State
Bar Court of California
Hearing
Department
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
PUBLIC REPROVAL
Case Number(s): 05-O-00152
In the Matter of: Benjamin A. Brin, Bar # 162214, A Member
of the State Bar of California, (Respondent).
Counsel For The State Bar: Christine Souhrada, Bar # 228256
Counsel for Respondent: Bar #
Submitted to: Settlement Judge State Bar Court Clerk’s
Office Los Angeles
Filed: February 14, 2007
<<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 December 14, 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 9 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 added to membership fee for calendar year following effective
date of discipline (public reproval).
<<not>>
checked. case ineligible for costs (private reproval).
checked.
costs to be paid in equal amounts for the following membership years: two
billing cycles following the effective date of the Supreme Court Order (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.
B. Aggravating Circumstances [for definition, see Standards for
Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts
supporting aggravating circumstances are required.
<<not>> checked. (1) Prior
record of discipline [see standard 1.2(f)].
<<not>>
checked. (a) State Bar Court case # of prior case .
<<not>>
checked. (b) Date prior discipline effective .
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checked. (c) Rules of Professional Conduct/ State Bar Act violations:
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checked. (d) Degree of prior discipline
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checked. (e) If Respondent has two or more incidents of prior
discipline, use space provided below or a separate attachment entitled “Prior
Discipline”. .
<<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.
checked. (8) No aggravating
circumstances are involved.
Additional aggravating circumstances:
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
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.
<<not>> checked. (2) No Harm:
Respondent did not harm the client or person who was the object of the
misconduct.
<<not>> 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.
<<not>> 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.
<<not>> checked. (5) Restitution:
Respondent paid $ on in restitution to without the threat or force of
disciplinary, civil or criminal proceedings.
<<not>> checked. (6) Delay:
These disciplinary proceedings were excessively delayed. The delay is not
attributable to Respondent and the delay prejudiced him/her.
<<not>> checked. (7) Good
Faith: Respondent acted in good faith.
<<not>> 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.
<<not>> 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.
<<not>> 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.
<<not>> 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.
<<not>> checked. (12) Rehabilitation:
Considerable time has passed since the acts of professional misconduct occurred
followed by convincing proof of subsequent rehabilitation.
<<not>> checked. (13) No
mitigating circumstances are involved.
Additional mitigating circumstances:
D. Discipline:
<<not>> checked. (1) Private
reproval (check applicable conditions, if any, below):
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checked. (a) Approved by the Court prior to initiation of the State Bar Court
proceedings (no public disclosure).
<<not>>
checked. (b)Approved by the Court after initiation of the State Bar Court
proceedings (public disclosure).
or
checked. (2) Public reproval
(Check applicable conditions, if any below)
E. Additional Conditions of Reproval:
checked. (1) Respondent must
comply with the conditions attached to the reproval for a period of .
checked. (2) During the condition
period attached to the reproval, 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 the condition period.
<<not>> 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 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 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 State
Bar Ethics School, and passage of the test given at the end of that session.
<<not>> checked. No Ethics
School recommended. Reason:
<<not>> 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.
<<not>> checked. (10) 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 within one year of the effective date of
the reproval.
checked. No MPRE
recommended. Reason: The protection of the public and the interests of the
attorney do not require passage of the MPRE in this case.
<<not>> checked. (11) The following
conditions are attached hereto and incorporated:
<<not>>
checked. Substance Abuse Conditions.
<<not>>
checked. Law Office Management Conditions.
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checked. Medical Conditions.
<<not>>
checked. Financial Conditions.
F. Other Conditions Negotiated by the Parties:
ATTACHMENT
TO
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
in the Matter
of Benjamin Brin
Case no.
05-0-00152
I. Facts
1. On September
10, 2002, Shirley Lipscomb ("Lipscomb”) hired Respondent to represent her
in breach of contract matter, Shirley Lipscomb, Burning Ambition, Inc., and
Brian Klein v. Eric Clay, LASC Case No. BC251522 ("Lipscomb v,
Clay").
2. On June 4,
2003, Respondent filed a "Motion to be Relieved as Counsel" Lipscomb
v. Clay.
3, On June
23, 2003, Lipscomb filed her "Opposition to Motion to be Relieved as
Counsel of Record."
4. On June
26, 2003, Respondent filed a "Reply Declaration ... in Support of Motion
to be Relieved as Counsel" in Lipscomb v. Clay. In his Declaration,
Respondent accused Lipscomb of prosecuting Lipscomb v. Clay without the
knowledge and consent of her co-plaintiff, Brian Klein ("Klein");
"forg[ing]" Klein’s initials on the fee agreement; and being "up
to her old tricks [of] pretending to be or represent Mr. Klein, which she most
obviously cannot and does not."
II.
Conclusions of Law
By accusing
his client of forgery and dishonesty, Respondent willfully advanced a fact
prejudicial to the honor or reputation of a party or witness that was not
required by the justice of the cause, in violation of Business and Professions
Code section 6068(f).
III.
Supporting Authority
Standard 2.6
of the Standards for Attorney Sanctions for Professional Misconduct states
"Culpability of a member of a violation of [Business and Professions Code
6068] shall result in disbarment or suspension...."
However,
standard 1.6(b)(ii) states that a lesser degree of sanction shall be imposed if
mitigating circumstances demonstrate that the purposes of imposing sanctions
would be properly fulfilled by a lesser degree of sanction.
IV.
Mitigation
Respondent,
who has been admitted to practice in California since 1992, has no prior record
of discipline,
V. Estimate
of Costs o f Disciplinary Proceedings
Respondent
acknowledges that the Office of the Chief Trial Counsel has informed Respondent
that as of January 3, 2007, the estimated prosecution costs in this matter are approximately
$1,953.00. Respondent acknowledges that this figure is an estimate only. Respondent
further acknowledges that should this stipulation be rejected or should from
the stipulation be granted, the costs in this matter may increase due to the
cost of further proceedings.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-00152
In the Matter of: Benjamin A. Brin
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: Benjamin
A. Brin
Date: 1/17/07
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Christine Souhrada
Date: 1/24/07
ORDER
Case Number(s): 05-O-00152
In the Matter of: Benjamin A. Brin
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.
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checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set
forth below, and the REPROVAL IMPOSED.
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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.) 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. Honn
Date: 2/13/07
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 Los Angeles, on February 14, 2007, 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:
BENJAMIN
A BRIN ESQ
BENJAMIN
A. BRIN, APC
445
S FIGUEROA ST., 27TH FL.
LOS
ANGELES, CA 90071
checked.
by interoffice mail through a facility regularly maintained by the State Bar of
California addressed as follows:
Christine
A. Souhrada, Enforcement, Los Angeles
I hereby
certify that the foregoing is true and correct. Executed in Los Angeles,
California, on February 14, 2007.
Signed by:
Julieta E.
Gonzales
Case
Administrator
State Bar
Court