Case Number(s): 05-O-01451-RAP
In the Matter of: Russell H. Takasugi, Bar # 118792, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Jean Cha, Bar # 228137
Counsel for Respondent: Bar #
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 11, 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 12 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.
checked. costs to be paid in equal amounts prior to February 1 for the following membership years: 2008 & 2009 (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.
State Bar Court Case # 94-0-19509. Date prior discipline effective February 8, 1996. Rules of Professional Conduct rule 3-110(A), 3-700(A)(2}, 3-700(D)(2), and Business and Professions Code section 6068(m) violations. Degree of prior discipline Private Reproval.
None
None
Continuing Legal Education.
Respondent shall successfully complete six (6) hours of live-instruction continuing legal education (CLE) courses in the areas of law office management and/or attorney-client relations. Respondent shall provide proof of completion within six (6) months of the effective date of the disciplinary order imposed as a result of this stipulation re facts, conclusions of law and disposition to the Office of Probation of the State Bar of California.
The six (6) hours of continuing legal education courses shall not count toward Respondent’s completion of California’s Minimum Continuing Legal Education (MCLE) requirements.
IN THE MATTER OF RUSSELL H. TAKASUGI
CASE NUMBER: 05-O-01451-RAP
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of wilfully violating Business and Professions Code section 6068(i), by failing to cooperate and participate in a disciplinary investigation pending against Respondent.
1. On March 28, 2005, the State Bar opened an investigation, case number 05-0-01451 (the "investigation matter").
2. On June 23, 2005 and August 3, 2005, a State Bar investigator wrote to Respondent regarding the investigation matter. The investigator’s letters were placed in their respective sealed envelopes correctly addressed to Respondent at his State Bar of California membership records address. The letters were properly mailed by first class mail, postage prepaid, by depositing for collection by the United States Postal Service in the ordinary course of business. The United States Postal Service did not return the investigator’s letter as undeliverable or for any other reason. Respondent received the letters.
3. The letters requested that Respondent respond in writing to specific allegations of misconduct being investigated by the State Bar in the investigation matter. Respondent did not respond to the investigator’s June 23, 2005 or August 3, 2005 letters or otherwise communicate with the investigator.
4. On October 14, 2005, the investigation matter was reassigned to another State Bar investigator (the "second investigator").
5. On October 17, 2005, the second investigator called Respondent at his State Bar membership records telephone number. The second investigator asked Respondent if he had received the State Bar’s letters and if he intended to respond to them. Respondent informed the second investigator that he had received the letters but that he could not locate his complete files in the matter from file storage. The second investigator and Respondent discussed the allegations and Respondent indicated he would respond to the letters and send the second investigator some additional information after retrieving his files.
6. On December 21, 2005, when the second investigator had not received any written response or documentation from Respondent, the second investigator wrote to Respondent again regarding the investigation matter. The second investigator’s letter was placed in a sealed envelope correctly addressed to Respondent at his State Bar of California membership records address. The letter was properly mailed by first class mail, postage prepaid, by depositing for collection by the United States Postal Service in the ordinary course of business. The United States Postal Service did not return the second investigator’s letter as undeliverable or for any other reason. Respondent received the letter.
7. The second investigator’s December 21, 2005 letter again requested that Respondent respond in writing to specified allegations of misconduct being investigated by the State Bar in the investigation matter. Respondent did not respond in writing to the second investigator’s December 21, 2005 letter or otherwise communicate with the investigator after the October 17, 2005 telephone conversation.
8. By failing to provide a written response to the allegations in the investigation matter or otherwise cooperate or participate in the investigation of the investigation matter, Respondent failed to cooperate in a disciplinary investigation in wilful violation of Business and Professions Code section 6068(i).
9. After the Notice of Disciplinary Charges was filed, Respondent eventually located his complete files in the matter. Respondent provided the State Bar all relevant documentation and information. However, Respondent should have responded in writing to the State Bar in response to the letters sent out by the investigators prior to the filing of the Notice of Disciplinary Charges.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was October 19, 2006.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. 05-O-01451; Count One; Alleged Violation Rules of Professional Conduct rule 3-110(A);
Case No. 05-0-01451; Count Two; Alleged Violation Rules of Professional Conduct rule 3-700(A)(2);
Case No. 05-0-01451; Count Three; Alleged Violation Business and Professions Code section 6068(m)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of October 18, 2006, the estimated prosecution costs in this matter are approximately $3,654.00. Respondent acknowledges that this figure is an estimate only and that it does not include incidental expenses (see Bus. & Prof. Code section 6068.10(c)) or taxable costs (see C.C.P. section 1033.5(a)) which will be included in a 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.
AUTHORITIES SUPPORTING DISCIPLINE.
Business and Professions Code section 6068(i) makes a failure to cooperate with a State Bar investigation independent grounds for discipline. (In the Matter of Lilley (1991) 1 Cal. State Bar Ct. Rptr. 476, 488.)
Where there is a violation of Business and Professions Code section 6068(i), disbarment or suspension is appropriate where the gravity of the offense or the harm, if any, to the victim, is weighed against the purposes of imposing discipline as set forth in Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct of the Rules of Procedure of the State Bar of California, div. IV ("Standard"). (Standard 2.6(a).) The purposes of sanctions for 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. (Standard 1.3.) In order to properly fulfill the purposes of lawyer discipline, we must review the nature and extent of the facts and circumstances surrounding the misconduct in assessing the level of discipline warranted by Respondent’s misconduct. (Tarver v. State Bar (1984) 37 Cal.3d 2122, 133,207 Cal. Rptr. 302, 688 P.2d 911; Chadwick v. State Bar (1989) 49 Cal.3d 103, 111 .) Here, Respondent failed to cooperate in a State Bar investigation. The gravity of this offense is serious because it is the duty of an attorney to cooperate and participate in any disciplinary investigation or other regulatory or disciplinary proceeding pending against the attorney. The factors in mitigation are outweighed by the two reprovals.
Pursuant to Standard 1.7(a), where a respondent has a record of prior discipline, further findings of professional misconduct by that respondent warrant the imposition of further discipline which is greater than that imposed in the prior proceeding. Since the prior proceeding was a reproval, the appropriate sanction is suspension. Standard 1.7(b) calls for disbarment where a respondent has a prior record of two disciplinary proceedings. However, there is no case law supporting disbarment where the third disciplinary proceeding is a failure to cooperate with a State Bar investigation. Disbarment cases usually pertain to more egregious misconduct and commonly where there is more than one client matter. Also, Respondent’s priors were both reprovals. Thus, Standard 1.7(b) is severe in these circumstances. Based on the facts and circumstances surrounding this matter, thirty (30) days of actual suspension and two (2) years of probation with a two-year stayed suspension is adequate to protect the public.
OTHER CIRCUMSTANCES.
Since the filing of the Notice of Disciplinary Charges, Respondent has been highly cooperative. Respondent has finally provided information to satisfy the State Bar’s underlying inquiry. Respondent has acknowledged his misconduct. Respondent now recognizes his responsibility for the correspondence sent to his office and understands his duties as a member to participate in a State Bar investigation. Respondent understands that it is of the utmost importance to promptly and attentively respond to State Bar investigations in writing. Respondent now understands that verbal responses to State Bar investigations may be insufficient when a request for a written response is made.
STATE BAR ETHICS SCHOOL.
Because Respondent has agreed to attend State Bar Ethics School as part of this stipulation, Respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-01451-RAP
In the Matter of: Russell H. Takasugi
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: Russell H. Takasugi
Date: 11/8/06
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Jean Cha
Date: 11-13-06
Case Number(s): 05-O-01451-RAP
In the Matter of: Russell H. Takasugi
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. Honn
Date: 11/29/06
[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 November 30, 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:
RUSSELL H. TAKASUGI
1791 ERRINGER RD #202
SIMI VALLEY, CA 93065
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
JEAN CHA , Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 30, 2006.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court