Case Number(s): 04-O-14811, 04-O-10025 PEM, 05-O-2135, 05-O-3349
In the Matter of: John H. Missirlian , Bar # 66885 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Cydney Batchelor, Deputy Trial Counsel
180 Howard St.
San Francisco, CA 94105
Tele: 415/538-2204
Bar #114637
Counsel for Respondent: David A. Roberts, Esq.
Caswell Bell & Hillison
5200 N. Palm Ave, No. 211
Fresno, CA 93704
Tele: 559/225-6550
Bar #88723
Submitted to: Program Judge State Bar Court Clerk’s Office Los Angeles
Filed: January 12, 2010
<<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 18, 1975.
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. However, except as otherwise provided in rule 804.5(c) of the Rules of Procedure, if Respondent is not accepted into the Alternative Discipline Program, this stipulation will be rejected and will not be binding on the Respondent or the State Bar.
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, except for Probation Revocation proceedings. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 9 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. 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.
7. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7 and will pay timely any disciplinary costs imposed in this proceeding.
Additional aggravating circumstances: .
Additional mitigating circumstances:
IN THE MATTER OF: JOHN H. MISSIRLIAN
CASE NUMBERS: 04-O-10025-PEM, ET AL.
DISMISSAL,
Case No. 05-O-2135 (Aegea McMahon Stone): The State Bar respectfully requests the Court, upon the execution of the alternative discipline program contract in these matters, to dismiss this case without prejudice. Respondent understands that his failure to comply with the additional restitution condition set forth herein may result in this case being reopened.
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the State Bar Act and/or Rules of Professional Conduct.
Case No. 04-O-10.025 (Gary and Zandra Steinhardt):
Facts: On January 17, 2003, Gary and Zandra Steirthardt ("the Steinhards") employed Respondent to prepare a living trust, and paid him $500.00 in advanced attorney fees. On August 20, 2003, the Steirthardts met with Respondent at his office to review what he prepared so far, requested some additions and changes be made, and paid him another $250.00 in advanced fees. Respondent quoted them a total fee of $1000.00, and told them that he would make the changes and send the document to them for their review within a couple weeks. However, Respondent failed to do so. On September 16, 2003, the Steinhardt’s paid Respondent $350.00 in additional advanced fees. Thereafter, the Steinhardt’s called Respondent on numerous on occasions to obtain a copy of the trust; however, he failed to respond or comply, or to inform them that he had moved his offices. On December 11, 2003, Mr. Steirthardt went to Respondent’s office to obtain a copy of the living trust, and he was informed that Respondent was no longer at that address. Mr. Steinhardt then went to Respondent’s new address; he was told that Respondent was not available, and left a message for Respondent to call him. Respondent failed to do so, or ever to provide the trust.
Conclusions of Law: By repeatedly failing to prepare the trust for the Steinhards,
Respondent failed to perform competently the legal services for which he had been
Attachment Page 1
employed, in violation of Rule of Professional Conduct 3-110(A). By willfully not responding to the Steinhardt’s requests for information about the trust, Respondent failed to respond promptly to reasonable stares inquiries of a client, in violation of Business and Professions Code section 6068(m).
Case No. 04,-O-14811 (Katherine Rainey):
Facts.: On December 4, 2002, Katherine Rainey ("Ms. Rainey") employed Respondent to probate the estate of her deceased mother. Ms. Rainey paid Respondent advanced attorney fees in the amounts of $500.00 on December 4, 2002, and $500.00 on January 20, 2003. Respondent took no action on the probate until October 22, 2003, when he filed a petition to probate; however, the petition should not have been filed because the original will could not be located. In February 2004, the probate court requested that Respondent correct the errors in the filing. Despite being given several opportunities to do so, Respondent failed ever to correct his filing errors until July 2004. Thereafter, Respondent failed to make any other appearances or to complete the matter. Ms. Rainey thereafter made numerous telephone calls to Respondent to inquire about the status of the matter, and then hired replacement counsel. Despite numerous requests from Ms. Rainey’s replacement counsel that he sign a substitution of attorney and forward the client file, Respondent failed ever to respond.
Conclusions of Law: By repeatedly failing to complete the Rainey probate matter, as he had been hired to do, Respondent failed to perform competently the legal services for which he had been employed, in violation of Rule of Professional Conduct 3-110(A). By willfully not responding to Ms. Rainey’s numerous requests for information about the rust, Respondent failed to respond promptly to reasonable status inquiries of a client, in violation of Business and Professions Code section 6068(m). By willfully not releasing the client file to subsequent counsel upon request, Respondent failed to release client papers promptly upon termination of employment, in violation of Rule of Professional Conduct 3-70003)(1).
Case No. 05-O:3349 (Denny
Facts: In June 2004, Denny Ung ("Mr. Ung") employed Respondent to probate the estate of his deceased father, and paid him $2000.00 in advanced fees. Thereafter, Respondent failed to complete the probate or respond to Mr. Ung’s numerous requests for information about the case, and Mr. Ung employed replacement counsel. In March 2005, Respondent finally contacted Mr. Ung about the probate. Mr. Ung informed Respondent that he had hired another attorney, and Respondent said that he would refund the attorney fees in full. Respondent did refund $2000.00 plus $100.00 in interest to Mr. Ung, but not until October 2005, after the intervention of the State Bar.
Conclusi.ons of Law: By recklessly failing to complete the Ung probate matter, as he had been hired to do, Respondent failed to perform competently the legal services for which he had been employed, in violation of Rule of Professional Conduct 3-110(A). By willfully not responding to Mr. Ung’s numerous requests for information about the trust,
Respondent failed to respond promptly to reasonable status inquiries of a client, in
violation of Business and Professions Code section 6068(m).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(6), was December 29, 2005.
AGGRAVATING CIRCUMSTANCES.
Facts Supporting Aggravating Circumstances:
Prior Record of Discipline,: As set forth in the stipulation, Respondent has a prior record of discipline.
Significant Harm: Ms. Rainey was required to employ replacement counsel to complete the probate matter, and incurred additional attorney fees
MITIGATING CIRCUMSTANCES.
Facts Supporting Mitigating Circumstance:
Candor and Cooperation: Through counsel, Respondent has been candid and cooperative with the State Bar in resolving these matters..
ADDITIONAL MITIGATING CIRCUMSTANCES.
Restitution: Although he did not do so tmtil after the intervention of the State Bar, Respondent paid restitution to Mr. Ung in the amount of $2100.00 in October 2005. In addition, as a demonstration of remorse, Respondent has agreed to refund to Ms. Rainey the advanced attorneys fees in full, as well as to compensate her for the additional attorney fees which she incurred as a result of his inaction.
Participation in Lawyer’s Assistance Program. In January 2005, Respondent contacted the State Bar Lawyer Assistance Program ("LAP") and completed the intake process. In February 2005, Respondent signed an evaluation plan whereby he agreed to be assessed and monitored for a period of time by the LAP. At the conclusion of the process, Respondent entered into a long-term participation plan with LAP on April 27, 2005.
RESTITUTION.
Respondent waives any objection to immediate payment by the State Bar Client Security Fund upon a claim or claims for the principal amounts of restitution set forth below.
In accordance with the timetable set forth in the State Bar Court alternative discipline program contract to be executed between the State Bar Court and Respondent on the captioned eases, Respondents must make restitution as follows:
Katherine Rainy, or the Client Security Fund if it has paid, in the principal amount of $1000.00, plus interest at the rate of 10% per annum from February 1, 2003, until paid in full and furnish satisfactory evidence of restitution to the State Bar Court.
ADDITIONAL RESTITUTION CONDITION.
Fee arbitration in matter:, Respondents hereby agrees to write to Aegea McMahon Stone, within ninety days from the date he signs this stipulation, and therein offer to initiate and participate in State Bar fee arbitration upon Ms. Stone’s’ request regarding his outstanding dispute with Respondent about $3500.00 in advanced fees. Respondent further agrees to initiate and participate in fee arbitration upon Ms. Stone’s request, and to abide by the final order if any there be. Respondent understands and agrees that his failure to write the letter, or to initiate or participate in fee arbitration upon Ms. Stone’s request, or to abide by the final order, if any there be, may constitute a violation of trials stipulation.
Attachment Page 4
Case Number(s): 04-O-14811, et al.
In the Matter of: John H. Missirlian
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 H. Missirlian
Date: February 1, 2006
Respondent’s Counsel: David A. Roberts
Date: January 22, 2006
Deputy Trial Counsel: Cydney Batchelor
Date: February 2, 2006
Case Number(s): 04-O-14811, et al.
In the Matter of: John H. Missirlian
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 conclusions of law is APPROVED.
<<not>> checked. The stipulated facts and conclusions of law is APPROVED AS MODIFIED as set forth below.
<<not>> checked. All 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; or 3) Respondent is not accepted for participation in the Program or does not sign the Program Contract.the file date. (See rule 5.58(E) & (F) and 5.382(D), Rules of Procedure.)
Signed by:
Judge of the State Bar Court: Pat McElroy
Date: May 15, 2006
[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 May 15, 2006, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW;
CONFIDENTIAL STATEMENT OF ALTERNATIVE
DISPOSITIONS AND ORDERS (Rules Proc. of State Bar, rule 803(a));
CONTRACT AND WAIVER FOR PARTICIPATIONIN THE STATE BAR
COURT’S ALTERNATIVE DISCIPLINE PROGRAM
[X] by personal delivery and addressed as follows:
CYDNEY BATCHELOR
DAVID A. ROBERTS
180 HOWARD ST 6TH FL
SAN FRANCISCO, CA 94105
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California on May 15, 2006.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court