Tuesday, June 5, 2001
Page 9
PERSPECTIVES
(Column)
Yaffe Fails
to List Receipt of Free Legal Services on Form Filed With FPPC
By ROGER M. GRACE
Los Angeles Superior Court Judge David P. Yaffe received free legal services from his former law firm but failed to report the receipt of those services on his annual statements of economic interests filed with the Fair Political Practices Commission.
As I reported yesterday, the law firm of Monteleone & McCrory provided uncompensated representation to Yaffe and his wife when they were sued by a contractor in 1996 for sums they refused to pay because there was discoloration of tile grout. All fees were waived in advance by the law firm for the period from April, 1996 (when the litigation was launched) to April, 1997 (when arbitration took place); a portion of the fees that were billed from April, 1997 through October, 1998 (when the litigation ended) went unpaid, and those fees were subsequently waived. The free services were a “gift.” The forgiven indebtedness was “income.”
With respect to the fees that were paid, it’s not known if there was a reduced rate for Yaffe, an ex-partner in the firm. If there was, the difference between what he and his wife paid and the standard rate would also be a gift.
The gift of legal services in each of the years in which they were provided, as well as the forgiveness of debts, should have been reported by Yaffe on Form 700. His statements covering calendar years 1996, 1997, and 1998 make no mention of the legal services.
While his omission cannot subject Yaffe to civil penalties — under Code of Civil Procedure §340, there’s a one-year statute of limitation — he can be subjected to discipline by the Commission on Judicial Performance. Art. VI, §18(d)(2) makes a judge fair game for scrutiny of conduct occurring during the six-year period prior to the commence of his or her current term. Yaffe’s current term commenced in January.
Yaffe’s failure to abide by his statutory oblgation to report gifts and debt forgiveness, without more, would be disciplinable. Canon 2A of the Code of Judicial Ethics provides: “A judge shall respect and comply with the law.” The law — in particular, Government Code §87203 — requires that financial disclosures be made in the annual statement of economic interests.
It says: “Every person who holds an office specified in Section 87200 [which includes “judges”] shall, each year at a time specified by commission regulations, file a statement disclosing his investments, his interests in real property and his income during the period since the previous statement filed under this section or Section 87202.”
“Income” is defined by §82030 as including any “gift” or “forgiveness...of indebtedness.”
There is, however, more. The omission, if wilful, entailed a criminal act. On each form was a verification, executed by Yaffe, reading:
“I have used all reasonable diligence in preparing this statement and to the best of my knowledge the information contained herein and in any attached schedules is true and complete. I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”
The statement was not “complete.”
Schedule E on each statement is labelled “Income/Gifts.” It seeks this information in connection with each source: “NAME OF SOURCE,” “ADDRESS,” “DESCRIPTION OF GIFT(S),” “VALUE,” “DATE.”
I find it interesting that Yaffe, in his statement for calendar year 1996 (filed Feb. 19, 1997), reported that Darrell P. McCrory at 1551 Tustin Ave., Santa Ana, whom he listed as “retired,” had supplied a gift of “food” valued at $150, with the date stated as “various.” (McCrory coincidentally had supplied him with vittles worth precisely the same amount in 1995.) McCrory was the founding partner of Monteleone & McCrory. The address in Tustin is that of the Orange County office of Monteleone & McCrory.
Did Yaffe manage to remember McCrory buying him meals during 1996 worth $150 but truly not bring to mind that the law firm had supplied him with free services that year worth several times that?
The total value of the free services received by the Yaffes in 1996 was probably about $10,000. This is based on the value of the corresponding legal services performed by the law firm of Raiskin & Revitz for the plaintiff in the case. The court awarded attorney fees to the plaintiff, as the prevailing party, in the amount of $35,000 for the three years’ of representation.
If Yaffe did not forget about the services, did he think that gifts of services didn't count? Surely there is nothing in the wording of the form that would even hint at such an exclusion.
The obligation to file an annual report is created by the Political Reform Act of 1974, which is Government Code §81000 et seq. In §82028, “gift” is defined as “any payment that confers a personal benefit on the recipient, to the extent that consideration of equal or greater value is not received and includes a rebate or discount in the price of anything of value unless the rebate or discount is made in the regular course of business to members of the public without regard to official status.” Emphasis added. And “payment” is defined by Government Code §82044 as including “services or anything else of value, whether tangible or intangible.”
Under the law, Yaffe was obligated to report the receipt of free legal services (and discounts, if any).
Or does the Fair Political Practices Commission take some other view? Apparently not. I made inquiry of it as to whether a judge is obliged to report the receipt of free legal services. It responded by faxing copies of §82028 and §82044, affirming the applicability of those statutes.
Too, Yaffe was obliged to report the debt forgiveness, which, under §82030, is “income.”
He failed to report the gift or the debt forgiveness, but nonetheless vowed, under penalty of perjury, that the had used “reasonable diligence” in preparing the statement and had “reviewed” it, and that it was “complete.”
The Commission on Judicial Performance would be remiss if it did not discipline Yaffe for failing to reveal, when he had a legal duty to do so, his financial dealings.
This should be accompanied by discipline in connection with matters I discussed in previous columns, including:
• Causing a false recital in a judgment that an order to show cause had been served on an alleged contemnor when, as Yaffe knew, such had not been done;
• Persistently bullying attorneys and pro pers appearing in his courtroom.
WHAT DOES HE LOOK LIKE? — I don’t recall ever seeing Yaffe at a bar meeting. He does not seem prone to hobnob with mere lawyers. It is not surprising, then, that our burgeoning files of photos taken for "Click!" pages don’t include an up-to-date shot of Yaffe — other than the one below. An avid bicyclist, he was attracted to a recent bench-bar bike ride sponsored by the Los Angeles County Bar Assn.’s Barristers (co-sponsored by the MetNews.)
I did see him at a fundraising event at a Bel-Air home in 1996. I was introduced to him and he glowered at me. It was shortly after we ran an editorial taking him to task for speaking out against then-District Attorney Gil Garcetti, a few weeks before Garcetti was to face voters in the primary election. We didn’t have a photographer at that event.
Our competitor, Brand X, doesn’t have a recent photo of him, either. Its Oct. 23 article on Yaffe was accompanied by a 1988 file photo. Well, we can do better than that. Below is a shot a MetNews photographer took of Yaffe in 1990.
Picture him 10-and-a-half years older, and with a scowl.
