Case Number(s): 05-H-00520
In the Matter of: Joseph Arthur Bernal, Bar # 119448, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kristin L. Ritsema, Bar # 149966
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: 05-H-00520.
<<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 10, 1985
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 15 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 are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: 2207, 2008. (Hardship, special circumstances or other good cause per rule 282, Rules of Procedure.)
<<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.
IN THE MATTER OF: Joseph Arthur Nernal, State Bar No. 119448
STATE BAR COURT CASE NUMBER: 05-H-00520
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he/she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
COUNT ONE
Case No. 05-H-00520
Rule 1-110 of the Rules of Professional Conduct
[Failure to Comply with Conditions of Reproval]
1. Respondent wilfully violated rule 1-110 of the Rules of Professional Conduct, by failing to comply with the conditions attached to a reproval administered by the State Bar, as follows:
2. On or about September 12, 2003, Respondent entered into a Stipulation Re Facts, Conclusions of Law and Disposition ("Stipulation") with the State Bar of California in case number 02-O-10801.
3. On or about October 1, 2003, the Hearing Department of the State Bar Court filed an order approving the Stipulation and imposing the public reproval with conditions set forth in the Stipulation (the "reproval order").
4. On or about October 1, 2003, the reproval order was properly served by mail upon Respondent’s counsel at the time.
5. Pursuant to the October 1, 2003 reproval order, Respondent was ordered to comply with the following condition, among others: to provide to the Probation Unit within one year of the effective date of the reproval proof of passage of the Multistate Professional Responsibility Examination ("MPRE") administered by the National Conference of Bar Examiners.
6. The October 1, 1003 reproval order became effective on October 22, 2003.
7. On or about October 3, 2003, Probation Deputy Yolanda Acosta ("Ms. Acosta") of the Office of Probation of the State Bar of California wrote a letter to Respondent in which she reminded Respondent of the terms and conditions of his reproval imposed pursuant to the October 1, 2003 reproval order. In the October 3, 2003 letter, Ms. Acosta specifically advised Respondent regarding his obligation to provide proof of compliance with the MPRE condition by October 21, 2004. Enclosed with the October 3, 2003 letter to Respondent were, among other things, copies of the relevant portion of the Stipulation setting forth the conditions of Respondent’s reproval and an MPRE Schedule/Information sheet.
8. Ms. Aeosta’s October 3, 2003 letter to Respondent was mailed on or about October 3, 2003 via the United States Postal Service, first class postage prepaid, in a sealed envelope addressed to Respondent at his official State Bar membership records address. The October 3, 2003 letter was not returned as undeliverable or for any other reason by the United States Postal Service.
9. Respondent received the October 3, 2003 letter from Ms. Acosta.
10. In or about October 2004, Respondent contacted the Office of Probation to request additional time to take and pass the MPRE. Respondent and the Office of Probation entered into a stipulation to extend the time for Respondent to take and pass the MPRE until the release of the results of the November 12, 2004 administration of the MPRE. The stipulation was filed with the State Bar Court, and on or about October 21, 2004, the Hearing Department issued an order approving the stipulation and extending the time for Respondent to take and pass the MPRE until the release of the November 12, 2004 examination results.
11. Respondent took the MPRE on November 12, 2004. However, he did not pass it.
12. Respondent did not register for the March 2005 administration of the MPRE.
13. On or about March 29, 2005, Supervising Trial Counsel Kristin L. Ritsema wrote a letter to Respondent in which she notified him that unless a pre-filing settlement was reached, a notice of disciplinary charges would be filed based on his failure to comply with the MPRE condition of the October 1, 2003 reproval order. The March 29, 2005 letter was mailed on or about March 29, 2005 via the United States Postal Service, first class postage prepaid, in a sealed envelope addressed to Respondent at his official State Bar membership records address. Respondent received the letter.
14. During a telephone conversation with Ms. Ritsema on or about April 8, 2005, Respondent claimed that he did not realize that he had not passed the November 12, 2004 MPRE. Respondent stated that he would take the MPRE again the next time it was offered.
15. On or about May 13, 2005, Ms. Ritsema offered to bold off taking any action on the reproval violation case until the release of the August 2005 MPRE results.
16. On or about May 16, 2005, Respondent confn’med to Ms. Ritsema that he would be taking the August 2005 MPRE.
17. On or about June 3, 2005, Ms. Ritsema called Respondent’s membership records telephone number and left a voice mail message requesting Respondent to send her written confirmation that he was registered to take the August 2005 MPRE. Respondent never replied to the message and never forwarded the requested written confirmation. Respondent does not recall receiving the message and asserts that he would not have ignored it had he received it.
18. Respondent failed to register for or take the August 2005 MPRE.
19. Respondent has registered to take the November 4, 2005 MPRE.
20. Respondent failed to timely take and pass the MPRE and provide proof of same to the Office of Probation, which was to have been completed by October 21, 2004.
21. By failing to timely take and pass the MPRE and provide proof of same to the Office of Probation, Respondent failed to comply with the terms and conditions of the October 1, 2003 reproval order.
22. By failing to comply with the terms and conditions of the reproval order, Respondent wilfully violated rule 1-110 of the Rules of Professional Conduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was October 18, 2005.
AUTHORITIES SUPPORTING DISCIPLINE.
A. The Standards
Standard 1.6(a) provides that the appropriate sanction for an act of professional misconduct shall be the sanction set forth in the standards for the particular misconduct found. Standard 2.9 provides that culpability of a member of wilfully failing to comply with the terms and conditions of a reproval shall result in suspension.
Standard 1.6(b)(i) provides that the appropriate sanction shall be the sanction imposed unless,
[a]ggravating circumstances are found to surround the particular act of misconduct found or acknowledged and the net effect of those aggravating circumstances, by themselves and in balance with any mitigating circumstances found, demonstrates that a greater degree of sanction is required to fulfill the purposes of imposing sanctions set forth in standard 1.3. In that case, a greater degree of discipline than the appropriate sanction shall be imposed or recommended.
(Standard 1.6(b)(i))
Standard 1.7(a) provides that if a member is found culpable of misconduct and has a prior record of one 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 was remote in time and the offense for which it was imposed was so minimal that it would be manifestly unjust to impose greater discipline in the current proceeding.
The Supreme Court gives the Standards "great weight," and will reject a recommendation consistent with the Standards only where the Court entertains "grave doubts "as to its propriety. (In re Naney (1990) 51 Cal. 3d 186, 190; In re Silverton (2005) 36 Cal. 4th 81, 91, 92.) Further, although the Standards are not mandatory, it is well established that the Standards may be deviated from only when there is a compelling, well-defined reason to do so. See Aronin v. State Bar (1990) 52 Cal. 3d 276, 291; Bates v. State Bar (1990) 52 Cal. 3d 1056, 1060, fu. 2.
B. The Case Law
A reproval violation case that is factually very similar to the current case (though procedurally different) is Conroy v. State Bar (1990) 51 Cal. 3d 799, 274 Cal. Rptr. 692. In Conroy, the underlying discipline was a private reproval with conditions, one of which was that respondent was required to take and pass the Professional Responsibility Examination (hereinafter "PRE") within one year of the effective date of the reproval, or on or before December 30, 1987. The respondent failed to timely take and pass the PRE. However, he did tardily take and pass the PRE at the next available opportunity in March 1988, before the State Bar filed the reproval violation proceeding. In Conroy, the respondent defaulted at the Hearing Department level and was found culpable of wilful violation of rule 9-101 of the former Rules of Professional Conduct, the precursor to role 1-110 of the Rules of Professional Conduct.
The Supreme Court in Conroy deemed the belated passage of the PRE at the next available opportunity to be an "extenuating factor," but not "significant mitigation." In
aggravation, the Court found that the respondent had the one prior private reproval, that by defaulting the respondent failed to appreciate the seriousness of the charges and the importance of participating in the State Bar proceedings, and that by suggesting on review that his misconduct was a mere technical lapse, he had failed to show remorse for his misconduct. On balance, the Supreme Court concluded that aggravating circumstances significantly outweighed mitigating circumstances and imposed a one year suspension from practice, stayed, with a one year period of probation on terms and conditions including a sixty-day actual suspension.
Like the respondent in Conroy, Respondent violated a single condition of his repreval and has only one prior imposition of discipline, though his was a public reproval rather than a private reproval as in Conroy. However, unlike the respondent in Conroy, Respondent failed to bring himself current with the condition of his reproval by taking and passing the MPRE at the next available opportunity. Most significant, however, is the fact that Respondent is cooperating and participating in this proceeding, unlike the defaulting respondent in Conroy. In light of this important fact, and in light of the fact that Respondent has recognized his wrongdoing and this matter is settling early, thereby saving State Bar resources that would otherwise be spent further prosecuting this matter, it seems appropriate to impose less discipline in the current case than that imposed in Conroy.
In the Matter of Meyer (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 697, also provides guidance for an appropriate level of discipline. The respondent in Meyer violated conditions attached to a private reproval by filing one probation report late, failing to file two other probation reports, and by not certifying his completion of six hours of continuing legal education. In aggravation, the attorney had two prior impositions of discipline (both private reprovals), committed multiple acts of misconduct, showed indifference toward rectification of his misconduct, and failed to cooperate in the proceedings by not filing a pretrial statement, failing to attend three pretrial hearings, and defaulting at time of trial. There were no circumstances in mitigation. The Review Department concluded that the misconduct in Meyer called for a higher level of discipline than had been imposed by the Supreme Court in Conroy v. State Bar, and recommended the imposition of a two-year suspension from practice, execution stayed, with three years’ probation on terms and conditions including a ninety-day actual suspension.
The Meyer case is more egregious than the current ease because it involved multiple violations of the conditions of the prior discipline, more aggravating circumstances-- including two prior impositions of discipline--as well as a defaulting respondent. Therefore, it is appropriate to impose less discipline in the current case than that imposed in Conroy.
In the Matter of Stansbury (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 103 is also inslructive. The attorney in that matter was publicly reproved in a matter in which he defaulted in the State Bar Court. Conditions attached the reproval included Ethics School attendance and payment of restitution to a former client. The attorney was alleged to have violated both the Ethics School and restitution conditions. He did not answer the notice of disciplinary charges, and his default was entered in the second case, as it had been in the first. The State Bar sought review of the Hearing Department’s default decision due to a disagreement with the Hearing Department’s application of the then recently enacted rule 205 of the Rules of Procedure of the State Bar. The Review Department conducted its review de novo, including the recommended discipline. The Review Department found in aggravation that the attorney had a prior record of discipline and demonstrated a contemptuous attitude toward the disciplinary proceeding by allowing his default to enter. The Review Department concluded that In the Matter of Meyer provided an apt comparison and recommended the imposition of a two year suspension from practice, stayed, with an actual suspension for ninety days and until several ancillary conditions were met.
In the Matter of Posthurna (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 813 is the only other published ease arising from a reproval violation. The respondent in that matter had been privately reproved with conditions including the passage of the California PRE. He obtained an extension to comply, but then missed the extended compliance deadline. The Review Department rejected any possibility of good faith mitigation based on the respondent’s claim that he misunderstood the extended compliance deadline, as well as any possibility of mitigation for belated compliance after the new disciplinary case had been commenced. No other mitigation was found, and the attorney’s prior record of discipline was the only aggravation. The Review Department recommended the imposition of a public reproval, over the dissent of Judge Nodan, who would have recommended a period of probation and stayed suspension.
Posthuma is not an appropriate measure for the degree of discipline in this matter. First, the prior discipline in Posthuma was a private, not a public reproval as was Respondent’s prior discipline. Thus, the imposition of the subsequent public reproval in that matter was at least consistent with Standard 1.7(a), if not 2.9. The imposition of a reproval in Respondent’s case would be inconsistent with both Standards. Further, the prior record of discipline in Posthurna was the only circumstance in aggravation, and there were no circumstances in mitigation. There is additional aggravation in this matter.
SIGNATURE OF THE PARTIES
Case Number(s): 05-H-00520
In the Matter of: Joseph Arthur Bernal
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: Joseph Arthur Bernal
Date: October 18, 2005
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Kristin L. Ritsema
Date: October 18, 2005
Case Number(s): 05-H-00520
In the Matter of: Joseph Arthur Bernal
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. Platel
Date: October 24, 2005
[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 October 25, 2005, 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:
JOSEPH ARTHUR BERNAL ESQ
80 S LAKE AVENUE #510
PASADENA, CA 91101
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
KRISTIN RITSEMA A/L, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 25, 2005.
Signed by:
Angela Owens-Carpenter
Case Administrator
State Bar Court