May 2020

DISBARMENT

Nicholas Raymond Damer

State Bar No. 52309, El Granada (March 14, 2020)

Damer was summarily disbarred after being convicted of two felonies: knowingly accessing a computer and taking, copying, or making use of data without permission (Cal. Penal Code Section 502(c)(2)) and sending a threatening letter for the purpose of extortion (Cal. Penal Code Section 523), as well as the misdemeanor of intentionally and knowingly violating a protective order (Cal. Penal Code Section 273.6(a)).

After considering relevant authorities and the legal analysis filed by the Office of the Chief Trial Counsel, the State Bar Court judge concluded that the offense involving the extortion letter, previously unclassified, involved moral turpitude per se, and recommended summary disbarment.

Michael Samuel Epstein

State Bar No. 176885, Pinole (March 22, 2020)

Epstein was disbarred after he failed to participate, either in person or through counsel, in the disciplinary proceeding in which he was charged with a single count of professional misconduct. The State Bar Court judge determined that he had received adequate legal notice, and that he did not act to have the default order subsequently entered against him set aside or vacated.

He was found culpable of failing to provide substantive responses to two letters sent by State Bar investigators related to allegations of professional wrongdoing.

Gregory Ford Gilbert

State Bar No. 65920, McClellan (March 14, 2020)

Gilbert was summarily disbarred.

He earlier pled guilty to a felony: conspiracy (18 U.S.C. Section 371), where the object of the conspiracy was bribery concerning a program receiving federal funds (18 U.S.C. Section 66(a)(2)) — and the State Bar Court received evidence that conviction was final for the purposes of attorney discipline.

The conviction was classified as involving moral turpitude per se.

Steven Franklyn Helfand

State Bar No. 206667, Miami Beach, Florida (March 22, 2020)

Helfand was disbarred. Although he participated in the early stages of his disciplinary proceeding — filing a stipulation to extend the time to file his response and appearing telephonically at a status conference — he failed to take any additional action or make any additional appearances in the case. He did not move to have the default entered against him set aside or vacated.

He was found culpable of all 12 counts of professional misconduct with which he was charged. His wrongdoing included: seeking to mislead a judge, appearing for a party without authority to do so, failing to disclose his relationship with a party in a multiple-client case without making a written disclosure, representing multiple clients with potential conflicts of interest without their written consents, representing clients with potential conflicts of interest in settlement discussions without informing them of relevant circumstances, and failing to maintain sufficient funds in his client trust account.

In addition, he was culpable of several counts of misconduct involving moral turpitude: seeking to mislead a judge dishonestly, making false and misleading statements to a client about his case, making numerous false and misleading statements to opposing counsel, making misrepresentations to a court, making numerous misrepresentations to State Bar investigators, and misappropriating client funds.

Jacques Bernard Leboeuf

State Bar No. 163579, El Cerrito (March 22, 2020)

Leboeuf was disbarred by default after he failed to participate, either in person or through counsel, in his disciplinary proceeding. The Office of the Chief Trial Counsel of the State Bar presented a supporting declaration that the deputy trial counsel assigned to Leboeuf’s case had used reasonable diligence in attempting to reach him to give notice and direction on the proceedings. He did not respond to the subsequent petition for disbarment or move to set aside or vacate the default judgment entered against him.

He was found culpable of failing to file a timely declaration of compliance with the clerk of the State Bar Court as required by the California Supreme Court (Cal. Rules of Ct., Rule 9.20).

Leboeuf had been disciplined for professional misconduct twice before at the time he was disbarred.

Carlo Ocampo Reyes

State Bar No. 226150, Canoga Park (March 14, 2020)

Reyes was disbarred. He appeared for the initial status in the disciplinary proceeding charging him with eight counts of professional misconduct, and attempted to file a response in the case by fax, which the State Bar Court rejected for improper service. However, he did not participate after that, nor did he respond to the petition for his disbarment, ultimately resulting in a default entered against him.

He was found culpable of eight counts of professional misconduct related to two client matters. His wrongdoing included: sharing legal fees with a non-lawyer, failing to maintain client funds in a trust account, failing to render appropriate accounts to a client, failing to promptly pay settlement funds received on behalf of the client, and breaching his fiduciary duties. Three of the counts involved moral turpitude — including misappropriating a client’s funds, issuing a check from an account with insufficient funds to cover it, and violating a written agreement to resolve an attorney lien before dispensing settlement funds to the client.

Reyes had two prior records of discipline, and there were eight non-public disciplinary matters pending against him when he was disbarred.

William Earl Turner

State Bar No. 51729, Monrovia (March 14, 2020)

Turner was disbarred after he failed to participate in his disciplinary proceeding. The Office of Chief Trial Counsel of the State Bar supplied a declaration of reasonable diligence detailing the steps taken to provide him with legal notice. After he filed no response, his default was entered and he was involuntarily enrolled as inactive. He did not move to have the default set aside or vacated.

He was found culpable of four counts of professional misconduct: failing to maintain client records in trust, failing to update his membership address in the State Bar records, and two counts of authorizing electronic debits from his client trust account when he was grossly negligent in not knowing there were insufficient funds in the account to cover the transactions — wrongdoing involving moral turpitude,

Turner had one prior record of discipline at the time he was disbarred.

Amy Lillian Vichinsky

State Bar No. 250534, Corning, New York (March 14, 2020)

Vichinsky was disbarred after she stipulated to failing to comply with several conditions attached to a disciplinary probation imposed earlier.

Specifically, she failed to schedule and participate in the required meeting with the Office of Probation, failed to submit an initial written quarterly report and declaration of review of the Rules of Professional Conduct and Business and Professions Code as mandated, and failed to report compliance with the probation conditions in her underlying criminal case. In addition, she failed to file a declaration of compliance as required by the California Supreme Court (Cal. Rules of Ct., Rule 9.20).

In aggravation, Vichinsky had a prior record of discipline.

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

Phuong Dave Vo

State Bar No. 257186, Monterey Park (March 14, 2020)

Vo was summarily disbarred after his conviction of committing bribery in a program receiving federal funds became final. The offense is a felony that involves moral turpitude per se.

Before the disbarment recommendation was made, the Office of Chief Counsel of the State Bar was ordered to produce evidence that “Dave Phuong Dinh Vo” and “Phuong Dave Vo” are the same person — and it did so.

Steven Alan Weinkauf

State Bar No. 91421, Pacifica (March 14, 2020)

Weinkauf was disbarred by default after he failed to participate in the disciplinary proceeding of which he had actual notice, either in person or through counsel. His default was entered, and he did not move to have the order set aside or vacated. The Office of Chief Trial Counsel of the State Bar then filed a petition for disbarment.

Weinkauf had earlier been convicted of stalking (Cal. Penal Code Section 646.9(a)) with an enhancement of using a deadly weapon (Cal. Penal Code Section 12022) after engaging in a campaign of stalking and vandalism aimed at an individual he had previously dated. The evidence showed he drove to that person’s business after normal working hours and vandalized the property — shooting a crossbow arrow at the window on several occasions and once shooting a handgun at that window. The offense is a felony, and the State Bar Court found the facts and circumstances surrounding it involved moral turpitude.

In addition, Weinkauf was found culpable of failing to obey a court order by not complying with the notice requirements for suspended attorneys as mandated by the California Supreme Court (Cal. Rules of Ct., Rule 9.20).

Tyler Thomas Wilkinson

State Bar No. 225365, La Jolla (March 14, 2020)

Wilkinson was summarily disbarred following finality of his convictions of grand theft (Cal. Penal Code Section 487(a)) — a felony involving moral turpitude, and of knowing intending to present false or misleading information regarding an insurance claim (Cal. Penal Code 550(b)(2)) — a previously unclassified felony that the State Bar determined also involved moral turpitude.

David Marvin Wiseblood

State Bar No. 115312, San Francisco (March 22, 2020)

Wiseblood was charged with 12 counts of professional misconduct, and disbarred after he failed to participate in the disciplinary proceeding concerning those charges. He had earlier acknowledged receiving the Notice of Disciplinary Charges filed against him and initially filed and served a response. However, he later withdrew the answer he had filed, as he did not intend to contest the charges by proceeding to trial.

He did not seek to have the default order entered against him set aside or vacated. Consequently, the factual allegations in the charges were deemed admitted, and Laboeuf was found culpable of all 12 counts charged.

His wrongdoing, which involved several client matters, included: disobeying court orders to appear at order to show cause hearings, failing to promptly release the client’s papers and property after being requested to do so, failing to comply with state law, and failing to comply with disciplinary probation conditions imposed earlier; two counts of failing to communicate significant case developments to his clients; and three counts of failing to perform legal services with competence.

Several counts involved moral turpitude — including billing his client twice for drafting a judgment in a case he should have known was dismissed, making several false statements to his clients in writing, and practicing law when he was suspended.

Wiseblood had a prior record of discipline, and there were two non-public disciplinary matters pending against him when he was disbarred.

SUSPENSION

Joseph Arshawsky

State Bar No. 135891, Deerfield, Massachusetts (March 22, 2020)

Arshawsky was suspended from practicing law for six months and placed on probation for two years after he stipulated to committing various offenses in several different jurisdictions.

In the first matter, he was convicted in Minnesota of making a communication intended to terrorize (Minn. Stat. Section 609.13). The offense was classified as a gross misdemeanor under Minnesota law; the same misconduct constitutes a felony under comparable California law (Cal. Penal Code Section 422(a)). In the underlying incident, after drinking several beers and smoking marijuana at a bar in Minneapolis, Arshawsky was physically removed from the premises by a bouncer. After later causing a disturbance at a hospital clinic, police drove him to an adult detention center, where he was placed in a solitary cell. In the early morning hours, he summoned a detention employee, stating that he had “a big dirty bomb” back at his hotel that was scheduled to go off that morning. No bomb was found there.

In a second incident, Arshawsky pled guilty to a misdemeanor first offense of driving while intoxicated in New Mexico (New Mexico Stat. Section 66-8-102). He had summoned officers to report the theft of his marijuana and food, as well as an assault he alleged to have suffered at the hands of a taxi driver. He had appeared intoxicated, and admitted to consuming several alcohol drinks, but ignored officers who implored him not to drive.

Shortly after, he voluntarily admitted himself to a medical center, where he continued treatment for a bipolar disorder.

In a third incident, after being stopped by police in Florida who spotted him driving erratically, Arshawsky pled no contest to the misdemeanor of driving under the influence with a blood or breath alcohol level of .08% or greater (Fla. Stat. Section 316.193.1).

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

In aggravation, Arshawsky committed multiple acts of misconduct.

In mitigation, he entered into a pretrial stipulation, had practiced law for approximately 15 years without a record of discipline, and was allotted minimal mitigating weight for character references given by two attorneys, as opposed to a broad range taken from both the legal and general communities.

James Paul Baratta

State Bar No. 292848, San Juan Capistrano (March 22, 2020)

Baratta was suspended from the practice of law for two years and placed on probation for three years after he stipulated to engaging in criminal conduct related to his former girlfriend.

Initially, he pled guilty to four counts with which he was charged: first degree burglary (Cal. Penal Code Sections 459-460(a)) and vandalism causing damages of more than $400 (Cal. Penal Code Section 594(a)/(b)(1)) — both felonies, as well as two misdemeanors: unlawful computer access and fraud (Cal. Penal Code Section 502(c)(3)) and another count of vandalism (Cal. Penal Code Section 594(b)(1)). Sentencing on the two felony counts was postponed and those counts were dismissed after Baratta completed probation; the court then also ended the supervision of his criminal probation for the misdemeanor counts, converting it to informal probation.

Baratta and another attorney dated for about one year before she broke off the relationship, which made him angry. He went to her apartment, broke her television, punctured holes in her car tires, and made changes to her airline flight reservations without her knowledge.

He later entered her apartment again while she was not home without her permission, and wrote a deceptive email message to her law associates, stating she was quitting, as well as to a former boyfriend — intimating that she wanted to resume their relationship. He then damaged some of the woman’s clothing and jewelry before smearing personal lubricant and pouring hot sauce throughout the apartment — lighting candles and turning the heat on high before leaving. The mess was cleaned up that afternoon by a housekeeper.

Shortly after that, Baratta returned to the apartment, again without permission, and displayed photos the couple had taken together earlier throughout the place — again lighting candles and leaving them burning.

He then stipulated to a Domestic Violence Restraining Order the woman sought; the court granted it and ordered Baratta to make restitution of nearly $11,000 and to pay attorney’s fees of nearly $7,000. He paid both amounts.

The California State Bar Court judge determined that the facts and circumstances surrounding the underlying behavior involved moral turpitude,

In aggravation, Baratta committed multiple acts of misconduct that significantly harmed the former girlfriend, who ultimately lost her job and sought professional help to deal with the emotional distress suffered.

In mitigation, he entered into a pretrial stipulation.

Lottie Wolfe Cohen

State Bar No. 94674, Los Angeles (March 22, 2020)

Cohen was suspended for six months and placed on probation for one year following her appeal of that disciplinary recommendation.

In the trial below, she was found culpable of six counts of professional misconduct related to two client matters consolidated in the instant case: two counts each of failing to keep client funds in a trust account, failing to maintain proper records of client funds, and misappropriating client funds — an act involving moral turpitude.

The State Bar Court panel on appeal also found Cohen culpable of an additional two counts of moral turpitude for issuing checks with nonsufficient funds; the hearing judge had dismissed those counts, citing insufficient evidence of “an intentional practice” of issuing checks that she knew would not be honored.

In the first case, Cohen was hired to represent a client in an employment discrimination case that settled for $98,000. She deposited the settlement check received into her client trust account, issuing two checks to herself as attorney fees and a series of three checks to the client who had requested her payment in installments. The final client check was returned for nonsufficient funds (NSF). At trial, Cohen produced a barebones document detailing only the client checks issued — failing to provide any other client ledger, account journal, or monthly reconciliation for her client trust account.

The State Bar had issued a conditional warning letter informing Cohen that it would close its investigation if she attended its Client Trust Accounting School. She completed the course, but shortly after, the State Bar received notice Cohen had issued another NSF check in another case, and reopened the earlier investigation.

In the second client case, a shortfall in client trust account funds was attributed partially to bank errors. However, the State Bar Court panel on appeal underscored that Cohen had failed to keep detailed client ledgers or trust account journals. It held: “Cohen’s prolonged failure to properly monitor and maintain accurate CTA records to ensure that the balance was sufficient to cover outstanding checks is gross negligence that supports a finding of moral turpitude.”

In aggravation, Cohen committed multiple acts of misconduct, demonstrated a lack of candor by offering inconsistent testimony at trial, and showed indifference by failing to accept responsibility for her actions.

In mitigation, she was allotted moderate weight for practicing law discipline-free for approximately 34 years and for character evidence presented by 11 individuals — most of whom were unaware of the full extent of her misconduct.

Benjamin A. Eilenberg

State Bar No. 261288, Riverside (March 22, 2020)

Eilenberg was suspended from practicing law for 18 months and placed on probation for two years after a contested disciplinary matter in which he was found culpable of failing to comply with conditions imposed in an earlier disciplinary order.

Specifically, he was culpable of three counts of failing to comply with conditions specified in the court rule (Cal. Rules of Ct., Rule 9.20) requiring him to file a compliance declaration verifying that he had notified all courts in which he had pending litigation, as well as opposing counsel and unrepresented adverse parties in writing — by certified or registered mail, return receipt requested — of his disciplinary suspension. Eilenberg noted on his late-filed declaration: “In some cases I informed opposing counsel via email/phone and the Courts in person.”

The State Bar Court judge found that action did not comply with the specifications of the court rule.

In aggravation, Eilenberg had a previous record of discipline, and was given modest aggravating weight for committing multiple acts of misconduct, since all three violations arose from his failure to comply with the same order.

In mitigation, he demonstrated cooperation by entering into a stipulation of facts and admission of documents. He was also allotted limited weight for performing community services as that work was not well documented, as well as nominal weight for letters from four character witnesses that were neither signed under penalty of perjury nor demonstrative of the full extent of his misconduct, and for suffering from mental health issues as verified by a letter from his treating therapist that lacked specific details.

Frank Edward Miller

State Bar No. 162270, South Gate (March 14, 2020)

Miller was suspended for two years and placed on probation for three years after he stipulated to pleading nolo contendere to two separate alcohol-related offenses: committing a hit and run accident (Cal. Veh. Code Section 20002(a)) and driving under the influence of a drug (Cal. Veh. Code Section 23152(e)).

Both offenses are misdemeanors, and the State Bar Court determined that the facts and circumstances surrounding both of the violations did not involve moral turpitude, but did involve other misconduct warranting professional discipline.

In the first incident, Miller swerved into and collided with a truck while driving on the freeway. He did not stop to exchange information with the truck driver, but drove off and left the freeway at the next exit, where he was arrested after being unable to complete the field sobriety tests administered. At the time, he was on summary criminal probation stemming from a domestic battery conviction.

In the second traffic incident, which occurred about three months later, Miller fell asleep while driving in the early morning hours, colliding with several unoccupied parked cars. He had been working all night and took prescription Xanax prior to the accident; results from a blood sample also revealed opiates and benzodiazepines in his system.

In aggravation, Miller committed multiple acts of wrongdoing and had three prior records of discipline.

In mitigation, he entered into a pretrial stipulation and presented evidence of mental difficulties and disabilities for which he was receiving treatment.

Walter Roy Mitchell

State Bar No. 165834, Newport Beach (March 14, 2020)

Mitchell was suspended from practicing law for 90 days and placed on probation for two years after he was found culpable of committing two acts of professional misconduct related to mishandling his client trust account.

Specifically, within a six-month period, he deposited or commingled personal with client funds in the account on nine separate occasions.

In addition, he was found culpable of using funds that were earned fees on deposit in his client trust account to pay personal expenses five times during that period. However, the State Bar Court judge rejected the parties’ partial stipulation that Mitchell had issued checks or electronic withdrawals from his client trust account to pay personal expenses in three of those transactions. The court clarified that he withdrew cash from the account and purchased cashier’s checks with it, then used the cashier’s checks to pay his personal expenses.

The court acknowledged that former Rule 4-100(A) then in effect, as well as the successor Rule 4-100, are unclear on the requirements and prohibitions related to withdrawing earned advanced fees from a client trust account. But it emphasized that the California Supreme Court absolutely bars using client trust account funds for personal purposes — even if there are no client funds in the account.

To underscore that point, it quoted extensively from precedent clarifying permissible procedures: “When an attorney pays his or her personal expenses with CTA checks, the attorney cloaks the transaction with the care and soundness represented by the account and its relationship to the confidential bond between attorney and client . . . . More significantly, if client funds are in the account, invading the trust account to satisfy personal debts puts the client funds in outright jeopardy, contrary to the very therapeutic purpose of [former Rule 4-100(A), designed to prevent such risk.” (Doyle v. State Bar, 32 Cal. 3d 12, 22-23).

In aggravation, Mitchell committed multiple acts of misconduct — warranting significant aggravation since they followed his receipt of two warning letters and two resource letters from the State Bar for the same or similar misconduct. He also had a prior record of discipline and demonstrated “little insight or understanding of his own wrongdoing,” suggesting that the wrongdoing may reoccur.

In mitigation, he entered into a partial stipulation as to facts, presented testimony from five individuals attesting to his good character, and was allotted limited mitigation weight for personal difficulties related to a child battling drug addiction and to complications from a heart attack he suffered recently.

Elias Francisco Portales

State Bar No. 230402, Oakland (March 22, 2020)

Portales was suspended from the practice of law for three years and placed on probation for five years after successfully completing the State Bar Court’s Alternative Discipline Program (ADP); his participation in the program began on April 2, 2018.

Prior to Portales’ participation, the court approved a stipulation in which he admitted to a number of acts of professional misconduct. Specifically, he failed to timely files his declaration of compliance as required by court rule (Cal. Rules of Ct., Rule 9.20), failed to notify opposing counsel and court connected to pending litigation as Rule 9.20 also requires, failed to comply with various conditions of his disciplinary probation, misrepresented on his compliance declaration that he did not represent any clients while suspended — an act involving moral turpitude, and held himself out as entitled to practice and actually practiced law while on disciplinary suspension — misconduct that also involved moral turpitude,

In aggravation, Portales committed multiple acts of misconduct, had two prior records of discipline, and attempted to conceal his unauthorized practice of law from both opposing counsel and the State Bar’s Office of Chief Trial Counsel.

In mitigation, he entered into a pretrial stipulation and successfully completed the ADP.

PROBATION

Joseph Patrick Cullan

State Bar No. 212209, Omaha, Nebraska (March 22, 2020)

Cullan was placed on probation for one year after he stipulated to committing an act of professional misconduct in another jurisdiction. The State Bar Court judge determined that the misconduct there also warranted that discipline be imposed in California.

Cullan, licensed as a lawyer and doctor, concentrates his legal practice in personal injury, wrongful death, and medical malpractice. On an application to practice pro hac vice in an Iowa case, signed under penalty of perjury, he misrepresented that he had never been held formally in contempt or sanctioned within the last five years; in fact, he had been sanctioned in two separate cases in Nebraska.

In mitigation, Cullen entered into a pretrial stipulation, had practiced law discipline-free for 15 years in both California and Nebraska, presented evidence of engaging in community service work, and provided reference letters from eight individuals — all of whom were aware of the extent of his misconduct, but attested to his good character.

— Barbara Kate Repa