Case Number(s): 04-O-15265; 05-O-02202
In the Matter of: Nelson Ross Boylan, Bar # 75899, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erin McKeown Joyce, Bar # 149946
Counsel for Respondent: Ellen R. Peck, Bar # 88252
Submitted to: assigned judge State Bar Court Clerk’s Office Los Angeles
Filed: April 24, 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 21, 1977.
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 and order consist of 11 pages.
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):
<<not>> checked. costs added to membership fee for calendar year following effective date of discipline.
checked. costs to be paid in equal amounts prior to February 1 for two (2) billing cycles following the effective date of the Supreme Court Order. (hardship, special circumstances or other good cause per rule 282, 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.
IN THE MATTER OF: NELSON ROSS BOYLAN
CASE NUMBERS: 04-O-15265, 05-O-02202
FACTS AND CONCLUSIONS OF LAW.
Case No. 04-0-15265
Violation of Rule of Professional Conduct 3-110(A) - Failure to Perform with Competence
1. On August 14, 2000, Maurice Assayag employed Respondent and Briggs & Baker, a credit counseling firm, to resolve his outstanding credit card debt. Assayag paid Respondent $3,123.25 for Respondent to pursue an accord and satisfaction with several credit card companies on his behalf.
2. On December 20, 2001, Respondent severed all ties with Briggs & Baker. Respondent failed to take any files related to the cases where he accepted employment to proceed with an accord and satisfaction, including Assayag’s file.
3. Respondent failed to perform legal services of any value for Assayag. Respondent failed to notify Assayag that he would not be performing any legal services on his behalf. Respondent has since refunded to Assayag all of the unearned fees which he paid to Respondent.
Conclusions of Law
4. By failing to perform legal services on behalf of Assayag, specifically the accord and satisfaction, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in wilful violation of Rule of Professional Conduct 3-110(A).
Case No. 05-O-02202
Violation of Business and Professions Code section 6068(a) - Failure to Uphold the Laws
5. On February 19, 2003, the Attorney General filed a complaint for injunction, restitution and civil penalties against Briggs & Baker and its principals, alleging that the defendants engaged in unfair business practices. The action was filed in San Diego Superior Court, case number GIC 805762 and alleged that the defendants violated Business and Professions Code sections 17202 and 17535. Respondent, who had previously been an attorney for Briggs & Baker, was named as a defendant in the Attorney General’s complaint.
6. Respondent had severed all ties with Briggs & Baker at least 14 months before the filing of the Attorney General’s complaint. Most of the misconduct of Briggs & Baker alleged in the complaint occurred after Respondent had already left his employment with Briggs & Baker.
7. The Attorney General filed an amended complaint on February 2, 2004 which named Respondent as a defendant and alleged that Respondent engaged in unfair practices in violation of Business and Professions Code sections 17203 and 17535.
8. In August 2004, Respondent entered a stipulated judgment with the Attorney General. In the stipulated judgment Respondent acknowledged violating Business and Professions Code sections 17203 and 17535 in connection with his services rendered to Briggs & Baker. Respondent was enjoined from operating a debt management or debt negotiation service or engaging in credit repair. There were no other penalties or sanctions imposed on Respondent in the stipulated judgment.
Conclusions of Law
9. By violating Business and Professions Code sections 17203 and 17535 in connection with his services rendered to Briggs & Baker, Respondent failed to uphold the laws of this state in wilful violation of Business and Professions Code section 6068(a).
AUTHORITIES SUPPORTING DISCIPLINE.
STANDARDS FOR ATTORNEY SANCTIONS
Pursuant to Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the protection of public confidence in the legal profession.
Pursuant to Standard 2.4(b), culpability of a member of wilfully failing to perform services in a client matter shall result in reproval or suspension depending on the extent of the misconduct and the degree of harm to the client. Under Standard 2.6(a):
Culpability of a member of a violation of [section 6068] shall result in disbarment or suspension depending on 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 these cases, Respondent acknowledges violating Rule of Professional Conduct 3-110(A) and Business and Professions Code section 6068(a) in connection with his legal services rendered while he was employed at Briggs & Baker. This misconduct occurred during the same time as the misconduct which occurred in the six client matters involved in the prior discipline, which resulted in a sixty day actual suspension in State Bar case nos. 02-0-13123 et al.
Pursuant to Standard 1.7(a):
If a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one prior imposition of discipline..., the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior discipline was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust.
In this case, however, the stipulated misconduct was contemporaneous with the prior misconduct for which Respondent has already been disciplined, and in fact consisted of the same kind of misconduct arising from Respondent’s abrupt departure from Briggs & Baker without properly notifying his clients and taking steps to ensure that his clients were not prejudiced. Accordingly, it is appropriate to consider what discipline Respondent would have received if all the cases had been considered together in determining the appropriate level of discipline in this case. In the Matter of Miller, 1 Cal. State Bar Ct. Rptr. 131,136-137 (Review Dept. 1990).
Since Respondent already received a sixty day actual suspension in the prior case (case no. 02-O-13123 et al), the stipulated discipline which increases Respondent’s probation to four years is appropriate.
Respondent displayed candor and cooperated fully in these State Bar investigations, and is entitled to mitigation pursuant to Standard 1.2(e)(v). Respondent promptly notified the State Bar of the stipulated judgment with the Attorney General’s office.
Respondent also refunded to Assayag the attorney’s fees he paid in an act demonstrating remorse and recognition of wrongdoing, and is entitled to mitigation pursuant to Standard 1.2(e)(vii).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was March 29, 2006.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-15265; 05-O-02202
In the Matter of: Nelson Ross Boylan
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: Nelson Ross Boylan
Date: April 5, 2006
Respondent’s Counsel: Ellen R. Peck
Date: April 10, 2006
Deputy Trial Counsel: Erin McKeown Joyce
Date: April 11, 2006
Case Number(s): 04-O-15265; 05-O-02202
In the Matter of: Nelson Ross Boylan
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(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: Richard A. Honn
Date: 4/21/06
[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 April 24, 2006, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER DISPOSING
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 R PECK ATTORNEY AT LAW
2410 CRESTVIEW ESTATES PL
ESCONDIDO, CA 92027
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Erin M. Joyce, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on April 24, 2006.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court