Case Number(s): 05-O-00048-RAP and 05-O-02412 (pending investigation)
In the Matter of: Federico Acosta, Bar # 158635, 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: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: September 7, 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.
1. Respondent is a member of the State Bar of California, admitted June 9, 1992 .
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: 2006 & 2007. (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: FEDERICO ACOSTA, State Bar No. 158635
STATE BAR COURT CASE NUMBER: 05-O-00048-RAP & 05-O-02412 (Pending Investigation)
FACTS AND CONCLUSIONS OF LAW.
Federico Acosta (Respondent) was admitted to the practice of law in the State of California on June 9, 1992, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California.
05-O-00048
On or about September 16, 2004, Respondent was enrolled in "not entitled" status because of his noncompliance with Mandatory Continuing Legal Education (MCLE) requirements. Respondent remained enrolled in "not entitled" status until November 12, 2004, when he complied with MCLE requirements and was reinstated to active status.
On or about September 23, 2004, the State Bar’s Office of Certification sent a letter to Respondent informing him that he had been enrolled in "not entitled" status effective September 16, 2004, because of his noncompliance with MCLE requirements. The letter was properly mailed to Respondent at his State Bar membership records address. Respondent received this letter from the State Bar and confirms that he became aware of its contents and change in status as of September 29, 2005.
On or about November 8, 2004, while Respondent was enrolled in "not entitled" status, Respondent sent a letter to Christine Mal (Mai) in which he stated that he had been retained by Melissa Ralph (Ralph) to represent her in a legal dispute against Mai. Respondent signed the November 8, 2004 letter as "Federico Acosta, Esq." Respondent’s letter was printed on letterhead which stated "LAW OFFICES FEDERICO ACOSTA." Along with the November 8, 2004 letter, Respondent also sent to Mai a document entitled "Authorization for Legal Representation," in which he also stated that Ralph had retained him to represent her in her legal dispute against Mai. This document was also printed on letterhead that stated "LAW OFFICES FEDERICO ACOSTA." Respondent did not tell Ralph or Mai that he was not entitled to practice law.
Respondent sent a letter to Mai indicating that he was representing Ralph and signed the letter as "Federico Acosta, Esq." on letterhead that indicated that it was from a law office, therefore, holding himself out as entitled to practice law and in effect practiced law when he was not an active member of the State Bar in wilful violation of Business and Professions Code, sections 6068(a), 6125, and 6126.
After Mai’s attorney contacted Respondent and notified Respondent that Respondent was not entitled to practice law, Respondent removed himself as counsel and informed Ralph that he would not be able to proceed with her matter. Respondent subsequently submitted proof of MCLE compliance on or about November 12, 2004, and submitted the proper paperwork evidencing compliance and was reinstated to Active status.
05-O-02412
Respondent maintains a client trust account with Washington Mutual Bank, account no. 879019461-2. Under the authority of section 6091.1 of the Business and Professions Code, Washington Mutual Bank notified the State Bar of insufficient funds activity regarding check number 1534 in the amount of $300 which was returned because the account balance was $273.24; and check number 1537 in the amount of $150, which was returned because the account balance was $18.17.
From 1996, Respondent and his wife, (Susan) operated a law office. Susan’s function was that of office manager. Susan handled many of the administrative and organizational functions in law office and maintained extensive office responsibilities.
In or about the beginning of January 2003, Respondent’s wife’s health rapidly deteriorated after she was diagnosed with chronic pancreatitis. Over the next several months, Respondent’s wife was regularly hospitalized; many times brought to the emergency room.
On or about January 28, 2005, Respondent’s wife underwent surgery.
Because Susan is Respondent’s wife, the impact of her illness was compounded personally and professionally.
During the end of 2003 to the beginning of 2004, Susan’s pancreatitis worsened and eventually ended her ability to work at the law office. Respondent quickly began to lose control of the law office. Somewhere in or about January 2003 through March 12, 2005, Diane Marshall (Marshall) worked for Respondent as the office manager in place of Respondent’s wife.
Marshall was receiving payments regarding a family law matter into the client trust account.
Marshall had access to the client trust account. Marshall drafted checks for her to cash without Respondent’s knowledge and without adequate funds.
Under Respondent’s supervision, an inexperienced office manager who was also a client, remitted checks to herself, without confirming whether there were sufficient funds in the trust account and without Respondent’s knowledge. (Spindell v. State Bar (1975) 13 Cal.3d 253,259260.) Respondent has the ultimate responsibility to maintain the trust account and failed to properly supervise an employee and her access to the trust account. However, no clients were harmed by the non sufficient funds.
AGGRAVATION.
During the period from September 16, 2004 through December 12, 2004, Respondent continued practicing law on pre-existing matters. After Respondent received the September 23, 2005 letter informing him that he was not entitled to practice law on September 29, 2005, Respondent proceeded to make six court appearances seeking continuances in several different matters. Respondent did not inform the court that he was not entitled to practice nor did Respondent make other efforts to avoid any misrepresentations as to his status with the State Bar. Though Respondent made several court appearances while on inactive status, no harm befell his clients. However, the appearances harmed the administration of justice.
MITIGATION.
Respondent understands his obligation to his client trust account and has made changes in office procedures to safeguard the trust account. This understanding diminishes the risk of future misconduct.
Prior to the misconduct, Respondent has a twelve-year history of practice without incident and no prior record of discipline. (Std. 1.2(e)(i).) Respondent has represented to the State Bar that his misconduct was the result of unusual stress which he has since recognized and learned to deal with. (Cf. Young v. State Bar (1990) 50 Cal.3d 1204, 1220-1221; Rose v. State Bar (1989) 49 Cal.3d 646, 667.)
After the effective date of Respondent’s not entitled status (September 16, 2004) Respondent appeared in Superior Court. However, appearing while suspended or enrolled inactive does not inherently involve moral turpitude. (In the Matter of Henier (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 301,319 citing In the Matter of Trousil (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 229, 239.)
During the time of the offenses Respondent was under considerable emotional stress as a result of his wife’s suffering from severe chronic pancreatitis and her many emergency visits to the hospital. Respondent’s wife also played an essential role in carrying on his law practice as the office manager. (Std. 1.2(e)(iv).) The increased financial responsibilities which resulted from emergency room visits and Respondent’s wife’s illness created more strain. At present, Respondent is more able to balance the law office and has accepted increased responsibility due to his wife’s illness. Respondent acknowledges his mistakes and is better prepared to deal with more office management issues while she is continuing her recovery. Respondent is taking on fewer cases.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was August 2, 2005.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No.: 05-O-00048, Count: Two, Alleged Violation: Business and Professions Code section 60680)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of August 2, 2005, the estimated prosecution costs in this matter are approximately $2,296. 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.
AUTHORITIES SUPPORTING DISCIPLINE.
Bus. & Prof. Code sections 6125 and 6126 prohibit the unauthorized practice of law by any person not an active member of the State Bar.
The appropriate discipline to be imposed in a given case is not derived from any fixed formula; rather it is determined from a balanced consideration of all relevant factors. (McCray v. State Bar (1985) 38 Cal.3d 257, 273.) The discipline imposed in past similar cases provides guidance but is not binding. (Levin v. State Bar (1989) 47 Cal.3d 1140, 1150.) The present matter is unique and the only case close in nature to the present matter is In the Matter of Trousil (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 229. In Trousil, an attorney accepted a bankruptcy case while suspended and continued to work on the case including making court appearances during his suspension. (ln the Matter of Trousil (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 229, 234.) Trousil had sought to remove himself from all his pending cases including the bankruptcy case, but his client refused to release him. (ld. At 235.) The client knew of Trousil’s suspension and insisted Trousil continue work on his case. The court focused on Trousil’s three prior disciplinary actions and imposed two years stayed suspension with a two-year probationary term and a condition that the first thirty days Trousil be actually suspended for his unauthorized practice of law. (ld. At 241.) The court noted that the prior misconduct occurred while Trousil suffered serious psychological impairment, had cooperated with the investigation, and had maintained a clean record for the past six years in mitigation. (ld. At 240-242.)
Here, Respondent should receive less than Trousil because in Trousil, the attorney engaged in the unauthorized practice of law while he was on a disciplinary suspension from prior misconduct. Respondent has no prior record of discipline. Moreover, Respondent was on an administrative inactive status due to his noncompliance with the MCLE requirement. In comparison to Trousil, Respondent should not receive actual suspension.
The purposes of attorney disciplinary sanctions are the protection of the public, maintenance of high professional standards, and preservation of public confidence in the legal profession. (Kent v. State Bar (1987) 43 Cal.3d 729, 734; Arden v. State Bar (1987) 43 Cal.3d 713,726; Std. 1.3.)
The unauthorized practice of law includes the mere holding out by a layman or a suspended attorney that he is practicing or is entitled to practice law. (ln re Cadwell (1975) 15 Cal.3d 762, 771; Bus. & Prof. Code, §§ 6125, 6126.) When Respondent accepted Ralph’s case and sent a demand letter to Mai, Respondent did not inform Ralph that he was on administrative inactive status from the practice of law or not entitled. The practice of law includes legal advice and counsel and the mere preparation of legal instruments. (Crawford v. State Bar (1960) 54 Cal.2d 659, 667-668.) The letter in furtherance of Ralph’s matter demanding action in response to legal consequences was a legal instrument. It is sufficient to show Respondent knowingly represented a statement which itself tends to mislead without having to demonstrate actual deception. (Davis v. State Bar (1983) 33 Cal.3d 231,240; Pickering v. State Bar (1944) 24 Cal.2d 141,144-145.) Attorneys have a duty not to mislead the public concerning their suspensions. (Arm v. State Bar (1990) 50 Cal.3d 763,775; In re Caldwell (1975) 15 Cal.3d 762, 771-772.) The demand letter was knowingly sent by Respondent to Mal. The letter, itself, could have misled Mai into believing Respondent was authorized to represent Ralph.
Respondent is responsible for the supervision of his staff. Reasonable attention on Respondent’s part would have disclosed the improprieties conducted by Marshall. (Sanchez v. State Bar (1976) 18 Cal.3d 280, 284 citing Vaughn v. State Bar (1972) 6 Cal.3d 847, 857-859.)
The "protection of the public is the key reason fo imposing attorney discipline." (In the Matter of Jones (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 411,421 .) Here, the public will be properly protected with the stipulated level of discipline.
STATE BAR ETHICS AND CLIENT TRUST ACCOUNTING SCHOOL.
Because respondent has agreed to attend State Bar Ethics School and Client Trust Accounting School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School and Client Trust Accounting School.
Case Number(s): 05-O-00048-RAP and 05-O-02412 (pending investigation)
In the Matter of: Federico Acosta
<<not>> checked. a. Within days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
checked. b. Within 2 years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than 3 hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Other:
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-00048-RAP and 05-O-02412 (pending investigation)
In the Matter of: Federico Acosta
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: Federico Acosta
Date: August 31, 2005
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Jean Cha
Date: August 31, 2005
Case Number(s): 05-O-00048-RAP and 05-O-02412 (pending investigation)
In the Matter of: Federico Acosta
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: September 2, 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 September 7, 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:
FEDERICO ACOSTA ESQ
18031 IRVINE BLVD #111
TUSTIN CA 92780
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
JEAN CHA A/L, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 7, 2005.
Signed by:
Angels Owens-Carpenter
Case Administrator
State Bar Court