Case Number(s): 04-O-15047, 04-O-15656
In the Matter of: George Arack, Jr., Bar # 47397, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erica Dennings, Bar # 145755
Counsel for Respondent: Michael D. Senneff, Bar # 39388
Submitted to: Assigned Judge – State Bar Court Clerk’s Office San Francisco.
Filed: July 7, 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 January 7, 1971 .
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 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.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-15047; 04-O-15656
In the Matter of: George Arack, Jr.
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: George Arack, Jr.
Date: June 1, 2005
Respondent’s Counsel: Michael D. Senneff
Date: June 23, 2005
Deputy Trial Counsel: Erica Dennings
Date: June 27, 2005
Case Number(s): 04-O-15047; 04-O-15656
In the Matter of: George Arack, Jr.
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.
<<not>> 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(F), 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: July 6, 2005
IN THE MATTER OF: George Arack, State Bar No. 47397
STATE BAR COURT CASE NUMBER: 04-O-15047, 04-O-15656 ET AL.
FACTS AND CONCLUSIONS OF LAW.
Case No. 04-O-15047
On March 15, 2001 Richard D. Roberts ("Roberts") employed respondent to represent him in a DUI matter. Roberts paid respondent $5,000.00 advanced fees. Thereafter, respondent pursued Roberts’ case, including making court appearances and discussing the case with the district attorney. On or about July 5, 2001 Roberts pied guilty and respondent’s representation ended.
On or about June 11, 2001 respondent sent Roberts a final billing statement indicating $3,800.00 in services rendered and a balance due to Roberts of $1,200.00.
On or about August 9, 2001 Roberts called respondent’s office and requested the return of unearned fees. Roberts spoke with Linda Groberg, respondent’s office manager and wife, who assured him she would take care of sending the refund.
After August 9, 2001 Roberts sent respondent a letter requesting a refund. Respondent failed to respond to the letter.
Thereafter, Roberts failed respondent’s office on several occasions to request a refund. Respondent failed to refund unearned fees.
On or about March 25, 2004, Roberts sent respondent a letter requesting a refund of the $1,200.00 plus interest of $546.00 by April 8, 2004. Roberts told respondent if he did not refund the money, he would take further action. Roberts sent the letter via certified mail and the return receipt card was signed by Linda Groberg. Respondent failed to return the $1,200.00:
On or about August 17, 2004 Roberts filed a complaint with the State Bar against respondent.
On or about November 18 and December 3, 2004 State Bar investigator Crystal Velzeo wrote two letters to respondent regarding Roberts’ complaint
On or about January 28, 2005, respondent sent Roberts a check in the amount of $1,498.00.
By not refunding unearned fees to Roberts for more than three years after his employment ended and Roberts’ requested it, respondent failed to promptly returned unearned fees in wilful violation of rule 3-700(D)(2) of the Rules of Professional Conduct.
Case no. 04-O-15656
Respondent belonged to compliance group one for MCLE purposes. As such, respondent was required to submit a signed card showing he had completed 25 hours of MCLE courses between February 1, 2001 and January 31, 2004.
Respondent received notices from the State Bar of California on at least three occasions indicating he had not submitted a compliance card.
In or about April 200z), respondent returned an unsigned compliance card.
On or about July 15, 2004, a 60 day non compliance notice was sent to respondent indicating that his compliance card was received unsigned and that he would be enrolled as an
inactive member by September 15, 2004 if he failed to show compliance with MCLE requirements.
Respondent did not return a signed compliance card.
On or about August 6, 2004 the Office of Certification sent a letter to respondent notifying him that he would be enrolled as an inactive member by September 15, 2004. The letter was sent by certified mail and the domestic return receipt was signed by L. Arack. On or about September 16, 2004, respondent was placed on not entitled status. On or about September 23, 2004 the Office of Certification wrote respondent notifying him that he had been placed on not entitled status since September 16, 2004.
On or about September 29, 2004, respondent submitted a signed MCLE compliance card along with the reinstatement fee of $200.00.
On or about October 4, 2004 the Office of Certification sent a letter to respondent notifying him that his reinstatement submission was incomplete because it did not contain documentation of compliance or payment of $7.50, representing the balance of the $75 non compliance fee.
Effective December 13, 2004, respondent was reinstated to active status.
Between September 16 and December 13, 2004 respondent practiced law as usual, including making court appearances on behalf of 129 clients. After being told by the District Attorney’s office that he was not entitled to practice law, respondent prepared a declaration explaining the circumstances of his not entitled status. A copy of the declaration was placed in the file of each client for whom respondent made appearances.
By practicing law while he was on not entitled status, respondent engaged in the unauthorized practice of law in wilful violation of sections 6068(a), 6125 and 6126 of the Business and Professions Code.
C. Mitigating Circumstances
9. Family Problems
In May 2003, respondent’s wife, who is his office administrator, developed a defuse neurologic condition which caused her to become disabled. From May, 2003 through the year 2004, respondent became her care giver. In January 2004, respondent’s elderly mother suffered a stroke and thereafter became the care-giver for his elderly parents, necessitating daily attention to them. His mother died in September, 2004. The circumstances with respondent’s wife, who could not function as his office administrator, and his parents, created chaos in respondent’s life and his practice during 2003 and 2004. Respondent has a very active criminal defense practice and typically relied very heavily upon his wife for office administration. Respondent does not recall having received many of the notices for the State Bar in 2003 and 2004 regarding wither matter which is the subject of this disciplinary proceeding. During the relevant time period, there was a problem with the Postal Service delivering mail to his office because of a confusion in addresses, which caused some of his mail to be delivered to the wrong address. Some of the mis-delivered mail was retrieved and properly delivered by the Postal Service, but it is not known whether all was delivered to respondent’s office. Nevertheless, respondent accepts responsibility for the consequences of the notice and correspondences of the notice and correspondence from the State Bar sent to him.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was June 22, 2005.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of May 10, 2005, the estimated prosecution costs in this matter are approximately $2,033.00. 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 from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
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.
[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 July 7, 2005 I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING, filed July 7, 2005.
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 D. SENNEFF
SENNEFF, FREEMAN & BLUESTONE
PO BOX 3729
SANTA ROSA, CA 95402
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERICA DENNINGS, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on July 7, 2005.
Signed by:
George Hue
Case Administrator
State Bar Court