Case Number(s): 05-O-04023
In the Matter of: Miguel A. Chacon, Bar # 99469, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Bar # 214209
Counsel for Respondent: Douglas L. Rappaport, Bar # 136194
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
Filed: July 25, 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 December 1, 1981.
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 10 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 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.
(12) Law Office Management Condition:
Within 60 days of the effective date of the discipline herein, respondent must consult with Rita DeAngelis of Law Office Management, 660 Market Street #200, San Francisco, CA 94104, (415) 397-4039, to develop a law office management plan. Within 75 days of the effective date of the discipline herein, respondent must submit a statement, under penalty of perjury, to the Office of Probation stating that he is in compliance with the law office management plan. In every written quarterly report submitted to the Office of Probation, respondent must state under penalty of perjury whether he complied with the law office management plan. In addition, he must attach to every written quarterly report a report from Ms. DeAngelis stating that she has reviewed respondent’s practice and that respondent is in compliance with the law office management plan.
(13) Fee Agreement Condition:
Respondent must put all attorney-client fee agreements in writing. Respondent must state under penalty of perjury whether he complied with this condition in the written quarterly reports submitted to the Office of Probation.
FACTS AND CONCLUSIONS OF LAW
1. On or about May 22, 2002, Josefina Mendoza’s home burned down. She engaged the services of a private adjuster to assist her with her claim with the insurance company. All checks from the insurance company went through the private adjuster. At some point, Ms. Mendoza became aware that she might not have received money that she believed she was entitled to receive.
2. On or about March 13, 2003; Ms. Mendoza employed respondent to represent her against the private adjuster and/or insurance company over the amount of money she received on her claim. On or about March 13, 2003, Ms. Mendoza paid respondent $1,000.00 of the $2,000.00 fee. At the initial meeting, respondent told Ms. Mendoza that he would first send a demand letter, and, if that produced no results, would file a lawsuit against the private adjuster and/or insurance company. Ms. Mendoza urged respondent to initiate the process because she was concerned that she had little time to pursue the case. Respondent told Ms. Mendoza that the matter would be resolved in a couple of months.
3. Thereafter, respondent took no steps to pursue Ms. Mendoza’s matter.
4. On or about July 1, 2004, Ms. Mendoza sent a letter to respondent requesting a copy of her file and a refund of her fees. Respondent received this letter in the ordinary course of mail. He did not refund any of the $1,000.00 paid to him by Ms. Mendoza. He did not provide a full copy of the file to Ms. Mendoza until on or about June 12, 2006.
5. On or about September 9 and October 3, 2005, the State Bar sent respondent letters by first class mail to his official membership records address. Respondent received the letters in the ordinary course of mail. The letters requested respondent to provide a written response to the allegations in the Mendoza case.
6. On or about September 12, 2005, respondent called the State Bar and stated that he would submit a response.
7, Thereafter, respondent failed to provide a written response to the State Bar letters.
Conclusions of Law
By taking no steps to pursue Ms. Mendoza’s matter, respondent intentionally, recklessly and repeatedly failed to perform legal services with competence in violation of rule 3-110(A) of the Rules of Professional Conduct. By not refunding any of the $1,000.00 to Ms. Mendoza, respondent failed to refund promptly any part of a fee paid in advance that has not been earned in violation of rule 3-700(D)(2) of the Rules of Professional Conduct. By not returning the file to Ms. Mendoza until on or about June 12, 2006, respondent failed to promptly release to the client, at the request of the client, all of the client’s papers and property in violation of rule 3-700(D)(1) of the Rules of Professional Conduct. By failing to provide a written response to the State Bar letters, respondent failed to cooperate with and participate in the State Bar investigation into the Mendoza matter in violation of Business and Professions Code section 6068(i).
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed on February 1, 2006, and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A (7) was June 15, 2006.
SUPPORTING AUTHORITY
Standard 2.4(b) suggests reproval or suspension for a respondent who has wilfully failed to perform services in which he was retained, (See also In the Matter of Hanson (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 703) [public reproval for willful violation of rules 3-700(D)(2) and 3-700 (A)(2) of the Rules of Professional Conduct; no mitigating circumstances].) Based on the mitigation in this matter, particularly respondent’s 25 years of discipline-free practice, which, in totality, outweighs the aggravating circumstance, a public reproval is the appropriate level of discipline.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
AGGRAVATING CIRCUMSTANCES
Standard 1.2(b)(iv). Although respondent has presented some evidence that Ms. Mendoza had no viable cause of action, his failure to perform services on behalf of Ms. Mendoza caused her to lose her cause of action, significantly harming Ms. Mendoza. In addition, respondent’s failure to refund the $1,000.00 fee paid by Ms. Mendoza deprived her of the money for more than three (3) years.
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(i). Respondent has been in practice since 1981. He has no prior record of discipline.
Standard 1.2(e)(iv). In relation to the Business and Professions Code section 6068(i) violation, respondent suffered extreme difficulties in his personal life that were not emotional or physical. Specifically, respondent’s father was hospitalized. With a terminal illness from June through November 2005. Respondent’s father passed away on November 20, 2005.
Standard 1.2(e)(v). Respondent displayed spontaneous candor and cooperation to the State Bar during the disciplinary proceedings.
Case Number(s): 05-O-04023
In the Matter of: Miguel A. Chacon A Member of the State Bar
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: Josefina Mendoza
Principal Amount: $1,000.00
Interest Accrues From: March 13, 2003
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 October 10, 2006.
<<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. If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<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.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-04023
In the Matter of: Miguel A. Chacon
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: Miguel A. Chacon
Date: 6-30-06
Respondent’s Counsel: Douglas L. Rappaport
Date: 6-30-06
Deputy Trial Counsel: Susan I. Kagan
Date: 6/30/06
Case Number(s): 05-O-04023
In the Matter of: Miguel A. Chacon
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: July 25, 2006
[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 July 25, 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 San Francisco, California, addressed as follows:
LAW OFC DOUGLAS L RAPPAPORT
260 CALIFORNIA ST #1002
SAN FRANCISCO, CA 94111
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN I. KAGAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on July 25, 2006.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court