Case Number(s): 03-O-01775
In the Matter of: Justin M. Gingery, Bar # 204217, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Esther Rogers, Bar # 148246
Counsel for Respondent: Jonathan I. Arons, Bar # 111257
Submitted to: assigned judge State Bar Court Clerk’s Office San Francisco
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted December 8, 1999.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 12 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
<<not>> checked. until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 284, Rules of Procedure.
checked. costs to be paid in equal amounts prior to February 1 for the following membership years: 2008 and 2009 (hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
See attached
IN THE MATTER OF: Justin M. Gingery
CASE NUMBER(S): 03-0-01775
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct:
Count One
Statement of Facts
Prior to January 1, 2001, respondent practiced primarily personal injury law. Respondent’s clients frequently had medical liens filed against their settlement proceeds by medical providers.
Prior to January 1, 2001, respondent opened attorney client trust account number 0735429359 ("trust account") at Wells Fargo. Prior to January 1, 2001, respondent also maintained a general business account at Wells Fargo. Between in or about January 1, 2001 and at least in or about December 31, 2002, respondent deposited settlement proceeds into his trust account.
After depositing the settlement proceeds in the trust account, respondent usually wrote two checks from his trust account for each client. The first check was payable to the client and represented the client’s share of his settlement. The second cheek was payable to respondent’s general account and included both respondent’s attorneys fees and the funds respondent was holding in trust to pay off the medical liens. After transferring the medical lien funds to his general account, respondent paid the medical lien holders with checks from his general business account.
By transferring the entrusted medical lien provider funds into his general business account, respondent failed to maintain in his trust account the medical lien funds he was holding in trust until he paid them on behalf of the client.
Conclusions of Law
By failing to maintain the medical lien funds in trust until paid out on behalf of his clients, respondent willfully violated Rules of Professional Conduct, Rule 4-100(A).
Count Two
Statement of Facts
Prior to in or about June 2000, respondent established a law practice in Sacramento. California. In or about June 2000, respondent opened up another law practice in Chico, California. Respondent resided in Sacramento during all relevant times. Respondent’s father, Richard Gingery, resided in Chico during all relevant time periods. Respondent employed Richard Gingery as his "Senior Administrator" in the Chico office.
Between in or about June 2000 and December 2002, respondent permitted Richard Gingery to run the Chico office with limited supervision. Without respondent’s supervision, respondent permitted Richard Gingery to interview new clients, sign the medical liens on respondent’s behalf, negotiate settlements with insurance companies, discuss settlement with the clients, collect the settlement fees, deposit the settlement fees in respondent’s trust account and give respondent instructions on how to distribute the settlement proceeds. By so doing, Richard Gingery practiced law.
Several insurances adjusters believed that Richard Gingery was an attorney. In several instances, the insurance companies wrote checks payable to "Richard Gingery, Attorney." Respondent never advised the insurance companies that Richard Gingery was not a lawyer and never instructed the insurance companies to issue the checks to him, as the attorney, instead of Richard Gingery, a non-lawyer.
As of on or about August 2002, Respondent contends he took the following steps to ensure that Richard Gingery no longer practiced law: Respondent spent three to four days a week at the Chico office and subsequently closed the Chico office. Every aspect of Richard Gingery’s work is supervised by respondent or his two partners. Form letters are now sent to new clients, insurance adjusters or anyone who mistakes Richard Gingery as an attorney informing them that he is not an attorney. Notices are given and signed at client intakes informing clients who in the office are attorneys and who are staff. All offers in negotiation and counter offers are developed, created and agreed upon by the partners. All questions and concerns from clients, clients’ doctors and adjusters are conveyed to an attorney before a response is given.
Conclusions of Law
By permitting Richard Gingery to practice law, respondent aided and abetted the unauthorized practice of law in wilful violation of Rules of Professional Conduct, role 1-300(A).
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(ii.) Respondent acted in good faith because he believed he was helping his clients.
Standard 1.2(e)(v) Cooperation. Respondent agreed to the imposition of discipline without requiring a hearing.
OTHER CONDITIONS NEGOTIATED BY THE PARTIES:
CLIENT TRUST ACCOUNTING SCHOOL
Within one year of the effective date of this discipline, respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
ETHICS SCHOOL AND CLIENT TRUST ACCOUNTING SCHOOL
If respondent completes Ethics School and/or Client Trust Accounting School between October 2006 and the effective date of this discipline, he will not be required to attend the session(s) he completed as a condition of probation. Instead, he must supply the Office of Probation satisfactory proof of attendance at the session(s) and passage of the test given at the end of the session(s) with his first quarterly report.
LIMITATION OF ACTIVITIES OF RESPONDENT’S EMPLOYEES:
Respondent agrees that he will not permit his non-attorney employees, agents or independent contractors to engage in the following conduct proscribed by Rules of Professional Conduct, Rule 1-311:
(1) Render legal consultation or advice to clients;
(2) Appear on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner, or hearing officer;
(3) Appear as a representative of the client at a deposition or other discovery matter;
(4) Negotiate or transact any matter for or on behalf of the client with third parties;
(5) Receive, disburse or otherwise handle the client’s funds; or
(6) Engage in activities which constitute the practice of law.
Respondent agrees that in each quarterly report he will certify that he has not permitted any non-attorney employee, agent or independent contractor to engage in the above-listed conduct proscribed by Rules of Professional Conduct, rule 1-311.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was October 30, 2006.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 30, 2006, the estimated prosecution costs in this matter are approximately $5,000. Respondent acknowledges that this figure is an estimate only. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
SIGNATURE OF THE PARTIES
Case Number(s): 03-O-01775
In the Matter of: Justin M. Gingery
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: Justin M. Gingery
Date: 11/21/2006
Respondent’s Counsel: Jonathan I. Arons
Date: November 21, 2006
Deputy Trial Counsel: Esther Rogers
Date: 11/21/06
Case Number(s): 03-O-01775
In the Matter of: Justin M. Gingery
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
1. On page 5, section E (1)—the “xx” inserted in front of the box is deleted.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 135(b), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 953(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Pat McElroy
Date: 12/12/2006
[Rules 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 December 13, 2006, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at , California, addressed as follows:
JONATHAN IRWIN ARONS
LAW OFC JONATHAN I ARONS
101 HOWARD ST #310
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ESTHER ROGERS, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on December 13, 2006.
Signed by:
Laine Silber
Case Administrator
State Bar Court