November 2023

DISBARMENT

Frank Patrick Duncan

State Bar #25865, Los Angeles (September 15, 2023)

Duncan 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 file an initial response to the notice charging him with 10 counts of professional misconduct related to two client cases, nor did he move to have the default subsequently entered against him set aside or vacated.

Though Duncan appeared by telephone in initial status conferences, he later informed the State Bar's Office of Chief Trial Counsel that he understood that his failure to file a response to the charges could result in a recommendation of disbarment, but that he opted not to respond.

His wrongdoing included: improperly accepting fees from a nonclient, failing to inform a client of significant case developments, improperly withdrawing from employment, failing to render an appropriate accounting of client fees, failing to notify his client in a pending matter that he had been suspended from practicing law, failing to timely deliver papers and property to his client after being suspended, failing to comply with several conditions imposed in an earlier disciplinary order, and failing to file a declaration of compliance, as mandated by court rules, due to his suspended status (Cal. Rules of Ct., Rule 9.20). He was also culpable of two counts of failing to properly notify opposing counsel of his suspended status.

Duncan had three prior records of discipline at the time he was disbarred.

Jackie P. Ferrari

State Bar #276560, Long Beach (September 30, 2023)

Ferrari was disbarred by default in a conviction referral matter involving a felony: knowingly and intentionally distributing a Schedule II controlled substance--oxycodone, in this case (21 U.S.C. §§ 841(a)(1) and (b)(1)(c)).

Ferrari appeared at the initial status conference in the case. However, she failed to file a response to the notice of hearing on conviction, and a default was ordered against her, which she failed to move to have set aside or vacated.

Relevant facts in the underlying matter: An individual died of an accidental overdose caused by the effects of fentanyl, a powerful synthetic opioid. Investigators learned that the deceased had earlier received text messages from Ferrari arranging the sale of drugs. Police investigators arrested an individual who identified Ferrari as a distributor and courier for a pill counterfeiting operation. They also found more than 100 postings by Ferrari on Craigslist advertising the sake of narcotics--including heroin, oxycodone, methadone, tramadol, Adderall, and ecstacy. They later arrested an individual for oxycodone trafficking, who agreed to act as a confidential source and to wear a recording device during a drug sale with Ferrari .

While initially uncooperative after her arrest, Ferrari later admitted to "facilitating" sale of oxycodone and to creating Craigslist postings to advertise the drug sales. She was sentenced to a term of six months in federal prison, followed by three years of supervised release.

Michael Alan Gevertz

State Bar #127711, San Francisco (September 30, 2023)

Gevertz was disbarred by default after he failed to participate in his disciplinary proceeding, either in person or through counsel.

The State Bar Court found that all procedural requirements had been satisfied in the case, and that a default order was entered, which Gevertz did not move to have set aside or vacated. The factual allegations in the charges were then deemed admitted and found to support the conclusion that Gevertz was culpable as charged, and that his misconduct warranted professional discipline.

He was found culpable of two counts of commingling: depositing personal funds into his client trust account and paying personal expenses from that account.

Shannon Marie Henderson

State Bar #216104, Roseville (September 1, 2023)

Henderson was disbarred by default.

In a consolidated proceeding, she was charged with disobeying a court rule (Cal. Rules of Ct., Rule 9.20) by failing to file a declaration of compliance as required in the terms of a disciplinary order imposed earlier, and by failing to comply with several probation conditions as required. Specifically, she failed to schedule and participate in an initial meeting with the Office of Probation, failed to review and submit a declaration attesting to her review of the Rules of Professional Conduct and the Business & Profession Code as ordered, and failed to file three written quarterly reports with the Office of Probation.

She failed to participate in the present proceeding, either in person or through counsel. The State Bar Court found that all procedural requirements, including those related to service and notice, had been satisfied, and that Henderson had failed to move to have the default entered against her set aside or vacated.

Prior to being disbarred in the instant case, Henderson had been disciplined by the State Bar three times for professional misconduct.

Victor Waidor Luke

State Bar #193150, Norwalk (September 30, 2023)

Luke was disbarred after he stipulated to committing two counts of professional misconduct, both related to a disciplinary order imposed earlier. He failed to comply with the court order that he had to give notice to clients, co-counsel, opposing counsel and adverse parties of his suspended status (Cal. Rules of Ct., Rule 9.20) and to file a declaration verifying that he had complied with the requirements.

In aggravation, Luke had two prior records of discipline, and committed multiple acts of misconduct in the instant case.

In mitigation, he entered into a pretrial stipulation.

Andrew Brian Mitchell

State Bar #284405, Santa Barbara (September 15, 2023)

Mitchell was disbarred by default after he failed to appear at the trial of the disciplinary charges against him. The case involved two disciplinary violation matters, which were consolidated. Mitchell had initially filed responses to each of the charges individually, and appeared for a pretrial conference, though not for trial. He did not move to have the default entered against him set aside or vacated.

In one case, he was found culpable of failing to timely file a declaration of compliance in accord with the California Rules of Court as mandated in an earlier disciplinary order (Cal. Rules of Ct., Rule 9.20).

In the other, he was found to have violated several conditions of his disciplinary probation--including failing to schedule an initial meeting with the Office of Probation, failing to provide proof of having reviewed the Rules of Professional Conduct and sections of the Business and Professions Code as ordered, failing to submit one written quarterly report, failing to provide proof that a copy of the stipulation was sent to a mental health provider, and failing to provide reports from a mental health provider.

Mitchell had been disciplined by the State Bar once previously before being disbarred in the instant case.

Leslie Wayne Westmoreland

State Bar #195188, Fresno (September 15, 2023)

Westmoreland was disbarred by default.

The State Bar's Office of Chief Trial Counsel (OCTC) failed to demonstrate that it had fully complied with the notice requirements (Rules of Proc. of State Bar of Cal., Rule 5.80(B)(2)); it was unclear whether a copy of the charges against Westmoreland were uploaded to his State Bar profile page. However, after considering the facts and circumstances involved--including the OCTC's other efforts to locate him--the State Bar Court concluded that Westmoreland was not prejudiced by the failure to demonstrate that compliance.

He was found culpable of all six counts of professional misconduct charged. His wrongdoing, all of which related to a single client case, included: failing to notify the State Bar of terminating a suspended attorney and failing to cooperate in the State Bar's investigation of the wrongdoing alleged, as well as two counts each of employing a suspended attorney to engage in prohibited activities and aiding in the unauthorized practice of law.

SUSPENSION

Michael Brian Buckley

State Bar #298510, St. Petersburg, Florida (September 15, 2023)

Buckley was suspended from the practice of law for 30 days and placed on probation for one year after he stipulated to committing several alcohol-related traffic offenses in another jurisdiction.

All violations occurred in Florida.

In one case, Buckley was charged with driving while intoxicated (Fla. Stat. 316.193) and resisting an officer without force (Fla. Stat, § 843.02). Highway patrol officers were summoned to the interstate in response to a report that five vehicles were racing there. While one officer was initiating a stop, Buckley sped toward his patrol car, then cut across three lanes and driving onto a highway shoulder and swerving between lanes, sometimes reaching a speed of 104 miles per hour. He did not respond to the officers' lights and sirens signaling an attempt to get him to pull over. After he did stop his vehicle, he walked unsteadily and had difficulty performing the field sobriety tests. When officers questioned him about the vodka and beer found in his truck, Buckley told them the alcohol belonged to his girlfriend.

Three days later, he was charged with driving with a blood alcohol level of .08% or higher and causing damage to property (Fla. Stat. § 316.193) and to refusing to submit to a breath, blood, or urine test while having had his driving privilege suspended for a prior refusal (Fla. Stat. § 316.1932). In the underlying incident, Buckley drove his vehicle into the fence inside a towing yard, then fled the scene of the collision. Police officers initiated a traffic stop after Buckley ran a stop sign. Bottles of vodka and beer were again found in his vehicle, which had damage to the back on the driver's side. Buckley refused to participate in the field sobriety tests, laying down in the roadway instead.

The two cases were consolidated, and Buckley pled no contest to all four counts.

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

In aggravation, Buckley had been previously publicly admonished by the Florida Bar authorities related to two files: He appeared at a mediation while intoxicated and had three criminal convictions for recklessly operating a boat and willful or reckless operation of a vessel, as well as for failing to obey a police officer in an Arizona criminal matter.

In mitigation, Buckley entered into a pretrial stipulation and voluntarily enrolled at an inpatient substance abuse treatment center.

Herman Jason Cohen

State Bar #188783, Sherman Oaks (September 15, 2023)

Cohen was suspended for six months and placed on probation for two years.

Five of the six counts or professional misconduct originally charged--all concerning misappropriation and failure to promptly pay medical lienholders--were dismissed due to reasonable doubt surrounding the existence of a valid lien and Cohen's knowledge of them. He was found culpable of the remaining count: commingling personal and client funds in his client trust account (CTA).

The relevant facts: Cohen used his CTA to facilitate cashing a check written to himself and drawn from his grandfather's trust--of which Cohen and his siblings were beneficiaries. The transaction took place as the check was deposited and immediately withdrawn from the account. Cohen signed both the deposit and withdrawal slips associated with it. About six months later, he deposited another check into his CTA which was also associated with his grandfather's putative trust. He then withdrew $7,775 for himself and an additional $1,600 for his mother, who had assigned her interest in the trust for him to distribute. No client funds were held in the CTA during these transactions.

The State Bar Court noted that the rule against commingling (Cal. Rules of Prof. Cond., Rule 1.15(c)) "bars use of a CTA for any other purpose to avoid jeopardizing any trust funds, regardless of whether client funds are on deposit at that moment."

In aggravation, Cohen had a prior record of discipline--a probation order that was later revoked due to his violations of several conditions imposed in it.

In mitigation, no clients were harmed by the misconduct in the instant case.

In recommending an actual six-month suspension--an elevated progressive level of discipline for the offense--the State Bar Court underscored that Cohen's prior record of discipline also involved misuse of his CTA.

Jason Wallace Estavillo

State Bar #188093, Oakland (September 1, 2023)

Estavillo was suspended from the practice of law for 30 days and placed on probation for one year after he stipulated to committing 11 acts of professional misconduct related to three separate client matters.

He was culpable of: accepting legal fees from a third party without first obtaining the client's written consent; two counts each of failing to promptly communicate a settlement offers to clients and failing to take steps to avoid reasonably foreseeable prejudice to clients upon terminating employment; and three counts each of failing to provide written statements to the clients in mortgage loan modification cases and charging illegal fees.

In all three of the underlying cases, Estavillo represented clients seeking loan modifications or mortgage forbearance repayment plans. However, his retainer agreement failed to include the statutorily-required statement informing them of alternative help (Cal. Civ. Code § 2944.6).

In one matter, the loan modification was denied--and the denial was affirmed on appeal. Thereafter, Estavillo refused to continue working on the case until the client paid an amount in addition to the $54,687 paid previously; he them ceased representation. In the second matter, the client paid $5,000 in unearned advanced fees. In the course of negotiations, the mortgage lender offered to reinstate the mortgage and terminate foreclosure proceedings; Estavillo did not communicate the offer to the client. He again sought additional payments before terminating his employment. The third client case followed a substantially similar fact pattern, with Estavillo again seeking additional funds and failing to convey a reinstatement offer to the client before terminating his representation. In two of the cases, Estavillo improperly terminated his services just days before scheduled foreclosures of their homes.

In aggravation, Estavillo committed multiple acts of misconduct that substantially harmed his clients who were financially challenged, he charged illegal fees, and he failed to make any restitution to the three clients for the illegal fees, which totaled $75,723.

In mitigation, he entered into a pretrial stipulation, had practiced law approximately 22 years without a record of discipline, presented 14 letters from a range of individuals--all of whom attested to his good character, and offered evidence of performing community service.

Matthew Walker Kaemerle

State Bar #310009, Gulf Breeze, Florida (September 30, 2023)

Kaemerle was suspended from practicing law for 30 days and placed on probation for one year after he stipulated to pleading nolo contendere to one count of driving under the influence of alcohol and causing property damage (Fla. Stat. § 316.193(3)(c)(1)).

The offense was committed in another jurisdiction. The California State Bar Court determined that the facts and circumstances surrounding the wrongdoing did not involve moral turpitude, but did involve misconduct warranting discipline in this state.

In the underlying matter, Kaemerle drove a vehicle into a brick mailbox, damaging it severely. Highway patrol officers summoned to the scene observed signs of inebriation, and were unable to complete a field sobriety test at the scene due to Kaemerle's inconclusive consent. He was given a breath test after being transported to jail, which indicated alcohol levels of .249% and .242%.

At the time of the DUI arrest, Kaemerle was on criminal probation after entering a condominium under false pretenses and committing battery on two young women there. One of the terms of his probation required that he abstain from consuming alcohol and taking illegal drugs.

In aggravation, Kaemerle had a prior record of discipline.

In mitigation, he entered into a pretrial stipulation and was under extreme emotional stress due to his wife's death during the time of the misconduct at issue. He also participated in alcohol abuse treatments, including an inpatient treatment program, following the violation at issue in this case.

Stanley Howard Kimmel

State Bar #77007, Granada Hills (September 15, 2023)

Kimmel was suspended for 60 days and placed on probation for one year after he stipulated to committing four acts of wrongdoing related to several cases in which he represented two clients--a mother and son.

His wrongdoing included two counts each of failing to perform legal services with competence and failing to keep his clients reasonably informed of significant case developments.

In one of the underlying matters, Kimmel represented a client in a business dispute filed against four defendants. Two of the defendants settled, but the other two remained. Though he appeared at two status conferences related to the remaining two defendants, he did not file any trial documents, nor did he appear for the initial trial date. The case was trailed, and Kimmel then appeared, but because he had failed to exchange witness and exhibit lists with opposing counsel, his client was precluded from offering evidence. The case was dismissed with prejudice.

While that case was pending, one of the defendants brought an action against Kimmel's client and a codefendant alleging illegal wiretapping. Kimmel was granted an initial extension of time to file responsive pleadings, but failed to timely file them. He then sought an additional 15-day extension of time to file; opposing counsel agreed on the conditions that Kimmel would draft a stipulation in the case and to file an answer, as opposed to a responsive motion. He failed to do either, and a default was entered against them.

Kimmel also represented the same client in a landlord/tenant dispute, suing a former tenant who allegedly caused property damage while living in the client's property. A trial was scheduled, but Kimmel failed to notify the client of the date, and when neither he nor the client appeared, the case was dismissed. The client learned of the dismissal several years later; Kimmel had failed to inform him.

And finally, Kimmel represented both the aforementioned client and his mother in claiming reimbursement from an insurer after an alleged home burglary. The defendant filed a motion for summary judgment, which Kimmel did not oppose, nor did he appear at the subsequent court hearing on the motion. The case was dismissed--and Kimmel failed to inform the clients of that dismissal.

In aggravation, Kimmel committed multiple acts of wrongdoing that significantly harmed his clients, whose cases were dismissed.

In mitigation, he entered into a pretrial stipulation, had practiced law for more than 35 years discipline-free, and submitted letters from 10 individuals, most of whom demonstrated an understanding of the misconduct at issue--and all of whom attested to his good character.

John Fredrick Klopfenstein

State Bar #164905, Salinas (September 1, 2023)

Klopfenstein was suspended from the practice of law for 60 days and placed on probation for one year after he stipulated to committing seven acts of professional misconduct--all of which related to mishandling client funds.

He was culpable of failing to maintain a written client trust account journal, as well as two counts each of failing to maintain the required balance in his client trust account, failing to maintain client funds in a trust account, and misappropriating client funds--misconduct involving moral turpitude.

Relevant facts include that Klopfenstein received settlement checks which he deposited into his client trust account. In one case, he agreed to disburse the amounts to his client in installments. He made several payments, but failed to maintain the required balance in the account. In another instance, he failed to maintain the balance required to be held before paying a medical lienholder. In addition, he twice deposited settlement checks into his operating account rather than an identifiable bank account labeled "Trust Account," or words of similar import. He also failed to maintain a written journal of client funds for approximately 4 1/2 years.

In aggravation, Klopfenstein committed multiple acts of wrongdoing.

In mitigation, he entered into a prefiling stipulation, had practiced law for approximately 26 years discipline-free, caused no harm to his clients through the misconduct at issue, and provided 11 letters from members of the legal and general communities who were aware of the misconduct committed and attested to his good character.

Patrick Joseph Steele

State Bar #106840, Bakersfield (September 1, 2023)

Steele was suspended for 30 days and placed on probation for two years after he stipulated to entering pleas of nolo contendere to three driving-related offenses: driving while under the influence of alcohol (Cal. Veh. Code § 23152(a)) with an admitted allegation of receiving a third DUI conviction in a 10-year period (Cal. Veh. Code § 23546(a)); driving without a license (Cal. Veh. Code § 12500(a)); and driving under the influence of a drug (Cal. Veh. Code § 23152(f)) as well as driving while under the influence of a controlled substance--methamphetamine (Cal. Health & Safety Code § 11550(a)).

The matters were consolidated and referred to the State Bar Court's Hearing Department for a determination of whether the facts and circumstances surrounding the convictions involved moral turpitude or other misconduct warranting professional discipline.

In the first incident, highway patrol officers saw Steele drive through a red light and skid to a stop. When pulled over, he failed the pre-field sobriety tests administered, and arrested for probable cause of driving under the influence of alcohol. A subsequent blood test indicated an alcohol content of .19%.

Approximately eight months later, Steele was again stopped after highway patrol officers observed him running a stop sign. He was cited for several violations, but convicted of driving without a license.

In the third incident, which occurred approximately 14 years later, highway patrol officers observed Steele speeding 20 miles over the posted limit. He refused to perform a field sobriety test at the scene, and was arrested. In a body search, officers found a clear bag containing 2.3 grams of methamphetamine--and in a later blood test, Steele tested positive for both methamphetamine and amphetamine.

The State Bar Court determined that none of the offenses--all of which were misdemeanors--involved moral turpitude, but recommended the discipline imposed here.

In aggravation, Steele committed multiple acts of wrongdoing.

In mitigation, he entered into a pretrial stipulation and had practiced law for 13 years discipline-free before committing the first offense at issue in the instant case.

Nicholas Tepper

State Bar #169610, Laguna Beach (September 15, 2023)

Tepper was suspended from practicing law for 18 months and placed on probation for three years after he stipulated to committing 36 acts of professional misconduct related to numerous client cases.

He was culpable of: failing to perform legal services with competence, improperly holding himself out as entitled to practice law, and entering into a wrongful fee agreement; two counts each of improperly withdrawing from employment and failing to promptly release client files upon termination of employment; and three counts each of failing to inform clients of significant case developments, and failing to return unearned advanced fees. Additional misconduct included four counts of failing to represent clients diligently, five counts of failing to cooperate in State Bar investigations of the wrongdoing alleged, six counts of failing to maintain client funds in a trust account, and seven counts of failing to provide accountings of funds held for clients. He was also culpable of one count involving moral turpitude: holding himself out as entitled to practice law while actually suspended.

The gravamen of most complaints against Tepper were that he accepted fees from clients wishing to pursue various types of legal claims, but failed to deposit them in a client trust account, or to provide accountings of those funds when requested to do so. In several cases, he simply failed to appear at scheduled court hearings and conferences, and failed to take necessary actions in the clients' cases.

At one point, he was registered as inactive due to his failure to comply with fee arbitration terms, and was then administratively suspended for nonpayment of State Bar dues. However, he continued to maintain websites representing himself as a practicing attorney--misconduct prompting a finding of moral turpitude. Tepper also ignored several queries by State Bar investigators seeking information about complaints filed against him.

In aggravation, Tepper committed multiple acts of misconduct, which significantly harmed a client by delaying her attempts to seek relief.

In mitigation, he entered into a pretrial stipulation and had practiced law for approximately 23 years without a record of discipline.

PROBATION

Gilbert Lynn Purcell

State Bar #113603, Novato (September 1, 2023)

Purcell was placed on probation for one year after appealing that same discipline, which was also recommended by the hearing judge below.

Upon independent review, the State Bar Court panel affirmed the findings of culpability, as well as most of the findings of aggravation and mitigation in the case. Purcell was deemed culpable of two counts of professional misconduct related to a single case: violating a court order and failing to maintain respect due to the courts.

In the underlying matter, Purcell represented a client seeking damages from two tobacco companies for suffering lung damage alleged to have been caused by smoking cigarettes. Extensive pretrial rulings excluded introducing evidence of the client's injuries and conditions other than lung cancer. Despite the limitation in effect, Purcell questioned three separate witnesses--all medical experts--about whether COPD, emphysema, and lung irregularities are also associated with cigarette smoking. Defense objections to these questions were sustained, and the trial judge sanctioned Purcell $1,500 for violating the pretrial orders.

In aggravation, Purcell was assigned limited weight for committing multiple acts of wrongdoing that occurred on three separate days in a single trial with three different witnesses.

In mitigation, he had practiced law for approximately 30 years discipline-free, introduced testimony by 14 witnesses at trial--several of whom also attested to his performance of community service, and was given moderate mitigation credit for having practiced for six years without additional evidence of wrongdoing since the misconduct in the instant case.

He was also allotted limited mitigating weight for cooperating with the State Bar's investigation by entering into a stipulation limited to easily proven facts.

--Barbara Kate Repa

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