Tuesday, November 8, 2016

The California State Bar Court Review Department recommends a 30-day suspension and probation

The hearing judge found that Darryl Wayne Genis, an effective but confrontational criminal defense attorney, violated court orders in two superior courts. However, the judge dismissed charges that Genis filed a false and malicious State Bar complaint and committed acts of moral turpitude. The judge recommended discipline, including a 90-day actual suspension, after finding significant aggravation (multiple acts, bad faith, indifference, and substantial harm) and mitigation (30-year discipline-free career and good character).

Both Genis and the Office of the Chief Trial Counsel of the State Bar (OCTC) appeal. Genis seeks a dismissal; in the alternative, he challenges the aggravation findings and requests no more than a private reproval. OCTC contends Genis is culpable on all counts and is not entitled to any mitigation credit. It renews its trial request for a one-year actual suspension.

We have independently reviewed the record under rule 9.12 of the California Rules of Court, and affirm the hearing judge’s culpability, aggravation, and mitigation findings. Nevertheless, a 90-day suspension is not supported by case law, and fails to take into account the strength of the mitigating circumstances, particularly Genis’s long discipline-free legal career. A period of actual suspension is warranted, however, in light of the applicable standard and the aggravating circumstances, including Genis’s disrespectful attitude toward the superior court. We recommend a 30-day actual suspension and a two-year probation.

One matter involved his failure to appear for a conference because he had gone to New Orleans, He was fined $750.

Mistake: He handled the appeal of the sanction himself.

As the sanction was less than $1,000, Genis was not required to self-report to the State Bar. The appellate division, however, elected to refer him due to his conduct on appeal. The court stated that Genis’s oral argument consisted of “repeated tirades and impertinence, and with a tone wholly condescending and accusatory[.]” (People v. Whitus, supra, 209 Cal.App.4th at p. Supp. 4.) Voicing further concern, the court declared: “Appellant’s conduct is a serious and significant departure from acceptable appellate practice, or for that matter, practice in any court of law. If left unaddressed, this sort of advocacy demeans the profession, lowers public respect, and conveys the impression that it is acceptable and effective.” (Ibid.) Among many examples, the court pointed to Genis’s description of it as “ ‘the fox [watching] the hen house,’ ” and his comment about judges talking “like women in a sewing circle about us lawyers.” (Id. at p. Supp. 12.) Genis also described the trial court judge as an “embarrassment to our profession” who had a “completely sealed and closed shut mind.” (Id. at pp. Supp. 12-13.) The court observed that Genis continued his behavior despite admonishment and that his tone throughout oral argument was “confrontational, accusatory and disdainful.” (Id. at p. Supp. 13.) We consider this conduct before the appellate division in aggravation, even though it was not charged in the NDC.

Another involved violation of a trial court order limiting cross examination of police officers

The judge imposed $2,000 in sanctions, stating he did so reluctantly because of the consequences for Genis, who “is an extremely talented lawyer who does not need to resort to unethical behavior, to achieve positive outcomes.” At the State Bar Court hearing, the judge reiterated his hesitation, but concluded sanctions were necessary for deterrence and “out of integrity for the orderly administration of justice, and for the system, and for proper decorum and for respect for judicial orders.”

But no violation for this

Genis represented the defendant in People v. Marking-Epps (Super. Ct. Santa Barbara County, No. 1313307) (Marking-Epps). The defendant obtained new counsel, and he so informed Genis in writing on the day of a preliminary hearing. Both Genis and the new counsel appeared. During the hearing, the deputy district attorney stated on the record that she had provided discovery to the new counsel, who had requested it, but not to Genis. Genis voiced his surprise that the deputy had produced discovery before the new counsel became the attorney of record.

Genis quickly prepared a State Bar complaint claiming the deputy had disclosed and provided police reports and confidential information relating to the prosecution of a felonious criminal offense of his former client, in violation of Penal Code section 1054.2,9 which is conduct constituting a misdemeanor. Before sending the complaint to the State Bar, he sent an email to the District Attorney’s Office, virulently complaining about the deputy and attaching a copy of the State Bar complaint.

Also not a provably false statement

In an unrelated case where both Genis and the same deputy from the Marking-Epps case were counsel, Genis filed a motion to strike that contained the following statement: “This is yet another example of [the deputy district attorney] acting in ignorance and breaking the law, all in the name of performing her official duties as a Deputy District Attorney.

The Review Department struggled with sanction but concluded

We find that a 30-day actual suspension is fair and appropriate discipline. A month-long suspension and a two-year probation period is intended to impress upon Genis that his improper conduct toward the courts will not be tolerated. A lengthier suspension would, however, ignore that he did not harm his clients and has maintained his legal practice for decades without discipline.

The attorney also must take and pass the MPRE. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2016/11/the-california-state-bar-court-review-department-recommends-a-stayed-one-year-suspension-and-probation.html