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October 2018

By Ben Armistead | Oct. 1, 2018

Discipline Report,
Discipline

Oct. 1, 2018

October 2018

Recent attorney disbarments, suspensions, probations, and public reprovals in California.

DISBARMENT

George Rafael Angulo

State Bar #195700, Los Angeles (August 15, 2018)

Angulo was disbarred by default after a proceeding consolidating three disciplinary cases against him. He did not appear at the scheduled trials, nor did he move to have the default orders entered set aside or vacated.

Two cases, initially consolidated, involved alcohol-related driving offenses. In that proceeding, he was convicted of driving under the influence of alcohol with a prior felony conviction for driving under the influence (Cal. Veh. Code §23550.5(a)) after being found asleep at the wheel waiting in the entrance lane to a park; and of driving with a .08 percent or more blood alcohol content, causing injury (Cal. Veh. Code §23153.5(b)) after driving through a stop sign and colliding with a police car. The State Bar Court judge found that the facts and circumstances surrounding the offenses, both felonies, did not involve moral turpitude but constituted other misconduct warranting professional discipline.

In the second matter, which was originally separate, Angulo was charged with two counts of failing to comply with court orders by not filing declarations of compliance as mandated earlier (Cal. Rules of Ct., Rule 9.20). Two disciplinary matters were pending against him when that matter was processed.

Kathleen Margaret FitzGerald

State Bar #145252, Orange (August 29, 2018)

FitzGerald was disbarred after she stipulated to committing five acts of professional misconduct related to a single matter. Her wrongdoing included: failing to perform legal services with competence, failing to respond to the clients’ reasonable inquiries about the status of the case, accepting compensation for representation from a nonclient without the clients’ informed written consent, failing to promptly return unearned advanced fees, and failing to hold the clients’ funds in a trust account.

FitzGerald was hired by a married couple to prepare and file a step-parent adoption so the wife could adopt the husband’s biological son. She accepted a check for $3,220 from the husband’s mother—taking $2,500 as compensation and earmarking $720 for advance court filing fees. Neither of the clients gave prior written consent to the payment arrangement.

For approximately five weeks, FitzGerald counseled the husband in completing the forms, but filed no adoption petition or write a check to the court for filing fees. She then failed to respond to any of the client’s inquiries for nearly eight months, when the attorney-client relationship was terminated.

FitzGerald had four prior records of discipline.

David Allen Hughes

State Bar #201264, Vacaville (August 29, 2018)

Hughes was disbarred by default after failing to file a response to the Notice of Disciplinary Charges filed against him. He was found culpable of two counts of professional misconduct: failing to promptly refund unearned advanced fees to clients upon terminating his employment and failing to notify the State Bar of his change of address within 30 days of moving.

Hughes had one prior record of discipline.

Shell Kaminsky

State Bar #284216, Brentwood (August 22, 2018)

Kaminsky was summarily disbarred after the State Bar received evidence that her conviction of second degree burglary (Cal. Penal Code §459) had become final. The offense is a felony involving moral turpitude per se.

Peter D. King

State Bar #282249, Livermore (August 22, 2018)

King was summarily disbarred following the State Bar’s receipt of evidence his conviction had become final. He earlier pled nolo contendere to second degree burglary (Cal. Penal Code §459), a felony involving moral turpitude per se.

James Edward Kroetch

State Bar #95434, Orinda (August 22, 2018)

Kroetch was disbarred following his conviction of possessing and controlling child pornography (Cal. Penal Code §311.11(a)), a crime involving moral turpitude.

In the underlying matter, he came to the attention of a task force investigating internet crimes against children working with the local police department in conducting internet sweeps. Using a software program automating the browsing and downloading of suspected child pornography, the task force monitored Kroetch’s IP address for just over five weeks. The task force determined files defined as child pornography were being downloaded and shared from that address. It secured search warrants for the internet service provider and for Kroetch’s home—ultimately seizing computers, external drives, and thumb drives containing more than 9,000 images of child pornography and more than 3,000 images in his possession.

In addition, the investigating laboratory determined that Kroetch had modified several images, inserting himself into photos depicting sexual acts with children—most of whom ranged in age from 1 to 12. It also determined he used peer-to-peer networks to share and disseminate the pornographic material.

In aggravation, Kroetch committed multiple acts of wrongdoing—possessing thousands of images of child pornography and sharing them for several years—and the children, his victims, were highly vulnerable. He also showed indifference to rectifying his misconduct, claiming that his actions were “only digital,” performed in the confines of his own room, and did not affect his ability to practice law. He was also allotted aggravating weight for his lack of candor with the State Bar; he had claimed at trial that the child pornography seized from his home belonged to his brother, who had moved out the day before the home was searched and subsequently died.

In mitigation, Kroetch had practiced law for more than 32 years without a record of discipline.

Elizabeth Ann Mello

State Bar #244401, Coyote (August 29, 2018)

Mello was disbarred by default after she failed to appear at her disciplinary proceeding despite receiving adequate legal notice. She was found culpable of the single count with which she was charged: failing to comply with the terms of an earlier disciplinary order requiring her to file three quarterly written reports to the Office of Probation.

She had been disciplined by the State Bar twice before for professional misconduct.

Ronny Mor

State Bar #248274, Newport Beach (August 29, 2018)

Mor was disbarred by default after he failed to appear at the trial charging him with failing to comply with the court rule requiring him to file an affidavit of compliance as mandated in an earlier disciplinary order. (Cal. Rules of Ct., Rule 9.20).

The State Bar Court judge determined that he had participated in a status conference and filed an initial answer in the case, and also had sufficient legal notice of the trial date. Mor did not move to have the default order entered against him set aside or vacated.

He had been disciplined by the State Bar on three prior occasions.

Michael Whitcomb Sganga

State Bar #227179, Redwood City (August 22, 2018)

Sganga was disbarred after the Office of Chief Trial Counsel of the State Bar appealed the hearing judge’s recommendation of a 60-day actual suspension. He had earlier stipulated to committing four acts of professional misconduct: commingling personal funds with client trust account funds, failing to maintain client funds in his client trust account, failing to obey a court order, and misappropriating client funds—an act involving moral turpitude.

In the underlying matter, Sganga was hired to represent clients in an investment dispute, eventually recovering $725,000 in a structured settlement. Before the first payment was made, the clients disputed Sganga’s fee, rendering him unable to take any portion of the settlement until the fee dispute was resolved. They also told him not to withdraw funds in the interim. However, he made multiple withdrawals from the account for his own personal use while paying the clients nothing—ultimately misappropriating $61,500 of their funds.

Nearly a year after the case was settled, Sganga received a final payment of $380,000 on his clients’ behalf, but did not disburse it to their new counsel for six months—and then did so with an instruction that the new counsel should not disburse the check until they fulfilled their promise to inform the State Bar they were withdrawing their claim against him. While the condition was in the written settlement agreement, neither the hearing judge below nor State Bar Court panel on appeal found evidence that Sganga sought to include it.

In aggravation, Sganga committed multiple acts of wrongdoing and engaged in overreaching by refusing to disburse the final settlement amount by at least tacitly accepting the illegal condition that the clients drop the disciplinary action against him. The panel on appeal also found he significantly harmed the clients by depriving them of funds due them for approximately 17 months.

In mitigation, he was assigned minimal weight for having practiced law for 10 years without a record of discipline, cooperated with the State Bar by stipulating on facts and culpability, presented seven witnesses who testified to his good character, and was given moderate weight for evidence of pro bono and community service—most of which predated his misconduct by several years and none of which was corroborated.

The panel on appeal disagreed with the hearing judge’s findings of additional mitigating weight for Sganga’s alleged good faith belief he was entitled to pay himself from the settlement funds and for expressing remorse—which occurred years after the misconduct. It also allotted no weight for suffering emotional and physical problems as Sganga failed to prove they had a nexus to his wrongdoing, nor did he prove he suffered from those problems during the entire time of his misconduct.

Derek William St. Pierre

State Bar #200131, San Francisco (August 29, 2018)

St. Pierre was disbarred by default following his failure to respond to the Notice of Disciplinary Charges or to participate in his disciplinary proceeding after receiving legally adequate notice and opportunity.

He was found culpable of all 14 counts of professional misconduct with which he was charged. The wrongdoing included: withdrawing from employment improperly, failing to release a client’s papers and property after being requested to do so, failing to return unearned advanced fees to a client, and failing to notify the State Bar of his change of address within 30 days of moving; three counts each of failing to perform legal services with competence and failing to respond to reasonable client inquiries; and four counts of failing to respond to the State Bar’s investigations of the misconduct alleged.

St. Pierre had one previous record of discipline.

Alexander Warren Tucker

State Bar #202794, El Cajon (August 29, 2018)

Tucker was disbarred by default after he failed to participate, either in person or through counsel, in his disciplinary proceeding despite receiving adequate legal notice. He did not move to have the resulting default order set aside or vacated, and was found culpable of failing to comply with probation conditions imposed in an earlier disciplinary order.

Specifically, he failed to schedule an initial meeting with his probation deputy and failed to file seven written quarterly reports.

Tucker had been disciplined by the State Bar twice previously.

SUSPENSION

Benjamin Aguilar

State Bar #283170, San Diego (August 22, 2018)

Aguilar was suspended from practicing law for 90 days and placed on probation for two years after he stipulated to four acts of professional misconduct related to a single client matter. His wrongdoing included failing to keep a client informed of significant case developments and seeking to mislead the judge and opposing counsel by submitting a document with a forged signature, and two counts involving moral turpitude in misrepresenting facts to his client and filing a forged document on the client’s behalf.

Aguilar was hired to represent the husband in a dissolution of marriage. In response to a court request, he filed an Income and Expense Declaration, though it failed to include rental income the client collected. In a subsequent hearing, the court ordered the client to pay $1,500 in sanctions for failing to file forthright income information. However, Aguilar later misrepresented to his client that the $1,500 was earmarked for the wife’s legal fees and costs.

In a subsequent proceeding to modify the child and spousal support due to the changed circumstance that the client lost his job, Aguilar filed an additional Income and Expense Declaration, substantially similar to the previous one. The document was purportedly signed by the client, but Aguilar had cut and pasted a copy of the client’s electronic signature from another document. The client was unaware of the fabrication. The court declined to modify spousal support, again based partially on the client’s failure to provide accurate income information.

In aggravation, Aguilar committed multiple acts of wrongdoing and significantly harmed the client’s credibility and the administration of justice by falsifying legal documents.

In mitigation, he entered into a prefiling stipulation, submitted six letters from a range of individuals attesting to his good character, and presented evidence of substantial civic service and charitable work. The State Bar Court judge also declared Aguilar should receive “little to no mitigation” for attending the State Bar’s Ethics School, as he enrolled only after investigation of his alleged misconduct had commenced.

Leslie Victor Amponsah

State Bar #164434, Beverly Hills (August 27, 2018)

Amponsah was suspended from practicing law pending his passage of the Multistate Professional Responsibility Exam (MPRE) as mandated by the California Supreme Court in an earlier disciplinary order.

The State Bar Court judge also denied Amponsah’s motion to extend time to take the MPRE, finding he failed to show good cause to support his request. The judge also denied his motion to extend time to file a compliant 9.20 declaration as untimely, occurring after the court had already ordered the recommended discipline for failing to comply.

George Fredrick Braun

State Bar #141952, Washington, DC (August 29, 2018)

Braun was suspended from the practice of law for 60 days and placed on probation for two years after he stipulated to two acts of professional misconduct: practicing law in a jurisdiction in which he was not licensed—an act involving moral turpitude, and failing to report the discipline ordered in that jurisdiction to the California State Bar.

Braun, who was not licensed to practice law in Virginia, approached a lawyer and police officer outside a courtroom there, holding himself out as representing a defendant charged with public drunkenness. He negotiated a plea agreement with the attorney, and entered an appearance on the record in court later that day. When the Virginia attorney discovered Braun was not licensed there, he reported it to the judge and filed a police report. The Virginia State Bar subsequently issued a public reprimand based on the misconduct; Braun did not report the Virginia discipline order to the State Bar of California as required.

The California State Bar Court judge found, as a matter of law, that the culpability determined in Virginia also warranted professional discipline in California—and that the proceeding in the other jurisdiction provided the requisite fundamental constitutional protection.

In aggravation, Braun committed multiple acts of misconduct and significantly harmed the administration of justice.

In mitigation, he entered into a pretrial stipulation, had practiced law in California for nearly 24 years without a record of discipline, and submitted nine references from a broad range of professional backgrounds—all attesting to his good character.

Thomas Mark Burton

State Bar #35856, Salt Lake City, Utah (August 29, 2018)

Burton was suspended from practicing law for 30 days and placed on probation for one year after he stipulated to committing three acts of professional misconduct related to a single client case—all of them failures to obey court orders.

Burton represented a client in a matter slated for a jury trial. After he failed to appear at the trial, the court filed a misdemeanor charge against him and scheduled an Order to Show Cause hearing, requiring that he appear personally. Burton did not appear, but fax-filed a request for a continuance, which was denied, and he was then sanctioned $1,500; he did not pay the judicial sanction.

In aggravation, Burton committed multiple acts of wrongdoing and had a prior record of discipline.

In mitigation, he entered into a pretrial stipulation, acknowledging his misconduct, saving the State Bar significant resources and time. He was also allotted nominal mitigation credit for his good character as attested to by four witnesses—none of whom demonstrated an awareness of the full extent of his misconduct.

Joseph Patrick Collins

State Bar #163442, Pacific Palisades (August 29, 2018)

Collins was suspended from the practice of law for 30 days and placed on probation for two years following an appeal by the Office of Chief Trial Counsel of the State Bar, which had originally charged him with five counts of failing to obey civil court sanctions orders.

Following a trial, the hearing judge sua sponte dismissed the case, finding all the sanctions orders were void or voidable. The panel on appeal independently reviewed the record and reversed the hearing judge, finding Collins culpable of all five violations.

The parties below had stipulated that Collins was served with all five sanctions motions and orders, named in the orders with his client, and jointly and severally liable for the debt. The hearing judge, however, disregarded the stipulation, noting that the motions named only Collins’s client, while the sanctions orders named both him and his client. She concluded that the orders were void or voidable as they failed to name Collins personally.

In the underlying matter, Collins represented a client in a breach of contract matter. The court granted five separate discovery motions seeking to compel the client to produce various documents and information; each motion was accompanied by a request for sanctions. The court ultimately ordered monetary sanctions of $6,300. The sanctions were not paid and the sought-after discovery responses were not provided, and the court entered a default order.

At trial, Collins testified that the decision not to comply with the discovery requests was driven by the client, who wished to lessen litigation expenses by letting the case terminate by default.

The State Bar Court panel on appeal found that Collins knew of the orders and had ample time and opportunity to contest their validity, but failed to do so. The panel also took issue with the hearing judge’s failure to abide by the stipulated facts, which established that Collins was individually obligated to pay the sanctions. It underscored: “The hearing judge’s collateral attack on the orders and her finding that they are void or voidable during this proceeding were beyond her authority.”

James Drew DeOlden

State Bar #200878, Newport Beach (August 29, 2018)

DeOlden was suspended from practicing law for one year and placed on probation for three years following his termination from the State Bar’s Alternative Discipline Program (ADP).

Prior to being accepted into the ADP, DeOlden had amassed several convictions over a four-year period: five alcohol-related driving convictions and two for driving on a suspended license, and a hit and run with property damage, evading a peace officer and domestic violence battery and child abuse occasioned while he was intoxicated and in an altercation with his wife in front of their two children. The convictions occurred in four separate cases, which the State Bar consolidated.

In aggravation, DeOlden committed multiple acts of wrongdoing, caused significant harm to the public—including his wife and children and the owner of the vehicle he damaged, and demonstrated an indifference toward atoning for the consequences of his actions, as he was on probation from a prior conviction when three incidents occurred.

Nathan Whitney Drage

State Bar #130448, Salt Lake City, Utah (August 20, 2018)

Drage was suspended in the interim pending final disposition of his convictions of one count of a felony involving moral turpitude: conspiring to impair and impede the Internal Revenue Service (18 U.S.C. §371) and three counts of failing to file corporate tax returns—misdemeanors that may or may not involve moral turpitude.

Bradley Harlan Field

State Bar #180352, Malibu (August 27, 2018)

Field was suspended in the interim pending final disposition of his conviction of possessing child pornography (Cal. Penal Code §311.11(a) and (c)(1)). The offense is a felony involving moral turpitude.

Brian Kemp Hilliard

State Bar #244193, San Ramon (August 22, 2018)

Hilliard was suspended from the practice of law for 90 days and placed on probation for three years. That discipline was recommended after he stipulated to committing six acts of professional misconduct related to two client matters. The wrongdoing included: failing to perform legal services with competence, failing to inform a client of significant case developments, failing to refund unearned advanced fees to a client, and seeking to mislead a judge or judicial officer besides two counts of willfully disobeying court orders.

In one case, Hilliard represented two clients in a race discrimination case against a municipality. Pleadings and orders were sent to his email address in the federal court’s Electronic Case Filing system. After he failed to file an opposition to the defendants’ motion to dismiss, the court eventually issued an Order to Show Cause (OSC) and warned that the case would be dismissed if he failed to respond. At that juncture, Hilliard falsely claimed he had not received notification of the filing.

He ignored several subsequent orders and motions, including a court order he and the clients appear at an OSC hearing. The action was dismissed with prejudice for failure to prosecute and a judgment was entered in favor of the defendants. In his final action, Hilliard filed a motion for reconsideration, again falsely stating that he had not received notifications of filings. Finding his claims lacked credibility, the court denied the request, and Hilliard refunded the clients the unearned fees.

In the second matter, Hilliard ignored several court orders to appear and pay sanctions in a case in which he represented plaintiffs suing a bank.

In aggravation, Hilliard committed multiple acts of misconduct and caused significant harm to his client and to the administration of justice.

In mitigation, he entered into a pretrial stipulation acknowledging his misconduct, had practiced law for approximately 10 years without a record of discipline, submitted 10 letters from individuals in the legal and general communities who attested to his good character, and suffered from extreme emotional difficulties related to divorce proceedings when the misconduct occurred.

Michael Joel Kelly

State Bar #105880, Acton (August 22, 2018)

Kelly was suspended from practicing law for 90 days and placed on probation for three years after he stipulated to violating several conditions imposed in an earlier probation order. Specifically, he failed to timely schedule an initial meeting with his assigned probation officer and failed to timely submit eight written quarterly reports to the Office of Probation and a final written report.

In mitigation, Kelly entered into a pretrial stipulation, saving the State Bar substantial time and resources.

In aggravation, he committed multiple acts of misconduct and had a prior record of discipline.

Robert Norik Kitay

State Bar #229966, Carmichael (August 29, 2018)

Kitay was suspended from the practice of law for 18 months and placed on probation for two years following an appeal by the Office of Chief Trial Counsel of the State Bar (OCTC). The hearing judge below had recommended an actual suspension of 18 months. On appeal, the OCTC did not challenge the judge’s findings of culpability, but requested that the aggravation and mitigation factors be reweighed and that the suspension recommendation increased to two years.

In the trial below, Kitay was found culpable of 10 counts of professional misconduct in five client cases. The wrongdoing included: commingling personal funds in his client trust account, failing to report to the State Bar that three or more malpractice suits were filed against him in a 12-month period, failing to report to the State Bar that court-ordered sanctions were issued against him, disobeying a court order by failing to pay sanctions, failing to file a declaration of compliance as ordered (Cal. Rules of Ct., Rule 9.20), and two counts of making misrepresentations—one to the State Bar during its investigation and the other in an affidavit—both of which involved moral turpitude, and three counts of holding himself out as entitled to practice and actually practicing law while suspended.

The hearing judge allotted aggravation weight to Kitay’s prior record of discipline and multiple acts of misconduct. She gave mitigating weight to his remorse and recognition of wrongdoing, his good faith belief he was not violating any legal strictures in some of his misconduct, and for the emotional difficulties he suffered due to his father’s illness and death.

In its independent review on appeal, the State Bar Court panel affirmed most of the findings of culpability. However, it found that Kitay was not culpable of failing to timely file his Rule 9.20 declaration. It noted he had submitted it before the deadline, though the Office of Probation initially rejected it because it was undated. It still found him culpable of the Rule 9.20 violation, however, because he sent notice of his suspension to co-counsel, opposing counsel, and adverse parties by regular first class mail rather than by registered or certified mail as required.

The panel also found that two counts alleging Kitay held himself out to practice while suspended by using his law firm address when corresponding to clients were duplicative. It did not afford the misconduct additional weight — reciting the precedent holding that “little, if any, purpose is served by duplicative allegations of misconduct” in State Bar proceedings.

In reviewing the aggravating and mitigating factors, the panel noted that the hearing judge failed to assign weight to some. It found that his prior record of discipline should be given significant weight because the current misconduct was similar to that committed previously and also occurred while he was on probation for the prior discipline, It also assigned significant weight to the multiple acts of wrongdoing, which totaled 10 counts of varied professional misconduct.

It assigned moderate mitigation weight to Kitay’s assertion he had a good faith belief he had complied with Rule 9.20, but rejected the other claims of good faith as “objectively unreasonable.” And finally, the panel reduced the weight accorded Kitay for extreme emotional difficulties from significant to moderate, as he provided no expert testimony to establish the personal stress he suffered was directly responsible for his misconduct.

Considering the serious acts of misconduct and weighing the significant aggravation and moderate mitigation besides relevant case law, the panel affirmed the recommendation of an 18-month actual suspension.

James Hsiaosheng Li

State Bar #176662, Buena Park (August 29, 2018)

Li was suspended from the practice of law for one year and placed on probation for three years following his appeal of the order below, which recommended disbarment. He was found culpable of two counts of failing to comply with the notification and reporting duties required of a suspended attorney imposed in an earlier disciplinary case (Cal. Rules of Ct., Rule 9.20).

In aggravation, Li committed multiple acts of wrongdoing and had a prior record of discipline. He was allotted minimal mitigating weight for a partial stipulation he filed that contained easily provable facts that did not establish culpability and also for emotional difficulties occasioned by his elderly mother’s illness.

Li was involved in two civil cases when his last disciplinary order was issued—a judicial and a declaratory relief action; his client in both cases was his sister. He did not inform her of his suspended status by certified or register mail as required, nor did he notify opposing counsel involved in one case. In both cases, he filed late notices of his suspension with the superior court.

On appeal, the State Bar Court panel affirmed the hearing judge’s findings of culpability, but not the recommendation of disbarment. It noted that Li had made two good faith attempts to comply in his filing to the State Bar Court. In the first, filed on its due date, his probation supervising attorney pointed out several deficiencies in the four-page supplemental declaration he submitted and deemed his compliance declaration was defective because he did not mark all the boxes on the court-approved form. However, his supplemental declaration explained why the checkboxes did not apply to his situation; a procedure that is allowed. In the second compliance declaration Li filed, he checked all appropriate boxes, but indicated that the notification tasks were completed about three weeks after the deadline. That declaration was deemed untimely.

In its independent review of the aggravating and mitigating evidence and the weight given it, the panel on review disagreed with the mitigating weight allowed for Li’s emotional difficulties—noting that the only evidence he presented was a medical record with the name redacted and no evidence of a nexus with his misconduct or proof he no longer suffers from the difficulties alleged. It found an additional mitigating factor the hearing judge had not found: lack of harm to the client, public, or administration of justice—and assigned that modest weight.

Finally, the panel noted that because Li had already served more than one year on inactive enrollment, there would be no prospective period of actual suspension in the instant case.

Glenn Kazuo Nakawaki

State Bar #118064, Ontario (August 15, 2018)

Nakawaki was suspended from practicing law for one year and placed on probation for three years. He had stipulated to committing one count of professional misconduct: failing to comply with a court order by not filing a compliant affidavit of compliance as imposed in an earlier disciplinary order (Cal. Rules of Ct., Rule 9.20). The declaration he had filed included a handwritten notation acknowledging that he had one client waiting for a settlement offer while he was suspended from practice; the Office of Probation rejected the declaration as noncompliant.

In aggravation, Nakawaki had a prior record of discipline.

In mitigation, he entered into a pretrial stipulation acknowledging his misconduct, demonstrated remorse and promptly provided the State Bar with requested information, and provided letters from 10 individuals taken from the legal and general communities—all of whom attested to his good character and five of whom identified his pro bono legal work and volunteer community service.

John Fredrick Norris

State Bar #159001, West Covina (August 29, 2018)

Norris was suspended from practicing law for 30 days and placed on probation for one year after an appeal of the hearing judge’s disciplinary recommendation. He was found culpable of one count of commingling his personal funds with those in his client trust account.

Norris, admitted to practice law in California in 1992, had not practiced since 2014, when he became primary caretaker for his wife who was diagnosed with a rare debilitating disease and ultimately died from it. However, he continued to maintain a client trust account at a bank. He stipulated that during a six-month period in 2016, he deposited his own funds into the account and paid 12 specific personal expenses from the account.

On appeal, Norris argued he cannot be guilty of commingling because there were no client funds in the account. While the State Bar Court acknowledged that the term “commingling” is not defined in any of the controlling Rules of Professional Misconduct, it cited precedent stating that depositing personal funds into a client trust account and paying personal expenses from it constituted commingling, even when there were no client funds in that account (In the Matter of Doran, 3 Cal. State Bar Ct. Rptr. 871 (1998)).

In aggravation, Norris committed multiple acts of wrongdoing.

In mitigation, he had actively practiced law for 21 years before the present misconduct occurred, harmed no client or the public or the administration of justice with his actions, suffered extreme emotional and financial difficulties related to his wife’s illness, showed candor and cooperation during the State Bar investigation, and showed no bad faith in his actions—which did not involve overreaching or misappropriation.

Patrick Arthur Sizemore

State Bar #62803, Santa Rosa (August 29, 2018)

Sizemore was suspended from the practice of law for 90 days and placed on probation for one year after he stipulated to committing four acts of professional misconduct related to a single client case. He was culpable of failing to return unearned advanced fees to a client, failing to respond to the client’s reasonable inquiries about the status of their case, failing to render an accounting of the client’s funds, and improperly withdrawing from employment.

Sizemore was hired to represent the trustee of a family trust. There was no written fee agreement, but the client had paid Sizemore $1,500 each year during the first two years of his representation. In response to his fee request the third year, the client wrote a check for $1,500, but inadvertently wrote out the words “fifteen thousand” on the payment line; the bank negotiated the check for $15,000.

The client requested a reimbursement of $13,500—and over the next four months, Sizemore made various promises of depositing the amount in the bank, writing a check, providing an accounting, and promising to mail a promissory note for the amount due. None were taken, and Sizemore then ceased communicating with the client, constructively abandoning him. The client eventually hired another attorney, who demanded an accounting and return of the client’s funds, but those requests were also ignored.

Finally, nearly 3 ½ years after the check had been negotiated, Sizemore paid the client restitution.

In aggravation, Sizemore committed multiple acts of misconduct.

In mitigation, he entered into a prefiling stipulation and had practiced law for more than 40 years without a record of discipline.

Brenda Elizabeth Vargas

State Bar #153230, Westminster (August 22, 2018)

Vargas was suspended from the practice of law for 30 days and placed on probation for two years after he stipulated to committing six acts of professional misconduct related to two client matters. The wrongdoing included failing to pay judicial sanctions imposed and report them to the State Bar, failing to provide the client with the requisite separate agreement before contracting to provide loan modification services, collecting legal fees in a loan modification case before fully performing all promised services, and collecting an illegal fee.

In one case, Vargas filed a petition for reconsideration in a worker’s compensation appeal. The applicant did not file to dismiss her attorney of record and Vargas filed no substitution of attorney despite being advised to do so by the administrative law judge. The Worker’s Compensation Appeals Board found that Vargas lacked standing as she did not represent the applicant and cited several legal errors in her petition, ultimately deeming it frivolous — and sanctioned her $1,500. She failed to report paid the sanctions to the State Bar as required and failed to pay them when due.

In the second matter, Vargas was hired to appeal a loan modification, and the client paid her $500 in fees. The process was not completed until nearly 20 months later. After the loan modification was completed, both the client and her representative requested the client file—and the representative eventually requested a refund of the fee. Vargas released the file six months after the initial request and refunded the fee approximately 19 months after that request.

In aggravation, Vargas committed multiple acts of wrongdoing and had been disciplined by the State Bar for professional misconduct twice before.

In mitigation, she entered into a pretrial stipulation, provided evidence from seven individuals willing to attest to her good character, and evidence of pro bono work she performed within the last five years, and showed remorse by paying the sanctions before the State Bar began its investigation.

PROBATION

David Thomson Egli

State Bar #93776, Riverside (August 22, 2018)

Egli was placed on probation for one year after he stipulated to committing two acts of professional misconduct related to a single client matter: failing to render an accounting of a client’s funds and failing to release all of the client’s papers and property despite her request to do so.

Egli was hired to represent a client in a dispute with a mortgage company; the two entered an oral agreement she would pay him $500 for those services, and she did so. Under a separate agreement, Egli also prepared her taxes for two years.

After more than a year had passed with no resolution of the mortgage company matter, the client informed Egli she wished to return to an attorney who had previously handled her legal matters. Despite repeated requests, Egli provided no accounting of the $500 paid for the mortgage matter, not did he return the related client file.

In aggravation, Egli had a prior record of discipline.

In mitigation, he entered into a pretrial stipulation, saving the State Bar time and resources.

Khashayar Eshraghi

State Bar #229557, Los Angeles (August 15, 2018)

Eshraghi was placed on probation for one year after he stipulated to willfully violating a Rule of Professional Conduct (R. Prof. Cond. Rule 1-110) by failing to attend the State Bar Ethics School as mandated in a disciplinary public reproval order.

In aggravation, Eshraghi had a prior record of discipline.

In mitigation, he entered into a pretrial stipulation, suffered from extreme financial difficulties beyond his control that contributed to his inability to comply with the order, and successfully completed the required schooling one year after the deadline date.

DeWitt Marcellus Lacy

State Bar #258789, Oakland (August 29, 2018)

Lacy was placed on probation for two years after a contested disciplinary proceeding in which he was charged with nine counts of professional misconduct. However, the State Bar Court judge found him culpable on only one of the charges: failing to perform legal services with competence. The judge found that the other eight charges had not been proven by clear and convincing evidence, and dismissed them all with prejudice.

The underlying matter related to confused and confusing litigation in which a superior court initially ordered sanctions against Lacy and his clients, plaintiffs in the case. He immediately appealed the sanctions order to the court of appeal. Approximately five months later, the defendants filed a notice of removal to the federal district court and notified the superior court of the removal, but not the court of appeal.

Both parties realized that the court of appeal had not been notified of the removal only after they received an order to show cause from that court, directing them to file letter briefs explaining whether and when the appeal had been removed.

The gravamen of the single count of professional misconduct that was not dismissed in the instant case concerns a subsequent sanctions order that the court of appeal issued. It was accompanied by an order requiring the appellants and respondent to provide the court with quarterly updates regarding the status of the removal.

Lacy, through his staff, filed status reports for his clients. The first and third reports were both filed well after their due dates; the third report was erroneously

filed by mail rather than electronically, and the court never received it.

In the instant disciplinary matter, the State Bar Court judge found that Lacy failed to supervise his support staff in the duties he delegated to them—and so was culpable of performing legal services competently.

In aggravation, Lacy had a prior record of discipline.

In mitigation, he entered into stipulations regarding facts and the admissibility of evidence and presented testimony and declarations from nine individuals attesting to his good character. The judge noted that the character witnesses—a federal magistrate judge and eight attorneys—did not fully represent a wide range from the general and legal communities, but concluded that the “impressive array of character witnesses still warrants significant weight in mitigation.”

David Raymond Mugridge

State Bar #123389, Fresno (August 29, 2018)

Mugridge was placed on probation for one year after he stipulated to committing two acts of professional misconduct related to a single client matter. His wrongdoing included breaching his fiduciary duty to zealously represent his client and failing to withdraw when continuing employment risked violating a Rule of Professional Misconduct.

Mugridge was appointed to represent a client charged with raping and with orally copulating a child 10 years old or younger, assaulting with intent to commit rape, and committing a lewd act on a child.

A jury convicted the client of the assault and lewd act charges, but a mistrial was declared on the other two counts, and a retrial was held on them. At the beginning of the retrial, Mugridge learned the prosecutor had withheld important evidence in the first trial—specifically, that the alleged victim had previously falsely accused another man of having sexual contact with her. At the second trial, the victim was impeached with evidence of that false accusation; the client was impeached with his prior convictions and the jury convicted him of the other two counts.

Mugridge then moved for a new trial in the first case because of the unlawfully held evidence. The trial court granted the motion for a new trial; the prosecution elected not to re-try the assault and lewd act charges, and the other two counts (with which the client had been impeached) were dismissed.

While sentencing in the second trial was still ending, Mugridge could have moved for a new trial since the defendant had been impeached with a conviction that had been overturned and dismissed. He did not do so, however, because he believed his client was guilty, nor he did attempt to withdraw as counsel.

The defendant was ultimately sentenced to terms of 15 and 25 years of imprisonment, to be served concurrently. New counsel appealed those convictions and the appellate court found Mugridge’s failure to move for a new trial amounted to ineffective assistance of counsel. In a final twist, the new counsel again appealed, and the appellate court found that using the prior conviction to impeach the defendant warranted a new trial.

When the discipline order was issued, the criminal matter was pending retrial after being remanded to the trial court.

In aggravation, Mugridge harmed his client and the administration of justice by causing unnecessary court proceedings and case delays.

In mitigation, he entered into a prefiling stipulation, had practiced law for approximately 25 years without a record of discipline, and provided letters from 14 individuals taken from a range in the general and legal communities—all of whom attested to his good character.

Mary Xinh Nguyen

State Bar #204461, Pasadena (August 22, 2018)

Nguyen was placed on probation for two years after she stipulated to holding herself out as entitled to practice law and practicing law when she was not entitled to do so. The misconduct occurred in a single client matter.

Nguyen was hired to represent a client pursuing a claim for property damages. A few months after being retained, she began to work primarily from home due to a chronic illness—visiting her office only occasionally and assigning a non-attorney employee to sort her mail and alert her about important matters. Among the mail received were notices from the State Bar concerning delinquent dues. She was not informed of the notices, nor of the fact she was eventually suspended for nonpayment.

While unknowingly suspended, Nguyen appeared at a mediation and at a case management conference in the property damages matter.

She later went to her office and found that her employee had quit without notice; she also found unopened mail from the State Bar. She then promptly paid her dues, was returned to active status, hired a new employee—and instituted a procedure in which all office mail is scanned and sent to her by email to review.

In mitigation, Nguyen entered into a pretrial stipulation and had practiced law for more than 16 years discipline-free. She was also allotted moderate mitigation for presenting evidence from five individuals — all of whom knew of her misconduct to some degree, and some mitigation for the physical difficulties suffered due to her illness despite the lack of expert testimony, and for evidence of some community service.

PUBLIC REPROVAL

Sandra Etue

State Bar #164725, Tarzana (August 28, 2018)

Etue was publicly reproved after she stipulated to committing three acts of professional misconduct related to a single client matter: charging legal fees and providing legal services to a client while on administratively inactive status, and holding herself out as entitled to practice when she was not—an act involving moral turpitude.

Etue was hired to represent a client in a dissolution proceeding. During the course of that representation, the State Bar placed her on inactive status for failure to submit a deficiency fee associated with her audit. Etue took several actions related to the dissolution matter: emailing the client documents and instructing him on legal procedures, and working with opposing counsel to modify the proposed judgment. After paying the deficiency and being reinstated by the State Bar, she sent the client an invoice for services she had performed while on inactive status, but later rescinded it.

In aggravation, Etue committed multiple acts of wrongdoing.

In mitigation, she entered into a prefiling stipulation, had practiced law for 23 years without a record of discipline, presented letters from five individuals attesting to her good character, and introduced evidence of volunteer community service.

Delia Marie Metoyer

State Bar #207251, Long Beach (August 16, 2018)

Metoyer was publicly reproved after she appealed the hearing judge’s recommendation of 30 days of actual suspension. She was found culpable of violating a court order and failing to report judicial sanctions.

In the underlying matter, Metoyer, a public defender, answered ready for trial in a felony matter alleging child molestation; a jury was impaneled. During an informal meeting in chambers to discuss preliminary matters in the case, she informed the judge she had scheduled an MRI the next day for recurrent back pain; the judge told her to reschedule the appointment. Metoyer became distraught, excused herself to a restroom in a back hallway and telephoned her supervisor, who advised her to return to the office. Metoyer did so, without returning to court.

The supervisor then called the judge in the case, who approved the time off the next day, but said Metoyer needed to return to court to place the matter on the record; she refused to do so—instead sending a text message apologizing to the client — and was then removed from all the cases to which she was assigned.

The judge dismissed the prospective jury, sanctioned Metoyer $1,500, and referred the matter to the State Bar.

Metoyer stipulated to her culpability in failing to report the sanctions to the State Bar, but on appeal, challenged the hearing judge’s finding she also improperly withdrew from employment by abandoning her client in the courtroom. She argued that she did not intend to withdraw from representation, and that the client was not prejudiced because another public defender was immediately assigned to the case. The State Bar Court panel agreed, and dismissed that charge with prejudice.

On appeal, the Office of Chief Trial Counsel of the State Bar and Metoyer also disagreed about the existence of aggravating and mitigating evidence and the weight to be afforded it.

In aggravation, the panel found Metoyer caused harm by affecting the efficient administration of justice and demonstrated a lack of remorse and insight toward the consequences of her misconduct.

In mitigation, she had practiced law discipline-free for 15 years, presented evidence of community service activities, and relied in good faith on the advice of her counsel, who told her she did not need to report the judicial sanctions to the State Bar until the appeal was over. She was also allotted moderate mitigating weight for testimony from five witnesses who vouched for her good character and for suffering emotional difficulties at the time of the misconduct.

#349557

Ben Armistead


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