Overview

In In the Matter of Johnston, the Review Department addressed attorney discipline arising from incompetence, failure to communicate, dishonesty toward a client, and failure to cooperate with a State Bar investigation. The case is significant for its rulings on default disciplinary proceedings, use of uncharged aggravating factors, and when rule 955 notification requirements should be imposed.

Facts

Gordon Rey Johnston was admitted to the State Bar in 1972. In a single client matter, he filed a personal injury complaint but failed to serve defendants within the three-year statutory period or bring the case to trial within five years. As a result, the client’s claim became time-barred.

Johnston stopped communicating with the client for several years and later falsely told her he was still working on the case and expected a settlement. At the time he made these representations, he knew the claim was already barred.

During part of this period, Johnston was on administrative suspension for failure to pay State Bar dues. He failed to disclose his suspension and improperly held himself out as entitled to practice law.

Johnston also failed to respond to State Bar investigators and did not file an answer in the disciplinary proceedings, resulting in default.

Charges

• Failure to perform legal services competently
• Failure to communicate with client
• Moral turpitude for misleading client
• Unauthorized practice while suspended
• Failure to cooperate with State Bar investigation

Key Legal Issues

1. Default Proceedings and Aggravation

The court held that uncharged facts cannot be used as aggravating circumstances in default disciplinary proceedings because respondents must receive notice of all allegations that may increase discipline.

2. Holding Out While Suspended

Misleading a client into believing an attorney is still practicing while administratively suspended constitutes moral turpitude.

3. Rule 955 Requirements

Rule 955 notification requirements generally should not be imposed when actual suspension is less than 90 days unless there is a clear public protection need.

Mitigation

• No prior discipline in more than 12 years of practice

Aggravation

• Significant harm to client (loss of claim)
• Default in disciplinary proceedings
• Lack of candor toward client

Key Holding

Uncharged misconduct cannot be used as aggravation in default proceedings, and rule 955 requirements should not be imposed absent a demonstrated public protection need when actual suspension is less than 90 days.

Outcome

The Review Department increased the recommended period of actual suspension from 45 days to 60 days but otherwise affirmed the hearing judge’s recommendation.

Sanctions Table