Wednesday, May 5, 2004
Pair of San Francisco Lawyers Ordered to Explain Why State High Court Should Not Hold Them in Contempt
By KENNETH OFGANG, Staff Writer/Appellate Courts
Two San Francisco lawyers have been ordered to explain to the state Supreme Court why they should not be held in contempt, either for failing to appear for oral argument or for lying about their reasons for not doing so.
In an order issued late Monday, the justices directed Raul V. Aguilar of Aguilar & Sebastinelli and his former associate Allen J. Kent to submit letter briefs by May 24, responding to findings issued by the State Bar Court last Friday.
The court’s action grows out of the case of Aguilar v. Lerner, 04 S.O.S. 2005, in which Aguilar was the petitioner before the high court as well as managing partner of the law firm representing him. Aguilar had sought to overturn an arbitration award in favor of a lawyer who had represented him in his divorce.
The high court, however, ruled that by suing the attorney for malpractice, Aguilar waived his contention that the fee arbitration statute prohibits a lawyer from enforcing a pre-dispute binding arbitration agreement.
No one appeared as counsel for Aguilar at oral argument Feb. 10. According to docket entries on the state courts’ Website, Aguilar sent a letter to the court the next day explaining that Kent was no longer representing him and that he had assigned Domonic Flamiano, also of Aguilar & Sebastinelli, to represent him.
The court, which noted that Kent was listed at all times prior to the argument as the attorney who would argue the case for Aguilar, then issued an order to show cause. In response, the attorneys disclosed that they had had a dispute regarding Kent’s status at the firm and that Kent had quit five days before the oral argument.
After the lawyers responded, the justices referred the matter to the State Bar Court for factfinding.
In her report, State Bar Court Judge JoAnn M. Remke said that Aguilar had lied to the high court, both in documents and in response to questions asked by Chief Justice Ronald M. George and Justice Joyce L. Kennard at the OSC hearing.
Aguilar, Remke explained, claimed that he was unaware of the time or date of the argument, that Kent did not “directly or indirectly” inform him of the argument date, and that the firm’s records did not reflect the date.
None of those statements was true, Remke declared. In fact, she found, Aguilar personally received an outline of the proposed oral argument in which Kent referenced the high court’s minute order setting the date, as well as a memorandum setting forth the status of all of Kent’s cases, including Aguilar v. Lerner.
Aguilar also received a telephone call from Kent, shortly after the minute order was issued, informing him of the date of the oral argument, Remke found.
As to Kent, the hearing judge found that there was no proof he had lied to the court. “While there are several factual inaccuracies contained in Kent’s declaration,” she wrote, “this court concludes that those inaccuracies are caused by Kent’s imperfect memory...and his inability to refer to relevant records for the purpose of refreshing his recollection of those events.”
Kent did, however, act unprofessionally in failing to take steps to protect Aguilar’s rights, since Aguilar was still his client even though he was no longer his boss, the judge wrote. Kent also had a duty to appear or to notify the high court that he would not be appearing, she said, rejecting his claim that the possibility of prejudice to the client—due to a possible perception of weakness in the case—did not excuse him from doing so.
Copyright 2004, Metropolitan News Company