ADDENDUM TO STIPULATED FACTS and CONCLUSIONS OF LAW

                                    STATE BAR PILOT PROGRAM

 

 

THE STATE BAR OF CALIFORNIA

OFFICE OF THE CHIEF TRIAL COUNSEL

ENFORCEMENT

MIKE ANCHETA NISPEROS, Jr., bar no. 85495

CHIEF TRIAL COUNSEL,

CHARLES A. MURRAY, bar no. 146069

DEPUTY TRIAL COUNSEL

BROOKE A. SCHAFER, bar no.194824

DEPUTY TRIAL COUNSEL

1149 South Hill Street

Los Angeles, California 90015-2299

Telephone: (213) 765-1000

 

 

THE STATE BAR COURT

 

PILOT PROGRAM - LOS ANGELES

 

In the Matter of ROBERT VICTOR MASENGA, No. 62020, A Member of the State Bar

 

 Case Nos. 01-O-04049-RMT, et al.

 

PARTIES’ ADDENDUM TO STIPULATION RE: FACTS AND CONCLUSIONS OF LAW

 

The State Bar of California, Office of Chief Trial Counsel, through Deputy Trial Counsel Brooke A. Schafer, and Respondent, Robert V. Masenga, through counsel Erica Tabachnick, submit this Addendum to the Stipulation re: Facts and Conclusions of Law previously lodged on August 8, 2003. This Addendum relates solely to the one remaining investigation matter involving Respondent, investigation no. 03-0-3864.

 

I. INCORPORATION OF PRIOR STIPULATION

 

This addendum is intended to supplement the Stipulation re: Facts and Conclusions of Law in case nos. 01-O-04049 et al., which the parties lodged with the Pilot Program Court on August 8, 2003 (the "Prior Stipulation"). The Prior Stipulation is also incorporated as if fully set forth herein. Attached hereto is the parties’ stipulation re: investigation no. 03-0-3864.

 

II. ADDITIONAL RESTITUTION CONDITION

 

As is set forth in the attached addendum, the additional investigation matter also carries with it an additional restitution condition. Any order or recommendation that Respondent pay restitution in these matters should include the additional restitution condition to Bette Deziel.

 

III. ALL OTHER DISCIPLINE CONDITIONS REMAIN THE SAME

 

It is the parties’ request that all other matters already submitted to the Court in these matters, including matters of discipline and conditions of Pilot Program, other than those set forth herein, shall remain the same.

 

Respectfully submitted,

 

December 23, 2003

 

Brooke A. Schafer

Deputy Trial Counsel

Office of Chief Trial Counsel

 

December 19, 2003

Robert V. Masenga

Respondent

 

December 22, 2003

Erica Tabachnick

Counsel for Respondent

 

 

ADDENDUM TO STIPULATED FACTS and CONCLUSIONS OF LAW STATE BAR   PILOT PROGRAM

 

IN THE MATTER OF: ROBERT VICTOR MASENGA

 

INVESTIGATION NUMBER: 03 -0-3864

 

The parties hereby stipulate that the following facts and conclusions of law are true:

 

Prior Stipulation Incorporated Herein

 

This addendum is intended to supplement the Stipulation re: Facts and Conclusions of Law in case nos. 01-O-04049 et al., which the parties lodged with the Pilot Program Court on August 8, 2003 (the "Prior Stipulation"). The Prior Stipulation is also incorporated as if fully set forth herein.

 

Investigation no. 03-0-03864

 

1. Respondent had set up a trust for Bette and Donald Deziel in 1988. From time to time thereafter the couple used Respondent for legal work related to estate planning.

 

2. On September 1, 2001, Respondent was enrolled as not entitled to practice law for his failure to comply with MCLE Rules and Regulations. On October 22, 2001, the State Bar Court ordered Respondent enrolled as an inactive member of the State Bar following a default in State Bar Case no. 00-O-11468. On June 12, 2002, the California Supreme Court issued Order no. S105641 (in State Bar Case no. 00-O-11468) requiring, among other things, that Respondent be actually suspended from the practice of law for 18 months, and until the State Bar Court grants a motion to terminate his actual suspension pursuant to State Bar Rules of Procedure. The actual suspension took effect 30 days after issuance of the Order. At all times subsequent to September 1, 2001, Respondent was not entitled to practice law, or to hold himself out as being entitled to practice law, due to inactive enrollments and/or suspension. As of September 20, 2001, Respondent had actual knowledge that he was not an active member of the State Bar subsequent to September 1, 2001.

 

3. In February 2002, Respondent met with the Deziels and agreed to draw up a Power of Attorney and Physician’s Directive and a Fourth Amendment to the 1988 Trust. Respondent did not inform the Deziels that he was not entitled to practice law at that time, and in fact he held himself out as being entitled to practice law.

 

4. Donald Deziel died on September 22, 2002. Bette Deziel notified Respondent, and met with him beginning in October 2002. In November 2002 Respondent met with Ms. Deziel to draw up the Fifth Amendment to the 1988 Trust. Respondent at no time informed Ms. Deziel that he was not entitled to practice law and in fact held himself out as being entitled to practice law. Additionally, Respondent wrote at least one letter to a third party on Ms. Deziel’s behalf, using letterhead describing himself as "Attorney at Law."

 

5. In January 2003 Respondent mailed a billing statement for legal work performed for Ms. Deziel. The billing statement was on letterhead describing himself as "Attorney at Law." Further, Respondent billed Ms. Deziel at his regular attorney hourly rate of $300.00 an hour, for a total of $975.00. Ms. Deziel paid this amount to Respondent later that month.

 

6. In late Spring 2003 Ms. Deziel learned from an acquaintance that Respondent had not been entitled to practice law since September 2001. As a result, she sought other counsel to complete certain legal work.

 

Conclusion of Law

 

By holding himself out as being entitled to practice law in meeting with his clients in February, October and November 2002 and in January 2003; by accepting a performing legal work related to the Deziels’ Trust in February 2002 and November 2002; and by billing for legal services performed at a time when he was not entitled to practice law; all while he was not entitled to practice law, Respondent practiced law while not entitled to practice law or on inactive status, in wilful violation of Business and Professions Code sections 6068(a), 6125 and 6126.

 

RESTITUTION

 

Respondent acknowledges that he was not entitled to bill for or accept the $975.00 legal fees from Bette Deziel at a time when he was not entitled to practice law, and that it is appropriate to pay back Ms. Deziel that amount, plus interest from February 1, 2003. Accordingly, the parties request that any State Bar Court recommendation providing for restitution reflect this amount.

 

RULE 133 NOTICE OF PENDING PROCEEDINGS

 

Respondent was notified in writing of any pending investigations not included in this stipulation, pursuant to Rule 133(12), on December 4, 2003.

 

the Fifth Amendment to the 1988 Trust. Respondent at no time informed Ms. Deziel that he was not entitled to practice law and in fact held himself out as being entitled to practice law. Additionally, Respondent wrote at least one letter to a third party on Ms. Deziel’s behalf, using letterhead describing himself as "Attorney at Law."

 

5. In January 2003 Respondent mailed a billing statement for legal work performed for Ms. Deziel. The billing statement was on letterhead describing himself as "Attorney at Law." Further, Respondent billed Ms. Deziel at his regular attorney hourly rate of $300.00 an hour, for a total of $975.00. Ms. Deziel paid this amount to Respondent later that month.

 

6. In late Spring 2003 Ms. Deziel learned from an acquaintance that Respondent had not been entitled to practice law since September 2001. As a result, she sought other counsel to complete certain legal work.

 

Conclusion of Law

 

By holding himself out as being entitled to practice law in meeting with his clients in February, October and November 2002 and in January 2003; by accepting a performing legal work related to the Deziels’ Trust in February 2002 and November 2002; and by billing for legal services performed at a time when he was not entitled to practice law; all while he was not entitled to practice law, Respondent practiced law while not entitled to practice law or on inactive status, in wilful violation of Business and Professions Code sections 6068(a), 6125 and 6126.

 

RESTITUTION

 

Respondent acknowledges that he was not entitled to bill for or accept the $975.00 legal fees from Bette Deziel at a time when he was not entitled to practice law, and that it is appropriate to pay back Ms. Deziel that amount, plus interest from February 1, 2003. Accordingly, the parties request that any State Bar Court recommendation providing for restitution reflect this amount.

 

RULE 133 NOTICE OF PENDING PROCEEDINGS

 

Respondent was notified in writing of any pending investigations not included in this stipulation, pursuant to Rule 133(12), on December 4, 2003.

 

 

THE STATE BAR COURT

HEARING DEPARTMENT - LOS ANGELES

 

 In the Matter of

ROBERT V. MASENGA,

Member No. 62020,

A Member of the State Bar.

 

Case No. 01-O-04049-RMT

 

ORDER APPROVING STIPULATION

 

FILED July 26, 2007

 

STATE BAR COURT CLERK’S OFFICE LOS ANGELES

 

The stipulation as to facts and conclusions of law executed by the parties on August 8, 2003 is approved nunc pro tunc from January 20, 2004, the date on which respondent ROBERT V. MASENGA, executed the written agreement regarding the terms and conditions of his OR her participation in the Pilot Program for Respondents with Substance Abuse and/or Mental Health Issues. (Rule 802(a), Rules Proc. of State Bar.)

 

IT IS SO ORDERED.

 

Dated: February 24, 2004

 

Robert M. Talcott

Judge of the State Bar Court

 


CERTIFICATE OF SERVICE

[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 February 26, 2004, I deposited a true copy of the following document(s):

 

ORDER APPROVING STIPULATION, Lodged February 26, 2004

 

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:

 

ERICA A. TABACHNICK

900 WILSHIRE BLVD., #1000

LOS ANGELES, CA 90017

 

checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

 

CHARLES MURRAY, Enforcement, Los Angeles

BROOKE SCHAFER, Enforcement, Los Angeles

 

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 26, 2004.

 

Signed by:

Tammy R. Cleaver

Case Administrator

State Bar Court