In the Matter of Marsh (1990)

Citation: 1 Cal. State Bar Ct. Rptr. 291
Court: State Bar Court, Review Department
Judge: Stovitz, J. (Opinion by Review Dept.)

Background and Facts

Respondent Andrew J. Marsh, admitted in 1957, was charged with abandoning a criminal client, failing to return unearned fees, and refusing to cooperate with the State Bar investigation. The case began as a default proceeding after Marsh failed to answer the Notice to Show Cause. The misconduct arose from his representation of Jose Larios Aguilar, who had been convicted of involuntary manslaughter and sought Marsh’s help with post-conviction appeals and probation violations.

Aguilar’s sister paid Marsh $3,000 to handle the appeal of Aguilar’s manslaughter conviction, his probation violations, and a separate real estate matter. Marsh accepted payment, met with Aguilar once in prison, and received documents necessary for the appeal. However, he never filed the appellate briefs, never contacted Aguilar again, and failed to return phone calls or letters. When the Court of Appeal advised Aguilar that no attorney of record appeared, substitute counsel was appointed and reported that Marsh would not release the appellate record.

Attorney Joseph Lax, who had represented Aguilar at trial, testified that Marsh demanded more money and failed to appear at a scheduled federal probation hearing. Marsh never returned the client’s $3,000 nor responded to multiple State Bar inquiries in 1987, despite letters being sent to his official Bar address. These facts established violations for failure to perform services, improper withdrawal, failure to refund unearned fees, and failure to cooperate with the State Bar.

Charges and Findings

• Failure to perform competently — Rule 6-101(A)(2) (Proven)
• Improper withdrawal — Rule 2-111(A)(2) (Proven)
• Failure to refund unearned fees — Rule 2-111(A)(3) (Proven)
• Failure to cooperate with investigation — §6068(i) (Proven)
• Failure to communicate — §6068(m) (Deleted)
• Violation of §6068(a) (upholding the law) — Deleted as duplicative

Prior Discipline

The Review Department discovered that Marsh had been twice previously disciplined, though the hearing judge had only considered one suspension. His record included a 1979 three-year stayed suspension with six months actual and a subsequent two-year stayed suspension with three months actual for prior client neglect and failure to communicate. The incomplete record required remand to determine whether disbarment should be considered under Standard 1.7(b), which presumes disbarment after two prior disciplines absent compelling mitigation.

Aggravation and Mitigation

• Aggravation: Bad faith toward his client; indifference to rectifying harm; failure to cooperate with investigators; multiple prior disciplines.
• Mitigation: None presented due to default.

Procedural Posture

The hearing judge, Hon. Ellen R. Peck, recommended actual suspension until restitution was made and nine months thereafter, without probation, reasoning that Marsh’s default showed he was not amenable to supervision. On review, the Office of Trial Counsel argued that probation should have been imposed to protect the public. The Review Department modified the findings, deleted the uncharged and time-barred violations, and remanded the matter for consideration of the full disciplinary history and whether probation was appropriate.

Review Department Opinion

The Review Department clarified that defaulting respondents are not automatically disqualified from probation. Probation serves public protection and rehabilitation, not as a privilege or reward. The court emphasized that the disciplinary system’s purpose is protection of the public and maintenance of professional standards, not punishment. It recognized probation as a flexible tool to monitor attorney conduct, ensure restitution, and facilitate rehabilitation through oversight and education.

The opinion also addressed the policy foundation of the State Bar probation system, noting its origins in 1963 and expansion in the 1980s to include structured monitoring and reporting through volunteer referees. The Review Department highlighted six goals of probation: public protection, rehabilitation, professional integrity, enforcement of restitution, aiding future enforcement, and partial alleviation of discipline burdens.

Disposition

The case was remanded to the hearing judge to consider evidence of both prior suspensions and reassess the discipline. If a stayed suspension was again deemed appropriate, probation should be reconsidered in light of the department’s reasoning. The Review Department emphasized that probation can be imposed even in default cases, provided the record does not show clear evidence that the respondent will fail to comply.

Significance

Marsh is a seminal decision clarifying that default in disciplinary proceedings does not automatically preclude a probationary component in the sanction. The case articulates the policy rationale for probation in attorney discipline and the need for accurate, complete records of prior discipline. It also reaffirmed that rehabilitation and public protection—not punishment—remain the guiding objectives of California’s attorney discipline system.

Sanctions Table

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