1. VIVIAN GAGLIARDINO
2. KATHLEEN MARIE LEE
3. SANG HYUN KANG
4. ROY RICKARD WITHERS
5. HOWARD LAWRENCE RIFKIN
6. LAINE EDWIN HEDWALL
7. RICHARD JOHN PAPST
8. JOHN W. EVANS

VIVIAN GAGLIARDINO [#177623], 44, of Newport Beach was disbarred July 25, 2010, and ordered to make restitution and comply with rule 9.20 of the California Rules of Court.

The State Bar Court found that Gagliardino committed numerous acts of misconduct in two client matters, including misappropriating more than $200,000.

A client who was going through a divorce was owed money by a prior lawyer. Gagliardino received the refund check, endorsed the client’s name and wrote “pay to the order of Vivian Gagliardino” on the back. She had no authorization to do so. She deposited the check in her personal bank account, treating it as a payment of additional advanced fees. The client, who said she was struggling to pay her bills, tried without success to contact Gagliardino to determine the status of her case and eventually fired her. She asked for both a refund of her advance $5,050 fee and the refund from the prior lawyer.

Gagliardino eventually provided a refund of the advance fee, short $50.

In a second divorce case, she represented the husband and pursuant to a court order received a check for $225,021.17, which represented the proceeds from the sale of the couple’s home. She did not put the money into a trust account in the clients’ names, never provided monthly statements for the account and almost immediately began misappropriating the funds. Eventually the account balance stood at zero. When confronted by the opposing attorney about her non-compliance with the court’s order, she lied to the attorney, to the parties and to the accountant hired to provide an accounting. She prepared a misleading accounting of the funds that completely misrepresented how she handled her client’s funds.

Gagliardino took $90,345 to pay personal expenses and separately misappropriated $57,000 to buy a motor home (that she sold for a profit of $4,000) and $74,577.72 to fund the escrow for her purchase of a home in Huntington Beach. She had intended to use the proceeds from the sale of her home to buy a new house, but because of a delay in closing escrow on the home she was selling, she used $74,577.72 of client funds to close escrow on the home she was buying. She later replaced the money.

The wife’s lawyer repeatedly repeatedly asked Gagliardino for copies of the monthly trust account bank statements and when she didn’t provide them, he filed an order to show cause for contempt. Gagliardino convinced him the statements were forthcoming so he took the matter off calendar.

The bar court found that Gagliardino failed to obey a court order, inform clients of significant developments or deposit funds in a trust account or account for those funds, and she committed four acts of moral turpitude.

In mitigation, Gagliardino had no prior discipline record, entered into a stipulation with the bar and made restitution. However, Judge Donald Miles recommended her disbarment, noting in particular that the misappropriations “were of significant amounts of money and involving two separate clients; her actions were intentional and knowingly dishonest; and she sought to conceal those acts by subsequent efforts at concealment and misrepresentation.”

KATHLEEN MARIE LEE [#144699], 64, of Palm Desert was summarily disbarred July 25, 2010, and was ordered to comply with rule 9.20 of the California Rules of Court.

Lee was convicted of misappropriating more than $49,000 entrusted to her and was placed on interim suspension in February 2010. Because the offense was a felony involving moral turpitude, it met the criteria for summary disbarment.

SANG HYUN KANG [#125089], 52, of Los Angeles was disbarred July 25, 2010, and was ordered to make restitution and comply with rule 9.20 of the California Rules of Court.

In a default proceeding, the State Bar Court found that Kang committed multiple acts of professional misconduct, including misappropriation of client funds.

He filed a personal injury lawsuit for a mother and her son who were injured in an automobile accident. He received two settlement checks totaling $12,000 and promised to pay his clients’ medical bills but never did so and misappropriated $5,500. In another matter, he did not pay a $2,375 fee he owed to a lawyer he replaced.

Kang was disciplined in 2008 but failed to comply with probation conditions – he did not submit a final probation report or proof that he attended ethics school or completed continuing education courses.  The underlying discipline was imposed for improperly withdrawing from representation and failing to obey a court order or report a $2,000 sanction to the bar.

Bar court Judge Lucy Armendariz recommended Kang’s disbarment, noting, “The Supreme Court has made clear that even an isolated instance of misappropriation by an attorney without a prior record of discipline may result in disbarment in the absence of compelling mitigation.” She said Kang has not repaid any of the money he misappropriated.

ROY RICKARD WITHERS [#120779], 61, of San Diego was disbarred July 25, 2010, and was ordered to make restitution and comply with rule 9.20 of the California Rules of Court.

The State Bar Court found that Withers committed 10 acts of misconduct, including misappropriating $162,000 from a client.

Withers represented various members of a family with a variety of matters, including divorce, estate planning, elder abuse, a breach of contract lawsuit and protective orders. He held more than $459,000 in his client trust account and paid himself legal fees of $150,000. When another attorney asked for information, Withers wrote, “There is no current estate from which to pay any allowance, family or otherwise.” Judge Pat McElroy said his statement was false.

Two days after the court ordered that Withers transfer the funds he held in trust to a court-appointed attorney for the trust’s administrator, he declared bankruptcy. He sent a check for $189,502.76 to the administrator’s attorney and said he’d paid his own law office $150,000 for legal fees and costs and the remaining balance was $189,502.76.  The court ordered Withers to return the $150,000 and to pay a $1,500 sanction. The clients repeatedly requested an invoice, and Withers finally sent a bill for $150,029.40 in unpaid attorney fees. He also wrote a letter to a bar investigator that falsely claimed his client authorized payment of that amount.

McElroy found that Withers failed to maintain client funds in trust, communicate with clients or obey a court order and he committed acts of moral turpitude by misappropriating client funds and by making misrepresentations to another lawyer, the court and the bar.

In another matter, one of the clients sued Withers for breach of fiduciary duty, constructive fraud and professional negligence and won actual damages, $36,000 in punitive damages and an invalidation of a fee agreement. The value of the judgment, with interest, was $289,433.67. McElroy found that Withers failed to report the judgment to the State Bar, as required, and he committed further acts of moral turpitude by falsely telling the bar his client had approved a $150,000 legal fee.

Although McElroy said Withers was entitled to substantial mitigation “for his 16 years of misconduct-free practice, his extensive partial stipulation of facts and his good character,” she nonetheless recommended his disbarment because he has not repaid any of the misappropriated money or the court-ordered sanction and he “repeatedly attempted to conceal his misappropriations by deliberately making false statements to opposing counsel, the superior court, and the State Bar.” 

HOWARD LAWRENCE RIFKIN [#82671], 59, of Apple Valley was disbarred Aug. 1, 2010, and was ordered to comply with rule 9.20 of the California Rules of Court.

Rifkin did not comply with rule 9.20, as required by probation requirements attached to a 2008 disciplinary order and he did not submit to the State Bar Court an affidavit stating that he notified his clients, opposing counsel and other interested parties of his suspension. Failure to comply with rule 9.20 is grounds for disbarment.

Rifkin, who did not participate in the disbarment proceedings, has been disciplined three times previously for misconduct that included failures to perform services competently, communicate with clients or cooperate with the bar’s investigation, and he made false representations to a client and improperly withdrew from representation.

LAINE EDWIN HEDWALL [#200371], 48, of Valencia was disbarred Aug. 15, 2010, and was ordered to comply with rule 9.20 of the California Rules of Court.

Hedwall stipulated to 35 counts of misconduct in eight cases, including misappropriation of more than $278,000 from several clients. He did not resolve four divorce cases.

In one matter, in which he represented the wife in a divorce case, he deposited the proceeds from the sale of his client’s home – $205,107 – into a bank account designated the Hedwall account. He transferred $150,000 to buy a 90-day CD that he deposited in an account designated the CD account. He deposited the remaining funds in a money market account and then took $50,000 of that money to pay his legal fees and to pay parties unrelated to the clients.

When the CD matured, that account held $156,448, all belonging to the client and her husband. Hedwall took $96,581 of that money for himself. The money market account eventually held only $62. Hedwall ultimately misappropriated $205,107 from his client and her husband, who later reconciled.

He told the client he had invested the money, although by that time he had spent it all. When contacted by a sheriff’s detective, Hedwall said his client had authorized him to place the money in an investment account. He later asked the client to sign a document stating that she agreed with the way Hedwall handled her money. She refused.

Although Hedwall eventually gave his client a cashier’s check for $175,586, he kept more than $29,500 as legal fees.

In another matter, Hedwall misappropriated $54,225 from clients who were involved in civil litigation regarding their home. They lost their case and a judgment of $29,000 was entered against them. One client gave that amount to Hedwall to pay the judgment. They also had given him $149,705 to hold in trust for distribution to the clients or their creditors. Hedwall distributed more than $95,000 and was required to hold $54,225 in trust for the clients; he did not do so.

When a new lawyer asked Hedwall to account for the money, he said he had made arrangements with various collection agencies for automatic withdrawals to pay his clients’ bills. His statement was not true.

In another divorce matter, the court ordered Hedwall’s client to place $15,000 in his trust account. When the client reconciled with her husband, the balance in Hedwall’s trust account was $634 and later fell to $90.34. He told the court he still had the money in his trust account and asked for authorization to take his legal fees. The court denied his motion and he didn’t return the money.

In mitigation, Hedwall had no prior discipline record.

RICHARD JOHN PAPST [#80503], 59, of Sacramento was disbarred Aug. 18, 2010, and was ordered to comply with rule 9.20 of the California Rules of Court.

The State Bar Court review department upheld a hearing judge’s recommendation that Papst be disbarred for serious misconduct in two matters. He delayed filing a client’s application for disability retirement benefits for three years, actions that involved moral turpitude because he repeatedly lied to his client about the status of her disability case. The hearing judge found he acted incompetently. In a second matter, Papst misappropriated more than $125,000 belonging to several clients; he took the money to pay another client and then created and submitted to the State Bar false financial records to cover up his misconduct. His actions involved moral turpitude.

Papst sought review, claiming disbarment was unwarranted in view of his 25 years of discipline-free practice. He said the delay in filing the disability application did not harm his client and that the misappropriation “can be attributed to nothing other than his inattention and sloppiness in client trust account record-keeping and control.” 

Although Papst told his client in December 2002 he would file her disability application the next year because changes in the law would be to her advantage, he did not file her claim until September 2005. He variously told the client that several hearings on her appeal had been delayed and that the process was slow due to a large backlog. At one point, he said the client’s appeal was successful and that her application had been approved. None of his statements was true.

While Papst represented his client, she exhausted her deferred compensation and depended on her mother for financial assistance. He had her sign a petition to the county to compel the award of benefits. Although Papst knew the statements in the petition weren’t true, the client thought they were.

In the second matter, Papst settled a case for $170,238.68. He wrote three checks to his client, but two bounced and the third was written against funds provided by other clients. The review panel found that Papst knew that none of the funds in his CTA belonged to his client, but he testified that he issued the checks because the client “needed the money to make payroll and other things for the company.” 

When the bar sought an explanation for the bounced checks, Papst admitted that he created financial records using false information in an effort to cover up his misconduct. “We find Papst’s propensity to commit fraud to avoid responsibility for his misconduct to be reprehensible,” the panel wrote.

JOHN W. EVANS [#92161], 63, of Walnut Creek was disbarred Aug. 18, 2010, and was ordered to comply with rule 9.20 of the California Rules of Court.

Evans was first disciplined in 2002 when he was privately reproved for trust account violations. He was disciplined again in 2006 after stipulating to misconduct in two cases, including failing to comply with conditions attached to the reproval.

The disbarment recommendation was issued because Evans practiced law while suspended as a result of the 2006 matter. By misrepresenting his status to an opposing attorney, he committed an act of moral turpitude. He also violated the terms of his probation and didn’t cooperate with the bar’s investigation.

In 2009, he was suspended in a default proceeding  for violating the 2006 disciplinary order. He did not comply with rule 9.20, as required, by failing to submit to the State Bar Court an affidavit stating that he notified his clients, opposing counsel and other interested parties of his suspension.

Judge Lucy Armendariz recommended Evans’ disbarment as a result of his three prior disciplines, his failure to participate in the proceedings and his “unwillingness to comply with the professional obligations and rules of court imposed on California attorneys.”

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