Metropolitan News-Enterprise


Friday, July 23, 2021


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C.A. Rejects Effort to Sidestep Bar on Actions for Malpractice by Those Guilty of Crimes


By a MetNews Staff Writer


The bar on legal malpractice actions stemming from criminal proceedings where factual innocence is not shown applies to a suit brought by a man who pled guilty to tax evasion and claims that civil penalties were included in the plea agreement through his lawyer’s negligence, the Court of Appeal for this district held yesterday, rejecting the contention that this was a civil matter outside the ambit of the rule.

Justice Maria E. Stratton of Div. Eight authored the opinion which affirms a judgment of dismissal that was entered after Los Angeles Superior Court Judge Barbara A. Meiers sustained a demurrer without leave to amend.

The action was brought by Darryl W. Genis of Santa Barbara, who is himself a criminal defense lawyer. His action was against Martin A. Schainbaum, a San Francisco tax lawyer who represented him in negotiating a plea agreement with the United States Attorney’s Office.

Plea Bargain

Avoiding the filing of felony tax fraud charges that could have carried a sentence of 15 years in prison, Genis pled guilty to three misdemeanor counts based on willfully failing to file tax returns for 2009, 2010, and 2011 and agreed to pay $679,958 in back taxes. He was sentenced by the District Court for the Central District of California to two years in prison, and he began serving the sentence on May 19, 2017.

On Feb. 15, 2018, he filed a motion pursuant to 28 U.S.C. §2255 for an order vacating or correcting the sentence, and the case was assigned a civil case number. District Court Judge Dale S. Fischer accepted his contention that Schainbaum had slipped up in not pointing out that a form he signed included civil penalties of 75 percent of the back taxes, but did not wipe out the proviso of the plea agreement, but offered Genis the opportunity to withdraw his plea and go to trial.

Genis declined the offer, then appealed, arguing the agreement should be kept in place, minus the civil penalties. The Ninth U.S. Circuit Court of Appeals, in an Oct. 8, 2020 memorandum opinion, said that Fischer offered the correct remedy.

Superior Court Suit

Next, Genis on Feb. 1, 2019 brought suit against Schainbaum, in Los Angeles Superior Court for malpractice, seeking $10 million in damages. Appealing from the judgment of dismissal that ensued, he posed the issue in these words:

“In the legal malpractice context, does the ‘actual innocence’ standard adopted in Wiley v. County of San Diego (1998) 19 Cal.4th 534 apply to legal malpractice claims stemming from legal representation involving simultaneous civil and criminal cases, when a plaintiff is only pursuing legal malpractice claims as to the underlying civil case?”

Stratton’s opinion rejects the notion that the government maintained a separate civil case. The jurist wrote:

“While it is accurate to suggest the prosecutor inserted civil penalties as part of the punishment to which Genis agreed, it stretches the record beyond credulity to claim there was a separate pending civil case. At the outset, Genis was informed he was looking at being charged criminally. He received consideration in the form of reduced charges because he agreed to the inclusion of civil penalties as part of the disposition of the criminal case. That the government asked for civil penalties in exchange for forbearance in charging felony offenses does not in any way transform the underlying action into civil litigation.”

Civil Case Number

In an effort to show that there was separate civil litigation, Genis pointed to the civil case number assigned to his motion to correct the sentence. Stratton responded:

“[A] 2255 motion is the statutory equivalent of a petition for writ of habeas corpus, traditionally a civil filing….Hence, the civil case number.”

She went on say:

“Although Genis avers that he retained Schainbaum to represent him in a ‘criminal tax/civil’ matter, the exhibits upon which all parties relied belie and, in fact, contradict that there was ever a civil action contemplated or filed with respect to civil tax liability. In sum, to state there were two simultaneous, ongoing civil and criminal matters is simply disingenuous. We decline to distort the record.”

The case is Genis v. Schainbaum, 2021 S.O.S. 4128.

El Segundo attorney Joseph J. M. Lange represented Genis. Law Corporation and Joseph J. M. Lange for Plaintiff and Appellant. Heather L. Rosing, Robert M. Shaughnessy, and Lu Zhang of the San Diego firm of Klinedinst, PC, acted for Schainbaum and his law corporation.

State Bar Matters

The State Bar on July 13, 2018 filed a charge against Genis that he held himself out as a lawyer on active status during a period when he was on suspension.

A 60-day suspension was ordered based on untruthful representations to a judge. In a June 29, 2017 decision, the State Bar Court Review Department recited:

“…Genis was asked by a superior court judge four consecutive times, in part and collectively, whether he had touched, moved, or hid opposing counsel’s document during a trial recess. Genis repeatedly, and then categorically, denied the allegations. Videotape evidence from the courtroom showed otherwise and demonstrated that Genis had not been honest in his responses to the judge.”

He earlier incurred a 30-day suspension. A March 13, 2015 Review Department decision—which terms Genis “an effective but confrontational criminal defense attorney” says he “violated court orders in two superior courts”: the courts of San Luis Obispo and Santa Barbara counties.


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