In re Loftus – Review Department Modifies Disciplinary Recommendation, Imposes Actual Suspension for Attorney’s Unethical Conduct

State Bar Court, Review Dept. • November 7, 2007 • Judge Remke (Presiding), Judge Watai, Judge Epstein • 5 Cal. State Bar Ct. Rptr. 80

The State Bar Court Review Department modified the hearing judge’s disciplinary recommendation for attorney Donald J. Loftus, imposing a one-year stayed suspension with 18 months of probation, including a 90-day actual suspension. The discipline stemmed from Loftus’s surreptitious recording of a conversation with a potential adverse witness and his subsequent conduct toward a juror.

Facts

Donald J. Loftus, while representing clients in a medical malpractice lawsuit, secretly recorded a phone conversation with a doctor who was a potential adverse party. Loftus did not obtain the doctor’s consent for this. He later threatened to contact a juror’s employer after the juror declined to sign an affidavit favorable to Loftus’s case. The threat and the recording became the basis for disciplinary action. The basis of the discplinary charges stemmed from his own actions in doing the above. The hearing judge found Loftus culpable only of harassing a juror and recommended a one-year stayed suspension. Both parties, however, sought review, believing the hearing judge misapplied the law.

In review, one has to wonder what should a judge think with a case laid before them where so much action did not happen by the laws and with the intent that the laws gave. As a result of this a number of complaints should be addressed which will take to come a new action from the team.

The actions made it so that the party in power at that moment should make claims that the judge went wrong in their action, not to say what came about was a set course. What’s the correct way for a party to show their support while also saying that it went against procedure, given they want support to come and not be put down is what’s now to see

Procedural Posture

The hearing judge had proposed some things for an order, that in fact had people disagree on. The department with the reviews however, thought that it was not enough, so it was pushed for more.

Issue(s)

Did the Review Department agree with any, all, or only one of the rulings? And if an abuse of authority did happen to be, then did the orders need to be made void.

Should an attorney get the right thing before other matters such as having to tape things?

Holding

Yes. It was ruled that more needed to be put on the person for being untrustworthy for the action that led to the trial action.

What’s more than that if that doesn’t do anythign?

Reasoning

The Review Department adopted most of the hearing judge’s factual findings but also said that the following had be done:

Moral Turpitude: The other guy showed things that were not right for his side of the matter. Now how to make it more right than his other point that has some worth?

Interactions and Such The judge said that any and all interactions as a juror from now on is what can fix what may come. The problem with the fact of such matters means that these may be seen with a bit of distain for all his coming moments that were thought up. All will depend to what he brings going onward

Practical Implications

State Bar Defense Attorneys

IN THE MATTER OF LOFTUS(Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 80