Case Number(s): 04-O-11053
In the Matter of: Anne Yedval West, Bar # 52908, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Melaine J. Lawrence, Bar # 230102,
Counsel for Respondent: Ellen A. Pansky, Bar # 77688, &
Counsel for Respondent: James I. Ham, Bar # 100849,
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 2, 1972.
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 16 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 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: two billing cycles following the effective date of the Supreme Court order. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.)
<<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): 04-O-11053
In the Matter of: Anne Yedval West
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.
<<not>> 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.
IN THE MATTER OF: Anne Yedval West, State Bar No. 52908
STATE BAR COURT CASE NUMBER: 04-O-11053
A. FACTS AND CONCLUSIONS OF LAW
Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
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 June 20, 2007, and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
Facts:
1. On or around January 21, 2003, Ina Rea Gerardi ("Ina") employed Respondent to provide legal advice and representation in connection with the Gerardi Family 1987 Trust established by Ina and her husband, and representation of Ina’s interests in connection with acts taken by some of Ina’s children which Ina believed constituted improper interference with Ina’s personal financial affairs as well as her rights as sole trustee of the Gerardi Family Trust.
2. In April, 2003, Lisa Gerardi, one of Ina’s daughters, filed an ex parte petition for order directing vesting of trust assets and restricting transfer of trust assets with respect to the Gerardi Family 1987 Trust. A petition for appointment of probate conservator of the person and estate oflna Rea Gerardi was also filed. Ina Gerardi did not receive notice of the ex parte application or the conservatorship petition until after the Court issued an order appointing Lisa P. Gerardi co-trustee with Ina Gerardi.
3. On April 14, 2003, the Superior Court entered an Order Directing Vesting of Trust Assets and Restricting Transfer of Trust Assets in LASC Case No. NP 010 062. The Order required, among other things, any financial institution holding assets (accounts) of the Gerardi Family 1987 Trust dated April 2, 1987 to vest title of such assets (accounts) in the names of LISA P. GERARDI and INA R. GERARDI, Co-Trustees of the Gerardi Family 1987 Trust dated April 2, 1987, until further order of the Court.
4. The Gerardi Family 1987 Trust provides, among other things, that co-trustees can designate, in writing, that one can act alone. Neither Ina nor Lisa designated in writing that one could act alone.
5. On or about July 21, 2003 and July 25, 2003, in two separate transactions, Ina Gerardi executed written instructions to Whidbey Island Bank to wire a total of approximately $273,190.86 of Gerardi Family 1987 Trust assets to Ina Gerardi’s personal Bank of America bank account located in Downey, California. The written instructions were prepared with the assistance of Janice Wineke, a contract paralegal working for Respondent, and with Respondent’s approval. Whidbey Island Bank complied with the written instructions.
6. Thereafter, Ina Gerardi caused the Bank of America to issue two cashiers checks in the amount of $125,090.86 and $148,100, representing Gerardi Family 1987 Trust assets, payable to Respondent’s Client Trust Account. Ina Gerardi was assisted in these actions by respondent’s contract paralegal, Janice Wineke, and with Respondent’s approval.
7. On or about July 25, 2003 and July 28, 2003, and at Ina Gerardi’s direction, Respondent deposited into her Client Trust Account the Bank of America cashiers checks of approximately $125,090.86 and $148,100, representing Gerardi Family 1987 Trust funds that Ina Gerardi had withdrawn from Whidbey Island Bank and transferred to her personal account at Bank of America. Respondent allowed these funds to be deposited in her Client Trust Account for the benefit of Ina R. Gerardi. The funds were not held in the name of Lisa P. Gerardi and Ina R. Gerardi, co-trustees of the Gerardi Family 1987 Trust.
8. On August 4, 2003, the Superior Court entered a Minute Order in Superior Court Case No. NP 010 062, which provided, among other things, that Mr. Wally Moniak shall be appointed temporary co-trustee with Ina R. Gerardi pending further hearing and that all transfers of assets or movement of assets shall require the joint signature of Mr. Moniak and Ina R. Gerardi.
9. On or about August 27, 2003, Anne West disclosed to Wally Moniak that she was holding Gerardi Family 1987 Trust funds.
10. On or about October 3, 2003, the parties in Superior Court Case Nos. NP 010 058 and NP 010 062, entered into an Agreement and Stipulation Re: Disputed Issues. Among other things, the parties stipulated to the appointment of independent trustee Emily Stuhlbarg as Trustee of the Gerardi Family 1987 Trust and stipulated that the Trust would be administered under the supervision of the Court according to the requirements of the California Probate Code.
11. On or around October 15, 2003, Mr. Wally Moniak advised the Court that he resigned as a co-trustee of the Gerardi Family 1987 Trust.
12. In on around November 2003, and January 2004, Respondent wrote two checks from her Client Trust Account to Emily Stuhlbarg, representing the balance of Gerardi Family 1987 Trust funds held by respondent for Ina Gerardi in respondent’s Client Trust Account.
Conclusions of Law
(1) In violation of her duty, under Bus. & Prof. Code § 6103 to comply with court orders, Respondent violated the April 14, 2003, Court Order, by failing to cause title to trust assets deposited in Respondent’s Client Trust Account to be vested in the names of LISA P. GERARDI and INA R. GERARDI, Co-Trustees of the Gerardi Family 1987 Trust.
ATTACHMENT RE SECTION B: ADDITIONAL AGGRAVATING CIRCUMSTANCES
B. ADDITIONAL AGGRAVATING CIRCUMSTANCES
The Court appointed various individuals to protect Ina Gerardi’s financial interests. Respondent acted improperly by failing to inform co-trustee Lisa Gerardi that Respondent was holding trust funds and by not including all co-trustees on title to the trust assets held in Respondent’s Client Trust Account.
ATTACHMENT RE SECTION C: ADDITIONAL MITIGATING CIRCUMSTANCES
C. ADDITIONAL MITIGATING CIRCUMSTANCES
1. Respondent has been in practice for thirty-five years with no prior record of discipline.
2. Respondent did not harm her client, Inn R. Gerardi, or misuse Gerardi Family 1987 Trust funds.
3. Respondent acted in good faith. In accepting Gerardi Family 1987 Trust funds into her Client Trust Account for the benefit of lna R. Gerardi, she relied upon the advice of a State Bar certified specialist in probate and trust law proceedings.
4. Respondent displayed candor and cooperation with the State Bar during disciplinary investigation and proceedings. The State Bar initiated this investigation while the underlying proceedings were taking place. Respondent provided documents and information to the State Bar on a regular basis, and informed the State Bar of the status of the proceedings as they were taking place.
5. Respondent’s good character has been attested to by a wide range of references in the legal and general communities who are aware of the full extent of her misconduct.
D. AUTHORITIES SUPPORTING DISCIPLINE
Case Law
In Bach v. State Bar (1987) 43 Cal.3d 848, an attorney represented his client in a family law matter. The court ordered Bach to have his client appear for a mediation. The order was made in open court and was also reflected in a minute order and an order prepared by opposing counsel which was served on him. Bach did not comply with the order. Then, when the court inquired about the status of the mediation, Bach told the court that no court order had been issued to or served on him. Even when confronted by the court with the minute order, he denied that the court had told him to have his client appear for mediation. During disciplinary proceedings Bach admitted he was directed by the court to make his client available for mediation but described the direction as a mere "advisement" rather than an order. The court found ample evidence that Bach had sought to mislead the court by a false statement or artifice, found no mitigating factors, and ordered him actually suspended for sixty days.
In McMahon v. State Bar (1952) 39 Cal.2d 367, McMahon filed a petition for special letters of administration in a probate matter alleging a deceased died intestate when he knew that a will existed, knew who possessed the will, and knew the general contents of the will. The court ordered McMahon suspended for sixty days.
In the Matter of John tt Greenwood 3 Cal. State Bar Ct. Rptr. 831; 1998 Calif. Op. LEXIS 3 (1998), the respondent was found to have committed more serious breaches of duty than that involved in this case. There, the hearing judge concluded that respondent recklessly failed to perform services in violation of rule 3-110(A) of the Rules &Professional Conduct; failed to appropriately communicate with his client in violation of section 6068, subdivision (m); and violated a court order to comply with discovery in violation of sections 6068 subdivision (b) and 6103. Also, the hearing judge determined that respondent’s failure to return a client’s file violated rule 3-700(D) of the Rules of Professional Conduct; and that his failure to reply to the State Bar investigator’s inquiry violated section 6068, subdivision (i). Greenwood received a suspension from the practice of law for a period of 18 months with execution of the suspension stayed, an actual suspension of 90 days, and two years probation.
E. DISMISSALS
The parties respectfully request the Court dismiss counts two, three, and four in the interest of justice.
F. COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of Chief Trial counsel has informed Respondent that as of October 18, 2007, the estimated costs in this matter are $8,700.00. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. 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): 04-O-11053
In the Matter of: Anne Yedval West
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: Anne Yedval West
Date: October 23, 2007
Respondent’s Counsel: Ellen A. Pansky
Date: October 24, 2007
Respondent’s Counsel: James I. Ham
Date: October 26, 2007
Deputy Trial Counsel: Melanie J. Lawrence
Date: October 29, 2007
Case Number(s): 04-O-11053
In the Matter of: Anne Yedval West
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: Donald F. Miles
Date: November 7, 2007
[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 13, 2007, 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 ANNE PANSKY
PANSKY & MARKLE
1010 SYCAMORE AVE #101
SOUTH PASADENA, CA 91030
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MELANIE J. LAWRENCE, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 13, 2007.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court