Case Number(s): 05-O-01378-RAP
In the Matter of: Jeffrey Charles Swartzlander, Bar # 122210, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Fumiko Kimura, Bar # 208763
Counsel for Respondent: Bar #
Submitted to: assigned judge State Bar Court Clerk’s Office Los Angeles
Filed: April 28, 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.
1. Respondent is a member of the State Bar of California, admitted 12/31/1985.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 14 pages.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
<<not>> checked. costs added to membership fee for calendar year following effective date of discipline.
checked. costs to be paid in equal amounts prior to February 1 for the following membership years: for the following two membership years (hardship, special circumstances or other good cause per rule 282, 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.
IN THE MATTER OF: Jeffrey Charles Swartzlander
CASE NUMBER: 05-O-01378-RAP
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.
Respondent was admitted to the practice of law in the State of California on December 31, 1985, and was a member at all times pertinent to these charges.
Count One: Failure to Comply With Laws - Unauthorized Practice of Law
Facts
Respondent failed to pay the required State Bar of California membership fees for 2004, which were due in early 2004. Accordingly, on or about May 21, 2004, the Membership Records Department of the State Bar of California sent Respondent a letter informing him that he would be suspended from the practice of law if he failed to pay the required State Bar of California membership fees. The May 21, 2004 letter notified Respondent that the effective date of suspension was expected to be September 16, 2004. The letter was properly mailed to Respondent at his official State Bar membership records address. Respondent received the May 21, 2004 letter but failed to pay his membership dues.
On or about August 27, 2004, the California Supreme Court entered an order (S126962), effective September 16, 2004, suspending Respondent from the practice of law as a result of Respondent’s failure to pay State Bar of California membership fees ("Supreme Court Order").
On or about August 27, 2004, the State Bar’s Membership Records Department properly served a copy of the Supreme Court Order on Respondent at his State Bar membership records address. Respondent received the August 27, 2004 Supreme Court Order.
The August 27, 2004 Supreme Court Order became effective on September 16, 2004. Pursuant to the August 27, 2004 Supreme Court Order, Respondent was suspended from the practice of law from September 16, 2004 until October 15, 2004.
Respondent knew that he was suspended and therefore not entitled to practice law from September 16, 2004 until October 15, 2004.
In or about 1994, Respondent had prepared a Revocable Trust ("Trust") on behalf of Mary Masters ("Masters"). On or about September 23, 2004, Masters hired Respondent to update the Trust. On that date, Masters met with Respondent at his office to discuss the Trust updates. In addition, Masters specifically asked Respondent to make the changes to the Trust by October 23, 2004. Respondent agreed to do so.
On or about September 23, 2004, Masters paid Respondent $375.00 in advanced legal fees to update her Trust. On or about September 24, 2004, Respondent deposited the check for $375.00 into his bank account.
While actually suspended from the practice of law, Respondent agreed to update Masters’s Trust and collected $375.00 in advanced legal fees from Masters. Respondent failed to inform Masters that he was not an active member of the State Bar. Rather, he held himself out as an attorney entitled to practice law.
On or about October 14, 2004, Respondent issued a check to the State Bar of California for the payment of his unpaid membership dues.
On or about October 15, 2004, the State Bar of California received Respondent’s check and issued a letter to Respondent informing him that his suspension had been terminated as of October 15, 2004.
Conclusions of Law
By holding himself out to Masters as entitled to practice law, by agreeing to update Masters’s Trust, and by accepting an advanced fee for legal services, all when he was not an active member of the State Bar of California, 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 this State in wilful violation of Business and Professions Code section 6068(a).
Count Two: Failure to Perform with Competence
Facts
The facts listed under Count One are hereby incorporated by reference. Because Respondent was not entitled to practice law from September 16, 2004 through October 14, 2004, Respondent was not entitled to perform legal services for Masters during that period. However, Respondent became entitled to practice law again on October 15, 2004. Respondent had agreed to complete the updates to Masters’ Trust by October 23, 2004. However, even after Respondent became entitled to practice law again, he failed to perform the legal services he had agreed to perform for Masters.
Between on or about September 23, 2004 and on or about October 23, 2004, Masters called Respondent at his office nine times, leaving messages each time asking Respondent to return her calls regarding her matter. Respondent received the messages but failed to return any of Masters’s calls.
By on or about October 27, 2004, Masters had neither heard from Respondent nor received an updated Trust from him. Accordingly, on or about October 27, 2004, Masters sent a letter to Respondent addressing his failure to perform and failure to return her telephone calls. In her October 27, 2004 letter, Masters advised Respondent that she had to hire a new attorney to update her Trust. In addition, in the October 27, 2004 letter, Masters requested a refund of the $375.00 in advanced attorney fees. The letter was mailed, via the United States Postal Service, certified mail - return receipt requested, postage prepaid in an envelope addressed to Respondent at his State Bar membership address. On or about October 29, 2004, Respondent received the letter but failed to respond.
On or about March 23, 2005, Masters e-mailed Respondent at his e-mail address, lawverieff@aol.com. In the March 23, 2005 e-mail, Masters asked Respondent to return her file. Respondent received the e-mail but failed to respond.
On or about June 23, 2005, Masters sent another letter to Respondent in which she again asked Respondent to return her file and refund the fees by July 7, 2005. The letter was mailed, via the United States Postal Service, first class postage prepaid in an envelope addressed to Respondent at a State Bar Membership address. The letter was not returned as undeliverable or for any other reason. Respondent received the June 23, 2005 letter but failed to respond.
Conclusions of Law
By failing to update Masters’s trust by October 23, 2004 as he agreed to do when he was hired and by failing to perform any legal services on Masters’s behalf even after he became entitled to practice law again on October 15, 2004, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in wilful violation of rule 3-110(A) of the Rules of Professional Conduct.
Count Three: Failure to Release File
Facts
The facts under Count Two are incorporated by reference. On or about November 22, 2005, Respondent returned the client file to Masters after the Notice of Disciplinary Charges was filed against him. Despite Masters’ requests, Respondent failed to promptly release the client file to Masters upon termination of employment.
Conclusions of Law
By not promptly releasing the client file to Masters despite her requests, Respondent failed, upon termination of employment, to release promptly to a client, at the request of the client, all the client papers, in wilful violation of rule 3-700(D)(1) of the Rules of Professional Conduct.
Count Four: Failure to Refund Unearned Fees
Facts
The facts under Count Two are incorporated by reference. By ceasing all communication with Masters and by failing to perform any services on her behalf, Respondent did not earn any of the fees paid by Masters. In or about January 2005; Masters submitted a complaint to the State Bar of California regarding Respondent’s failure to perform, failure to communicate, failure to turn over the file and failure to return unearned fees. State Bar investigator Sandra Burnett first contacted Respondent about the complaint received from Masters in or about April 2005.
On or about August 31, 2005, approximately four months after the State Bar had notified him of Masters’s complaint, Respondent issued a check to Masters for $412.50 as a refund of the $375.00 in unearned fees plus interest.
Conclusions of Law
By not timely refunding the $375.00 in unearned fees to Masters despite her requests, Respondent failed to promptly refund unearned fees in wilful violation of rule 3-700(D)(2) of the Rules of Professional Conduct.
Count Five: Failure to Respond to Client Inquiries
Facts
The facts under Count Two are incorporated by reference. Respondent failed to communicate with Masters at any time after September 23, 2004 when she hired him until he refunded her unearned fees in August 2005.
Conclusions of Law
By failing to respond to Masters’s letters, telephone calls and email, Respondent failed to respond to Masters’s reasonable status inquiries, in wilful violation of Business and Professions Code section 6068(m).
PENDING PROCEEDINGS
The disclosure date referred to, on page one, paragraph A (7), was February 7, 2006.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of February 7, 2006, the estimated prosecution costs in this matter are approximately $2,296.00. Respondent acknowledges that this figure is an estimate only. 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.
AUTHORITIES SUPPORTING DISCIPLINE
Standards for Attorney Sanctions for Professional Misconduct, Title IV of the Rules of Procedure of the State Bar of California ("Standard")
Standard 1.3 states that the primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession. Rehabilitation of a member is a permissible object of a sanction imposed upon the member but only if the imposition of rehabilitative sanctions is consistent with the above-stated primary purposes of sanctions for professional misconduct.
Standard 2.4 (b) provides that culpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client. Respondent failed to update the Trust for Masters and failed to respond to Masters’ inquiries thereafter despite her numerous attempts to contact Respondent. As a result, Masters was forced to retain a new attorney to update her Trust.
Standard 2.6 (a) provides that a violation of the Business and Professions Code, section 6068 shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3. Respondent wilfully violated sections 6125 and 6126 of the Business and Professions Code, and thus failed to support the laws of this State in wilful violation of Business and Professions Code section 6068(a), by holding himself out to Masters as entitled to practice law, by agreeing to update Masters’ Trust, and by accepting an advanced fee for legal services, all when he was not an active member of the State Bar.
Standard 2.10 states that culpability of a member of a violation of any provision of the Business and Professions Code not specified in these standards or of a wilful violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3. Respondent failed to refund unearned fees when requested by Masters and did not refund the unearned fees until after the State Bar investigator contacted Respondent. Respondent also failed to return the client file to Masters when requested and did not return the file until after the Notice of Disciplinary Charges was filed.
Case Law
Van Sloten v. State Bar (1989) 48 Cal.3d 921. The respondent was found culpable of a single act of failing to perform services without serious consequences to his client and received a six-month stayed suspension with one year probation. The respondent was admitted in 1977 and had no prior record of discipline.
OTHER FACTORS IN CONSIDERATION
Respondent was admitted to the practice of law in California on December 31, 1985 and he has no prior disciplinary record.
On November 23, 2005, the State Bar met with Respondent regarding this matter. Respondent acknowledged that he was culpable of all charges as he did in his response to the NDC. Respondent was extremely remorseful and stated that he should not have done what he did to Masters.
Respondent refunded the unearned fees plus interest to Masters before the Notice of Disciplinary Charges was filed.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-01378-RAP
In the Matter of: Jeffrey Charles Swartzlander
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: Jeffrey Charles Swartzlander
Date: April 4, 2006
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Fumiko Kimura
Date: 4-6-06
Case Number(s): 05-O-01378-RAP
In the Matter of: Jeffrey Charles Swartzlander
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: Richard A. Platel
Date: 04-18-06
[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 April 28, 2006, 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:
JEFFREY CHARLES SWARTZLANDER
9974 SCRIPPS RANCH BLVD # 355
SAN DIEGO, CA 92131
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
FUMIKO KIMURA, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on April 28, 2006.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court