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DAVID MORTON SHELL [#85818], 55, of Elk Grove
was suspended for six months, stayed, actually suspended for 30 days
and until the court grants a motion to terminate the suspension. If
the actual suspension exceeds two years, he must prove his
rehabilitation; if it exceeds 90 days, he must comply with rule 955.
He also was ordered to take the MPRE. The order took effect July 13,
2001.
In a default proceeding, the bar court found that
Shell failed to comply with terms of a 1998 private reproval imposed
for failure to pay a court sanction. He was ordered to pay the
sanction within 30 days and attend ethics school.
He did not attend ethics school by the deadline,
but has since done so.
Shell was ordered in 1993 to pay a $2,000
sanction for frivolous or bad-faith actions or tactics. Shell neither
paid the sanction nor informed the State Bar of it.
JOHN ROGER ETIENNE [#61067], 60, of Suva, Fiji,
was suspended for two years, stayed, actually suspended for one year
and until the court grants a motion to terminate the suspension, and
was ordered to take the MPRE and comply with rule 955. If the actual
suspension exceeds two years, he must prove his rehabilitation. The
order took effect July 21, 2001.
Etienne failed to comply with conditions attached
to a 1996 probation — he did not file quarterly reports, a CPA
certificate or proof of attending client trust accounting school or
ethics school.
Etienne was hired to represent a woman and her
minor daughter in a personal injury matter in 1990. He deposited four
medical payment drafts and a $50,000 settlement check for his clients
into his general account rather than his client trust account. He also
neglected to promptly pay out funds in his possession which his client
was entitled to receive.
The client wrote to Etienne requesting that all
outstanding medical bills be paid, but she was unaware he was out of
the country on an extended trip. He did not receive her letter and he
did not return any of her telephone calls.
Etienne did not participate in the latest
proceedings.
JOHN M. GOODMAN [#147569], 38, of San Diego
was suspended for three years, stayed,
placed on probation for five years with a six-month actual
suspension and was ordered to comply with rule 955. The order took
effect July 21, 2001.
Goodman stipulated to two counts of misconduct.
In four consolidated cases, he issued eight checks to his wife and
another attorney against insufficient funds from his client trust
account. He used the account for his own purposes and commingled
funds.
In another case, Goodman began representing a
woman in August 1997, filing a slip-and-fall lawsuit on her behalf. He
then failed to return her calls for more than five months.
In December 1998, the case was dismissed after
Goodman failed to appear at a case management conference. In November
1999, Goodman went to the client’s home and told her he would waive
his fees if he could not settle the case by Christmas. He did not tell
her the case had been dismissed nearly a year before. He then
abandoned the client completely.
The court found Goodman’s actions caused
significant harm to clients.
In mitigation, he showed remorse for the
misconduct. Goodman was suffering from marital and financial problems
at the time and was an alcoholic. He was overwhelmed and unable to
handle a solo practice. He closed his trust account and has stopped
practicing law.
Goodman has a prior record of discipline. In
October 2000, he received a 90-day actual suspension for practicing
law while suspended for nonpayment of bar dues, using his client trust
account for personal purposes and writing checks against insufficient
funds. He failed to maintain settlement funds in a trust account and
misappropriated client funds for his own use, an act of moral
turpitude.
ARTHUR MARTINEZ JR. [#153299], 50, of Santa
Ana was suspended for two years, stayed, and placed on three years
of probation with a two-year actual suspension and until he proves his
rehabilitation. He was ordered to comply with rule 955 and to take the
MPRE. The order took effect July 22, 2001.
Martinez stipulated to moral turpitude,
performing incompetently, failing to promptly pay client funds,
deposit funds in a client trust account or cooperate with the bar’s
investigation, charges which stemmed from five cases. All but one case
involved misappropriating funds from client trust accounts.
In that matter, Martinez began representing
a woman in 1999 in a legal malpractice action against her
former attorney and attempted to recover funds due her from a personal
injury settlement. The client had complained to the State Bar about
the former attorney; Martinez required her to withdraw the complaint
as part of a settlement agreement. Entering into such an agreement
with a client is a violation of the State Bar Act.
In mitigation, Martinez was experiencing family
problems at the time of the misconduct.
GENE AUSTIN CAIN [#119139], 68, of Walnut
Creek was suspended for one year, stayed, placed on probation for
two years and was ordered to take the MPRE within one year. The order
took effect July 27, 2001.
Cain stipulated to aiding the unauthorized
practice of law. He permitted John R. Lothrop, a suspended attorney
and his son-in law (see next item), to represent him in an October
1999 deposition and said nothing when Lothrop told opposing counsel
his disciplinary costs had been paid and his membership was again in
good standing, but had not been updated in the bar’s records.
Cain knew Lothrop was still suspended when he
took the deposition.
In mitigation, Cain had no prior record of
discipline.
JOHN ROBERT LOTHROP [#158111], 44, of San
Leandro was suspended for two years, stayed, placed on probation
for two years with a six-month actual suspension and until he pays
restitution, and was ordered to comply with rule 955. If the actual
suspension exceeds two years, he must prove his rehabilitation. The
order took effect July 27, 2001.
Lothrop stipulated that while suspended, he
appeared as an attorney for his father-in-law, Gene A. Cain (see
previous item). Had he paid disciplinary costs ordered in an earlier
case, he would have been on active status. Lothrop maintains that Cain
said he had paid the disciplinary costs, but in fact he had not. He
also failed to respond to the allegations until after the
investigation was completed.
In another matter, Lothrop failed to comply with
the terms of a 1998 suspension by failing to make restitution on time,
submit one quarterly report on time or provide proof of attendance at
Alcoholics Anonymous or The Other Bar. He also did not pay the
required 10 percent interest on the restitution.
That discipline was the result of failing to
perform competently, promptly refund unearned fees, preserve client
funds in a trust account or maintain proper State Bar membership
records.
JAMES BRADLEY RUDOLPH [#133250], 42, of San
Diego was suspended for six months, stayed, placed on probation
for one year and was ordered to take the MPRE. The order took effect
July 27, 2001.
Rudolph stipulated to an act of moral turpitude
and failure to report a conviction. He was admitted to the bar in
1988, but did not practice until 1993.
From 1987 to 1990, he worked in a family-owned
business, and when it failed, he suffered serious financial problems.
He then managed a convenience store, maintaining a money-order machine
for which his mother had posted a $25,000 certificate of deposit.
In 1992, Rudolph withdrew $6,000 in money orders
for himself without placing funds in the postal account. He used the
money for personal bills, intending to replace the money later. He
admitted his actions when questioned by a postal inspector. The U.S.
Postal Service recovered the funds from money posted by Rudolph’s
mother; he later repaid his mother.
Rudolph received a federal misdemeanor conviction
for embezzling postal funds and was sentenced to two years of
probation.
Because he had not practiced law, Rudolph was
unaware that he was required to report his conviction to the State
Bar. The bar learned of the crime from the state Department of
Alcoholic Beverage Control —- Rudolph had volunteered the
information while applying for a liquor license.
In mitigation, Rudolph has no record of
discipline, cooperated with the investigation, and was under severe
financial stress at the time. He provided references who testified to
his good character.
DOUGLAS DELANGE GRAHAM, [#46759], 60, of
Glendora was suspended for one year, stayed, placed on probation
for two years and was ordered to take the MPRE. The order took effect
Aug. 1, 2001.
Graham stipulated to misconduct in three cases.
In the first, he collected an illegal fee from a trust he
administered. He collected both trustee and attorney fees, but was
required by law to first notify the beneficiaries and to obtain court
approval. From 1984 to 1996, he did not obtain any court orders
regarding use of the trust funds, including the funds he paid to
himself. He also did not give notice before collecting fees.
Over the years, he paid himself more than
$61,000. In 1996, he filed a final trust accounting, asking the court
to award him $61,000 for work he did on the trust. Instead, the court
found he was not entitled to all the fees he had already collected and
ordered him to refund $50,000 to the beneficiaries.
The other cases involved commingling funds: He
used money drawn from his client trust account to cover personal
expenses. Instead of withdrawing attorney’s fees from the trust
account, he left the fees there to pay his personal expenses, writing
at least 27 checks for that purpose.
In aggravation, Graham’s actions showed a
pattern of multiple acts of wrongdoing. In mitigation, he had no prior
record of discipline, he cooperated with the bar’s investigation and
acted in good faith.
KOOROS JAMES KHAVARIAN [#171550], 35, of
Valley Village was suspended for one year, stayed, placed on
probation for two years with a 30-day actual suspension and was
ordered to take the MPRE. The order took effect Aug. 1, 2001.
Khavarian stipulated that he performed
incompetently, failed to inform a client of significant developments,
improperly withdrew from employment and misrepresented facts, an act
of moral turpitude.
In 1995, a year after he was admitted to the bar,
Khavarian represented a woman who wanted to pursue a personal injury
claim after unsuccessfully filing one on her own. Khavarian refiled
the claim but it was again rejected. By the time he filed the case in
superior court, the six-month statute of limitations had run. He did
not tell the client.
Although the client responded to interrogatories,
Khavarian never served the responses. When the defense filed a motion
to compel and a motion for summary judgment, Khavarian agreed to
dismiss the case with prejudice. He did this without the client’s
knowledge, authorization or consent.
After filing the dismissal, Khavarian intended to
withdraw from representing the woman, but he did not inform the client
of this. She tried to reach him by telephone from August 1996 to
January 1998.
Most attempts were not successful. When she did
reach him, he would assure her the case was still pending. In early
1998, he stopped returning her calls altogether. The client went to
his office and learned he had moved without informing her of his new
address. She then learned from the opposing party that the case had
been dismissed in 1996.
In mitigation, Khavarian has no prior record of
discipline, but it was noted that the misconduct happened early in his
legal career.
GARY A. SMITH
[#103246], 49, of Los Angeles was suspended for one year,
stayed, placed on probation for two years with an actual 45-day
suspension and was ordered to take the MPRE. The order took effect
Aug. 1, 2001.
Smith stipulated he failed to communicate with a
client, maintain funds in a client trust account and wrote a client a
check knowing that funds in the account were insufficient, an act of
moral turpitude.
After winning a $10,500 arbitration award in a
dog bite case, Smith took a $4,200 contingency fee from the client
trust account, then issued a $5,000 check to himself. (He had agreed
to reduce his fee to 25 percent of the award.)
The client tried for two months to reach Smith to
locate her funds and to request documents. He did not promptly answer
her inquiries.
When Smith wrote a check to the client for
$6,492, the bank showed funds were insufficient. The client confronted
Smith and he deposited enough money the next day to cover the check.
Smith has a prior record of discipline —- a
1994 reproval for failing to promptly pay client funds.
In mitigation, Smith was suffering from
depressive symptoms, including apathy, low energy, poor concentration
and poor attention, at the time of the most recent misconduct. He
sought assistance for these problems and has continued therapy since.
His therapist reports Smith’s problems accounted for the misconduct,
causing him to miscalculate dates and amounts, and that he has been
active in working through his problems.
Smith took immediate action to rectify the
wrongdoing, cooperated fully with the bar’s investigation and showed
remorse.
IRIS Z. SPECTOR [#107506], 43, of Corona Del
Mar was suspended for two years, stayed, actually suspended for
nine months and until the State Bar Court grants a motion to terminate
the suspension, and was ordered to take the MPRE and comply with rule
955. If the actual suspension exceeds two years, she must prove her
rehabilitation. The order took effect Aug. 1, 2001.
In a default proceeding, the State Bar Court
found Spector failed to comply with terms of a 1997 probation imposed
for practicing law while she was suspended for nonpayment of dues.
Spector stipulated to the charges and received a stayed one-year
suspension, one year of probation and a 30-day actual suspension. But
she did not file any quarterly reports and also failed to attend
ethics school.
LAURIE ANN STOFFEL [#130897], 40, of
Sacramento was suspended for two years, stayed, placed on
probation for four years and was ordered to make restitution. The
order took effect Aug. 8, 2001.
Stoffel stipulated that she failed to refund
unearned fees. In June 2000, she represented a woman in a divorce and
was paid $2,000 in advance fees. She performed some legal services,
leaving a credit balance of $1,775 owed the client. Stoffel did not
perform any further legal services or refund the unearned fees.
As a condition of her probation, Stoffel was
ordered to pay restitution to the client plus10 percent interest.
In mitigation, she cooperated with the bar’s
investigation.
PHILLIP MATHEW CONNOR [#69702], 53, of San
Diego was suspended for two years, stayed, and actually suspended
for six months and until he completes ethics school and the State Bar
Court grants a motion to terminate the suspension. If the actual
suspension exceeds two years, he must prove his rehabilitation. He was
also ordered to comply with rule 955. The order took effect Aug. 9,
2001.
The bar court’s review department upheld a
finding by the hearing judge that Connor failed to comply with 1997
probation conditions —- he did not submit quarterly reports or
attend ethics school. The review department also found that Connor did
not pass the MPRE, a finding not made by the hearing judge.
The underlying discipline was the result of
improperly withdrawing from employment, failing to respond to a
client’s status inquiries and failing to
cooperate with the bar’s investigation.
WILLIAM S. DE MARINI [#149459], 49, of
Sacramento was suspended for two years, stayed, and actually
suspended for two years and until the State Bar Court grants a motion
to terminate and he proves his rehabilitation. He also was ordered to
take the MPRE and comply with rule 955. The order took effect Aug. 17,
2001.
In a default proceeding involving four
consolidated cases, the bar court found De Marini failed to perform
legal services competently, committed acts of dishonesty, commingled
funds and failed to communicate, return client files or maintain
current address records with the bar.
In a 1999 paternity, custody and child-support
matter, a client paid De Marini $1,500 in advance fees. He then failed
to respond to opposing counsel, and despite 45 voice messages left by
the client and several visits to his office over a four-month period,
he did not communicate with her. He did not respond to a request to
return her file and performed no more work.
Clients De Marini represented in October 1997 and
April 1998 marital dissolution matters experienced similar problems.
In one case, he signed the client’s name to a document filed in the
court.
In the final case, De Marini commingled more than
$35,000 in his client trust account, making deposits and issuing
checks for personal and business expenses.
Aggravating factors included multiple acts of
wrongdoing, dishonesty, overreaching, causing harm to clients,
indifference and failure to participate in the disciplinary matter.
In mitigation, De Marini practiced for nine years
without discipline.
JOHN HENRY EDWARDS III [#52343], 57, of Los
Angeles was suspended for three years, stayed, placed on probation
for three years with a one-year actual suspension and was ordered to
take the MPRE within one year and comply with rule 955. The order took
effect Aug. 17, 2001.
Edwards stipulated he failed to preserve client
funds in a trust account or promptly pay out client funds and wilfully
disregarded federal bankruptcy law.
In 1999, he removed as fees $5,000 of a woman’s
personal injury judgment instead of surrendering the funds to a
bankruptcy trustee as required. He had been notified and reminded four
times that any money received as a result of the personal injury case
was the property of the bankruptcy estate.
Edwards maintained the remaining portion of the
judgment — $2,154 — in his trust account, but failed to respond to
a default judgment ordering him to turn over the funds. After a
hearing five months later, Edwards issued a certified check for the
entire judgment — $7,154 — to the bankruptcy trustee.
Edwards has a prior record of discipline
involving client trust. In 1991, he was suspended for moral turpitude,
failing to preserve funds in a client trust account, communicate with
clients, cooperate with the bar’s investigation and committing an
act of moral turpitude.
In mitigation, Edwards represented his client for
many years on a contingency fee basis, expending considerable time on
her matter. He took his fee from the personal injury judgment,
believing that the work he did on the case could be exempted from the
bankruptcy estate. Although forced by the courts, he did ultimately
turn the judgment over to the court. At the time the bar court ruled
on Edwards’ discipline, the exemption issue had not been decided.
Edwards lives with his 83-year-old mother and as
of June 2000, became temporarily responsible for his daughter’s two
youngest children. He also is pastor of the Church of Greater Works of
Los Angeles, which ministers to the homeless and for which he receives
no income.
MARK ROBERT MOORE [#74804], 50, of Solana
Beach was suspended for one year, stayed, placed on probation for
18 months with a 30-day actual suspension, and was ordered to pay
restitution and take the MPRE. The order took effect Aug. 19, 2001.
Moore stipulated to performing incompetently when
he failed to represent a client before the IRS and the Hawaii
Department of Taxation. He took on the case, in which the IRS believed
a client’s family trust was a sham, and took $5,000 in advance fees.
But he failed to provide any representation or obtain power of
attorney.
The client received several IRS letters stating
the family was being assessed more than $30,000 in taxes and
penalties. Moore drafted a letter to the Hawaii tax department but did
not send it; the client sent it instead. When the client drafted a
letter to the IRS and asked Moore to review it, Moore told the client
to send the letter himself.
From June to November 1999, the client wrote and
called Moore several times with information, but the attorney failed
to respond to inquiries. At one point, he told the client everything
was under control, although the client continued to receive
correspondence from the IRS. When the client terminated Moore’s
employment, he failed to promptly return documents and all unearned
fees.
In mitigation, Moore has no record of prior
discipline.
NEIL KAUFFMAN [#81008], 52, of Chicago was
suspended for two years, stayed, placed on probation for two years
with a one-year actual suspension and was ordered to take the MPRE
within one year and to comply with rule 955. The order took effect
Aug. 17, 2001.
Kauffman has no record of discipline in
California, but he was disciplined in Illinois in 1995. He sought
review of discipline imposed on him by the California bar that
corresponds with the Illinois punishment but his matter was delayed by
several years.
The review department denied his request that the
California discipline be retroactive, but reduced the hearing
judge’s recommendation of an 18-month actual suspension to one year.
Because Kauffman completed the terms of his
Illinois discipline long ago, he argued that suspending him in
California would effectively punish him twice for the same misconduct.
He also noted he did not practice in California
during the Illinois suspension, promptly reported the discipline,
endured the bar’s delays and will have an increased malpractice
insurance premium.
At trial, the bar conceded the delay had
occurred, but argued it was without prejudice. The hearing judge
decided the actual suspension should not be retroactive.
Kauffman’s misconduct involved three cases. In
a 1984 client matter arising from an automobile accident, he settled
the case without authority, forged the client’s signature on
settlement papers, commingled settlement funds with personal funds and
misappropriated the client’s $1,500 share of the settlement.
The same year, he commingled another client’s
funds with office funds and misappropriated them. It was also found
that between June and November 1988, Kauffman deposited funds
belonging to 78 clients in his office account.
EDWARD H. HOROWITZ [#135566], 49, of Riverside
was suspended for one year, stayed, and placed on probation for two
years. The order took effect Aug. 17, 2001.
Horowitz stipulated to failing to pay court
sanctions and performing incompetently.
In one matter, he represented himself in a 1995
civil action. He was sanctioned $1,320, to be paid within 20 days,
based on allegations he caused a wrongful default judgment to be
entered against the defendant.
In a second case, he substituted in to a felony
case, replacing a public defender. But neither he nor his client
appeared at a November 2000 settlement conference. The hearing was
continued and a bench warrant was issued. He and his client appeared
at the next hearing and the judge granted their request to continue
the matter again. But then the two missed the continued hearing. A
second bench warrant was issued, and Horowitz and his client again
failed to appear. Horowitz did not contact the court.
He did not contact the client again until
February 2001. In January, the client appeared without Horowitz and a
public defender was appointed to represent her.
As part of his probation, Horowitz agreed to pay
off the sanctions at $20 per month. He was not required to take the
MPRE since he was ordered to pass the exam as part of an earlier
discipline.
His prior record includes a 1994 public reproval
for failing to report and pay sanctions. In 1997, he was suspended for
90 days after stipulating to failing to comply with conditions of the
public reproval.
In mitigation, Horowitz was suffering from severe
financial stress at the time of the misconduct.
JOHN OWEN MEYERS III [#57799], 54, of Irvine
was suspended for three years, stayed, placed on probation for three
years with a 20-month actual suspension, and was ordered to take the
MPRE, comply with rule 955 and prove his rehabilitation. The order
took effect Aug. 17, 2001.
Meyers stipulated to misconduct in three cases.
In a 1998 matter, he repeatedly issued checks drawn from a client’s
trust account when he should have known funds were insufficient.
In a 1994 case, he took legal fees for himself
and disbursed fees to the law firm which originally handled the case
when it settled for $25,000. He should have kept a balance of $16,666
in his client trust account on behalf of the client.
Instead, he let the balance fall below the
required amount over the next two years, expecting the law firm which
originally handled the case to inform him when disbursements needed to
be made. He did not return repeated phone calls from the client. After
she complained to the State Bar, Meyers paid her the $16,666 plus
$1,750 in interest. He stipulated that he misappropriated client
funds, an act of moral turpitude.
In 1997, he failed to promptly pay a lien due a
medical provider on behalf of a client, failed to maintain a proper
balance in the client trust account and misappropriated $2,826 of the
client’s settlement funds, also an act of moral turpitude.
Meyers has a record of discipline. He was
privately reproved in 1997 for misconduct in three client matters,
including performing incompetently, withdrawing from employment
without taking steps to avoid prejudice to the client and failing to
communicate with a client.
Other aggravating factors included trust
violations, causing harm to clients and showing a pattern of
misconduct.
In mitigation, Meyers cooperated with the
investigation, showed remorse and paid restitution.
JOHN RAYMOND DEMPSEY [#102658], 46, of
Fountain Valley was suspended for two years, stayed, and actually
suspended for nine months and until he completes ethics school and the
bar court grants a motion to terminate the suspension. He also was
ordered to comply with rule 955. If the actual suspension exceeds two
years, he must prove his rehabilitation. The order took effect Aug.
19, 2001.
Dempsey did not participate in the recent
proceedings. He failed to comply with the terms of a probation imposed
in 1997 by not filing four quarterly reports or attending ethics
school.
Dempsey’s misconduct involved his negligence in
paying child support for 10 months. He failed to request the court to
modify his child support order and in July 1996, he was charged with
one count of violating Penal Code §166(4), contempt, for failing to
provide child support as ordered by the court.
Later that month, he fulfilled his child support
obligations. In August 1996, he pleaded guilty to violating Penal Code
§270, failure to provide, and the contempt charge was dismissed. He
was sentenced to three years’ probation, a $100 fine and 16 days of
community service with CalTrans.
In the current case, aggravating factors include
Dempsey’s disciplinary record, pattern of misconduct and failure to
participate in proceedings.
In mitigation, Dempsey filed three reports on
time before mislabeling a report as “final.” There was a nearly
11-month delay by the State Bar in advising Dempsey about the
mislabeling. The court noted that had Dempsey known the report was not
final, he “might have continued to file the reports as required.”
PATRICIA L. REBER [#84460], 61, of Los Angeles
was suspended for one year, stayed, and actually suspended for six
months and until she pays $1,000 in restitution and the bar court
grants a motion to terminate. If the actual suspension exceeds two
years, she must prove her rehabilitation. She also was ordered to take
the MPRE and comply with rule 955. The order took effect Aug. 19,
2001.
In a default proceeding, the bar court found that
Reber intentionally failed to perform legal services, respond to
client inquiries, provide an accounting of fees or refund fees and
that she charged an illegal fee.
Reber was court-appointed counsel representing an
indigent client in her appeal from a 1995 burglary conviction. The
client was incarcerated at the time.
Reber was appointed through the Sixth District
Appellate Program (SDAP) and was not entitled to payment by the
client. To receive state compensation, the court-appointed attorney
must submit a written fee claim to the state.
Reber filed the appeal and advised the client
that a petition for writ of habeas corpus should also be filed; she
also asked the client twice for advance payment to pursue the writ.
The client paid Reber a total of $1,000 in legal fees to pursue the
habeas corpus petition.
Meanwhile, a petition for review was still
pending, and it was denied in February 1998. Reber did not inform the
client of the denial. The client’s brother learned about it after
contacting Reber in March 1999, and soon after the client requested a
copy of the ruling. Reber did not provide it.
The client also asked for the status of the
habeas corpus petition and for an accounting of the legal fees paid.
Reber did not respond.
Because the client was not informed that the
petition for review was denied, she forfeited her right to seek a
rehearing and to seek federal relief. Because the petition for writ of
habeas corpus was never filed, she lost her right to further state
appeals.
Reber never returned the client’s fees.
In aggravation, she committed multiple acts of
wrongdoing, and her conduct was surrounded by bad faith and
overreaching since the client was indigent and incarcerated at the
time. The misconduct significantly harmed the client.
In mitigation, Reber had no prior record of
discipline in 18 years of practice. |
