State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 05-N-00451
In the Matter of: Carole A. Bell, Bar # 122753, A Member of
the State Bar of California, (Respondent).
Counsel For The State Bar: Robert A. Henderson, Bar #
173205,
Counsel for Respondent: Ephraim Margolin, Bar # 32582,
Submitted to: Assigned Judge – State Bar Court Clerk’s
Office San Francisco.
Filed: September 30, 2005.
<<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.
A. Parties' Acknowledgments:
1.
Respondent is a member of the State Bar of California, admitted June 10,
1986.
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 10 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. Until costs are paid in full,
Respondent will remain actually suspended from the practice of law unless
relief is obtained per rule 284, Rules of Procedure.
<<not>> checked. Costs are to be
paid in equal amounts prior to February 1 for the following membership years: .
(Hardship, special circumstances or other good cause per rule 5.132, Rules of
Procedure.) If Respondent fails to pay any installment as described above, or
as may be modified by the State Bar Court, the remaining balance is due and
payable immediately.
<<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.
B. Aggravating Circumstances [for definition, see
Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)].
Facts supporting aggravating circumstances are required.
checked. (1) Prior record of discipline [see standard 1.2(f)]
checked. (a) State Bar
Court case # of prior case 01-O-03308 (S 125494)
checked. (b) Date prior
discipline effective September 25, 2004.
checked. (c) Rules of
Professional Conduct/ State Bar Act violations: Bus. & Prof. 6068(a),
6068(i) and 6125.
checked. (d) Degree of
prior discipline Two (2) year suspension stayed; 30-days actual
<<not>> checked. (e) If
Respondent has two or more incidents of prior discipline, use space provided
below. .
<<not>> checked. (2) Dishonesty: Respondent's misconduct
was surrounded by or followed by bad faith, dishonesty, concealment,
overreaching or other violations of the State Bar Act or Rules of Professional
Conduct.
<<not>> checked. (3) Trust Violation: Trust funds or
property were involved and Respondent refused or was unable to account to the
client or person who was the object of the misconduct for improper conduct
toward said funds or property.
<<not>> checked. (4) Harm: Respondent's misconduct harmed
significantly a client, the public or the administration of justice.
<<not>> checked. (5) Indifference: Respondent demonstrated
indifference toward rectification of or atonement for the consequences of his
or her misconduct.
<<not>> checked. (6) Lack of Cooperation: Respondent
displayed a lack of candor and cooperation to victims of his/her misconduct or
to the State Bar during disciplinary investigation or proceedings.
<<not>> checked. (7) Multiple/Pattern of Misconduct:
Respondent's current misconduct evidences multiple acts of wrongdoing or
demonstrates a pattern of misconduct.
<<not>> checked. (8) No aggravating circumstances are
involved.
Additional aggravating circumstances: .
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
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checked. (1) No Prior Discipline: Respondent has no prior record of
discipline over many years of practice coupled with present misconduct which is
not deemed serious.
checked.
(2) No Harm: Respondent did not harm the client or person
who was the object of the misconduct.
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checked. (3) Candor/Cooperation: Respondent displayed spontaneous candor
and cooperation with the victims of his/her misconduct and to the State Bar
during disciplinary investigation and proceedings.
checked.
(4) Remorse: Respondent promptly took objective steps
spontaneously demonstrating remorse and recognition of the wrongdoing, which
steps were designed to timely atone for any consequences of his/her
misconduct.
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checked. (5) Restitution: Respondent paid $ on in restitution to without
the threat or force of disciplinary, civil or criminal proceedings.
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checked. (6) Delay: These disciplinary proceedings were excessively
delayed. The delay is not attributable to Respondent and the delay prejudiced
him/her.
checked.
(7) Good Faith: Respondent acted in good faith.
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checked. (8) Emotional/Physical Difficulties: At the time of the stipulated
act or acts of professional misconduct Respondent suffered extreme emotional
difficulties or physical disabilities which expert testimony would establish was
directly responsible for the misconduct. The difficulties or disabilities were
not the product of any illegal conduct by the member, such as illegal drug or
substance abuse, and Respondent no longer suffers from such difficulties or
disabilities.
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checked. (9) Severe Financial Stress: At the time of the misconduct,
Respondent suffered from severe financial stress which resulted from
circumstances not reasonably foreseeable or which were beyond his/her control
and which were directly responsible for the misconduct.
checked.
(10) Family Problems: At the time of the misconduct,
Respondent suffered extreme difficulties in his/her personal life which were
other than emotional or physical in nature.
checked.
(11) Good Character: Respondent's good character is attested
to by a wide range of references in the legal and general communities who are
aware of the full extent of his/her misconduct.
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checked. (12) Rehabilitation: Considerable time has passed since the acts of
professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
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checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances:
D.
Discipline:
checked. (1) Stayed Suspension:
checked.
(a) Respondent must be suspended from the practice of law for a period of Two
(2) years.
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checked. i. and until Respondent shows proof satisfactory to the State Bar
Court of rehabilitation and present fitness to practice and present learning
and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney
Sanctions for Professional Misconduct.
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following: .
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checked. (b) The above-referenced suspension is stayed.
checked.
(2) Probation: Respondent must be placed on probation for a period of Three
(3) years, which will commence upon the effective date of the Supreme Court
order in this matter. (See rule 953, California Rules of Court.)
checked. (3) Actual Suspension:
checked.
(a) Respondent must be actually suspended from the practice of law in the State
of California for a period of One (1) year.
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checked. i. and until Respondent shows proof satisfactory to the State Bar
Court of rehabilitation and present fitness to practice and present learning
and ability in the law pursuant to standard 1.4(c)(ii), Standards for Attorney
Sanctions for Professional Misconduct
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following: .
E. Additional Conditions of Probation:
checked.
(1) If Respondent is actually suspended for two years or more,
he/she must remain actually suspended until he/she proves to the State Bar
Court his/her rehabilitation, fitness to practice, and learning and ability in
the general law, pursuant to standard 1.4(c)(ii), Standards for Attorney
Sanctions for Professional Misconduct.
checked.
(2) During the probation period, Respondent must comply with
the provisions of the State Bar Act and Rules of Professional Conduct.
checked.
(3) Within ten (10) days of any change, Respondent must report
to the Membership Records Office of the State Bar and to the Office of
Probation of the State Bar of California ("Office of Probation"), all
changes of information, including current office address and telephone number,
or other address for State Bar purposes, as prescribed by section 6002.1 of the
Business and Professions Code.
checked.
(4) Within thirty (30) days from the effective date of
discipline, Respondent must contact the Office of Probation and schedule a
meeting with Respondent's assigned probation deputy to discuss these terms and
conditions of probation. Upon the direction of the Office of Probation,
Respondent must meet with the probation deputy either in-person or by
telephone. During the period of probation, Respondent must promptly meet with
the probation deputy as directed and upon request.
checked.
(5) Respondent must submit written quarterly reports to the
Office of Probation on each January 10,
April 10, July 10, and October 10 of the period of probation. Under penalty of perjury, Respondent must
state whether Respondent has complied with the State Bar Act, the Rules of
Professional Conduct, and all conditions of probation during the preceding
calendar quarter. Respondent must also state whether there are any proceedings
pending against him or her in the State Bar Court and if so, the case number
and current status of that proceeding. If the first report would cover less
than 30 days, that report must be submitted on the next quarter date, and cover
the extended period.
In addition to all quarterly reports, a final report, containing the same
information, is due no earlier than twenty (20) days before the last day of the
period of probation and no later than the last day of probation.
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checked. (6) Respondent must be assigned a probation monitor. Respondent must
promptly review the terms and conditions of probation with the probation
monitor to establish a manner and schedule of compliance. During the period of
probation, Respondent must furnish to the monitor such reports as may be
requested, in addition to the quarterly reports required to be submitted to the
Office of Probation. Respondent must cooperate fully with the probation
monitor.
checked.
(7) Subject to assertion of applicable privileges, Respondent
must answer fully, promptly and truthfully any inquiries of the Office of
Probation and any probation monitor assigned under these conditions which are
directed to Respondent personally or in writing relating to whether Respondent
is complying or has complied with the probation conditions.
checked.
(8) Within one (1) year of the effective date of the
discipline herein, Respondent must provide to the Office of Probation
satisfactory proof of attendance at a session of the Ethics School, and passage
of the test given at the end of that session.
No Ethics School recommended. Reason: .
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checked. (9) Respondent must comply with all conditions of probation imposed
in the underlying criminal matter and must so declare under penalty of perjury
in conjunction with any quarterly report to be filed with the Office of
Probation.
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checked. (10) The following conditions are attached hereto and incorporated:
<<not>> checked. Substance
Abuse Conditions.
<<not>> checked. Law Office
Management Conditions.
<<not>> checked. Medical
Conditions.
<<not>> checked. Financial
Conditions.
F. Other Conditions Negotiated by the Parties:
checked. (1) Multistate Professional Responsibility
Examination: Respondent must provide proof of passage of the Multistate
Professional Responsibility Examination ("MPRE"), administered by the
National Conference of Bar Examiners, to the Office of Probation during the
period of actual suspension or within one year, whichever period is longer.
Failure to pass the MPRE results in actual suspension without further hearing
until passage. But see rule 9.10(b), California Rules of Court, and rule
5.162(A) & (E), Rules of Procedure.
<<not>> checked. No MPRE recommended. Reason: .
checked. (2) Rule 955, California Rules of Court:
Respondent must comply with the requirements of rule 955, California Rules of
Court, and perform the acts specified in subdivisions (a) and (c) of that rule
within 30 and 40 calendar days, respectively, after the effective date of the
Supreme Court's Order in this matter.
<<not>> checked. (3) Conditional Rule 955, California
Rules of Court: If Respondent remains actually suspended for 90 days or more,
he/she must comply with the requirements of rule 955, California Rules of
Court, and perform the acts specified in subdivisions (a) and (c) of that rule
within 120 and 130 calendar days, respectively, after the effective date of the
Supreme Court's Order in this matter.
<<not>> checked. (4) Credit for Interim Suspension
[conviction referral cases only]: Respondent will be credited for the period
of his/her interim suspension toward the stipulated period of actual
suspension. Date of commencement of interim suspension: .
<<not>> checked. (5) Other
Conditions: .
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION
IN THE MATTER OF: Carole A.
Bell, State Bar No. 122753
STATE BAR COURT CASE NUMBER:
05-N-00451
FACTS
On August 26,
2004, the California Supreme Court filed Order No. S125494, which in part
actually suspended Respondent for 30 days and until State Bar Court granted a
motion to end the suspension. The Order further provided that if Respondent
were suspended for 90 days or more that Respondent had to comply with rule 955
of the California Rules of Court. Respondent was actually suspended for in
excess of 90 days. Respondent was notified by the Probation Department of
September 8, 2004, of the duty to comply with rule 955. Respondent did not
timely file with State Bar Court the declaration of compliance required by rule
955. The deceleration of compliance which was due by February 2, 2005 was
finally filed on August 24, 2005. The Respondent did not have actual notice of
the Supreme Court Order, the duty to comply with 955 or the commencement of the
disciplinary proceedings in this matter. The reason Respondent did not have
actual notice is that she had relocated without changing her official
membership records address. The State Bar properly used Respondent’s official
membership records when mailing the probation letter and other filings related
to this matter.
CONCLUSIONS
OF LAW
Respondent
willfully failed to file the rule 955 declaration of compliance with the State
Bar Court by February 2, 2005 as required by Supreme Court Order no. S125494.
Respondent’s failure to comply with rule 955, as order by the Supreme Court,
also continues a willful violation of Business and Professions Code sect
PENDING
PROCEEDINGS.
The disclosure
date referred to , on page one, paragraph A.(7), was September 1, 2005.
COSTS OF
DISCIPLINARY PROCEEDINGS.
Respondent
acknowledges that the Office of the Chief Trial Counsel has informed respondent
that as of September 1, 2005, the estimated prosecution costs in this matter
are approximately $1,641. Respondent acknowledges that this figure is an
estimate only. 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.
AUTHORITIES
SUPPORTING DISCIPLINE.
Business and
Professions Code section 6103 provides that the willful disobedience or
violation of an order of a court constitutes cause for disbarment or suspension.
California
Rules of Court, rule 955 provides for the suspension or disbarment of a
suspended member who willfully fails to comply with the provisions of 955.
Bercovich v.
State Bar (1990) 50 Cal.3d 116, 131 – Disbarment is generally the appropriate sanction
to be imposed for a willful violation of rule 955.
Shapiro v.
State Bar (1990) 51 Cal.3d 251 – one year actual suspension for filling the 955
affidavit five months late.
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.
Respondent
admits that the above facts are true and that she is culpable of violation of
the specified statutes and/or Rules of Professional Conduct.
SIGNATURE OF THE PARTIES
Case Number(s): 05-N-00451
In the Matter of: Carole A. Bell
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: Carole
A. Bell
Date: September
2, 2005
Respondent’s
Counsel: Ephraim Margolin
Date: September
13, 2005
Deputy Trial
Counsel: Robert A. Henderson
Date: September
15, 2005
ACTUAL SUSPENSION ORDER
Case Number(s): 05-N-00451
In the Matter of: Carole A. Bell
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.
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checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set
forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
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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: Pat McElroy
Date: September
28, 2006
CERTIFICATE OF SERVICE
[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 San Francisco, on September 30, 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 San Francisco,
California, addressed as follows:
EPHRAIM MARGOLIN
LAW OFFICE OF EPHRAIM MARGOLIN
240 STOCKTON STREET, 4TH FL
SAN FRANCISCO, CA 94108-5318
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
ROBERT
HENDERSON, Enforcement, San Francisco
I hereby
certify that the foregoing is true and correct. Executed in San Francisco,
California, on September 30, 2005.
Signed by:
Lauretta
Cramer
Case Administrator
State Bar
Court