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-01082; 05-O-05319

In the Matter of: Paul F. Fegen, Bar # 31680, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Suzan J. Anderson, Bar # 160559

Counsel for Respondent: Paul J. Virgo, Bar # 67900

Submitted to: settlement judge State Bar Court Clerk’s Office Los Angeles

Filed:  May 10, 2006

<<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 6, 1961.

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 17 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 284, Rules of Procedure.

<<not>> checked. costs to be paid in equal amounts prior to February 1 for the following two (2) billing cycles following the effective date of the Supreme Court Order.  (hardship, special circumstances or other good cause per rule 284.

<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".

<<not>> checked. costs 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 04-0-11253-RAP
 checked. (b)             Date prior discipline effective 11/12/05
 checked. (c)             Rules of Professional Conduct/ State Bar Act violations: 3-110 (A); 3-700 (A) (2) Business and Professions Code sections 6068 (m) and 6106
checked. (d)              Degree of prior discipline 2 years stayed, 60 day actual and 3 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.

 checked. (4) Harm:  Respondent's misconduct harmed significantly a client, the public or the administration of justice.  Due to Respondent’s misconduct, his client lost her cause of action.

<<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.

<<not>> 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:

 checked. (1)          Stayed Suspension:

<<not>> checked. (a) Respondent must be suspended from the practice of law for a period of two (2) years.
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.
<<not>> checked. ii. and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.
<<not>> 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 three (3) years which will commence upon the effective date of the Supreme Court order in this matter.  (See rule 953, Calif. Rules of Ct.)

 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 30 days.
<<not>> 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
<<not>> checked. ii. and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following:

 

E. Additional Conditions of Probation:

<<not>> 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.

<<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 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.

<<not>> 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: Respondent was ordered to attend Ethics School as a condition in Case No. 04-O-11253, effective 11/12/05.

<<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.

 checked. (10)             The following conditions are attached hereto and incorporated:

<<not>> checked. Substance Abuse Conditions.
 checked. Law Office Management Conditions.
<<not>> checked. Medical Conditions.
 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: Respondent was ordered t provide proof of passage of MPRE as condition in Case No. 04-O-11253, effective 11/12/05.

<<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.

<<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:

 

 


LAW OFFICE MANAGEMENT CONDITIONS

 

Case Number(s): 05-O-01082; 05-O-05319

In the Matter of: Paul F. Fegen

 

<<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 days/ 11 months/ 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 6 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.

 


FINANCIAL CONDITIONS

Case Number(s): 05-O-01082; 05-O-05319

In the Matter of:  Paul F. Fegen

 

a. Restitution

 checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.

 

1. Payee: Judy Wohl

   Principal Amount: $4500.00

   Interest Accrues From: 1/27/97

2. Payee:

   Principal Amount:

   Interest Accrues From:

3. Payee:

   Principal Amount:

   Interest Accrues From:

4. Payee:

   Principal Amount:

   Interest Accrues From:

 

<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than 11 months after the effective date of Supreme Court Order

b. Installment Restitution Payments

<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.

1. Payee/CSF (as applicable)

   Minimum Payment Amount

   Payment Frequency

2. Payee/CSF (as applicable)

   Minimum Payment Amount

   Payment Frequency

3. Payee/CSF (as applicable)

   Minimum Payment Amount

   Payment Frequency

4. Payee/CSF (as applicable)

   Minimum Payment Amount

   Payment Frequency

 

c. Client Funds Certificate

<<not>> checked. 

1.    If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:

a.    Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;

b.    Respondent has kept and maintained the following:

                                          i.    A written ledger for each client on whose behalf funds are held that sets forth:

1.    the name of such client;

2.    the date, amount and source of all funds received on behalf of such client;

3.    the date, amount, payee and purpose of each disbursement made on behalf of such client; and,

4.    the current balance for such client.

                                        ii.    a written journal for each client trust fund account that sets forth:

1.    the name of such account;

2.    the date, amount and client affected by each debit and credit; and,

3.    the current balance in such account.

                                       iii.    all bank statements and cancelled checks for each client trust account; and,

                                       iv.    each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.

c.    Respondent has maintained a written journal of securities or other properties held for clients that specifies:

                                          i.    each item of security and property held;

                                        ii.    the person on whose behalf the security or property is held;

                                       iii.    the date of receipt of the security or property;

                                       iv.    the date of distribution of the security or property; and,

                                        v.    the person to whom the security or property was distributed.

2.    If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.

3.    The requirements of this condition are in addition to those set forth in rule 4-100, Rules of Professional Conduct.

d. Client Trust Accounting School

<<not>> checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.

 


ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

 

IN THE MATTER OF: PAUL F. FEGEN

 

CASE NUMBER(S): 05-0-01082, 05-0-05319

 

FACTS AND CONCLUSIONS OF LAW.

 

Respondent admits that the following facts are true and that he/she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.

 

CASE NUMBER 05-0-01082

 

COUNT ONE

 

FACTS

 

1. On January 30, 1997, Judy Wohl ("Wohl") employed Respondent to represent her in a personal injury case. Respondent agreed to the representation on a contingency basis. On that day, Wohl signed a retainer agreement with Respondent’s office.

 

2. Respondent referred Wohl to Dr. Anthony G. Rodas for medical treatment related to her personal injury. On June 27, 1997, Respondent signed the medical lien with Dr. Rodas’s office on behalf of Wohl.

 

3. Once a year for the years 1997, 1998, 1999, 2000, 2001, 2002 and 2003, Wohl telephoned Respondent’s office at the telephone number he gave her. She does not know who she spoke with on each occasion. Although these individuals assured her that her case was pending, it is unclear whether Respondent got the messages from Wohl. Respondent claims he never received any messages from Wohl.

 

4. In mid-2003, Wohl received a collection notice from Dr. Rodas. Wohl immediately telephoned Respondent’s office and was informed by someone on his staff that she should send the collection notice to Respondent’s office. Wohl sent the collection notice to Respondent. The notice was placed in a sealed envelope correctly addressed to Respondent at the address Respondent had given Wohl. The letter was promptly mailed by first class mail, postage prepaid, by depositing for collection with the United States Postal Service in the ordinary course of business. The United States Postal Service did not return Wohl’s letter as undeliverable or for any other reason.

 

5. In December 2003, Wohl received another collection notice from Grant & Webber, a collection agency on behalf of Dr. Rodas. Wohl again immediately contacted Respondent’s office and was instructed by someone on his staff to send the collection notice to Respondent’s office. Wohl sent the second collection notice to Respondent. The notice was placed in a sealed envelope correctly addressed to Respondent at the address Respondent had given Wohl. The letter was promptly mailed by first class mail, postage prepaid, by depositing for collection with the United States Postal Service in the ordinary course of business. The United States Postal Service did not return Wohl’s letter as undeliverable or for any other reason.

 

6. Respondent performed no services on behalf of Wohl. Respondent failed to make any claim on behalf of Wohl with any of the potential defendants or insurance companies involved in Wohl’s personal injury, failed to file a complaint on behalf of Wohl within the statute of limitations or at any time and failed to take care of the collection notices from Dr. Rodas.

 

LEGAL CONCLUSIONS

 

By agreeing to represent Wohl and then failing to make any claim on behalf of Wohl with the potential defendants or insurance companies involved, failing to file a complaint on behalf of Wohl, failing to take any actions with respect to the collection notices from Dr. Rodas, and failing to perform any legal services for Wohl, Respondent intentionally, recklessly or repeatedly failed to perform legal services with competence in wilful violation of Rules of Professional Conduct, rule 3-110(A).

 

COUNT TWO

 

FACTS

 

7. The stipulated facts of paragraphs 1 through 6 are incorporated by reference.

 

8. By failing to perform any legal services on behalf of Wohl, Respondent effectively withdrew from representation of Wohl.

 

9. At no time did Respondent inform Wohl that he was withdrawing from employment in Wohl’s case. Nor did Respondent take any other steps to avoid reasonably foreseeable prejudice to his client.

 

LEGAL CONCLUSIONS

 

By failing to perform any legal services on behalf of Wohl, failing to inform Wohl of his intent to withdraw from employment, and failing to take any other steps to avoid prejudice to his client, Respondent wilfully failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client in wilful violation of Rules of Professional Conduct, rule 3-700(A)(2).

 

COUNT THREE

 

FACTS

 

10. The stipulated facts of paragraphs 1 through 6 are incorporated by reference.

 

11. Respondent did not inform Wohl at any time that he had not made a claim on her behalf with any of the potential defendants or insurance companies involved in her personal injury matter; he did not inform her at any time that he failed to file a complaint on her behalf within the statute of limitations or at any time; and he did not inform her at any time that he failed to take care of the collection notices from Dr. Rodas.

 

LEGAL CONCLUSIONS

 

By failing to inform Wohl at any time that he had not made a claim on her behalf with any of the insurance companies involved in her personal injury matter; failing to inform her at any time that he failed to file a complaint on her behalf within the statute of limitations or at any time; and failing to inform her at any time that he failed to take care of the collection notices from Dr. Rodas, Respondent wilfully 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).

 

CASE NUMBER 05-0-05139

 

FACTS

 

COUNT FOUR

 

12. On June 8, 2005, Respondent signed a Stipulation Re Facts, Conclusions of Law and Disposition in State Bar Case Number 04-O-11253 (the "Stipulation"), agreeing to discipline consisting of 2 years stayed suspension, 60 days actual suspension and 3 years probation.

 

13. On June 10, 2005, The Honorable State Bar Court Judge Richard A. Platel approved and signed the Stipulation. The Stipulation and Order Approving was properly served on Respondent on June 13, 2005.

 

14. On October 13, 2005, the Supreme Court of California issued Order Number S135914 based on the Stipulation and ordered Respondent to comply with the discipline and conditions in the Stipulation. Pursuant to the Supreme Court Order, the effective date of the actual suspension was November 12, 2005. The October 13, 2005 Order was properly served on Respondent.

 

15. Accordingly, Respondent was not entitled to practice law from November 12, 2005 through January 1, 2006.

 

16. On November 22, 2005, an Offer of Compromise from Plaintiff Diana J. Spektor to Defendant Mt. San Jacinto Winter Park Authority, DBA Palm Springs Aerial Tramway was prepared and served on counsel for defendants by plaintiff Spektor which listed Respondent as counsel for plaintiff Spektor. Prior to the effective date of Respondent’s actual suspension, Respondent authorized Spektor to utilize his name as counsel for her as plaintiff. Respondent was not aware that Spektor had utilized his name as counsel for plaintiff after the effective date of his actual suspension.

 

17. Spektor is a friend of Respondent’s who requested that Respondent assist her in resolving her legal matter.

 

LEGAL CONCLUSIONS

 

By authorizing Spektor to utilize his name as counsel for plaintiff prior to the time he was actually suspended and failing to withdraw that authorization at the time of his actual suspension, Respondent held himself out as practicing or entitled to practice law when he was not an active member of the State Bar in wilful violation of Business and Professions Code sections 6125 and 6126 and thereby failed to support the laws of the State of California in violation of Business and Professions Code section 6068(a).

 

PENDING PROCEEDINGS.

 

The disclosure date referred to, on page one, paragraph A.(7), was April 5, 2006,

 

AUTHORITIES SUPPORTING STIPULATED DISCIPLINE

 

Standard 2.4(b) of the Standards For Attorney Sanctions For Professional Misconduct provides that a reproval or suspension is the appropriate discipline for the wilful failure to communicate with a client or wilful failure to perform legal services where the misconduct does not demonstrate a pattern. The degree of discipline also turns on the extent of the misconduct and degree of harm to the client.

 

Standard 2.6(a) provides that culpability for violations of Business and Professions Code section 6068 shall result in disbarment or suspension depending on the gravity of the offense or harm, if any, to the victim, with due regard to the purpose of imposing discipline as set forth in Standard 1.3.

 

Standard 1.3 provides that the primary purpose of discipline is the protection of the public, the courts and legal profession; maintenance of high professional standards; and the preservation of public confidence in the legal profession.

 

Standard 1.7(a) provides that where a respondent has suffered prior discipline, subsequent discipline shall be greater than the earlier discipline unless the earlier discipline is remote in time or minimal in severity.

 

Standard 1.6(a) provides that where two or more acts of professional misconduct are found or acknowledged in a single disciplinary proceeding, the sanction imposed shall be the more or most severe of the different applicable sanctions.

 

In this case, Standard 2.6 is the more severe of the applicable standards and provides for disbarment or suspension depending on the gravity of the harm, if any, to the victim.

 

Comment on Stipulated Discipline

 

As explained below, the gravamen of the misconduct addressed herein is similar in nature to, and occurred during the same time period as, the misconduct addressed in Respondent’s November 2005 discipline in case number 04-O-11253.

 

Disciplinary case number 04-O-11253 involved one client matter. The misconduct addressed in that case consisted of four violations, involving the rules 3-110(A) and 3-700(A)(2) of the Rules of Professional Conduct, as well as sections 6068(m) and 6106 of the Business and Professions Code. The misconduct occurred from 1998 to 2001.

 

The discipline imposed in 04-O-11253 included a 60 day actual suspension. Prior to case number 04-O-11253, Respondent had been in practice for over 40 years with no prior discipline.

 

As set forth above, this stipulation addresses one client matter and violations of rules 3-110(A) and 3-700(A)(2) of the Rules of Professional Conduct, as well as section 6068(m) of the Business and Professions Code. These violations occurred from 1997 to 2003. The violation of sections 6068(a), 6125 and 6126 are included as they occurred as a result of Respondent’s discipline in 04-O-11253 and Respondent was acting on behalf of a friend who knew Respondent was suspended, but requested his help in settling her case.

 

The parties submit that the discipline in case number 05-0-01082 of this matter should be considered in terms of what this matter would have added to the discipline imposed in the prior matter had the two cases been consolidated. See In the Matter of Sklar (Rev. Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602 at page 619.

 

The Supreme Court in Farnham v. State Bar (1976) 17 C.3d 605, imposed a six month actual suspension for respondent’s failure to perform legal services, failure to communicate and unauthorized practice of law in two client matters over a 14 month period of time. The respondent in Farnham had suffered a prior discipline of 30 days actual.

 

Considering case number 05-0-01082 of this matter and 04-O-11253 as one matter, Respondent has two client matters with misconduct occurring over a period of approximately 5 years. Respondent has no prior discipline. Based upon the number of acts of misconduct, period of time over which the misconduct occurred and no prior record of discipline, the parties submit that a 90 day actual suspension in this matter is consistent with Farnham and the Standards For Attorney Sanctions For Professional Misconduct.

 

The parties further submit that the intent and goals of Standard 1.3 and 1.7(a) are met by the imposition of a 90 day actual suspension when Respondent’s November 2005 discipline matter and the within matter are considered as a single period of misconduct involving two client matters.

 

Further, case number 05-0-05319 resulted from Respondent’s assisting a friend in resolving her case, as requested, so there was no harm to the friend as considered by standard 2.6. The stipulated discipline herein falls within the sanctions prescribed by both Standard 2.4(b) and the more severe Standard 2.6(a).

 

 

 


SIGNATURE OF THE PARTIES

Case Number(s): 05-O-01082; 05-O-05319

In the Matter of: Paul F. Fegen

 

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: Paul F. Fegen

Date: 4-27-06

 

Respondent’s Counsel: Paul J. Virgo

Date: 4/27/06

 

Deputy Trial Counsel: Suzan J. Anderson

Date: 5/3/06

 


ORDER

Case Number(s): 05-O-01082; 05-O-05319

 

In the Matter of: Paul F. Fegen

 

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: 5-9-06

 

 


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 May 10, 2006, I deposited a true copy of the following document(s):

 

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL SUSPENSION

 

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:

 

PAUL JEAN VIRGO

PO BOX 67682

LOS ANGELES, CA 90067-0682

 

checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

 

SUZAN J. ANDERSON, Enforcement, Los Angeles

 

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on May 10, 2006.

 

Signed by:

Tammy R. Cleaver

Case Administrator

State Bar Court