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November 2018

By Ben Armistead | Nov. 1, 2018

Discipline Report,
Discipline

Nov. 1, 2018

November 2018

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

DISBARMENT

Elisa Ann Castro

State Bar #171814, Riverside (September 9, 2018) Castro was disbarred by default after she failed to appear at her disciplinary proceeding, either in person or through counsel, despite receiving adequate legal notice of it. She was found culpable of the single count of professional misconduct with which she had been charged: failing to comply with several conditions of an earlier probation order. Specifically, she failed to submit three written quarterly reports and to timely submit three additional reports, and also failed to timely submit proof of attending the State Bar's Ethics School as well as evidence of passing its final exam.

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

M. Francesca Hannan

State Bar #139170, Oxnard (September 9, 2018)

Hannan was disbarred by default. While she filed a response to the Notice of Disciplinary Charges and appeared at the initial pretrial conference in the case, she failed to appear for the trial, and did not move to have the default order entered against her set aside or vacated.

She was found culpable of six counts of professional misconduct related to a single client matter. The wrongdoing included two counts of failing to report judicial sanctions imposed against her to the State Bar and four counts of failing to comply with court orders.

John Michael Harmata

State Bar #131668, Las Vegas, Nevada (September 9, 2018)

Harmata was disbarred after he stipulated to failing to comply with several conditions imposed in an earlier disciplinary probation order. Specifically, he failed to submit an affidavit signaling his compliance with the duty to inform others of his suspended status (Cal. Rules of Ct., Rule 9.20), as well as failing to timely file both a written quarterly report and proof of restitution with the State Bar as required.

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

Gary Lee Hicks

State Bar #239743, East Lansing, Michigan (September 9, 2018)

Hicks was disbarred from the practice of law after he stipulated to committing one count of attempted criminal sexual conduct in the fourth degree with an incapacitated victim (Mich. Comp. Laws §§750.520e(1)(c) and 750.92).

In the underlying matter, Hicks went to a bus station in Michigan, claiming he was looking for workers to help him clean out some apartments he owned. He left his phone number with a man he met there, who passed it along to an 18-year-old the man knew was looking for work. Hicks invited the young man to "hang out" at his apartment, where he fed him food, and the visitor then fell asleep on a couch. On a second visit, Hicks supplied the man with an inhalant called Rush, which made him feel lightheaded before he fell asleep again. While the young man was sleeping, Hicks began to perform oral sex on him, which awakened him; the man subsequently filed a police report about the incident. Hicks admitted to the wrongdoing to police investigators, and he was charged and later entered into a plea bargain.

The State Bar Court judge found that the facts and circumstances surrounding the violation involved moral turpitude.

In aggravation, the victim involved was highly vulnerable: homeless, jobless, and financially destitute.

In mitigation, Hicks entered into a pretrial stipulation and had been admitted to practice law for six years without a record of discipline, though he did not practice law in California. In recommending disbarment, the judge noted: "Such misconduct of sexually assaulting an individual, while that individual is incapacitated and unable to consent, is depraved misconduct that is extremely repugnant to accepted moral standards and flagrantly shows a disrespect for the law and societal norms."

Lauro Nick Pacheco, Jr.

State Bar #173391, Mission Hills (September 9, 2018)

Pacheco was disbarred by default after he failed to participate in his disciplinary proceeding despite having adequate notice and opportunity to do so. He did not move to have the fault order entered against him set aside or vacated.

He was found culpable of four counts of professional misconduct related to a single client matter. The wrongdoing included: failing to perform legal services with competence, failing to respond to reasonable client inquiries, improperly withdrawing from employment, and failing to cooperate in the State Bar's investigation of the misconduct alleged.

Pacheco had one prior record of discipline.

Allen M. Petroff

State Bar #278382, Torrance (September 9, 2018)

Petroff was disbarred by default after he failed to participate in a disciplinary proceeding, either in person or through counsel, after receiving adequate notice and opportunity to do so. He did not move to have the default order set aside or vacated.

He was found culpable of four acts of professional misconduct related to two client matters: failing to perform legal services with competence, improperly terminating employment, and two counts of failing to cooperate in the State Bar's investigations of the wrongdoing alleged.

There were five additional disciplinary matters ending against Petroff when the disbarment order took effect.

Andrew Mark Weitz

State Bar #129962, Studio City (September 28, 2018)

Weitz was disbarred by default after he failed to appear at the trial consolidating four disciplinary cases against him. He had participated in pretrial proceedings and even arrived at court on the day of the proceeding, but elected to leave before his case was called.

He was found culpable of 49 of the 54 counts of professional misconduct with which he had been charged. A total of 16 of those counts involved moral turpitude stemming from various misrepresentations made to clients, courts and State Bar personnel, and on various legal documents filed or tendered.

One of the counts involved a misdemeanor conviction for stealing and removing a paper or proceeding of the court (Cal. Gov. Code §6201). Weitz had been forcibly detained and handcuffed by the court bailiff after obtaining a prospective criminal client's case file from the public defender and attempting to leave the courtroom with it in violation of court rules.

SUSPENSION

James Paul Baratta

State Bar #292848, San Juan Capistrano (September 24, 2018)

Baratta (aka Barafta and Barratta), was suspended in the interim pending final disposition of his conviction of burglary (Cal. Penal Code §§459-460(a)), a felony involving moral turpitude. He was also convicted of three additional offenses which may or may not involve moral turpitude: the misdemeanor of using computer services without permission (Cal. Penal Code §502(c)(3) and two counts of vandalism with damages of $400 or more (Cal. Penal Code §594(a)/(b)(1)), a felony.

Arturo Fernando Shaw Gutierrez

State Bar #232276, Oxnard (September 24, 2018)

Gutierrez was suspended from practicing law in the interim pending final disposition of a conviction og possession of a controlled substance with a prior Sex Offender Registration Act violation (Cal. Health & Safety Code §11377(a) and Cal. Penal Code §290(c)). The offense is a felony that may or may not involve moral turpitude.

Johanna Danielle Hoffmann

State Bar #239654, Oakland (September 9, 2018)

Hoffmann was suspended from the practice of law for two years and placed on probation for four years after she stipulated to committing 15 acts of professional misconduct related to two client matters. The wrongdoing included failing to provide a client with reasonable status updates and improperly withdrawing from employment; two counts of failing to promptly release a client's papers and property after being requested to do so; three counts of failing to perform legal services with competence; and four counts each of failing to refund unearned advanced fees and of misrepresenting facts to a court, a client and to the State Bar--misconduct involving moral turpitude.

The fact patterns in the cases were similar. In both, Hoffmann was hired to apply for commutation of inmates' life sentences. While she represented to the clients that she had drafted and filed the applications and billed and was actually paid for that work, she in fact had not submitted them. She also misrepresented to the clients and later to the State Bar in its investigations that she had drafted and filed the applications.

Frustrated by Hoffmann's inaction in their cases, both clients subsequently hired another lawyer to represent them at their separate parole hearings. Despite promising to do so, Hoffmann did not return the clients' file, nor did she refund the unearned fees she had been paid to handle their cases.

In aggravation, Hoffmann committed multiple acts of misconduct, caused significant harm to the clients who were incarcerated and highly vulnerable, and failed to make restitution to either of them.

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

Kelly Leigh McDonald

State Bar #223579, Redlands (September 9, 2018)

McDonald was suspended from the practice of law for six months and placed on probation for three years after she stipulated to two counts of wrongdoing. Relative to the first count, she entered a plea of nolo contendere to driving under the influence of alcohol (Cal. Veh. Code §23152(a)) and to the felony account of endangering the health of a child (Cal. Penal Code §273a(a)), which was later reduced to a misdemeanor. In the underlying matter, McDonald was involved in a collision in which she flipped her car; her four-year-old daughter was a passenger in the backseat at the time. A blood sample taken from McDonald that day showed a blood alcohol level of .24%--three times the legal limit. In the months preceding the collision, police officers had twice intervened to deal with complaints related to her public intoxication.

The State Bar Court judge found the facts and circumstances surrounding the violations at issue did not involve moral turpitude, but did not involve other misconduct warranting professional discipline.

In addition, McDonald admitted to being culpable of violating a court order by failing to timely file a declaration of compliance as mandated earlier (Cal. Rules of Ct., Rule 9.20).

In aggravation, McDonald committed multiple acts of misconduct.

In mitigation, she entered into a pretrial stipulation, had practiced law discipline-free for approximately seven years, and demonstrated a recognition of wrongdoing by "substantially complying" with legal requirements by filing the required affidavit, albeit filing it late.

Stephen Christopher Ronca

State Bar #183255, San Luis Obispo (September 24, 2018)

Ronca was suspended from the practice of law in the interim pending final disposition of his conviction of bank fraud (18 U.S.C. §1344(1)), a felony involving moral turpitude.

Eric Bryan Seuthe

State Bar #90269, Beverly Hills (September 10, 2018)

Seuthe was suspended from practicing law pending proof of passing the Multistate Professional Responsibility Examination--one of the conditions imposed in an earlier disciplinary order.

David Alan Shafer

State Bar #86436, Auburn (September 2, 2018)

Shafer was suspended from the practice of law for 60 days and placed on probation for two years following an appeal of a disciplinary order arising from two consolidated but distinct matters. In one case, Shafer stipulated to accepting and continuing representation of a client without disclosing his representation of a party in the same matter, and without obtaining written obtaining written consent to represent potentially adverse interests, and also of acquiring an adverse interest by accepting shares in a business concern without disclosing the value of the work and without obtaining the requisite written consent. In addition, he was found culpable of continuing to represent clients with conflicting legal interests, and of using a client's confidential information to plan and launch his own competitive business.

In that matter, Shafer met an accountant at a networking event who expressed an interest in starting a tax counseling business. He introduced the accountant to a potential business partner with whom he had a close professional and business relationship, but did not reveal their prior relationship.

The accountant and his wife subsequently hired Shafer to create a corporation with the partner's tax firm. He did so, accepting a 10% share in the company as compensation for future legal and marketing work. The two business parties eventually got into a dispute and decided to terminate their joint venture. In reviewing the documents Shafer had drafted, the accountant had begun to suspect that Shafer and the partner were acting in tandem to further their own interests over his and his wife's interests in the business.

In the other case, Shafer and another lawyer were found not culpable of nine counts of professional misconduct alleged. In aggravation, Shafer committed multiple acts of misconduct.

In mitigation, he had practiced law discipline-free for 31 years, demonstrated candor by stipulating to some facts and to three counts of misconduct, and presented evidence from 13 witnesses representing the legal and general communities who attested to his good character, as well as evidence of extensive pro bono and community service work.

George Aaron Shohet

State Bar #112697, Beverly Hills (September 24, 2018)

Shohet was suspended in the interim pending final disposition of his felony conviction of evading police (Cal Veh. Code §2800.2) and of driving under the influence (Cal Veh. Code §23152(b)), a misdemeanor. Both of the offenses may or may not involve moral turpitude, depending on the facts and circumstances surrounding them.

Jeffrey David Simonian

State Bar #117564, Fresno (September 26, 2018)

Simonian was suspended from practicing law for 60 days and placed on probation for one year after he stipulated to committing six acts of professional misconduct in two client matters and sustaining two DUI convictions.

The client misconduct included two counts each of failing to perform legal services with competence, failing to respond to reasonable client inquiries, and failing to promptly return client files after being requested to do so.

The fact patterns in the client cases were similar. Simonian was retained to represent clients in probate and trust matters, then took slow or no action, subsequently failing to respond to clients' numerous email and voicemail entreaties seeking information and updates on their cases. In one matter, his failure to act in selling the estate's real property resulting in its foreclosure. Both clients eventually hired new counsel.

In the conviction proceedings, Simonian entered nolo contendere pleas to driving under the influence of alcohol (Cal. Veh. Code §23152(a)) and driving with a blood alcohol content of .08% or higher (Cal. Veh. Code §23152(b)) in one matter. And in a second, which occurred three weeks after that conviction, he was again arrested and pled nolo contendere to driving with a blood alcohol content of .08% or higher and to driving with a suspended license (Cal. Veh. Code §14601.5(a)). The State Bar Court judge concluded that the facts and circumstances surrounding the violations did not involve moral turpitude, but did involve other misconduct warranting professional discipline.

In aggravation, Simonian committed multiple acts of wrongdoing and created a danger to public safety by driving under the influence on two occasions, in addition to harming his clients by delaying their probate matters.

In mitigation, he entered into a pretrial stipulation, had practiced law discipline-free for approximately 30 years, and provided seven letters from members of the legal and general communities attesting to his good character and legal ability.

Jan Elizabeth Van Dusen

State Bar #142700, Oakland (September 9, 2018)

Van Dusen was suspended from the practice of law for four years and placed on probation for five years after she stipulated to being convicted of one felony count of animal cruelty (Cal. Penal Code §597(b))--a conviction that was affirmed after she appealed.

The State Bar Court judge found the violation involved moral turpitude.

In the underlying matter, animal services personnel were summoned to Van Dusen's home in response to a complaint that she kept a large number of cats there. At that initial visit, they found approximately 50 cats--all of which seemed well cared for, and no action was taken.

The next year, after receiving additional complaints, investigating animal authorities found approximately 70 cats at Dusen's home, some of which appeared unwell, and took custody of several of them to be adopted. She entered into a written agreement outlining that she would be limited to 60 cats, which also set specific guidelines for their care and confinement.

The year after that, upon investigation of another complaint, Van Dusen admitted to breaching the agreement by taking in seven additional cats; animal control took no action against her. That same year, she hired a man to help clean her environs, who reported it was a "house of horrors"--cluttered with uncleaned litter boxes, cat feces and urine, and habited by many skinny and weak cats. He took pictures and submitted them to animal authorities.

In an eventual investigation, animal authorities including the SPCA captured and seized 93 live cats and two dogs, and many more that needed to be treated for various diseases or euthanized. They also found 11 dead cats in her freezer--all of them emaciated with significant muscle wasting. Van Dusen was then charged and convicted.

In aggravation, Van Dusen had a prior record of professional discipline and caused significant harm and suffering to many helpless animals.

In mitigation, she entered into a pretrial stipulation, submitted 10 letters from individuals attesting to her good character, and suffered emotional difficulties that her treating psychologist opined were directly related to her criminal conduct.

Philip Thomas Virga

State Bar #165324, Redondo Beach (September 9, 2018)

Virga was suspended from practicing law for one year and placed on probation for two years after he stipulated to committing multiple acts of misconduct while practicing as a registered attorney with the U.S. Patent and Trademark Office (USPTO).

The wrongdoing included: failing to obtain informed consent for limited scope representation (37 C.F.R. §11.102(c)), failing to communicate the scope of the representation and the basis of a fee (37 C.F.R. §11.105(b)), failing to act with reasonable diligence and promptness (37 C.F.R. §11.103), failing to explain a matter to the extent reasonably necessary to permit the client to make an informed decision (37 C.F.R. §11.104(b),) and failing to obtain informed consent where his responsibilities were materially limited due to a conflict of interest (37 C.F.R. §11.107(a)(2)).

The USPTO also found him culpable of accepting compensation from someone other than a client with obtaining the client's written consent to the arrangement (37 C.F.R. §11.108(f)(1), allowing interference with his professional judgment (37 C.F.R. §11.108(f)(2), allowing a person who paid him to render legal services to another (37 C.F.R. §11.504 (c)), failing to abide by a clients decision concerned the objective of the representation (37 C.F.R. §11.102(a), failing to consult with the client about the legal objectives to be accomplished (37 C.F.R. §11.104(a)2, failing to promptly inform the client of a circumstance (37 C.F.R. §11.104(a)(1), failing to keep the client reasonably informed of the status of a matter (37 C.F.R. §11.104(a)(3), sharing legal fees with a non-practitioner (37 C.F.R. §11.504(a)), and assisting another to practice law in violation of the law in that jurisdiction (37 C.F.R. §11.505).

In the underlying matter, Virga contracted with a firm to provide overflow patent prosecution services. That firm, which was not authorized to offer or provide legal services, provided clients with various patent applications--charging from $9,000 for a U.S. design patent application to $65,000 for a global patent. In a two-year period, Virga prepared at least 166 applications for the company's clients. He did not consult with the clients or ensure that they reviewed their applications before filing them as required by the USPTO, nor did he inform the clients of the potential conflict of interest in his continuing remuneration from the firm, or of the risk that the firm did not safeguard their funds. Unbeknownst to the clients, many of their applications were abandoned because Virga did not respond to Office Actions, or queries from the patent examiners.

The State Bar Court judge determined that the USPTO proceeding--after which Virga was suspended from practicing before the patent court for five years and placed on probation for two years--provided fundamental constitutional protection.

In aggravation, Virga committed multiple acts of wrongdoing that significantly harmed many clients.

In mitigation, he entered into a prefiling stipulation and had practiced law for approximately 21 years without a record of professional discipline.

Blake Edward Wilson

State Bar #279672, Coronado (September 24, 2018)

Wilson was suspended from practicing law in the interim pending final disposition of his disciplinary proceeding. He was convicted of vandalism with damages of $400 or more (Cal. Penal Code §594(a)/(b)(1)). The offense is a felony that may or may not involve moral turpitude.

PROBATION

LaShon Harris

State Bar #257578, Riverside (September 9, 2018)

Harris was placed on probation for two years after she stipulated to pleading no contest to injuring a person having care or custody of a child (Cal. Penal Code §273(a)).

In the underlying matter, Harris and her three children attended a family gathering at the children's paternal grandparents' home. The children's father, a man she had known for more than 30 years, was also present. The two had not lived together for the last several years. When Harris discovered that another person attending the party had an active relationship with the man, she removed one of her boots and hit him with it, causing an abrasion to his head.

The State Bar Court judge determined that the violation did not involve moral turpitude, but did involve conduct warranting professional discipline.

In mitigation, Harris entered into a pretrial stipulation, had practiced law discipline-free for six years, experienced family difficulties due to her brother's death and her daughter's serious health issues, and provided letters from seven individuals--all of whom attested to her good character.

Jerry S. Milliken

State Bar #45638, Los Angeles (September 9, 2018)

Milliken was place on probation for two years after he stipulated to commingling personal funds with monies in his client trust account.

Over the course of two months, Milliken deposited cash and checks that he had received from family members into his client trust account, and also wrote 11 checks from that account for business expenses before closing it.

In aggravation, Milliken committed multiple acts of wrongdoing.

In mitigation, he entered into a prefiling stipulation and had no prior record of discipline in nearly 48 years of practice--a fact the State Bar Court judge found to be "highly significant."

Raj Tanden

State Bar #160169, Los Angeles (September 9, 2018)

Tanden was placed on probation for two years following an appeal by the Office of the Chief Trial Counsel (OCTC) of the hearing judge's findings and recommendation of private reproval.

The case consolidated two convictions: one for driving with a blood alcohol content of .08% or higher (Cal. Veh. Code 23152(b)) and another for driving under the influence of drugs or alcohol (Cal. Veh. Code 23152(a)). In both cases, additional charges of hit-and-run were dismissed. Tanden had also been convicted of a misdemeanor DUI two years before being admitted to practice law.

In one of the DUI matters in the instant case, Tanden collided head-on with another car after driving after consuming alcohol while aboard a plane flight. He did not stop at the scene, but drove around the block, then another quarter of a mile before stopping in a red zone; the driver of the damaged car testified that when she found Tanden and his car, he had just collided with a second car.

The OCTC argued on appeal that Tanden committed an act of moral turpitude when he left the scene of the initial crash without stopping and exchanging relevant information as required--and that he would have kept fleeing had he not been in a second crash that incapacitated his car. Both the hearing judge and panel on appeal, however, found the OCTC failed to produce direct, admissible evidence of a second collision--relying only on hearsay testimony from two people who had not actually witnessed the alleged accident.

In the second incident at issue, Tanden took an anti-anxiety drug after his wife announced she was leaving him--and then drove to a nearby grocery store. On the way, he hit a parked car, damaging it, and failed to stop until the police pulled him over. The OCTC on appeal also argued that the misconduct involved in the incident involved "a flagrant and serious breach of his duties to society" that constituted moral turpitude. Both the hearing judge and panel on appeal found that Tanden's failure to take appropriate action after hitting the car was due to his impaired state, so did not signify an act of moral turpitude. In aggravation, Tanden committed multiple acts of wrongdoing that caused significant harm in damaging property.

In mitigation, he produced evidence from seven witnesses who attested to his good character and considerable legal and community service. The panel also allotted limited weight for his efforts at sobriety--which the it found did not demonstrate a "meaningful and sustained period of rehabilitation." He was also given minimal credit for emotional and physical difficulties that were not shown be fully resolved, nominal weight for expressing remorse at his trial, and limited credit for nearly 20 years of practicing law without discipline--the limitation due to his history of relapse.

#350030

Ben Armistead


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