(The Senator, the Judge and the State Bar – Which one would you trust?)*
Can I see a show of hands? How many of you know the following:
1. What is the Statute of Limitations on a written agreement?
2. Would you recognize a waiver of the statute if you saw one?
3. Would you trust a document which your divorce attorney suggested you sign?
4. Does the California State Bar Association represent the consumer?
If your hand went up for two or fewer of the above questions, you’re fairly typical. Here are the short answers:
1. Four years.
2. Probably not.
3. Sure. Probably. Unless, of course, my attorney was former State Senator and retired appellate court justice John W. Holmdahl.
4. This is a trick question, right?
Here’s the story, which contains the long answers.
John W. Holmdahl was a California state senator from the East Bay who served in the legislature from 1973 to 1982. Most California legislators in those days continued to maintain their day jobs and Holmdahl was no exception. He was an attorney, practicing a little bit of this and a little bit of that. To his credit, he didn’t always demand large retainer fees up front, but would accept IOUs or promissory notes from his clients, promising to pay his fees at so many dollars per month until fully paid.
Now hold onto that thought for a moment and allow me a brief tangent. I’ll return to it shortly.
***
The California Code of Civil Procedure sets out various time limits in which a lawsuit must be filed, varying from ten years down to three months, depending on the type of suit. These are called statutes of limitations and they generally begin to run either when there is a breach of an obligation (i.e., when a scheduled payment is not made) or when the victim discovers that he has a right to sue. (Please don’t pick on me for trying to simplify the concept. I’m after bigger game, here.)
Theoretically, according to appellate cases in California, big boys and girls are perfectly competent to enter into a contract which waives the applicable statute of limitations. In other words, you loan me $10,000.00 and I agree to repay you at the rate of $75.00 per month, but if I stop paying, you can come back 15 or 20 years later and sue me.
Makes an awful lot of sense, right? I agree with you, but the local judge didn’t.
***
Bernice had gone to The Honorable John W. Holmdahl in the mid 1970s and asked him to represent her in her divorce. She had little money and a limited income. No problem, said Sen. Holmdahl. Just sign this promissory note saying you’ll pay my bill in full within a year. No, no, don’t bother to read it. You do trust me, don’t you?
Bernice signed the promissory note and waiver of the statute of limitations and Holmdahl took the case. After he sat on it for several months, accomplishing nothing, she went to another attorney who finished up the divorce for her. Six or seven years went by and she had totally forgotten about Holmdahl until she was served with a Summons and Complaint for the unpaid balance on the promissory note.
(Note: Today, there is mandatory fee arbitration before an attorney can sue his client for unpaid fees. There were no such provisions back then.)
It seems that the Hon. John W. Holmdahl, Member of the California Senate, had been transformed overnight into the Hon. John W. Holmdahl, Justice of the First District Court of Appeal, bypassing the usual stint as a trial judge.
It certainly pays to have made friends in high places.
Holmdahl was required to close down his law practice, so he assigned all of his accounts receivable, including those six or eight or ten years old, to another local attorney, who proceeded to file suit on them.
That was when Bernice was referred to me, a brash kid in his early 30s, fairly fresh out of law school. I wrote an extensive brief, arguing that it was (or, at least, should be, against public policy to ask anyone to waive the statute of limitations. And further still, I argued, for an attorney, with his superior knowledge of the law, to ask a client to do so was the grossest overreaching and the attorney should be, if not horsewhipped (okay, I really didn’t say that, but I implied it), at least severely censured.
But you didn’t get elected to the California legislature or appointed to the bench in those days without being an integral part of the Old Boys’ Network. The judge who heard the case had already made up his mind that his colleague and Old Boys’ lodge brother was as pure as the Tahoe snow. Plaintiff’s attorney didn’t – knew he didn’t have to – say a word. The judge leaned his chin on his fist and watched me with half-closed eyes. Until, that is, I requested that the trial be continued to give me the chance to call a press conference.
I’ve never since seen a sleepy judge rise to his feet as quickly and as threateningly, and I hope I have never since beat such a hasty retreat or offered such an abject apology for “threatening” to exercise my First Amendment rights. It reminds me today of the passage from “Catch-22:”
Morale was deteriorating and it was all Yossarian’s fault. The country was in peril; he was jeopardizing his traditional rights of freedom and independence by daring to exercise them.
***
So Bernice lost and had to pay the money, and I slunk away with my tail between my legs, never to cause anybody any trouble again – for about a day and a half.
If I had been righteously indignant at the very idea of the lawsuit being filed in the first place, I was livid now.
My first port of call was the State Bar of California, to whom I both wrote and telephoned about the unethical practice of an attorney requiring a client to sign a promissory note containing a waiver of the statute of limitations.
Gee, we’re awfully sorry, said the nice young gentleman from the State Bar. But Senator Holmdahl isn’t an attorney any more. He’s a judge and we don’t have any jurisdiction over him. You should really contact the Judicial Nominees Evaluation Commission or the Commission on Judicial Performance.
Gee, we’re awfully sorry, said the nice young lady from the Judicial Nominees Evaluation Commission. We only evaluate people who are proposed for judicial appointments. Once they’re on the bench, we don’t have any jurisdiction over them. You should really contact the State Bar or the Commission on Judicial Performance.
Gee, we’re awfully sorry, said the nice young gentleman from the Commission on Judicial Performance. We can only evaluate the conduct of judges sitting on the bench. We don’t have any jurisdiction over what they did when they were attorneys. You should really contact the State Bar or the Judicial Nominees Evaluation Commission.
I wrote again to the State Bar, expressing in the most gentle terms my great sorrow and disappointment in that esteemed body, indicating that I would pay my yearly dues and follow their rules as best I could…but that I considered their ethics to be several notches below mine and that I would remember the incident if I ever received an ethical complaint from them. (Note: I never have.)
Funny thing. I got a reply back from a staff member (must have been a new kid), asking me to send them my concerns in writing again. Funny thing…I did.
Gee, we’re awfully sorry, read the second reply from the State Bar, but…
***
*Question (from above): The Senator, the Judge and the State Bar – Which one would you trust?
(a) Are those my only choices?
(b) The Brooklyn Dodgers.
(c) 42
(d) None of the above.
(e) All of the above.
(This is what’s known as a “gimme” question. Full credit will be given for any answer; extra credit for a short essay.)