Case Number(s): 00-O-14761
In the Matter of: Andrew Levy, Bar # 153999, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erin McKeown Joyce, Bar # 149946; Fumiko D. Kimura, Bar# 208763
Counsel for Respondent: Susan L. Margolis, Bar # 104629
Submitted to: settlement judge State Bar Court Clerk’s Office Los Angeles
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted September 30. 1991.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 22 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
<<not>> checked. until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 284, Rules of Procedure.
checked. costs to be paid in equal amounts prior to February 1 for the three (3) billing cycles following the effective date of the Supreme Court Order. (hardship, special circumstances or other good cause per rule 284, Rules of Procedure
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
Respondent has no prior record of discipline and was admitted in 1991.
During the time period involved in Case Nos. 00-0-14761 and 01-0-02226, Respondent’s first wife died unexpectedly, leaving him to care for three children under the age of five and two older step-children. Respondent and his children were severely impacted by his wife’s death. As a result, at the time the Shaw matter occurred, Respondent was not attending as closely to the day-to-day running of his law practice, and relied heavily upon the assistance of his office staff, including Heredia and Salazar, who had worked for him for close to ten years without incident.
Case Number(s): 00-O-14761, et al.
In the Matter of: Andrew Levy
<<not>> checked. a. Within days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
checked. b. Within 0 days/ 8 months/ 0 years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than 8 hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Case Number(s): 00-O-14761, et al.
In the Matter of: Andrew Levy
a. Restitution
checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee: Lilia Rodriguez
Principal Amount: $7,085.00
Interest Accrues From: 11/23/04
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than
checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable) Lilia Rodriguez
Minimum Payment Amount $500.00
Payment Frequency Monthly, commencing May 28, 2006 and the 28th day of each month thereafter until fully paid.
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
checked.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3.
The requirements
of this condition are in addition to those set forth in rule 4-100, Rules of
Professional Conduct.
checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
Case Number(s): 00-O-14761, et al.
In the Matter of: Andrew Levy
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a Notice of Disciplinary Charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere shall be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court shall find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based. (Added by Stats. 1996, ch. 1104.) (emphasis supplied)
Rule 133, Rules of Procedure of the State Bar of California STIPULATION AS TO FACTS, CONCLUSIONS OF LAW AND DISPOSITION
(a) A proposed stipulation to facts, conclusions of law, and disposition must set forth each of the following:
(5) a statement that Respondent either
(i) admits the facts set forth in the stipulation are true that he or she is culpable of violations of the specified statutes and/or Rules of Professional Conduct or
(ii) pleads nolo contendere to those facts and violations. If the Respondent pleas nolo contendere, the stipulation shall include each of the following:
(a) an acknowledgement that the Respondent completely understands that the plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his or her culpability of the statutes and/or Rules of Professional Conduct specified in the stipulation; and
(b) if requested by the Court, a statement by the Deputy trial counsel that the factual stipulations are supported by evidence obtained in the State Bar Investigation of the matter (emphasis supplied)
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 133(a)(5) of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent: Andrew Levy
Date: 5-24-6
IN THE MATTER OF: ANDREW LEVY
CASE NUMBERS: 00-O-14761, 01-O-2226, 01-O-4636, 01-O-5327, 05-O-01347, 06-O-10721 and 06-0-11577
FACTS AND CONCLUSIONS OF LAW
Respondent pleads nolo contendere to the charges detailed below.
Respondent acknowledges that he completely understands that the plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his culpability of the statutes and Rule of Professional Conduct violations specified in the stipulation.
The State Bar asserts that the following factual stipulations are supported by evidence obtained in the State Bar investigation of the matters contained herein.
Case No. 00-0-14761 - Violation of Rule of Professional Conduct 3-110(A)
Facts
1. In November 1998, Robert Shaw employed Respondent to represent him in a personal injury matter. On November 24, 1998, Shaw and Respondent executed a retainer agreement which gave Respondent authority to sign documents related to his personal injury action on Shaw’s behalf. Under the retainer agreement, Respondent was entitled to a contingency fee of 33 1/3% prior to the filing of a lawsuit and 40% after the filing of a lawsuit.
2. Respondent employed two individuals named Elvia Heredia ("Heredia") and Yolanda Salazar in his Montebello office.
3. Respondent maintained a client trust account at Wells Fargo Bank, account number 0221-979990 ("CTA") during the relevant time period.
4. In February 2000, Respondent received a settlement draft from State Farm dated February 7, 2000, in the amount of $12,500.00 made payable to "Robert K. Shaw & Law Offices of Andrew Levy, His Attorney" for Shaw’s personal injury claim. Shortly after receiving the draft, on February 7, 2000, Respondent deposited the $12,500.00 State Farm draft into his CTA.
5. On February 8, 2000, Respondent issued three checks from his CTA to distribute the $12,500.00 Shaw settlement proceeds. First, Respondent issued check number 1275 in the amount of $3,417.34 made payable to "Robert Shaw." Second, he issued CTA check number 1276 in the amount of $3,500.00 made payable to Paramount Physicians, Shaw’s sole medical provider. Third, Respondent issued CTA check number 1277 in the amount of $4,666.66 to himself, for attorney’s fees in the Shaw personal injury matter.
6. Unbeknownst to Respondent, Heredia and Salazar added the words "or Yolanda Salazar" to check number 1275.
7. According to Respondent, his office staff told Respondent that Shaw was coming to pick up his check. Instead, on February 11, 2000, Salazar negotiated the check without giving Shaw any portion of the personal injury settlement. Respondent did not check to see if Shaw had received his settlement funds and did not discover Salazar’s misappropriation of the funds until a year later.
8. Respondent was grossly negligent in his handling of the Shaw personal injury settlement, which allowed Heredia and Salazar to access Shaw’s funds and misappropriate those funds.
9. After Respondent was contacted by the State Bar about Shaw’s complaint about not receiving his settlement funds, Respondent paid Shaw the settlement funds he was due.
Conclusions of Law
By failing to supervise his secretary and other support staff and failing to institute and follow adequate procedures and policies to ensure that settlement funds were properly distributed, Respondent acted in wilful violation of Rule of Professional Conduct 3-110(A).
Case No. 01-O-02226 - Violation of Rule of Professional Conduct 3-300(A)
Facts
10. In May 2000, Respondent met with Linda and Abe Fasheh for the purpose of negotiating a personal loan to his professional law corporation of funds belonging to Michael Qreitem (Linda Fasheh’s brother). The Fashehs were former clients of Respondent.
11. The loan of $80,000.00 was memorialized in a loan agreement dated May 4, 2000. The terms of the loan agreement were not fair and reasonable to Qreitem or the Fashehs because there was no security for the loan, and Respondent provided no personal guarantee.
12. The Fashehs attempted to collect full payment on the loan prematurely. This led to further negotiations between Respondent and the Fashehs in an attempt to change the terms of the repayment schedule. However, the parties could not agree on the new terms.
13. Respondent subsequently fell behind in his payments.
14. Later, the Fashehs received repayment for the loan from Respondent.
Conclusions of Law
By negotiating and taking a loan of Qreitem’s funds from the Fashehs on terms that were not fair or reasonable to his clients, Respondent knowingly acquired a possessory and pecuniary interest adverse to a client without complying with the requirement that the transaction and its terms were fair and reasonable to the client in wilful violation of Rule of Professional Conduct 3300(A).
Case Nos. 01-O-02226, 01-O-4636, 01-O-5327 and 06-O-10721 -Violation of Rule of Professional Conduct 4-100(A)
15. During the time period from May 5, 2000 through Jane 25, 2003, Respondent issued multiple checks to pay for his personal or business expenses from his CTA as follows:
Check No. 1306; Posting Date May 5, 2000; Payee Cash; Amount $600.00;
Check No. 1307; Posting Date May 8, 2000; Payee Andrew Levy; Amount $500.00;
Check No. 1309; Posting Date May 9, 2000; Payee United Legal Services; Amount $10,000.00;
Check No. 1310; Posting Date May 11, 2000; Payee Andrew Levy; Amount $15,000.00;
Check No. 1313; Posting Date May 18, 2000; Payee Elvia Heredia; Amount $1,000.00;
Check No. 1331; Posting Date June 28, 2000; Payee United Legal Services; Amount $15,000.00;
Check No. 1336; Posting Date June 29, 2000; Payee Andrew Levy; Amount $2,000.00;
Check No. 1337; Posting Date July 3, 2000; Payee Andrew Levy; Amount $3,600.00;
Check No. 1340; Posting Date July 3, 2000; Payee World; Amount $2,945.67;
Check No. 1338; Posting Date July 8, 2000; Payee Andrew Levy; Amount $2,000.00;
Check No. 1345; Posting Date July 21, 2000; Payee Cash; Amount $1,000.00;
Check No. 1354; Posting Date August 2, 2000; Payee Andrew Levy; Amount $1,333.33;
Check No. 1358; Posting Date August 24, 2000; Payee Cash; Amount $1,000.00;
Check No. 1272; Posting Date February 3, 2000; Payee Wells Fargo; Amount $5,400.00;
Check No. 1281; Posting Date March 15, 2000; Payee Andrew Levy - Cash; Amount $8,200.00;
Check No. 1283; Posting Date March 17, 2000; Payee United Legal Services-Levy- Cash; Amount $600.00;
Check No. 1285; Posting Date March 17, 2000; Payee World; Amount $2,945.67;
Check No. 1301; Posting Date May 3, 2000; Payee Cash; Amount $432.00;
Check No. 1297; Posting Date May 4, 2000; Payee Cash; Amount $500.00;
Check No. 1385; Posting Date October 16, 2000; Payee Cash; Amount $5,150.00;
Check No. 1387; Posting Date October 27, 2000; Payee Stan Levy; Amount $1,450.00;
Check No. 1431; Posting Date December 15, 2000; Payee Cash; Amount $3,200.00;
Check No. 1450; Posting Date January 17, 2001; Payee World; Amount $3,430.39;
Check No. 1459; Posting Date February 9, 2001; Payee Cash; Amount $5,000.00;
Check No. 1465; Posting Date February 20, 2001; Payee World; Amount $3,400.00;
Check No. 1561; Posting Date October 1, 2001; Payee Cash; Amount $7,000.00;
Check No. 1809; Posting Date June 20, 2003; Payee Andrew Levy; Amount $1,200.00;
Check No. 1812; Posting Date June 25, 2003; Payee Andrew Levy; Amount $1,901.00
16. United Legal Services was being paid from his CTA. Heredia was Respondent’s secretary being paid out of his CTA.
17. World was the mortgage holder on a Simi Valley property owned by Respondent, which was being paid by Respondent out of his CTA.
18. During the same time period, Respondent deposited non-client funds in the form
of cash and a cheek from United Legal Services to cover his personal and business expenses he was paying out of his CTA as follows:
Posting Date March 29, 2000; Type of Deposit Cash; Amount $6,500.00;
Posting Date March 30, 2000; Type of Deposit Cash; Amount $4,000.00;
Posting Date April 11, 2000; Type of Deposit Check from United Legal Services; Amount $2,000.00;
Posting Date September 14, 2000; Type of Deposit Check from Stan Levy noted “Loan profit plan”; Amount $5,000.00;
Posting Date October 6, 2000; Type of Deposit Check from account of Elvia Heredia; Amount $2,318.00;
Posting Date February 23, 2001; Type of Deposit Cash deposit; Amount $1,950.00
Posting Date December 3, 2001; Type of Deposit Cash deposit; Amount $8,500.00;
Posting Date December 4, 2001; Type of Deposit Cash deposit; Amount $3,000.00;
19. The cash deposits and the United Legal Service check were not client money, but instead comprised Respondent’s personal funds he improperly deposited into his CTA.
20. The cash deposits and the checks from Respondent’s secretary and from his father were not client funds, but instead comprised of Respondent’s personal funds he improperly deposited into his CTA.
Conclusions of Law
By issuing checks from his CTA to pay for business or personal expenses, and by depositing non-client funds into his CTA, Respondent deposited and commingled non-client funds in his CTA, and improperly used his CTA as a personal account, in wilful violation of Rule of Professional Conduct 4-100(A).
Case No. 04-0-10813 - Violation of Rule of Professional Conduct 3-700(D)(2)
Facts
21. On December 2, 2003, Lilia Rodriguez employed Respondent to represent her husband, Felipe Rodriguez, in an immigration matter. Rodriguez paid Respondent a total of $6,700.00 for attorney fees. The retainer agreement called for payment of $10,000.00.
22. After the case was completed, Respondent’s office demanded payment of the outstanding fees. Rodriguez refused to pay and instead demanded a refund of the $6,700.00 she paid in attorney’s fees.
23. Thereafter, in 2004, Rodriguez filed a request for fee arbitration with the Committee on Arbitration of the Los Angeles County Bar Association, Dispute Resolution Services. In her request, Rodriguez sought the refund of the $6,700.00 she paid to Respondent.
24. Respondent received a copy of Rodriguez’s request to the Committee. In response, he objected to the claim that any refund was owed and submitted documentation showing that the work had been performed.
25. A heating was subsequently scheduled but Respondent did not appear. The hearing proceeded by default.
26. On November 23, 2004, the Committee on Arbitration ordered that Respondent refund to Rodriguez the full amount of the fees she paid to Respondent, $6,700.00, plus an additional $385.00 for the arbitration filing fee and costs.
27. Respondent took no action to challenge the arbitration award before it became final and binding.
28. Respondent has not yet paid the award.
29. Respondent agreed to begin making $500.00 per month payments on the arbitration award to the Rodriguezes after the NDC was filed in this matter and after he learned that the time had expired for him to successfully challenge the arbitration award. Respondent began making payments of $500.00 per month in May 2006.
Conclusions of Law
By failing to timely pay the arbitration award, Respondent acted in wilful violation of Rule of Professional Conduct 3-700(D)(2).
Case No. 05-0-01347 - Violation of Rule of Professional Conduct 3-110(A)
Facts
30. After learning of the misconduct in the Shaw case of Heredia, who had been Respondent’s employee in his Montebello office, Respondent fired Heredia in February 2001.
31. Later, Respondent rehired Heredia and continued to work with her throughout 2002 and into 2003 without instituting procedures to ensure that Heredia would not engage in further misconduct as his employee.
32. According to the State Bar, on January 11, 2003, Heredia and an associate, Maria Elena Alderete, met with undercover agents from the Department of Homeland Security Immigration and Customs Enforcement ("ICE") in El Paso, Texas, as part of a money laundering operation which was being investigated in Texas.
33. The previous November, 2002, $45,000.00 of ostensible drug money was given by the undercover ICE agents to Alderete. The purpose of the January 2003 meeting was for Alderete to return some of the laundered funds in the form of official checks made out to fictitious names provided by the agents.
34. At the January 2003 meeting, Heredia presented several official checks to the agents and explained that she could launder even larger amounts of funds in California. She claimed to work with an attorney named "Andrew." One of the official checks Heredia presented to the agents was an official check issued on January 11, 2003 by Wells Fargo Bank in the amount of $7,500.00. The official check was made payable to one of the fictitious names provided by the agents, Victor Cardillo.
35. The official check had been purchased by Heredia’s employer, Respondent, who paid cash for the check and referenced his CTA to avoid paying the service fee of $8.00.
36. Respondent purchased the official check and arranged for the check to be made out to the fictitious name, based on representations of Heredia that she owed "Victor Carrillo" money and needed Respondent to purchase the official check for her. The State Bar has no evidence that Respondent was aware of Heredia’s money laundering scheme at the time he purchased the official check.
37. At the time he purchased the official check, Respondent was aware of the fraud Heredia had perpetrated in the Shaw case. Nevertheless, Respondent acted on Heredia’s representations to purchase the official check.
Conclusions of Law
By failing to supervise his employee and purchasing an official check based on his employee’s representations, when he was on notice of her misconduct in the Shaw case, Respondent acted in wilful violation of Rule of Professional Conduct 3-110(A).
Case No. 06-O-11577 - Violation of Rule of Professional Conduct 3-110(A)
Facts
38. On January 4, 2002, Respondent was retained by Jovita Morales, Cesar Morales’ mother, to represent Cesar Morales in a criminal appeal. Morales paid Respondent $21,000.00 of a $25,000.00 retainer to prepare the briefs on behalf of Morales for his appeal.
39. On September 30, 2002, Respondent filed Appellant’s Opening Brief in People v. Morales, case no. BA179633, the California Court of Appeal, Second Appellate District, Division Three on behalf of Cesar Morales.
40. In the Opening Brief, Respondent, among other things, raised a claim that the trial court erred by denying Morales’ new trial motion. In fact, Morales never filed a new trial motion or orally argued a new trial motion on any ground. Respondent lifted the inapplicable argument from a brief filed by one of Morales’ co-defendants.
41. In the Opening Brief filed by Respondent on behalf of Morales, Respondent also made reference to Morales’ trial counsel’s alleged failure to call Officer Eric Valdez during the criminal trial. However, there was never any Officer Valdez involved in Morales’ case. Respondent lifted this inapplicable argument from an unrelated appellate brief.
42. Throughout the Opening Brief, Respondent cited to pages allegedly in the Reporter’s Transcript which did not exist, again using portions of some other brief.
Conclusions of Law
By raising arguments in the Opening Brief in Morales’ criminal appeal which clearly did not apply to Morales’ case, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in wilful violation of Rule of Professional Conduct 3-110(A).
AUTHORITIES SUPPORTING DISCIPLINE
Standards for Attorney Sanctions for Professional Misconduct, Title IV of the Rules of Procedure of the State Bar of California ("Standard")
Standard 1.3 states that the primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession. Rehabilitation of a member is a permissible object of a sanction imposed upon the member but only if the imposition of rehabilitative sanctions is consistent with the above-stated primary proposes of sanctions for professional misconduct.
Standard 1.6(a) provides that the appropriate sanction for an act of professional misconduct shall be that set forth in the following standards for the particular act of misconduct found or acknowledged. If two or more acts of professional misconduct are found or acknowledged in a single disciplinary proceeding, and different sanctions are prescribed by these standards for said acts, the sanction imposed shall be the more or most severe of the different applicable sanctions.
Standard 2.2(b) provides for a minimum actual suspension of 90 days, irrespective of mitigating circumstances, for commingling of entrusted funds or another violation of rule 4-100, Rules of Professional Conduct.
Standard 2.4(b) provides that culpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.8 provides that culpability of a member of a wilful violation of rule 3-300, Rules of Professional Conduct, shall result in suspension unless the extent of the member’s misconduct and the harm to the client are minimal, in which ease, the degree of discipline shall be reproval.
Standard 2.10 provides that culpability of a member of a violation of any provision of the Business and Professions Code or Rules of Professional Conduct not specified in the Standards shall result in reproval or suspension according to the gravity of the offense or harm to the victim, with due regard to the purposes of the imposition of discipline outlined in Standard 1.3.
Case Law
In McKnight v. State Bar, 53 Cal.3d 1025 (1991), the respondent was actually suspended for one year for a variety of violations of the Rules of Professional Conduct, including the current 3-300 (improperly entering into a business transaction with a client), commingling and other serious trust account violations.
In The Matter of Lantz, 4 Cal. Bar Ct. Rptr. 126 (2000), the respondent was actually suspended for one year for several violations over a period of years, including misappropriation through gross neglect, recklessly incompetent performance of services, failing to return unearned fees promptly and failure to provide an accounting.
While neither of these cases is directly on point, pursuant to Standard 1.6(a), they provide guidance that the one year actual suspension for the variety of violations in which Respondent engaged is appropriate.
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed on October 7, 2005 and the facts and conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
DISMISSALS
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. 00-0-14761; Count One; Alleged Violation B&PC 6106;
Case No. 00-0-14761; Count Two; Alleged Violation B&PC 6106;
Case No. 00-0-14761; Count Three; Alleged Violation B&PC 6106;
Case No. 00-0-14761; Count Five; Alleged Violation B&PC 6068(m);
Case No. 00-0-14761; Count Six; Alleged Violation B&PC 4-100(A);
Case No. 00-0-14761; Count Seven; Alleged Violation B&PC 4-100(B)(1);
Case No. 00-0-14761; Count Eight; Alleged Violation RPC 4-100(B)(4);
Case No. 00-0-14761; Count Nine; Alleged Violation B&PC 6106;
Case No. 01-O-02226; Count Ten; Alleged Violation B&PC 6106;
Case No. 01-O-02226; Count Fourteen; Alleged Violation B&PC 6106
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of May 23, 2006, the estimated prosecution costs in this matter are approximately $12,047.44. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
PENDING PROCEEDINGS
The disclosure date referred to, on page one, paragraph A (7), was May 24, 2006.
SIGNATURE OF THE PARTIES
Case Number(s): 00-O-14761, et al.
In the Matter of: Andrew Levy
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: Andrew Levy
Date: 5-24-6
Respondent’s Counsel: Susan L. Margolis
Date: 5-24-06
Deputy Trial Counsel: Erin McKeown Joyce and Fumiko D. Kimura
Date: 5-24-06
Case Number(s): 00-O-14761, et al.
In the Matter of: Andrew Levy
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
Page 11 – Case Numbers: Add – 04-O-10813
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 135(b), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 953(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Platel
Date: May 26, 2006
[Rule 62(b), Rules Proc.; Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on May 31, 2006, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:
SUSAN MARGOLIS, ESQ.
MARGOLIS & MARGOLIS
2000 RIVERSIDE DRIVE
LOS ANGELES CA 90039
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERIN JOYCE & FUMIKO KIMURA, ESQ., Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on May 31, 2006.
Signed by:
Rose M. Luthi
Case Administrator
State Bar Court