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CA State Bar Opinion

CA State Bar Opinion

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Published by: JSmithWSJ on Aug 23, 2012
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08/23/2012

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PUBLIC MATTER -NOT DESIGNATED FOR PUBLICATIONFILED AUGUST 7, 2012
STATE BAR COURT OF CALIFORNIA

REVIEW DEPARTMENT

In the Matter of 
)
Case No. 09-O-10774
)
JOHN MARK HEURLIN,
) OPINION AND ORDER )
A Member of the State Bar, No. 119899.
))
This is John Mark Heurlin’s fourth disciplinary proceeding. In the present matter, thehearing judge found that Heurlin improperly held himself out as entitled to practice law while hewas on disciplinary suspension. She recommended that Heurlin be disbarred after finding nomitigation and significant aggravation.Heurlin seeks review and raises a multitude of procedural, evidentiary and constitutionalissues, which he argues require reversal. The State Bar supports the hearing judge’s decision.Having independently reviewed the record (Cal. Rules of Court, rule 9.12), we find thatHeurlin repeatedly held himself out as entitled to practice law when he referred to himself as“John M. Heurlin, Esq.,” “attorney,” and “Law Offices of John M. Heurlin” in correspondenceand court filings. Heurlin continues to use these references to himself in his pleadings and briefsfiled in this court, even though he was admonished by the California Court of Appeal that such“gratuitous” use of these terms while he is on disciplinary suspension may be “misleading.”Given that Heurlin has three prior impositions of discipline, the presumptive discipline inthis case is disbarment under standard 1.7(b) of the Rules of Procedure of the State Bar, title IV,
 
 
Standards for Attorney Sanctions for Professional Misconduct.
1
Standard 1.7(b) states that whenan attorney has been disciplined on two prior occasions “the degree of discipline . . . shall bedisbarment unless the most compelling mitigating circumstances clearly predominate.” Here, wefind no evidence in mitigation and additional evidence in aggravation. Finding no merit toHeurlin’s procedural and substantive challenges, we adopt the hearing judge’s recommendationthat he be disbarred.
I. FACTUAL BACKGROUND
Heurlin was admitted to practice law in California on December 10, 1985. In 2004, heand two other attorneys, David Fuller and Henry Schrenker, formed a professional corporation,FairWageLaw, to prosecute wage and hour class action lawsuits against large nationalcorporations. Each of them was a one-third shareholder of FairWageLaw.In January 2005, the Supreme Court ordered Heurlin suspended for two years and untilhe satisfies the requirements of standard 1.4(c)(ii) for serious misconduct unrelated to the classaction litigation. Heurlin remains on suspension. Fuller and Schrenker learned of his suspensionfrom opposing counsel, Keith Jacoby, who defended National Stores (National) in a class action brought by FairWageLaw. When Fuller confronted him about his suspension, Heurlin initiallydenied it. Fuller and Schrenker then voted to dissolve FairWageLaw and remove Heurlin as adirector. In August 2005, they also filed a petition for judicial supervision of the winding up of FairWageLaw (the dissolution action). The superior court granted the petition and assumed jurisdiction. At the time of the disciplinary hearing below, the dissolution of FairWageLaw hadnot been resolved.
1
Unless otherwise noted, all further references to “rule(s)” are to the Rules of Procedureof the State Bar, and all further references to “standard(s)” are to title IV of the rules, Standardsfor Attorney Sanctions for Professional Misconduct.-2-
 
 
While on suspension, Heurlin filed a notice of attorney’s lien in August 2005 on behalf of himself and FairWageLaw in the National class action lawsuit. He identified himself in the pleading as “John M. Heurlin, Esq. SBN 119899” and listed himself and FairWageLaw as lienclaimants. He also referred to himself as “attorney John M. Heurlin” in the lien notice. Heurlindid not indicate he was suspended.The superior court granted Fuller and Schrenker’s motion to strike Heurlin’s lien noticeand ordered the class action defendants not to include Heurlin as a payee. In response to thecourt’s ruling, Heurlin sent a letter on July 19, 2006 to opposing counsel, Jacoby, urging him to“place my name on any settlement draft related to attorney’s fees” and warning that Nationalwould “be on the hook for [his attorney’s] fees and costs” if Heurlin prevailed on appeal.Heurlin followed up with another letter on July 25, 2006, providing his analysis of the lawapplicable to his attorney’s fee demand, and concluding: “If you pay over attorneys fees toanyone without my name on the settlement draft, there is no ‘good faith belief’ defense availableto you since you are actually aware of the pending appeal.” Both of these letters were written onletterhead from the “Law Offices of John M. Heurlin” and signed “John M. Heurlin, Esq.”When Jacoby received these letters, he did not know if Heurlin was still suspended. Heurlin sentcopies of the letters to Schrenker and another attorney.Heurlin filed two interlocutory appeals from orders in the dissolution action. OnDecember 7, 2006, the Court of Appeal dismissed both appeals as “specious” and noted in itsdecision: “[T]here is a strong case for imposing appellate sanctions against Heurlin for takingappeals in bad faith and for the purpose of delay.” The Court of Appeal also voiced its concernover Heurlin’s implied representations that he was licensed to practice by use of his letterheadand references to himself as “attorney” in his letters to defense counsel:Particularly disquieting are Heurlin’s aggressive letters to settling counsel in the NationalStores lawsuit. Notwithstanding his suspension, he made repeated (and wholly-3-

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