Case Number(s): 05-O-02610, 05-0-03420, 05-0-04154, 06-0-10567
In the Matter of: Thomas Patrick Hogan, Bar # 95055, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erica L.M. Dennings, Bar # 145775
Counsel for Respondent: Michael E. Wine, Bar # 58657
Submitted to: Assigned Judge State Bar Court Clerk’s Office San Francisco
Filed: April 25, 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 December 16, 1980.
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 15 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).
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.
See Attachment.
Case Number(s): 05-O-2610, 05-0-3420, 05-0-4154, 06-0-10567
In the Matter of: Thomas Patrick Hogan (#95055) A Member of the State Bar
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a Notice of Disciplinary Charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere shall be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court shall find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based. (Added by Stats. 1996, ch. 1104.) (emphasis supplied)
Rule 133, Rules of Procedure of the State Bar of California STIPULATION AS TO FACTS, CONCLUSIONS OF LAW AND DISPOSITION
(a) A proposed stipulation to facts, conclusions of law, and disposition must set forth each of the following:
(5) a statement that Respondent either
(i) admits the facts set forth in the stipulation are true that he or she is culpable of violations of the specified statutes and/or Rules of Professional Conduct or
(ii) pleads nolo contendere to those facts and violations. If the Respondent pleas nolo contendere, the stipulation shall include each of the following:
(a) an acknowledgement that the Respondent completely understands that the plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his or her culpability of the statutes and/or Rules of Professional Conduct specified in the stipulation; and
(b) if requested by the Court, a statement by the Deputy trial counsel that the factual stipulations are supported by evidence obtained in the State Bar Investigation of the matter (emphasis supplied)
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 133(a)(5) of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent: Thomas Hogan
Date: 4/2/07
IN THE MATTER OF:
Thomas Patrick Hogan, (number 95055)
CASE NUMBER(S):
05-O-02610 (Preston Matter)
05-0-03420 (Gildea Matter)
05-0-04154 (Rambaran Matter)
06-0-10567 (Park Matter)
1. 05-0-02610 (Preston Matter)
On December 3, 2004, Thomas and Olga Preston ("the Prestons") employed respondent to represent them in a civil matter stemming from a real estate transaction. The Prestons essentially wanted specific performance on a real estate contract to purchase a house.
On or about December 30, 2004, respondent filed a complaint on behalf of the Prestons, Thomas Preston and Olga Preston v. David F. Fergenson, Wenchi Wang, Investment I Realty and Management Co., lnc., et al, Alameda Superior Court case number VG 04191874. Respondent also filed a notice of lis pendens on that date.
At some point after the case was filed, the defendants sold the subject property to someone other than the Prestons. After the property was sold, the Prestons were no longer interested in pursuing the action against the defendants as they could no longer purchase the property.
Prior to March 24, 2005, the Prestons communicated with respondent about the direction of the case. They were concerned with the possibility that the defendants were only interested in dragging out the litigation and churning attorney’s fees. The Prestons told respondent that if he could get the case in a posture for mediation, and quick settlement, then that would be acceptable. If not, then they did not want to continue the case. On several occasions during the case, Mr. Preston told respondent not to proceed with the case. Respondent continued to pursue the case by, inter alia, filing an amended complaint and persuading the Prestons to see the case through the mediation process in the belief that he was protecting their rights.
On April 4, 2005, the Prestons wrote to respondent requesting that he dismiss the case immediately. The Prestons enclosed a signed substitution of attorney and requested that respondent sign and file the substitution of attorney with the court. Respondent did not sign and file the substitution of attorney.
On or about April 8, 2005, respondent wrote the Prestons acknowledging receipt of their numerous requests that he dismiss the litigation. In the letter, respondent stated, inter alia, that the Prestons had an obligation to see the case through mediation and have it resolved there.
Thereafter, respondent continued to represent the Prestons, including filing documents and making court appearances.
On or about June 6, 2005, the Prestons sent a letter to the assigned judge in the matter and to defense counsel expressing their desire to drop the case. The same day, respondent sent a letter to the Prestons advising them of an upcoming motion to compel discovery responses.
On or about June 9, 2005, the Prestons wrote respondent a letter reiterating their desire for him to drop the case.
On or about June 14, 2005, respondent filed a motion to be relieved as counsel.
On or about July 22, 2005, respondent’s motion for relief as counsel was granted:
By continuing to pursue the case in the belief he was protecting his clients interests, after they told him to dismiss the case, respondent recklessly failed to perform legal services competently in wilful violation of rule 3-110(A) of the Rules of Professional Conduct.
2. 05-0-03420 (Gildea Matter)
On or about January 19, 2005, Craig Gildea ("Gildea") and Beverly Angel ("Angel") employed respondent to represent Gildea in a business dispute against the owners of CKS, Inc., a business Gildea and Angel had been running.
Respondent took steps to pursue the case, including, inter alia, filing a complaint and setting up and participating in a mediation. The case did not resolve at the mediation.
On or about April 7, 2005, Charles Brunn ("Brunn"), defense counsel, wrote a letter to respondent confirming an agreement to grant the defendants an extension up to, and including May 6, 2005, to file a responsive pleading in the matter.
On or about April 10, 2005, Gildea and Angel wrote a letter to respondent discharging him and asking that he do nothing further on the case. Gildea and Angel also requested that respondent return their file documents.
On or about April 11, 2005, respondent wrote to Gildea and Angel, acknowledging their April 10, 2005 letter discharging him and enclosed a substitution of attorney form. Gildea and Angel did not return the substitution of attorney form fight away.
On or about May 6, 2005, Brunn wrote a letter to respondent confirming a May 6, 2005 telephone conversation in which respondent agreed to grant the defendants an extension up to and including June 6, 2005 to file a responsive pleading in the matter.
Respondent did not notify Gildea and Angel that he had agreed to extend the time for defendants to file a responsive pleading.
On May 19, 2005, Gildea and Angel wrote to respondent requesting their file and enclosed the signed substitution of attorney form.
On May 20, 2005, respondent wrote to Gildea and Angel, acknowledging the receipt of their May 19, 2005 letter. Respondent informed them that he had filed a motion to be relieved as counsel on April 27, 2005, and that the hearing on the motion was scheduled for June 14, 2005.
On May 24, 2005, respondent filed the substitution of attorney form signed on May 23, 2005.
On or about May 26, 2005, Gildea, unaware that respondent had agreed to an extension of time to June 6, 2005 for the defendants to file a response, filed a request for entry of default and for entry of judgment against defendants.
By not informing Gildea and Angel that he had agreed to extend defendants’ time to file a responsive pleading, respondent 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 section 6068(m).
3. 05-0-04154 (Rambaran Matter)
On or about March 16, 2004, Gary and Meena Rambaran ("the Rambarans") employed respondent to represent them in a civil matter, Gary Rambaran v. Kuldeep Dharmi, Stanislaus County Superior Court case number 310449. The defendants filed a cross complaint against the Rambarans. Respondent represented the Rambarans through the trial.
In or about October 2004, the judge issued a judgment in favor of defendants in the amount of $53,167.57 plus attorney’s fees. Respondent informed the Rambarans that the defendants would file a memorandum of costs in which they would specify the amount of attorney’s fees they were seeking. There was a bond in the amount of $100,000 issued by a surety company and secured by a lien against the Rambarans’ home.
In or about December 2004, the Rambarans asked respondent about the status of the case and whether he had received the amount of costs. Respondent told the Rambarans he had heard nothing. Respondent told the Rambarans that until the defendants/cross complainants filed their judgment, they didn’t have to do anything. Respondent did not explain to the Rambarans that he was not going to represent them or take any action with regard to the memorandum of costs. Respondent was still attorney of record and did not file a substitution of attorney substituting out of the case.
On or about January 11, 2005, defendants/cross complaints filed a judgment after trial by superior court. The judgment was served on respondent.
On January 18, 2005, defendants filed a Memorandum of Costs, listing costs of $52,914.65. Respondent was served with the Memorandum of Costs.
On or about February 14, 2005, defendants/cross complainants filed a notice of entry of judgment. Respondent was served with the notice. Respondent did not inform the Rambarans that he had received the memorandum of costs. Respondent took no steps to protect the Rambarans’ interests with respect to the judgment or memorandum of costs, including filing an opposition or objection to the memorandum of costs. Respondent remained attorney of record for the Rambarans and took no steps to substitute out of the case.
On or about May 16, 2005, Patty Lei ("Lei"), a representative from HCC Surety Group, called respondent and left two messages regarding the claim of the defendants to execute payment on the bond. Respondent failed to return Lei’s call.
On or about May 17, 2005, Lei wrote respondent a letter asking that he respond in writing to the claim defendants were making on the bond.
On or about May 18, 2005, Larry Menton ("Menton"), a paralegal in respondent’s office returned Lei’s call. He told Lei to contact the Rambarans directly.
On or about May 18, 2005, Menton called the Rambarans and informed them of the judgment and the defendants’ claim on the surety. Menton sent the Rambarans a copy of the judgment via facsimile. Prior to receiving the judgment from Menton, the Rambarans had not seen a copy of the judgment. Sometime later, the Rambarans got a copy of the memorandum of costs from the court file.
By the time the Rambarans saw the judgment and memorandum of costs, the time to oppose the memorandum of costs had lapsed.
Although respondent had conversations with the Rambarans about the memorandum of costs and the judgment, he did not confirm in writing that he was taking no further action regarding either the memorandum of costs or judgment.
By not confirming in writing that he was taking no further action regarding either the memorandum of costs or judgment, respondent failed to keep a client informed of significant developments in a matter in which Respondent had agreed to provide legal services, in wilful violation of B&PC 6068(m).
4. 06-0-10567 (Park Matter)
In or about October 2004, Joyce Park ("Park") employed respondent to help her halt a foreclosure of a home in Turlock which she owned jointly with her granddaughter, Lynn Perry, and her granddaughter’s husband, Derek Perry ("Turlock home"). On or about September 16, 2004, the Perrys had filed for bankruptcy. That petition disclosed the Turlock home had a secured debt. The bankruptcy proceeding temporarily halted the foreclosure process. Respondent advised Park that she would make a profit from the sale of the Turlock home and therefore, it would be worth her while to save the Turlock home from foreclosure.
On or about November 24, 2004, the bankruptcy trustee filed a motion to sell real property of the estate to Park. Park bought the bankruptcy estate’s interest in the Turlock home for $8,000. (Park’s son, Gary Park ("Gary"), had loaned her the $8,000 to purchase the estate’s interest in the Turlock home). Park then planned to purchase the home from the secured creditor in order to resell it. Respondent advised Park that her son, Gary, should co sign the loan as she could not qualify for a loan by herself due to credit issues. Gary agreed to cosign the loan. However, the loan documents listed Gary as the sole borrower. Respondent’s company, Benjamin Financial, secured the loan for Gary. The closing statement showed that Benjamin Financial received a fee of $16,487 from the loan transaction. Respondent received $6,750 in legal fees from the transaction. That amount included $5,850 in materials for improving the Turlock home.
The Turlock home was listed with respondent’s realty company, Lincoln Realty, for a time although the property was ultimately listed and sold by another realtor. At no time during the course of representing Park did respondent advise her in writing that she could seek the advice of an independent lawyer of her choice; nor did respondent give her a reasonable opportunity to seek that advice with regard to securing the loan with Benjamin Financial and listing the home with his realty company.
By not advising Park in writing that she could seek the advice of an independent lawyer of her choice and by not giving her a reasonable opportunity to seek that advice with regard to securing the loan with respondent’s financial services company and listing the home with his realty company, respondent wilfully violated role 3-300 of the Rules of Professional Conduct.
AUTHORITIES SUPPORTING DISCIPLINE
Standard 2.4(b) states in pertinent part "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 a reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client."
Standard 2.8 states in pertinent part "Culpability of a member of a wilful violation of rule 3-300, Rules of Professional Conduct, shall result in suspension unless the extent of the member’s misconduct and the harm to the client are minimal, in which case, the degree of discipline shall be reproval.
Respondent’s misconduct in the current matter was less serious than that of the respondent in In the Matter of Lane (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 735 in which the respondent was found culpable of violating rule 3-300 and repeated violations of rule 3-310, respondent received sixty days actual suspension.
PENDING PROCEDURES
The disclosure referred to, on page one, paragraph (A)(6), was March 14, 2007.
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.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
As part of this Stipulation, respondent has agreed to attend and provide proof of passage of the Multistate Professional Responsibility Examination, within one (1) year from the effective date of discipline.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-02610, 05-O-03420, 05-O-04154, 06-O-10567
In the Matter of: Thomas Patrick Hogan (#95055)
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: Thomas Patrick Hogan
Date: 4/2/07
Respondent’s Counsel: Michael E. Wine
Date: 4/6/07
Deputy Trial Counsel: Erica L.M. Dennings
Date: 11 April 2007
Case Number(s): 05-0-261 o, 05-0.3420, 05-0-4154, 06-0-10567
In the Matter of: Thomas Patrick Hogan (#95055)
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 REPROVAL IMPOSED.
<<not>> 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.
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: Pat McElroy
Date: April 24, 2007
[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 San Francisco, on April 25, 2007, 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 San Francisco, California, addressed as follows:
MICHAEL E. WINE
301 N. LAKE AVE #800
PASADENA CA 91101
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERICA DENNINGS, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on April 25, 2007.
Signed by:
George Hue
Case Administrator
State Bar Court