Metropolitan News-Enterprise


Friday, September 24, 2004


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Lawyers Held in Contempt by S.C. for Skipping Oral Argument


By KENNETH OFGANG, Staff Writer/Appellate Courts


Two San Francisco lawyers were held in contempt of court yesterday in the aftermath of an oral argument at which they failed to appear.

The justices ordered that Raul V. Aguilar, managing partner of Aguilar & Sebastinelli, be fined $1,000 and referred to the State Bar Court for possible discipline. Aguilar, the justices said in a per curiam opinion, “repeatedly lied” by claiming that he was not told of the date of the argument.

“We employ the term ‘lie’ in its customary usage, as involving a deliberate misrepresentation,” the justices emphasized in a footnote.

Justices Split

The ruling with regard to Aguilar was unanimous. But the justices split 4-3 in concluding that a former associate of the law firm, Allen J. Kent, was also in contempt, and fining him $250.

Kent’s misconduct was less egregious, the court said, since he had left the law firm five days before argument and informed other firm members of the status of the case. But he had an obligation to make certain the firm had another attorney ready to argue, or at least to notify the court that he was not going to appear, the majority concluded.

The court’s action grows out of the case of Aguilar v. Lerner (2004) 32 Cal.4th 974, in which Aguilar was the client and Kent his attorney.

Aguilar had sought to overturn an arbitration award in favor of a lawyer who had represented him in his divorce. But the high court 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.

In separate opinions, a majority of the justices concluded that such agreements are enforceable, at least if they were entered into prior to the 1996 revision of the mandatory fee arbitration law.

No one appeared as counsel for Aguilar at oral argument Feb. 10. Court records show that Aguilar sent a letter to the court the next day explaining that Kent was no longer representing him and that he had assigned Dominic Flamiano, also of Aguilar & Sebastinelli, as his counsel in the matter.

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 Kent had quit the firm in a dispute regarding his status and compensation.

After the lawyers responded, the justices referred the matter to the State Bar Court for factfinding.

State Bar Court Judge JoAnn M. Remke reported 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.

Judge’s Findings

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.

The court suggested in a footnote that Aguilar may have deliberately ignored the Supreme Court case, which was argued in Sacramento, because other matters left behind by Kent were more significant to the firm’s finances.

“Of course, however rational such a decision may have appeared at that time from Aguilar’s personal economic perspective, from a professional perspective there could be no justification for failing to ensure that a fully prepared attorney appeared and participated at an oral argument scheduled before this court,” the justices said in a footnote.

As to Kent, the court accepted Remke’s finding that he had not lied to the court, factual inaccuracies in his representations being the product of memory lapse and lack of access to his former firm’s records.

But Chief Justice Ronald M. George and Justices Marvin Baxter, Ming Chin, and Carlos Moreno agreed that Kent’s lack of communication with the court was unprofessional, rejecting his claim that notifying the court that he would not appear might have prejudiced his client by creating a perception that the case was weak.

In ruling that Kent breached his obligations to the court, the justices declined to rule on whether he breached an ethical obligation to Aguilar. Remke reasoned that Kent was obligated to appear and argue unless instructed otherwise, because Aguilar was still Kent’s client even though he was no longer his boss.

Justice Joyce L. Kennard, joined by Justices Kathryn M. Werdegar and Janice Rogers Brown, dissented from the contempt finding against Kent.

Kennard argued that once Kent quit the firm and reminded Aguilar of the argument date, he had no further obligations in the matter.  While Kent should have called the clerk and explained the circumstances “as a matter of courtesy and consideration,” Kennard wrote, he was under no legal obligation to do so.

The case is In re Aguilar, 04 S.O.S. 5185.


Copyright 2004, Metropolitan News Company