Tuesday, October 3, 2006
Bar Court Trial Counsel: Attorney Should Not Be Allowed to Resign
Says Lawyer Who Litigated Disciplinary Proceedings Through Hearing and Review Departments Waited Too Long
By a MetNews Staff Writer
The Office of the Chief Trial Counsel of the State Bar Court has requested that the bar Board of Governors recommend that the Supreme Court not accept the resignation of an attorney who waited until he had fully litigated his disciplinary matter before tendering his resignation.
In a memo to the Board of Governor’s last week, Chief Trial Counsel Scott J. Drexel said of Livermore attorney Jack R. Cooney Jr.:
“Despite many earlier opportunities to resign, Mr. Cooney waited until he had fully litigated his disciplinary proceeding through both the State Bar Court Hearing and Review Departments. OCTC submits that the interests of justice would not be served by allowing Mr. Cooney to resign at this late date.”
Cooney told the MetNews he was “stunned” and “baffled beyond belief” when he learned of Drexel’s request.
‘Punished for Poverty’
Last month, the court’s Review Department recommended that Cooney be disbarred because he has a prior record of discipline for misappropriating $15,000 of client funds, made a misrepresentation to the State Bar in order to obtain a lenient disciplinary sanction and violated Rule 955 of the California Rules of Court by failing to refund unearned legal fees after being suspended from practice.
Cooney tendered his resignation about two weeks later.
“I’m almost 63 years old, in a successful bout with leukemia,” he said. “I feel like I’ve been singled out and punished for poverty.”
Cooney said that from 1999 to 2002 he went through a divorce, found out he had leukemia and was suspended from the bar. He admitted it was wrong to spend his clients money, but said he couldn’t comply with Rule 955 because he couldn’t return about $2,500 in unearned fees to three clients, because he didn’t have the money.
“You get on the wrong side of that rule, and you’re done,” he said.
But the Review Department said:
“At no time did respondent seek relief from his payment obligations. Indeed, we agree with the hearing judge that respondent provided little evidence of his inability to pay and he did not even attempt to make modest periodic payment to two of his clients.”
Cooney said he is working as a law clerk and has begun making payments, but still hasn’t completely paid back the unearned fees.
“[T]he acceptance of Mr. Cooney’s resignation would neither conserve State Bar resources or increase public protection. In fact, the acceptance of Mr. Cooney’s late resignation would potentially result in a greater expenditure of State Bar resources. Moreover, it would be unjust to provide the benefits of resignation to an attorney who waited to resign until his disciplinary proceeding has been completed.”
Expected to Prevail
He said that the Supreme Court has declined to accept resignation under similar circumstances. In Slaten v. State Bar (1988) 46 Cal.3d 48, the court said:
“Obviously, an attorney is the subject of disciplinary proceedings cannot be permitted to gamble on a favorable outcome of those proceedings and then avoid the consequences of a disbarment recommendation by reinstatement of an earlier resignation.”
Cooney said he didn’t resign earlier because he expected to prevail.
Resignation and disbarment have the same legal effect.
The board will take up the matter Sunday at its annual meeting in Monterey.
Drexel could not be reached for comment.
Copyright 2006, Metropolitan News Company