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
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted June 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.
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.
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
<<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
<<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.
<<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.
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
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
[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