In the Matter of Henry Daniel Fandey (1994)

Overview

This case addresses an attorney’s ethical obligation not to counsel or assist a client in violating court orders. The Review Department held that advising and actively assisting a client to evade a child support order constitutes moral turpitude, even absent proof of a specific intent to obstruct justice. The seriousness of the misconduct warranted a substantial actual suspension.

Facts

Henry Daniel Fandey was retained in December 1987 to represent a client, Bruce Lee, in a child support matter. Lee was ordered to pay monthly support for his two minor children. After becoming angry about the obligation, Lee discussed nonpayment with respondent.

Respondent advised Lee that he had three options: pay child support, go to jail, or “disappear.” Respondent provided Lee with books explaining how to change one’s identity, advised him to avoid leaving a paper trail by using cash rather than credit cards, and counseled Lee on geographic locations where he would be difficult to locate. Respondent physically assisted Lee in moving from California to El Paso, Texas, including helping pack belongings, loaning a truck and trailer, accompanying Lee on trips, and acting as guarantor to obtain utilities at Lee’s new residence.

At the time respondent provided this assistance, he knew Lee had stopped making child support payments and intended to flee California specifically to avoid compliance with the court order. Respondent himself also relocated to El Paso during this period.

Respondent was closely involved in real estate transactions between Lee and respondent’s parents, including the sale of Lee’s California home and Lee’s occupancy of respondent’s parents’ Texas property. Although the Review Department ultimately found insufficient evidence to establish culpability for improper business transactions, it found respondent’s conduct in these dealings demonstrated overreaching and conflicts that substantially aggravated the primary misconduct.

Charges and Rules Violated

Defenses

Respondent argued that he merely explained the consequences of nonpayment and that his assistance in moving was for mutual convenience, not to help the client evade child support. He further argued that he lacked specific intent to violate the court order.

The Review Department rejected these arguments, finding that respondent went far beyond neutral advice and actively counseled and assisted illegal conduct. Although specific intent was not proven, respondent’s knowledge of the order and affirmative assistance established conscious disregard of legal duties sufficient to constitute moral turpitude.

Mitigation and Aggravation

• Mitigation: No prior discipline in 11 years of practice; limited character evidence; modest volunteer work (largely discounted).
• Aggravation: Serious harm to the administration of justice; overreaching and conflicts in related property dealings; heightened public concern regarding child support enforcement.

Outcome

The Review Department increased the discipline recommended by the hearing judge. Respondent was suspended for three years, with execution stayed, placed on probation for three years, and ordered to serve one year of actual suspension. Additional conditions included passing the California Professional Responsibility Examination, Ethics School, compliance with rule 955, and payment of State Bar costs.

Sanctions Table