Case Number(s): 03-0-4105 [07-0-13013, 08-0-10210,08-0-11310, 09-0-11094,09-0-11172, 09-0-14968, 09-0-14970, 09-O- 15054, 09-O- 15055, 09-0-15574,09-0-15606, 09-0-16368,09-0-16377, 09-0-16403, 09-O-16603, 09-0-16658,09-0-16659, 09-0-16660,09-0-16808, 09-0-16868,09-0-17215, 09-0-17301, 09-O- 17384, 09-O-17385, 09-O-17744, 09-0-17745, 09-0-17760, 09-O-18006,09-O-18651, 09-O-18873,10-O-151]
In the Matter of: James Alan Walker, Bar # 152261, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Esther Rogers, Bar # 148246
Counsel for Respondent: Bar #
Submitted to: Assigned Judge State Bar Court Clerk’s Office San Francisco
Filed: March 22, 2010
<<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 June 5, 1991.
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 11 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):
checked. until costs are paid in full, Respondent will remain ineligible to seek reinstatement from the practice of law until he pays all disciplinary costs pursuant to rule 662 (c)
<<not
checked>> costs to be paid in equal amounts prior to February 1 for the
following membership years: Rules of Procedure (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.
F. Other Conditions Negotiated by the Parties:
(1) not checked Multistate Professional Responsibility Examination: Respondent must provide proof of passage of the Multistate Professional Responsibility Examination (“MPRE"), administered .by the National Conference of Bar Examiners, to the Office of Probation during the period of actual suspension or within one year, whichever period is longer. Failure to pass the MPRE results in actual suspension without further hearing until passage. But see rule 9.10(b), California Rules of Court, and rule 321(a)(1) & (c), Rules of Procedure.
checked No MPRE recommended. Reason: Respondent will be required to take and pass the MPRE as a condition of reinstatement (see rule 9.10(f), California Rules of Court).
(2) checked Rule 9.20, California Rules of Court: Respondent must comply with the requirements of rule 9.20, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar days, respectively, after the effective date of the Supreme Court’s Order in this matter.
(3) not checked Conditional Rule 9.20, California Rules of Court: If Respondent remains actually suspended for 90 days or more, he/she must comply with the requirements of rule 9.20, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 120 and 130 calendar days, respectively, alter the effective date of the Supreme Court’s Order in this matter.
(4) not checked Credit for Interim Suspension [conviction referral cases only]: Respondent will be credited for the period of his/her interim suspension toward the stipulated period of actual suspension. Date of commencement of interim suspension:
(5 checked Other Conditions: See stipulation attachment.
IN THE MATTER OF: James Alan Walker, State Bar No. 152261
STATE BAR COURT CASE NUMBER: 03-O-04105, et al.
In the Matter of James Alan Walker
Case Number(s): All Captioned Matters
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:
Statement of Admitted Facts--All Captioned Matters
1. Respondent, whose office was located in Roseville, California, offered Medi-Cal and estate planning services. Respondent charged his clients an advanced fee for most services.
2. On August 14, 2009, respondent filed for bankruptcy and listed all of his prior and existing clients as creditors. At the time respondent filed for bankruptcy, he had approximately 70 or more clients whose matters were still in process. (Some, but not all, of the approximately 70 or more clients are identified in attached Exhibit 1.) Each of these clients paid respondent an advanced flat fee for Medi-Cal or estate planning services.
3. At the time that respondent filed for bankruptcy, he ceased providing services to these approximately 70 or more clients whose matters were still in process.
4. Respondent ceased providing services because he was unable to handle the large volume of cases and had insufficient financial resources to hire additional personnel.
5. At the time that respondent ceased providing services, he had not completed the services he promised to provide to the approximately 70 or more clients whose matters were still in process.
6. At the time that respondent ceased providing services, respondent owed some clients a refund of unearned fees since he had only partially performed services for which the clients had paid.
7. Except as noted, attached Exhibit 1 indentifies the now-pending State Bar disciplinary matters by complainant name, State Bar case number, date of respondent’s retention, and amount of advance fee paid to respondent in each matter. Except as noted, all of the complainants listed on Exhibit 1 were respondent’s clients, each paid respondent an advanced flat fee for Medi-Cal and/or estate planning services, each alleges that respondent failed to provide the services for which they paid, and each alleges that they are owed a refund of the advanced fee paid. (The complainants in State Bar Case Nos. 03-0-04105 and 09-0-15606 are interested, non-client third parties who paid no fees to respondent but generally complained about respondent’s provision of Medi-Cal and estate planning services.)
8. Respondent acknowledges that he owes some clients a refund of unearned fees but contends that he performed some services of value for many of the complainants listed on Exhibit 1.
9. The parties anticipate that the State Bar will receive additional similar complaints after the parties execute this stipulation alleging that the parties paid for services that respondent failed to provide.
Conclusions of Law - All Captioned Cases
10. Respondent recklessly failed to perform legal services with competence by accepting the fiat advanced fee from the approximately 70 or more clients, promising to provide future Medi-Cal and estate planning services, and then failing to provide those services by declaring bankruptcy and ceasing to provide any services after he filed for bankruptcy. By doing so, respondent willfully violated Rules of Professional Conduct, rule 3-110(A).
11. Respondent failed to refund unearned fees by failing to refund the unearned portion of the flat advanced fee paid by some of his clients at the time he ceased performing legal services for the clients. By doing so, respondent willfully violated Rules of Professional Conduct, rule 3-700(D)(2).
12. Respondent engaged in a pattern of habitual disregard of the interests of his clients by accepting the upfront fiat fee and failing to provide services to approximately 70 or more clients. Respondent engaged in an act of moral turpitude by habitually disregarding the interests of his clients, thereby willfully violating Business and Profession Code section 6106.
PENDING PROCEEDINGS
The disclosure date referred to, on page 2, paragraph A.(7), was February 8, 2010. There are no proceedings pending against respondent not resolved by this stipulation.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of February 8, 2010 the costs in this matter are $5,441.83. 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.
AUTHORITIES SUPPORTING DISCIPLINE
Standard 2.4 provides that culpability of a member of a pattern of willfully failing to perform services shall result in disbarment. (And see, In the Matter of Collins (Rev. Dept. 1992) 2 Cal. State Bar Ct. Rptr. 1, 15-16, and cases cited therein.)
FINANCIAL CONDITIONS, RESTITUTION
Prior to filing any Petition for Reinstatement, respondent must make restitution to the Client Security Fund if it has paid, in the principal amount paid plus interest at the rate of 10% per annum from the date paid, and furnish satisfactory evidence of restitution to the Office of Probation.
This stipulation does not preclude or stay the independent review and payment of applications for reimbursement filed against respondent, either by individuals identified in Exhibit 1 to this stipulation or otherwise, pursuant to the rules and regulations governing Client Security Fund proceedings.
INVOLUNTARY INACTIVE ENROLLMENT
Respondent shall be transferred to involuntary inactive enrollment status under section 6007 (c)(4), and rule 220 (c) of the Rules of Procedure of the State Bar. The inactive enrollment will become effective upon approval of this stipulation by the Judge of the State Bar Court, or as otherwise provided by State Bar Court order.
Exhibit 1
James Walker Clients
Client Name Aceituno, Thomas A.; Case Number 09-O-15606; Date Retained N/A; Advanced Fee Paid N/A (Bankruptcy Trustee);
Client Name Acuna, Frank; Case Number 08-O-10210; Date Retained October 2007;
Advanced Fee Paid 16,480.00;
Client Name Adams, Trisha; Case Number 09-O-15574; Date Retained April 2009; Advanced Fee Paid 4,495.00;
Client Name Anderson, Othelia A.; Case Number 09-O-16368; Date Retained 8/18/2009; Advanced Fee Paid 14,975.00;
Client Name Bagnall, Maxine; Case Number 09-O-16403; Date Retained 8/2/2007; Advanced Fee Paid 8,775.00;
Client Name Barnes, Sonia C.; Case Number 09-O-17745; Date Retained 4/26/02004; Advanced Fee Paid 15,000.00;
Client Name Bourdet; Case Number 09-O-17384; Date Retained 4/13/2004; Advanced Fee Paid 19,500.00;
Client Name Carvajal, Carlos K.; Case Number 09-O-16377; Date Retained September 2003; Advanced Fee Paid 14,999.80
Client Name Clark, Joseph, D.; Case Number 09-O-18006; Date Retained 11/11/2006; Advanced Fee Paid 17,500.00;
Client Name Clark, Waman, D.; Case Number 09-O-11172; Date Retained 10/7/2008; Advanced Fee Paid 8,995.95;
Client Name Cole, Prescott; Case Number 03-O-04105; Date Retained N/A; Advanced Fee Paid N/A (Attorney w/ Senior Care Advocates);
Client Name Dalton, Cheryl; Case Number 09-O-16659; Date Retained August 2007; Advanced Fee Paid 16,000.00;
Client Name Davis, Marcia L.; Case Number 09-O-16808; Date Retained August 2004; Advanced Fee Paid 15,000.00;
Client Name Grunberg, Diane; Case Number 09-O-15054; Date Retained July 2008; Advanced Fee Paid 9,995.00;
Client Name Hantke, Daulis G.; Case Number 09-O-16603; Date Retained 2008; Advanced Fee Paid 15,000.00;
Client Name Lambert, Gerard; Case Number 09-O-17385; Date Retained 2007; Advanced Fee Paid 14,975.00;
Client Name McAtee, William T.; Case Number 09-O-17760; Date Retained 9/30/2003, 10/02/2009; Advanced Fee Paid 15,000.00;
Client Name Martinez, Raul; Case Number 10-O-00151; Date Retained unknown; Advanced Fee Paid unknown;
Client Name Morgan, Donna; Case Number 09-O-17215; Date Retained 7/26/08; Advanced Fee Paid 9,995.00;
Client Name Olesen, Kristen G.; Case Number 09-O-17301; Date Retained 10/6/2007; Advanced Fee Paid 21,975.00;
Client Name Peter, Glenn T.; Case Number 09-O-16658; Date Retained 3/19/2007; Advanced Fee Paid 14,975.00;
Client Name Poll, Marnell M.; Case Number 09-O-18651; Date Retained August 2004; Advanced Fee Paid 15,000.00;
Client Name Purvis, Lynette; Case Number 09-O-15055; Date Retained June 2006; Advanced Fee Paid 10,500.00;
Client Name Salaiz, Louise; Case Number 09-O-17744; Date Retained 9/19/2003; Advanced Fee Paid 15,000.00;
Client Name Saylors, Denise M.; Case Number 09-O-11094; Date Retained February 2007; Advanced Fee Paid 6,842.25;
Client Name Schulter, Dorothy; Case Number 09-O-14968; Date Retained 8/19/2006; Advanced Fee Paid 19,975.00;
Client Name Seller, Earl; Case Number 08-O-11310; Date Retained 2004; Advanced Fee Paid 18,450.00;
Client Name Shaw, Carol, J.; Case Number 09-O-16660; Date Retained 5/23/2005; Advanced Fee Paid 13,000.00;
Client Name Survera, Nellie; Case Number 07-O-13013; Date Retained 6/11/2007; Advanced Fee Paid 18,775.00;
Client Name Taylor, Christina; Case Number 09-O-16868; Date Retained 4/10/2008; Advanced Fee Paid 16,490.00;
Client Name Grieb, Ruth & Lee (Riess); Case Number 09-O-18873; Date Retained 9/1/2006; Advanced Fee Paid 20,775.00;
Client Name Schwartzwelder, Robert (Riess); Case Number 09-O-18873; Date Retained 9/1/2006; Advanced Fee Paid 8,895.00;
Client Name Darrow, Ralph & Jean (Riess); Case Number 09-O-18873; Date Retained 9/1/2006; Advanced Fee Paid 20,975.00;
Client Name Hill, Dennis & Linda (Riess); Case Number 09-O-18873; Date Retained 9/1/2006; Advanced Fee Paid 6,741.00;
Client Name Swanberg, Billie (Riess); Case Number 09-O-18873; Date Retained 9/1/2006; Advanced Fee Paid 8,995.00;
Client Name Allums, Flemon & Lelia (Riess); Case Number 09-O-18873; Date Retained 9/1/2006; Advanced Fee Paid 18,250.00;
Client Name Morrill, Lloyd (Riess); Case Number 09-O-18873; Date Retained 9/1/2006; Advanced Fee Paid 19,500.00;
Client Name Micallef, Kathleen (Riess); Case Number 09-O-18873; Date Retained 9/1/2006; Advanced Fee Paid 15,000.00;
Client Name Shimmon, Wallace & Bessie (Riess); Case Number 09-O-18873; Date Retained 9/1/2006; Advanced Fee Paid 20,985.00;
Client Name Trusz, William & Sharon (Riess); Case Number 09-O-18873; Date Retained 9/1/2006; Advanced Fee Paid 19,975.00;
Client Name Whiting, Dorthea L.; Case Number 09-O-14970; Date Retained 1/16/2008; Advanced Fee Paid 16,490.00;
SIGNATURE OF THE PARTIES
Case Number(s): 03-O-04105, et al.
In the Matter of: James Alan Walker
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: James Alan Walker
Date: 2-10-10
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Esther Rogers
Date: 2/22/10
Case Number(s): 03-O-04105, et al.
In the Matter of: James Alan Walker
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.
On page 2 of the stipulation, at paragraph A.(8), all form and inserted language next to the box with the "X" is deleted and in its place is inserted, "The court recommends that costs be awarded to the State Bar."
The court also orders that respondent James Alan Walker be transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herein, as provided for by rule 490(b) of the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
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 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Patrice E. McElroy
Date: March 22, 2010
[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 San Francisco, on March 22, 2010, 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 San Francisco, California, addressed as follows:
JOHN C. MCCARRON
STERN, VAN VLECK &
MCCARRON, LLP
925 L ST STE 850
SACRAMENTO, CA 95814
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ESTHER ROGER, Enforcement, San Francisco,
I hereby certify that the foregoing is true and correct. Executed in , California, on .
Signed by:
Lauretta Cramer
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 San Francisco, on , 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:
JAMES A. WALKER
PO BOX 850
ROSEVILLE, CA 95661
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 March 24, 2010.
Signed by:
Bernadette, C.O. Molina
Case Administrator
State Bar Court