulted, and the hearing proceeded based on documentary and testimonial evidence.

The misconduct arose from his representation of two clients, Frank and Charylann White and David Barr. While suspended for nonpayment of dues between August 1987 and May 1988, Burckhardt continued to hold himself out as an attorney, representing Frank White in a criminal case and falsely claiming to have filed a government tort claim for both clients. He also told them repeatedly that the claim had been filed when it had not, and then ceased communication entirely. Later, he ignored repeated attempts by the clients to reach him. Evidence showed that Burckhardt lied to clients about the status of their claims and knowingly practiced law while suspended.

In the Barr matter, Burckhardt was hired in 1985 to probate a will. He accepted $170 in advance fees, received the original will, and took no further action. He ignored letters and calls from Barr for nearly two years, failed to file probate documents, and never returned the will. He similarly failed to cooperate with State Bar investigators who attempted multiple times to contact him regarding these complaints.

Charges and Findings

• Failure to communicate — §6068(m) (Proven)
• Failure to cooperate with State Bar — §6068(i) (Proven)
• Unauthorized practice of law — §6125 (Proven)
• Improper withdrawal from representation — Rule 2-111(A)(2) (Proven)
• Failure to perform competently — Rule 6-101(A)(2) (Proven)
• Acceptance of illegal fee — Rule 2-107(A) (Proven)
• Moral turpitude / dishonesty — §6106 (Proven on review)
• Violation of oath and duties — §6103 (Stricken as duplicative)

Review Department Analysis

The Review Department conducted a de novo review under Rule 453(a) and modified the hearing judge’s conclusions. It found that Burckhardt’s lies to clients and misrepresentations while suspended constituted acts of moral turpitude under §6106, reversing the hearing judge’s earlier limitation that §6106 “cannot be violated.” The Department clarified that §6106 provides the proper legal basis for discipline when an attorney’s acts involve dishonesty, deceit, or corruption, regardless of whether the conduct violates a specific rule or statute.

The opinion distinguished §6103, which deals with violations of the attorney’s oath and duties, from §6106, which directly addresses moral turpitude. The Department emphasized that any act of deceit or moral corruption, even outside formal representation, falls within §6106’s reach. Burckhardt’s false assurances to clients and unauthorized practice thus amounted to direct violations of §6106.

Aggravation and Mitigation

• Aggravation: Multiple acts of deceit and client harm; unauthorized practice; default; indifference toward rectifying misconduct; prior discipline (though contemporaneous).
• Mitigation: 13 years of practice without prior discipline before the first act of misconduct, treated as significant mitigating weight since prior and current misconduct were contemporaneous.

Outcome and Discipline

The Review Department adopted the hearing judge’s recommended discipline with modifications. Burckhardt was ordered suspended for two years, stayed, with three years’ probation and one year of actual suspension, consecutive to his earlier suspension. He was also required to demonstrate rehabilitation and fitness to practice under Standard 1.4(c)(ii) before returning to active status.

The Department held that the duplicated aggravation finding for dishonesty was deleted, as it overlapped with the §6106 finding. The decision further clarified that no additional Rule 955 compliance or ethics exam would be required because those conditions had already been imposed in his prior discipline.

Sanctions Table

Significance

Burckhardt is a foundational case clarifying that §6106 is itself a disciplinary ground for acts involving dishonesty, deceit, or corruption, not merely a statement of sanction authority. The decision also clarified that prejudicial withdrawal does not require proof of intent and that prolonged inaction and silence toward clients may independently establish violation of Rule 2-111(A)(2). It reaffirmed the duty of candor and the prohibition against practicing while suspended as fundamental components of professional integrity.

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