Case Number(s): 04-O-13205, 04-O-14932, 04-O-15231
In the Matter of: Sharon L. Lapin, Bar # 165919, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Donald R. Steedman, Bar # 104927
Counsel for Respondent: Michael E. Wine, Bar # 58657
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
Filed: November 21, 2005.
<<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 October 29, 2003 .
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 19 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 are added to membership fee for calendar year following effective date of discipline.
<<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.
IN THE MATTER OF: Sharon Lynn Lapin, State Bar No. 165919
STATE BAR COURT CASE NUMBER: 04-O-13205, 04-O-14932, 04-O-15231
FACTS AND CONCLUSIONS OF LAW.
COUNT ONE (A)
Case No. 04-O-13205
Rules of Professional Conduct, role 3-110(A)
[Failure to Perform with Competence]
2. Respondent wilfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, and repeatedly failing to perform legal services with competence, as follows:
3. In or about May 2003, respondent accepted an engagement to perform estate planning work in connection with the estate of Dolores Raphael. Ms. Raphael was an elderly and impaired woman who lacked capacity to make financial decisions. Respondent agreed to establish a conservatorship for Ms. Raphael and to confirm the existence of a valid living mast. Respondent was employed by Melanie George and Karen Pleak. Ms. George was Ms. Raphael’s daughter. Ms. Pleak was another family member, was acting as a trustee pursuant to a trust instrument, and was assisting in Ms. Raphael’s financial affairs. On or about May 28, 2003, Ms. Pleak paid respondent an advance fee of $1,000.00.
4. In or about June 2003, Ms. Raphael’s family members provided respondent with the documentation that respondent had requested in order to complete the matter.
5. Thereafter, respondent failed to perform any substantial services in the matter, thereby intentionally, recklessly, and repeatedly failing to perform legal services with competence.
COUNT ONE (B)
Case No. 04-O-13205
Business and Professions Code, section 6068(m)
[Failure to Respond to Client Inquiries]
6. Respondent wilfully violated Business and Professions Code, section 6068(m), by failing to respond promptly to reasonable status inquiries of a client, as follows:
7. The allegations contained in Count One (A) are hereby incorporated by this reference.
8. At the beginning of the engagement, it was agreed that respondent would communicate with Ms. George. At all times mentioned, Ms. George was a resident of the State of Oregon. After June 2003, Ms. Peak had no direct communication with respondent.
9. Respondent had no contact with Ms. George or other members of Ms. Raphael’s family between on or about June 24, 2003, and on or about October 6, 2003.
10. Beginning on or about September 8, 2003, Ms. George began to make concerted efforts to contact respondent in order to learn the status of respondent’s efforts. Ms. George left voicemail messages for respondent on or about September 8, 17 (two calls), 18, 25, and October 2 and 6, 2003. In each message, Ms. George asked respondent to return the telephone call and provided respondent with a telephone number at which Ms. George could be reached.
11. Respondent received each of these messages but did not respond until on or about October 6, 2003. On or about October 6, 2003, respondent telephoned Ms. George and scheduled a telephone conference for the following day at 1:15 p.m.
12. On or about October 7, 2003, at about 1:15 p.m., respondent failed to make herself available for the telephone conference. Instead, respondent told Ms. George that she was busy with a client. Respondent promised that she would make herself available for a telephone conference later that afternoon, but failed to do so. Thereafter, respondent failed to make any attempt to contact Ms. George until many months later--long after her employment was terminated.(See Count One (C) below).
13. By ignoring Ms. George’s many voicemail messages and by failing to make herself available for the scheduled October 7, 2003 telephone conference, respondent failed to respond promptly to reasonable status inquiries of a client.
COUNT ONE (C)
Case No. 04-O-13205
Rules of Professional Conduct, rule 3-700(D)(2)
[Failure to Refund Unearned Fees]
14. Respondent wilfully violated Rules of Professional Conduct, rule 3-700(D)(2), by failing to refund promptly any part of a fee paid in advance that has not been earned, as follows:
15. The allegations contained in Counts One (A) and One 03) are hereby incorporated by this reference.
16. On or about October 13, 2003, Ms. George sent respondent a letter terminating her employment and demanding a refund of the unearned attorney fee. Respondent received the letter but did not respond.
17. On or about November 24, 2003, Ms. George sent respondent a second letter reminding respondent that her employment had been terminated and demanding a refund of the unearned attorney fee. Respondent received the letter but did not respond.
18. On or about January 14, 2004, and on or about February 9, 2004, Ms. George sent respondent additional letters by certified mail. Respondent did not claim these letters, and they were returned to Ms. George by the post office.
19. On or about April 27, 2004, Cathleen B. Callahan, an Oregon attorney acting upon Ms. George’s request, telephoned respondent. Respondent promised to send an accounting by the end of the week, but failed to do so.
20. In or about June 2004, respondent received a letter from the State Bar, notifying her that the State Bar had received a complaint from Ms. George.
21. On or about July 15, 2004, respondent refunded $424.75. Respondent refunded the remaining portion of the fee in September, 2005.
22. By failing to return any portion of the advance fee until on or about July 15, 2004, and by failing to refund the remaining $575.25 until September 2005, respondent failed to refund promptly any part of a fee paid in advance that has not been earned.
COUNT ONE (D)
Case No. 04-O-13205
Rules of Professional Conduct, role 3-700(A)(2)
[Improper Withdrawal From Employment]
23. Respondent wilfully violated Rules of Professional Conduct, rule 3-700(A)(2), by failing, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client, as follows:
24. The allegations contained in Counts One (A) and One (B) are hereby incorporated by this reference.
25. Respondent effectively withdrew from employment when she failed to perform legal services (as alleged in Count One (A)) and failed to respond to client inquiries (as alleged in Count One (B)).
26. Respondent withdrew from employment without giving notice to the client and without taking steps to avoid reasonably foreseeable prejudice to the rights of the client.
COUNT ONE (E)
Case No. 04-O-13205
Business and Professions Code, section 6068(1)
[Failure to Comply with Agreement in Lieu of Discipline]
27. Respondent wilfully violated Business and Professions Code, section 6068(1), by failing to keep all agreements made in lieu of disciplinary prosecution with the agency charged with attorney discipline, as follows:
28. The allegations contained in Counts One (A) through One (D) are hereby incorporated by this reference.
29. On or about January 28, 2003, respondent signed an Agreement in Lieu of Discipline (ALD) with the State Bar of California in case number 02-O-12730. The ALD provided that it would remain in effect for one year from the date of its execution by all parties. The State Bar executed the agreement on or about January 29, 2003. Therefore, the ALD remained in effect for one year beginning on or about January 29, 2003. The ALD provided in relevant part as follows: "That during the effective period of this agreement, Respondent shall comply with the provisions of the State Bar Act and Rules of Professional Conduct."
30. The misconduct alleged in Counts One (A) through One (D) occurred in large part during the year that the ALD remained in effect.
31. By violating the Rules of Professional Conduct during the time that the ALD was in effect, respondent failed to keep all agreements made in lieu of disciplinary prosecution with the agency charged with attorney discipline.
COUNT TWO (A)
Case No. 04-O-14932
Rules of Professional Conduct, rule 3-110(A)
[Failure to Perform with Competence]
32. Respondent wilfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, and repeatedly failing to perform legal services with competence, as follows:
33. Prior to February 23, 2004, respondent was engaged to provide legal assistance to Mark A Kubich in connection with Mr. Kubich’s dissolution matter. Mr. Kubich was acting in pro per in that proceeding. At a meeting on or about February 23, 2004, respondent promised to provide Mr. Kubich with documentation necessary to finalize the dissolution.
34. At the February 23, 2004 meeting, Mr. Kubich employed respondent to prepare articles of incorporation. At that time, Mr. Kubich paid respondent an advance fee of $1,500.00 for the incorporation services. Respondent promised to meet with Mr. Kubich the following week to discuss the particulars of the incorporation matter.
35. Thereafter, respondent recklessly, and repeatedly failed to perform legal services with competence by: (1) failing to prepare the articles of incorporation, (2) failing to perform any services with respect to the articles of incorporation, (3) failing to provide Mr. Kubich with documentation necessary to finalize the dissolution, and (4) failing to perform any further services with respect to the dissolution.
COUNT TWO (B)
Case No. 04-O-14932
Business and Professions Code, section 6068(m)
[Failure to Respond to Client Inquiries]
36. Respondent wilfully violated Business and Professions Code, section 6068(m), by failing to respond promptly to reasonable status inquiries of a client, as follows:
37. The allegations contained in Count Two (A) are hereby incorporated by this reference.
38. After February 23, 2004, and continuing until on or about September 11, 2004, Mr. Kubich left numerous (in excess of 40) voice mail messages for respondent seeking information concerning the status of the above-mentioned legal matters (i.e., the incorporation and dissolution matters). Respondent received these voicemail messages but failed to respond.
39. By failing to respond to the voicemail messages, respondent failed to respond promptly to reasonable status inquiries of a client.
COUNT TWO (C)
Case No. 04-O-14932
Rules of Professional Conduct, rule 3-700(D)(2)
[Failure to Refund Unearned Fees]
40. Respondent wilfully violated Rules of Professional Conduct, rule 3-700(D)(2), by failing to refund promptly any part of a fee paid in advance that has not been earned, as follows:
41. The allegations contained in Counts Two (A) and Two (B) are hereby incorporated by this reference.
42. Respondent effectively withdrew from employment when she failed to perform legal services (as alleged in Count Two (A)) and failed to respond to client inquiries (as alleged in Count Two (B)).
43. Upon termination of employment, respondent failed to promptly refund any part of the unearned $1,500.00 fee that she received for preparing the articles of incorporation. In July 2005, following Mr. Kubich’s initiation of a small claims courts action, respondent repaid Mr. Kubich $1,500, plus $250 for court costs.
44. By failing to promptly refund the $1,500.00 fee, respondent failed promptly to refund promptly any part of a fee paid in advance that has not been earned.
COUNT TWO (D)
Case No. 04-O-14932
Rules of Professional Conduct, rule 3-700(A)(2)
[Improper Withdrawal From Employment]
45. Respondent wilfully violated Rules of Professional Conduct, rule 3-700(A)(2), by failing, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client, as follows:
46. The allegations contained in Counts Two (A) and Two 03) are hereby incorporated by this reference.
47. Respondent effectively withdrew from employment when she failed to perform legal services (as alleged in Count Two (A)) and failed to respond to respond to client inquiries (as alleged in Count Two (13)).
48. Respondent withdrew from employment without giving notice to the client and without taking steps to avoid reasonably foreseeable prejudice to the rights of the client.
COUNT THREE (A)
Case No. 04-O-15231
Rules of Professional Conduct, rule 3-110(A)
[Failure to Perform with Competence]
49. Respondent wilfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, and repeatedly failing to perform legal services with competence, as follows:
50. On or about August 30, 2002, David Cutler employed respondent to file and prosecute a lawsuit against a veterinary clinic. At that time, Cutler paid respondent an advance fee of $1,000.00.
51. Between on or about August 30, 2002 and on or about February 11, 2004, Mr. Cutler repeatedly asked respondent to proceed on the matter and respondent repeatedly promised to do SO.
52. However, respondent failed to perform any substantial services for Mr. Cutler, and thereby intentionally, recklessly, and repeatedly failing to perform legal services with competence.
COUNT THREE (B)
Case No. 04-O-15231
Rules of Professional Conduct, rule 3-700(D)(2)
[Failure to Refund Unearned Fees]
53. Respondent wilfully violated Rules of Professional Conduct, rule 3-700(D)(2), by failing to refund promptly any part of a fee paid in advance that has not been earned, as follows:
54. The allegations contained in Count Three (A) are hereby incorporated by this
reference.
55. On or about February 11, 2004, Mr. Cutler sent respondent an email which stated that her services were terminated and which requested a refund of the $1,000.00 fee. Respondent received the email but did not respond.
56. On or about February 10, 2004, Mr. Cutler sent respondent a certified letter stating that her services were terminated and requesting a refund of the $1,000.00 fee. Respondent refused to accept the letter and it was returned by postal authorities.
57. On or about March 11, 2004, Mr. Cutler sent respondent a fax which stated that her services were terminated and which requested a refund of the $1,000.00 fee. Respondent received the fax but did not respond.
58. Mr. Cutler was entitled to a full refund because respondent had not earned any part of the $1,000.00 fee.
59. Respondent failed to make the refund until on or about March 31, 2005, and only after Mr. Cutler had commenced fee arbitration proceedings.
COUNT THREE (C)
Case No. 04-O-15231
Rules of Professional Conduct, role 3-700(D)(1)
[Failure to Release File]
60. Respondent wilfully violated Rules of Professional Conduct, rule 3-700(D)(1), by failing to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property, as follows:
61. The allegations contained in Counts Three (A) and Three 03) are hereby incorporated by this reference.
62. In the February 11, 2004 email and the March 11, 2004 fax, Mr. Cutler requested that respondent return his files and papers.
63. Respondent failed to return Mr. Cutler’s files and papers until on or after March 29, 2005, and only then as part of a formal settlement agreement described in the following count.
64. By failing to return Mr. Cutler’s files and papers until on or after March 29, 2005, respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property.
COUNT THREE (D)
Case No. 04-O-15231
Rules of Professional Conduct, rule 3-700(A)(2)
[Improper Withdrawal From Employment]
65 Respondent wilfully violated Rules of Professional Conduct, rule 3-700(A)(2), by failing, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client, as follows:
66. The allegations contained in Counts Three (A) and Three (B) are hereby incorporated by this reference.
67. Respondent effectively withdrew from employment when she failed to perform legal services (as alleged in Count Three (A)).
68. Respondent withdrew from employment without giving notice to the client and without taking steps to avoid reasonably foreseeable prejudice to the fights of the client.
COUNT THREE (E)
Case No. 04-O-15231
Business and Professions Code, section 6068(i)
[Failure to Cooperate in State Bar investigation]
69. Respondent wilfully violated Business and Professions Code, section 6068(i), by failing to cooperate and participate in a disciplinary investigation pending against respondent, as follows:
70. The allegations contained in Counts Three (A) and Three 03) are hereby incorporated by this reference.
71. On or about November 22, 2004, a State Bar investigator sent respondent a letter of inquiry concerning the complaint that the State Bar had received from Mr. Cutler. The letter requested a written narrative response to the allegations made by Mr. Cutler and requested copies of specified documents relating to the Cutler matter. Respondent received the letter on or before November 30, 2004.
72. On or about December 7, 2004, respondent faxed the State Bar investigator a letter requesting an extension of time to respond to the letter of inquiry.
73. Thereafter, despite receiving a reminder letter dated January 5, 2005, respondent failed to provide the written narrative response, failed to provide any of the requested documentation, and failed to otherwise cooperate or participate in the investigation.
COUNT THREE (F)
Case No. 04-O-15231
Business and Professions Code, section 6090.5(a)(2)
[Seeking an Agreement to Withdraw a State Bar Complaint]
74. Respondent, while acting as a party, wilfully violated Business and Professions Code, section 6090.5(a)(2), by agreeing and seeking agreement that a plaintiff would withdraw a disciplinary complaint and would not cooperate with the investigation or prosecution of the disciplinary matter, as follows:
75. The allegations contained in Count Three (A), Three (B), and Three (E) are hereby incorporated by this reference.
76. On or about March 9, 2005, respondent sent Mr. Cutler a letter in which she offered to refund the $1,000.00 advance fee, plus interest. The letter stated the following condition: "In consideration, you would close your claim against me and no further action would be taken by you, either with the Nevada County Bar Association or with the California Bar Association."
77. On or about March 29, 2005, respondent entered an agreement with Mr. Cutler by which she agreed to repay the $1,000.00 plus interest and arbitration expenses. The agreement provided in part as follows: "Mr. Cutler will close his claims against Ms. Lapin, both with the Nevada County Bar Association and with the California State Bar Association. Mr. Cutler will provide Ms. Lapin with written confirmation of the closure of both claims."
78. By sending the March 9, 2005, letter respondent sought agreement that a plaintiff would withdraw a disciplinary complaint and would not cooperate with the investigation or prosecution the disciplinary matter. By entering the March 29, 2005 agreement, respondent entered an agreement whereby a plaintiff would withdraw a disciplinary complaint and would not cooperate with the investigation and prosecution the disciplinary matter.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was October 20, 2005.
MITIGATING CIRCUMSTANCES.
During the period covered by the misconduct, respondent moved her offices from Grass Valley California to Marin County, which made it difficult for her to handle all of her responsibilities to clients. Respondent made this move to be closer to her elderly parents, who were needed respondent’s assistance. Respondent also suffered health problems and underwent a difficult dissolution of marriage during this time. Respondent represents that she has now reduced her caseload to a manageable level.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-13205; 04-O-14932; 04-O-15231
In the Matter of: Sharon Lynn Lapin
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: Sharon Lynn Sapin
Date: October 25, 2005
Respondent’s Counsel: Michael E. Wine
Date: October 26, 2005
Deputy Trial Counsel: Donald R. Steedman
Date: October 28, 2005
Case Number(s): 04-O-13205; 04-O-14932; 04-O-15231
In the Matter of: Sharon Lynn Lapin
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.
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 953(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Joann Remke
Date: November 18, 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 21, 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:
MICHAEL E. WINE
301 N LAKE AVE STE 800
PASADENA CA 91101 5113
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DONALD R. STEEDMAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on November 21, 2005.
Signed by:
BERNADETTE C. O. MOLINA
Case Administrator
State Bar Court