Case Number(s): 05-J-03259
In the Matter of: Vicenta Montoya-Torres, Bar # 97192, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Jean Cha, Bar # 228137
Counsel for Respondent: Erica Tabachnick, Bar # 94324
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
Filed: August 26, 2009
<<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 April 1, 1981.
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 14 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 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: (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.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF MONTOYA-TORRES CASE No.: 05-J-03259
FACTS.
1) The parties agree that the attached exhibit "A" is a true and correct copy of the State Bar of Nevada’s Order Approving Letter of Private Reprimand and Fine and in Respondent’s discipline matter in Nevada.
2) The parties stipulate that the acts or omissions warranting the agreed disposition is set forth and adopted as if set forth in full herein in the Order Approving Letter of Private Reprimand and Fine in case no. 04-006-NA99 attached hereto as Exhibit "A."
3) In File number D2003-239, Respondent was publicly reprimanded by the Board of Immigration Appeals in the Executive Office of Immigration Review of the Department of Justice.
CONCLUSIONS OF LAW.
4) By not filing an appellate brief ad not investigating Mr. Magallanes De Lao’s medical circumstances as it related to his immigration case, Respondent recklessly failed to perform legal services competently in wilful violation of rule 3-110(A) of the Rules of Professional Conduct.
5) By failing to adequately supervise her staff such that her secretary filed a motion to reopen on behalf of Mr. Magallanes De Lao bearing Respondent’s signature, Respondent recklessly failed to supervise the actions of her employee and failed to perform legal services competently in wilful violation of rule 3-110(A).
6) By not informing Mr. Magallanes De Lao that his appeal was denied by the Board of Immigration Appeals, Respondent failed to communicate a significant development in the immigration case in wilful violation of section 6068(m) of the Business and Professions Code.
OTHER CIRCUMSTANCES.
According to Standard 2.4(b) a violation of §6068(m) of the Business and Professions Code and Rule of Professional Conduct 3-100(A) shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Respondent has a prior record of discipline, a circumstance in aggravation. (Std. 1.2(b)(i).) However, the harm to Respondent’s client was avoided because subsequent counsel successfully re-opened the proceedings in light of new information regarding a recently developing disability that was not evident at the time of Respondent’s meeting with Mr. De Lao.
We must review the nature and extent of the facts and circumstances surrounding the misconduct. The determination of discipline involves an analysis of the standards on balance with any mitigation and aggravation. (Std. 1.6(b); Segal v. State Bar (1988) 44 Cal.3d 1077, 189; Snyder v. State Bar (1990) 49 Cal.3d 1302, 1310-1311.)
In April 2002, Mr. De Lao failed to appear at his hearing in Immigration Court because he initially misplaced the notice of hearing. As a result, Mr. De Lao was ordered deported in absentia. Mr. De Lao hired Respondent to assist him with a motion to re-open. In May 2002, Respondent was unexpectedly hospitalized for a sudden illness which required surgery. When Respondent recovered and returned to work in late May 2002, Respondent investigated and made a determination that there was no grounds rising to the level of "exceptional circumstances beyond the alien’s control" that the court required in order to grant a motion to re-open other than that her client had inadvertently misplaced the notice and was mistaken about the date of his hearing. Although Respondent made her best efforts, the motion to re-open was denied. Respondent explored alternative relief for cancellation of removal. Unfortunately, her client did not receive notice because of an administrative error by way of a typo in his address line.
Ultimately, Mr. De Lao successfully overcame removal proceedings once he hired subsequent counsel. The Board of Immigration Appeals granted his petition to re-open and rescind the order of deportation based on an ineffective assistance of counsel theory regarding her failure to raise any "exceptional circumstance beyond the alien’s control." The claim was that Respondent should have realized that Mr. De Lao had pre-Alzheimer’s. However, in 2002, Respondent performed a thorough intake interview and made several inquiries that did not alert Respondent to any pre-Alzheimers or other health issues. Furthermore, the documented disability was diagnosed at the end of 2003, one and one-half years after Respondent last interacted with Mr. De Lao and after Mr. De Lao hired subsequent counsel.
The findings by the Board of Immigration Appeals in the Executive Office of Immigration Review of the Department of Justice resulted in a public reprimand based on the ineffective assistance of counsel theory. In turn, it led to the State Bar of Nevada’s private reprimand. Here, a public reproval is comparable.
Respondent exercised her discretion in making a determination as to whether to send Mr. De Lao to see a specialist in good faith and did not file an opening brief in the appeal because no additional information gave her grounds to make arguments beyond those that were made in her underlying motion to re-open. Respondent acknowledges that she should have withdrawn the appeal rather than expend court resources and ultimately failing to file an opening brief. Respondent is remorseful and contrite.
The purposes of attorney discipline is preserved by a public reproval. (Std. 113; Tarver v. State Bar (1984) 37 Cal.3d 122, 133; Chadwick v. State Bar (1989) 49 Cal.3d 103, 111.)
A stipulation for public reproval was previously rejected with leave of court to further explore justifying a reproval in this matter. Mitigation that was not raised at the time of the original rejection has since been provided and additional factual material was received which substantiates a public reproval.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A. (7), was July 23, 2009.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of July 23, 2009, the estimated prosecution costs in this matter are approximately $1,983.00. 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.
AFFIDAVIT OF AUTHENTICITY
STATE OF NEVADA
COUNTY OF CLARK
Tara Hernandez under penalty of perjury, being first duly sworn, deposes and says as follows:
Affiant is employed as a legal secretary for the State Bar of Nevada;
2. In such capacity, Affiant is Custodian of Records for the Discipline Department of the State Bar of Nevada; and
3. The attached Order approving Letter of Private Reprimand and fine filed September 23, 2004, in re: Vicenta E. Montoya is a true and authentic copy of that on file with the State Bar of Nevada, created and maintained in the normal course of proceedings of the Office of Bar Counsel in accordance with Nevada Supreme Court Rules:
Dated this 23rd day of May, 2006.
Tara Hernandez
SUBSCRIBED AND SWORN
before me this 23rd day of
May 2006.
Cathy J. Britz
NOTARY PUBLIC
Case No: 04-006-NA99
STATE BAR OF NEVADA
SOUTHERN NEVADA DISCIPLINARY BOARD
FILED SEP 23 2004
INFORMAL HEARING RE:
VICENTA E. MONTOYA, ESQ.
ORDER APPROVING LETTER OF
PRIVATE REPRIMAND AND FINE
This matter came before a designated Informal Hearing Panel of the Southern Nevada Disciplinary Board ("Panel") on Tuesday, August 31, 2004, at the hour of 10:00 a.m. Pursuant to Supreme Court Rule 105(1)(c), Vicenta E. Montoya, Esq. ("Respondent’) appealed the decision of a prior Screening Panel to impose upon her a Letter of Private Reprimand and Five Hundred dollar ($500) fine. The Panel consisted of Chair, Edward "Randy" Miley, Esq.; Bridget A. Branigan, Esq.; and Hardin Embry, lay member. Assistant Bar Counsel David A. Clark represented the State Bar of Nevada ("State Bad’). Respondent was present and represented herself.
Having reviewed the documentary evidence, the testimony of grievant, Santiago Magallanes De Mao, Respondent, and Elsa Mejia, Respondent’s secretary, along with the argument of counsel, and good cause appearing,
IT IS HEREBY ORDERED THAT the imposition of a Letter of Private Reprimand, along with the Five Hundred dollar ($500) fine, as proposed by the Screening Panel, is upheld in its 23 entirety with the exception that the charge that Respondent violated SCR 166 (Declining or terminating representation) is dismissed upon the State Bar’s motion. The Chair shall execute the Letter of Private Reprimand attached as Exhibit 1 and cause it to be served upon Respondent.
DATED this 25th day of September 2004.
Edward “Randy” Miley, Chair Informal Hearing Panel
Respectfully submitted:
STATE BAR OF NEVADA
ROB W. BARE, BAR COUNSEL
By: David A. Clark, Assistant Bar Counsel
600 East Charleston Boulevard
Las Vegas, Nevada 89104
Attorney for State Bar of Nevada
State Bar of Nevada
September 20, 2004
LETTER OF PRIVATE REPRIMAND
Vicenta Montoya, Esq.
320 East Charleston Blvd.
Las Vegas, Nevada 89104
RE: 04-006-NA99/ Santiago Magallanes De Lao
Dear Ms. Montoya:
As you know, on August 31, 2004, an Informal Hearing Panel of the Southern
Nevada Disciplinary Board convened to consider your objections to the imposition of a Letter of Private Reprimand and Five Hundred dollar ($500) fine in the above grievance. After considering the evidence and testimony, the Panel voted unanimously to uphold the proposed discipline with the exception of the allegations you violated SCR 166 (Declining or terminating representation), which the Panel dismissed on motion by the State Bar. The Panel also voted to uphold the imposition of the $500.00 fine. This letter shall constitute delivery of that reprimand.
Santiago Magallanes De Lao was representing himself in removal proceedings. He
can neither read nor write. In April 2002, after he received notice that he had been ordered deported in absentia for failing to appear April 23, 2002, for a hearing in Immigration Court, he went to your office to retain you. You quoted him a fee of $1,500. He eventually made payments totaling $700 toward legal fees.
On May 23, 2002, Magallanes De Lao came to your office concerned that the 30-day time limit to file a Motion to Re-open was about to run. You were out of the office and unavailable. Your secretary, Elsa Mejia, prepared the Motion to Re-open and signed your name, initialing behind it. While you state that your secretary "has since been reprimanded and informed that any similar actions will be grounds for dismissal," you failed to take any action to bring your secretary’s unauthorized practice of law to the Court’s attention or rectify her illegal conduct. It appears that the Court denied the Motion to Re-open because it failed to list any "exceptional circumstance beyond the alien’s control," as is required to reopen an order for deportation in absentia.
You filed an appeal with the Board of Immigration Appeals (BIA). You also filed for and were granted a three-week extension of time in which to file the Opening Brief. However, you failed to do so, asserting that no brief was filed as "Mr. Magallanes and I had not entered into an agreement to do an appeal brief." Still, there is no evidence that you explained this to your client.
The BIA denied the appeal by Order dated June 30, 2003. You failed to inform your client of the BIA Order and further failed to apprise him of his right to appeal to the Ninth Circuit Court of Appeals. In fact, the next communication that your client had about his case was in August 2003, when he received a letter from the Immigration Service advising him to report for deportation to Mexico in September 2003. He then sought new counsel, who investigated his case and reviewed his file.
In July 2002, you attempted to pursue alternative relief for cancellation of removal, namely an immediate relative visa petition (I-130), which listed your client’s son, Manuel, as the petitioner on behalf of his father. A Notice of an interview was received by your office in April 2003, and mailed to the son at his last known address. You are unaware of what, if anything happened with the interview or the petition.
Nevertheless, you listed yourself on the petition as the attorney of record. In that case, you should have been prepared to attend the interview with the son and father who were your clients. As counsel of record, you should have at least followed-up to see what was the eventual outcome of the petition. Mr. Magallanes De Lao’s subsequent counsel also discovered that your assistant, in preparing the original 1-130 petition, included the wrong apartment number for the son, transposing 203 into 302. That appears to be is the reason Manuel never received notice of the interview and is further evidence of your delegation of work to assistants and lack of involvement in this case.
Ultimately, Mr. Magallanes De Lao obtained an Order dated April 2, 2004, in which the BIA granted the Petition to Re-open and rescinded the Order of Deportation. The basis of the Order included ineffective assistance of counsel, Magallanes De Lao’s documented disability, and non-opposition by the Immigration Service to re-open the proceedings in light of the disability.
Based on the foregoing, your conduct violated SCR 152 (Scope of representation), SCR 153 (Diligence), SCR 154 (Communication), SCR 187 (Responsibilities regarding nonlawyer assistants), and SCR 189 (Unauthorized practice of law). You are hereby Privately Reprimanded and assessed a $500.00 fine, payable within 30 days of the date of this letter.
I trust that this reprimand will serve as a reminder to you of your ethical obligations, and that no such problems will arise in the future. Should similar problems arise, they will very likely result in a more severe form of professional discipline, including a recommendation for formal hearing.
Sincerely,
Edward "Randy" Miley, Chair
Informal Hearing Panel
EM/dac
SIGNATURE OF THE PARTIES
Case Number(s): 05-J-03259
In the Matter of: Vicenta Montoya-Torres
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: Vicenta Montoya-Torres
Date: 7/28/09
Respondent’s Counsel: Erica A. Tabachnick
Date: 8/3/09
Deputy Trial Counsel: Jean Cha
Date: 8/11/09
Case Number(s): 05-J-03259
In the Matter of: Vicenta Montoya-Torres
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: 08-24-09
[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 26, 2009, 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:
ERICA TABACHNICK
A LAW CORPORATION
900 WILSHIRE BLVD STE 1000
LOS ANGELES CA 90017
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 August 26, 2009.
Signed by:
Angela Owens-Carpenter
Case Administrator
State Bar Court