In the Matter of Potack
(Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 525

Overview

Attorney Richard N. Potack faced a probation revocation proceeding after failing to make timely restitution and file amended probation reports as required under prior Supreme Court orders. The Review Department found a wilful failure to make restitution but clarified that the late report issue had already been adjudicated in an earlier pending matter. The court used this case to establish key due process and wilfulness standards in disciplinary probation cases and to provide guidance on how multiple overlapping probation revocation matters should be handled.

Background and Prior Discipline

Potack’s disciplinary history spanned several related proceedings. In Potack I (1986), he was suspended for three years, with execution stayed and one year of actual suspension, after stipulating to seven counts of client neglect and failure to return unearned fees. He was ordered to pay $945 in immediate restitution and $8,293 within 30 months. His probation required quarterly reports and compliance with the State Bar Act.

In Potack II (1989), the State Bar sought revocation for failing to file his October 1988 report and make restitution by the December deadline. That proceeding was pending before the Supreme Court when Potack III (the present case) arose, focused solely on his failure to timely pay restitution and file an amended report requested by the probation department.

Facts

Although Potack eventually paid restitution in full by May 1989, it came nearly six months late. He testified that his income as a law clerk ($10/hour) and later as a community defender ($27,000/year) made timely restitution impossible. However, evidence showed he could have paid at least partial restitution—he made car payments of $339 per month and took no steps to seek an extension from the Supreme Court. His financial setbacks, including a bank account levy in 1989, were attributed to poor planning rather than genuine inability to pay.

The Review Department found that he knowingly chose lower-paying work and failed to protect or allocate funds for restitution despite having the ability to make payments. These acts demonstrated a conscious disregard of his restitution duty.

Legal Analysis

The Review Department, per Judge Stovitz, held that probation revocation proceedings are disciplinary in nature and that no discipline may be imposed without due process — including adequate notice and opportunity to be heard. The court concluded that wilfulness is a necessary element to establish culpability in such cases, even though the governing statutes (Bus. & Prof. Code §6093(b)) do not expressly include that term.

The opinion analogized to rule 955 violations, holding that wilfulness does not require bad faith but only a “general purpose or willingness” to commit or omit an act. Failure to make restitution was therefore a wilful violation because Potack had the means to make some payment but did not, and because he failed to seek relief or extensions despite repeated warnings.

Mitigation and Aggravation

Mitigation: Potack eventually paid restitution and cooperated at hearing, but this was given little weight because payments occurred under direct pressure of pending proceedings. His public service work and testimony about past drug recovery and low-income practice were not causally related to the misconduct. Character evidence was minimal and uninformed about the full extent of his record.

Aggravation: His prior discipline in Potack I was a serious aggravating factor because the restitution condition directly stemmed from that case. The Review Department also noted his pattern of neglect and his conscious financial choices preventing compliance.

Holding and Discipline

The court held that restitution violations are not “technical” or “substantial” but go to the heart of rehabilitation and public protection. Because Potack ultimately completed restitution, the Review Department recommended an alternative discipline tied to the outcome of Potack II:

• If the Supreme Court imposed the recommended two-year actual suspension in Potack II, no further discipline would be imposed in this matter.
• If the Supreme Court imposed less than two years, up to one year of additional actual suspension would be appropriate, ensuring the total discipline across both proceedings did not exceed two years.

Sanctions Table