Case Number(s): 01-O-2736-PEM; 01-O-4310; 01-O-5293; 02-O-11014; 03-0-2602; 03-0-4475; 04-0-10312; 04-0-10444; 04-0-10824
In the Matter of: Bernabe Hernandez, Bar # 110671, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Cydney Batchelor, Bar # 114637
Counsel for Respondent: Bar #
Submitted to: State Bar Court Clerk’s Office San Francisco
Filed: September 26, 2006
<<not >> checked. PREVIOUS STIPULATION REJECTED
1. Respondent is a member of the State Bar of California, admitted December 12, 1983.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law (to be attached separately) are rejected or changed by the Supreme Court. However, if Respondent is not accepted into the Lawyer Assistance Program, this stipulation will be rejected and will not be binding on the Respondent or the State Bar.
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 11 pages.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts." See attached
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law". See attached
6. 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.
7. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7 and will pay timely any disciplinary costs imposed in this proceeding.
Additional aggravating circumstances:
See attachment
Additional mitigating circumstances:
See attached
SIGNATURE OF THE PARTIES
Case Number(s): 01-O-2736-PEM, et al.
In the Matter of: Bernabe Hernandez
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitations and each of the terms and conditions of this Stipulation Re Facts and Conclusions of Law.
Respondent enters into this stipulation as a condition of his/her participation in the Program. Respondent understands that he/she must abide by all terms and conditions of Respondent’s Program Contract.
If the Respondent is not accepted into the Program or does not sign the Program contract, this Stipulation will be rejected and will not be binding on Respondent or the State Bar.
If the Respondent is accepted into the Program, upon Respondent’s successful completion of or termination from the Program, this Stipulation will be filed and the specified level of discipline for successful completion of or termination from the Program as set forth In the State Bar Court’s Statement Re: Discipline shall be Imposed or recommended to the Supreme Court.
Date: 7/10/05
Respondent’s Signature: Bernabe Hernandez
Date: 7/15/05
Deputy Counsel’s Signature: Cydney Batchelor
THE MATTER OF: BERNABE HERNANDEZ
CASE NUMBER(S): 01-O-02736; 01-O-04310; 01-O-05293; 02-O-11014; 03-0-02602; 03-0-04475; 04-0-10312; 04-0-10444; 04-0-10824
DISMISSALS.
02-0-11014 (Chili Willie): Upon Respondent’s successful completion of the State Bar Court’s Alternative Discipline Program, the State Bar will request this Court to dismiss this case, without prejudice. The case involved a failure to cooperate with a State Bar investigation, but no substantive misconduct, and is memorialized below in "aggravating factors."
Case No. 04-O-10312: (Steve Rosen) The State Bar respectfully requests the Court to dismiss this case at this time, without prejudice. If called as a witness, Respondent would testify that he stopped communicating with Mr. Rosen after Mr. Rosen threatened his life. In addition, after Respondent stopped communicating with him, Mr. Rosen was convicted of soliciting the murder of a Sonoma County Sheriff’s deputy who was investigating a criminal case against him. The State Bar cannot now offer Mr. Rosen as a credible witness against Respondent here. However, the case also involved Respondent’s failure to cooperate with the State Bar investigation in this case, and is memorialized below in "aggravating factors."
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the State Bar Act and/or Rules of Professional Conduct:
Case No. 01-O-02736 (James O’Rourke)
Facts: On May 2, 2000, Respondent was appointed by the Sonoma County Superior Court to represent James F. O’Rourke in a criminal matter. Thereafter, between May 2, 2000 and June 2001, Respondent failed to reply to almost all Mr. O’Rourke’s telephone calls for information about his case. Respondent also failed to inform Mr. O’Rourke that the criminal court imposed a fine against him in the amount of $100.00 pursuant to a plea agreement that Respondent entered into on Mr. O’Rourke’s behalf.
Conclusions of Law: By willfully failing to return almost all Mr. O’Rourke’s numerous telephone calls, Respondent failed to respond to reasonable status inquiries from his client, in violation of Bus. and Prof. Code section 6068(m). By willfully failing to inform Mr. O’Rourke that he had entered into a plea agreement on his behalf, Respondent failed to inform his client of a significant development in his case, in further violation of Bus. and Prof. Code section 6068(m).
Case No. 01-O-04310 (Steve and Nancy Nella)
Facts: On January 12, 1998, Steve and Nancy Nella (hereafter "the Nellas") employed Respondent to represent them in civil litigation on a contingency fee basis. Thereafter, Respondent failed to take any further substantive action on the Nellas’ behalf. He also failed to respond to most of the Nellas’ numerous oral and written communications.
Conclusions of Law: By repeatedly failing to provide substantive legal services on the Nellas’ behalf, Respondent failed to perform competently the legal services for which he was employed, in violation of Rule of Professional Conduct 3-110(A). By willfully failing to return almost all the Nellas numerous verbal and written requests for information; Respondent Failed to respond to reasonable status inquiries from his clients, in violation of Bus. and Prof. Code section 6068(m).
Case No. 01-O-’05293 (Abelardo Mendoza)
Facts.; On July 27, 2001, Abelardo Mendoza employed Respondent in two separate matters, a driving under the influence criminal charge and a traffic citation, and eventually paid him a total of $1000.00 in advanced fees toward a flat fee of $2000.00. Thereafter, Respondent failed to perform any substantive services on Mr. Mendoza’s behalf, or to return most of his numerous telephone calls for information. In September 2001, Mr. Mendoza wrote to Respondent to request the return of his unearned attorney fees. Respondent failed to respond or comply.
Conclusions of Law: By repeatedly failing to provide any substantive legal services on Mr. Mendoza’s behalf, Respondent failed to perform competently the legal services for which he was employed, in violation of Rule of Prof. Conduct 3-110(A). By willfully failing to respond to Mr. Mendoza’s numerous telephone messages, Respondent failed to respond to reasonable status inquiries from his client, in violation of Bus. and Prof. Code section 6068(m). By willfully failing to return the unearned attorney fees promptly upon request, Respondent failed to refund unearned fees promptly, in violation of Rule of Prof. Conduct 3-700(D)(2).
Case No. 03-0-02602 (Joseph Hull)
Facts: On March 7, 2002, Joseph Hull employed Respondent to represent him in a criminal matter, and Respondent was paid $2500.00 in advanced attorney fees towards a quoted fee of $3500.00. From September 2002 until June 2003, Respondent failed to respond to numerous verbal and written communications. Finally, Respondent failed to return unearned advanced attorney fees.
Conclusions of Law:. By willfully failing to respond to Mr. Hull’s verbal and written requests for information about the case, Respondent failed to respond to reasonable requests for information from his client, in violation of Bus. and Prof. Code section 6068(m). By willfully failing to respond unearned attorney fees, Respondent failed to respond unearned fees promptly, in violation of Rule of Prof. Conduct 3-700(D)(2).
Case No. 03-0-04475 (Anthony Johnson):
Facts: In April 2003, Respondent represented Anthony Johnson as conflict counsel in a criminal case in which Mr. Johnson was sentenced to serve time in state prison. At that time, Mr. Johnson requested Respondent to file a notice of appeal on his behalf; Respondent agreed, but failed to do so. Respondent also failed to respond to numerous telephone calls from Mr. Johnson about the appeal. Finally, Mr. Johnson’s appeal was filed by someone else.
Conclusions of Law: By recklessly failing to file a notice of appeal for Mr. Johnson as he had promised to do, Respondent failed to perform competently the legal services for which he was employed, in violation of Rule of Prof. Conduct 3-110(A). By failing to respond to Mr. Johnson’s numerous messages, Respondent failed to respond to reasonable requests for information from his client, in violation of Bus. and Prof. Code section 6068(m).
Case No. 04-O-10444: (Gerald Marchello)
Facts: In October 2002, Gerald Marchello employed Respondent to represent him in a petition to recover several firearms which had been confiscated by the Santa Rosa Police Department, and paid him $2000.00 in advanced fees. Thereafter, through Respondent’s efforts, most of the firearms were returned to Mr. Marchello. However, before returning the final firearm, the City Attorney needed information from Mr. Marchello, and wrote to Respondent to obtain the information on August 14, 2003. Respondent failed inform Mr. Marchello of the issue, or to obtain the information from him. In addition, Respondent failed to respond to numerous inquiries from Mr. Marchello about the firearm. Finally, in March 2004, Mr. Marchello communicated directly with the City Attorney and resolved the issue. Thereafter, Mr. Marchello made several requests to Respondent for his file; however, Respondent failed to comply until after the intervention of the State Bar.
Conclusions of Law: By willfully failing to respond to Mr. Marchello’s numerous requests for information about the case, or to inform him about the City Attorney’s request for information about the remaining firearm, Respondent failed to communicate adequately with his client, in violation of Bus. and Prof. Code section 6068(m). By willfully failing to return Mr. Marchello’s file until after the intervention of the State Bar, Respondent failed to return a client file promptly upon request, in violation of Rule of Prof. Conduct 3-700(D)(1).
Case No. 04-0-10824: (Kris Ingwell)
Facts: In January 2002, Kris Ingwell employed Respondent to represent him in some criminal matters, and Mr. Ingwell’s father paid $2500.00 against the Respondent’s verbal agreement to provide the representation for a flat fee of $5000.00. Respondent thereafter represented Mr. Ingwell at trial. At the conclusion of the trial, Respondent agreed to file an appeal to contest the credit for time spent in custody issue; however, Respondent failed to do so or to respond to Mr. Ingwell’s numerous messages about the appeal. In addition, Mr. Ingwell and his family gave Respondent a gold watch, major credit cards and documents to hold in safekeeping. Despite repeated requests from Mr. Ingwell that Respondent release this property to his father, Respondent has failed to do so. Mr. Ingwell’s appeal was finally filed by someone else.
Conclusions of Law: By recklessly failing to file an appeal on the sentencing issue, Respondent failed to perform competently the legal services for which he was employed, in violation of Rule of Professional Conduct 3-110(A). By willfully failing to respond to Mr. Ingwell’s numerous requests for information, Respondent failed to communicate adequately with his client, in violation of Bus. and Prof. Code section 6068(m). By willfully failing to release the personal property upon the request Mr. Ingwell, behalf of Ingwell and by failing to perform any substantive work after sentencing, Respondent wilfully failed upon termination of employment to take reasonable steps to avoid reasonably foreseeable prejudice to his client in violation of Rules of Professional Conduct, rule 3-700(A)(2). By failing to release lngwell’s personal property upon request, Respondent failed to deliver as requested by the client property in his possession, in violation of Bus. and Prof. Code section 4-100(B)(4).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(6), was June 15, 2005.
AGGRAVATING CIRCUMSTANCES.
Facts Supporting Aggravating Circumstances:
Multiple Acts of Misconduct: The facts and conclusions set forth above involve multiple acts of misconduct to multiple clients.
Significant Harm: The Nellas case: During the time that Respondent failed to pursue the case, the primary defendant died without her testimony being preserved. The Mendoza case: As a result of Respondent’s inaction, Mr. Mendoza’s driving license was suspended.
Failure to provide fee agreements: In the Mendoza and Ingwell matters, Respondent failed to provide written fee agreements to his clients, in violation of Bus. and Prof. Code section 6148(a).
Failure to cooperate in investigations: Although Respondent has cooperated fully with the deputy trial counsel of record in resolving these cases, he failed to cooperate with the investigator in the following matters: Nellas, Mendoza, Willie, Hull, Johnson; Rosen, Marchello, and Ingwell.
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
No Prior Discipline: Respondent has no prior record of discipline since being admitted to practice in 1983, eighteen years ago,
Candor and cooperation: Despite the seriousness of the offenses, Respondent has been completely and extraordinarily candid and cooperation with the State Bar during its resolution of these cases.
Objective Steps Promptly Taken: In the O’Rourke case, Respondent voluntarily paid restitution to his client in the amount of $400.00; this was the civil penalty and attorney’s fee charge assessed against Mr. O’Rourke for the unpaid $100.00 fine. In the Mendoza case, Respondent has voluntarily agreed to return the entire $1000.00 advanced attorney fees, as well as the $234.00 in additional penalties assessed against his client as a result of the delay in resolving the traffic citation. In the Hull case, Respondent has agreed to refund the entire $2000.00 advanced attorney fees. In the Marchello case, Respondent has agreed to return the entire $2000.00 advanced attorney fees. In the lngwell case, Respondent has voluntarily agreed to return the entire $2500.00 advanced attorney fees.
ADDITIONAL MITIGATING CIRCUMSTANCES.
Participation in Lawyer’s Assistance Program. In January 2005, Respondent contacted the State Bar Lawyer Assistance Program ("LAP") and completed the intake process. In February 2005, Respondent signed a pre-enrollment assessment agreement with LAP. Respondent was then assessed and monitored for a period for time by the LAP. At the conclusion of the process, Respondent entered into a long-term participation plan with LAP on June 5, 2005.
RESTITUTION.
Respondent waives any objection to immediate payment by the State Bar Client Security Fund upon a claim or claims for the principal amounts of restitution set forth below.
In accordance with the timetable set forth in the "Alternative Discipline Program" contract to be executed between the State Bar Court and Respondent on the captioned cases, Respondent must make restitution as follows:
Abelardo Mendoza, or the Client Security Fund, if it has paid, in the principal amount of $1,234.00, until paid in full and furnish satisfactory evidence of restitution to the State Bar Court.
Joseph Hull, or the Client Security Fund, if it has paid, in the principal amount of $2,000.00, until paid in full and furnish satisfactory evidence of restitution to the State Bar Court.
Gerald Marchello, or the Client Security Fund, if it has paid, in the principal amount of $2,000.00, until paid in full and furnish satisfactory evidence of restitution to the State Bar Court.
Marvin Ingwell, or the Client Security Fund, if it has paid, in the principal amount of $2,500.00, until paid in full and furnish satisfactory evidence of restitution to the State Bar Court.
Case Number(s) : 01-O-02736-PEM, et. al
In the Matter of: Bernabe Hernandez
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 conclusions of law is APPROVED AS MODIFIED as set forth below and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated
1. On page 3, C(8), -an “x” is inserted in the box indicating emotional/physical difficulties.
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 file date. [See rule 953[a],
California Rules of Court.]
Signed by:
Judge of the State Bar Court: Pat McElroy
Date: October 24, 2005
[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 San Francisco, on September 26, 2006, I deposited a true copy of the following document(s):
STIPULATION RE FACTS AND CONCLUSIONS OF LAW
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 San Francisco, California, addressed as follows:
BERNABE HERNANDEZ
350 E ST #220
SANTA ROSA CA 95404
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
CYDNEY BATCHELOR, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on September 26, 2006.
Signed by:
George Hue
Case Administrator
State Bar Court