Case Number(s): 04-O-10397
In the Matter of: Robert K. Skousen, Bar # 135104, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Gordon L. Grenier, Bar # 225430
Counsel for Respondent: Arthur L. Margolis, Bar # 57703
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 June 24, 1988.
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):
<<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: two (2) membership year billing cycles following the effective date of the Supreme Court order. (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.
1. Respondent has no prior record of discipline over eighteen years of practice.
2. Respondent has contributed service to community projects. (See page 11)
Case Number(s): 04-O-10397
In the Matter of: Robert J. Skousen A Member of the State Bar
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a Notice of Disciplinary Charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere shall be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court shall find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based. (Added by Stats. 1996, ch. 1104.) (emphasis supplied)
Rule 133, Rules of Procedure of the State Bar of California STIPULATION AS TO FACTS, CONCLUSIONS OF LAW AND DISPOSITION
(a) A proposed stipulation to facts, conclusions of law, and disposition must set forth each of the following:
(5) a statement that Respondent either
(i) admits the facts set forth in the stipulation are true that he or she is culpable of violations of the specified statutes and/or Rules of Professional Conduct or
(ii) pleads nolo contendere to those facts and violations. If the Respondent pleas nolo contendere, the stipulation shall include each of the following:
(a) an acknowledgement that the Respondent completely understands that the plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his or her culpability of the statutes and/or Rules of Professional Conduct specified in the stipulation; and
(b) if requested by the Court, a statement by the Deputy trial counsel that the factual stipulations are supported by evidence obtained in the State Bar Investigation of the matter (emphasis supplied)
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 133(a)(5) of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent: Robert J. Skousen
Date: 10-31-2006
IN THE MATTER OF: ROBERT J. SKOUSEN
CASE NUMBER(S): 04-0-10397
FACTS AND CONCLUSIONS OF LAW.
Respondent pleads nolo contendere. Respondent acknowledges that he completely understands that the plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his culpability of the statutes and/or Rules of Professional Conduct specified in the stipulation.
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed on April 7, 2006, and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended NDC.
Statement of Facts:
Alfred and Guadalupe Del Castillo (father and mother, respectively), had four surviving adult children: Albert, Alice, Ralph and Robert. Robert, the youngest, was developmentally disabled and suffered from cerebral palsy.
Father and mother created a revocable inter vivos trust, into which they placed the bulk of their property. They managed the marital trust for their own benefit while both lived. At the father’s death, mother continued to administer the trust for her benefit.
Robert lived at home and was cared for by his parents, and then by his mother, until the mother’s death. Upon the death of the mother, the trust named Robert as the sole successor beneficiary.
Mother died in 1999. She left two wills dated 1991 and 1996. Both wills were set up to pour the majority of the assets of the Del Castillo estate into Robert’s trust, but they differed in that they named different executors. The 1991 Will listed Alice as the executor, while the 1996 Will listed Robert as the first executor and Albert as the alternative executor.
On September 28, 1999, Alice, Robert, and Albert met with Respondent. An attorney-client relationship was established, between Respondent, Alice, and Albert, in which Respondent was to assist in the probating ofthe probating of the Del Castillo estate. They requested that Respondent probate the 1991 will. (While some evidence indicates that Respondent was made aware of the 1996 will at the time of this meeting, this evidence is contested and does not rise to the level of clear and convincing.)
Given the circumstances of the meeting on September 28, 1999, Robert reasonably believed that he, as well as Alice and Albert, was being represented by Respondent. Respondent did not take adequate care to make clear to Robert that Respondent was not representing him. Therefore Respondent due to the circumstances, established an attorney-client relationship with Robert. (See Butler v. State Bar (1986) 42 Cal.3d 323, 329.)
On November 3, 1999, Respondent’s office prepared and filed a petition to probate Alice’s mother’s 1991 will. Alice was the executor of this will. On that same day, Respondent also filed a "Disclaimer" which was signed by Robert and dated September 28, 1999. The disclaimer document disclaimed Robert’s total interest in the Del Castillo estate.
" In November 1999, Alice conducted an estate sale for the Del Castillo estate and sold personal property belonging to the estate. On December 20, 1999, Respondent purchased furniture for himself from the Del Castillo estate.
In or about June 2000, Albert became unhappy with Alice’s action or inaction on behalf of the Del Castillo estate and directed Respondent to file the 1996 Will, and petition to appoint Albert as the personal representative/executor of the Del Castillo estate. Respondent substituted out as attorney of record for Alice who was executor of the 1991 Will on or about June 12, 2000.
On or about June 14, 2000, Respondent, representing Albert, then filed an ex parte petition to suspend Alice’s powers as executor of the Del Castillo estate. Albert also petitioned to probate the 1996 Will and for appointment as the personal representative (executor) under the 1996 Will.
In moving to probate the 1996 Will, Respondent attached an copy of the same Disclaimer that was signed by Robert and dated September 28, 1999. Respondent did not advise Robert to seek the advice of independent counsel before signing the statement and appending it to the 1991 or 1996 Wills. Independent counsel was not employed by either Alice or Albert to advise Robert regarding the Disclaimer.
Alice was subsequently removed by the probate court as executor and ordered to post a bond of $132,000 pending determination by the court of Albert’s petition to remove Alice as executor.
Respondent, representing Albert and the 1996 Will, subsequently filed an action on the bond posted by Alice seeking recovery of Del Castillo estate assets and penalties authorized pursuant to the Probate Code.
The probate court ultimately removed both Alice and Albert as personal representatives of their mother’s estate and removed Albert as trustee of the trust. The Superior court appointed an independent trustee and personal representative, and ordered Albert to deliver all the trust and estate assets to her, and ordered Albert to file a further accounting.
On March 28, 2005, in a letter to the State Bar responding to the allegations of misconduct levied against him regarding the purchase of the property at the Del Castillo estate probate sale, Respondent denied that he or anyone from his firm had attended or participated in the Del Castillo estate probate sale, or that Respondent had purchased any of the property from the Del Castillo estate. That statement was false.
Conclusion of Law:
By representing Alice and Albert who had adverse interests in the Del Castillo estate, by bringing a civil action on behalf of Albert against Respondent’s former client Alice, and by attaching Robert’s disclaimer to the 1996 Will when it was prepared as an attachment for the 1991 Will, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in wilful violation of rule 3-110(A) of the Rules of Professional Conduct..
By failing to have Alice give her informed written consent to representation individually by the Respondent as personal representative of the 1991 Will, while Respondent represented Albert as personal representative of the 1996 Will, Respondent represented a client in a matter and at the same time accepted as a client a person or entity whose interest in the first matter was adverse to the client in the first matter, in wilful violation of rule 3-310(C)(3) of the Rules of Professional Conduct.
By failing to have Albert give his informed written consent to representation individually by the Respondent as personal representative of the 1996 Will while Respondent represented Alice as personal representative of the 1991 Will, Respondent represented a client in a matter and at the same time in a separate matter accepted as a client a person or entity whose interest in the first matter was adverse to the client in the first matter, without the informed written consent of each client, in wilful violation of rule 3-310(C)(3) of the Rules of Professional Conduct.
By failing to provide written disclosure to Robert describing his professional relationships with Albert and Alice, Respondent willfully violated rule 3-310(B)(3) of the Rules of Professional Conduct.
By purchasing property from Alice at a probate sale where he was acting as a lawyer for the estate she represented, Respondent directly purchased property at an estate sale where Respondent was acting as a lawyer for the executor of a probate, in wilful violation of rule 4-300(A) of the Rules of Professional Conduct.
By intentionally and dishonestly denying his involvement in the purchase of estate property at the Del Castillo estate probate sale conducted by Alice on or about December 20, 1999, Respondent committed an act or acts involving moral turpitude, dishonesty or corruption in wilful violation of Business and Professions Code, section 6106.
MITIGATING CIRCUMSTANCES
No Prior Record of Discipline
Respondent has no prior record of discipline in nearly eighteen years of practice.
Community Service ’
Respondent has contributed service to community projects including:
Serving as a member of the board of directors of Camp Coca Cola
Serving as a member of the board of directors of the Southern California Arthritis Foundation
Serving as a member of the board of directors of the International Visitors Council of Los Angeles
Previously serving as a member of the board of directors of Friends of Child Advocates
AUTHORITIES SUPPORTING DISCIPLINE
Standards for Attorney Sanctions For Professional Misconduct
Standard 2.3 states that the culpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client or another person or of concealment of a material fact to a court, client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law.
Case Law
The Court should also look at case authority in determining the appropriate level of discipline to determine whether the discipline is consistent or disproportional to prior decisions on the same set of facts. Snyder v. State Bar (1990) 49 Cal.3d 1302.
In In the Matter of Fonte (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 752, the respondent was found culpable on two client matters. In the first, he failed to provide an accounting for all fees paid, including an advanced retainer fee, and he failed to adequately disclose and advise in writing of the opportunity to seek advise of counsel when he obtained an adverse interest in property through a trust agreement he drafted for the clients. In the second matter, he failed to advise and obtain consent from two clients regarding the conflicts which could arise from his representation of adverse parties. In mitigation, the respondent was in practice for 25 years without prior discipline and had extensive public service. In aggravation, the court found uncharged misconduct including improper solicitation of a client, misleading the probate court, and overreaching. Additionally, the respondent was found to be indifferent toward atonement. The respondent received a sixty-day actual suspension.
In Levin v. State Bar (1989) 47 Cal.3d 1140, the respondent, while attempting to settle a lawsuit, made false statements of fact to opposing counsel and communicated with a party he knew to be represented by counsel. He also settled a personal injury matter without his client’s consent and failed to deliver the settlement funds. The respondent attempted to conceal his dishonest acts and offered a false document as though it were genuine. The respondent also attempted to submit perjured documents to a court. In mitigation, the respondent was candid and cooperative. Additionally, the respondent had been a member of the Bar for 18 years without prior discipline. The respondent received a three year suspension, stayed, with six months actual.
In Olguin v. State Bar (1980) 28 Cal.3d 195, the respondent failed to communicate with his client and his client’s new lawyer. He was delinquent in sending the file to the client’s new attorney after a demand that he do so. While he was still attorney of record, the client’s case was dismissed after the respondent failed to take any steps to oppose the dismissal. In another matter, the respondent admitted submitting fabricated evidence to the State Bar in order to avoid a finding of culpability in the disciplinary proceedings. In aggravation, the respondent had a prior discipline for a criminal conviction for making a false claim of citizenship. The respondent received an 18-month suspension, stayed, with six months actual.
In the instant case, the facts surrounding the charge of moral turpitude are less egregious than that of Levin and Olguin, but Respondent’s conduct is more severe than Fonte. In mitigation, Respondent has been practicing law for nearly eighteen years without any prior discipline. Therefore, a two-year suspension, stayed, with a 120-days actual suspension, is the appropriate level of discipline..
DISMISSALS
The counts 2, 3, 8, 9, and 10 are dismissed in the interests of justice.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-10397
In the Matter of: Robert J. Skousen
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: Robert J. Skousen
Date: 10-26-06
Respondent’s Counsel: Arthur L. Margolis
Date: 10/27/06
Deputy Trial Counsel: Gordon L. Grenier
Date: 10-27-06
Case Number(s): 04-O-10397
In the Matter of: Robert J. Skousen
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 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 10/31/06
[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 2, 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:
ARTHUR L MARGOLIS
MARGOLIS & MARGOLIS LLP
2000 RIVERSIDE DR
LOS ANGELES CA 90039
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
GORDON GRENIER, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 2, 2006.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court