Case Number(s): 04-O-10156-PEM, 04-O-13227, 04-O-15145, 04-O-15425, 05-O-00597, 06-O-1170
In the Matter of: Scott S. Furstman, Bar # 76476, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Cydney Batchelor, Deputy Trial Counsel
180 Howard St., 7th Fl.
San Francisco, CA 94105
Tele: 415/538-2204 Bar # 114637,
Counsel for Respondent: In Pro Per, Scott S. Furstman, Esq.
1541 The Alameda
San Jose, CA 95126
Tele: 408/292-4132
Bar #76476
Submitted to: Program Judge – State Bar Court Clerk’s Office San Francisco.
Filed: August 31, 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 12/21/1977.
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. However, except as otherwise provided in rule 804.5(c) of the Rules of Procedure, if Respondent is not accepted into the Alternative Discipline 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, except for Probation Revocation proceedings. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 10 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." See attached.
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law". See attached.
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: None .
Additional mitigating circumstances: See attached.
IN THE MATTER OF: SCOTT S. FURSTMAN, State Bar No. 76476
STATE BAR COURT CASE NUMBER: 04-O-10156-PEM, et al.
FACTS AND CONCLUSIONS OF LAW.
State Bar Case No. 04-0-10156 (Douglas L. Cramer)
Facts: In July 2002, Douglas L. Cramer employed respondent to file a motion for new trial and prosecute an appeal in a federal criminal mater. As payment for respondent’s legal services, Mr. Cramer transferred a motorcycle to him. In December 2002, respondent filed an appeal on Mr. Cramer’s behalf. Thereafter, the appellate court ordered that docketing fees be paid by February 26, 2003, that the court transcript be filed by March 31, 2003, and that the Mr. Cramer’s opening brief on appeal be filed by May 9, 2003. Respondent received actual notice of the orders. Thereafter, respondent paid the docketing fees. However, he failed to file the court transcript, file the opening brief, or properly withdraw from representation, despite multiple orders from the appellate court which were filed from February 2003 to November 2003. During that period of time, and until April 2004, respondent also failed to respond to numerous requests for status information from Mr. Cramer. Finally, on April 23, 2004, the district court ordered new counsel appointed to represent Mr. Cramer. Respondent thereafter cooperated with subsequent counsel, including providing new counsel with the appellate brief which he had prepared but not filed on Mr. Cramer’s behalf.
Conclusions of Law: By repeatedly failing to prosecute Mr. Cramer’s appeal as he was employed to do, respondent failed to perform competently the legal services for which he was employed, in violation of Rule of Prof. Conduct 3-110(A). By willfully failing to obey numerous district court orders that he perform certain actions in Mr. Cramer’s case, respondent failed to comply with court orders, in violation of Bus. and Prof. Code section 6103. By willfully failing to communicate with Mr. Cramer between February 2003 until April 2004, respondent failed to communicate adequately with his client, in violation of Bus. and Prof. Code section 6068(m).
State Bar Case No. 04-0-13227 (Lawrence Jou)
Facts: In August 2003, Lawrence Jou employed respondent to prosecute an appeal in a federal criminal case, and paid him $10,000.00 in advanced legal fees. Respondent performed legal research on the appeal and prepared the opening brief, which was due on November 3, 2002. He prepared the opening brief; however, he failed timely to file the brief on Mr. Jou’s behalf, despite two orders from the appellate court filed on December 15, 2003 and January 16, 2004. On February 27, 2004, respondent finally filed an application for relief from default, and a request to file a late opening brief and excerpts of record. However, at Mr. Jou’s two requests, the district court removed respondent as counsel on March 5, 2004.
Conclusions of Law: By repeatedly failing to file the opening brief on Mr. Jou’s behalf, respondent failed to perform competently the legal services for which he was employed in violation of Rule of Prof. Conduct 3-110(A). By willfully failing to obey two court orders that he file the opening brief by dates certain, respondent failed to comply with court orders, in violation of Bus. and Prof. Code section 6103.
State Bar Case No. 04-0-15145 (State Bar Investigation)
Facts: In February 2002, Frances D. Ward employed respondent to prosecute a criminal appeal. The underlying criminal trial was six weeks in length; however Ms. Ward never paid for the trial transcripts necessary to prosecute the appeal, nor did she ever pay respondent any attorney fees. On February 2, 2002, respondent filed the appeal on her behalf. On February 1 I, 2002, the district court ordered respondent to pay the docketing fees, file the court transcript and file the opening appellate brief by dates certain. Respondent received actual notice of the order; however, he failed to comply. Although he had determined that he would not represent Ms. Ward because of non-payment, respondent failed to file a motion to withdraw in a timely manner, and was subsequently sanctioned numerous times by the court for his failure to file the opening brief. Finally, at respondent’s request, he was relieved as counsel on December 15, 2003.
Conclusions of Law: By willfully withdrawing from representing Ms. Ward in the appeal without obtaining the court’s leave to do so in a timely manner, respondent withdrew from employment in a proceeding before a tribunal without obtaining its permission, in violation of Rule of Professional Conduct 3-700(A)(2). By willfully failing to obey numerous court orders that he file the appellate brief by dates certain, respondent failed to comply with court orders, in violation of Bus. and Prof. Code section 6103.
State Bar Case No. 04-0-15425 (State Bar Investigation)
Facts: Respondent represented Alexander Morales in a criminal trial matter, and Mr. Morales was convicted of criminal charges. In order to preserve Mr. Morales" right to appeal, respondent filed an appeal on his behalf in 2004. Thereafter, Mr. Morales decided that he did not wish to pursue an appeal. However, respondent failed to dismiss the appeal, or to request the appellate court’s leave to withdraw from the case: On March 15, 2004, the appellate court ordered that the reporter’s transcript be designated; respondent had actual notice of the order, but failed to comply. On May 14, 2004, respondent was sanctioned $500.00 by the court.
Conclusions of Law: By willfully failing to request that the Morales appeal be dismissed, or otherwise seek the appellate court’s leave to withdraw, respondent withdrew from employment in a proceeding before a tribunal without obtaining its permission, in violation of Rule of Professional Conduct 3-700(A)(2). By willfully failing to obey a court order that he designate the transcript by a date certain, respondent failed to comply with a court order, in violation of Bus. and Prof. Code section 6103.
State Bar Case No. 05-O-597 (Bong Yul Shin)
Facts: In September 2004, Bong Yul Shin ("Yul Shin") employed respondent to represent his brother Bong Chal Shin ("Chal Shin") in withdrawing a guilty plea to avoid Chal Shin’s deportation. Yul Shin paid respondent $5,000.00 as advanced attorney fees. Respondent was involved in a trial during the entire month of October 2004, and Chal Shin was deported to Korea in November 2004. Thereafter, Chal Shin and his immigration attorney made several demands for the returned of unearned fees, to no avail. In addition, Yul Shin employed another attorney to contact respondent about the matter; in a conversation with that attorney, respondent said that he would return the advanced fees to Yul Shin, but he failed ever to do so.
Conclusions of Law: By willfully failing to return unearned attorney fees to Yul Shin, respondent failed to perform unearned fees to his client, in violation of Rule of Prof. Misconduct 3-700(D)(2).
State Bar Case No. 06-O-11170 (Tooraj Shahedi)
Facts: In April 2002, Tooraj Shahedi employed respondent to represent him in a legal malpractice action, on a contingency fee basis. Thereafter, respondent filed and served a civil complaint on Mr. Shahedi’s behalf. However, during the period from February to August 2004, respondent failed to respond appropriately and timely to discovery propounded to Mr. Shahedi. In addition, during the same time period, respondent also failed to respond sufficiently to numerous requests for status updates from Mr. Shahedi. However, in representing Mr. Shahedi, respondent attended every court appearance, and responded appropriately and aggressively on the pleadings, tried the case to a decision in a bench trial, and filed a motion for a new trial and a motion for reconsideration of the judgment. In addition, respondent obtained a $5000.00 judgment in favor of his client, and waived his attorney fees and costs from Mr. Shahedi’s recovery.
Conclusions of Law: By repeatedly failing to respond in a timely and complete manner to discovery propounded to Mr. Shahedi during the period February 2004 to August 2004, respondent failed to perform competently the legal services for which he was employed, in violation of Rule of Prof. Conduct 3-110(A). By willfully failing to respond sufficiently to Mr. Shahedi’s requests for status updates on his case during the same time period, respondent failed to communicate adequately with his client, in violation of Business and Professions Code section 6068(m).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(6), was August 2, 2006.
AGGRAVATING CIRCUMSTANCES.
Facts Supporting Aggravating Circumstances:
Multiple Acts of Misconduct: The facts stipulated to herein multiple acts of misconduct to multiple clients.
MITIGATING CIRCUMSTANCES.
Facts Supporting Mitigating Circumstance:
Candor and Cooperation: Through counsel, Respondent has been candid and cooperative with the State Bar in resolving this matter.
Financial, Emotional, and Family problems: In the mid-1990’s, respondent’s wife needed to move the family from southern to northern California. Respondent moved his family, but between 1996 and 2004, was unable to find another legal position in northern California and continued to work in southern California and commute back and forth between the family home and his law practice. This caused severe financial and emotional distress. In addition, respondent’s elderly mother developed dementia, his sister was diagnosed with cancer, and his father passed away during this time.
ADDITIONAL MITIGATING CIRCUMSTANCES.
No Prior Record of Discipline: Although the misconduct stipulated to herein is serious, it should be noted that Respondent had been admitted to practice for 10 years at the time of the misconduct, with no prior record of discipline.
Cramer case: payment of sanctions and return of motorcycle: Although he did not do so until after the intervention of the State Bar, on June 14, 2004, respondent paid the $500.00 sanctions were ordered on May 14, 2004. On June 14, 2004, he also returned the motorcycle which Mr. Cramer had transferred to him for attorney fees.
Ward case: payment of sanctions: Although he did not do so until after the intervention of the State Bar, respondent paid the sanctions ordered by the court in full by mid-June 2005.
SBI case no. 04-0-15425; Although he did not do so until after the intervention of the State Bar, respondent paid the sanctions ordered by the court in full in January 2005.
Bong and Jou cases: As a further demonstration of his remorse and good faith, respondent has agreed to refund the advanced attorney fees in full.
Shahedi case: In this case, respondent also waived all his attorney fees and costs from his client’s recovery.
Participation in Lawyer’s Assistance Program. On December 3, 2004, Respondent contacted the State Bar Lawyer Assistance Program ("LAP") and completed the intake process. Respondent was then assessed and monitored for a period of time by the LAP. At the conclusion of the process, Respondent entered into a long-term participation plan with LAP on April 6, 2005.
RESTITUTION.
Respondent waives any objection to immediate payment by the State Bar Client Security Fund upon a claim or claims for the principal amounts of restitution set forth below.
In accordance with the timetable set forth in the State Bar Court alternative discipline program contract to be executed between the State Bar Court and respondent on the captioned cases, Respondent must make restitution as follows:
Lawrence Jou, or the Client Security Fund if it has paid, in the principal amount of $10,000.00, plus interest at the rate of 10% per annum from April 1, 2004, until paid in full and furnish satisfactory evidence of restitution to the State Bar Court.
Bong Abl Shin, or the Client Security Fund if it has paid, in the principal amount of $5,000.00, plus interest at the rate of 10% per annum from January 1, 2005, until paid in full and furnish satisfactory evidence of restitution to the State Bar Court.
Case Number(s): 04-O-10156-PEM, et al.
In the Matter of: Scott S. Furstman
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.
Respondent enters into this stipulation as a condition of his/her participation in the Program. Respondent understands that he/she must abide by all terms and conditions of Respondent’s Program Contract,
If the Respondent in not accepted into the Program or does not sign the 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 Program, upon Respondent’s successful completion of or termination from the Program, this Stipulation will be filed and the specified level of discipline for successful completion of or termination from the Program as set forth in the State Bar Court’s Statement Re: Discipline shall be imposed or recommended to the Supreme Court.
Signed by:
Respondent: Scott S. Furstman
Date: August 7, 2006
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Cydney Batchelor
Date: August 7, 2006
Case Number(s): 04-O-10156-PEM, et al.
In the Matter of: Scott S. Furstman
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 conclusions of law is APPROVED.
<<not>> checked. The stipulated facts and conclusions of law is APPROVED AS MODIFIED as set forth below.
<<not>> checked. All dates in the Hearing Department 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; or 3) Respondent is not accepted for participation in the Program or does not sign the Program Contract. the file date. (See rule 135(b) and 5.802(b), Rules of Procedure.)
Signed by:
Judge of the State Bar Court: Patricia McElroy
Date: October 31, 2006