State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

PUBLIC REPROVAL

 

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.

A. Parties' Acknowledgments:

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.

 

B. Aggravating Circumstances [for definition, see Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts supporting aggravating circumstances are required.

<<not>> checked. (1) Prior record of discipline [see standard 1.2(f)].

<<not>> checked. (a)          State Bar Court case # of prior case .
<<not>> checked. (b)          Date prior discipline effective .
<<not>> checked. (c)           Rules of Professional Conduct/ State Bar Act violations:
<<not>> checked. (d)          Degree of prior discipline  
<<not>> checked. (e)          If Respondent has two or more incidents of prior discipline, use space provided below or a separate attachment entitled “Prior Discipline”. .

<<not>> checked. (2) Dishonesty:  Respondent's misconduct was surrounded by or followed by bad faith, dishonesty, concealment, overreaching or other violations of the State Bar Act or Rules of Professional Conduct. 

<<not>> checked. (3) Trust Violation:  Trust funds or property were involved and Respondent refused or was unable to account to the client or person who was the object of the misconduct for improper conduct toward said funds or property.

<<not>> checked. (4) Harm:  Respondent's misconduct harmed significantly a client, the public or the administration of justice.

<<not>> checked. (5) Indifference:  Respondent demonstrated indifference toward rectification of or atonement for the consequences of his or her misconduct.

<<not>> checked. (6) Lack of Cooperation:  Respondent displayed a lack of candor and cooperation to victims of his/her misconduct or to the State Bar during disciplinary investigation or proceedings. 

<<not>> checked. (7) Multiple/Pattern of Misconduct:  Respondent's current misconduct evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct.

<<not>> checked. (8) No aggravating circumstances are involved.

Additional aggravating circumstances:

 

C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating circumstances are required.

 checked. (1)           No Prior Discipline:  Respondent has no prior record of discipline over many years of practice coupled with present misconduct which is not deemed serious.

<<not>> checked. (2) No Harm:  Respondent did not harm the client or person who was the object of the misconduct. 

 checked. (3)           Candor/Cooperation:  Respondent displayed spontaneous candor and cooperation with the victims of his/her misconduct and to the State Bar during disciplinary investigation and proceedings. 

<<not>> checked. (4) Remorse:  Respondent promptly took objective steps spontaneously demonstrating remorse and recognition of the wrongdoing, which steps were designed to timely atone for any consequences of his/her misconduct. 

<<not>> checked. (5) Restitution:  Respondent paid $  on  in restitution to  without the threat or force of disciplinary, civil or criminal proceedings.

<<not>> checked. (6) Delay:  These disciplinary proceedings were excessively delayed.  The delay is not attributable to Respondent and the delay prejudiced him/her.

<<not>> checked. (7) Good Faith:  Respondent acted in good faith.

<<not>> checked. (8) Emotional/Physical Difficulties:  At the time of the stipulated act or acts of professional misconduct Respondent suffered extreme emotional difficulties or physical disabilities which expert testimony would establish was directly responsible for the misconduct.  The difficulties or disabilities were not the product of any illegal conduct by the member, such as illegal drug or substance abuse, and Respondent no longer suffers from such difficulties or disabilities.

<<not>> checked. (9) Severe Financial Stress:  At the time of the misconduct, Respondent suffered from severe financial stress which resulted from circumstances not reasonably foreseeable or which were beyond his/her control and which were directly responsible for the misconduct.

 checked. (10) Family Problems:  At the time of the misconduct, Respondent suffered extreme difficulties in his/her personal life which were other than emotional or physical in nature.

 checked. (11) Good Character:  Respondent's good character is attested to by a wide range of references in the legal and general communities who are aware of the full extent of his/her misconduct.

<<not>> checked. (12) Rehabilitation:  Considerable time has passed since the acts of professional misconduct occurred followed by convincing proof of subsequent rehabilitation.

<<not>> checked. (13) No mitigating circumstances are involved.

Additional mitigating circumstances: 

 

D. Discipline:

<<not>> checked. (1) Private reproval (check applicable conditions, if any, below):

<<not>> checked. (a) Approved by the Court prior to initiation of the State Bar Court proceedings (no public disclosure).
<<not>> checked. (b)Approved by the Court after initiation of the State Bar Court proceedings (public disclosure).

or

 checked. (2)           Public reproval (Check applicable conditions, if any below)

 

E. Conditions Attached to Reproval:

 checked. (1)           Respondent must comply with the conditions attached to the reproval for a period of .

 checked. (2)           During the condition period attached to the reproval, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

 checked. (3)           Within ten (10) days of any change, Respondent must report to the Membership Records Office of the State Bar and to the Office of Probation of the State Bar of California ("Office of Probation"), all changes of information, including current office address and telephone number, or other address for State Bar purposes, as prescribed by section 6002.1 of the Business and Professions Code.

 checked. (4)           Within thirty (30) days from the effective date of discipline, Respondent must contact the Office of Probation and schedule a meeting with Respondent's assigned probation deputy to discuss these terms and conditions of probation. Upon the direction of the Office of Probation, Respondent must meet with the probation deputy either in-person or by telephone. During the period of probation, Respondent must promptly meet with the probation deputy as directed and upon request.

 checked. (5)           Respondent must submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10 of the period of probation. Under penalty of perjury, Respondent must state whether Respondent has complied with the State Bar Act, the Rules of Professional Conduct, and all conditions of probation during the preceding calendar quarter. Respondent must also state whether there are any proceedings pending against him or her in the State Bar Court and if so, the case number and current status of that proceeding. If the first report would cover less than 30 days, that report must be submitted on the next quarter date, and cover the extended period.


In addition to all quarterly reports, a final report, containing the same information, is due no earlier than twenty (20) days before the last day of the period of probation and no later than the last day of the condition period.

<<not>> checked. (6) Respondent must be assigned a probation monitor. Respondent must promptly review the terms and conditions of probation with the probation monitor to establish a manner and schedule of compliance. During the period of probation, Respondent must furnish such reports as may be requested, in addition to the quarterly reports required to be submitted to the Office of Probation. Respondent must cooperate fully with the monitor.

 checked. (7)           Subject to assertion of applicable privileges, Respondent must answer fully, promptly and truthfully any inquiries of the Office of Probation and any probation monitor assigned under these conditions which are directed to Respondent personally or in writing relating to whether Respondent is complying or has complied with the probation conditions.

<<not>> checked. (8) Within one (1) year of the effective date of the discipline herein, Respondent must provide to the Office of Probation satisfactory proof of attendance at a session of the State Bar Ethics School, and passage of the test given at the end of that session.

 checked. No Ethics School recommended.  Reason: Respondent attended Ethics School on October 20, 2005.

<<not>> checked. (9) Respondent must comply with all conditions of probation imposed in the underlying criminal matter and must so declare under penalty of perjury in conjunction with any quarterly report to be filed with the Office of Probation.

checked. (10) Respondent must provide proof of passage of the Multistate Professional Responsibility Examination ("MPRE"), administered by the National Conference of Bar Examiners, to the Office of Probation within one year of the effective date of the reproval. 

<<not>> checked. No MPRE recommended.  Reason:

 checked. (11) The following conditions are attached hereto and incorporated:       

<<not>> checked. Substance Abuse Conditions.

<<not>> checked. Law Office Management Conditions.

<<not>> checked. Medical Conditions.

 checked. Financial Conditions.

 

F. Other Conditions Negotiated by the Parties:

 

(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.

 

Attachment language (if any):

 

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.

 


FINANCIAL CONDITIONS

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.

b. Installment Restitution Payments

<<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.

c. Client Funds Certificate

<<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.

d. Client Trust Accounting School

<<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

 


ORDER

 

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

 


CERTIFICATE OF SERVICE

[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