State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 05-O-00937
In the Matter of: Maxwell Agha, Bar # 153625 , A Member of
the State Bar of California, (Respondent).
Counsel For The State Bar: William F. Stralka, Bar # 56147,
Counsel for Respondent: David C. Carr, Bar # 124510 ,
Submitted to: Assigned Judge –State Bar Court Clerk’s
Office Los Angeles.
Filed: September 15, 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 28,
1991.
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 11 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. Until costs are
paid in full, Respondent will remain actually suspended from the practice of
law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal
amounts prior to February 1 for the following membership years: 2006, 2007,
2008, 2009. (Hardship, special circumstances or other good cause per rule 284,
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.
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 99-O-13435 (S127222).
checked. (b) Date prior
discipline effective December 4, 2004.
checked. (c) Rules of
Professional Conduct/ State Bar Act violations: rules 1-300, 3-110(A), Rules of
Professional Conduct; section 6106, 6068(d), Business and Professions Code.
checked. (d) Degree of
prior discipline 90 days actual, two years stayed and two years probation.
<<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.
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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(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.
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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. See
additional mitigating circumstances.
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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.
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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.
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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: Respondent was misinformed by the
Office of Probation as to the effective date for Rule 955 compliance.
D.
Discipline:
checked. (1) Stayed Suspension:
checked.
(a) Respondent must be suspended from the practice of law for a period of One
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: .
checked.
(b) The above-referenced suspension is stayed.
checked.
(2) Probation: Respondent must be placed on probation for a period of One Year,
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 Thirty (30) Days.
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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.
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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: Condition imposed in 99-O-13435.
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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:
<<not>> 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 951(b), California Rules of
Court, and rule 321(a)(1) & (c), Rules of Procedure.
checked. No MPRE recommended. Reason: Condition imposed in case no.
99-O-13435.
<<not>> 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.
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: .
checked. (5) Other
Conditions: Probation to be concurrent to the probation imposed by the Supreme
Court in case number 99-O-13435 (S127222).
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION
IN THE MATTER OF: Maxwell C.
Agha, State Bar No. 153625
STATE BAR COURT CASE NUMBER: 05-O-00937
PENDING
PROCEEDINGS:
The
disclosure date referred to, on page one, paragraph A.(6), was August 4, 2005.
PARTIES
ARE BOUND BY THE STIPULATED FACTS:
The Parties
intend to be and are hereby bound by the stipulation to facts contained in this
stipulation. This stipulation as to facts, and the facts so stipulated shall
independently survive, even if the conclusions of law and/or stipulated
disposition set forth herein are rejected, or changed in any matter whatsoever,
by the Hearing Department or the Review Department of the State Bar Court, or
by the California Supreme Court.
STIPULATION
AS TO FACTS AND CONCLUSIONS OF LAW
Respondent
admits that the following facts are true, and that he is culpable of violations
of the specified statutes and/or Rules of Professional Conduct, or has
otherwise committed acts of misconduct warranting discipline.
FACTS:
CASE NO.: 05-O-00937
1. MAXWELL
CHUCK AGHA ("Respondent") was admitted to the practice of law in the State
of California on June 28, 1991, was a member at all times pertinent to these
charges, and is currently a member of the State Bar of California. On December
4, 2004, Respondent was suspended actually from the practice of law for 90 days
until March 4, 2005.
2. On October
13, 2003, Robert Hom ("Hom") employed Respondent to represent him in
a personal injury matter.
3. [Deleted] –
Initialed by DC & WFS
4. [Deleted] –
Initialed by DC & WFS
5. [Deleted] –
Initialed by DC & WFS
6. On
November 4, 2004, the Supreme Court of California issued Order No. S 127222, actually
suspending Respondent from the practice of law for a period of ninety (90)
days, effective December 4, 2004.
7. In the
Supreme Court’s order filed November 4, 2004, Respondent was ordered to comply
with California Rules of Court, rule 955, subdivisions (a) and (c). Subdivision
(a) required Respondent to inform all of his clients of the suspension within
thirty (30) days after the effective date of the order, (December 4, 2004), or
January 3, 2005, and subdivision (c) required Respondent to file a proof of
compliance with rule 955(a) within forty (40) days after the effective date
(December 4, 2004) or January 13, 2005.
8. Respondent
did not inform Horn of his suspension until on or about January 12, 2005. Respondent
did not file a proof of compliance with the Supreme Court order with the
Probation Department until on or about January 20, 2005.
CONCLUSIONS
OF LAW:
By falling to
timely comply with the Supreme Court orders to inform his client of his suspension,
and to timely file a proof of compliance with the Supreme Court orders,
Respondent wilfully violated Business and Professions Code, section 6103, by
wilfully disobeying or violating an order of the court requiring him to do or
forbear an act connected with or in the course of Respondent’s profession which
he ought in good faith to do or forbear.
SUPPORTING
LAW:
In the Matter
of Friedman (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 527.
Respondent
defaulted in two disciplinary cases. As a result of the second case, respondent
received a five-month actual suspension and was required to comply with rule
955 of the California Rules of Court. Although he properly advised his clients
of his suspension, he did not file the affidavit required by rule 955 until two
weeks after it was due. Because of compelling mitigating circumstances, the
likelihood that respondent would remain suspended for a considerable period due
to three separate orders, and the lack of any public protection concerns, the
hearing judge declined to impose any additional discipline for respondent’s
wilful violation. The review department imposed a thirty day actual suspension
for Respondent’s failure to comply with rule 955(c).
COSTS
OF DISCIPLINARY PROCEEDINGS
Respondent
acknowledges that the Office of the Chief Trial Counsel has informed Respondent
that as of August 1, 2005, 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.
WAIVER
OF REVIEW BY REVIEW DEPARTMENT
Pursuant to
Rules of Procedure of the State Bar of California, rule 251, the parties hereto
stipulate to a waiver of review by the Review Department, and request that the
disciplinary recommendation in this matter be transmitted to the Supreme Court
on an expedited basis.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-00937
In the Matter of: Maxwell Agha
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: Maxwell
Agha
Date: August
16, 2005
Respondent’s
Counsel: David C. Carr
Date: August
16, 2005
Deputy Trial
Counsel: William F. Stralka
Date: August 8,
2005
ACTUAL SUSPENSION ORDER
Case Number(s): 05-O-00937
In the Matter of: Maxwell Agha
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: Richard A. Honn
Date: September
13, 2005
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 September 15, 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:
DAVID C. CARR
ATTORNEY AT LAW
600 W BROADWAY STE 900
SAN DIEGO, CA 92101 3354
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
William Stralka, Enforcement, Los
Angeles
I hereby
certify that the foregoing is true and correct. Executed in Los Angeles,
California, on September 15, 2005.
Signed by:
Milagro del
R. Salmeron
Case
Administrator
State Bar
Court