Case Number(s): 05-H-03307-RAP
In the Matter of: Glenn D. Nelson, Bar # 74832, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Jean Cha, Bar # 228137
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: January 8, 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 June 28, 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 consists of 16 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: 2007, 2008, and 2009. (Hardship, special circumstances or other good cause per rule 5.132, 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: GLENN D. NELSON, State Bar No. 74832
STATE BAR COURT CASE NUMBER: 05-H-03307-RAP
STATEMENT OF FACTS AND CONCLUSIONS OF LAW
Respondent admits that the following facts are true and that he is culpable of wilful violations of the specified Rule of Professional Conduct.
Count One - Section 6103 of the Business and Professions Code
The State Bar moves to dismiss count one in the interest of justice.
Count Two - Rule 1-110 of the Rules of Professional Conduct
On October 20, 2004, Respondent and the State Bar entered into a Stipulation Re Facts, Conclusions of Law and Disposition in case number 02-O-15192 where Respondent stipulated that he wilfully violated rule 3-300 of the Rules of Professional Conduct.
On October 27, 2004, the Hearing Department of the State Bar Court filed an order approving the stipulation, with minor modifications, and imposed the reproval with conditions set forth in the stipulation ("reproval order"). Pursuant to the reproval conditions, Respondent was to attend State Bar Ethics School and provide proof of passage of the Multistate Professional Responsibility Examination ("MPRE") to the Probation Unit within one year of the effective date of the reproval, submit quarterly reports, and make monthly or quarterly payments in restitution.
The public reproval order became effective on November 17, 2004.
On or about November 9, 2004, Probation Deputy Yolanda Acosta ("Acosta") of the Office of Probation Unit 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 reproval order. Acosta sent another letter on March 3, 2005, reiterating what she had written in November 2004.
As of the date of the Notice of Disciplinary Charges ("NDC") on August 11, 2005, Respondent had failed to file quarterly reports or submit proof of restitution payments to the Office of Probation.
Respondent was to provide proof of passage of Ethics School and the MPRE to the Probation Unit by November 17, 2005, but did not.
By failing to timely file quarterly reports that were due on January 10, 2005, April 10, 2005, July 10, 2005, and October 10, 2005 and by failing to submit proof of payments in restitution, Respondent failed to comply with the terms and conditions of the November 17, 2004 reproval order in wilful violation of rule I-110 of the Rules of Professional Conduct, pursuant to Business and Professions Code, sections 6077 and 6078 and rule 956, California Rules of Court.
As of the date of the execution of this Stipulation as to Facts, Conclusions of Law and Disposition, Respondent has filed his quarterly reports, attended Ethics School, registered for the March 2006 MPRE, and brought his restitution payments current.
MITIGATING CIRCUMSTANCES
During the reproval period Respondent suffered difficulties in his personal life which were related to the custody and care of his minor son which resulted from the dissolution of his marriage. Respondent and his spouse fought over the repayment of the loan (which was the subject of the 3-300 violation underlying the public reproval) owed to Respondent’s former sister-in-law and the losses suffered from the bad investment. The sour investment and financial loss became a bone of contention and caused further dispute between Respondent and his former spouse. When compliance with the terms and conditions of his reproval came due, Respondent was involved in custody negotiations with his former spouse regarding his minor son who had been homeless as a result of Respondent’s former spouse’s financial condition.
Although Respondent’s belated compliance with the quarterly reporting requirement may not serve as mitigation, as the Court in Conroy v. State Bar (1990) 51 Cal.3d 799, 805-806 noted, belated submission of the action prescribed by the reproval condition may be considered an "extenuating factor." Accordingly, the fact that Respondent filed his reports, albeit late, has been factored into the determining of the appropriate amount of discipline for the purposes of this stipulation.
For the purposes of this stipulation also, Respondent has displayed spontaneous candor in his recognition of his failure to comply with reproval conditions and has been striving to remedy those lapses. Respondent has been candid and cooperative to the State Bar by admitting culpability .and providing all information and documentation as requested by the Office of the Chief Trial Counsel. Moreover, Respondent has come into compliance with all reproval terms and conditions and has registered for the next available MPRE. Although Respondent still owes a substantial portion in accordance with the payment schedule, Respondent has become current with his restitution repayment obligations, as of the date of the execution of this stipulation.
AGGRAVATING CIRCUMSTANCES
Multiple Acts of Wrongdoing
Standard 1.2(b)(ii) states that multiple acts of wrongdoing shall be considered an aggravating circumstance. For instance, in In the Matter of Meyer (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 697, 702, the failure to file two quarterly reports and provide proof of continuing legal education was considered three separate acts of wrongdoing pursuant to this standard. Additionally, "when an attorney commits multiple violations of the same probation condition, the gravity of each successive violation increases." In the Matter of Tiernan (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 523.
While, in this case, Respondent has violated four quarterly reporting conditions, has failed to make four timely quarterly restitution payments to the Client Security Fund, and has missed the deadlines for Ethics School and the MPRE, he has belatedly complied with his reproval conditions and has registered for the next available MPRE whereas the facts in Meyer are distinguishable because Meyer was either unwilling or unable to comply and had two prior reprovals. The discipline contained herein adequately addresses the consideration of the weight given to the violations, cumulatively, as in Tiernan, by the enunciated circumstances surrounding Respondent set out on page 8.
AUTHORITIES SUPPORTING DISCIPLINE
The stipulated sanction furthers 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. (Std 1.3.) Respondent is being sanctioned with a stayed suspension for his noncompliance with his reproval conditions and will have a continuing obligation to the Probation Unit to maintain compliance with much more serious consequences should Respondent fail to comply for a second time.
The appropriate sanction for an act of professional misconduct shall be the sanction set forth in the standards for the particular misconduct found. (Std 1.6(a).)
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 Conroy v. State Bar, supra 51 Cal.3d at p. 802, Petitioner received a private reprovai based upon three unrelated incidents of misconduct. As a condition of the reproval, Petitioner was to take and pass the Professional Responsibility Exam ("PRE’) within one year of the reproval’s effective date. Ibid. Without explanation, Petitioner failed to take the PRE within one year. Ibid.
The Court introduced former California Rule of Professional Conduct 9-101 (now Rule 1-110) and Business and Professions Code section 6077 before discussing wilfulness. It stated, "To establish a wilful breach, it must be demonstrated that the person charged acted or omitted to act purposely, that is, that he knew what he was doing or not doing and that he intended either to commit the act or to abstain from committing it. [Citations.]" Conroy, supra, 51 Cal.3d at p. 804.
The Court concluded that Petitioner’s noncompliance was wilful. Conroy, supra, 51 Cal.3d at p. 804. Culpability of a member of wilfully failing to comply with the terms and conditions of a reproval (wilful violation of rule 1-110 of the Rules of Professional Conduct) shall result in suspension. (Std 2.9.) The court reasoned that Petitioner had made no showing of his inability to comply with the probationary condition within the designated time frame. Ibid. Further, Petitioner’s defenses to wilfulness, which included error, inadvertence, mistake, and oversight, were rejected since he did not make these claims before the hearing panel or substantiate them with any proof. Ibid. Moreover, the fact that Petitioner successfully completed the exam at the first opportunity thereafter neither operated retroactively nor exonerated his misconduct. Ibid. Rather, it served as a mitigating factor, ld. at p. 805.
In determining that the appropriate level of discipline was a one-year stayed suspension, one-year probation with the condition that during the first sixty days Petitioner be actually suspended, the Court noted three aggravating circumstances. Conroy, supra, 51 Cal.3d at pp. 805-06. First, Petitioner had a prior record (the misconduct in the underlying case that resulted in the PRE requirement), ld. at p. 805. Second, Petitioner had failed "to appreciate the seriousness of the charges in the instant proceeding or to comprehend the importance of participating in the disciplinary proceedings." Ibid. Third, Petitioner evinced a lack of understanding of the gravity of his earlier misdeeds and the import of the State Bar’s regulatory functions by asserting that his misconduct was a mere technical lapse, ld. at p. 806.
Like Petitioner Conroy, Respondent also wilfully violated Rule 1-110. In fact, Respondent violated more conditions than Conroy. However, in the present matter, unlike Conroy, Respondent acknowledges the seriousness of the charges and the importance of participating in the disciplinary proceedings. Respondent has also been extremely cooperative with the State Bar. Moreover, Respondent has come into compliance to the best of his ability under the circumstances. A one-year stayed suspension and four-year probationary period will preserve public confidence in the legal profession and protect the public and the courts. (Std 1.3.)
In In the Matter of Posthuma (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 813,816, an attorney violated Rule 1-110 by failing to comply with a condition attached to a private reproval -to take and pass the PRE within one year of the reprovai. The Review Department noted that the sole aggravating circumstance was Respondent’s prior record of discipline (the private reproval that led to the disciplinary proceedings), and that there were no mitigating circumstances, ld. at pp. 820-21. Ultimately, the Review Department distinguished Conroy and concluded that the appropriate level of discipline was a public reproval in light of Posthuma’s extensive participation and begrudging acknowledgment of his obligation to comply with State Bar Court orders. Id. at p. 822.
Unlike Posthuma who violated one condition of his private reproval, Respondent’s conduct involves multiple acts of wrongdoing. However, there are mitigating circumstances in this case. Respondent has been cooperative and as discussed earlier, the fact that Respondent has come into compliance. This compliance should serve as an extenuating factor. Conroy, supra, 51 Cal.3d at pp. 805-806. In accordance with standards 1.7(a) and 1.6(a), stayed suspension is greater than the prior public reproval and appropriate as in Posthuma where the attorney received a private reproval in the underlying disciplinary proceeding and a public reproval in the latter. The stipulated sanction is appropriately greater than that imposed in the prior proceeding in this matter. (Std 1.7(a).)
In In the Matter of Meyer (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 697, 700, the attorney’s violations of the conditions in his second private reproval resulted in a two-year stayed suspension, three-year probation with conditions, and a 90-day actual suspension. The conditions which Meyer violated were to file probation reports on a quarterly basis and to complete six hours of continuing legal education, ld. at p. 701. In determining the appropriate level of discipline, the Review Department considered Meyer’s two prior records of discipline, lack of mitigating circumstances, multiple acts of wrongdoing in the present matter, indifference towards rectification, and failure to cooperate. Id. at pp. 701-02. Here, however, Respondent only has the one prior, a public reproval and mitigating circumstances exist.
In In the Matter of Stansbury (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 103, 111, the attorney in a default matter was given a two-year stayed suspension and 90-day actual suspension, with conditions. In an earlier default proceeding, the attorney had been publicly reproved based on his failure to return unearned fees to a client. Id. at p. 106. The reproval conditions included restitution to the client and attendance of Ethics School. Ibid. Stansbury’s failure to comply with those conditions led to the second proceeding where he again defaulted. Ibid. In its analysis, the Review Department considered both Conroy and Meyer and noted that Stansbury’s default was serious aggravation because it established his failure to comprehend his duty as an officer of the court to participate in disciplinary proceedings, ld. at p. 109. It concluded that Stansbury’s misconduct more closely paralleled that of Meyer and issued discipline accordingly.
While Respondent’s public reproval conditions are undisputed, Respondent’s overall aggravating and mitigating circumstances are distinguishable on balance from those in Meyer and Stansbury. Respondent has cooperated, participated and entered into settlement justifying a lesser sanction than in Meyer or Stansbury.
OTHER CONDITIONS NEGOTIATED BY THE PARTIES
Financial Conditions. Interest
The Client Security Fund ("CSF") reimbursed Brothers for the principal amount of $40,000 on December 30, 2004. Respondent must pay restitution to CSF in reimbursement for the principal amount paid to Brothers, plus applicable interests of 10% per annum, any applicable costs, processing fees, or other administrative fees associated with the reimbursement.
Respondent must pay restitution interest in full not later than January 10, 2010 and provide satisfactory proof of payment to the Office of Probation not later than the fifteenth (15th) quarterly report of the probation period. Interest accrues from December 30, 2004.
Financial Conditions. Installment Restitution Payments
Respondent must pay CSF in accordance with the payment schedule as set forth in Table 1 (the payment schedule is consistent with the payment schedule contained in case number 02-O-15192.) Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation.
No later than January 10, 2010, Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, any applicable processing fees, in full to the Client Security Fund.
TABLE 1:
Pay To: Client Security Fund; Principal Amount: $40,000; Minimum Payment Amount: $525; $775; $855 (as applicable) SEE SCHEDULE; Payment Frequently: Monthly (17th of each Month)
SCHEDULE
As a condition of Respondent’s probation, Respondent shall make payment in restitution to the Client Security Fund as follows:
Beginning on December 17, 2005, and continuing through November 17, 2006, Respondent is to pay $525 per month on or before the 17th of the month;
Beginning on December 17, 2006, and continuing through November 17, 2007, Respondent is to pay $775 per month on or before the 17th of the month;
Beginning on December 17, 2007, and continuing through November 17, 2009, Respondent is to pay $855 per month on or before the 17th of the month.
Respondent understands and acknowledges that he must satisfy the entire amount of restitution plus interest at the rate of 10% per annum in reimbursement to the Client Security Fund as calculated by the Client Security Fund and any applicable processing fee(s) as deemed appropriate by the Client Security Fund.
Respondent is to remain in compliance with the public reproval conditions in case number 02-O-15192 unless and until he obtains an order from the State Bar Court for early termination of his reproval. Respondent shall so declare under penalty of perjury in conjunction with any quarterly report required to be filed with the Probation Unit in this matter that he has remained in such compliance.
State Bar Ethics School
As a reproval condition in case number 02-0-15192, effective November 17, 2004, the underlying matter for which reproval violations led to the present disciplinary proceedings, Respondent was required to take State Bar Ethics School and provide to the Office of Probation satisfactory proof of attendance by or before November 17, 2005. Respondent registered and attended the December 8, 2005 State Bar Ethics School in Los Angeles, California. It is not recommended that Respondent attend State Bar Ethics School since Respondent attended Ethics School within the last two years on December 8, 2005 in connection with case number 02-O-15192.
Multistate Professional Responsibility Examination
As a reproval condition in case number 02-O-15192, effective November 17, 2004, Respondent was required to provide proof of passage of the MPRE to the Office of Probation by or before November 17, 2005. Respondent has registered on December 21, 2005 to sit for the March 11, 2006 MPRE. Respondent must provide satisfactory proof of passage of the MPRE to the Office of Probation no later than Thursday, May 11, 2006.
DISMISSALS
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Alleged Violation:
Case No.: 05-H-03307, Count: One, Alleged Violation: Section 6103, Business and Professions Code
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 23, 2005, the estimated prosecution costs in this matter are approximately $3,654.00. Respondent acknowledges that this figure is an estimate. 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.
Respondent shall pay the amount due and owing under Business and Professions Code section 6140.5, subdivision (c).
PENDING PROCEEDINGS
The disclosure date referred to, on page one, paragraph A.(7), was November 23, 2005.
SIGNATURE OF THE PARTIES
Case Number(s): 05-H-03307-RAP
In the Matter of: Glenn D. Nelson
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: Glenn D. Nelson
Date: December 21, 2005
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Jean Cha
Date: December 27, 2005
Case Number(s): 05-H-03307-RAP
In the Matter of: Glenn D. Nelson
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: Robert M. Talcott
Date: January 5, 2006
[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 January 6, 2006, 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:
GLENN DALE NELSON
10802 ARDEN VILLA DRIVE
BAKERSFIELD, CA 93311
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
JEAN CHA, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 6, 2006.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court