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In the Matter of

May 26, 2011

IN THE MATTER OF ROBERT EATON DOWD, A MEMBER OF THE STATE BAR, NO. 93284.


The opinion of the court was delivered by: Remke, P. J.

PUBLIC MATTER - NOT DESIGNATED FOR PUBLICATION

OPINION

Robert Eaton Dowd requests review of a hearing judge's recommendation that he be suspended for 90 days because he sought to mislead a judge by having his office assistant sign his name to pleadings. Dowd asserts he is not culpable of any misconduct and should not be disciplined. The Office of the Chief Trial Counsel of the State Bar (State Bar) asks us to affirm the hearing judge's recommendation. After our independent review of the record (Cal. Rules of Court, rule 9.12), we adopt the hearing judge's culpability finding and discipline recommendation.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

In January 2010, the State Bar filed a Notice of Disciplinary Charges (NDC) alleging that Dowd sought to mislead a judge or tribunal by making a false statement of fact when he authorized his office assistant to simulate his signature on pleadings from July 2005 through February 2007. Prior to trial, Dowd stipulated to the State Bar's exhibits and to extensive facts. The stipulated facts and Dowd's limited testimony provide clear and convincing evidence to support the hearing judge's factual findings, which we adopt and summarize below.

A. FACTS

Dowd is a solo practitioner who was admitted to practice law in 1980. Ella McDaniel is his office assistant and his only employee. She started working for Dowd in 1997. By June 2000, Dowd felt he had worked with McDaniel long enough to trust her, and he permitted her to sign his name as though it were his own signature to any document generated by his office. After he finalized a document, he considered it more expedient to allow McDaniel to sign his name to it. According to Dowd, "[i]t's just easier for me to do that. I don't like details. I assign those details to her."

In May 2005, McDaniel hired Dowd on a pro bono basis to assist her as executrix of her son's estate and to enjoin the sale of two properties by her son's former wife. *fn1 In July 2005,

Dowd filed a complaint on McDaniel's behalf, seeking to set aside a joint tenancy deed on property held by McDaniel's son and his wife, seeking to quiet title in the property, and alleging fraud against the wife. All pleadings, motions, declarations, and correspondence filed with the court and sent to opposing counsel in the case bore Dowd's signature, but were actually signed by McDaniel. None of the documents indicated that his signature was simulated by another person. Dowd intended for the court to rely upon McDaniel's signature simulations on the documents as if they had been done by his own hand. McDaniel replicated Dowd's signature on at least 41 separate documents, including:

The complaint and two amended complaints;

Several recorded notices of pendency of action;

Multiple motions and their corresponding, signed memoranda;

At least nine declarations in support of pleadings signed under penalty of perjury; and

At least 10 proofs of service signed under penalty of perjury, declaring the signatory was "not a party to the within cause of action."

By December 2006, opposing counsel in McDaniel's case discovered and objected to Dowd's practice. Despite being notified of a potential problem, Dowd allowed McDaniel to continue the practice. Consequently, on February 27, 2007, opposing counsel argued that a February 23, 2007 declaration purportedly signed by Dowd was incompetent because McDaniel signed it. The attorney asked the court to address the issue.

At the next hearing, Dowd admitted McDaniel simulated his signature on the documents. The court admonished Dowd to discontinue the practice. At a subsequent hearing, the court reiterated that "if there is any pleading signed they better be signed by an attorney." Due to the improper signatures, the court expunged all recorded notices of pendency of action as void and invalid, ...


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