Stanford Law School - Robert Crown Law Library

Filed 6/23/05

IN THE SUPREME COURT OF CALIFORNIA

In re RONALD ROBERT SILVERTON
S123042
on
Discipline.

In 1975, this court ordered petitioner Ronald Robert Silverton disbarred
based on his felony convictions for conspiracy to obtain money by false pretenses
and to present a fraudulent insurance claim as well as for soliciting another to
commit or join in the commission of grand theft. (In re Silverton (1975) 14 Cal.3d
517, 519.) After three unsuccessful applications, petitioner was reinstated as a
member of the State Bar on October 6, 1992. Less than two years later, he began a
series of client transactions that became the subject of another disciplinary
proceeding charging violations of rules 3-300 and 4-200 of the Rules of
Professional Conduct.1 The Review Department of the State Bar Court (Review
Department) ultimately concluded that petitioner violated rule 4-200 with respect
to three matters and violated rule 3-300 with respect to one other matter and
recommended that petitioner be placed on two years’ stayed suspension and three
years’ probation with various conditions, including a 60-day period of actual
suspension.
In determining the appropriate level of discipline to recommend to this
court, the Review Department considered the Rules of Procedure of the State Bar,

1
Unless otherwise noted, all further references to rules are to the Rules of
Professional Conduct.
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title IV, Standards for Attorney Sanctions for Professional Misconduct
(Standards), including standard 1.7(a) (Effect of Prior Discipline (standard 1.7(a)).
Standard 1.7(a) directs that the degree of discipline imposed on a member with a
prior record of discipline “shall be greater than that imposed in the prior
proceeding unless the prior discipline imposed was so remote in time to the
current proceeding and the offense for which it was imposed was so minimal in
severity that imposing greater discipline in the current proceeding would be
manifestly unjust.” (Italics added.) However, the Review Department declined to
apply standard 1.7(a), which would have resulted in disbarment, based solely on
its belief that “doing so would, in our view, be manifestly unjust, particularly in
light of the fact that [petitioner]’s prior record is very remote in time.”
Silverton petitioned for our review. (Cal. Rules of Court, rule 952(a).) We
denied the petition but granted review on our own motion to settle important
questions of law concerning the discipline of attorneys who had previously been
disbarred and to consider whether the discipline recommended here was
appropriate in light of the record as a whole. (Cal. Rules of Court, rule 954(a)(1),
(5).) As explained below, we reject the Review Department’s recommendation
and conclude instead that Silverton should be disbarred for a second time.
I
The procedural history of this disciplinary proceeding is lengthy but largely
irrelevant to the issue presented here. We therefore need discuss only the
misconduct found by the Review Department and the recommended discipline.
The Hou Matter (Case No. 95-O-10829—Count 1)
On June 25, 1992, Janette Hou was injured in a traffic accident with a truck
operated by Durham Transportation, Inc. (Durham). Janette retained Attorney
David L. Watson to represent her and her children, Raymond and Philip, in their
claims against Durham. Janette’s mother-in-law, Fan Hou, also retained Watson.
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Under the retainer agreements, Watson was to receive a contingent fee of one-
third of the gross recovery if the claims were settled before filing suit or demand
for arbitration and 40 percent thereafter. The agreements also entitled Watson to
one-third of any “excess medical pay” he was able to recover on their behalf.
Watson eventually filed a lawsuit against Durham and, on June 1, 1994,
associated Silverton to assist in the Hou matter. Watson informed the Hous of this
arrangement and assured them it would not result in an increase in fees. Later that
month, Silverton arranged to settle the Hous’ lawsuit against Durham for $16,500,
of which $9,500 was allocated to Janette and her sons and $7,000 was allocated to
Fan. After deducting attorney fees and costs, Janette’s recovery was to be $5,500
and Fan’s recovery was to be $4,000. Janette and her sons, however, had medical
bills of $4,311; Fan had medical bills of $3,680.
Watson, in the meantime, had received $7,391 in medical payment
coverage from the Hous’ automobile insurer, 20th Century Insurance. From this
sum, Watson deducted $2,470.32 as fees2 and placed the remaining $4,910.68 in
his trust account.3 Of this latter amount, Janette and her son were allocated
approximately $2,557, and Fan was allocated approximately $2,353. Thus, after
taking into account medical bills and the medical payments from 20th Century
Insurance, Janette’s net recovery was $3,746 ($5,500 minus $4,311 plus $2,557),
and Fan’s net recovery was $2,673 ($4,000 minus $3,680 plus $2,353).
At that point, Silverton proposed, and Janette and Fan signed, an
“AUTHORIZATION TO COMPROMISE DOCTOR’S BILL,” which gave the

2
Because Watson is not a party to this proceeding, we do not consider here
the propriety of his conduct in contracting for, charging, and collecting a one-third
fee on the medical payments that the Hous received from their insurance carrier,
when there was never a dispute as to the Hous’ entitlement to those benefits or as
to the dollar amount of benefits the Hous were entitled to receive.
3
The whereabouts of the remaining $10, as the Hearing Department of the
State Bar Court (Hearing Department) noted, is a mystery.
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Silverton Law Offices the right to compromise their medical bills “and keep the
amount saved by said compromise as an addition to its fees and costs for handling
said accident case.” In return, Silverton offered Janette an additional $254,
increasing her recovery from $3,746 to $4,000, and offered Fan an additional
$327, increasing her recovery from $2,673 to $3,000. The authorization recited
that it was “given in consideration for the fact that the Silverton Law Offices has
reduced the medical bills in considering the disbursement to me and has accepted
as its risk the possibility that the doctor may not compromise to the extend [sic] I
have been benefitted [sic] by the consideration of said compromise on the
Disbursement Sheet.” Silverton distributed the settlement proceeds to Janette and
Fan in checks dated August 30, 1994. The settlement drafts, however, were not
actually issued by Durham until September 8, 1994.
Silverton eventually compromised all of the medical charges, which were
originally $7,991, for $5,500. As a result, Silverton retained, in addition to the
sums provided in the original contingent fee agreement, a total of $1,910, which
represented the reduction in the medical bills ($2,491) less the amount advanced to
the Hous ($581). In other words, Silverton retained over three-quarters of the
reduction in the medical bills.
The Review Department determined that the arrangement involving a
compromise of the medical bills was a business transaction, in that “the
authorization to compromise constituted an immediate transfer from the Hous of
both the ownership and possessory interest in all funds remaining after payment to
the Hous of their distributive share of the settlement proceeds and the payment of
attorney’s fees as called for in the original retainer agreement” in exchange for an
upfront payment by the attorney. The transaction was therefore barred unless
Silverton could show that “(A) The transaction or acquisition and its terms are fair
and reasonable to the client and are fully disclosed and transmitted in writing to
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the client in a manner which should reasonably have been understood by the
client; and [¶] (B) The client is advised in writing that the client may seek the
advice of an independent lawyer of the client’s choice and is given a reasonable
opportunity to seek that advice; and [¶] (C) The client thereafter consents in
writing to the terms of the transaction or the terms of the acquisition.” (Rule 3-
300; see generally Fletcher v. Davis (2004) 33 Cal.4th 61, 69-70.) The Review
Department determined that Silverton (1) failed to disclose to the Hous
information necessary for a reasonable understanding of the transaction, (2) failed
to provide the Hous with written notice of their right to seek independent legal
counsel, and (3) failed to discharge his burden to show the transaction was fair and
reasonable to the Hous. In particular, Silverton failed to share with his clients, as
he had with cocounsel Watson, his confidence that the medical bills could be
compromised at a lower amount. (See Mayhew v. Benninghoff (1997) 53
Cal.App.4th 1365, 1369.) In addition, the Review Department found that
Silverton committed uncharged violations of rule 4-100 by giving the Hous their
settlement checks, which were drawn on Silverton’s client trust account, more
than a week before Durham actually paid the settlement.
The Kelly and de Jonge Matters (Case No. 95-O-10829—Count 5)
On November 6, 1995, Wilma Kelly (Kelly) and Verna de Jonge (de Jonge)
each retained Silverton to represent them and their respective children, who had
suffered injuries in an automobile accident the previous day. Each agreement
provided that Silverton was to represent these parties “as their attorney at law in a
cause of action against all responsible parties and/or whosoever may be liable,
arising out of an auto accident that occurred on 11/5/95”; granted him “a special
power of attorney to settle or compromise any claim on Client’s behalf which, in
Attorney’s sole judgement [sic] is fair and reasonable”; and entitled him, as his
attorney’s fees for the services described, one-third of any amounts recovered by
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way of settlement or otherwise, if the matter was settled before suit or request for
arbitration is filed, and 40 percent of any amounts recovered thereafter. Each
agreement also provided that Silverton “may, at his sole discretion, compromise
any medical bill, and said Attorney may retain as an additional fee the difference
between the compromised amount and the bill for medical services, if anything.”
Silverton settled the Kelly claims for $12,000. After deducting $4,000 in
attorney’s fees and $120 in costs, the Kelly recovery was $7,880—which was less
than the medical bills of $7,900. In February 1996, Silverton proposed to increase
the Kelly share of the settlement by offering to pay them $2,500 out of his fees for
the right to compromise the medical bills. In proposing this postsettlement
agreement, Silverton represented that he already had the right, under the
November 1995 retainer agreement, to compromise the Kelly medical bills and to
retain any savings. Kelly accepted the offer. This postsettlement agreement was
not in writing.
Silverton achieved a compromise of the medical bills at $4,388, for a
savings of $3,512. After learning that Silverton had obtained such a large
reduction in the medical bills, Kelly asked for a share. Silverton paid her an
additional $500; “according to [Silverton], he paid Kelly the additional $500 out
of the empathy he had for her over her financial plight.”
Silverton also settled the de Jonge claims for $12,000. After deducting
$4,000 in attorney’s fees and $120 in costs, the de Jonge recovery was $7,880;
after subtracting the medical bills of $5,873, the net recovery was $2,007. In
February 1996, Silverton proposed to increase the de Jonge recovery from $2,007
to $2,500 by offering an additional $493 for the right to compromise the medical
bills and to retain any resulting savings. Silverton advised de Jonge, as he had
done with Kelly, that he already had the right, under the retainer agreement, to
compromise the medical bills and keep any savings. De Jonge accepted the offer
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and, as with Kelly, the postsettlement agreement was not in writing. The record is
silent as to whether Silverton was able to compromise the de Jonge medical bills.
The Review Department rejected the Hearing Department’s finding that
rule 3-300 was violated by the provision in the retainer agreements that permitted
Silverton to compromise the Kelly and de Jonge medical bills and keep any
savings as an additional fee but did agree with the Hearing Department that this
provision was an agreement for an unconscionable fee in violation of rule 4-200.
Although Silverton was “entitled to contract for, charge, and collect a reasonable
fee for providing that service,” he “did not do so. He unequivocally contracted for
a 100 percent contingency fee of any reduction he was able to negotiate. At least
within the context of the present case, that fee is clearly unreasonable,
unconscionable, and improper.” The Review Department also found that Silverton
committed an uncharged violation of rule 3-300 by failing to disclose the terms of
the Kelly and de Jonge postsettlement agreements in writing, failing to obtain their
written consent to the transaction, failing to advise them of their right to seek
independent counsel or to give them the opportunity to seek such advice, and
failing to establish the fairness of the transaction.
The Belenki Matter (Case No. 99-O-13251—Count 2)
On May 28, 1999, Boris Belenki (Belenki) retained Silverton to represent
him in connection with personal injuries Belenki suffered in an auto accident on
May 25, 1999. The retainer agreement recited that Belenki had retained Silverton
“to represent him as his attorney at law in a cause of action against all concerned
parties and/or whomsoever may be liable, arising out of auto accident of 5/25/99”
and stated that Silverton was to receive, as his attorney’s fee for the services
described in the agreement, one-third of any amounts recovered prior to filing suit
and 40 percent of any amount recovered thereafter. The agreement also contained
the provision, like that in the Kelly and de Jonge agreements, authorizing Silverton
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to compromise the client’s medical bills and retain any savings as “an additional
fee.”
In October 1999, Silverton settled Belenki’s claims for $8,150. After
deducting attorney’s fees of $2,717 and $81 in costs, Belenki’s recovery was
$5,352; after deducting medical bills of $4,250, Belenki’s net recovery was
$1,102. Silverton proposed to increase Belenki’s recovery from $1,102 to $2,000
by offering an additional $898 for the right to compromise Belenki’s medical bills
and retain any savings. Belenki accepted and executed an “AUTHORIZATION
TO COMPROMISE MEDICAL BILLS,” which stated that the additional payment
to Belenki was “given in consideration for the fact that the SILVERTON LAW
OFFICES has accepted as its risk the possibility that payment [of some of the
medical bills] ma[y] be required from the attorney’s fee” and recited that Belenki
“has been informed that [he] may consult with any other attorney concerning this
matter and has declined to do so.”
Silverton succeeded in reducing Belenki’s medical bills from $4,250 to
$2,717, for a savings of $1,533.
As in the Kelly and de Jonge matters, the Review Department rejected the
Hearing Department’s finding that the retainer agreement had violated rule 3-300
but did find that “the challenged provision permitting [Silverton] to compromise
Belenki’s medical bills and to keep 100 percent of the negotiated savings as an
additional fee was an agreement for an unconscionable fee” in violation of rule 4-
200. The Review Department also found that the postsettlement agreement
constituted an uncharged violation of rule 3-300 and that the issuance of a
settlement check to Belenki before the defendant insurer had paid the settlement
constituted an uncharged violation of rule 4-100.
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Recommended Discipline
The Review Department recommended that Silverton be suspended from
the practice of law for two years; that execution of the two-year suspension be
stayed; and that he be placed on probation for three years with various conditions,
including an actual suspension of 60 days—a “minor sanction.” (In re Morse
(1995) 11 Cal.4th 184, 209.) The Review Department found, as aggravating
factors, his prior disbarment (std. 1.2(b)(i)); the existence of multiple acts of
misconduct (std. 1.2(b)(ii)); three uncharged violations of rule 3-300 with respect
to the postsettlement agreements with Kelly, de Jonge, and Belenki (see Edwards
v. State Bar (1990) 52 Cal.3d 28, 36 [“evidence of uncharged misconduct was
relevant to establish a circumstance in aggravation”]); and three uncharged
violations of rule 4-100 involving Silverton’s payment to Belenki and to the Hous
of their shares of the settlement proceeds prior to the deposit of the settlement
funds in the client trust account. The Review Department found, as mitigating
factors, that Silverton actually and reasonably believed that he was entitled to
negotiate the postsettlement agreements at arm’s length (std. 1.2(e)(ii)) and that no
party suffered significant harm (std. 1.2(e)(iii)).
The Review Department granted the State Bar’s request to take judicial
notice of Silverton’s prior disbarment. Yet, in selecting the appropriate sanction,
the Review Department declined to rely on standard 1.7(a), which “would require
that we recommend [Silverton]’s disbarment. . . . [D]oing so would, in our view,
be manifestly unjust, particularly in light of the fact that [Silverton]’s prior record
of discipline is very remote in time.” The Review Department then turned to
standard 2.7, which provides that an attorney’s culpability of a willful violation of
rule 4-200, such as entering into fee agreements for an unconscionable fee, “shall
result in at least a six-month actual suspension from the practice of law,
irrespective of mitigating circumstances.” But the Review Department declined to
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rely on this standard, either. Ultimately, it chose to follow In the Matter of
Hultman (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 297, which it deemed a
“comparable” case to Silverton’s and in which the recommended discipline was an
actual 60-day suspension. Attorney Hultman, however, was charged only with a
single count of violating rule 3-300 and did not have a prior record of discipline,
let alone a disbarment.
II
We have undertaken an independent determination of the law and facts in
this matter (In re Rose (2000) 22 Cal.4th 430, 457) and accept and adopt the
conclusions of the Review Department that Silverton violated rule 3-300 with
respect to the Hou matter and rule 4-200 with respect to the Kelly, de Jonge, and
Belenki matters. The only issue before this court is the appropriate form and
degree of discipline for this misconduct. (In re Brown (1995) 12 Cal.4th 205,
215.)
In attorney discipline matters, we generally accord great weight to the
Review Department’s recommendation. (In re Morse, supra, 11 Cal.4th at p.
205.) Nevertheless, the State Bar Court’s findings and recommendations are
merely advisory. (In re Rose, supra, 22 Cal.4th at p. 442.) “[T]he ultimate
decision rests with this court, and we have not hesitated to impose a harsher
sanction than recommended by the department.” (Blair v. State Bar (1989) 49
Cal.3d 762, 776.) “ ‘When the facts have warranted doing so, we have even
rejected a recommendation of suspension and disbarred the attorney.’ ” (In re
Morse, supra, 11 Cal.4th at p. 205.) By granting review on our own motion in this
case, we have indicated reservations about the level of discipline that the Review
Department intended to impose. (In re Brown, supra, 12 Cal.4th at p. 217.) We
now conclude that those reservations were justified.
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In seeking disbarment, the State Bar relied below, as it does here, on
standard 1.7(a), which provides: “If a member is found culpable of professional
misconduct in any proceeding in which discipline may be imposed and the
member has a record of one prior imposition of discipline as defined by standard
1.2(f), the degree of discipline imposed in the current proceeding shall be greater
than that imposed in the prior proceeding unless the prior discipline imposed was
so remote in time to the current proceeding and the offense for which it was
imposed was so minimal in severity that imposing greater discipline in the current
proceeding would be manifestly unjust.” (Italics added.) The Review Department
acknowledged standard 1.7(a) but nonetheless recommended a lesser degree of
discipline. Its entire justification consisted of the following: “Applying standard
1.7(a) in the present proceeding would require that we recommend [Silverton]’s
disbarment. However, doing so would, in our view, be manifestly unjust,
particularly in light of the fact that [Silverton]’s prior record of discipline is very
remote in time. [Silverton]’s prior discipline was imposed on him in 1975 for
convictions that occurred in 1972. In sum, we decline to apply standard 1.7(a).”
We do not find the Review Department’s justification convincing. In
determining whether the prior discipline was remote in time, one “should not
simply consult the Gregorian calendar with blinders on.” (People v. Humphrey
(1997) 58 Cal.App.4th 809, 813; see Pearlin v. State Bar (1963) 59 Cal.2d 834,
835 [relying on disbarment 22 years earlier].) Although Silverton was disbarred in
1975, he was not reinstated as a member of the bar until October 1992. Less than
two years later, Silverton violated rule 3-300 with respect to the postsettlement
agreement with the Hous. Thus, although 19 years elapsed between Silverton’s
disbarment and his new misconduct, he was ineligible to practice law for all but 22
months of that period. We therefore accord little weight to the remoteness of the
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prior discipline. (Eschwig v. State Bar (1969) 1 Cal.3d 8, 19; accord, In re Quaid
(La. 1994) 646 So.2d 343, 351.)
The Review Department’s analysis also failed to acknowledge that the
exception to standard 1.7(a)’s requirement of greater discipline for recidivist
attorneys is stated in the conjunctive. That is, the standard provides that “greater”
discipline shall be imposed unless “the prior discipline imposed was so remote in
time to the current proceeding and the offense for which it was imposed was so
minimal in severity that imposing greater discipline in the current proceeding
would be manifestly unjust.” (Italics added.) The Review Department made no
finding that Silverton’s prior misconduct was so minimal in severity that imposing
greater discipline in the current proceeding would be manifestly unjust, nor would
such a finding be supported by a review of the prior disciplinary proceeding.
Silverton was disbarred in 1975 because he was convicted of two felonies:
one count of conspiracy to obtain money by false pretenses and to present a
fraudulent insurance claim, and one count of soliciting another to commit or join
in the commission of grand theft. (In re Silverton, supra, 14 Cal.3d at p. 519.) As
we previously pointed out, Silverton’s prior disciplinary offenses were “serious
crimes involving moral turpitude [citation]; and disbarments, rather than
suspension, have been the rule, rather than the exception, in such cases.” (In re
Silverton, supra, 14 Cal.3d at p. 523.) It follows that this proceeding does not fall
within the exception specified in standard 1.7(a).
This, however, does not exhaust our inquiry. As Silverton points out, the
Standards “ ‘are not binding on us, but they promote the consistent and uniform
application of disciplinary measures.’ ” (In re Morse, supra, 11 Cal.4th at p. 206.)
Thus, we have said that “we will not reject a recommendation arising from
application of the Standards unless we have grave doubts as to the propriety of the
recommended discipline.” (Lawhorn v. State Bar (1987) 43 Cal.3d 1357, 1366.)
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The issue here, though, is not whether to follow a recommendation from the
Review Department that arises from the application of the Standards. As
explained above, a plain-language application of the Standards would lead to
disbarment. We must instead consider the how to approach the recommended
discipline when the Standards point to the imposition of a particular degree of
discipline but the Review Department has nonetheless recommended a lesser
sanction.
We begin, as we typically do, by looking to the purpose of sanctions for
attorney misconduct. “ ‘The primary purposes of disciplinary proceedings
conducted by the State Bar of California and of sanctions imposed . . . are the
protection of the public, the courts and the legal profession; the maintenance of
high professional standards by attorneys and the preservation of public confidence
in the legal profession.’ ” (In re Morse, supra, 11 Cal.4th at p. 205, quoting std.
1.3.) These concerns are at their zenith in the case of an attorney who has
previously committed an offense serious enough to justify disbarment and is again
found to have departed from the rules of professional conduct. Disbarment
delivers a message, in unmistakable terms, to the individual attorney as well as to
attorneys generally concerning the trust reposed by the public in the profession
and the corresponding duty of bar members to adhere to the highest ethical
standards. When an attorney who is in receipt of that message is again at odds
with professional standards, whether deliberately or by want of care, we must
respond with appropriate seriousness.
The appropriate seriousness is suggested by standard 1.7(a), which in effect
recommends disbarment in such cases unless the prior disbarment was so remote
in time and based on such a minor offense that a second disbarment would be
manifestly unjust. While we agree with Silverton that the Standards are not
binding on us (Arm v. State Bar (1990) 50 Cal.3d 763, 774), we also have said that
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they are entitled to “ ‘great weight.’ ” (In re Brown, supra, 12 Cal.4th at p. 220.)
As the State Bar argues, “[w]here an attorney has been disbarred, reinstated, and
then again engages in serious misconduct, there is clearly a demonstrated inability
to conform to the ethical standards required of all members of the profession.”
(See also Eschwig v. State Bar, supra, 1 Cal.3d at p. 19.) In the context of an
attorney who has already once been disbarred, additional exceptions to the
discipline specified in standard 1.7(a) should be elaborated with care. (Cf. In re
Young (1989) 49 Cal.3d 257, 267, fn. 11 [“the State Bar Court should follow the
guidance of the Standards for Attorney Sanctions whenever possible”].)
Accordingly, we conclude that when an attorney has previously been disbarred,
disbarment is the appropriate sanction for subsequent professional misconduct
unless the exception set forth in standard 1.7(a) is satisfied or the attorney can
otherwise establish “grave doubts as to the propriety” of disbarment in the
particular case. (Lawhorn v. State Bar, supra, 43 Cal.3d at p. 1366.)
In this context, the burden should be on the attorney to demonstrate the
existence of extraordinary circumstances justifying a lesser sanction. Silverton
has failed to discharge his burden.
Silverton’s misconduct was neither minor nor isolated. In addition to the
multiple acts of misconduct evidenced by both the charged and uncharged acts, the
provision entitling him to 100 percent of any reduction he could obtain on the
client’s medical bills appeared to have been a standard clause in the retainer he
routinely offered to clients. Moreover, even if we were to credit the Review
Department’s conclusion that Silverton honestly and reasonably believed he had
the right to negotiate the postsettlement agreements at arm’s length, there is no
evidence to suggest that Silverton reasonably believed his remaining misconduct
was nonetheless proper. Indeed, the Review Department made an express finding
that Silverton “did not act in good faith when he relied on the retainer agreements
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to ‘induce’ Kelly and de Jonge to enter into the post-settlement agreements.” The
Review Department also found, “[w]ithout question,” that the uncharged
postsettlement agreements were subject to rule 3-300, which means that Silverton
could not reasonably have believed he was free to enter into such transactions with
his clients without obtaining their informed written consent. Finally, Silverton
could not reasonably have believed that he was entitled, as part of the retainer, to
negotiate a contingency fee that permitted him to compromise a client’s medical
bills and keep 100 percent of the negotiated savings as an additional fee. In sum,
as to most of the charged and uncharged misconduct, Silverton lacked an
objectively reasonable, good faith belief that his actions were proper. He therefore
was entitled only to minimal mitigation under standard 1.2(e)(ii) (Sternleib v. State
Bar (1990) 52 Cal.3d 317, 331) and, in light of the aggravating factors, has not
demonstrated extraordinary circumstances warranting a lesser sanction.4

4
Although we conclude that the Review Department’s findings of
misconduct are sufficient to justify a sanction of disbarment, we do note from the
facts developed in the record that the Office of Chief Trial Counsel (OCTC) could
have—but failed to—charge Silverton with violating rule 3-300 with respect to the
postsettlement agreements he negotiated with Kelly, de Jonge, and Belenki.
Likewise, the OCTC could have—but failed to—charge Silverton with violating
rule 4-100 with respect to the issuance of settlement checks to Belenki and the
Hous before the settling defendants had tendered their payments. Because of these
omissions, the State Bar Court could consider this conduct only as an aggravating
circumstance and not as an independent basis of discipline.

The OCTC’s failure to offer other evidence in a timely manner also may
have hindered the State Bar Court’s assessment of the gravity of Silverton’s
conduct. For example, the State Bar Court could not consider, even as an
aggravating circumstance, the OCTC’s allegation that the Kelly and de Jonge
retainer agreements violated rule 4-200. As the Review Department explained, the
OCTC had been aware of the offending provisions since at least April 1997 but
had failed to charge a rule violation or to identify them as an aggravating
circumstance in the Hearing Department, depriving Silverton of adequate notice of
the claim. The State Bar Court was likewise unable to consider as aggravating
circumstances the bad acts found in Silverton’s two prior unsuccessful
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To the contrary, the most extraordinary aspect of this proceeding is
petitioner’s apparent lack of insight into the wrongfulness of his actions, especially
as to the rule 4-200 violations. Silverton argued in his petition to this court, as he
did below, that he never intended to enforce the literal language of the offending
provision in the Kelly, de Jonge, and Belenki retainer agreements, nor did he
intend that the offending provision would constitute the full agreement on the
matter of compromising their medical bills. In his view, the offending provision
should be viewed be in light of the postsettlement agreement reached in each of
those matters; he contends, therefore, that this finding of misconduct is without
support.
Silverton’s interpretation ignores not only the text of rule 4-200(B), which
directs us to evaluate the unconscionability of a fee “on the basis of all the facts
and circumstances existing at the time the agreement was entered into” (italics
added), but also the finding below that his testimony concerning his subjective
understanding of the offending provision was not credible. (See In re Morse,
supra, 11 Cal.4th at p. 211.) As the Review Department observed, “[Silverton]’s
contentions are belied by the fact that he clearly relied on and used the challenged
provision to ‘induce’ Kelly and de Jonge to enter into the post-settlement
agreements by telling them that the retainer agreements which they signed in
November 1995 already authorized him to compromise their medical bills and to
keep any savings.” Silverton’s defense thus rested not “on a good faith belief that
the charges were unfounded, but on a blanket refusal to acknowledge the

reinstatement proceedings because the OCTC, once again, failed to raise the issue
in the Hearing Department.
We do not, of course, rely on these factors in reaching our decision here.
Nor do we suggest that the OCTC should engage in speculative overcharging.
Nevertheless, given the time over which this case was developed and prosecuted
by that office, it would have been helpful if all potentially meritorious allegations
of rule violations had been clearly and succinctly included in the pleadings.
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wrongfulness of conceded conduct.” (Carter v. State Bar (1988) 44 Cal.3d 1091,
1101.)
In our opinion ordering Silverton’s first disbarment, we found it
“significant” that he had “failed to show any remorse and has devoted his efforts
chiefly to an attempt to show that there was a complete lack of evidence in the trial
court pointing to his guilt of the crimes of which he was convicted.” (In re
Silverton, supra, 14 Cal.3d at p. 523.) Now, 30 years later, it appears little has
changed.5
In such circumstances, a serious sanction must be imposed both to protect
the public, the courts, and the profession as well as to deter the recalcitrant
attorney from future wrongdoing. Absent a finding that the prior offense was
remote in time and relatively minor or that other extraordinary circumstances
warranted leniency, the sanction that is “most likely to protect the public, the
courts, and the profession” and “deter . . . from future wrongdoing” an attorney
who has previously been disbarred (In re Morse, supra, 11 Cal.4th at p. 210) is
disbarment. (See also The Florida Bar v. Dodd (Fla. 1967) 195 So.2d 204, 204
[“we find the repetition of misconduct to merit disbarment”].) Because no
extraordinary circumstances exist here, we conclude that the Review Department’s
recommendation of 60 days’ actual suspension is inadequate.

5
Silverton argues also that his misconduct caused only “minimal harm” to
his clients. We decline to place much weight on that factor here since, as the
Review Department noted, “[i]t is, at best, difficult to find any benefit to the
clients in such an agreement,” either.
17

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DISPOSITION
It is hereby ordered that Ronald Robert Silverton be disbarred from the
practice of law and that his name be stricken from the roll of attorneys. He is also
ordered to comply with rule 955 of the California Rules of Court and to perform
the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 days,
respectively, after the date this order is effective. Costs are awarded to the State
Bar.

BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

18

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Silverton
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S123042
Date Filed: June 23, 2005
__________________________________________________________________________________

Court:

County:
Judge:

__________________________________________________________________________________

Attorneys for Appellant:

David A. Claire for Petitioner Ronald Robert Silverton

__________________________________________________________________________________

Attorneys for Respondent:

Marie M. Moffat, Richard J. Zanassi and Jay M. Goldman for Respondent State Bar of California.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

David A. Claire
4675 MacArthur Court, Suite 1250
Newport Beach, CA 92660
(949) 417-5640

Jay M. Goldman
The State Bar of California
180 Howard Street
San Francisco, CA 94105
(415) 538-2517

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Opinion Information

Date:	Docket Number:
Thu, 06/23/2005	S123042

Disposition
Jun 23 2005	Opinion: Disbarred

Dockets
Mar 3 2004	Record of State Bar discipline filed
Apr 30 2004	Petition for writ of review filed (SB - discipline)   petitioner Ronald Robert Silverton
May 20 2004	Response by State Bar filed
May 28 2004	Filed:   petitioner's reply to state bar's opposition.
Sep 1 2004	On the court's own motion, let a writ of review issue.   On the Court's own motion, review is granted. The parties should take notice that the Court is considering increasing the level of discipline. Respondent's petition for writ of review is denied. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Sep 9 2004	Order filed   The State Bar of California is hereby ordered to file a brief pursuant to rule 952(a) of the California Rules of Court, addressing the issue of the appropiate level of discipline in the above-entitled matter, on or before October 25, 2004. Within 15 days of the filing of the State Bar's Brief, Ronald Silverton may serve and file a reply brief.
Sep 13 2004	Note:   Copy of order re-sent to Attorney David Allan Claire
Oct 25 2004	Written return filed (State Bar non-OSC case)   Brief by the State Bar of California filed.
Nov 9 2004	Traverse to return filed (State Bar non-OSC case)   Reply brief by petitioner Ronald Robert Silverton filed.
Apr 1 2005	Case ordered on calendar   5/4/05 @9am, S.F.
May 4 2005	Cause argued and submitted
Jun 23 2005	Opinion filed: Disbarred   from the practice of law and that his name be stricken from the roll of attorneys. He is also ordered to comply with rule 955 of the California Rules of Court and to perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 days, respectively, after the date this order is effective. Costs are awarded to the State Bar. Opinion by Baxter, J. ----joined by George, CJ., Kennard, Werdegar, Chin, Brown, Moreno, JJ.
Jul 27 2005	Remittitur issued (civil case)
Oct 12 2005	Order filed   The Court Administrator/Clerk of the Supreme Court has referred Ronald R. Silverton's letter of September 24, 2005 to the court, and the court has considered the matter en banc. The court concludes that the "Petition to Add to the Order of Disbarment", received in the court's Los Angeles office on August 19, 2005, constituted a request to modify the court's decision in In re Silverton on Discipline (2005) 36 Cal.4th 81, which was filed on 6-23-05, and became final on 7-25-05, and accordingly the Clerk of the Court properly refused to file the petition as untimely. In any event, even if the court had discretion at this point to modify the opinion as requested, the court would not exercise such discretion to permit petition to file a petition for reinstatement prior to the normal five-year period after the effective date of petitioner's disbarment set forth in rule 662 of the Rules of Procedure of the State Bar.

Briefs
Oct 25 2004	Written return filed (State Bar non-OSC case)
Nov 9 2004	Traverse to return filed (State Bar non-OSC case)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website