Attorney Privilege

The state bar is supposed to punish dishonest attorneys. Instead, it too often coddles them

Paul Weakland needed a lawyer. His girlfriend had obtained a restraining order against him after they quarreled. In Weakland's telling, upset over his reluctance to marry her, she claimed he posed a physical threat to her; he countered that she lied to authorities to retaliate against him. Whatever the precise truth, he found himself unable to return to their Sunset District apartment, and sought an attorney to help him fight the order.

A call to a lawyer referral service led him to Kathleen McCasey, a San Francisco family law attorney with a small practice in the Fillmore. Weakland recalls that at their first meeting, in August 2003, she told him, "I'm going to take care of you." He paid her $3,500 to represent him.

Weakland arrived in family court in early September for a motion hearing to rescind the restraining order. McCasey was nowhere to be seen. The judge continued the hearing to October, but over the next three weeks, court records show, McCasey ignored Weakland's repeated phone messages and missed two meetings with him.

Gary Aagaard
"Too many lawyers get away with bad behavior," says legal ethics attorney Richard Zitrin.
Jake Poehls
"Too many lawyers get away with bad behavior," says legal ethics attorney Richard Zitrin.

She chose the wrong client to snub. A former Army Ranger who survived the cauldron of Vietnam, the 53-year-old Weakland, a commercial diver by trade, isn't the acquiescent type. He submitted a complaint against McCasey to the State Bar of California, the regulatory agency that licenses attorneys. For good measure, he also filed a fraud report with the San Francisco Police Department.

A state bar complaint analyst sent McCasey notice of Weakland's grievance and requested a written response. She never replied. In December 2003, looking to recoup his $3,500, he prevailed in a fee-arbitration proceeding before the San Francisco Bar Association. McCasey, again a no-show, disregarded the ruling.

Weakland soldiered on. Five months later, he won a judgment against McCasey in small claims court for the amount of the arbitration award. Soon after, perhaps fearing the judge would sanction her if she defied the order, McCasey mailed Weakland a $3,500 check. It bounced, prompting him to file a second police report.

McCasey eventually sent him a cashier's check in June 2004. But when she blew off a subsequent court hearing — Weakland had discovered he could collect interest from her — the judge awarded him an additional $1,000. McCasey obliged by writing him another bad check. She finally settled the debt in August, a full year after he hired her.

The payment failed to pacify Weakland. Still bound by his ex-girlfriend's restraining order, thanks to McCasey's vanishing act, he had to live for a time on his boat docked in Bodega Bay. He pressed the state bar to crack down on McCasey, convinced he wasn't the sole casualty among her clients. His instinct proved true.

Court records reveal McCasey bungled three other cases during a 17-month span going back to April 2003. One involved Raymond Wong, who retained her in February 2004, five months after Weakland first complained about her to the state bar. Wong wanted to appeal a no-contact order obtained against him by his ex-wife that prevented him from visiting their two children, who lived with her. Before departing on a trip to China, he asked McCasey to call him with updates on the case. She neither phoned him nor filed his appeal.

Wong complained to the state bar in August 2004. Despite his and Weakland's grievances, however, more than two years elapsed before McCasey faced formal discipline. Last December, the California Supreme Court suspended her right to practice for 60 days. Weakland greeted the news with bitter disbelief.

"She's ruining people's lives and she gets a slap on the wrist," he says. "She should be disbarred." McCasey declined to comment to SF Weekly.

Weakland's lament could double as the motto for clients across California who believe the state bar coddles wayward lawyers at the public's expense. Indeed, the penalties imposed on McCasey almost qualify as draconian when compared to the free pass given to the vast majority of lawyers accused of misconduct.

From 2004 to 2006, while receiving written complaints against 41,635 California attorneys, the state bar deemed less than one-fourth worthy of investigation, according to agency statistics. During the same period, 1,468 lawyers were punished for wrongdoing, a figure that represents less than 1 percent of the practicing attorneys statewide. Aggrieved clients and consumer advocates disparage that prosecution rate as a paltry return on the $43 million the state bar spends annually on its attorney discipline program.

Beyond the modest number of penalties meted out, critics assail the system as perilously slow. On average, cases that yield sanctions take 18 months to move from the complaint stage to the state Supreme Court for final approval, with delays of two to three years not unusual. In the interim, a lawyer bears no obligation to notify current or prospective clients of the bar's investigation — potentially putting multiple cases at risk, as McCasey showed.

State bar officials, while conceding the agency has its flaws, contradict the allegations of leniency. So do defense attorneys who handle discipline disputes, contending that bar prosecutors have pursued harsher sanctions since the state Supreme Court's ruling in a recent disbarment case. But severity remains a matter of perspective. To those already deceived by a lawyer, the discipline system can leave them feeling cheated twice. "The bar isn't looking after us," Weakland says. "It's protecting dirty attorneys."

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