Case Number(s): 04-O-12283; 04-O-12371
In the Matter of: Afsaneh N. Newman, Bar # 210357, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Gordon L. Grenier, Bar # 225430
Counsel for Respondent: Ellen A. Pansky, Bar # 77688
Submitted to: assistant judge State Bar Court Clerk’s Office Los Angeles
Filed: September 20, 2006
<<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 4, 2000.
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 12 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. costs added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. case ineligible for costs (private reproval).
<<not>> checked. costs to be paid in equal amounts 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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
1. Respondent has no prior record of discipline in heady six years of practice.
2. Respondent has displayed candor and cooperation with the State Bar during the disciplinary investigation and proceedings.
3. Respondent underwent surgery and was placed on medical disability dudng part of the time period in which the misconduct occurred.
IN THE MATTER OF: AFSANEH N. NEWMAN
CASE NUMBER(S): 04-0-12283, 04-0-12371
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified Rules of Professional conduct.
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Second Amended Notices of Disciplinary Charges filed concurrently with this stipulation, and the facts and/or conclusions of law contained in this stipulation.
Case No. 04-O-12283
Statement of Facts:
1. On December 26, 2001, Juan Corona and Martha Corona (collectively "the Coronas") hired attorney Geraldine Ly ("Ly") to represent them in a personal injury matter arising out of automobile accident that occurred on or about November 15, 2001. Ly was hired on a contingency fee basis.
2. On September 26, 2002, Ly filed a lawsuit on behalf of the Coronas, entitled Corona v. Van Noort, Case no. 02SL04601, venued in Orange County Superior Court ("the Corona lawsuit").
3. During the course of the litigation, the defendant in the Corona lawsuit was deployed to serve in the military in Iraq and Ly informed the Coronas that litigation proceedings must be stayed as a result of the deployment, and that the Coronas would not be receiving any monetary compensation until the case is actively litigated again. The Coronas were displeased with the delay and Ly advised that they could seek alternative counsel.
4. The Coronas therefore consulted with Respondent about their lawsuit. The Coronas informed Respondent that Ly was representing them at the time. The Coronas retained Respondent to represent them in their lawsuit.
5. In March of 2004, Respondent negotiated a settlement of the Coronas lawsuit with Farmers Insurance Group ("Farmers"). But Ly remained the attorney of record in the Corona lawsuit.
6. On March 5, 2004, Respondent’s office filed a request for dismissal of the Corona lawsuit. Four days later the Orange County Superior Court rejected Respondent’s request for dismissal because Respondent was not the attorney of record in the Corona lawsuit.
7. On March 17, 2004, Respondent’s office filed a second request for dismissal "second request") of the Corona lawsuit.
8. The second request was prepared by a non-attorney-staff member in Respondent’s office. Respondent did not supervise the drafting of the second request; nor did she review the second request prior to her office filing it in the Orange County Superior Court.
9. The second request was misleading. It contained Ly’s name in the caption and Ly’s purported signature, but failed to disclose that it had come from Respondent’s office without Ly’s actual consent.
10. The Orange County Superior Court relied upon the second request and accordingly dismissed the Corona lawsuit in its entirety on March 17, 2004.
Conclusions of Law:
11. By failing to supervise her non-attorney employee in drafting and subsequently filing the second request, Respondent repeatedly failed to supervise the work of a non-attorney employee in violation of role 3-100(A) of the Rules of Professional Conduct.
Case No. 04-0-12371
Statement of Facts:
12. On or about August 29, 2003, Lori Aaron Banks ("Banks") hired Respondent to pursue a personal injury matter which arose out of an automobile accident involving her and her two minor sons.
13. On December 16, 2003, Banks hired a new attorney, Victor Oswald ("Oswald").
14. On January 8, 2004, GMAC Insurance ("GMAC") issued three (3) checks in the Banks matter: a check in the amount of $848 for Brandon Banks’ medical bills, a check in the amount of $1,458 for Taylor Banks’ medical bills, and a check in the amount of $2,000 for Lori Banks’ medical bills (collectively "medical payment checks"). Each of the medical payment checks was made payable to Respondent and Loft Aaron-Banks, and all were sent to Respondent’s office.
15. Respondent’s office turned over a copy of the Banks client file to Oswald on January 29, 2004, but the file did not include any indication that Respondent’s office received the medical payment checks.
16. Respondent failed to promptly inform Banks or Oswald that she had received the medical payment cheeks.
Conclusion of Law:
17. By not promptly informing Banks or Oswald that she had received the medical payment checks, Respondent failed to keep her client reasonably informed about significant developments relating to the employment or representation.
MITIGATING CIRCUMSTANCES
No Prior Record of Discipline
Respondent has no prior record of discipline in nearly six years of practice.
Candor and Cooperation with the State Bar
Respondent has displayed candor and cooperation with the State Bar during the disciplinary investigation and proceedings.
Period of Physical Disability During the Time of the Misconduct
Pursuant to Milind K. Ambe, M.D., Respondent underwent surgery and was placed on medical disability between December 15, 2003 and January 5, 2004.
AUTHORITIES SUPPORTING DISCIPLINE
Standard 2.10 states that culpability of a member of a violation of any Rule of Professional Conduct not specified in the standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
In Samuelson v. State Bar (1979) 23 Cal.3d 558, the respondent failed to expeditiously process probate proceedings by delaying the matter for five years even though the issues were not complex. Samuelson failed to communicate with one of the heirs to the estate and failed to communicate with the State Bar even after promising to do so. In mitigation, the Court considered respondent’s 30 years of practice without prior discipline. The respondent received a public reproval.
In In the Matter of Hanson (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 703, the respondent, in a single client matter, failed to refund promptly an unearned legal fee and failed to take reasonable steps to avoid prejudice to a client prior to withdrawal from representation. The respondent had a prior private reproval approximately nineteen years earlier, but the court found this prior to be remote and minimal in nature. As such, the court did not award it significant weight in aggravation. The Respondent received a public reproval.
In the instant case, the facts are less egregious than that of Samuelson, however, Respondent’s years in practice are considerably fewer. Additionally, the record is void of any evidence that Respondent possessed any type of criminal intent or sinister motive. Therefore, a public reproval is consistent with the degree of misconduct and level of discipline reflected in both Samuelson and Hanson.
DISMISSALS
The filing of the Amended Notice of Disciplinary Charges - on March 14, 2006 - included allegations under case no. 05-0-04402. Based upon the recent evidence and explanation provided by Respondent to the State Bar, those allegations are not included in the current Second Amended Notice of Disciplinary Charges. The allegations contained in case no. 05-0-04402 are effectively dismissed without prejudice.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-12283, 04-O-12371
In the Matter of: Afsaneh N. Newman
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: Afsaneh N. Newman
Date: 9/14/06
Respondent’s Counsel: Ellen A. Pansky
Date: 9/18/06
Deputy Trial Counsel: Gordon L. Grenier
Date: 9/19/06
Case Number(s): 04-O-12283, 04-O-12371
In the Matter of: Afsaneh N. Newman
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court 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. (See rule 125(b), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Richard Honn
Date: 09/20/06
[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 September 20, 2006, I deposited a true copy of the following document(s):
STATUS CONFERENCE ORDER
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
500 S GRAND AVE FL 14
LOS ANGELES, CA 90071
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 September 20, 2006.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court