Rose v. State Bar

Majority - THE COURT

Yes, the attorney's misconduct, encompassing multiple serious violations including failures to communicate, diligently perform services, manage client funds, return client files, unlawful solicitation, and business dealings with clients without proper disclosure or advice for independent counsel, warrants a significant period of actual suspension and probation, even with substantial mitigating factors, to protect the public and uphold professional standards. The Court independently reviewed the evidence, giving great deference to the State Bar Court's findings, particularly when based on credibility evaluations. The petitioner bore the burden of demonstrating error. For the Vash and Wooten Matters (Counts One and Two), the Court adopted the hearing panel's findings that Mason Rose violated rule 8-101 (failure to keep accurate records, maintain sufficient trust account balance, and account for funds) and Business and Professions Code sections 6067 and 6068 (duties of an attorney, including prompt response to inquiries), by failing to deliver Dr. Vash's settlement funds for nearly three years despite her repeated contact attempts and not paying Wooten's bill, partly due to a client trust account levy for his unpaid taxes which he did not resolve. In the Mulligan Matter (Count Three), the Court found Mason Rose violated rule 2-111(A)(2) by willfully failing to return Bernadette Mulligan's case file promptly upon request. Rose delayed for six months in surrendering the file to Mulligan's new counsel. His explanation regarding retrieval from another attorney's estate was deemed incredible due to vagueness and inconsistencies. The Court disallowed findings of failure to communicate as that charge was not properly made. Regarding the Heffernan-Ludwig Matter (Count Four), the Court concluded that Mason Rose violated rule 2-101(B) and section 6152 by actively soliciting professional employment for pecuniary gain. Rose initiated contact with Heffernan and Ludwig shortly after their helicopter crash while they were hospitalized and vulnerable, making multiple visits and calls to press them to retain him, crossing the line from legitimate investigation to prohibited direct solicitation. Rose also conceded misconduct for failing to communicate with them, violating rule 6-101. For the Fultz Matters (Counts Six and Seven), the Court found Mason Rose violated rule 5-101 by entering into a business transaction with Susan Fultz (investing her settlement proceeds in a restaurant equipment lease) without proper disclosure and without advising her to seek independent counsel. Rose promoted the investment, assured Fultz of its goodness, and stressed his fiduciary duty, but did not clearly disclose his own 25% stock interest in the operating company (Let-Us) for his role in procuring Fultz's investment. While his interest was in complex documents Fultz signed, this was not deemed disclosure in an understandable manner, and he failed to advise independent counsel. Rose also violated rule 8-101 by failing to account to Fultz for the restaurant equipment after it was shipped to him and he used it in his own restaurant, despite having guaranteed lease payments and owing a fiduciary duty. In the Smith Matter (Count Eight), the Court adopted the stipulated facts that Mason Rose violated rule 2-111(A)(2) by willfully withdrawing from Claudia Smith's employ without taking reasonable steps to avoid prejudice and rule 6-101(A) by willfully failing to use reasonable diligence and competently perform legal services, as he failed to communicate, appear at a trial setting, or respond to a motion to dismiss, leading to her case being removed from the calendar and dismissed. In determining discipline, the Court balanced numerous aggravating factors (multiple acts of misconduct, client abandonment, direct solicitation, conflict of interest) against significant mitigating factors. Mitigating factors included no prior discipline in over seven years of practice, substantial civic and charitable endeavors, extensive pro bono work for handicapped individuals (including landmark cases), marital problems and profound depression following an adverse verdict, and a diagnosed psychological disorder (irrational need for approval, procrastination) for which he voluntarily sought treatment and made progress. The Court, while giving weight to the Review Department's recommendation of disbarment, ultimately exercised independent judgment. It found disbarment unduly severe given the mitigation, but the hearing panel's recommendation of one year actual suspension too lenient. The Court imposed a five-year suspension, stayed, with two years of actual suspension and five years of probation. Conditions included compliance with rules, quarterly reports, maintenance of addresses, cooperation with inquiries, semi-annual trust fund audits, and passing the Professional Responsibility Examination.