operation of law. “Every member of the State Bar shall be deemed by operation of . . . law to have irrevocably authorized the disclosure to the State Bar and the Supreme Court . . . of any and all financial records held by financial institutions . . . .” (§ 6069, subd. (a).) Further, the Supreme Court has held that section 6069, subdivision (a), complies with constitutional requirements and that State Bar proceedings are not criminal in nature. Therefore, while Kun is entitled to a fair hearing (Dahlman v. State Bar (1990) 50 Cal.3d 1088, 1094-1095), “particular procedural safeguards applicable in criminal and civil litigation are not required in disciplinary proceedings to insure a right to due process.” (Giovanazzi v. State Bar (1980) 28 Cal.3d 465, 472; see also Doyle v. State Bar (1982) 32 Cal.3d 12.) III. FACTUAL BACKGROUND A. Kun’s Work for Dana LeGrande After initially consulting with Kun during April of 2014 regarding a separate legal matter, Dana LeGrande subsequently hired him on June 9, 2014, to represent her in obtaining a restraining order against her brother to stop him from making false allegations against her and otherwise harassing her. Kun agreed to represent her for $2,000 in attorney fees and $460 for the filing fee. LeGrande sent Kun a check for $2,460. The memo line of the check contained the notation “retainer and filing fee.” Kun did not discuss with her whether he was charging her a flat fee or an hourly fee. He also did not enter into a written fee agreement, as required under section 6148, telling LeGrande it was not necessary when she asked him if one was required. Kun failed to communicate with LeGrande for a month after she retained him. In late June, she called and left him a message that she no longer wanted him to represent her since she had not heard from him, and asked him to refund her money. During a call with LeGrande on July 7, 2014, Kun persuaded her not to terminate him because he had already prepared a
The hearing judge found significant aggravation based on Kun’s indifference toward rectification or atonement for his misconduct, as well as a lack of insight. However, we find that Kun’s indifference warrants only moderate aggravation, as analyzed below. The hearing judge found that Kun showed indifference because he argued that he provided services worth the full value of the amount paid by LeGrande and also that the amount of misappropriated funds was nominal. On review, we understand Kun’s argument as his attempt to establish that the $460 he misappropriated was “insignificantly small,” according to the language from standard 2.1(a). But, as previously noted, this standard addresses intentional misappropriation, which is not at issue here. Since Kun has the right to vigorously defend himself (In re Morse (1995) 11 Cal.4th 184, 209), we do not consider this argument to demonstrate his indifference or unwillingness to conform to his ethical responsibilities. Nonetheless, the record reveals other evidence that establishes moderate indifference by Kun. First, he attempted to shift blame to his client. (In the Matter of Wolff (Review Dept. 2006) 5 Cal. State Bar Ct. Rptr. 1, 14 [attorney who fails to accept responsibility for actions and instead seeks to shift responsibility to others demonstrates indifference and lack of remorse].) He minimized his wrongdoing and the resulting harm to LeGrande, testifying that she only filed a complaint with the State Bar because she knew that he had previously been disciplined and she thought she could use the Bar “as a collection agency.” While the law does not require false penitence, it does require that Kun accept responsibility for his misconduct and come to grips with his culpability. (In the Matter of Katz (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 502, 511.) He has not done this. 3. No Aggravation for Uncharged Misconduct (Std. 1.5(h)) The hearing judge assigned aggravation for uncharged misconduct, finding that Kun failed to refund unearned fees of $1,775. However, as previously stated, this finding is based on
the judge’s erroneous factual finding that LeGrande terminated Kun on July 7, 2014. Kun and OCTC both argue that this aggravation should not be considered because Kun was actually terminated on July 10. We agree, and thus decline to assign aggravation for uncharged misconduct. 4. OCTC’s Requests for Additional Aggravation OCTC asks us to assign additional aggravation for multiple acts. (Std. 1.5(b).) Kun misappropriated his client’s money in dozens of separate withdrawals in less than a month. We find this conduct constitutes multiple acts of wrongdoing, warranting significant aggravation. (In the Matter of Song (Review Dept. 2013) 5 Cal. State Bar Ct. Rptr. 273, 279 [65 improper CTA withdrawals are multiple acts of misconduct constituting significant aggravation].) OCTC also requests that we assign additional aggravation for failure to make restitution. (Std. 1.5(m).) Kun has not refunded the $460 filing fee to LeGrande, despite her multiple requests and the clear understanding of the parties at the time he was retained that this amount was given to Kun as advance costs. During the investigation, Kun told a State Bar investigator that the $460 remained in his trust account and he could send it the following day, conditioned on having the “issue . . . cleared once and for all.” He has not yet refunded the $460. By the time of trial, he testified that he had converted the $460 to attorney fees, and he did not believe LeGrande was entitled to a refund. Even so, he also testified that “if the Court tells me that I’m legally obligated, then I’ll pay it back. Okay?” We therefore assign moderate aggravating weight for Kun’s failure to refund the unspent filing fee. (See Chang v. State Bar (1989) 49 Cal.3d 114, 124 [failure to reimburse client for misappropriated funds considered as aggravating factor].) We decline OCTC’s request for aggravation for intentional misconduct, dishonesty, and bad faith (std. 1.5(d)) and refusal or inability to account for entrusted funds. (Std. 1.5(m).) Our