Case Number(s): 03-O-05149
In the Matter of: Andrews Davis, Bar # 24255, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Lee Kern, Bar # 156623,
Counsel for Respondent: Ellen Pansky, Bar # 77688,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
<<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 July 22, 1953.
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 14 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 actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: . (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
Case Number(s): 03-O-05149
In the Matter of: Andrew J. Davis
a. Restitution
<<not>> checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee:
Principal Amount:
Interest Accrues From:
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
checked.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3. The requirements of this condition are
in addition to those set forth in rule 4-100, Rules of Professional Conduct.
checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
Case Number(s): 03-O-05149
In the Matter of: Andrew J. Davis
<<not>> checked. a. Within days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
checked. b. Within days/ months/ 1 years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than 6 hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Other:
IN THE MATTER OF: Andrew J. Davis, State Bar No. 24255
STATE BAR COURT CASE NUMBER: 03-O-05149
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are tree and that he is culpable of violations of the specified Rules of Professional Conduct.
1. In 2003, Respondent maintained his primary office in Los Angeles, and also had a branch office in Stockton. Respondent traveled to Stockton regularly, typically on a weekly basis.
2. In 2003, Respondent employed in the Stockton office a long-term secretary, Sopha Phengdy-Ting (who had been with him approximately 8 ½ years), and an office manager, Soeun Lee Hem ("Hem"). By 2003, Hem had been employed by Respondent for over two years.
3. Hem had previously worked for other lawyers and for the court as a translator. Hem was a trusted employee of Respondent. Hem was also aware that Respondent had been victimized by a prior office manager and that Respondent had stipulated to a term of suspension arising from his failure to have adequately supervised the prior office manager.
4. Hem was not a signator on Respondent’s client trust account, account number 701-6708666, at Wells Fargo Bank ("CTA").
5. On or about October 23, 2003, Hem left the United States for Cambodia for several weeks. On or about October 25, 2003, Respondent was notified by his bank of two NSF checks. Respondent eventually determined that, just before Hem left for Cambodia, Hem secretly purloined trust account checks that Respondent had pre-signed and left in a secured drawer for emergencies. The two checks which were returned by Wells Fargo Bank were written on October 16, 2003 and October 21, 2003. The checks were written by Hem and to hem and were in the amounts of $2,500 each. Without Respondent’s knowledge, Hem took the checks from the CTA cheek book and misappropriated these funds.
6. Hem’s scheme was to deposit the trust account checks into Respondent’s general account and then misappropriate those funds from the general account by using forged checks and an ATM card about which Respondent had no knowledge. Respondent promptly closed the trust account once he learned the true facts of Hem’s wrongdoing.
7. On or about November 3, 2003, Respondent wrote to Hem demanding an explanation. On or about November 10, 2003, Hem unilaterally repaid the amount of $6,000, covering the $5,000 he took from the trust account, by making a deposit directly into Respondent’s CTA. Hem delivered a copy of the deposit slip with a note to Respondent which notified him that Hem had made the deposit, and which also said, "May God Bless you," in a clear admission of his theft and to apologize.
8. Respondent filed a police report against Hem on January 28, 2004 and Respondent has closed his Stockton office.
9. CONCLUSIONS OF LAW: By providing Hem with pre-signed CTA checks and access to the CTA and the client funds therein, which then led to the loss of some of those client funds, Respondent failed to supervise his employee and thereby failed to provide legal services with competence, in wilful violation of rule 3-110(A), Rules of Professional Conduct.
10. CONCLUSIONS OF LAW: By failing to maintain at least $5,000 in client funds in his CTA, Respondent failed to maintain client funds in trust, in wilful violation of rule 4-100(A), Rules of Professional Conduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was December 19, 2005.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.2(b) - Culpability of a member of a violation of rule 4-100(A), Rules of Professional Conduct, which does not result in wilful misappropriation of entrusted funds shall result in at least a three month actual suspension.
Palomo v. State Bar (1984) 36 Cal.3d 785. Attorney’s gross negligence in failing to oversee client trust funds resulted in a one year probationary term, with no actual suspension.
Hipolito v. State Bar (1989) 48 Cal.3d 621, and cases cited therein, imposed a one year actual suspension for multiple direct misappropriations of client funds, committed under extenuating circumstances, and where mitigating factors were demonstrated.
The instant case is somewhat more serious than Palomo, and less serious than Hipolito in that the Respondent in the within proceeding did not misappropriate any client funds. The misconduct in this case resulted when Respondent left his employee with two pre-signed CTA checks and access to the CTA. Respondent’s failure to supervise his employee, and the resulting failure to maintain client funds in trust, occurred during the same general time period in which Respondent was correcting problems that occurred as a result of the conduct of a different dishonest former employee. Other than the aberrational wrongdoing of two employees during a discreet period, Respondent has had an unblemished career. In that he stipulated to a 60-day suspension for the first offense, a 90-day suspension in this proceeding will adequately serve the purpose of disciplinary proceedings, including protecting the public and maintaining the integrity of the legal professional and the judicial system.
SIGNATURE OF THE PARTIES
Case Number(s): 03-O-05149
In the Matter of: Andrew J. Davis
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: Andrew J. Davis
Date: December 29, 2005
Respondent’s Counsel: Ellen Pansky
Date: January 3, 2005
Deputy Trial Counsel: Lee Ann Kern
Date: January 11, 2006
Case Number(s): 03-O-05149
In the Matter of: Andrew J. Davis
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:
checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> 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.
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: Richard A. Honn
Date: January 25, 2006
[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 January 25, 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 Los Angeles, California, addressed as follows:
ELLEN A PANSKY ATTORNEY AT LAW
PANSKY & MARKLE
1114 FREMONT AVE
SOUTH PASADENA, CA 91030
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Lee A. Kern, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 26, 2006.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court