Wednesday, October 22, 2008
C.A. Rejects Denial-of-Counsel Claim by Lawyer Who Represented Self
By KENNETH OFGANG, Staff Writer
An Orange Superior Court judge did not deprive a now-disbarred Brea lawyer of his right to counsel by allowing him to represent himself, the Fourth District Court of Appeal ruled yesterday.
Div. Three affirmed the conviction of Harpreet Singh Brar on charges of willful failure to file tax returns on behalf of himself and his professional corporation. Judge Richard W. Stanford Jr. sentenced Brar last year to five years’ probation, on condition he serve 365 days in jail and pay more than $800,000 in restitution.
Brar, who was admitted to the State Bar in 2000, represented himself from Nov. 17, 2006 through his 2007 trial. At the time he waived his right to counsel, he completed a self-representation form and was questioned by the judge, confirming that he was licensed to practice law and did primarily civil work but had handled criminal cases.
At trial, a special agent for the California Franchise Tax Board testified that Brar failed to file returns or pay personal income taxes from February 1999 through February 2003, that Brar failed to file tax returns taxes for his professional corporation in 2002 and 2003; and that he failed to file returns for four years for Brar Corp, of which he was president and secretary.
The agent also testified that Brar Corp sold a farm in 1999 and transferred the proceeds of $1.5 million to Brar’s securities brokerage account. She estimated that he owed taxes and penalties of more than $135,000 for that year, plus additional amounts for subsequent years.
Brar, who filed his 1999 return in January 2006, claimed a net loss for that year. He claimed that he took a loss on the sale of the farm, and that the proceeds were actually partial repayment of a $2 million loan he made to Brar Corp.
When pressed, however, he could not document the alleged loan or the alleged loss. He also testified that he did not file returns for Brar Corp because it never made a profit, and said he was unaware at the time that California law imposes an $800 annual minimum corporate tax, even on corporations that lose money.
He added that it was his “professional opinion” that he was not required to file returns for the professional corporation through which he conducted his law practice.
Jurors found him guilty of willfully failing to file personal income tax returns for two years, an income tax return for Brar Corp for one year, and an income tax return for his professional corporation for one year, while acquitting him on one count of filing a false return.
On appeal, he contended that he did not knowingly and voluntarily waive his right to counsel. He claimed that he did not complete the waiver form, that the judge failed to remind him of his right to counsel at time of trial, and that he “may have been under the influence of drugs and alcohol” at the time of the waiver.
But Justice Richard Fybel, in an unpublished opinion for the appellate panel, noted that the waiver form contained all of the required advisements and that Brar, given his educational level, should have understood it completely. While he failed to complete sections of the form asking him to “explain your views about the form” and to “explain briefly why you wish to represent yourself,” the justice said, that omission does not render the waiver ineffective.
“Answers to those questions,” the justice explained, “were unnecessary for the trial court to determine whether Brar’s request for self-representation was knowingly, intelligently, and unequivocally made.”
Fybel went on to say that there is no requirement under the lead Supreme Court decision on self-representation, Faretta v. California (1975) 422 U.S. 806, that interim warnings regarding self-representation be given, and that there was no evidence to support Brar’s suggestion that he was under the influence at the time of the waiver.
At the time of trial, Brar was on inactive status and facing multiple disciplinary charges. He was placed on interim suspension after his conviction.
In July of this year, he was disbarred based on findings that he had pursued litigation in which he knew that the action was frivolous or that multiple defendants had been improperly joined, failed to cooperate with State Bar investigators, violated court orders, and failed to pay discovery sanctions imposed by superior court judges in multiple cases.
The State Bar investigation stemmed in part from charges that Brar had filed improper actions accusing some 1,500 small businesses of unfair competition or false advertising. Similar charges led to disciplinary action against other lawyers under pre-Proposition 64 law which granted members of the general public standing to bring such suits without having to show that they had been personally injured by the violation.
In a 2005 decision, the Court of Appeal affirmed a $1.787 million default judgment against Brar in favor of the state attorney general, who claimed that the filing of “shakedown” lawsuits by Brar was itself a violation of the Unfair Competition Law.
Brar contended that he had prepared an answer to the complaint and had placed it in his mailbox for delivery to the court, but that it was stolen. The trial judge denied his motion to set the default and default judgment aside.
In affirming, the appellate panel questioned Brar’s credibility. It also noted Brar’s claim that there were other thefts from mailboxes in the area, reasoning that if Brar placed his answer in the box despite knowledge of the other thefts, his doing so could hardly be deemed excusable neglect.
Yesterday’s case is People v. Brar, G039352.
Copyright 2008, Metropolitan News Company