This is the issue that finally brings me out of lurkerdom.
You need to compare the text of the Amended Verified Motion ("AVM"), filed yesterday, with the Notice of Disciplinary Charges ("NDC") available at the California State Bar website when you look up Macaluso's credentials. Link here:
http://members.calbar.ca.gov/courtDocs/06-O-14552-1.pdf
Conveniently enough, the AVM does not contain a copy of the NDC, just Macaluso's response to them and consequently it is difficult to evaluate the motion on its face. Having said that, here is what turns up initially on a side-by-side comparison.
(1) the AVM contains a representation that *two* checks were drafted that were returned "due to an accounting error by the office staff." However the NDC indicates that Macaluso bounced a total of *four* checks from his trust account, check numbers 104, 117, 128, and 141 (see pages 2 and 3).
(2) the AVM contains a representation that the pending investigation case number is 06-O-14552. However, the NDC indicates on its face that it is proceeding on THREE consolidated cases against Macaluso: 06-O-14552, 07-O-10134, and 07-O-10899.
(3) the way things work with trust accounts is that Macaluso would have gotten a notice about the bouncing check from his bank contemporaneously with its bouncing, which is also when the State Bar would get the notice. Macaluso's brother died in December 2005 according to the AVM; the checks that bounced, however, according to the NDC were written in July 2006 (#104), September 2006 (#117, not presented until January 2007), January 2007 (#128), and February 2007 (#141). The duty to supervise a trust account is nondelegable. After the first check bounced, he's on notice, and I'd call it gross negligence at the very least.
(4) Here's where it gets really interesting. One of the bounced checks is the subject of another charge: that Macaluso wrote checks out of his trust account for his personal and business expenses. Bounced check #128 was written to a fellow who turns out to be a lawyer in San Diego. Macaluso also wrote a $50,000 check (that did not bounce) in December 2006 to Courtesy Aircraft--the people who sold him that shiny airplane described upthread. Hard to imagine that this was a specific expense that was legitimately billed to a specific client. What I can't figure out from information so far is whether this was a down payment on a plane or just the monthly payment. I've never bought an airplane, so I don't know. <shrugs>
My guess--and I am purely speculating now--is that the CA bar audited his trust account when they got the multiple bounce notices, and discovered the irregularities in these two payments made in the course of the audit. That would explain why charges are being filed almost three years after the first problem arose. Now, absent the $50K check to Courtesy Aircraft, some of the other checks wouldn't have bounced. What I would expect to see, but don't yet see clearly in his defensive materials, is the claim, "Whoops! Wrote the check on the wrong account. Meant to grab my operating account checkbook!" Very big no-no for trust accounts.
(5) The AVM claims that Macaluso was "away from the office for approximately one year and three months." (date: 3/12/2009). His submission to California attached to the AVM (!) claims only that he "was unable to focus and concentrate on some of the responsibilities he had previous performed in his office." (signed by his lawyer on 2/11/2009). If you look at Macaluso's website he lists several major settlements as having been concluded in calendar year 2006 here:
http://www.macalusolawsd.com/TMA_Pg_Cases.html. He also appears to have been recovered sufficiently from his grief to go out and buy that new airplane. It would be an entertaining cross-check to look at California court records and see how many pleadings were filed with this man's signature during the 15 months that he now claims to have been "away from the office."
You decide whether he has misrepresented the California proceedings to the state of Florida.
