Case Number(s): 03-O-1034-RAH, 03-O-4338, 03-O-5084, 04-O-10266, 04-O-10267, 04-O-14342
In the Matter of: David J. Baran, Bar # 105376, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Brooke A. Schafer, Bar # 194824,
Counsel for Respondent: JoAnne Robbins, Bar # 82352,
Submitted to: Pilot Program Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: September 27, 2007
<<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,"
1. Respondent is a member of the State Bar of California, admitted December 3, 1982.
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 14 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.
Additional aggravating circumstances: .
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 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: David J. Baran
Date: March 10, 2005
Respondent’s Counsel: JoAnne Earls Robbins
Date: March 9, 2005
Deputy Trial Counsel: Brooke A. Schafer
Date: March 10, 2005
IN THE MATTER OF: DAVID JOSEPH BARAN, State Bar No. 105376
STATE BAR COURT CASE NUMBER: 03-O-01034 AND INVESTIGATION NOS. 03-O-04338, 03-O-05084, 04-O-10266, 04-O-10267, 04-O-14342
I. FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the foregoing facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct:
Respondent was admitted to the State Bar of California on December 3, 1982, was a member at all times pertinent to these charges, and is currently a member, of the State Bar.
Facts - Case no. 03-O-01034 (Richards)
1. On December 17, 2002, Respondent agreed to represent Daniel Richards ("Richards") in a Chapter 13 bankruptcy matter in which Richards had previously been represented by another attorney. Richards provided Respondent with $4000.0 in money orders made payable to Richard’s mortgage lender. The money orders were necessary for the bankruptcy plan to be approved. Respondent was to keep the money orders in safekeeping on his client’s behalf until they were needed in bankruptcy court.
2. On January 15, 2003, Respondent appeared in the U.S. Bankruptcy Court on behalf of Richards. On that date, Respondent could not produce the $4000.00 to Richard’s mortgage lender because he had misplaced the money orders. As a result of the mortgage lender not receiving the money orders, the court would not approve the bankruptcy plan and Richards’ Chapter 13 bankruptcy matter was dismissed. Respondent did not attempt to have the matter continued, nor did he seek reinstatement of the petition subsequently.
3. Richards was able to obtain a refund for $3400.00 of the money orders (which had not been cashed) by presenting a receipt to the issuer of the money orders. Richards did not have the receipt for the remaining $600.00 money order and was unable to obtain a refund for it. Respondent did not reimburse Richards for the remaining $600.00 until March 2004, even though Richards requested return of his money in January 2003.
4. Respondent failed to perform any additional services on Richard’s bankruptcy matter.
Conclusion of law - case no. 03-O-1034
-By losing the money orders his client had entrusted to him for safekeeping, by taking no action on January 15, 2003, to continue the hearing or otherwise protect Richards’ fights, and by taking no subsequent action to try to get Richards’ bankruptcy petition reinstated, Respondent recklessly failed to perform legal services with competence in violation of Rules of Professional Conduct, rule 3-110(A).
-By failing to return any money to Richards for over a year, Respondent failed to pay promptly, as requested by a client, any funds in his possession which the client was entitled to receive, in wilful violation of Rules of Professional Conduct, rule 4-100(B)(4).
Facts - Case no. 03-O-04338 (Horgan)
5. On January 13, 2003, Gary Horgan ("Horgan") employed Respondent to represent him in a Chapter l 3 bankruptcy matter. The purpose of filing a Chapter 13 was so that Horgan could save his house from foreclosure. Horgan paid Respondent a total of $3600.00 for legal services related to the bankruptcy.
6. On January 30, 2003, Respondent filed a Chapter 13 Bankruptcy petition on Horgan’s behalf. In the petition, Respondent erroneously listed Horgan’s credit card debt as being $15,586.52 instead of the correct amount of $1586.52. The petition also listed a 1998 ch. 7 filing. On March 11, 2003, the petition was dismissed without prejudice when the court would not approve the bankruptcy plan with the erroneous credit card debt listed.
7. On April 30, 2003, Respondent filed a second Chapter 13 bankruptcy petition on behalf of Horgan. This petition too listed the 1998 oh. 7 petition. A Creditors Meeting & Confirmation Hearing ("Heating") was set for June 16, 2003.
8. On May 12, 2003, Respondent’s legal assistant instructed Horgan to bring one mortgage payment to the Hearing on June 16, 2003. This was incorrect information.
9. The evening before the haring Respondent told Horgan for the first time that he would need three mortgage payments the next day, contrary to what his paralegal had told him. On June 16, 2003, Horgan appeared at the Heating with one mortgage payment. The court informed Horgan that he needed to provide three additional mortgage payments in order for the bankruptcy plan to be approved. Since Horgan was not prepared to produce the additional mortgage payments that day the court dismissed the second petition.
10. On June 18, 2003, Respondent filed a Chapter 7 Bankruptcy petition on behalf of Horgan, in an attempt to at least delay foreclosure on Horgan’s home. Horgan did not have an opportunity to review the Chapter 7 petition before it was filed. The petition listed Horgan’s social security number incorrectly and did not list a prior Chapter 7 petition that Horgan filed in 1998, even though Respondent knew of the prior Chapter 7 petition that Horgan had filed. As a result, on August 26, 2003, the court dismissed the Chapter 7 petition because of the incorrect social security number and the failure to disclose the prior Chapter 7 petition. The court also ordered Respondent to disgorge $700 in fees he had received from Horgan for the ch. 7 filing.
11. On September 17, 2003, Horgan’s house went into foreclosure and was sold.
12. On October 6, 2003, the U.S. Trustee filed a motion with the court to reaffirm the $700 disgorgement order. On November 4, 2003, Respondent paid the $700 disgorgement fee. On that date, the court ordered Respondent to pay sanctions in the amount $500 to the U.S. Trustee for the costs of bringing its motion. Respondent also paid the $500.00 sanction to the court.
13. Respondent provided no legal services of any value to Horgan, and as such did not earn any of the legal fees paid. Horgan is owed return of the balance of $2900.00.
Conclusions of law - case no. 03-O-4338
-By failing to perform the services necessary for the bankruptcy plan to be approved in any of the three attempts to file a petition, which resulted in Horgan not being able to block foreclosure of his home, Respondent repeatedly failed to perform legal services with competence in violation of Rules of Professional Conduct, rule 3-110(A).
Facts - Case no. 03-O-05084 (Valle)
14. On October 2, 2003, Victor Valle ("Valle") employed Respondent to represent him in a Chapter 13 bankruptcy matter. The purpose of filing a Chapter 13 was so that Valle could save his house from foreclosure. Valle paid Respondent $500.00 to begin work. On that date, Respondent filed a Chapter 13 Bankruptcy petition on Valle’s behalf.
15. On October 24, 2003, one of Valle’s creditors who had a security interest in Valle’s house filed a Motion for Relief From Automatic Stay ("Motion"). The purpose of the Motion was to allow foreclosure of Valle’s home for nonpayment ofpre-petition mortgage payments. The Motion alleged that Valle had failed to pay several payments prior to the filing, and also that this was his third filing. A hearing was set for November 19, 2003. Respondent was served proper notice of the Motion.
16. On November 6, 2003, Valle’s wife met with Respondent, who assured her everything was being taken care of regarding a response to the Motion. Valle’s wife informed Respondent that they had allegedly paid the mortgage payments that were the subject of the Motion.
17. On November 7, 2003, Respondent arranged for an appearance attorney to appear on behalf of Valle at a meeting of creditors. The appearance attorney showed up without the client’s file. At the creditors’ meeting, the U.S. Trustee informed the appearance attorney that the plan as constituted could not be confirmed because it was not feasible and did not accommodate claims received. Moreover, Valle informed the appearance attorney that his income had mistakenly been listed at twice what it actually was. The Trustee told the appearance attorney what was needed for the bankruptcy plan to be approved, and also that the bankruptcy plan revisions had to be filed at least 14 days before the confirmation heating. Although the appearance attorney relayed this information to Respondent, Respondent failed to follow the instructions provided by the Trustee at the November 7, 2003 meeting, and did not file a revised petition in response to the Trustee’s objections.
18. Valle’s wife met with Respondent on November 10, 2003, and was assured by Respondent that the matter was being handled.
19. Nevertheless, Respondent failed to file an Opposition to the Motion. Respondent failed to appear at the November 19, 2003 hearing on the Motion. The court found the Motion to be uncontested and granted the creditor’s Motion. As a result, on December 5, 2003, Valle’s house went into foreclosure and was sold.
20. Respondent failed to perform the services necessary for the bankruptcy plan to be approved.
21. Subsequently, Valle attempted several times to reach Respondent. Respondent finally told him that he would refund his $500.00 advance fee. To date Respondent has not refunded any money to Valle.
Conclusion of law - case no. 03-O-5084
-By failing to respond to or contest the Motion and by failing to perform the services necessary for a proper bankruptcy plan, Respondent recklessly failed to perform legal services with competence in violation of Rules of Professional Conduct, rule 3-110(A).
Facts - Case no. 04-O-10266 (Wilson)
22. In October 2002 James Wilson ("Wilson") hired attorney Marilyn Mora to handle a bankruptcy case. The purpose of the bankruptcy was an attempt to save Wilson’s home from foreclosure. Ms. Mora filed a ch. 13 petition. Wilson paid Ms. Mora $1750.00. Thereafter Respondent took over Ms. Mora’s law business, including Wilson’s legal matter.
23. Neither a substitution of attorney form nor a change of address was submitted on Wilson’s case after Respondent took over. Moreover, there were alleged defects in Wilson’s original petition that necessitated filing a second petition.
24. On January 30, 2003, Respondent filed a second Chapter 13 Bankruptcy petition on Wilson’s behalf. However, that second petition was dismissed by the court since Wilson’s original petition was still pending, and the second petition improperly was filed under a separate cause number.
25. On February 28, 2003, the ch. 13 Trustee filed a motion to dismiss the original petition. Ms. Mora, Wilson’s original attorney, was served as the Trustee did not know Respondent was successor counsel.
26. On March 4, 2003, the original petition was dismissed.
27. On April 9, 2003, Respondent filed Wilson’s third bankruptcy petition. It was incomplete. Respondent failed to include or contest approximately $13,000.00 claimed by Wilson’s Homeowners’ Association, and he also failed to include or contest an IRS claim of approximately $68,000.00. Respondent knew of both these claims.
28. In connection with his ch. 13 petition Wilson gave Respondent a cashiers check in the amount of $1368.25, payable to Aurora Loan Services, which Respondent was to turn over to Aurora Loan as part of the bankruptcy proceedings. However, Respondent lost this cashiers check.
29. On October 24, 2003, one of Wilson’s creditors who had a security interest in Wilson’s house filed a Motion for Relief From Automatic Stay ("Motion"). The purpose of the Motion was to allow the creditor possession of Wilson’s House. On that date, the court’s clerk set a hearing date of January 5, 2004.
30. On January 5, 2004, Respondent appeared at the hearing on the Motion. At the heating it was stipulated that Wilson’s house would not be sold by the U.S. Trustee prior to February 5, 2004. After the January 5, 2004 hearing, Wilson repeatedly left voice mall messages on Respondent’s cell phone asking him to contact his mortgage broker so that Wilson could refinance his home prior to February 5, 2004.
31. Respondent failed to contact Wilson’s mortgage broker or take any other steps necessary to prevent Wilson from losing his house prior to February 5, 2004.
32. On February 2, 2004, dissatisfied with the representation he was getting from Respondent, Wilson employed another attorney to represent him in the bankruptcy matter.
33. Wilson received nothing of value from Respondent. As Respondent is the successor to Ms. Mora’s liabilities, Respondent owes Wilson return of the entire $1750.00 he paid in advance.
Conclusions of law - case no. 04-O-10266
By filing Wilson’s second petition under a different cause number before the first one had been dismissed, by failing to notify the court or the trustee in a timely manner that he was Wilson’s new counsel, by failing to include all creditors in the third petition, by failing to safeguard the check to Aurora Loan, and by doing nothing after January 5, 2004, to assist his client obtain financing, Respondent recklessly failed to perform legal services with competence in violation of Rules of Professional Conduct, rule 3-110(A).
Facts - Case no. 04-O-10267 (Ibanez)
34. On February 1, 2003, Pedro Ibanez ("Ibanez") employed Respondent to represent him in a Chapter 13 bankruptcy matter. The purpose of filing a Chapter 13 was so that Ibanez could save his house from foreclosure. Ibanez paid Respondent $950.00 for legal services. On February 26, 2003, Respondent filed a Chapter 13 Bankruptcy petition on behalf of Ibanez, but it was incomplete with respect to the debtor’s summary of schedules and declaration concerning the summary of debtor’s schedules.
35. On April 9, 2003, Ibanez provided a $1230.00 money order to Respondent, which Respondent was to forward directly to Ibanez’s primary mortgage lender, Washington Mutual. However, Respondent failed to forward the money order to Washington Mutual.
36. On April 18, 2003, the plan in the Chapter 13 Bankruptcy was approved by the court.
37. On June 5, 2003, Blue View Corporation, which held a second mortgage on Ibanez’s home, filed a Motion for Relief From Automatic Stay ("Motion"), based in part on post-confirmation payments not being made. On that date, the court’s clerk set a heating date of July 2, 2003. Respondent properly was served notice of the Motion.
38. Respondent failed to file an Opposition to the Motion, and he failed to appear at the July 2, 2003 hearing on the Motion.
39. On July 2, 2003, the court found the Motion to be uncontested and granted the creditor’s Motion.
40. In September 2003, Ibanez learned for the first time that Respondent failed to provide the $1,230 money order to Washington Mutual in April.
41. Respondent provided no legal services of value to Ibanez, and lbanez is entitled to a refund of the $950.00 he paid in advance legal fees.
Legal conclusions - case no. 04-O-10267
-By failing to provide the $1,230 money order to Washington Mutual, by failing to safeguard the money order and by failing to respond to or contest the Motion, Respondent failed to perform legal services with competence in violation of Rules of Professional Conduct, rule 3110(A).
Case no. 04-O-14342 (Nims matter)
42. On February 6, 2004, Olivia Nims hired Respondent to handle her Chapter 13 bankruptcy case, after her home went into foreclosure. Nims had responded to Respondent’s advertisement she received in the mail. Respondent sent an agent to her house to start the paperwork. Nims paid Respondent $804.00 for the work and filing fees.
43. On February 10, 2004, Respondent filed an incomplete bankruptcy petition on Nims behalf. The bankruptcy court notified Respondent that the filing was not complete. He was to cure the defects within 15 days from date of filing.
44. On February 25,2004, Respondent signed mad filed with the court a Rights and Responsibilities Agreement Between Chapter 13 Debtors and Their Attorneys form. In it, Respondent stated that "before the case was filed the attorney personally met" with Nims and explained the clients’ rights and responsibilities and his duties as well. In reality, however, Respondent had not met with Nims until the Debtor’s Exam on March 31, 2004.
45. Also at the March 31, 2004, Debtor’s Hearing, Nims failed to bring pre-confirmation payments. Respondent failed to notify his client of the need to bring pre-confirmation payments.
46. On May 25, 2004, Nims’ bankruptcy case was dismissed for failure to make pre-confirmation payments. Nims subsequently lost her home in foreclosure. Respondent did refund $610.00 to Nims voluntarily.
Conclusions of law
-By failing to meet with Nims personally prior to the March 31, 2004, court hearing to explain the details of her bankruptcy, including without limitation the need to bring pre-confirmation payments; by stating that he had met Nims to discuss the details of her bankruptcy when in fact he had not, and by filing an incomplete Chapter 13 petition on Ninls’ behalf, Respondent intentionally failed to perform legal services with competence in violation of Rules of Professional Conduct, rule 3-110(A).
II. DISMISSALS
The parties respectfully request the following charges be dismissed in the furtherance of justice:
1. Case no. 03-O-1034: count two (fail to safeguard client property)
III. PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(6), was by letter dated February 22, 2005.
IV. WAIVERS re RESTITUTION, CONFIDENTIALITY and RESTITUTION SCHEDULE
The parties agree that it is appropriate, given the intent of the Pilot Program, that restitution be paid as soon as practicable. Respondent understands and agrees that the State Bar Client Security Fund ("CSF") can, in some cases, pay restitution in these matters, with the Respondent then responsible for reimbursing CSF for any such amounts it has paid. Respondent acknowledges that to the extent CSF has paid only principal amounts he will still be liable for interest payments to the claimants where appropriate. In order that CSF can pay the claimants at an early date, however, it is necessary that Respondent partially waive confidentiality to effectuate those purposes. By entering into this stipulation Respondent makes the following express waivers, pursuant to Rule of Procedure 805.
Restitution Schedule
(1) Respondent shall satisfy the court order referred to in case no. 03-0-4338, regarding sanctions to the United States Trustee’s Office.
(2) To Pedro Ibanez, $1230.00 plus interest from May 1, 2003.
(3) To Victor Valle, $500.00 plus interest from January 1, 2004.
(4) Gary Horgan, $2900.00 plus interest from September 1, 2003.
(5) James Wilson, $1750.00 plus interest from January 1, 2004.
(6) Olivia Nims, $194.00 plus interest from June 1, 2004.
THE STATE BAR OF CALIFORNIA
OFFICE OF THE CHIEF TRIAL COUNSEL
ENFORCEMENT
SCOTT J. DREXEL, no. 65670
CHIEF 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
ALTERNATIVE DISCIPLINE PROGRAM - LOS ANGELES
In the Matter of
DAVID J. BARAN,
No. 105376
A Member of the State Bar
Case No. 03-O-1034 et al. - RAH
PARTIES’ ADDENDUM
TO STIPULATION OF FACTS AND
CONCLUSIONS OF LAW,
re: INVESTIGATION no. 05-J-00697
The State Bar of California, Office of Chief Trial Counsel, through Deputy Trial Counsel Brooke Schafer, and Respondent, David Baran, represented by counsel JoAnne Earls Robbins, submit this Addendum to the Stipulation re: Facts and Conclusions of Law previously lodged on March 10, 2005. This Addendum relates solely to investigation no. 05-J-00697 (the U.S. Bankruptcy Court matter).
INCORPORATION OF PRIOR STIPULATION
This addendum is intended to supplement the Stipulation re: Facts and Conclusions of Law in case nos 03-O-1034 et al., which the parties lodged with this Court on March 10, 2005 (the "Prior Stipulation"). The Prior Stipulation is also incorporated as if fully set forth herein. Attached hereto is the parties’ stipulation to facts and conclusions of law in investigation 05-J-00697, involving recent discipline out of the federal bankruptcy court.
THE STATE BAR’S DISCIPLINE RECOMMENDATION HAS BEEN REVISED
The parties understand that, based on the instant new matter which forms the basis of this Addendum, the discipline recommended by the State Bar has been revised. The State Bar lodged a revised discipline brief on June 9, 2005, taking into account the facts and conclusions of law herein.
Respectfully submitted,
Signed: Brooke A. Schafer
Deputy Trial Counsel
Office of Chief Trial Counsel
Dated: September 22, 2005
Signed: David J. Baran
Respondent
Dated: September 19, 2005
Signed: JoAnne Earls Robbins
Counsel for Respondent
Date: September 20, 2005
IN THE MATTER OF: DAVID JOSEPH BARAN, State Bar No. 105376
INVESTIGATION NUMBER: 05-J-00697
I. STIPULATION AS TO FACTS AND CONCLUSIONS OF LAW
Respondent admits 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. 93-O1634-RAH et al., which the parties lodged with the Alternative Discipline Court on March 10, 2005 (the "Prior Stipulation"). The Prior Stipulation is also incorporated as if fully set forth herein.
Agreements Pursuant to Business and Professions Code section 6049.1
1. Respondent’s culpability for misconduct, determined in the disciplinary proceeding in the U.S. Bankruptcy Court for the Central District of California, would warrant discipline by the State Bar of California under the laws and rules in effect at the time the misconduct was committed; and
2. The proceedings in the U.S. Bankruptcy Court for the Central District of
California, as described herein, provided Respondent with fundamental Constitutional
protections, including without limitation Due Process rights.
SUMMARY OF FACTS - investigation no. 05-J-00697
3. Three judges of the U.S. Bankruptcy Court for the Central District of California filed referrals for disciplinary action against the Respondent between May 2004 and July 2004. A hearing panel was convened to hear the matter (the "Disciplinary Panel"), pursuant to U.S. Bankruptcy Court rules.
4. The disciplinary proceeding in U.S. Bankruptcy Court commenced January 14, 2005. Respondent filed no papers in opposition to statements of cause and did not personally appear, although he had proper notice of the hearing. The Disciplinary Panel took evidence, heard testimony, made factual findings and determined discipline. (True and correct copies of the certified Memorandum of Decision and the Discipline Order Against Respondent David Joseph Baran, revoking the rights of Respondent to practice before the United States Bankruptcy Court for the Central District of California for an "unlimited period of time, subject only to respondent’s right to apply for reinstatement" are attached hereto as Exhibit 1. Exhibit 1 is incorporated by reference as if fully set forth herein.)
5. Thirteen (13) separate client matters were involved in the instant bankruptcy disciplinary proceeding, of which twelve (12) are not part of other disciplinary proceedings in California State Bar Court.
6. The disciplinary referrals to the Disciplinary Panel were based on Respondent’s professional misconduct, as noted by various judges of the Bankruptcy Court. Their orders that he disgorge fees and pay sanctions and administrative expenses had been imposed for Respondent’s negligence, failure to perform services competently, abandonment of clients, failure to appear at hearings, (including a Section 341 (a) meeting), receiving attorney’s fees without disclosure to the court and for receiving attorney’s fees through escrow without court approval.
7. Among other things, The Disciplinary Panel noted in its Decision that the cases at issue demonstrated that Respondent did not competently practice law in the bankruptcy courts of the Central District of California in approximately nine (9) of the matters. He continually violated rules requiring him to represent his clients diligently and also failed 6 to appear at hearings, which harmed several of his clients.
8. In addition, the Decision found that in one case he negligently dismissed the wrong debtor’s case and did not assist in reacquiring a house which was sold in foreclosure as a result of this negligence. Moreover, Respondent violated the Rights and Responsibilities Agreements he signed with his debtors, which required him to competently represent them in all matters before the court, both before and after confirmation. The misconduct cited in the Decision were the basis for what the court termed "the most severe discipline which the panel may impose, a permanent prohibition on Respondent’s practice of law in [the bankruptcy court], subject only to the reinstatement provisions ....
9. The findings of the Disciplinary Panel would warrant discipline by the State Bar of California. To wit, the factual findings would support violations of Rules of Professional Conduct, rule 3-110(A) (failure to perform legal services with competence), rule 3-700(A)(2) (constructive withdrawal from employment), rule 4-200(A) (charging or collecting an illegal fee) and Business and Professions Code section 6103 (violations of court order).
CONCLUSION OF LAW - invest, no. 05-J-00697
The above conduct falls within the terms of Business and Professions Code, section 6049.1, due to the professional misconduct in another jurisdiction. Respondent acknowledges he has been disciplined in the United States Bankruptcy Court, Central District of California for acts which would warrant discipline by the State Bar of California under the laws or rules binding upon members of the State Bar at the time he committed the misconduct in bankruptcy court. These rules include, without limitation, Rules of Professional Conduct, rule 3-110 (reckless or repeated failure to perform legal services with competence), rule 3-700(A)(2) (constructive withdrawal from employment), rule 4-200(A) (charging or collecting an illegal fee) and Business and Professions Code section 6103 (violations of court order).
II. FULFILLMENT OF DISGORGEMENT ORDERS IN UNDERLYING CASES
As a prerequisite to successful completion of the Alternative Discipline Program, Respondent shall fulfill all orders of the U.S. Bankruptcy Court, referred to above and more specifically in its Memorandum of Decision in its case no. LA M104-00011, requiring him to disgorge fees to his former clients. Respondent bears the burden of proving his compliance prior to completion of the ADP.
III. 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 September 22, 2005.
UNITED STATES BANKRUPTCY COURT
Central District of California
I hereby attest and certify that on the April 25, 2005 the attached reproduction(s), containing 10 pages, is a full, true and correct copy of the complete document entitled:
MEMORANDUM OF DECISION LAM104-00011
which includes:
<<not >> checked: Exhibits
checked: Attachments
On file in my office and in my legal custody at the marked location:
checked:
300 North Los Angeles Street
Los Angeles, CA 90015
Signed by: Jon D. Ceretto
Clerk of Court
THIS CERTIFICATION IS VALID ONLY WITH THE UNITED STATES BANKRUPTCY COURT SEAL.
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In Re:
the DISCIPLINARY PROCEEDING OF
DAVID JOSEPH BARAN
Case No. LA MI 04-00011
MEMORANDUM OF DECISION
Date: Friday, January 14, 2005
Time: 10:00 a.m.
Courtroom: 1545
Edward R. Roybal Federal Building and Courthouse
255 East Temple Street
Los Angeles, CA 90012
The hearing in the disciplinary proceeding of DAVID JOSEPH BARAN ("Respondent") came on regularly on January 14, 2005, in courtroom 1545 of the Edward R. Roybal Federal Building and Courthouse before the Honorables Arthur M. Greenwald, Ernest Robles and Meredith A. Jury, the designated hearing panel for this proceeding. The United States Trustee by trial attorney Elizabeth A. Lossing appeared as the prosecuting party. Also appearing in support of imposition of discipline were Kathy Dockery, Chapter 13 Trustee, Central District of California, Los Angeles Division, and Rod Danielson, Chapter 13 Trustee, Central District of California, Riverside Division. There was no appearance by or on behalf of Respondent David Joseph Baran.
The hearing was scheduled by an Order Granting Continuance of Disciplinary Hearing issued by Presiding Judge Arthur M. Greenwald on August 24, 2004, based on a stipulated joint motion. This order gave notice of the continued hearing on January 14, 2005. The panel found that Respondent had proper notice of the hearing and his absence was unexplained. The panel heard the matter as a default proceeding since Respondent had filed no papers in opposition to the statements of cause and did not personally appear. The panel, therefore, received into evidence the following Statements of Cause and Requests for Referral of Discipline of David Joseph Baran:
1. The Statement of Cause (Referral for Discipline; General Order 96-05) from Judge Thomas Donovan filed May 14, 2004;
2. The Referral of Attorney/Respondent David Baran for Disciplinary Proceedings under General Order 96-05; Statement of Cause from Judge Mitchel Goldberg, filed on June 22, 2004;
3. The Referral of Attorney Respondent David Baran under General Order 96-05; Statement of Cause from Judge Maureen A. Tithe, filed on July 29, 2004; and
4. The United States Trustee’s Supplement for Hearing in the Disciplinary Proceeding of David Joseph Baran, filed on January 7, 2005.
The panel also received at the hearing an order in the case of Yvonne Wilson, Case No. LA 04-14652 MT, entitled "Order Disapproving Entire Fee Pursuant to the Rights and Responsibilities Agreement, Disgorging Fees Paid to Attorney David J. Baran in the Amount of $1,628.77 and Awarding Administrative Expenses of the Chapter 13 Trustee", received into evidence as exhibit "AA." which pertained to the Yvonne Wilson matter included in the United States Trustee’s Supplement for Hearing referenced above. The panel also heard the oral testimony of Kathy Dockery, Chapter 13 Trustee in the Central District of California, Los Angeles Division who testified about the Yvonne Wilson and Veronica Romero cases, included in the statements of cause referenced above, and the testimony of Kevin Simon, attorney at law, whose firm purchased the practice of David Joseph Baran, who testified regarding the DeMello matter and other issues pertaining to the cooperation of Respondent in the Chapter 13 cases which were transferred from Respondent to Simon and Resnik.
Based on the entire record of this case, the panel finds that Respondent should be subjected to the most severe discipline which the panel may impose, a permanent prohibition on Respondent’s practice of law in the United States Bankruptcy Court, Central District of California, subject only to the reinstatement provisions set forth in General Order 96-05. The Imposition of this discipline is based on the following findings, supported by the record.
A. Case of Victor R. Valle, No. LA03-35706 TD
Judge Thomas Donovan made referral of Respondent to discipline based on an order issued on the Chapter 13 Trustee’s motion to disgorge fees and sanctions against Respondent in the Victor R. Valle case filed on May 13, 2004. This order compelled Baran to disgorge and return to debtor Valle the sum of $500.00 and sanctioned Respondent $750.00, representing the Chapter 13 Trustee’s administrative fees for prosecuting the motion and for Respondent’s reckless conduct in the case. This order was based on findings of fact filed with the court on May 12, 2004, which, in summary, found that Respondent or his employee signed the bankruptcy petition on behalf of the debtor; Respondent received attorney’s fees of $100.00 which were not disclosed to the court; Respondent failed to contest a motion for relief from stay against debtor Valle when VaIIe had a legitimate defense to such motion, resulting in the loss of his house to a foreclosure sale; and Respondent abandoned his client and refused to turn over his file to the debtor upon request.
B. Judge Goldberg’s Referenced Cases
Judge Mitchel Goldberg issued his referral of Respondent to discipline on June 22, 2004, based on Respondent’s repeated failure to comply with local rule requirements for attorneys practicing in the bankruptcy courts of the Central District. Respondent had failed to comply with Local Bankruptcy Rule 3015-I(t)(1) in particular, failing to represent debtors on "all matters arising in the case" as well as his failure to comply with lawful orders of the court. These failures resulted in a series of disgorgement motions and other sanctions against him. Respondent had also failed to perform services competently as mandated by the California Rules of Professional Conduct 3- l 10 by abandoning his clients and violating the Rights and Responsibilities Agreements he had signed with debtors.
In the case of Melesiu Tovi, RS 04-12470 MG, Respondent failed to timely appear and present an accounting at a motion for relief from automatic stay. Respondent had failed to fill out money orders delivered to him by his client correctly at an April 12, 2004, confirmation hearing. Respondent’s failure to follow-up with replacement of those money orders resulted in improper representation of Tovi at the motion for relief.
In the case of John Darwin Thomas, RS 03-18063 MJ, Respondent failed to comply with the court’s order confirming the plan. A Chapter 13 Trustee motion for disgorgement was granted by the court.
In the case of James McLary, RS 03-17769 MJ, Respondent again failed to comply with the court’s order confirming the plan, resulting in another motion for disgorgement, which was granted.
In the case of Marc Reynolds, RS 03-14453 PC, Respondent received attorney’s fees through escrow without court approval and the .court ordered those fees disgorged.
Respondent also failed to attend hearings in three Chapter 13 cases and was not prepared to represent his clients, those cases being Juan Manuel Uribe, RS 02-28022 MG, Oscar and Virginia Madrid, RS 02-26621 PC and Barbara Byrd, RS 03-12569 PC.
Additionally, in the case of Doris Spencer, LA 03-17601 BR, Judge Barry Russell ordered Respondent to disgorge fees based on his inadequate representation of the debtor. Respondent did not comply with the disgorgement order and was held in contempt. Also, in the case of Candice White, LA 04-14650 BB, Respondent failed to attend a continued 341 (a) meeting and had not met with his client prior to her Chapter 13 case being filed.
C. Case of Veronica Romero. LA 04-19775 MT
In this case Respondent dismissed the Chapter 13 case of the wrong person. Respondent represented a Veronica Romero in case No. LA 02-16132 BB, the last four digits of whose social security number are 571 I. Respondent’s client Romero asked him to file an application for voluntary dismissal of her Chapter 13 case. Instead of filing for the dismissal of his client’s case, on June 24, 2004, Respondent filed an application for voluntary dismissal in the Chapter 13 case of debtor Veronica Romero, case No. LA 04-19775 MT, the last four digits of whose social security number are 7988. This Veronica Romero was not Baran’s client; she was unrepresented.
An order granting the voluntary dismissal of the wrong Veronica Romero’s case was entered on June 24, 2004. As a result of this wrongful dismissal, her house was sold at a foreclosure sale prior to the time she could reverse Respondent’s error and reinstate the case. When the non-client Romero discovered her house was sold at a foreclosure sale, she contacted Respondent for his assistance in correcting the error. Although Respondent admitted the error, he did not assist her in saving her house and took no steps to mitigate the harm caused by his negligence to non-client Romero. Only the assistance of Chapter 13 trustee Dockery resulted in debtor saving her house by the foreclosing creditor reversing the sale.
To prepare the dismissal application of the wrong Veronica Romero’s case, Respondent evidently utilized the court’s Web Pacer system, resulting in his obtaining the wrong case number and social security number. In so doing, he failed to make even the most cursory inquiry of the system or he could have easily determined that the case he dismissed was not his client’s. In fact, his client’s case had been dismissed on March 25, 2004, nearly three months earlier.
As a result of Respondent’s negligent and unprofessional activities, Judge Tighe sanctioned Respondent the total sum of $3,000.00, $1,000.00 payable to Kathy Dockery, Chapter 13 Trustee, who assisted the debtor in repairing the damage; $1,000.00 payable to debtor Veronica Romero; and $1,000.00 payable as sanctions to the United States of America.
D. Case of Yvonne Wilson, LA 04-14652 MT
On March 2, 2004, Respondent filed an incomplete Chapter 13 bankruptcy petition for debtor Yvonne Wilson. Respondent did not meet with debtor Wilson prior to filing her petition nor prior to her appearance at the 341(a) hearing at the court. Respondent did sign a Rights and Responsibilities Agreement with the debtor, requiring him to personally meet with the debtor and to perform a variety of tasks which are normal in a Chapter 13. Debtor attempted to contact Respondent several times prior to the 341(a) hearing but was unsuccessful. On the day of the hearing, Respondent called debtor and told her he would not attend the hearing and she would be represented by an appearance attorney. At the hearing, debtor tendered her plan payment and was examined by the trustee. The matter was continued to the confirmation hearing on May 25, 2004.
On May 1, 2004, debtor Wilson had a 10 minute meeting with Respondent to discuss her case.1 [Footnote 1: Wilson desired a longer meeting since it was her first opportunity to discuss all aspects of her Chapter 13 with her attorney, but Respondent refused to give her more of his time.] She gave Respondent her plan payment and mortgage payment for the months of April and May, 2004. At the confirmation hearing on May 25, 2004, Respondent was late. He tendered the plan payment to the trustee and a mortgage payment declaration from his office showing that the debtor had made on her April and May 2004 post-petition payments to Ameriquest Mortgage, the first trust deed holder on debtor’s home through his office. The plan was confirmed.
On July 6, 2004, the court heard a motion for relief from stay filed by Ameriquest Mortgage, in which Ameriquest alleged that debtor had failed to pay her April and May 2004 post-petition mortgage payments. Although his office had processed those payments, Respondent failed to file an opposition to the motion. As such, the motion was uncontested, and the stay was lifted by order entered on July 13, 2004.
After the order was entered, Linda Baran, the wife and legal assistant of Respondent, called the debtor and told her Ameriquest would foreclose on her home in the next ten days. Linda Baran told the debtor she should sell her home to an individual by the name of Sergio Nunez and he would lease the property back to her.2 [Footnote 2: The panel received evidence of a relationship between Respondent and Sergio Nunez from other sources. Chapter 13 trustee Dockery attached a declaration to her motion to disgorge in the Yvonne Wilson case from a different debtor, Denis Gaudreault ( Ex J to the Motion). This letter described continuous harassment by "an individual named Sergio Fluentes (not sure exactly his last name) whom is a financing person dealing with foreclosure. This person was recommended to me by my attorney at the time David Baran." The declaration described pressure tactics by Sergio to force the debtor to refinance or sell his house to Sergio at high rates, implied that his current attorney could not help him, and that David Baran would agree that only he - Sergio - could solve the refinance issue.
Additionally, attorney Simon testified that he received repeated, pressured phone calls from a loan broker who had previously done business with Respondent and his clients, implying that if Simon would establish the same referral relationship there were kickbacks available to Simon. Simon refused to do business with the broker.] The debtor was totally confused, because she had tendered the mortgage payments through Respondent’s office. Linda Baran told the debtor that Respondent’s office could not do anything further to assist her and suggested she call Ameriquest Mortgage’s attorney directly. When the debtor later called Respondent’s office again, Linda Baran told her she could not find her file and that debtor would not be able to reach Respondent because he was in court and should call Sergio Nunez.
A paralegal for Ameriquest Mortgage’s attorneys attempted to discuss the mortgage payment issue with Respondent’s office but did not receive any cooperation. Instead, the debtor was able to meet directly with the paralegal, tell her of the mortgage payments made through Respondent’s office, and request a postponement of the foreclosure sale. As a result of only debtor’s efforts, on July 26, 2004, the court vacated the order granting relief from automatic stay at the request of movant, Ameriquest Mortgage.
Based on Respondent’s total failure to represent debtor Wilson in the motion for relief, Judge Maureen Tighe ordered Respondent to disgorge all fees paid to him by debtor prior to the filing of the case and all fees paid through the Chapter 13 Trustee in the total amount of $1,628.77. Judge Tighe also ordered Respondent to pay the trustee’s administrative expenses in the prosecution of the motion in the sum of $900.00.
E. Case of Melissa Ann DeMello, RS 04-10628 MJ
When the disciplinary charges were initially brought against Respondent, he sold his bankruptcy practice to the law offices of Simon & Resnik. One of his debtors whose file was transferred to Simon & Resnik was Melissa Ann DeMello, case No. RS 04-10628 MJ. At debtor DeMelto’s request, Simon & Resnik prepared an application for sale of her real property which was recommended by the Chapter 13 Trustee and approved by the court on October 12, 1004. Debtor DeMello had signed a declaration in support of this motion to sell on October 5, 2004. On October 6, 2004, debtor DeMello appeared at a hearing on a motion to dismiss her Chapter 13 case brought by the Chapter 13 Trustee for failure to make plan payments. At that heating, debtor tendered a partial plan payment to allow the case to remain open while she closed the escrow on the sale of her house. However, on the very same day, October 6, 2004, DeMello signed a debtor’s application for voluntary dismissal of Chapter 13, requesting the court to dismiss her Chapter 13 case, which was submitted to the court on her behalf. The proof of service on this application for voluntary dismissal was signed by Linda Baran, Respondent’s wife and legal assistant. This act was evidence of Respondent’s inter-meddling with the affairs of the clients he had transferred to Simon & Resnik.
CONCLUSION
The cases cited above demonstrate to this panel !hat Respondent DAVID JOSEPH BARAN does not competently practice law in the bankruptcy courts of the Central District of California. He has continually violated the local rules which require him to represent his clients diligently in all matters pertaining to their cases. He has failed to appear at hearings, which has resulted in detriment to several of his clients. He negligently dismissed the wrong debtor’s case and did not assist her in reacquiring her house which was sold in foreclosure as a result of his negligence. He has also violated the Rights and Responsibilities Agreements he signed with his debtors, which require him to completely represent them in all matters before the court, both before and after confirmation. All of the failings cited in this Memorandum of Decision are the basis for the discipline against Respondent, as set forth in the separately filed order.
Signed by:
United States Bankruptcy Judge: Arthur M. Greenwald
Dated: February 10, 2005
United States Bankruptcy Judge: Ernest Robles
Dated: February 14, 2005
United States Bankruptcy Judge: Meredith A. Jury
Dated: February 14, 2005
NOTICE OF ENTRY OF JUDGMENT OR ORDER
AND CERTIFICATE OF MAILING
TO ALL PARTIES IN INTEREST LISTED BELOW:
1. You are hereby notified that a judgment or order entitled Memorandum of Decision was entered on February 15, 2005.
2. I, Denise Daniel, a regularly appointed and qualified clerk of the United States Bankruptcy Court for the Central District of California, do hereby certify that in the performance of my duties as such clerk, I served on each of the parties listed below, at the addresses set under their respective names, a copy of the Memorandum of Decision in the within matter by placing a true copy thereof enclosed in a sealed envelope with postage thereon, fully prepaid, in the United States Mail, on February 15. 2005.
David Joseph Baran, Esq.
2461 Santa Monica Blvd., #526
Santa Monica, CA 90404
Steven Jay Katzman, United States Trustee
Office of the United States Trustee
3685 Main Street, Suite 300
Riverside, CA 92501 :
Attn: Terri E. Hawkins-Andersen
Elizabeth A. Lossing, Esq.
Cassandra J. Richey, Esq.
Akihito Koyama, Esq.
Kathy A. Dockery, Chapter 13 Trustee
700 South Flower Street, Suite 1950
Los Angeles, CA 90017
Rod Danielson, Chapter 13 Trustee
3435 14th Street, Suite 100
Riverside, CA 92501
State Bar of California
24 Office of the Chief Trial Counsel/Intake
1149 South Hill Street
Los Angeles, CA 90015-2299
David Joseph Baran, Esq.
423 S. Rexford Drive, #101
Beverly Hills, CA 90212
I declare under penalty of perjury that the foregoing is true and correct.
Signed by:
Deputy Clerk: D. Daniel
Date: February 15. 2005
UNITED STATES BANKRUPTCY COURT
Central District of California
I hereby attest and certify that on the April 25, 2005 the attached reproduction(s), containing 2 pages, is a full, true and correct copy of the complete document entitled:
DISCIPLINE ORDER AGAINST RESPONDENT DAVID JOSEPH BARAN. LA MI 04-00011
which includes:
<<not >> checked: Exhibits
checked: Attachments
On file in my office and in my legal custody at the marked location:
checked:
300 North Los Angeles Street
Los Angeles, CA 90015
Signed by: Jon D. Ceretto
Clerk of Court
THIS CERTIFICATION IS VALID ONLY WITH THE UNITED STATES BANKRUPTCY COURT SEAL.
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In Re:
the DISCIPLINARY PROCEEDING OF
DAVID JOSEPH BARAN
Case No. LA MI 04-00011
MEMORANDUM OF DECISION
Date: Friday, January 14, 2005
Time: 10:00 a.m.
Courtroom: 1545
Edward R. Roybal Federal Building and Courthouse
255 East Temple Street
Los Angeles, CA 90012
Based on the Memorandum of Decision filed with this court and good cause appearing therefore,
IT IS ORDERED that the rights of DAVID JOSEPH BARAN to practice before the United States Bankruptcy Court, Central District of California, are hereby revoked without condition for an unlimited period of time, subject only to respondent’s right to apply for reinstatement under the provisions set forth in General Order 96-05. This matter is also referred to the State Bar of California.
DATED: February 10, 2005
Signed by:
Presiding Judge: ARTHUR M. GREENWALD
NOTICE OF ENTRY OF JUDGMENT OR ORDER
AND CERTIFICATE OF MAILING
TO ALL PARTIES IN INTEREST LISTED BELOW:
1. You are hereby notified that a judgment or order entitled Discipline Order Against Respondent David Joseph Baran was entered on February 15, 2005.
2. I, Denise Daniel, a regularly appointed and qualified clerk of the United States Bankruptcy Court for the Central District of California, do hereby certify that in the performance of my duties as such clerk, I served on each of the parties listed below, at the addresses set under their respective names, a copy of the Discipline Order Against Respondent David Joseph Baran in the within matter by placing a true copy thereof enclosed in a sealed envelope with postage thereon, fully prepaid, in the United States Mail, on February 15. 2005.
David Joseph Baran, Esq.
2461 Santa Monica Blvd., #526
Santa Monica, CA 90404
Steven Jay Katzman, United States Trustee
Office of the United States Trustee
3685 Main Street, Suite 300
Riverside, CA 92501 :
Attn: Terri E. Hawkins-Andersen
Elizabeth A. Lossing, Esq.
Cassandra J. Richey, Esq.
Akihito Koyama, Esq.
Kathy A. Dockery, Chapter 13 Trustee
700 South Flower Street, Suite 1950
Los Angeles, CA 90017
Rod Danielson, Chapter 13 Trustee
3435 14th Street, Suite 100
Riverside, CA 92501
State Bar of California
24 Office of the Chief Trial Counsel/Intake
1149 South Hill Street
Los Angeles, CA 90015-2299
David Joseph Baran, Esq.
423 S. Rexford Drive, #101
Beverly Hills, CA 90212
I declare under penalty of perjury that the foregoing is true and correct.
Signed by:
Deputy Clerk: D. Daniel
Date: February 15. 2005
Case Number(s): 03-O-01034 AND INVESTIGATION NOS. 03-O-04338, 03-O-05084, 04-O-10266, 04-O-10267, 04-O-14342
In the Matter of: DAVID JOSEPH BARAN
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 stipulation as to 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 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: November 10, 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 Los Angeles, on November 10, 2005, I deposited a true copy of the following document(s):
STATEMENT OF ALTERNATIVE DISPOSITIONS AND ORDERS;
STIPULATION RE FACTS AND CONCLUSIONS OF LAW;
ORDER;
CONTRACT AND WAIVER FOR PARTICIPATION IN THE STATE BAR COURT’S ALTERNATIVE DISCIPLINE PROGRAM
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:
JOANNE EARLS ROBBINS
KARPMAN & Associates
9200 SUNSET BLVD PH #7
LOS ANGELES, CA 90069
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Brooke Schafer, Enforcement, Los Angeles
Terrie Goldade, Supervising Attorney Office of Probation, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 10, 2005.
Signed by:
Milagro del R. Salmeron
Case Administrator
State Bar Court