Case Number(s): 05-O-00601-RAH; 05-O-01090
In the Matter of: Emily J. Adams, Bar # 221895, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eli D. Morgenstern, Bar # 190560
Counsel for Respondent: Michael G. Gerner, Bar # 65906
Submitted to: Assigned Judge State Bar Court Clerk’s Office Los Angeles
Filed: March 5, 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.
1. Respondent is a member of the State Bar of California, admitted December 4, 2002.
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):
<<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 prior to February 1 for the following membership years: costs to be paid in equal amounts prior to February 1 for the following 3 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.
<<not>> 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.
IN THE MATTER OF: EMILY JEAN ADAMS
CASE NUMBER(S): 05-0-00601 and 05-0-01090; ET AL.
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes and Rules of Professional Conduct.
Case No. 05-0-00601
Facts
1. On October 15, 2003, Raul Guevara ("Guevara") hired Respondent to represent him in a wrongful termination case against Union Pacific Railroad ("Union Pacific"), his former employer. On the same date, Guevara signed a retainer agreement prepared by Respondent, pursuant to which Respondent agreed to represent Guevara for a payment of $2,000 and a contingency fee of 33%.
2. On October 16, 2003, Guevara paid Respondent $1,000.
3. On October 23, 2003, Respondent filed a complaint in the Los Angeles Superior Court entitled Raul Guevara v. Union Pacific Railroad, et. al., LASC Case No. BC 304759 ("Guevara v. Union Pacific").
4. On February 25, 2004, the Court made the following orders at a case management conference in Guevara v. Union Pacific:
(a) a private mediation be completed by September 1, 2004;
(b) a joint mediation report be submitted by September 8, 2004;
(c) a post mediation status conference be conducted on September 15, 2004;
(d) a final status conference be conducted on October 15, 2004; and
(e) a trial for the matter to commence on October 19, 2004.
5. Respondent never advised Guevara of any of the aforementioned orders made by the Court at the February 25, 2004 case management conference.
6. On June 7, 2004, Union Pacific’s counsel served Respondent with Special Interrogatories propounded in Guevara in Guevara v. Union Pacific. Respondent received the Special Interrogatories; however, at no time did Respondent advise Guevara of her receipt of the interrogatories or respond to them, and opposing counsel was unable to contact Respondent in order to arrange a meet and confer regarding the outstanding responses.
7. On July 2, 2004, Union Pacific’s counsel filed and properly served on Respondent a Motion for Summary Judgment ("MSJ") in Guevara v. Union Pacific. Respondent received the MS J, and filed an opposition to it.
8. On August 4, 2004, Union Pacific’s counsel filed and properly served on Respondent a "Motion to Compel Answer to Interrogatories without Objection" ("Motion to Compel") in Guevara v. Union Pacific. Respondent received the Motion to Compel; however Respondent did not respond to it, or otherwise communicate with Union Pacific’s counsel. Respondent did not advise Guevara of the Motion to Compel.
9. On August 25, 2004, the Court heard and granted the Motion to Compel in Guevara v. Union Pacific. The Court ordered Guevara to provide responses to the Special Interrogatories without objection and to pay monetary sanctions to Union Pacific in the sum of $183.60, within 10 days of service of the order. Respondent received a copy of the Order granting the Motion to Compel served by the Court; however, Respondent did not advise Guevara of the Order.
10. The private mediation in Guevara v. Union Pacific was not completed by September 1, 2004; consequently, the parties did not submit a joint mediation report in Guevara v. Union Pacific by September 8, 2004.
11. On September 15, 2004, Respondent failed to appear for the post mediation status conference in Guevara v. Union Pacific. The Court issued and served on the parties an Order to Show Cause ("OSC") for Respondent’s failure to appear for the post mediation status conference, which was to be heard on September 27, 2004. Respondent received the copy of the OSC served by the Court; however, Respondent did not advise Guevara of the OSC.
12. On September 20, 2004, Respondent filed a "Motion to Continue Trial Date" ("Motion to Continue") to continue the October 19, 2004 trial in Guevara v. Union Pacific for at least 60-days. In her declaration, which was attached to the Motion to Continue and filed therewith, Respondent declared that: (a) in April 2004, she moved to Temecula, California; (b) in July 2004, she located a new office in Temecula; (c) in August 2004, she moved into her new office in Temecula, (d) relocating her office took time and money that prevented her from conducting discovery on behalf of Guevara; and (e) a 60-day continuance would allow her to respond to Union Pacific’s Special Interrogatories and conduct discovery. The header for Respondent’s Motion to Continue listed Respondent’s new office address in Temecula.
13. Respondent did not inform Guevara that she changed her address and telephone number.
14. On September 20, 2004, Respondent also appeared for the hearing on the MSJ. The Court denied the MS J; and continued the OSC from September 27, 2004, to October 4, 2004, in order to allow the parties to complete the mediation. The Court also denied Respondent’s Motion to Continue and ordered the trial to begin on October 19, 2004.
15. At no time did Respondent contact Union Pacific’s Counsel in order to arrange the mediation.
16. On October 4, 2004, Respondent failed to appear at the court ordered OSC. The Court advanced and vacated the October 19, 2004, trial date and dismissed the Guevara v. Union Pacific action,
17. On October 4, 2004, Union Pacific’s counsel filed and served on Respondent a "Notice of Dismissal by the Court" in Guevara v. Union Pacific. The notice was served on Respondent at her new office address in Temecula. Respondent received the notice. Respondent did not advise Guevara of the dismissal.
18. Respondent did not attempt to set aside the dismissal of Guevara v. Union Pacific.
19. In November 2004, Guevara learned that the Superior Court dismissed Guevara v. Union Pacific. Guevara called Respondent at her office and received a message that her telephone number had been disconnected.
20. In November 2004, Guevara learned that Respondent had relocated to Temecula. Guevara called Respondent’s office telephone number in Temecula on several occasions, but Respondent’s telephone rang without being answered.
21. Subsequently, Guevara retained new counsel; and on July 21, 2005, the dismissal in the Guevara v. Union Pacific matter was set aside.
Conclusions of Law
By failing to prosecute, or take any action to resolve, the Guevara v. Union Pacific matter, and by failing to seek to set aside the dismissal, Respondent wilfully violated rule 3110(A) of the Rules of Professional Conduct.
By failing to advise Guevara of the Court’s orders made at the February 25, 2004 case management conference, that she moved offices in or about April 2004, that Union Pacific propounded Special Interrogatories and filed a Motion to Compel, that the Motion to Compel was granted, that Respondent failed to appear at the September 15, 2004, status conference, and that the Court issued an OSC, and that on October 4, 2004, the Court dismissed Guevara v. Union Pacific, Respondent failed to keep a client informed of significant developments in a matter in which Respondent agreed to provide legal services, in wilful violation of Business and Professions Code section 6068(m).
Case No. 05-0-01090
1. On or about April 14, 2004, Brandon Hepburn ("Hepburn") hired Respondent to represent him and his business, Jam Packed Productions, LLC ("Jam Packed"), in a credit card dispute with Landmark Merchant Solutions, LLC ("Landmark"). Respondent and Hepburn agreed that Respondent would be compensated by a contingency fee.
2. On April 29, 2004, Respondent filed a Complaint for Indemnification and Breach of Contract in the Los Angeles Superior Court ("Superior Court" or "LASC") titled Jam Packed Productions, LLC. v. Landmark Merchant Solutions, LASC Case No. BC 314778 ("Jam Packed v. Landmark’’).
3. On May 10, 2004, the Superior Court ordered a Case Management Conference to be held on August 27, 2004 in Jam Packed v. Landmark.
4. On or about June 23, 2004, counsel for Landmark mailed a letter to Respondent stating, inter alia, that: the complaint had not been served on Landmark; the complaint had been served on an unaffiliated California corporation; the contract required the complaint to be brought in Cook County, Illinois ("Cook County"); and Respondent should dismiss the complaint and re-file it in Cook County. Respondent received the letter.
5. Beginning in June 2004, Hepburn attempted several times per month to contact Respondent by telephone to obtain a status report on Jam Packed v. Landmark. No one answered the telephone and Hepburn left messages for Respondent on her telephone voice message system requesting that Respondent contact him when she was able to do so. Respondent never responded to Hepburn’s messages.
6. On July 8, 2004, counsel for Landmark specially appeared to serve on Respondent and file a Motion for an Order to Stay or Dismiss Proceedings for Inconvenient Forum ("Motion to Dismiss") and Motion for an Order Quashing .Service of Summons on Landmark ("Motion to Quash") in Jam Packed v. Landmark. The Motion to Dismiss argued, inter alia, that the contract required the complaint to be brought in Cook County. The Motion to Quash argued, inter alia, that Respondent failed to serve the complaint on Landmark and had served it on an unaffiliated California corporation.
7. Respondent did not respond to the Motions to Dismiss and Quash served and filed on July 8, 2004, or otherwise communicate with counsel for Landmark. Respondent did not advise Hepburn that Respondent was served with the Motions to Dismiss and Quash, or that she failed to respond to them.
8. On August 2, 2004, Respondent failed to appear for the hearing on the Motions to Dismiss and Quash in Jam Packed v. Landmark. The Court granted the Motion to Dismiss without prejudice and the Motion to Quash was withdrawn by counsel for Landmark. Thereafter, the Court advanced and vacated the case management conference set for August 27, 2004. Respondent did not advise Hepburn of the dismissal.
9. Respondent did not follow up to determine the status of the Motions to Dismiss and Quash or seek to set aside the dismissal.
10. On November 16, 2004, Landmark issued a check to Jam Packed in the sum of $3,445.
Conclusions of Law
By failing to oppose the Motions to Dismiss and Quash, or seek to set aside the dismissal, Respondent wilfully violated rule 3-110(A) of the Rules of Professional Conduct.
By failing to return the messages that Hepburn left beginning in June 2004, Respondent failed to respond promptly to reasonable status inquiries of a client, in wilful violation of Business and Professions Code section 6068(m).
By failing to inform Hepburn that she failed to oppose the Motions to Dismiss and Quash, or that the complaint in Jam Packed v. Landmark had been dismissed, Respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services, in wilful violation of Business and Professions Code section 6068(m).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was February 2007.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. 05-0-00601; Count TWO; Alleged Violation Business and Professions Code § 6103;
Case No. 05-O-00601; Count FOUR; Alleged Violation Business and Professions Code § 6068(m);
Case No. 05-O-00601; Count FIVE; Alleged Violation Business and Professions Code § 6068(i);
Case No. 05-0-01090; Count NINE; Alleged Violation Business and Professions Code § 60680)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed her that as of February 22, 2007, the estimated prosecution costs in this matter are approximately $2,929. Respondent 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.
Standards
Standard 2.4(b) of the Standards For Attorney Sanctions for Professional Misconduct, Title IV of the Rules of Procedure ("Standards") provides that:
"Culpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct, and the degree of harm to the client."
Case Law
Samuelson v. State Bar (1979) 23 Cal. 3d 558. Respondent publicly reproved for failing to expeditiously conduct probate proceedings (proceedings unnecessarily delayed for five years).
In the Matter of Hanson (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 703. Respondent publicly reproved for failure to promptly return unearned fee, and upon discharge by the clients, failing to take steps to avoid foreseeable prejudice to the clients.
OTHER FACTORS IN CONSIDERATION.
Respondent did not provide the State Bar with psychological or medical evidence to corroborate the statement that follows, and thus Respondent is entitled to limited weight in mitigation pursuant to Standard 1.2(e)(iv). The statement is nevertheless included as Respondent’s uncorroborated explanation for her misconduct.
Respondent became a member of the Bar on December 4, 2002, when she was 26 years old. The misconduct committed herein occurred in 2003 and 2004, when Respondent had little, or no experience, in operating her own practice. In addition, during this period, Respondent has stated to the State Bar that she experienced a series of emotional, medical and personal problems, which caused her to enter a state of depression. In August 2004, Respondent hit her nadir, closed her law office, and removed herself from the practice of law. Respondent has stated to the State Bar that she has gone through an arduous healing period and since November 2005 has been employed outside of the practice of law.
Respondent was a highly motivated law student. During law school, she was a law clerk at a prestigious law firm; and an intern at a second prestigious law firm, working in their American Indian Law Section, which represented Indian casinos. She also worked as an extern for a Federal Bankruptcy Court judge.
Respondent terminated her externship with the Bankruptcy Court judge in April 2001, when her father was involved in a serious traffic accident that left him in a coma for three days. Her father lived in Oregon. Respondent flew to Oregon and stayed with her father during his entire period of hospitalization. After her father emerged from the coma he fell out of the hospital bed and suffered a severe brain injury, which required surgery and put him into a second and deeper coma.
After approximately three months her father was released from the hospital; however, he required 24 hour care.
In August 2001, Respondent moved her father to live with her in Monrovia. Respondent was, and until recently remained, her father’s primary caregiver.
Respondent worked as a law clerk for an attorney in Monrovia in order to be close to her home for her father. While she worked her then boyfriend, now husband, would take care of her father, but she was always close by.
Upon passing the bar, Respondent continued to perform work for the local attorney and began making appearances for him. Shortly after passing the Bar, with the encouragement of the attorney with whom she had been working, she opened her own law office in Monrovia.
However, shortly thereafter, the attorney had a stroke and left the practice of law. Accordingly, Respondent was left without her mentor.
In August 2003 and again in October 2003, Respondent suffered miscarriages. Respondent has stated to the State Bar that these events coupled with the day to day pressure of caring for her father and increasing financial stress was the genesis of what she believes was debilitating depression.
After Respondent closed her law office she obtained employment at the Pechanga Resort and Casino, as Human Resources Compensation and Policy Manager. Respondent represents that she has regained much of her self-esteem and has been highly successful in her employment. Respondent is currently on maternity leave. Upon her return, she will be participating in her Employee Assistance Program to continue to address her issues.
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.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-00601-RAH; 05-O-01090
In the Matter of: Emily J. Adams
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: Emily J. Adams
Date: 2/21/2007
Respondent’s Counsel: Michael G. Gerner
Date: 2-22-07
Deputy Trial Counsel: Eli D. Morgenstern
Date: 2-26-07
Case Number(s): 05-O-00601-RAH; 05-O-01090
In the Matter of: Emily J. Adams
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. Honn
Date: 3-1-07
[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 March 5, 2007, I deposited a true copy of the following document(s):
STIPULATIONS 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:
MICHAEL G GERNER ESQ
MICHAEL G GERNER, A PROF LAW CORP
10100 SANTA MONICA BLVD #300
LOS ANGELES, CA 90067
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Eli D. Morgenstern, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 5, 2007.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court