In re Spielbauer

IN THE SUPREME COURT OF CALIFORNIA In re THOMAS JOHN SPIELBAUER on Discipline. S283172 Los Angeles State Bar Court SBC-19-O-30700 July 16, 2026 Justice Evans authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, Groban, and Castillo* concurred. * Associate Justice of the Court of Appeal, Fourth Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.  In re SPIELBAUER S283172 Opinion of the Court by Evans, J. In this case, we consider whether the Review Department of the State Bar Court (Review Department) properly concluded that attorney and respondent Thomas John Spielbauer (Spielbauer) should not be required to pay restitution for his acts of misconduct. The Review Department found Spielbauer culpable of four counts of misconduct, including failing to comply with Civil Code section 2943, committing two acts of moral turpitude by making misrepresentations, and failing to report a civil fraud judgment to the State Bar. For that misconduct, it recommended that Spielbauer be placed on probation for two years including actual suspension for the first six months of his probation. The Review Department concluded, however, that requiring payment of restitution would be inappropriate because the injured party was not a client of Spielbauer’s, the nonclient’s damages “arose due to causes of action based in tort,” and under this court’s precedents, “tort damages . . . cannot [be] use[d] as a justification to impose restitution.” We find that the Review Department misinterpreted our precedents and that a restitution order is appropriate in this case. We therefore order that Spielbauer make restitution in accordance with the terms set forth at the end of this opinion. We otherwise adopt the Review Department’s recommended 1  In re SPIELBAUER Opinion of the Court by Evans, J. discipline. I. FACTUAL AND PROCEDURAL BACKGROUND In 2003, Spielbauer’s brother, Dennis Spielbauer, obtained a $350,000 loan from Curtis Mitchell, a real estate investor. The loan was secured by three of Dennis’s properties, including one located at 167 E. William Street in San Jose, California (167 Property). Because of a preexisting loan, Mitchell was in second position on the 167 Property. Faramarz and Afsaneh Yazdani, as trustees of their family trust (Yazdani Trust), later assumed third position on that property in connection with a $210,000 loan secured by a deed of trust on the 167 Property and four other parcels. In 2007, Dennis obtained a second loan from Mitchell. That loan, in the amount of $585,000, was secured by Dennis’s personal residence and two other properties, but not by the 167 property. Dennis defaulted on both loans from Mitchell. When Mitchell initiated foreclosure proceedings on Dennis’s residence and the 167 Property, Dennis filed for bankruptcy. By March 2010, the 167 Property was the only property Dennis still owned that secured the 2003 loan, and the outstanding balance on that loan was $7,152.03. The first week of March 2010, Spielbauer incorporated Devine Blessings, Inc. (Devine Blessings). Its purpose was to “secur[e] financing and purchase lien position notes, particularly on the properties of Dennis Spielbauer” that were “facing foreclosure.” Spielbauer identified himself as its president and “sole shareholder.” On March 12, 2010, less than two weeks before the foreclosure sales, Spielbauer, on behalf of Devine Blessings, agreed to purchase the 2003 and 2007 loans 2  In re SPIELBAUER Opinion of the Court by Evans, J. from Mitchell for $126,000, in exchange for Mitchell’s agreement to stop the foreclosure proceeding on Dennis’s residence and to rescind the notice of default. The purchase agreement, which Spielbauer drafted, stated that the purchase was by “Thomas Spielbauer or the business entity he is an officer, director, or managing member of.” At closing, Spielbauer refused to sign documents confirming that of the total purchase price, only $7,152.03 — which was the outstanding balance on the 2003 loan — related to the 167 Property, with the rest relating to the 2007 loan secured by Dennis’s residence. He stated, “I don’t need these,” “I’m satisfied with the agreement we’ve already signed,” and “I’m not signing them. I have my own reasons for not signing them. I can’t tell you what they are, but they do not involve you.” Mitchell, finding Spielbauer’s behavior peculiar and disconcerting, documented Spielbauer’s statements and had an escrow officer witness the documentation. In late March 2010, after the purchase of the notes, the Yazdani Trust began foreclosure proceedings on the third deed of trust on the 167 Property. An agent for the Yazdani Trust subsequently purchased the property at a trustee’s sale, with a newly formed company called 167 E. William, LLC (William LLC) taking title to the property. William LLC then sought to resell the property to a third party. In late April 2010, William LLC, after entering into an agreement to sell the property to a third party, asked Spielbauer for a payoff demand statement pursuant to Civil Code section 2943. 1 Spielbauer responded 1 In 2010, when William LLC requested the payoff demand, Civil Code former section 2943, subdivision (c)(1) provided: “A beneficiary, or his or her authorized agent, shall, on the written demand of an entitled person, or his or her authorized agent, 3  In re SPIELBAUER Opinion of the Court by Evans, J. with a written payoff demand of $269,500, comprising $126,000 for purchase of the 167 Property and $143,500 owed for unspecified “other” items. Spielbauer did not disclose that the actual outstanding balance on the loan secured by the 167 Property was only $7,152.03. He included in the “other” category almost $120,000 for attorney fees that Dennis incurred in trying to prevent foreclosure on his properties and in bankruptcy proceedings, about $70,000 of which was for legal services allegedly rendered by Spielbauer himself. In May 2010, William LLC asked Spielbauer for an explanation or revision of the demand and for an accounting. Spielbauer failed to respond. Attorneys for William LLC then sent a letter to Spielbauer requesting a revised payoff demand and advising that the inflated payoff demand was jeopardizing the impending closing of the property’s sale and thus exposing Spielbauer to civil liability for tortious interference. In a letter to William LLC’s counsel dated May 28, 2010, Spielbauer stated that he was “responding . . . on behalf of Devine Blessings,” that he “need[ed] to investigate the issues” William LLC had raised, that he had not had sufficient “time” to do so, and that he would “respond on . . . the next business day,” June 1, 2010. Spielbauer wrote the letter on letterhead of his law firm — “The Spielbauer Law Office” — and identified himself on the typed signature line as “Thomas Spielbauer, Esq.” He never subsequently provided either an accounting or an explanation. As a result, William LLC canceled the sale, refunded the third- prepare and deliver a payoff demand statement to the person demanding it within 21 days of the receipt of the demand.” (Stats. 2009, ch. 43, § 5.) Identical language appears in subdivision (c) of the current version of the statute, which became operative on January 1, 2014. 4  In re SPIELBAUER Opinion of the Court by Evans, J. party buyer’s deposit, and reimbursed the buyer for additional costs incurred. In July 2010, William LLC filed a complaint against Devine Blessings that included causes of action for declaratory relief, violation of Civil Code section 2943, and interpleader. In February 2011, after extensive demurrer proceedings, William LLC filed a second amended complaint adding Spielbauer as a defendant and alleging causes of action for declaratory relief, intentional interference with economic advantage, negligent interference with economic relations, and violations of Civil Code section 2943. The complaint sought damages based on Spielbauer’s alleged proffer of an inaccurate payoff demand statement for the 167 Property. In April 2013, the court, after a bench trial, allowed William LLC to add (by amendment of the complaint) a cause of action for slander of title and ruled that William LLC had proven its claims for slander of title, intentional interference with economic advantage, and negligent interference with economic relations. It found that Spielbauer’s payoff demand was inaccurate and violated Civil Code section 2943. It also found that “[t]he evidence compel[led]” the following conclusions: (1) Spielbauer “knew [the demand] to be false, fully appreciating that [it] would” force William LLC to pay the amount of the demand “as ransom” if it wanted the sale of the property to go through; and (2) providing the knowingly false demand was Spielbauer’s “attempt to force [William LLC] to pay the unrecoverable attorney fees for Dennis Spielbauer’s bankruptcy” and “to reimburse [himself] for paying off the loan on his brother’s residence — even though that loan had nothing to do with the [167] Property.” Based on these conclusions, the court also found “by clear and convincing evidence” that Spielbauer’s “acts were fraudulent within the 5  In re SPIELBAUER Opinion of the Court by Evans, J. meaning of” the punitive damages statute (Civ. Code, § 3294). The court rejected Spielbauer’s claim that he believed his payoff demand was justified by the deed of trust on the property and an “agreement” between himself and Dennis, entered into after he “bought the Mitchell note,” that “modif[ied] the note to include” the claimed “additional sums.” The only evidence of the alleged modification, the court explained, was Spielbauer’s own “self-serving” testimony because Spielbauer had: (1) “failed to” present “the written [modification] document itself” despite having “had the opportunity to . . . do so”; and (2) “withheld” the document “during discovery” despite “admit[ting] that it was not privileged.” In the court’s view, because Spielbauer did not produce the written agreement or “provide any explanation . . . as to how the note was supposedly modified,” “[t]here was simply no evidence” to provide “a factual basis” for the conclusion “that the note had been modified.” Instead, the court found, the payoff demand was simply an attempt to “shift” to William LLC “the financial burden” of both Spielbauer’s work on Dennis’s bankruptcy proceedings and the $126,000 payment to Mitchell. In February 2014, the superior court entered judgment in favor of William LLC, and against both Spielbauer and Devine Blessings, for a total amount of $869,276.55, comprising $332,547.06 in compensatory damages on the claim for slander of title — which included a $7,152.03 reduction for the amount still owed on the 167 Property — $163,597.12 in attorney fees, $40,582.37 in costs, and $332,550 in punitive damages. In 2016, the Court of Appeal affirmed the judgment and we denied Spielbauer’s petition for review. In April 2014, about two months after entry of judgment 6  In re SPIELBAUER Opinion of the Court by Evans, J. in the civil action, Spielbauer filed for bankruptcy. Three months later, in July 2014, William LLC filed an adversary complaint in the bankruptcy matter requesting a determination that the debt arising from the judgment in the civil action was not dischargeable because it was based on “fraudulent” acts by Spielbauer. After William LLC filed an amended complaint seeking the same relief, Spielbauer filed an answer that personally attacked Faramarz Yazdani, alleging that Yazdani was a “hard money, predatory lender[]” who had “loot[ed]” and “savag[ed]” Dennis through “dishonest and fraudulent actions” that resulted in Dennis’s “mental and physical breakdown.” The answer also asserted, among other things, that under California case law, Spielbauer’s payoff demand was “justified” by the terms of the operative deed of trust for the property and a subsequent “modification” agreement with Dennis. In April 2017, the bankruptcy court, giving collateral estoppel effect to the superior court’s findings in the civil action, granted William LLC summary judgment on its adversary complaint and entered a judgment stating that the civil judgment “is excepted from discharge” and the “debt” arising from it “is non-dischargeable.” A federal district court affirmed the bankruptcy court’s judgment in March 2018, reasoning that the bankruptcy court had not abused its discretion in giving preclusive effect to the findings in the civil action. In November 2019, the Ninth Circuit Court of Appeals, also giving collateral estoppel effect to the findings in the civil action, affirmed the orders of the federal district court and the bankruptcy court, concluding that Spielbauer: (1) “committed fraud by intentionally misrepresenting a material fact known to him with the intention of injuring” William LLC; and (2) “inflicted” a “malicious,” “deliberate[,] and intentional injury . . . with the actual, 7  In re SPIELBAUER Opinion of the Court by Evans, J. subjective motive and intent to cause the injury.” Spielbauer has never made any payment on the judgment. In June 2014, about four months after entry of judgment in the civil action and two months after Spielbauer filed for bankruptcy, an investigator for the Office of Chief Trial Counsel of the State Bar (OCTC) contacted Spielbauer about the civil fraud judgment in the William LLC matter. The investigator stated that OCTC had no record of Spielbauer reporting the judgment as required by section 6068, subdivision (o)(2) of the Business and Professions Code. In a written response dated July 11, 2014, Spielbauer stated that the judgment was not “reportable” because the “activities” giving rise to it were not “ ‘committed in a professional capacity’ ” — i.e., “as an attorney” — but “as a President of” Devine Blessings. On December 16, 2019, OCTC filed a Notice of Disciplinary Charges alleging five counts of misconduct by Spielbauer: (1) violating section 6068, subdivision (a) of the Business and Professions Code by failing to comply with Civil Code section 2943; (2) violating section 6068, subdivision (a) of the Business and Professions Code by committing fraud within the meaning of Civil Code section 3294; (3) violating section 6106 of the Business and Professions Code by committing two acts of moral turpitude (misrepresentation); and (4) violating section 6068, subdivision (o)(2) of the Business and Professions Code by failing to report the civil fraud judgment. The State Bar hearing judge found Spielbauer culpable on all but the last count (failure to report the judgment) and recommended a two-year suspension with execution stayed and probation for two years with various conditions, including actual suspension for the first 90 days of the probationary term. The hearing judge declined to recommend that Spielbauer be required to make restitution, 8  In re SPIELBAUER Opinion of the Court by Evans, J. citing the following factors: (1) “it has not been established that Spielbauer’s wrongdoing occurred in the practice of law”; (2) William LLC was “not a client” and could avail itself of “other mechanisms . . . to satisfy [the civil] judgment” it had obtained; (3) “Spielbauer’s conduct merits a modest level of discipline — a 90-day suspension”; and (4) requiring him to pay “nearly one million dollars” in restitution “prior to returning to active status . . . would undoubtedly have a far greater impact on his ability to practice than intended.” Both Spielbauer and OCTC appealed, with OCTC asking for a finding of culpability on all five counts and, in terms of discipline, actual suspension for six months “and until he pays restitution.” The Review Department found Spielbauer culpable of only four counts: failing to comply with Civil Code section 2943, two acts of moral turpitude by making misrepresentations, and failing to report the civil fraud judgment. For discipline, it recommended that Spielbauer “be suspended from the practice of law for two years, that execution of that suspension be stayed, and that he be placed on probation for two years” subject to various conditions, including actual suspension “for the first six months of his probation.” Among the factors the Review Department cited in increasing the recommended length of the actual suspension were the following: (1) Spielbauer’s “misrepresentation to William LLC jeopardized its right to sell the 167 Property and was an attempt to defraud the company out of” approximately $262,000; (2) his “misconduct in the superior court” — “submit[ing] to the judge” a declaration “containing” an intentional “misrepresentation regarding the payoff demand” — was “related to the practice of law”; and (3) “his substantial indifference” regarding the consequences of his misconduct, his “failure to pay the civil 9  In re SPIELBAUER Opinion of the Court by Evans, J. judgment,” and “[h]is failure to understand the wrongfulness of his misconduct.” The Review Department “decline[d] to recommend [that] Spielbauer be ordered to make restitution to William LLC.” After noting that William LLC was “a non-client entity,” the Review Department, quoting our decision in Sorensen v. State Bar (1991) 52 Cal.3d 1036 (Sorensen), stated that this court “has explicitly stated that restitution in the disciplinary context is not a ‘damage award’ ” and “does not ‘approve imposition of restitution as a means of compensating the victim of wrongdoing . . . .’ ” Although acknowledging decisions in which we had ordered restitution to compensate nonclients, the Review Department found those decisions “distinguishable.” On OCTC’s motion for reconsideration, the Review Department affirmed its decision not to recommend restitution, stating: “The restitution OCTC seeks in this case constitutes a damages award based in tort, with a substantial portion of the award — the punitive damages portion — exceeding out-of- pocket losses, to a business entity to whom [Spielbauer] had no fiduciary duty. This is beyond the scope of every disciplinary case in which restitution has been imposed and that involved parties outside the attorney-client relationship. . . . [¶] OCTC contends that because this case does not involve an ordinary tort, but rather, a tort in fraud, restitution must be imposed as part of discipline, overlooking that the fraud [Spielbauer] committed was the basis for the punitive damages award, which is clearly beyond the reach of Sorensen’s restitution for out-of- pocket losses in a limited situation. [Citation.] OCTC draws a comparison to misconduct involving moral turpitude as justification for requiring restitution, but that is of no help. We previously considered a case that involved misconduct 10  In re SPIELBAUER Opinion of the Court by Evans, J. constituting moral turpitude and we declined to impose restitution as the underlying superior court judgment was comprised of tort damages. (In re Torres (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 138, 152-153.)” OCTC petitioned for review, raising the following questions: “In attorney disciplinary cases involving harm to a non-client, should restitution be precluded simply because the attorney’s misconduct is grounded in tort? And, in this attorney disciplinary case, should Respondent be ordered to pay restitution to a non-client for specific out-of-pocket losses incurred as a direct result of Respondent’s intentional and fraudulent misconduct.” We granted the petition.2 II. DISCUSSION A. Sorensen and other precedents. “The basic objectives of attorney discipline are the protection of the public, the preservation of confidence in the legal profession, and the rehabilitation of errant attorneys where appropriate.” (Bach v. State Bar (1991) 52 Cal.3d 1201, 1206 (Bach).) Thus, “in imposing discipline, we do not simply impose retribution and punishment, but seek to protect the public, to preserve public confidence in the legal profession, and to maintain and enforce the highest possible professional standards for members of the bar.” (Coppock v. State Bar (1988) 44 Cal.3d 665, 684 (Coppock).) To accomplish these goals “and at the same time to rehabilitate the errant attorney” (Brookman 2 Spielbauer filed a separate petition for review raising numerous issues. We denied his petition. Thus, the only aspect of the Review Department’s recommendation here at issue is its conclusion that ordering Spielbauer to make restitution would be improper. 11  In re SPIELBAUER Opinion of the Court by Evans, J. v. State Bar (1988) 46 Cal.3d 1004, 1008 (Brookman)), we have “ ‘the power to impose discipline [that] encourages attorneys to act honestly and with integrity.’ ” (Coppock, at p. 685.) Included within this power is the authority to order restitution. Indeed, as we have explained in the attorney discipline context, “[r]estitution is fundamental to the goal of rehabilitation.” (Hippard v. State Bar (1989) 49 Cal.3d 1084, 1094, italics added.) “[I]mposed as a condition of probation,” restitution “serves the state interest of rehabilitating culpable attorneys (and protecting the public) by forcing the attorney to ‘confront, in concrete terms, the harm [their] actions have caused.’ ” (Brookman, supra, 46 Cal.3d at p. 1009; see Bach, supra, 52 Cal.3d at p. 1207 [“Ordering restitution in cases of financial injury is a rehabilitative measure designed to further the state’s disciplinary objectives ‘by forcing [attorneys] to “confront, in concrete terms, the harm [their] actions [have] caused” ’ ”].) For this reason, in the attorney discipline context, “[r]estitution is routinely required . . . in cases of misappropriation of client funds,” “usually without discussion.” (Coppock, supra, 44 Cal.3d at p. 684.) However, as we have explained, “[i]t does not follow . . . that restitution is appropriate only in” cases involving misappropriation of client funds, or that attorneys who do not misappropriate client funds “should not be required to pay restitution to the victims of [their] culpable acts. [¶] Although part of the rationale for requiring restitution may be to prevent . . . attorney[s] from profiting from [their] wrongdoing, restitution is also intended,” among other things, “to discourage dishonest and unprofessional conduct.” (Coppock, supra, 44 Cal.3d at p. 685.) In this regard, requiring a disciplined attorney to pay restitution “is clearly for the benefit of the public at large” 12  In re SPIELBAUER Opinion of the Court by Evans, J. and does not function “merely [as] compensation to the [victim] for ‘actual pecuniary loss.’ ” (Brookman, supra, 46 Cal.3d at p. 1009.) We applied these principles in Sorensen, which was the linchpin of the Review Department’s analysis. There, attorney Baldwin, after taking a deposition and obtaining a transcript from the business entity for which the reporter worked — “a deposition reporting firm” called “the Los Angeles Court Reporters” — decided that the “bill [for the transcript] was excessive” and convinced his client to pay only about half. (Sorensen, supra, 52 Cal.3d at p. 1038.) To recover the rest, the owner of the reporting firm — Ms. Brigante — “filed a small claims action against” Baldwin. (Id. at p. 1039.) In response, attorney Kerry Sorensen filed on Baldwin’s behalf “a municipal court [action] against Brigante . . . for ‘fraud and deceit.’ ” (Ibid.) After dismissal of the fraud action on summary judgment, a State Bar hearing panel found in a disciplinary proceeding that Sorensen, by filing the action, had “ ‘willfully violated’ ” his “ ‘oaths and duties as’ ” an attorney and had “ ‘abused and misused the process of the court.’ ” (Id. at p. 1040.) The panel recommended that Sorensen “be required to reimburse Brigante’s legal fees and expenses” in defending against the action. (Ibid.) The Review Department deleted this recommendation, reasoning: “ ‘[S]uch reimbursement would be an award of damages rather than restitution. The Review Department has declined to adjudicate or to award damages in attorney disciplinary proceedings.’ ” (Id. at pp. 1040–1041.) “Exercising our independent judgment” (Sorensen, supra, 52 Cal.3d at p. 1045), we sided with the hearing panel and concluded that a restitution award was appropriate. After explaining that “the sanction” for the misconduct “must 13  In re SPIELBAUER Opinion of the Court by Evans, J. reflect . . . the harm” it caused (id. at p. 1044), we added: “Unlike the review department, we do not view restitution in this context as a ‘damage award.’ Nor do we approve imposition of restitution as a means of compensating the victim of wrongdoing. [Citation.] Rather, we consider restitution a necessary condition of probation designed to effectuate [the attorney’s] rehabilitation and to protect the public from similar future misconduct. Although most of our previous cases requiring restitution as a condition of probation have involved misuse of client funds [citations] and unearned fees [citations], we believe the same protective and rehabilitative principles apply in the case of a party who has been forced to incur legal fees as a result of an attorney’s violation of [Business and Professions Code] section 6068, subdivisions (c) and (g). In both instances, private persons have incurred specific out-of-pocket losses directly resulting from attorney misconduct. Restitution of these amounts emphasizes the professional responsibility of lawyers to account for their misconduct, and thereby serves to both protect the public and instill public confidence in the bar.” (Id. at pp. 1044–1045.) As earlier noted, the Review Department read this passage from Sorensen as an “explicit[] state[ment] that restitution in the disciplinary context is not a ‘damage award’ ” and as our disapproval of imposing restitution “ ‘as a means of compensating the victim of wrongdoing.’ ” Based on this reading, the Review Department reasoned that “a civil judgment in tort . . . cannot serve as the basis for restitution” because recovery in tort constitutes a damage award to compensate for injury. And because the “civil judgment [against Spielbauer] was primarily driven by tort damages,” under Sorensen, it “cannot [be] use[d] as a justification to impose 14  In re SPIELBAUER Opinion of the Court by Evans, J. restitution.” The restitution order in Sorensen, the Review Department declared, constituted only “a limited exception” — based on “the unique facts of [that] case” — to the rule against ordering restitution as compensation, which had “extended the ‘protective measures and rehabilitative principles’ of restitution to compensate” a nonclient for legal fees incurred only in “defending” against a lawsuit and only when the attorney’s conduct constitutes a “violation of [Business and Professions Code] section 6068, subdivisions (c) and (g).” That exception does not apply here, the Review Department concluded, because “Spielbauer was not found culpable of violating section 6068, subdivisions (c) and (g), and the restitution amount comprising attorney fees and costs arose from William LLC successfully suing Spielbauer, rather than from William LLC defending itself in a lawsuit.” We conclude that the Review Department has misread Sorensen and our other precedents. Contrary to the Review Department’s analysis, our order of restitution in Sorensen did not rest on the fact that the attorney in that case had violated subdivisions (c) and (g) of Business and Professions Code section 6068, specifically. Nor did it rest on the fact that the funds to be reimbursed had been incurred in “defending” against a lawsuit brought by the attorney, rather than in “suing” the attorney. We reasoned more generally that “the same protective and rehabilitative principles” that warrant a restitution order when attorney misconduct “involve[s] misuse of client funds [citations] and unearned fees” more broadly “apply” whenever “private persons have incurred specific out-of-pocket losses directly resulting from attorney misconduct.” (Sorensen, supra, 52 Cal.3d at pp. 1044–1045.) As we went on to explain, “[r]estitution of these amounts” — i.e., “specific out-of-pocket 15  In re SPIELBAUER Opinion of the Court by Evans, J. losses directly resulting from attorney misconduct” — “emphasizes the professional responsibility of lawyers to account for their misconduct, and thereby serves to both protect the public and instill public confidence in the bar.” (Id. at p. 1045.) Requiring payment of restitution serves these same “protective and rehabilitative” goals even when the misconduct does not involve a violation of the particular statute at issue in Sorensen — section 6068, subdivisions (c) and (g) — and even when the legal fees “result[ing]” from the attorney’s misconduct were “incur[red]” by the victim in suing the attorney rather than in defending against a meritless lawsuit brought by the attorney. (Sorensen, at pp. 1044–1045.) Our comments in Sorensen about “restitution as a means of compensating the victim” or “as a ‘damage award’ ” (Sorensen, supra, 52 Cal.3d at p. 1044) must be understood in context. Our point was not, as the Review Department concluded, that an award of restitution is impermissible insofar as it “compensat[es] the victim of wrongdoing.” (Ibid.) Rather, it was that the primary purposes of ordering “restitution [as] a necessary condition of probation” in attorney discipline cases are “effectuat[ing]” the attorney’s “rehabilitation and . . . protect[ing] the public from similar future misconduct,” and that compensating the victim through an “award [of] restitutive monetary relief” is permissible “when doing so is ‘merely incidental to’ ” these “ ‘proper, primary . . . purpose[s].’ ” (Id. at p. 1044.) By “emphasiz[ing] the professional responsibility of lawyers to account for their misconduct,” requiring attorneys to pay for “specific out-of-pocket losses directly resulting from [their] misconduct . . . serves to both protect the public and instill public confidence in the bar.” (Id. at p. 1045.) This reading of Sorensen is fully consistent with our 16  In re SPIELBAUER Opinion of the Court by Evans, J. statement in Brookman — which we cited in Sorensen — that requiring payment of restitution “fundamentally serves the [broader] goal of rehabilitation” and therefore “is not merely compensation . . . for ‘actual pecuniary loss.’ ”3 (Brookman, supra, 46 Cal.3d at p. 1009, italics added; see Kwasnik v. State Bar, (1990) 50 Cal.3d 1061, 1073, quoting Brookman, at p. 1009.) Amicus curiae Lawyers’ Mutual Insurance Company (Lawyers’ Mutual) argues that ordering restitution in this case would “cross the bright line between damages and restitution drawn in Sorensen.” It “is well-established in the law,” Lawyers’ Mutual asserts, that “ ‘[t]he object of restitution is to restore the status quo by returning to the plaintiff funds in which he or she has an ownership interest.’ [Citations.] . . . [I]t ‘is designed to restore the aggrieved party to his or her former position by return of the thing or its equivalent in money’ ” and “has ‘primarily been utilized by courts to prevent unjust enrichment’ by forcing a wrongdoer to disgorge ill-gotten gains.” It is both “distinct from” and “ ‘fundamental[ly] differen[t]’ ” than damages, in that it “ ‘is measured by the defendant’s gain’ ” whereas damages are “ ‘measured by the plaintiff's loss.’ ” “Put 3 In several decisions, the Review Department has cited Sorensen for the proposition that an order requiring an attorney to pay tort damages as restitution is impermissible. (In the Matter of Torres (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 138, 153 [“we do not construe Sorensen as extending restitution to cover tort damages”]; In the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631, 650 [“It is inappropriate to use restitution as a means of awarding unliquidated tort damages for malpractice”].) We disapprove these decisions to the extent they indicate that a restitution order requiring an attorney to pay a victim’s losses is improper solely because those losses may constitute damages in tort. 17  In re SPIELBAUER Opinion of the Court by Evans, J. simply, the traditional definition of restitution is A returning a res to B that was improperly taken from B in the first instance. It is not a substitute for traditional monetary damages.” It does not include “ ‘ “[c]ompensation for a lost business opportunity,” ’ ” which “ ‘ “is a measure of damages.” ’ ” According to Lawyers’ Mutual, “[c]ourts apply this . . . core definition of restitution in many contexts” and “[t]his court’s cases imposing restitution as a condition of professional discipline have largely adhered to [this] traditional definition.” Lawyers’ Mutual asserts that although the court has “departed from traditional restitution” in several disciplinary decisions — including Sorensen — ordering restitution in this case would “represent[] a greater departure from traditional restitution than” those decisions. As previously discussed, in Sorensen, we did not, as Lawyers’ Mutual argues, draw a “bright line between damages and restitution.” Rather, we held that when “attorney misconduct” causes “private persons” to incur “specific out-of- pocket losses,” a restitution award is proper, and that “compensating the victim of wrongdoing” through an “award [of] restitutive monetary relief” is permissible “when doing so is ‘merely incidental to a proper, primary . . . purpose’ ” of imposing discipline. (Sorensen, supra, 52 Cal.3d at pp. 1044– 1045.) “[I]n this context,” we “view” restitution, not as “a ‘damage award,’ ” but as “a necessary condition of probation designed to effectuate [the attorney’s] rehabilitation and to protect the public from similar future misconduct.” (Id. at p. 1044.) “[F]orcing” wayward attorneys, through payment of restitution, “to ‘confront, in concrete terms, the harm [their] actions have caused’ . . . fundamentally serves the goal of rehabilitation.” (Brookman, supra, 46 Cal.3d at p. 1009.) 18  In re SPIELBAUER Opinion of the Court by Evans, J. Lawyers’ Mutual fails to adequately consider the purposes of restitution in this context when it argues we should strictly apply what it asserts is the “core definition of restitution” that “[c]ourts apply . . . in many [other] contexts.” (Cf. Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 263 [“[r]estitutive damages,” which agencies may award when reasonably necessary to effectuate their primary, legitimate regulatory purposes, include “economic harm suffered by one party in consequence of another party’s violation of a law,” i.e., “quantifiable amounts of money . . . to compensate for the pecuniary loss directly resulting from” a “violation of law”].) Lawyers’ Mutual also misreads some of the other decisions on which it bases its argument. In Slavkin v. State Bar (1989) 49 Cal.3d 894, 898 (Slavkin), we imposed discipline — including payment of restitution — on an attorney for, as relevant here, “wilfully fail[ing] to . . . perform any services” for a client after being retained, and paid an “advance,” “to take prompt action to evict a nonpaying tenant.” (Fn. omitted.) According to Lawyers’ Mutual, our discipline order in Slavkin “adhered to the traditional definition of restitution” by “condition[ing]” the attorney’s suspension “on repayment of misappropriated client funds,” i.e., the prepaid legal fee. However, the “items of restitution” in our restitution order included “the full amount of [a] judgment” the client had obtained against the attorney in “[s]mall [c]laims [c]ourt” (Slavkin, at p. 906), and that judgment required the attorney to pay, in addition to “the prepaid [legal] fee,” an amount “representing rental losses incurred by [the attorney’s] inaction” (id. at p. 898, italics added). Thus, Slavkin, although cited by Lawyers’ Mutual, actually supports a 19  In re SPIELBAUER Opinion of the Court by Evans, J. conception of restitution that is broader than the restricted one Lawyers’ Mutual offers and not limited to out-of-pocket losses. The Review Department, in addition to its mistaken view of Sorensen, relied on the fact that William LLC has never been Spielbauer’s client. However, its analysis is inconsistent with decisions of this court that the Review Department acknowledged but declared to be “distinguishable.” One of those decisions is Galardi v. State Bar (1987) 43 Cal.3d 683, 687 (Galardi), where we imposed discipline — including payment of restitution — based on an attorney’s “willful[] breach[]” of “fiduciary duties he owed,” not to his clients, but “to his joint venturers in various real estate investment projects.” Although noting that “the misconduct occurred in the course of [the attorney’s] business dealings and not during his representation of legal clients” — and citing this as a reason for reducing the terms of the suspension the Review Department had recommended — we nonetheless adopted the Review Department’s recommendation that the attorney be required to pay, over a five-year period, restitution to “his coventurers” in the total amount $186,000. (Id. at p. 694.) The Review Department’s rationale for distinguishing Galardi — it involved an attorney who “breached his . . . fiduciary duty and diverted funds or misappropriated money owed to a non-client” — is not supported by our precedents. In Sorensen, which we have already discussed, we ordered payment of restitution even though the attorney had no fiduciary duty to the owner of the deposition firm and had neither diverted nor misappropriated money owed to her. Coppock, which the Review Department did not discuss in connection with this issue, involved similar facts. There, the disciplined attorney “allowed a client to use his client trust 20  In re