Case Number(s): 04-O-15864
In the Matter of: Lee H. Benson, Bar # 181663, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Miho Murai, Bar # 235178
Counsel for Respondent: Kevin P. Gerry, Bar # 129690
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
Filed: August 13, 2008
<<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 February 5, 1996.
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 13 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):
<<not>> checked. costs 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 to be paid in equal amounts prior to February 1 for the following membership years: Costs to be paid in equal amounts prior to February 1 for the following two (2) billing cycles following the effective date of discipline. (hardship, special circumstances or other good cause per rule 284, 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.
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.
N/A
N/A
IN THE MATTER OF: LEE H. BENSON
CASE NUMBER(S): 04-0-15864
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive may variance between the Notice of Disciplinary Charges filed on May 6, 2008 and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
FACTS AND CONCLUSIONS OF LAW
Lee H. Benson ("Respondent") admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
FACTS
1. Respondent was admitted to the practice of law in the State of California on February 5, 1996, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California.
2. On September 20, 2001, Maria Pacheco ("Ms. Pacheco") employed Respondent to represent her in a dissolution action filed by her husband in the Superior Court of California, County of Los Angeles, entitled, In re Marriage of Pacheco, Case Number PD030855 (the "dissolution matter"). At that meeting Ms. Pacheco paid Respondent a consultation fee of $50.00.
3. On September 28, 2001, Ms. Pacheco paid Respondent $1,000.00 in advanced attorney fees. On September 30, 2001, Ms. Pacheco paid Respondent $500.00 in advanced attorney fees. On October 19, 2001, Ms. Pacheco paid Respondent $1,500.00 in advanced attorney fees.
4. On November 2, 2001, Respondent filed a Response to Petition on behalf of Ms. Pacheco in the dissolution matter.
5. Settlement negotiations were on-going with respect to the dissolution matter. In or about January 2002, Respondent sent the first of several proposed settlement agreements to Ms. Pacheco.
6. On August 16, 2002, Respondent sent the signature page of the final settlement agreement to [Ms. Pacheco’s] husband’s attorney for signatures.
7. On October 4, 2002, Respondent sent an Appearance, Stipulation and Waiver document to [Ms. Pacheco’s] husband’s attorney for signatures. Respondent did not follow up on the settlement or the Appearance, Stipulation and Waiver documents.
8. By failing to follow up on the settlement and the Appearance, Stipulation and Waiver documents, Respondent effectively withdrew from representation of Ms. Pacheco. Respondent did not inform Ms. Pacheco that he intended to withdraw from employment in the dissolution matter. Nor did Respondent take any steps to avoid reasonably foreseeable prejudice to Ms. Pacheco.
9. Respondent performed no further services on behalf of Ms. Pacheco.
10. In or about April or May 2003, Ms. Pacheco drove to Respondent’s office and discovered that Respondent had moved and the offices were closed. Respondent never informed Ms. Pacheco of the closure of his office.
11. Respondent had not returned any of the unearned fees paid by Pacheco.
12. On November 28, 2005, Respondent executed and entered into a Stipulation as to Facts and Agreement in Lieu of Discipline pursuant to Business and Professions Code sections 6068(1) and 6092.50) (hereinafter the "Agreement in Lieu of Discipline") with the State Bar of California, Office of the Chief Trial Counsel (hereinafter the "State Bar").
13. In the Agreement in Lieu of Discipline, Respondent stipulated to violations of Business and Professions Code section 6068(m) and rules 3-110(A), 3-700(A)(2), and 3-700(D)(2) of the Rules of Professional Conduct with regard to Respondent’s representation of Maria Pacheco.
14. Pursuant to the Agreement in Lieu of Discipline, Respondent agreed to comply with the following terms and conditions, among others, the following:
(a) To comply with the conditions of the Agreement in Lieu of Discipline for a period of one (1) year from the date the Agreement in Lieu of Discipline was executed by all parties;
(b) To comply with the provisions of the State Bar Act and Rules of Professional Conduct of the State Bar of California during the effective period of the Agreement in Lieu of Discipline;
(c) To submit to the Office of Probation of the State Bar of California ("Office of Probation") written quarterly reports each January 10, April 10, July 10 and October 10 of each year or part thereof during which the Agreement in Lieu of Discipline is in effect, certifying under penalty of perjury that he has complied with all provisions of the State Bar Act and the Rules of Professional Conduct during the preceding calendar quarter or part thereof covered by the report and to file a final report covering the remaining portion of the effective period of the Agreement in Lieu of Discipline;
(d) To promptly report, and in no event in more than ten (10) days, to the Membership Records Office of the State Bar and to the Office of Probation, all changes of information, including current office or other address for State Bar purposes as prescribed by Business and Professions Code section 6002.1;
(e) Within ten (10) months of the date of the execution of this Agreement in Lieu of Discipline by all parties, to make restitution to Mafia Pacheco in the amount of $1,500.00, plus interest at the rate of 10% per annum from October 19, 2001 until paid in full and furnish satisfactory evidence of restitution to the Office of Probation;
(f) To maintain with the Office of Probation a current address and current telephone number at which Respondent can be reached and respond within twelve (12) hours; and
(g) To attend State Bar Ethics School and to take and pass the test given at the end of the session and provide proof of same to the Office of Probation within one (1) year of the date of the execution of the Agreement in Lieu of Discipline by all parties.
15. On December 15, 2005, a probation deputy of the Office of Probation wrote a letter to Respondent in which the probation deputy reminded Respondent of the terms and conditions of his Agreement in Lieu of Discipline. In the December 15, 2005 letter, the probation deputy specifically advised Respondent regarding his obligations to file quarterly reports, with the first report due on April 10, 2006, to pay restitution to Maria Pacheco by October 6, 2006 (within ten (10) months of the date of the execution of the Agreement in Lieu of Discipline by all parties), and to attend State Bar Ethics School by December 6, 2006. Enclosed with the December 15, 2005 letter to Respondent were, among other things, copies of the relevant portions of the Agreement in Lieu of Discipline showing the conditions; a notice of counsel representation form; a quarterly report instructions sheet; a quarterly report form specifically tailored for Respondent to use in submitting his quarterly report; an ethics and client trust accounting schools instruction sheet; and a State Bar of California Ethics/Client Trust Account School Application Enrollment form. Respondent received the December 15, 2005 letter.
16. On March 10, 2006, the Client Security Fund sent Respondent a notice of intention to pay the principal balance of the restitution owed to Maria Pacheco, in the amount of $1,500.00. The notice advised Respondent that he remained obligated to pay the interest to the client from October 19, 2001, as stipulated to in the Agreement in Lieu of Discipline. Respondent received the notice from the Client Security Fund, but did not respond to it or offer any objection to the payment.
17. On May 15, 2006, the Client Security Fund paid Ms. Pacheco $1,500.00.
18. Respondent failed to file with the Office of Probation the quarterly reports that were due on April 10, 2006, July 10, 2006, and October 10, 2006.
19. Respondent failed to file with the Office of Probation the final report that was due on December 6, 2006.
20. Respondent failed to provide satisfactory proof to the Office of Probation that within ten (10) months of the date of the execution of the Agreement in Lieu of Discipline by all parties Respondent made restitution to Maria Pacheco in the amount of $1,500.00, plus interest at the rate of 10% per annum from October 19, 2001 until paid in full.
21. Respondent failed to provide satisfactory proof to the Office of Probation that he attended State Bar Ethics School and took and passed the exam given at the end of the session by December 6, 2006.
22. Respondent failed to maintain a current telephone number with the Office of Probation.
23. On May 6, 2008, the State Bar filed the First Amended Notice of Disciplinary Charges based upon Respondent’s ALD violations.
24. On June 17, 2008, Respondent filed with the Office of Probation the quarterly reports that were due on April 10, 2006, July 10, 2006, and October 10, 2006.
25. On June 17, 2008, Respondent filed the final report that was due on December 6, 2006.
26. On June 30, 2008, Respondent faxed proof to the Office of Probation that he attended the State Bar Ethics School on May 8, 2008 and successfully passed the exam given at the end of the session.
27. On June 30, 2008, Respondent faxed satisfactory proof to the Office of Probation that he fully reimbursed the Client Security Fund on June 17, 2008 for the $1,500.00 payment made by the Client Security Fund to Ms. Pacheco on May 15, 2006.
28. On July 2, 2008, Respondent faxed satisfactory proof to the Office of Probation that he paid restitution to Ms. Pacheco in the amount of $1,500.00 on December 15, 2006. Although Respondent did not include the accrued interest in his December 15, 2006 payment to Ms. Pacheco, since she received payment from both the Client Security Fund and Respondent, she ultimately was paid the accrued interest.
CONCLUSIONS OF LAW
29. By failing to fellow up on the settlement and the Appearance, Stipulation and Waiver documents, by failing to perform any further services on behalf of Pacheco after on or about October 4, 2002, and by failing to advise his client that he had moved his offices, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of role 3-110(A) of the Rules of Professional Conduct.
30. By failing to follow up on the settlement and the Appearance, Stipulation and Waiver documents and effectively withdrawing from representation of Pacheco and by failing to take any other steps to avoid reasonably foreseeable prejudice to this client, Respondent failed to take reasonable steps to avoid reasonably foreseeable prejudice to the rights of his client, thereby willfully violating rule 3-700(A)(2) of the Rules of Professional Conduct.
31. By failing to refund any portion of the unearned advanced fees paid by Pacheco, Respondent willfully failed to promptly refund any part of a fee paid in advance that had not been earned in willful violation of rule 3-700(D)(2) of the Rules of Professional Conduct.
32. By failing to advise Pacheco that he would no longer be performing any further services on her behalf and by failing to advise Pacheco that he had moved and closed his office, Respondent failed to keep his client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code section 6068(in).
33. By failing to timely file quarterly reports that were due on April 10, 2006, July 10, 2006, and October 10, 2006 until June 17, 2008, by failing to timely file the final report that was due on December 6, 2006 until June 17, 2008, by failing to timely provide satisfactory proof to the Office of Probation that Respondent attended State Bar Ethics School and took and passed the exam given at the end of the session by December 6, 2006 until June 30, 2008, by failing to maintain a current telephone number with the Office of Probation, and by failing to timely provide satisfactory proof to the Office of Probation that he made restitution to Ms. Pacheco by October 6, 2006 until July 2, 2008, Respondent failed to comply with the conditions of the Agreement in Lieu of Discipline in willful violation of Business and Professions Code section 6068(1).
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A.(7), was July 31, 2008.
SUPPORTING AUTHORITY
The Standards for Attorney Sanctions for Professional Misconduct ("standards") and the applicable case law both support the recommended level of discipline.
The State Bar submits that the following standards are applicable:
Standard 1.3 provides that the primary purposes of disciplinary proceedings and imposing sanctions for professional misconduct are, "the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys; and the preservation of public confidence in the legal profession."
Standard 2.6(a) provides that a violation of section 6068 shall result in disbarment or suspension depending upon the gravity of the offense and or the harm, if any, to the victim.
Standard 2.4(b) provides that, "[c]ulpability of a member of wilfully failing to perform services in an individual mater or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client" (emphasis added).
Finally, standard 2.10 provides that culpability of a member of any provision of the Business and Professions Code not specified in these standards or of a willful violation of any Rule of Professional Conduct not specified in these standards, including a rule 3-700(A)(2) and a rule 3-700(D)(2) violation, shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline.
Turning to applicable case law for guidance, the State Bar relies on In the Matter of Roger S. Hanson (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 703. There, the Review Department recommended the attorney be publically reproved for failing to return unearned fees and failing to take steps to avoid foreseeable prejudice to the clients prior to withdrawal from representation in one client matter. In aggravation, Hanson had a private reproval involving one client matter for failing to perform legal services for which he was hired, for failing to communicate with his client, and for failing to release all the client’s papers to the client promptly. There were no findings in mitigation. Although the Hearing Department gave significant weight to Hanson’s prior record of discipline, the Review Department found that the prior discipline was remote and minimal, and therefore, did not give it much weight. Nevertheless, the Review Department found that a public reproval was appropriate.
Here, Respondent failed to comply with his ALD conditions, as well as failed to perform with competence, failed to refund unearned fees, failed to inform his client of significant developments, and improperly withdrew from the case. Although Respondent’s misconduct is arguably more serious than Hanson’s misconduct, since Respondent does not have a prior record of discipline and there was no significant harm to the client in the underlying misconduct leading to the ALD, a public reproval is appropriate and would adequately protect the public, the courts, and the legal profession from further misconduct from this Respondent.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that, as of July 31, 2008, the costs in this matter is $3,654.00. Respondent further acknowledges that should this stipulation be rejected or should relief from this stipulation be granted, the costs in this matter may increase due to the costs of further proceedings.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-15864
In the Matter of: Lee H. Benson
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: Lee H. Benson
Date: 8-5-08
Respondent’s Counsel: Kevin Gerry
Date: 8-8-08
Deputy Trial Counsel: Miho Murai
Date: 8/12/08
Case Number(s): 04-O-15864
In the Matter of: Lee H. Benson
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: Richard A. Platel
Date: 08-13-08
[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 August 13, 2008, 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 Los Angeles, California, addressed as follows:
KEVIN P GERRY ESQ
1001 OLIVE ST
SANTA BARBARA, CA 93101
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Miho Murai, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 13, 2008.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court