Case Number(s): 04-O-11698-JMR, 05-O-02925
In the Matter of: John William Johanson, Bar # 82001, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Robin B. Brune, Bar # 149481
Counsel for Respondent: Bar #
Submitted to: settlement judge State Bar Court Clerk’s Office San Francisco
<<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 November 29, 1978.
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 284, Rules of Procedure.
<<not>> checked. costs to be paid in equal amounts prior to February 1 for the following membership years: (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.
See attachment
IN THE MATTER OF: John William Johanson
CASE NUMBER(S): 04-0-11698-JMR; 05-O-02925
FACTS AND CONCLUSIONS OF LAW.
Scott Matter (Case No. 04-O-11698)
In or about May 1999, John L. Scott ("Scott") employed respondent to represent him in a workers’ compensation matter, John L. Scott v: Chilcote, Inc., WCAB case number SDO 206799. On March 28, 2003, Scott wrote respondent a letter terminating his employment. On September 8, 2003, Scott’s successor attorney, Eric Siegler ("Siegler"), wrote respondent requesting that respondent sign a substitution of attorney form and send Scott’s file to his office. Respondent failed to send the file or to sign the substitution of attorney form in response to the letter. Siegler subsequently obtained a court order substituting himself in place of respondent as attorney of record for Scott.
On November 13, 2003, Siegler served respondent with a deposition subpoena for production of business records requesting that he produce Scott’s file. Respondent failed to return the file.
On December 10, 2003, Judge Udkovich of the WCAB issued an order requesting respondent return Scott’s workers compensation file within ten days. The order was personally served on respondent.
On March 5, 2004, Scott filed a complaint against respondent with the State Bar.
On or about July 8, 2004, respondent wrote a response to the State Bar’s May 13, 2004 letter. In the letter respondent acknowledged the request for Scott’s file and stated that he would send a copy of the file to Scott’s attorney by the end of the month.
In or about July, 2005, respondent sent Scott’s file to Scott.
Conclusions of Law
1. By not returning Scott’s file, respondent failed to release the file promptly, upon termination of employment, to the client, at the request of the Client, in wilful violation of Rules of Professional Conduct, rule 3-700(D)(1).
2. By not releasing Scott’s file to Siegler in ten days as ordered by the court, respondent wilfully disobeyed or violated an order of the court requiring him to do or forbear an act connected with or in the course of respondent’s profession which he ought in good faith to do or forbear, in wilful violation of Business and Professions Code section 6103.
Benson Matter (Case No. 05-O-02925)
In August 2004, Bruce Benson ("Benson") retained respondent to represent his corporation, Resolution Settlement Corporation ("RSC"), in collecting funds owed to RSC in a lawsuit entitled Freeman v. The Board of Realtors ("Freeman IF’). The matter progressed through the San Francisco County Superior Court from August 2004 through May 2005.
On March 30, 2005, the RSC filed a ease entitled RSC v. Freeman, case no. 05-439966, wherein RSC argued that it was entitled to the sum of $750,000.00 from the defendants. On April 14, 2005, San Francisco County Superior Court entered judgment in favor of RSC, awarding it the sum of $750,000.00. On April 26, 2005, Barry and Associates issued check number 102 from their client trust account in the sum of $174,953.49 made payable to respondent and RSC.
Subsequently, respondent deposited the funds received for RSC’s benefit into a non-client trust account. Respondent had specifically opened an account to process RSC’s cheek, but did not designate it as a client trust account. On May 4, 2005, respondent released to RSC’s president Bruce Benson the sum of $134,958.49. Respondent retained his attorney’s fees from the $174,953.49.
Conclusions of Law
1. By failing to deposit check number 102 in the sum of $174,953.49 that respondent had received for the benefit of RSC into a client trust account, "Client’s Funds Account," or words of similar import, respondent wilfully violated Rule 4-100(A) of the Rules of Professional conduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was June 30, 2006.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of June 29, 2006, the estimated prosecution costs in this matter are approximately $4,299.43. 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.
AUTHORITIES SUPPORTING DISCIPLINE.
In the Matter of Dahlz (Review Dept. 2001) 4 Cal. State Bar Ct. Rptr. 269
In the Matter of Kaplan (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 547
In the Matter of Kopinski (Review Dept, 1994) 2 Cal. State Bar Ct. Rptr. 716
In the Matter of Myrdall (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 363
AGGRAVATING CIRCUMSTANCES.
Standard 1.2(b)(i) - prior discipline
Standard 1.2(b)(iv) - significant harm
Standard 1.2.(b)(v) - indifference
PRIOR DISCIPLINE.
In 1998 respondent received a two year suspension, stayed, with two years of probation for failure to perform, engaging in the unauthorized practice of law in another jurisdiction, misappropriation of client funds, trust account improprieties, and misrepresentations to his client and a third party lien holder.
FACTS SUPPORTING AGGRAVATING CIRCUMSTANCES.
Respondent’s conduct significantly harmed his client. The client, John Scott, proceeded to trial with subsequent counsel, but was damaged due to the fact that respondent had items in his file which would have been of use to successor counsel, including, but not limited to, deposition transcripts, proof of payment dates, and addresses of potential witnesses. The client ultimately sued respondent for malpractice and obtained a default judgment in the sum of $154.976.50.
Respondent’s conduct also harmed the public; by failing to honor a court order, respondent undermined confidence in the legal system.
Respondent eventually returned the file, but not until the summer of 2005, approximately one and one half years after the court ordered its return. Such a delay demonstrates indifference to his client.
MITIGATING CIRCUMSTANCES.
Standard 1.2(e)(v) - candor and cooperation with the State Bar
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
Respondent has been cooperative in reaching settlement in this case and has early on acknowledged his culpability.
ADDITIONAL MITIGATING CIRCUMSTANCES.
Respondent suffered the death of his father and two close friends.
Respondent admits that the aforementioned facts are true and that he/she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
STATE BAR ETHICS SCHOOL.
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
OTHER CONDITIONS NEGOTIATED BY THE PARTIES.
Respondent waives all variance between the Notice of Disciplinary Charges and this Stipulation, and waives a right to receive a 20-day letter, and other procedural rights in order to incorporate the Benson matter into this Stipulation.
See attached Medical Conditions.
Case Number(s): 04-O-11698, 05-O-02925
In the Matter of: John William Johanson
checked. a. Respondent must obtain psychiatric or psychological help/treatment from a duly licensed psychiatrist, psychologist, or clinical social worker at respondent’s own expense a minimum of 2 times per month and must furnish evidence to the Office of Probation that respondent is so complying with each quarterly report. Help/treatment should commence immediately, and in any event, no later than thirty (30) days after the effective date of the discipline in this matter. Treatment must continue for days or 6 months or years or, the period of probation or until a motion to modify this condition is granted and that ruling becomes final.
If the treating psychiatrist, psychologist, or clinical social worker
determines that there has been a substantial change in respondent’s condition,
respondent or Office of the Chief Trial Counsel may file a motion for
modification of this condition with the Hearing Department of the State Bar
Court, pursuant to rule 550 of the Rules of Procedure of the State Bar. The
motion must be supported by a written statement from the psychiatrist,
psychologist, or clinical social worker, by affidavit or under penalty of
perjury, in support of the proposed modification.
checked. c. Upon the request of the Office of Probation, respondent must provide the Office of Probation with medical waivers and access to all of Respondent’s medical records. Revocation of any medical waiver is a violation of this condition. Any medical records obtained by the Office of Probation are confidential and no information concerning them or their contents will be given to anyone except members of the Office of Probation, Office of the Chief Trial Counsel, and the State Bar Court, who are directly involved with maintaining, enforcing or adjudicating this condition.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-11698, 05-O-02925
In the Matter of: John William Johanson
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: John William Johanson
Date: 7-5-06
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Robin B. Brune
Date: 7/17/06
Case Number(s): 04-O-11698-JMR, 05-O-02925
In the Matter of: John William Johanson
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.
1. On page 1, in the caption, the stipulation is submitted to the assigned judge.
2. On page 1, under section A(3), the stipulation and order consist of 14 pages.
3. On page 5, under E(1), the "x" in the box is deleted. There are no conditions attached to respondent’s actual suspension that would trigger the conditional standard 1.4(c)(ii) requirement.
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: Joann M. Remke
Date: 8/15/06
[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 San Francisco, on August 15, 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 San Francisco, California, addressed as follows:
JOHN WILLIAM JOHANSON
2657 WINDMILL PKWY #246
HENDERSON, NV 89074 - 3384
COURTESY COPY
JOHN W JOHANSON
183 BETHANY ST
HENDERSON, NV 89074-0000
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ROBIN BRUNE, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on August 15, 2006.
Signed by:
Laine Silber
Case Administrator
State Bar Court