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December 2018

By Ben Armistead | Dec. 3, 2018

Discipline Report,
Discipline

Dec. 3, 2018

December 2018

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

DISBARMENT

Joel Richard Bander

State Bar #119460, Los Angeles (October 27, 2018)

Bander was disbarred after being found culpable of violating several conditions imposed in an earlier disciplinary order--including failing to timely submit proof of two fee arbitration awards and proof of paying them, as well as failing to submit two quarterly reports and a final written report to the Office of Probation.

In addition, he filed 10 inaccurate written reports with the State Bar under penalty of perjury--all of which misrepresented he had complied with all probation conditions, which constituted acts of moral turpitude.

In aggravation, Bander committed multiple acts of misconduct in the instant case, had two prior records of discipline, and demonstrated a lack of insight into the wrongfulness of his actions by raising meritless defenses to the charges against him and submitting inaccurate reports to the State Bar even after his disciplinary trial had begun.

In mitigation, he stipulated to some facts establishing culpability in his response to the charges against him--though the weight of that was greatly reduced by his failure to admit culpability for all of the charges.

Danny Duane Brace, Jr.

State Bar #114466, Sacramento (October 27, 2018)

Brace was disbarred after he stipulated to committing several acts of professional misconduct related to three separate matters. The wrongdoing included four counts of failing to maintain client funds in trust or commingling them with his own, as well as misconduct involving moral turpitude: intentionally misrepresenting material facts to a client as well as two counts of using a client's entrusted funds for his own benefit.

In one case, Brace represented a criminal client who pled guilty and received a lengthy sentence. During the client's incarceration, Brace agreed to receive four annuity payments totaling $200,000 to which the client was entitled, pay out amounts to family members, use some of the funds to send specified goods to the prison, and hold the balances in trust as the client directed.

After 12 years, when Brace received the final annuity payment of $101,954, he misrepresented to the client that it was about half that amount. He produced a receipt and written acknowledgment of the erroneous amount remaining in trust, which the client's wife executed. When the falsified final amount was paid, the balance in Brace's client trust account was less than $15; he had misappropriated more than $101,800 of the client's funds.

In the second case, in which a judge was the complainant, Brace mishandled insurance and settlement proceeds deposited into his client trust account--misappropriating approximately $19,275 of the client funds.

A State Bar investigation also revealed Brace had commingled client and personal trust funds in accounts held at two different banks.

In aggravation, Brace committed multiple acts of wrongdoing in addition to several acts that significantly harmed the highly vulnerable incarcerated client by concealing the true amount he was due and failing to make restitution for that total.

In mitigation, he entered into a pretrial stipulation and had practiced law for 30 years without a record of discipline. He was also allotted some mitigating credit for making restitution to two of his clients, though the weight was diminished by his failure to make restitution to a third client.

John Cody, aka Bobby Thompson

State Bar #93300, Sierra Vista, Arizona (October 19, 2018)

Cody was summarily disbarred after the State Bar requested that action, after receiving evidence of finality of his conviction for 12 violations of the Ohio Revised Code.

In the underlying case, an Ohio jury convicted Cody of numerous felony counts including engaging in a pattern of corrupt activity, complicity to theft, identity fraud, two counts of tampering with records, and seven counts of complicity to money laundering.

All the offenses are felonies in Ohio, as are the analogous crimes in California. In addition, the California State Bar judge found that 11 of the 12 felony convictions involved moral turpitude per se.

Dax Yeophantong Craven

State Bar #248583, San Francisco (October 27, 2018)

Craven was disbarred after a contested disciplinary proceeding in which he was found culpable of four counts of professional misconduct related to a single client matter: misappropriating nearly $100,000 of a client's funds and misrepresenting material facts about those funds to the client--both acts involving moral turpitude, as well as failing to maintain the client's funds in trust, and failing to support the state and federal laws and constitutions.

Craven ran both a law firm and consulting business focusing on capital gains real estate exchanges. He represented a client under the umbrella of his real estate consulting business; the fee agreement specified 1% of any property purchase price as Craven's commission, with legal services to be provided at no additional cost. The client paid $100,000 in earnest money to secure his ability to purchase property Craven had identified, which Craven deposited in his client trust account. The deal floundered and was cancelled, then resurrected. However, by the time the new deal was completed, there were insufficient funds in the trust account to re-deposit in escrow--as Craven had transferred some of the funds out to his general account.

To cover the funding required, Craven sent the client a message falsely claiming the bank required an additional $100,000 to be deposited into a limited liability corporation "to verify the client's net worth." Craven deposited that money in his client trust account.

When the client later tried to access the money in the alleged LLC, Craven demurred that the funds were in an escrow account and inaccessible for six months.

Eventually, the client filed a complaint with the State Bar. In response to its investigation letter, Craven claimed that he was entitled to $113,160 in attorney's fees--producing an invoice. The State Bar Court judge concluded, however, that the client had not agreed to the fee arrangement, had not hired Craven to do legal work, and had never actually been presented with the invoice.

In aggravation, Craven committed multiple acts of misconduct, caused significant harm to the client by depriving him of a large sum of money, demonstrated indifference by maintaining the entire matter was merely a "fee dispute," and failed to make restitution by not returning any portion of the $100,000 he misappropriated from the client.

The State Bar Court judge determined that given the seriousness of the misconduct involved, he was not entitled to any mitigation credit for having practiced law for 10 years without a discipline record.

In recommending that Craven be disbarred, the judge also underscored that the "continued insistence that his conduct was justified is particularly troubling because it suggests his conduct may recur" and noted "the court is equally concerned by respondent's willingness to lie to his client to mask his misconduct."

Scott Anthony Galland

State Bar #211330, Bakersfield (October 27, 2018)

Galland was disbarred after he stipulated to failing to comply with several conditions imposed in an earlier disciplinary order. Specifically, he failed to submit five timely and compliant written reports as well as satisfactory proof of attending and completing the State Bar's Ethics School.

In aggravation, Galland committed multiple acts of wrongdoing and had been previously disciplined by the State Bar three times. He also failed to comply with probation conditions and to cure deficiencies even after notice was given to him; the State Bar Court judge noted that demonstrated "an indifference and unwillingness or inability to comply with disciplinary orders."

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

Michael Armin Gardner

State Bar #196079, Falls Church, Virginia (October 27, 2018)

Gardner was summarily disbarred after his conviction for five violations of the Virginia Code became final. He earlier pled guilty to one count of object sexual penetration upon a victim under 13 years of age and four counts of aggravated sexual battery upon victims under 13 years of age in that state.

The violations are felonies--and the California State Bar Court judge found the crimes should be classified as involving moral turpitude per se.

Nicolas Joson Gomez, Jr.

State Bar #144361, Quezon City, Philippines (October 27, 2018)

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

He was found culpable of failing to comply with several conditions of a probation order previously imposed. Specifically, he failed to correct errors in two written quarterly reports and failed to timely submit proof of completing both the State Bar Ethics School and Client Trust Accounting School.

Gomez had been disciplined by the State Bar for professional misconduct on two prior occasions.

David Curtis Hollingsworth

State Bar #203887, Fresno (October 27, 2018)

Hollingsworth was disbarred by default after he failed to participate, either in person or through counsel, in his disciplinary proceeding, nor did he seek to have the default entered against him set aside or vacated. He was found culpable of failing to file a declaration of compliance as mandated in an earlier discipline order (Cal. Rules of Ct., Rule 9.20).

Hollingsworth had two prior records of discipline.

Edwin Jeffrey Howard

State Bar #134627, Marina Del Rey (October 27, 2018)

Howard was disbarred by default after he failed to participate in his disciplinary hearing, despite receiving adequate notice and opportunity. He had earlier been convicted of causing corporal injury to a cohabitant (Cal. Penal Code §273.5(a)), with enhancements for using a deadly weapon (Cal. Penal Code §12022(b)(1)) and inflicting great bodily injury (Cal. Penal Code §12022.7(e)).

In the underlying matter, Howard was convicted after he had an argument with his longtime girlfriend and stabbed her in the stomach, cutting her colon; the injuries required two surgeries to repair.

Upon finality of the conviction, the Review Department of the State Bar Court referred the matter to the Hearing Department for a hearing and determination of whether the facts and circumstances surrounding the matter involved moral turpitude or other misconduct warranting professional discipline.

The State Bar Court judge found that the matter involved moral turpitude and recommended disbarment. At the time of that recommendation, there was another disciplinary investigation pending against Howard.

Robert Norik Kitay

State Bar #229966, Carmichael (October 27, 2018)

Kitay was disbarred after being found culpable of three counts of professional misconduct related to two client matters: communicating with a represented party without consent, failing to perform legal services with competence, and failing to return unearned advanced fees.

In one case, Kitay was hired to represent two parties in a breach of contract action against two other parties, who filed a cross-complaint. The attorney representing the adverse parties wrote to inform Kitay of the representation, and requested that all future correspondence in the case be directed to her office. Because one of her clients was undergoing chemotherapy and unable to attend two days of depositions, she designated another party as the "person most knowledgeable (PMK)" to represent the corporation in the litigation.

Kitay objected to the substitution, but did not respond to opposing counsel's questions about the legal basis for his objections. Without notice to her, he called the substituted party and discussed the underlying legal matter; he then filed a motion to compel the deposition of the original party. The court denied that motion, noting that the deponent, not the person noticing a deposition, is entitled to designate the PMK in a case and disqualifying Kitay as counsel based on his admitted impermissible conversation.

In the second matter, Kitay was hired to represent a client in a dissolution matter--and was paid $1,750 0f the $2,500 flat fee to which they had agreed. The agreement also mentioned the client was responsible for keeping a $500 balance at all times.

A complicated series of events occurred, during which the client opted to represent herself, but Kitay was eventually again substituted as her counsel of record. He opted, however, to take no additional steps in the case for nine months based on the fact her balance had fallen below the $500 limit; he did not inform her of either his inaction or the alleged reason for it. During that time, Kitay had been actually suspended from practicing law--and while he did inform the client of that fact, he did not forward the client file or the balance of the retainer to potential new counsel or to the client. After his suspension ended, he did not contact the client, nor did he perform any work on the case.

In aggravation, Kitay committed multiple acts of wrongdoing, significantly harmed the administration of justice through his misconduct, and had two prior records of discipline. The State Bar Court judge note that the misconduct in the instant case occurred while Kitaye was on probation for committing a similar wrong.

In mitigation, he was given minimal weight for emotional difficulties suffered due to his father's illness and death, as no expert testimony was provided on the issue.

Douglas Alan Kuber

State Bar #130165, Surfside, Florida (October 27, 2018)

Kuber was summarily disbarred upon proof that his conviction of conspiracy to commit wire fraud (18 U.S.C. §§1349 and 2) had become final. The offense is a felony involving moral turpitude.

Philip James Layfield

State Bar #204836, Park City, Utah (October 27, 2018)

Layfield was disbarred by default after he failed to appear at the trial of the disciplinary charges filed against him. The State Bar Court judge found he had received adequate legal notice of the proceeding and had appeared at an earlier status conference in the case. He did not subsequently move to have the default order entered against him set aside or vacated.

Layfield was found culpable of 12 counts of professional misconduct related to three client cases. The wrongdoing included: three counts each of failing to maintain client funds in a trust account, failing to render accountings of client funds, failing to promptly pay funds to the clients after being requested to do so, and intentionally misappropriating client funds--misconduct involving moral turpitude.

When the order recommending disbarment was issued, there were 91 other investigations pending against Layfield for professional misconduct.

Judy Ann Lorenzo

State Bar #151710, San Jose (October 27, 2018)

Lorenzo was disbarred by default after she failed to participate, either in person or through counsel, at the disciplinary proceeding in which she was charged with nine counts of professional misconduct related to a single client matter. She did not move to have the default that was entered against her set aside or vacated.

She was found culpable of all counts. The wrongdoing included: failing to perform legal services with competence, failing to maintain client funds in a trust account, failing to respond to reasonable client inquiries about a case, failing to render an appropriate accounting of the client's funds, misappropriating $150 of the funds held to benefit her client, failing to return unearned advanced fees, failing to return the client's papers and property, and misrepresenting legal facts to the client--misconduct involving moral turpitude.

She was also found culpable of failing to cooperate in the State Bar's investigation of the wrongdoing alleged.

Jimmy Philip Mettias

State Bar #269572, Victorville (October 27, 2018)

Mettias was disbarred by default. He failed to participate in his disciplinary proceeding after receiving adequate notice and opportunity, or to move to have the default entered against him set aside or vacated.

He was found culpable of six of the seven counts of professional misconduct with which he was charged. The wrongdoing, related to a single client case, included failing to maintain client funds in a trust account, failing to perform legal services with competence, failing to inform the clients of significant case developments, and failing to cooperate in the State Bar's investigation of the misconduct alleged. He was also found culpable of two counts involving moral turpitude: misappropriating more than $110,710 owed to the clients and misrepresenting to his clients in an email message that he would immediately wire them the funds they were entitled to receive.

Mettias had one prior record of professional discipline.

Michael David Peterson

State Bar #231725, Escondido (October 27, 2018)

Peterson was summarily disbarred after being convicted of possession of child pornography (Cal. Penal Code §311.11(a)). The offense is a felony involving moral turpitude.

James Stewart Richards

State Bar #51410, Simi Valley (October 27, 2018)

Richards was disbarred by default. He had earlier been convicted of tax evasion (26 U.S.C. §7201)--a felony for which probable cause exists that moral turpitude or other misconduct warranting professional discipline is involved. He entered a plea agreement and was sentenced to 24 months in federal prison.

Although he attended an earlier status conference in the case by telephone, he failed to appear for trial, and did not seek to have the default order entered in the case set aside or vacated.

From the years 1995 through 2004, Richards was found to have filed false federal income tax returns with the intention of evading his duty to pay the amount due. After meetings, telephone conversations, and letter exchanges with an Internal Revenue officer, Richards filed a false statement in which he concealed his ownership of six rental properties and two bank accounts. He also used a nominee account opened for a former client to conceal his own assets--including $235,410 in sales proceeds from a condo.

In addition, after being sent notices for taxes due for a number of years, Richards filed another statement under penalty of perjury falsely representing that he had only $300 in cash; in fact, he had at least $60,000 in cashier's checks. Also around that time, he purchased a yacht for $92,000, titling it in another person's name. In addition, he falsely represented to a bankruptcy court and an IRS representative that he had paid $90,000--and denied owning a checking account and the yacht, as well as making withdrawals from the nominee account. And finally, over a five-year period, he was found to have purchased at least 14 cashier's checks in amounts ranging from $10,000 to $145,000 in his attempts to avoid paying federal taxes.

The State Bar Court judge found that the facts and circumstances surrounding the conviction involved moral turpitude "because they involved intentional misrepresentations and dishonesty, as well as concealment."

Richards had one prior record of professional discipline.

Ruth Cecelia Rose

State Bar #145887, Los Angeles (October 27, 2018)

Rose was disbarred by default after failing to participate in her disciplinary proceeding, despite receiving adequate notice and opportunity. Prior to the proceeding in the case, she had contacted the State Bar's Office of Chief Trial Counsel and stated that she "gives up" and planned not to file a response to the notice of disciplinary charges filed against her.

She was found culpable of failing to file a declaration of compliance as mandated by the California Supreme Court in an earlier disciplinary order (Cal. Rules of Ct., Rule 9.20), as well as violating several probation conditions. Specifically, she failed to contact the Office of Probation to schedule an initial meeting and failed to submit two written quarterly reports.

Rose had previously been disciplined three prior times for professional misconduct, and when the disbarment recommendation was filed, there was one additional disciplinary matter pending against her.

Anil Kumar Singh

State Bar #213993, San Marcos (October 27, 2018)

Singh was disbarred by default after he failed to participate, either in person or through counsel, at the disciplinary proceeding in which he was charged with six counts of professional misconduct. He did not move to have the default order entered against him set aside or vacated, despite discussing the possibility with the State Bar's Office of Chief Trial Counsel.

As a result, the factual allegations in the charges against him were admitted and he was deemed culpable of all counts. The wrongdoing, which occurred in a single client matter, included: failing to deposit client funds in trust, improperly withdrawing from employment, failing to provide an accounting of the client's funds, and failing to cooperate in the State Bar's investigation of the misconduct alleged. He was also found culpable of two counts of misappropriating the client's funds for his own use--an act involving moral turpitude.

Carl Douglas Spieckerman

State Bar #67636, Stockton (October 27, 2018)

Spieckerman was disbarred after failing to participate in the trial held to determine whether the facts and circumstances surrounding his earlier conviction involved moral turpitude or other conduct warranting professional discipline. He had earlier pled guilty to one count of possessing a controlled substance in a state prison (Cal. Penal Code §4573.6), a felony.

In the underlying matter, Spieckerman was visiting a client who was incarcerated in the Central California Women's Facility in Chowchilla. During their visit, correctional officers observed him pass a black popcorn bag under the table to the client; she retrieved an object from it, which she immediately concealed in the back of her pants. A subsequent search of the client's person revealed a plastic bag containing 15 grams of marijuana, another bag containing amphetamine and morphine, and three additional bags containing a total of 11 grams of methamphetamine.

When Spieckerman was detained at the prison, he disclosed that his client had contacted him on a contraband cell phone, but after viewing the surveillance tape showing him passing the bag under the table to his client, he falsely suggested that a correctional officer had smuggled the contraband to her.

In recommending disbarment, the State Bar Court judge noted that the facts and circumstances surrounding the offense "clearly involve other conduct warranting discipline, if not moral turpitude."

SUSPENSION

Albert Loeb Boasberg

State Bar #31205, Daly City (October 9, 2018)

Boasberg was suspended in the interim pending final disposition of his convictions of two counts of embezzlement or fraud of a dependent elder by a caretaker (Cal. Penal Code §368(e)), as well as two counts of insurance fraud (Cal. Penal Code §550(b)(2)).

Both offenses are felonies involving moral turpitude.

Berj Boyajian

State Bar #60631, Beverly Hills (October 1, 2018)

Boyajian was suspended in the interim pending final disposition of his convictions of the felony of preparing false documentary evidence (Cal. Penal Code §134) and the misdemeanor of deceit or collusion with the intent to deceive the court or any party (Cal. Bus. & Prof. Code §6128(a)).

Both offenses involve moral turpitude.

Teresa Faye Bristow

State Bar #241075, Roseville (October 27, 2018)

Bristow was suspended from the practice of law for six months and placed on probation for two years after she stipulated to violating several of the conditions imposed in an earlier discipline order. Specifically, she failed to schedule and hold an initial meeting and failed to file two quarterly written reports with the Office of Probation.

In aggravation, Bristow committed multiple acts of wrongdoing, had a prior record of discipline, and demonstrated indifference toward rectification by continuing to fail to comply with her probation conditions after receiving State Bar notifications of the consequences.

In mitigation, she entered into a prefiling stipulation in the case.

Gerard Nicholas Casale, Jr.

State Bar #161735, Santa Monica (October 27, 2018)

Casale was suspended from the practice of law for 60 days and placed on probation for two years after he stipulated to pleading guilty to two federal felonies: contempt (18 U.S.C. §401(3)) and causing an illegal act to be done (18 U.S.C. §2(b)).

In the underlying matter, Casale was the CEO of a company that marketed a smartphone application. At one point, the FBI opened an investigation, probing into why the company had been selected to provide contractual services. It issued a grand jury subpoena for a variety of documents, including emails involving third party subjects of its investigation. Casale produced some documents, but failed to include a pivotal email that addressed a material issue in the investigation.

In mitigation, Casale entered into a pretrial stipulation, had practiced law for approximately 21 years without a record of discipline, and submitted letters from 13 individuals from both the legal and general communities who attested to his good character.

Eve Susan Chesbro

State Bar #145698, Los Angeles (October 9, 2018)

Chesbro was suspended from practicing law pending her passage of the Multistate Professional Responsibility Exam as mandated by the California Supreme Court in an earlier disciplinary order.

Robert Terrill Durbrow, Jr.

State Bar #53445, Fresno (October 27, 2018)

Durbrow was suspended from the practice of law for six months and placed on probation for three years after he stipulated to failing to comply with several conditions attached to a disciplinary order imposed earlier.

Specifically, he failed to contact the Office of Probation to schedule an initial meeting within 30 days of the discipline's effective date, failed to timely submit five quarterly written reports, failed to show proof of completing the State Bar's Ethics School and of passing the Multi-State Professional Responsibility Exam by the specified dates, and falsely declared under penalty of perjury in one of the written quarterly reports that he had complied with all probation conditions.

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

In mitigation, he entered into a prefiling stipulation and suffered from physical difficulties caused when he injured both wrists, requiring surgery and physical therapy for rehabilitation.

Marc Steven Duvernay

State Bar #135547, Manhattan Beach (October 27, 2018)

Duvernay was suspended for 90 days and placed on probation for two years after he stipulated to pleading nolo contendere to driving with a blood alcohol content of .08%, causing injury (Cal. Veh. Code §23153(b)) with an enhancement for inflicting great bodily injury during the commission of a felony (Cal. Penal Code §12022.7(a)).

In the underlying matter, Duvernay attended a golfing event, followed by a social time that included drinks and hors d'oeuvres; he then began to drive home when a deer darted in front of his car. Swerving to avoid the animal, he went over a median and then rear-ended a parked car. A person seated in the driver's seat of that care sustained physical injuries requiring four days of hospitalization, as well as extensive damage to his vehicle.

Duvernay enrolled in the State Bar's Lawyer Assistance Program (LAP).

The State Bar Court judge determined that the facts and circumstances surrounding the violation did not involve moral turpitude, but do involve other misconduct warranting professional discipline.

In aggravation, Duvernay caused significant harm--physical injury to the man he injured, property damage to the vehicle, and emotional harm to the injured man's wife, who filed a loss of consortium claim.

In mitigation, he entered into a pretrial stipulation, had practiced law for 28 years discipline-free, submitted 21 declarations from a range of individuals who attested to his good character, and voluntarily enrolled in the LAP prior to the criminal proceeding in the case.

Benjamin A. Eilenberg

State Bar #261288, Riverside (October 27, 2018)

Eilenberg was suspended from practicing law for 90 days and placed on probation for one year after he stipulated to committing 10 acts of professional misconduct related to five separate matters. His wrongdoing included: failing to communicate a settlement offer to a client; as well as three counts each of improperly terminating employment, holding himself out as qualified to practice law when he was suspended, and actually practicing law while not an active member of the California Bar--an act involving moral turpitude.

In one case, in correspondence to opposing counsel and in court documents, Eilenberg represented himself as substituting in as counsel to represent a mother and son in a contested trust case. However, he then failed to communicate a settlement offer to the clients and shortly after that, failed to take any action in the case, constructively terminating his employment. The court ultimately sanctioned the clients $3,625.

Another case, in which Eilenberg represented an individual injured in a battery, proceeded much the same way. He took no meaningful action in the case after filing two initial complaints, then failed to appear at case management conferences and hearings or to respond to the client's inquiries. The court dismissed both matters.

As a result of Eilenberg's inactions in those two cases, the State Bar Hearing Department notified him he would be involuntarily enrolled as inactive and ineligible to practice law. However, several days later, he corresponded with opposing counsel in three pending cases, failing to disclose his inactive status, and filed an ex parte motion in one of them.

In aggravation, Eilenberg committed multiple acts of misconduct, significantly harmed two clients, and showed indifference toward rectifying his misconduct by failing to file a motion to address the dismissed cases despite informing a State Bar investigator that he would do so.

In mitigation, he entered into a pretrial stipulation and was allotted slight weight for having practiced law for seven years without a record of discipline.

Sara Eliot

State Bar #230157, Encino (October 27, 2018)

Eliot was suspended from the practice of law for 90 days and placed on probation for two years after she stipulated to committing two counts of professional misconduct involving paying personal expenses with a total of 11 checks from funds in her client trust account.

In aggravation, Eliot committed multiple acts of wrongdoing.

In mitigation, she entered into a pretrial stipulation, had practiced law for approximately 10 years without a record of discipline, and caused no harm to a client, to a court, or to the administration of justice.

Jehu Thomas de Gerold Hand

State Bar #124016, Temple City (October 22, 2018)

Hand was suspended from practicing law in the interim pending final disposition of his convictions of two counts each of conspiracy to commit securities fraud and wire fraud (18 U.S.C. §371), securities fraud (15 U.S.C. §§78j(b) and 78ff), and wire fraud (18 U.S.C. §§1343, 1349, and 2).

All the offenses are felonies involving moral turpitude.

Harris Day Himes

State Bar #86074, Hamilton, Montana (October 27, 2018)

Himes was suspended from practicing law in California for six months and placed on probation for two years.

After an appeal in the state of Montana, his felony convictions for failing to register as a salesperson and failing to register a security based on his actions there were affirmed.

In reviewing the record, the California State Bar court judge disagreed with the conclusion in the State Bar's closing brief, and gave no deference to the Montana Supreme Court's summary of the evidence as findings of fact, noting that court was merely setting forth the evidence "in the light most favorable to the prosecution." Instead, the judge relied on "facts conclusively established by the criminal convictions and/or otherwise proven in the present proceeding by clear and convincing evidence."

After practicing law in California for approximately 18 years, Himes became an ordained minister and moved to Montana, where he founded a shelter for battered women and homeless people. There, he befriended a man who sought his advice about investing a large sum of money he was about to inherit from his grandfather. At that time, Himes was also assisting another minister in setting up a business to import solar panels manufactured in Mexico.

The man and minister met through Himes, and the man agreed to invest $150,000 in the solar panel business in exchange for a 6% interest as a business partner. In furtherance of the arrangement, Himes and the investor reviewed a Subscription Agreement tendered by the minister, modifying it slightly; the agreement described the investor's ownership interest as "shares" in the company. The investor worked on readying the solar panel project for months, arranging for and purchasing equipment and remaining at a factory in Mexico for several weeks. Then he abruptly left Mexico, taking a borrowed car improperly across the border. Back in the U.S., he began to complain about his involvement in the solar panel company, demanding a return of his investment.

Since his criminal convictions became final, Himes began complying with his obligation to make restitution of $150,000 to the investor.

The State Bar Court judge concluded that Hime's misconduct did not involve moral turpitude, but does warrant discipline in California. The judge underscored that Himes "knowingly was involved in the creation and presentation of a document that was intended to have legal significance and which described his investment as 'shares' in a company--thereby falling within regulating the sales of securities." He also emphasized that the securities laws "are designed to avoid the very types of unhappy investment surprises by uninformed members of the public."

In aggravation, Himes committed multiple acts of misconduct that significantly harmed an individual.

In mitigation, he had practiced law in California without a record of discipline for 18 years, demonstrated candor regarding the circumstances showing his misconduct, and presented testimony from "numerous witnesses" regarding his good character and community service. The judge also noted that the misconduct in the instant case was "aberrational" and "doubtless would not recur."

Paul Stephen Jacobson

State Bar #234727, Santa Ana (October 27, 2018)

Jacobson was suspended from the practice of law for 60 days and placed on probation for two years after he stipulated to committing two counts of professional misconduct related to a single matter: violating court orders and failing to respond to his client's reasonable inquiries about the case.

In the underlying matter, a client paid a flat fee of $799 for Jacobson to represent her in a marriage dissolution. He filed the initial petition and some subsequent paperwork in the case and sometime later, updated his State Bar membership profile with a new office address, but did not notify the court of the change. As a result, he missed a court notice of a resolution conference and did not attend it.

After informing the court of his changed address, Jacobson failed to appear at several court appearances and was ultimately ordered to pay sanctions. For 19 months, he failed to respond to 11 emails the client sent asking about the status of the case or to update her about the stance of the matter.

More than four years after he was initially retained, the dissolution became final and Jacobson paid the sanctions imposed.

In aggravation, Jacobson committed multiple acts of misconduct and harmed the administration of justice by causing significant delays in the proceedings.

In mitigation, he entered into a pretrial stipulation, presented 12 references who attested to his good character and professionalism, and was allotted slight mitigation credit for having practiced law for nearly nine years without a record of discipline before engaging in the present misconduct.

Clayton William Kent

State Bar #123164, Napa (October 27, 2018)

Kent was suspended from practicing law for 60 days and placed on probation for one year after he stipulated to committing three counts of professional misconduct related to a single client matter. His wrongdoing included failing to perform legal services with competence, failing to keep his clients informed of significant case developments, and making false statements in both an application and petition--acts involving moral turpitude.

Kent was hired to represent a motorcyclist injured during a police pursuit in a claim against a city. When hired, he informed the client of the six-month statute of limitations period on a government claim, but subsequently failed to calendar the deadline himself. Shortly after the limitations period had passed, Kent attempted to revive the case by filing a claim against the city and an application to file a later claim--erroneously claiming that the client had not contacted him until after the statute of limitations had expired.

After the city denied the application, Kent filed to have the action brought in superior court, repeating the falsehood that the client contacted him after the limitations period had run. The superior court scheduled a hearing and ultimately issued both tentative and final denial orders, but Kent did not act or inform the client of the hearing or orders.

In aggravation, Kent committed multiple acts of wrongdoing and had been disciplined by the State Bar once previously for professional misconduct.

In mitigation, he entered into a prefiling stipulation, submitted 13 letters from a range of individuals attesting to his good character, and also submitted evidence of extensive community service recognized and honored by several organizations, In addition, he suffered family problems due to his daughter's serious health problems, was candid and cooperative with the State Bar in responding to the complaint against him, and took remedial measures implementing procedures to track case calendaring in his office.

Klayton Khishaveh

State Bar #236903, Irvine (October 27, 2018)

Khishaveh was suspended for three years and placed on probation for four years after the Office of Chief Trial Counsel of the State Bar appealed an order of an actual suspension of one year--a downward departure from the standard mandating progressive discipline. Khishaveh did not appeal, but requested six months of actual suspension.

At trial, he had stipulated to culpability for three counts of professional misconduct in a single client matter: failing to perform legal services with competence, failing to inform his client of significant case developments, and improperly withdrawing from representation.

In the underlying matter, Khishaveh was retained to represent a client who had been injured in a car accident. He then ignored 25 letters from the insurer received over a two-year period--finally responding, but failing to provide the bills and medical reports requested to substantiate the settlement demand. After Khishaveh failed to respond to several more requests from the insurer, it closed the case after the statute of limitations had expired. He did not inform the client, who eventually learned of Khishaveh's failure to act and of the closure of the case from the insurer.

In aggravation, Khishaveh committed multiple acts of wrongdoing that significantly harmed his client, who suffered continuing physical pain because he was unable to seek appropriate medical treatment for his injuries. In addition, Khishaveh had been disciplined previously for wrongdoing in three client cases; the panel on appeal noted that the commonalities in those cases and the present one render the record "particularly serious and deserving of significant aggravating weight."

In mitigation, he cooperated with the State Bar by stipulating to both facts and culpability.

In recommending the progressive discipline of three years of suspension, the panel noted that the hearing judge below had erroneously focused on comparing whether the present misconduct was more serious than the past wrongdoing, noting that while the standards mandate progressive discipline for a second case of misconduct, "progressively serious misconduct in the second case is not required."

Terrence Lee

State Bar #306333, Diamond Bar (October 29, 2018)

Lee was suspended in the interim pending final disposition of his conviction of oral copulation of a person under 16 years old (Cal. Penal Code §288a(b)(2)), a felony involving moral turpitude.

Michael Ross Lewis

State Bar #247934, Upland (October 22, 2018)

Lewis was suspended from the practice of law pending proof of passing the Multistate Professional Responsibility Exam--one of the terms imposed in an earlier disciplinary order.

Jeffrey Allen Lewiston

State Bar #126827, Encino (October 27, 2018)

Lewiston was suspended for six months and placed on probation for two years after he appealed that recommendation, arguing his misconduct should result only in a stayed suspension.

In the underlying matter, he had been found culpable of six counts of unauthorized practice of law and seven counts of collecting illegal fees.

Lewiston, who was licensed to practice law in California and Michigan, became involved with an existing nationwide loan modification business, which he then incorporated in Michigan and became its sole employee and whole owner. The business advertised its services to distressed homeowners throughout the country. Those who contracted for its services signed an agreement indicating they were retaining an attorney for legal services, though in reality much of the work was performed by non-attorney personnel--and Lewiston did not identify, hire, or supervise any attorneys affiliated with the business.

After operating for about one year, the business was enjoined from having clients due to a Federal Trade Commission action; its representatives also seized the client files and froze the business bank accounts.

The present disciplinary case arose after residents in North Carolina, Washington, New York, Georgia, and Illinois hired the company for loan modification services. None of the clients were informed that Lewiston was not admitted to practice law in their jurisdiction. All seven clients paid fees later deemed to be illegal; the hearing judge did not find clear and convincing evidence to prove the UPL charge in Illinois.

In aggravation, Lewiston was found at trial and on appeal to have committed multiple acts of misconduct that significantly harmed the clients; he did not return payments he received from five of the seven clients--a total of $15,500.

In mitigation, he had practiced law for 26 years discipline-free--though the panel on appeal reduced the weight given that from "significant" to "moderate," finding that Lewiston failed to prove by clear and convincing evidence "that he would refrain from future misconduct if similar circumstances arose."

The panel also reduced the character evidence submitted from "modest" to "limited" weight, noting that those who submitted declarations in support of Lewiston did not know the full extent of the misconduct involved, nor the fact that he had not made restitution to most of the clients.

However, it allotted "moderate" mitigation for the extensive factual stipulation Lewiston entered, which the hearing judge had weighted only as "limited," since there was no stipulation as to culpability.

Noelle Lynn McCabe

State Bar #253349, Irvine (October 27, 2018)

McCabe was suspended for 60 days and placed on probation for two years after she stipulated to committing numerous acts of professional misconduct related to two client matters. Her wrongdoing included: misrepresenting a material fact to a client--an act involving moral turpitude; as well as two counts each of failing to perform legal services with competence, failing to respond to clients' reasonable case status inquiries, and improperly withdrawing from representation. She also failed to notify the State Bar of a change in her office address within 30 days of that change as mandated.

The fact patterns in the underlying cases were similar. In both, McCabe was substituted in to represent clients in dissolution cases, then took little meaningful action on the cases while ignoring the clients' entreaties for information--constructively withdrawing from employment.

In aggravation, McCabe committed multiple acts of wrongdoing.

In mitigation, she entered into a pretrial stipulation, had practiced law discipline-free for approximately nine years, submitted evidence of her good character as attested to by five witnesses from the general and legal communities, and showed remorse by spontaneously volunteering to repay the attorney fees one of the clients was ordered to pay after she abandoned his representation.

Debbie Lee Morawski

State Bar #248466, Orcutt (October 1, 2018)

Morawski was suspended from practicing law pending proof of passing the Multistate Professional Responsibility Examination as required by the terms of a disciplinary order imposed earlier.

Enid Perez

State Bar #216445, Fresno (October 27, 2018)

Perez was suspended from the practice of law for 18 months and placed on probation for three years after she stipulated to pleading nolo contendere to filing a false or fraudulent unemployment insurance report (Cal. Unemp. Ins. Code §2117). The offense is a misdemeanor involving moral turpitude.

After Perez was laid off, she presented a claim online to the Employment Development Department for unemployment insurance benefits. The process requires claimants to verify that they remain unemployed by periodically submitting a continuing claim form (CCF).

Over approximately a year in which she submitted an original claim and two extensions, Perez received a total of $26,550. To secure those benefits, she submitted a total of 27 CCFs. In each of them, she answered "No" to the question posed: "Did you work or earn any money, WHETHER YOU WERE PAID OR NOT?" In reality, she received some pay for 10 months, during which she was employed as a part-time instructor at a community college.

At her criminal sentencing, she returned $13,809 in benefit overpayments in addition to a 30% administrative penalty.

In aggravation, Perez committed multiple acts of wrongdoing and caused significant harm by not returning the improper benefits until after criminal charges were filed against her.

In mitigation, she entered into a pretrial stipulation, had practiced law for approximately 10 years without a record of discipline, and suffered from major clinical depression, now treated with therapy and medication, that her therapist established contributed to her misconduct. In addition, she provided 10 letters from individuals attesting to her good moral character, as well as evidence of performing significant volunteer work.

William L. Reiland

State Bar #258707, Visalia (October 27, 2018)

Reiland was suspended for 60 days and placed on probation for three years after he stipulated to appearing in court in two separate counties on behalf of clients on 23 separate occasions while he was on "not eligible" status. The State Bar had placed him there due to his failure to pay his membership dues and to comply with Mandatory Continuing Legal Education requirements.

He was found culpable of two counts of unauthorized practice of law (Cal. Bus. & Prof. Code §6068(a)) as well as two counts of holding himself out as entitled to practice when he was not--acts involving moral turpitude (Cal. Bus. & Prof. Code §6106). He had also stated to a State Bar investigator three times that he had not realized that his license was suspended when he knew those statements were false and misleading-- additional misconduct involving moral turpitude.

In aggravation, Reiland committed multiple acts of misconduct.

In mitigation, he entered into a pretrial stipulation and had practiced law for nearly nine years without a record of discipline.

Walter Damian Rickert

State Bar #169968, Hayward (October 27, 2018)

Rickert was suspended from the practice of law for 90 days and placed on probation for two years after he stipulated to committing six counts of professional misconduct related to a single client matter.

His wrongdoing included: failing to perform legal services with competence, failing to respond to his clients' reasonable inquiries about the case, failing to promptly return the clients' papers and property after being requested to do so, failing to promptly refund the clients' unearned advanced fees, failing to deposit the client fees in a trust account, and commingling the client funds with his own.

In the underlying matter, Rickert was hired by a married couple to pursue a claim for fraud against a trustee they claimed had misappropriated their funds. They paid $5,000 in advanced fees; the fee agreement provided that the sum would be deposited in a client trust account and used to pay costs, expenses, and fees as required. Though Rickert maintained a client trust account, he put the cash in a lock box, instead.

He persuaded the clients to file a complaint for elder abuse rather than fraud, as it has a longer statute of limitations. When Rickert visited the clients at their home to have them review the elder abuse claim, they paid him an additional $900 in cash to cover court filing costs.

For a little over a year, Rickert did not answer the clients' repeated requests for information. By checking with a court clerk, they learned he had not filed the complaint on their behalf as he had promised.

Rickert presented the clients with an accounting statement, returned their file, and refunded the full amount of the fees they paid only after they submitted a complaint about him to the State Bar.

In aggravation, Rickert committed multiple acts of misconduct that significantly harmed his clients.

In mitigation, he entered into a prefiling stipulation, had practiced law discipline-free for approximately 24 years, and submitted eight letters from individuals attesting to his good character as well as evidence of his community service and pro bono work. In addition, he was allotted mitigating weight due to family problems he suffered during the time of the misconduct, as his petition for divorce was filed the day after he met with them to review their claim.

Hilary Gail Shankin-Murphy

State Bar #93225, Oak Park (October 29, 2018)

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

Theadore Marshall Smith

State Bar #79420, San Diego (October 27, 2018)

Smith was suspended from the practice of law for one year and placed on probation for three years following his successful completion of the State Bar Court's Alternative Discipline Program (ADP). He was given credit for the 15 months of interim suspension that occurred earlier.

Smith had two convictions for driving under the influence of alcohol in 2003. From March of 2012 to March of 2015, he had three additional convictions for driving under the influence (Cal. Veh. Code §23152(a))--the first, a misdemeanor; the second two, felony violations to which he pled guilty and stipulated involved moral turpitude.

In aggravation, Smith committed multiple acts of misconduct and had a prior disciplinary record based on his two initial DUI convictions.

In mitigation, he successfully completed the ADP and submitted letters from eight witnesses who were aware of the full extent of his misconduct and attested to his good character.

Michael Thomas Stoller

State Bar #120241, Calabasas (October 26, 2018)

Stoller was suspended for six months and placed on probation for two years following a contested disciplinary matter in which he was charged with two counts of professional misconduct related to a single client. He was found culpable of both counts: failing to obey a court order and failing to report judicial sanctions imposed against him to the State Bar.

In the underlying matter, Stoller represented the defendant in a business dispute. In the course of that representation, he re-noticed or withdrew eight ex parte notices, most of them in an untimely manner. Opposing counsel, who was inconvenienced by rescheduling and twice appearing in court for the ex parte matter, ultimately motioned for an order issuing sanctions for abuse of process. The court found sufficient basis for the sanctions and ordered Stoller to pay opposing counsel $3,000. He did not pay, nor did he report the sanctions order to the State Bar as required.

Stoller argued that his failure to comply with the sanctions order was based on his understanding that the orders in the case, including the sanctions order, were on appeal and thus not final. The State Bar Court, after reviewing the appeal notice, found there was no "reasonable or good faith belief" for that assertion.

Stoller also claimed he did not report the sanctions order to the State Bar because the superior court had already done so, and he did not believe he had an independent obligation to do so. The State Bar Court also found this claim unreasonable--especially in light of the fact Stoller had extensive litigation experience and had previously been disciplined for failing to report a sanctions order.

In aggravation, Stoller had two prior records of discipline and demonstrated indifference toward rectifying or atoning for the consequences of his misconduct.

In mitigation, he was allotted limited credit for stipulating to some easily proven facts, as well as for seven reference letters from individuals who did not represent a range from the legal and general communities--three of whom were not aware of the full extent of the misconduct alleged. He was also given modest weight for performing community service, evidence of which was offered primarily through his own testimony, with involvement mostly confined to facilitating fundraising connections.

PUBLIC REPROVAL

Rebecca Loo

State Bar #232159, Pasadena (October 9, 2018)

Loo was publicly reproved after she stipulated to committing three acts of professional misconduct related to a single client matter: failing to promptly refund unearned advanced fees after terminating employment, failing to render an appropriate accounting of those fees to the clients, and failing to promptly return the clients' file after being requested to do so.

In the underlying matter, Loo was hired to represent three trustees responsible for two separate trusts, both of them created by two of the clients' parents. She accepted $5,000 for her representation. Just over a week after retaining Loo, however, the clients faxed a letter terminating her services and requesting an accounting and return of the fees they had paid.

She did not return the unearned fees, provide a final accounting, or return the clients' files until nearly two years after the initial termination letter was faxed.

In aggravation, Loo committed multiple acts of misconduct and harmed her clients by depriving them of the unearned fees they were due.

In mitigation, she entered into a prefiling stipulation, had practiced law for 10 years without a record of discipline, and provided evidence of seven individuals from a mix of the general and legal communities--all of whom were willing to attest to her good character.

Joseph John Nazarian

State Bar #299526, Newport Beach (October 30, 2018)

Nazarian was publicly reproved after he stipulated to pleading guilty to and being convicted of one count of possession of a controlled substance (Cal. Health & Safety Code §11377(a)).

In the underlying matter, Nazarian was arrested at a rave festival after an undercover detective saw him remove red and blue vials and plastic baggies containing green and pink tablets from his shoe. An investigation uncovered 2.07 grams of Ketamine in the vials, as well as 18 tablets and five capsules of different forms of Ecstasy. Giving a statement at the scene, he told detectives that a "friend" sometimes gave him Ecstasy that he would then share with others.

The State Bar Court judge found that the facts and circumstances surrounding the violation did not involve moral turpitude, but did involve other conduct warranting discipline.

In mitigation, Nazarian entered into a pretrial stipulation, saving the State Bar time and resources, and produced letters from individuals from a range of the legal and general communities--all of whom attested to his good character and ability as an attorney.

Peter Kristofer Strojnik

State Bar #242728, Phoenix, Arizona (October 17, 2018)

Strojnik was publicly reproved after he stipulated to committing two counts of professional misconduct as determined in another jurisdiction. The wrongdoing there constituted failing to respect the rights of others and engaging in misconduct prejudicial to the administration of justice.

In the underlying matter, Strojnik, who was admitted to practice law in Arizona, was retained to represent a client in a sexual harassment action against her former employer and three other restaurants. After filing a complaint in an Arizona federal court, he embarked on a series of intimidation tactics in an effort to compel settlement of the case. His actions included creating a website on which he posted unprofessional comments about those he sued; threatening to place a shaming banner in the public area of the restaurants; threatening to discuss the lawsuit with a television station, police, and the Department of Justice; and posting defamatory content on one of the restaurant's websites.

The litigants, filing a cross-complaint, were also moved to apply for a temporary restraining order (TRO) against Strojnik; the judge at the hearing to eliminate the TRO deemed the provocative conduct "unprofessional," and prompted his agreement to cease.

The State Bar Court judge found that, as a matter of law, the culpability of professional misconduct determined by the Arizona Bar authorities also warrants discipline in California.

In aggravation, Strojnik significantly harmed the litigants in the comments posted online and increased legal costs by prompting the opponents to file a cross-complaint as well as motions to strike portions of the complaint filed. In addition, he received aggravating weight for failing to report the Arizona matter to the State Bar of California.

In mitigation, he entered into a prefiling stipulation, had practiced law in California for approximately eight years without a record of discipline, and was addressing emotional difficulties related to alcoholism at the time of the misconduct.

Michael Frank Tanner

State Bar #206913, Los Angeles (October 16, 2018)

Tanner was publicly reproved after he stipulated to pleading nolo contendere to committing battery causing serious bodily injury, a misdemeanor (Cal. Penal Code §242/243(d)).

In the underlying matter, Tanner and his wife, who were living separately, got into an argument over the ownership of their daughter's pair of skis that were located outside his residence. A scuffle ensued. Fire department personnel responded to the scene and treated the wife, who had a cut to her ear that required stitches, scratches to her neck, and a bruised hand and shoulder. Tanner had two scratches to the back of his neck, consistent with fingernail scratches. The wife then sought a protective order against Tanner, saying she feared him.

The State Bar Court judge determined that the facts and circumstances surrounding the violation did not involve moral turpitude, but did involve other misconduct warranting professional discipline.

In aggravation, Tanner caused significant harm by inflicting the gashes and bruising. The judge also allotted aggravating weight for the fact that Tanner was a public defender, who "should be well versed in the effects of domestic violence and violent conduct on the victims of domestic violence, their families, and society as a whole."

In mitigation, he entered into a pretrial stipulation, had practiced law discipline-free for 17 years, and provided 13 letters of reference written by individuals taken from a range of the legal and general communities.

#350409

Ben Armistead


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