Case Number(s): 05-O-01245
In the Matter of: David M. Ward, Bar # 89734, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Charles T. Calix, Bar # 146853
Counsel for Respondent: Bar #,
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
Filed: March 29, 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 November 29, 1979.
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):
checked. costs added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. case ineligible for costs (private reproval).
<<not>> checked. costs to be paid in equal amounts prior to February 1 for the following membership years: (hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
IN THE MATTER OF: DAVID M. WARD
CASE NUMBER(S): 05-0-01245
David M. Ward (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.
FACTS.
On or about December 31, 2001, Respondent changed his status with the State Bar from active to inactive, and has not practiced law since that date.
In and around June 2001 through June 2005, Respondent operated a business titled "The Attorney Marketing Center," which marketed a system called "Referral Magic!" to attorneys to market their services, generate referrals, and develop new clients ("Referral Magic!"). The Attorney Marketing Center did not solicit prospective legal clients for Respondent, any member or law firm.
In a Referral Magic! advertisement that ran monthly from in or around January 2002 to in or around April 2002 in the California Bar Journal, Respondent described himself as "Southern California Lawyer" and as "Orange County sole practitioner, David M. Ward."
In a letter to "Fellow Attorney[s]" or "Fellow Lawyer[s]"posted on the Attorney Marketing Center internet cite from in or around April 2002 to in or about June 2005, Respondent described himself as "an attorney in southern California" and signed his name "Attorney at Law." His return address was listed "David M. Ward, Attorney at Law, ... "
CONCLUSIONS OF LAW,
By describing himself as an attorney: from in or around January 2002 to in or around April 2002 in a Referral Magic! advertisement in the California Bar Journal; and from in or around April 2002 to in or about June 2005 in advertisement posted on the Attorney Marketing Center interact cite; Respondent communicated information which was false and tended to confuse, deceive or mislead the public in violation of rule 1-400(D) of the Rules of Professional Conduct.
AUTHORITIES SUPPORTING DISCIPLINE.
In Farnham v. State Bar (1976) 17 Cal.3d 605, the Supreme Court discussed the unauthorized practice of law, and held that "[s]uch practice includes the mere holding out by a layman or a suspended attorney that he is practicing or is entitled to practice law. (ln re Cadwell (1975) 15 Cal.3d 762, 771 [125 Cal. Rptr. 889, 543 P.2d 257]; Bus. & Prof. Code, §§ 6125, 6126.)" See also, Bluestein v. State Bar, 13 Cal.3d 162, 175 fn. 13, quoting from Crawford v. State Bar, 54 Cal. 2d 659, 666.
In In re Cadwell, supra, 15 Cal.3d d at p. 771, the Court of Appeals held that "[a] member of the bar should not under any circumstances attempt to deceive another. (See Cutler v. State Bar, 71 Cal. 2d 241,252-253 [78 Cal. Rptr. 172, 455 P.2d 108]; McKinney v. State Bar, 62 Cal. 2d 194, 196 [41 Cal. Rptr. 665,397 P.2d 425].) ’An attorney’s practice of deceit involves moral turpitude.’ "
In the State Bar Act section on "Legal Advertising," it provides that the term "’Lawyer’ means a member of the State Bar or a person who is admitted in good standing and eligible to practice ..." and that ‘[n]o advertisement shall contain any false, misleading, or deceptive statements ... " Business and Professions Code sections 6157(b) and 6157.1.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was February 23, 2007.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of February 23, 2007, the estimated prosecution costs in this matter are approximately $1,983. 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.
MITIGATING CIRCUMSTANCES.
No Prior Discipline.
Respondent was admitted to the State Bar on November 29, 1970, and his advertising violations were not deemed serious.
No Harm.
Respondent’s business, The Attorney Marketing Center: did not solicit prospective legal clients for Respondent, any member or law fin-a; did not market legal services or even a legally related product; did not market its product to the general public; marketed its product to attorneys; and offered a money back guarantee to purchasers. None of the purchasers of the product complained to the State Bar about Respondent, the advertisement, or the product.
Candor/Cooperation/Remorse.
Respondent could not display spontaneous candor and cooperation with victims of his misconduct as there were no known victims. However, Respondent displayed candor, cooperation, and remorse during disciplinary this proceeding by immediately removing any reference to being an attorney in his advertisements once his improper use of the title attorney was demonstrated to him.
Good Faith.
Respondent acted in good faith in that he did not know at the time that he advertised himself as an attorney that only active members could describe themselves as attorneys.
STATE BAR ETHICS SCHOOL EXCLUSION.
It is recommended that Respondent be excluded from attending State Bar Ethics School since on or about December 31, 2001, Respondent changed his status with the State Bar from active to inactive, has not practiced law since that date, and does not anticipate practicing law in the future. Respondent agrees to provide proof of attendance of Ethics School and passage of the test given at the end of that session if he seeks to return to active status prier to or during the period of reproval.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION EXCLUSION.
It is recommended that Respondent be excluded from taking and passing the Multistate Professional Responsibility Examination ("MPRE") since on or about December 31, 2001, Respondent changed his status with the State Bar from active to inactive, has not practiced law since that date, and does not anticipate practicing law in the future. Respondent agrees to provide proof of the MPRE if he seeks to return to active status prior to or during the period of reproval.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-01245
In the Matter of: David M. Ward
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: David M. Ward
Date: 3/14/07
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Charles t. Calix
Date: 3-9-07
Case Number(s): 05-O-01245
In the Matter of: David M. Ward
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:
<<not>> checked. The stipulated facts and disposition are APPROVED AND THE REPROVAL IMPOSED.
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.
See Attachment.
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: Donald F. Miles
Date: 3/28/07
Attachment to Order
1. On page 9 of the stipulation, under the heading, "No Prior Discipline," "November 29, 1970" is deleted, and in its place is inserted "November 29, 1979".
2. On page 9 of the stipulation, the last sentence under the heading "State Bar Ethics School Exclusion" is deleted, and in its place is inserted the following sentence:
If respondent desires to return to active status prior to or during the two year reproval period, he must provide to the Office of Probation proof of attendance of Ethics School and passage of the test given at the end of that session prior to paying his active membership dues and returning to active status.
3. On page 10 of the stipulation, the last sentence under the heading "Multistate Professional Responsibility Examination Exclusion" is deleted, and in its place is inserted the following sentence:
If respondent desires to return to active status prior to or during the two year reproval period, he must provide to the Office of Probation proof of passage of the Multistate Professional Responsibility Examination prior to paying his active membership dues and returning to active status.
[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 , I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING PUBLIC REPROVAL
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 MARTIN WARD #330
31441 SANTA MARGARITA PKWY
RANCHO SANTA MARGARITA, CA 92688
:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
CHARLES CALIX, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 29, 2007.
Signed by:
Tammy R. Cleaver
Case Administrator
State Bar Court