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State Bar prosecutors, investigating a controversial no-show by plaintiffs attorneys at a February California Supreme Court argument, are laying the blame squarely at the feet of San Francisco lawyer Raul Aguilar. In a pretrial statement filed with the State Bar Court on Thursday, prosecutors say Aguilar, as managing partner of Aguilar & Sebastinelli, had the responsibility of knowing not only that his firm had a case on calendar for Feb. 10, but also of ensuring that someone showed up. “Had the firm of Aguilar & Sebastinelli fulfilled its obligations to the court to maintain proper records, to be aware of scheduled court appearances, to insure that court appearances are covered or that notification is given to the court if an attorney cannot appear,” State Bar Chief Trial Counsel Mike Nisperos Jr. wrote, “the situation that occurred here where no lawyer appeared for the appellant would not have occurred.” As such, Nisperos added, Aguilar breached his duty under state Business & Professions Code 6068(b), which requires attorneys to “maintain the respect due to the courts of justice and judicial officers.” On the other hand, he wrote, former Aguilar & Sebastinelli lawyer Allen Kent, who was supposed to argue the Supreme Court case but left the firm five days beforehand, breached no professional duty. “In general,” Nisperos wrote, “we believe an associate attorney’s duty to the court, and to the clients for that matter, would end upon leaving the firm, and that notification duties of that departing associate would be to the firm.” If the Supreme Court accepts the Bar’s reasoning, the justices could hold Aguilar in contempt or refer him for discipline. The State Bar’s position puts Aguilar on the hot seat as a two-day hearing into the snafu begins Tuesday before State Bar Court Judge JoAnn Remke. Aguilar has consistently blamed Kent for the firm’s absence from the Supreme Court hearing, and accused him of deliberately failing to tell others in the firm about the pending case. Attending a pre-hearing conference on Friday, Rogers, Joseph, O’Donnell & Phillips partner Miranda Kane, one of Aguilar’s lawyers, said Aguilar did not want to comment on the State Bar’s position or any other aspects of the case. But in his pre-hearing statement, Aguilar argued that while he might have had a professional obligation to be aware of oral argument, he was also the client in the case and had relied on Kent to ensure his interests were protected. “Considering this unusual factual situation,” Rogers, Joseph, O’Donnell & Phillips partner Sean SeLegue wrote, “it seems paradoxical that Mr. Aguilar may simultaneously be the victim of a professional breach of duty by his own attorney and the perpetrator of a contempt on the court.” He argued that contempt “would be too harsh a penalty to impose on [Aguilar] merely by virtue of his position as managing shareholder of the firm that was representing him.” San Francisco solo practitioner Philip Ryan, who represents Kent, said outside of court Friday that the State Bar’s stance vindicates his client. “I think it begins to satisfy all the things Allen Kent has told the Supreme Court,” he said, “and the evidence developed by the State Bar will provide the definitive answer to the Supreme Court’s question about whether Aguilar lied.” The State Bar’s inquiry is being done at the order of the California Supreme Court, which wants to know who is responsible for the awkward moment on Feb. 10 when neither Kent nor anyone else from Aguilar’s firm showed up to argue the legal issues in a fee dispute between Aguilar and his divorce lawyer. Aguilar submitted the case on the briefs once Supreme Court Clerk Frederick Ohlrich contacted him by telephone from the courtroom to find out what was going on. Kent had left the firm on Feb. 5, claiming constructive termination, and has maintained since that as a former employee, he had no authority to contact the court. Aguilar has insisted that Kent was the attorney of record and, therefore, should have called the court to work out any arrangements. But State Bar prosecutors undermined Aguilar last week by saying it was their belief that the firm of Aguilar & Sebastinelli — not Kent — was the attorney of record. “An associate attorney employed by a firm does not necessarily become attorney of record merely because he or she makes an appearance in court in a case as an employee of the firm,” Nisperos wrote. “The firm, Aguilar & Sebastinelli, as an entity, could only act through its officers, employees or agents, etc.,” he continued. “Accordingly, Aguilar & Sebastinelli had a duty to the court to appear, have another attorney for the firm appear, or notify the court that no one would appear for oral argument.” On Friday, attorneys for Aguilar and Kent, as well as State Bar prosecutors, were still trying to sort out what testimony would be provided, whether there would be a need for expert witnesses, and even if both sides could agree on the basic facts. Pointing out that the high court had said the dispute rests on a matter of credibility, Kent’s attorney, Ryan, told Judge Remke that a “global stipulation” of facts would likely be impossible. “You will have to make a decision,” he said, “on what you believe and who you believe.” The California Supreme Court expects a State Bar report by April 30. The cases are In the Matter of Kent and Aguilar, 04-CT-11102 and 04-CT-11103.

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