Thursday, October 22, 2009
Panel Urges Attorney’s Suspension Over False Verification
By KENNETH OFGANG, Staff Writer
A San Fernando Valley lawyer should be suspended for 150 days for filing a false verification and failing to apprise the State Bar of a change of address, the State Bar Court Review Department has concluded.
The panel Tuesday recommended the penalty as part of a two-year probationary term for Stephen C. Downey of Canoga Park, who primarily represents landlords in eviction cases.
In 2005, while practicing in Mission Hills, Downey was retained by the owners of a Sherman Oaks home to evict their tenant. He served a 60-day notice to quit on May 23 and a three-day notice to pay rent or quit on July 5.
On July 11, after the tenant failed to pay rent or vacate, Downey filed a complaint, which he personally verified, attesting that the plaintiffs were “absent” from the county. On July 20, defense counsel moved to strike the complaint on the ground that the attorney’s verification was invalid under Code of Civil Procedure Sec. 446(a), which excuses the personal verification requirement only if the plaintiff is absent from the county.
Downey subsequently filed new verifications signed by his clients, and argued in opposition to the motion to strike that it was “a question of fact” whether his clients were absent from the county on the date the complaint was filed.
The motion to strike was denied as moot, based on the filing of the new verifications.
After opposing counsel complained, the State Bar investigated. Downey, who had been suspended four months in 1993, was charged with four counts of misconduct, two of which were dismissed prior to or during trial.
At the trial, before State Bar Court Hearing Judge Richard Honn, bar counsel presented evidence that the clients were in Los Angeles County on the day the complaint was filed.
Downey explained that his staff had attempted to contact the clients, but had not heard back from them. Since “the most plausible explanation” of his inability to reach them was that “they were traveling somewhere and probably out of the county,” he testified, he felt it was proper to sign the verification.
As for the charge that he failed to update his bar records, Downey admitted that he moved his office in February 2005 and did not notify the State Bar until 28 months later, contrary to a State Bar Act requirement that notice of any change of address be given within 30 days.
Honn found that Downey committed gross neglect by signing the verification in the absence of sufficient evidence that the clients were actually out of the county, and that he acted with moral turpitude, although without intent to defraud. He also found that Downey was culpable for failing to give timely notice of his change of address.
Honn recommended a private reproval, rejecting bar counsel’s urging that Downey be suspended for six months.
The Review Department, in an opinion by Presiding Judge Joann Remke, agreed with Honn as to culpability but found that the recommended discipline was inadequate given the prior suspension. The presiding judge cited disciplinary standard 1.7(a), which directs that discipline be progressive unless the prior discipline was both remote in time and for a minimal offense.
The prior misconduct, Remke wrote, was quite serious in that Downey failed to perform required services in 22 separate matters between 1983 and 1987 and misrepresented what he had done to his firm, which consequently billed the clients for $86,000 in unearned fees.
The presiding judge also explained that Downey had aggravated his misconduct in the present case by engaging in “legal semantics” rather than simply admitting his “gross carelessness” and withdrawing the original complaint.
Downey could not be reached yesterday for comment.
The case is Matter of Downey, 05-O-04653.
Copyright 2009, Metropolitan News Company