Case Number(s): 04-O-11827
In the Matter of: Clinton A. Johnson, Bar # 57407, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Wonder J. Liang, Bar # 184357,
Counsel for Respondent: Jerome Fishkin, Bar # 47798,
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 December 19, 1973.
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 15 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 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): 04-O-11827
In the Matter of: Clinton A. Johnson, State Bar No.: 57407
<<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 0 days/ 0 months/ one 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 three 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:
Case Number(s): 04-O-11827
In the Matter of: Clinton A. Johnson, State Bar No.: 57407
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: CLINTON A. JOHNSON, State Bar No. 57407
STATE BAR COURT CASE NUMBER: 04-O-11827
FACTS AND CONCLUSIONS OF LAW.
1. At all times mentioned, Respondent maintained a client trust account at Comerica Bank-California-- account number 1891545467 “Trust Account No. 1")-- and at Mechanics Bank -- account number 39576914 ("Trust Account No. 2").
2. On or about November 11, 2002, Jamil Abu-Hamdeh ("Abu-Hamdeh") hired Respondent to represent him cluing the last two phases of a property damage lawsuit, Karris et al v. Craig et al, Contra Costa Superior Court, case no. C98-04571. The first phase settled before Abu-Hamdeh retained Respondent.
3. In or around January 8, 2003, the second phase reached a settlement. On or about February 11, 2003, Farmers Insurance Company issued cheek numbers 3259012814 and 3259012816, totaling $175,000.00, payable to Respondent’s client trust account. On or about March 4, 2003, Respondent deposited the $175,000.00 into Trust Account No. 1 and issued check number 5135 in the amount Of $10,000.00 payable to Adrian and Betty Karts pursuant to the settlement agreement.
4. Respondent was required to maintain the remaining $165,000.00 in Trust Account No. 1.
5. Following the March 4, 2003, deposit of Abu-Hamdeh’s settlement funds, the balance in Trust Account No. 1 fell below the stun of $165,000.00 being held on behalf of Abu-Hamdeh. On or about April 29, 2003, the balance in Trust Account No. 1 was approximately $128,822.43. On or about July 17, 2003, the balance in Trust Account No. I was approximately $117,476.43.
6. During the period between in or around July through in or mound September 2003, Respondent used the funds in his Trust Accounts to satisfy his non-client obligations.
7. On or about August 22, 2003, the third phase of Abe-Hamdeh’s case reached a settlement. On or about September 17, 2003, Mutual Service Casualty Insurance Company issued check number 2032580121 in the amount of $10,000.00 payable to Respondent to be held in trust for Abu Hamdeh. On or shout October 2, 2003, James Waite sent a letter to Respondent, enclosing a check from CNA Insurance Companies in the amount of $10,000.00 payable to Respondent to be held in trust for Abu-Hamdeh. On or about October 3, 2003 Respondent deposited the $10,000.00 check from Mutual Service Casualty Insurance Company into Trust Account No. 2. On or about October 14, 2003, Respondent deposited the $10,000.00 check from CNA Insurance Companies into Trust Account No. 2.
8. On or about October 15, 2003, Respondent transferred the balance of Trust Account No. 1 into Trust Account No. 2.
9. At this point, Respondent was required to maintain a total of S 185,000,001 in Trust Account No. 2 for Abu-Hamdeh. [Footnote 1: $165,000.00 from phase two + $20,000.00 from phase three.]
10. Between in or about October 15, 2003 and November 5, 2003, the balance in Trust Account No. 2 fell below $185,000.00. Thereafter, upon receipt of payment from Abu-Hamdeh’s insurance carrier, Respondent restored the funds to trust.
Conclusion of Law:
By misappropriating at least $46,627.90 of Abu-Hamdeh’s settlement funds, Respondent willfully violated his duty to maintain funds in trim in violation of role 4-100(A) of the Rules of Professional Conduct.
PENDING PROCEEDINGS.
The disclosure date referred m, on page one, paragraph A.(7), was October 6, 2005.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 6, 2005, the estimated prosecution costs in this matter are approximately $1,983.00. 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 the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
AUTHORITIES SUPPORTING DISCIPLINE.
While disbarment or a very long suspension is generally the appropriate discipline for a wilful misappropriation (see Standard 2.2), there are cases where a lesser degree of discipline has been imposed when there was significant mitigating circumstances and minimal harm to the client.
For example, In the Matter of Silver (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 902, respondent was charged with four counts of misconduct in a single client matter. (Id. at 904.) The Review Department upheld culpability findings against respondent for misappropriation of client funds, failing to properly pay out client trust funds and engaging in acts of moral turpitude. (Id.) The Review Department recommended three years’ stayed suspension end three years’ probation in addition to the ninety days’ actual suspension (Id. at 904-905.)
In Sternlieb v. State Bar (1990) 52 Cal.3d 317, 329-330, the Supreme Court held that the evidence established violations of rule 4-100 [former rules 8-101(A), 8-101(B)(3) and 8-101(B)4)] and misappropriation of client funds. The Court imposed a thirty-day actual suspension.
MITIGATING CIRCUMSTANCES.
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
No Prior Discipline: Respondent had approximately thirty years of practice without a record of discipline.
No Harm: By the terms of the settlement agreement, Abu-Hamdeh was not entitled to the fends until he completed and received approval of the property damage repairs. From in or around August 2003 to in ~ mound November 2003, repairs had not commenced on the property.
Remorse: Respondent restored the funds to trust prior to State Bar discover of the transactions,
Severe Financial Stress: Respondent was nott collecting his earned fees in another client matter. Respondent asserts that between April 29, 2003 and August 21, 2003, Abu-Hamdeh owed Respondent $50,000.00 in fees. From August 22, 2003 to November 5, 2003, Abu-Hamdeh owed Respondent over $75,000.00 in fees. During the same period, in an unrelated case, another client owed Respondent $70,000.00 in fees, and the court did not grant respondent’s motion to withdraw from the case. His son started college at an expensive private university.
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.
Respondent admits that the above facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-11827
In the Matter of: Clinton A. Johnson, State Bar No.: 57407
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: Clinton A. Johnson
Date: October 29, 2009
Respondent’s Counsel: Jerome Fishkin
Date: November 1, 2005
Deputy Trial Counsel: Wonder J. Liang
Date: November 1, 2005
Case Number(s): 04-O-11827
In the Matter of: Clinton A. Johnson
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 3, section B(*), an “X” is inserted in the box indicating that there are no aggravating circumstances.
2. On page 4, section D (1)(b), an “X” is inserted in the box indicating that suspension is stayed.
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: Pat McElroy
Date: November 29, 2005
[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 November 29, 2005, 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:
JEROME FISHKIN
369 PINE ST #627
SAN FRANCISCO, CA 94104
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
WONDER LIANG, ENFORCEMENT, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on November 29, 2005.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court