Case Number(s): 02-O-13697-RMT and 04-N-10379 (Investigation),
In the Matter of: Richard D. Comess, Bar # 198665, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Brooke A. Schafer, Bar # 194824,
Counsel for Respondent: Michael G. Gerner, Bar # 65906,
Submitted to: Pilot Program Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: June 11, 2009.
<<not >> checked. PREVIOUS STIPULATION REJECTED
1. Respondent is a member of the State Bar of California, admitted December 9, 1998.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition (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 ___ pages.
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. 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.
Note: All information required by this form and any additional information which cannot be provided in the Space provided, shall be set forth in the text component (attachment) of this stipulation under specific headings, i.e., "Facts", "Dismissals", "Conclusions of Law."
Additional aggravating circumstances: See Attachment.
Additional mitigating circumstances:
Respondent enters into this stipulation as a condition of his/her participation in the Pilot Program. Respondent understands that he/she must abide by all terms and conditions of Respondent’s Pilot Program Contract.
If the Respondent is not accepted into the Pilot Program or does not sign the Pilot 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 Pilot 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.
Signed by:
Respondent: Richard D. Corness
Date: March 30, 2004
Respondent’s Counsel: Michael G. Gerner
Date: March 30, 2004
Deputy Trial Counsel: Brooke A. Schafer
Date: April 1, 2004
IN THE MATTER OF: RICHARD D. COMESS, State Bar No. 198665
STATE BAR COURT CASE NUMBER: 02-O-13697-RMT and 04-N-10379 (Investigation)
The parties hereby stipulate that the following facts and conclusions of law are true.
JURISDICTION
Respondent was admitted to the practice of law in the State of California on December 9, 1998, and has been a member of the State Bar at all times relevant hereto.
FACTS AND CONCLUSIONS OF LAW
Case no. 02-0-13697 (c/w Terry Rusheen)
1. Effective September 1, 2001, Respondent was suspended from the practice of law as a result of his failure to comply with State Bar Mandatory Continuing Legal Education (MCLE) requirement. Respondent had been properly served with notice in August 2001 of his impending suspension and he had actual knowledge of same.
2. In mid-September 2001 Membership Services Operations of the State Bar sent
Respondent another letter informing him that he was suspended from the practice of law and that he would remain suspended until such time that he took the requisite MCLEs. Respondent remained suspended from September 1, 2001, to October 5, 2001, when he was reinstated after taking the required MCLE course.
3. Since 1997 Terry Rusheen had been a defendant in a lawsuit entitled Niki Hart v. Rusheen, pending in superior court. In 2000 and 2001 Rusheen filed a First Amended Cross-complaint and a Second Amended Cross-complaint, respectively, against certain other individuals and entities.
4. On September 10, 2001, while Respondent was suspended from the practice of law, he met with Rusheen. The two discussed Respondent working for Rusheen to file an opposition to one of the cross-defendant’s demurrer and to a motion to strike Rusheen’s Second Amended Cross-complaint. At their meeting Respondent gave Rusheen legal advice and agreed to represent Rusheen in the cross-complaint for a flat fee of $4000.00. On September 14, 2001, Rusheen gave Respondent
$4000.00. At no time during their meetings on either September 10 or 14, 2001, did Respondent inform Rusheen that he was not entitled to practice law.
5. Respondent signed a substitution of attorney form in Rusheen’s case on October 25, 2001, and filed it with the court on November 9, 2001. After late November 2001, Respondent ceased communicating with Rusheen and stopped working on his case.
6. Subsequent to late November 2001, Rusheen attempted to contact Respondent for the purpose of requesting a refund of the $4000.00 in advanced fees he had paid to Respondent. In April 2002, Robert Henry, an attorney retained by Rusheen to work on his appeal, wrote to Respondent and requested that he refund the $4000.00 to Rusheen. Although Respondent received Mr. Henry’s letter he did not respond in any way. To date Respondent has refunded none of the advanced fees Rusheen paid him.
Conclusions of law - case no. 02-0-13697
-By holding himself out as being entitled to practice law, by accepting legal fees and by otherwise practicing law when he was not an active member of the State Bar, Respondent wilfully violated Business and Professions Code section 6125 and 6126, and thereby failed to support the laws of the State of California as required by Business and Professions Code section 6068(a).
-By misrepresenting to Rusheen that he was entitled to practice law when he was not an active member of the State Bar of California, Respondent committed acts involving dishonesty, in wilful violation of Business and Professions Code section 6106.
-By failing to refund any of the $4000.00 advanced fee to Rusheen despite not having earned it, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned, in wilful violation of Rule of Professional Conduct, rule 3-700(D)(2).
Case no. 04-N-10379
7. On November 18, 2003, the California Supreme Court filed an Order in Case No. S118575 (State Bar Court Case No. 01-O-4689) (the "Order") that Respondent be suspended from the practice of law for twenty-four (24) months which included ninety (90) days’ actual suspension and until the court grants a motion to terminate his actual suspension pursuant to rule 205 of the Rules of Procedure of the State Bar of California, among other conditions. Those conditions included the requirement that Respondent comply with Rule 955 of the California Rules of Court and perform the acts specified in subdivisions (a) and (c) of Rule 955 within thirty (30) and forty (40) days, respectively, after the effective date of the Order.
8. Rule 955, subdivision (a) required Respondent to notify all clients and any co-counsel of his suspension, deliver to all clients any papers or other property to which the clients are entitled, refund any unearned attorney fees, notify opposing counsel or adverse parties of his suspension, and file a copy of said notice with any court, agency or tribunal before which litigation is pending. Rule 955, subdivision (c) required Respondent to file with the Clerk of the State Bar Court an affidavit showing that he fully complied with the requirements of subdivision (a).
9. On November 18, 2003, the Clerk of the California Supreme Court properly served upon Respondent a copy of the Order, which expressly included the order that he comply with Rule 955 of the California Rules of Court.
10. The Order became effective on December 18, 2003, thirty days after it was entered. Accordingly, pursuant to the terms of the Order, Respondent was to have complied with subdivision (a) of Rule 955 no later than January 17, 2004, and was to have complied with subdivision (c) of Rule 955 no later than January 27, 2004. In other words, Respondent should have filed with the Clerk of the State Bar Court an affidavit showing that he had fully complied with Rule 955 by January 27, 2004:
11. To date, Respondent has failed to comply with Rule 955 of the California Rules of Court. Respondent has failed to file an affidavit with the Clerk of the State Bar Court as required by subdivision (c) of Rule 955 of the California Rules of Court. Respondent failed to timely comply with the provisions of the Order requiring Respondent to comply with Rule 955 of the California Rules of Court.
Conclusion of law - case no. 04-N-10379
-By failing to timely file the statements required by Rule 955, thereby not complying with rule 955 as he was ordered to do on November 18, 2003, Respondent failed to comply with a valid order of court, in wilful violation of Business and Professions Code, section 6103
AGGRAVATING FACTORS, cont’d
Page 2, section B(1), cont’d:
Additional disciplinary case: State Bar Court no. 01-O-4689. Effective date: December 18, 2003. RPC/B&PCode violations: RPC 3-110(A); 3-700(A)(2); 3-700(D)(1); B& P Code 6068(m); 6103; 6125; 6126; 6068(a); 6106; 6068(i). Degree of Discipline: 90 days actual; 2 years stayed.
MITIGATING FACTORS, cont’d
Lawyer Assistance Program participation
Respondent signed an agreement to be evaluated through the State Bar’s Lawyer Assistance Program (LAP) on _______. Respondent complied with the LAP’s conditions and requests for evaluation. At the conclusion of the LAP evaluation, on _______, Respondent met with the LAP’s Evaluation Committee, and then entered into a long-term participation agreement with LAP on _______.
RESTITUTION CONDITIONS and EXPRESS WAIVERS
As a condition of his Pilot Program compliance in this matter, Respondent shall pay restitution to the following persons (and/or the Client Security Fund, if appropriate) in the following amounts plus 10 percent interest per annum accruing from the dates indicated. To the extent Respondent has paid any restitution prior to the effective date of the order arising from this stipulation he shall be given credit for such payments provided satisfactory proof is shown to the Probation Unit of the State Bar.
1. Because he accepted fees while he was not entitled to practice law Respondent shall disgorge the entire fee whether work was performed or not. Accordingly, as a condition of his Pilot Program participation Respondent shall pay Terry Rusheen $4000.00 plus interest from January 1, 2002.
DISMISSALS
The parties respectfully request that the court dismiss the following charges in the interests of justice:
Case no. 02-0-13697
Count Four - failure to update membership address
Count Five - failure to cooperate in State Bar investigation
COMPLIANCE WITH COURT ORDERS
As a condition of probation, Respondent agrees to comply with all orders, whether pre-existing or arising during probation, including orders to pay sanctions, attorneys fees or costs awarded against him personally or jointly, including without limitation:
California Supreme Court Order S 118575, which is the subject of case no. 04-N-10379. Among other things Respondent agrees to comply with rule 955, albeit late, within 30 days of signing his Pilot Program contract. Respondent understands this requirement and expressly waives any other notice.
PENDING PROCEEDINGS
The written disclosure referred to on page 1, section A(6), was provided on February 10, 2004.
////////// END OF ATTACHMENT
Case Number(s): 02-O-13697-RMT and 04-N-10379 (Investigation)
In the Matter of: Richard D. Comess
Finding the stipulation to be fair to the parties, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
checked. The stipulated facts and conclusions of law is APPROVED.
<<not>> checked. The stipulated facts and conclusions of law is APPROVED AS MODIFIED as set forth below.
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; or 3) Respondent is not accepted for participation in the Pilot Program or does not sign the Pilot Program Contract (See rule 135(b) and 802(b), Rules of Procedure.)
The effective date of the disposition is the effective date of the Supreme court order herein, normally 30 days after the file date of the Supreme court Order. (See rule 953(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: August 27, 2004
[Rules Proc. of State Bar; Rule 5.27(B); 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 September 14, 2004, I deposited a true copy of the following document(s):
DECISION RE ALTERNATIVE RECOMMENDATIONS FOR DEGREE OF DISCIPLINE;
STIPULATION RE: FACTS AND CONCLUSIONS OF LAW;
CONTRACT AND WAIVER FOR PARTICIPATION IN THE STATE BAR COURT’S PILOT PROGRAM FOR RESPONDENT’S WITH SUBSTANCE ABUSE OR MENTAL HEALTH ISSUES, lodged August 27, 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:
RICHARD D COMESS
ATTORNEY AT LAW
821 3RD ST #204
SANTA MONICA, CA 90403
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Brooke Schafer, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 14, 2004.
Signed by:
Milagro del R. Salmeron
Case Administrator
State Bar Court
[Rules Proc. of State Bar; Rule 5.27(B); 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 January 12, 2010, I deposited a true copy of the following document(s):
DECISION AND ORDER SEALING CERTAIN DOCUMENTS and 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 Los Angeles, California, addressed as follows:
RICHARD D COMESS ESQ
1121 TERESITA CIR
MONROVIA, CA 91016
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Charles A. Murray, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 12, 2010.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court