Case Number(s): 04-O-14636
In the Matter of: Ruth Ratziaff, Bar # 87615, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Allen Blumenthal, Bar # 110243,
Counsel for Respondent: Paul S. Hokokian, Bar # 91660,
Submitted to: State Bar Court Clerk’s Office San Francisco.
Filed: March 25, 2009.
<<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, 1979.
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 11 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 (public reproval).
<<not>> checked. Case ineligible for costs (private reproval).
<<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.
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.
FACTS AND CONCLUSIONS OF LAW
Facts:
1. Respondent was admitted to the practice of law in California on November 29, 1979 and has been a member of the State Bar at all times pertinent herein and is currently a member of the State Bar.
2. On September 9, 1997, respondent filed a will she had drafted three years earlier for Harold P. Hanson’s ("Hanson") with the Superior Court of California~ County of Fresno and assigned case number 5964424 (the "Hanson matter"). Hanson had died on August 23, 1997.
3. On October 21, 1997, the Court appointed Mr. Frank J. Volpa ("Volpa") as the executor of the estate. Thereafter, respondent represented Volpa in his capacity as the executor of Hanson’s estate.
4. Subsequently, respondent failed to diligently perform any substantial acts to complete the matter, including failing to marshal the assets and filed an inventory and appraisement of the estate, as request.
5. On March 23, 1998, the Court sent respondent Notice re: Unnecessary Delay in Probate, warning her that continued failure to file an inventory and appraisement could lead to the removal of Volpa as the personal representative for the estate. Subsequently, respondent failed to complete the matter or take any substantial acts on behalf of the estate, including failing to file the inventory and appraisement.
6. On December 23, 1998, respondent filed a Status Report regarding the administration of the Hanson estate. Therein, respondent informed the Court that Hanson owned real property in Montana which required the opening of an ancillary probate in that state. That same day the Court continued the Hanson matter to August 18, 1999.
7. During 1998, respondent communicated with Volpa only two times regarding the Hanson matter.
8. Between December 23, 1998 and August 18, 1999, respondent failed to complete the matter or take any substantive acts on behalf of the estate, including failing to file the inventory and appraisement.
9. On August 18, 1999, respondent filed a Status Report with the Court regarding the administration of the Hanson estate. Therein, respondent informed the Court that she had "no valid excuse for the delay in administering this estate. The delay is due to my inactivity, and no fault of the client." Respondent requested the Court to grant an additional six months to close the estate and informed the Court that she had engaged the services of Mr. Raymond A. Love ("Love"), a professional fiduciary to assist her with the inventories and accountings. The Court continued the matter to April 4, 2000.
10. During 1999, respondent failed to communicate with Volpa at all.
11. Between August 18, 1999 and April 14, 2008, respondent failed to complete the matter or take any substantial acts on behalf of the estate, including failing to file the inventory and appraisement.
12. On April 4, 2000, respondent filed a Status Report, indicating that Love should have the first accounting within ninety days and, at that time, she would have more information as to how long the Montana ancillary probate would take to close.
13. Between April 4, 2000 and September 25, 2000, respondent failed to complete the matter or take any substantial acts on behalf of the estate.
14. On September 25, 2000, respondent filed a Status Report along with a declaration by Volpa which stated to the Court that the "Montana ancillary probate could not be completed until the California inventories were finalized, which had only happened this week due to the complex nature of the decedent’s investments. I estimate it may take another six months to complete the Montana portion of the estate administration, which must take place before the final distribution can be made." However, the Montana probate had not yet been opened. The Court continued the matter to March 26, 2001.
15. At a hearing on the Hanson estate held on September 26, 2000, respondent stated to the Court that "[b]ecause we have an ancillary probate in Montana and we keep finding more assets here and they have some sort of inheritance tax so they need to know how much we’ve got, so six months[,]" additional time would be needed to complete the administration of the estate. At this hearing, respondent failed to inform the Court that no ancillary probate had yet been opened in Montana.
16. During 2000, respondent communicated with Volpa only three times regarding the Hanson matter.
17. Between September 26, 2000 and March 21, 2001, respondent failed to complete the matter or take any substantial acts on behalf of the estate.
18. On March 26, 2001, respondent filed the First Account and Report in which she informed the Court that the Montana estate had yet to be administered, but in her filing, respondent failed to inform the Court that the ancillary probate in Montana was still not opened.
19. On May 14, 2001, the Court approved the first accounting and the request for partial allowance of the fees, petitioner’s fees and respondent’s fees, explicitly relying on respondent’s assurance that she had copies, if not the originals, of the pleadings from the Montana ancillary probate in her office. At this hearing, respondent again failed to inform the Court that the ancillary probate in Montana had not yet been opened.
20. From May 2001 until October 2004, respondent failed to file any further Status Reports with the Court in regards to the Hanson estate or otherwise prosecute the matter.
21. During 2001, respondent communicated with Volpa only four times regarding the Hanson matter.
22. During 2002 and 2003, respondent failed to communicate with Volpa at all regarding the Hanson matter.
23. On August 26, 2004, the Court ordered respondent to appear at a Status Hearing regarding her failure to file a Petition for Final Distribution and set the matter for September 30, 2004. The hearing, however, was continued to October 21, 2004.
24. On September 14, 2004, respondent submitted a letter to the State Bar in response to its letter to her regarding a complaint against her involving the Hanson estate. In that letter, respondent stated that she was in the process of initiating the ancillary probate in Montana.
25. On September 22, 2004, respondent contacted Ms. Nancy Gibson ("Gibson"), a Montana attorney, about opening an ancillary probate on behalf of the Hanson estate.
26. On October 21, 2004, respondent filed a Status Report with the Court and, at a hearing on the same date, informed the Court that the Hanson estate remained open because the ancillary probate proceedings had not yet been concluded. She further informed the Court that she had sent the necessary paperwork to Montana on October 8, 2004. The Court continued the matter to January 20, 2005.
27. During 2004, respondent communicated with Volpa only once regarding the Hanson matter.
28. At the hearing on the Hanson estate held on January 20, 2005, respondent informed the Court that the Montana probate proceedings had been initiated. The Court continued the matter to April 21, 2005 and later continued it to July 21, 2005.
29. The Montana probate of the Hanson estate was opened on April 8, 2005. The ancillary probate was assigned Pondera County (Montana) Superior Court case number PR 0510.
30. On July 21, 2005, respondent filed a Status Report and informed the Court that she was in the process of finalizing the federal estate tax for the Montana property.
31. During 2005, respondent communicated with Volpa only three times regarding the Hanson matter.
32. On January 22, 2007, respondent sent the required documents to Gibson.
33. On March 13, 2007, Gibson contacted respondent to inform her that the documents relating to the ancillary probate of the Hanson estate had been recorded and returned to her office. Gibson further explained that the closing statement was not required.
34. On June 19, 2007, respondent filed a Second and Final Accounting and informed the Court by declaration that the Montana estate had been administered.
35. On October 9, 2007, the Court issued its Order on First Amended Second and Final Account and Report of Personal Representative and Petition for its Settlement, for Allowance of Balance of Petitioner’s and Attorney’s Fees for Ordinary Services, and for Final Distribution, finally closing the Hanson estate matter ten years after it was opened.
36. The delay between the last Inventory and Appraisal, which was filed on March 21, 2001 and the final closing of the estate, some seven years later caused the Hanson estate to incur an additional $7,778.72 in interest owed on Montana inheritance taxes. Respondent paid this amount to the State of Montana out of her own pocket.
37. Since 2006, respondent stopped communicating with Volpa regarding the Hanson matter except for a single contact in November 2007 to retrieve a check for her services from Volpa for the amount approved in the final accounting. For the past three years, Volpa has only communicated with Love regarding the Hanson estate.
Conclusions of Law:
By repeatedly delaying the opening of the ancillary probate proceedings in Montana and by prolonging the closing of the Hanson estate in California for over ten years, respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence and, as such, willfully violated rule 3-110(A) of the Rules of Professional Conduct.
By failing to keep Volpa reasonably informed regarding the Hanson matter for which he served as executor and respondent as his counsel, respondent failed to keep her client reasonably informed of significant developments in a matter or matters with regard to which the attorney has agreed to provide legal services in willful violation of section 6068(m) of the Business and Professions Code.
PENDING PROCEEDINGS
The disclosure date referred to, on page one, paragraph A.(7) was February 24, 2009.
FACTS SUPPORTING MITIGATING CIRCUMSTANCES
Lack of Prior Discipline - Std. 1.2(e)(i)
Absence of any prior record of discipline over many years of practice coupled with present misconduct which is not deemed serious.
Personal Difficulties (Family Problems) - Std. 1.2(e)(iv)
At the time of the misconduct, respondent suffered extreme difficulties in her personal life. Between 1997 and 1999, respondent’s mother was in failing health which required respondent to take time away from her law practice in order to take her to medical appointments. After respondent’s mother passed away in 1999, respondent was concerned that her father now lived alone and made many trips to his home to check on him.
Beginning in 2001, respondent’s father’s health began to fail and respondent was called upon to monitor his health and well-being over the next several years until his death in 2005.
AUTHORITIES SUPPORTING DISCIPLINE
Standard 2.4(b) recommends reproval or suspension for willfully failing to perform services depending on the extent of misconduct and the degree of harm to the client. Standard 2.6 recommends disbarment or suspension for violating section 6068 of the Business and Professions Code with due regard for the purposes of imposing discipline set forth in standard 1.3.
The Supreme Court recently re-affirmed that great weight is to be given the standards and that they should be followed whenever possible. (In re Silverton (2005) 36 Cal.4th 81, 92.)
Thus, while the Standards are not mandatory, the Supreme Court has held that they should be followed unless the charged attorney can demonstrate the existence of extraordinary circumstances justifying a lesser sanction. (ln re Silverton, supra, 36 Cal.4th at 92.) That is, it is Respondent’s burden to demonstrate that there are extraordinary circumstances justifying a lesser sanction than that recommended by the Standards.
An isolated failure to perform by an attorney has resulted in public and private reprovals to actual suspensions in the past. See Samuelson v. State Bar (1979) 23 Cal.3d 558; In the Matter of Respondent G (Review Dept., 1.992) 2 Cal. State Bar Ct. Rptr. 175; Conroy v. State Bar (1990) 51 Cal.3d 799; Harris v. State Bar (1990) 51 Cal.3d 1082. In Samuelson, the attorney failed to perform in a probate matter and received a public reproval. In Respondent G, the attorney also neglected a probate matter, warranting a private reproval. In Conroy, the court, in a footnote, reported that the attorney had received a prior discipline of a private reproval for misconduct in three client matters for failing to return a file, abandoning a client which resulting in an arrest warrant being issued for the client, and failing to file an inventory in an estate matter. In Harris, the attorney received a three month actual suspension when the client suffered substantial prejudice and the attorney showed no remorse. Harris had 20 years of practice with no priors.
Respondent claims that she had extensive responsibilities arising from the care of her aging parents during the pendency of the Hanson estate matter. Given her lack of any prior discipline in nearly thirty years of practicing law and credit for stipulating in this matter, and her showing of remorse, the recommended discipline for respondent is a public reproval, including Ethics School and taking and passing the Multistate Professional Responsibility Examination, as a means to protect the public, maintain high professional standards, and preserve public confidence in the legal profession.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-14636
In the Matter of: Ruth Ratziaff
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: Ruth Ratziaff
Date: March 2, 2009
Respondent’s Counsel: Paul S. Hokokian
Date: March 4, 2009
Deputy Trial Counsel: Allen Blumenthal
Date: March 9, 2009
Case Number(s): 04-O-14636
In the Matter of: Ruth Ratziaff
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: Lucy Armendariz
Date: March 20, 2009
[Rules Proc. of State Bar; Rule 5.27(B); 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 March 25, 2009, 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:
PAUL SUREN HOKOKIAN
FRESNO STATE BUSINESS CENTER
1713 TULARE ST STE 204
FRESNO, CA 93721
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Allen Blumenthal, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on March 25, 2009
Signed by:
Laine Silber
Case Administrator
State Bar Court