Case Number(s): 05-O-04553
In the Matter of: Ruben D. Sanchez, Bar # 164298, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Brandon K. Tady, Bar # 83045,
Counsel for Respondent: Kevin A. Speir, Bar # 119044,
Submitted to: Assigned 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 4, 1993.
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 16 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 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: three (3) billing cycles following the effective date of the Supreme Court order in this matter. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.)
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
IN THE MATTER OF: Ruben S. Sanchez, State Bar No. 175167
STATE BAR COURT CASE NUMBER: 05-O-04553 & 07-O-11476
FACTS AND CONCLUSIONS OF LAW
Respondent was admitted to the practice of law in the State of California on June 4, 1993.
Case number 05-O-04553
In August 2005, Sam Khalifian ("Sam") employed Respondent on behalf of his mother, Fereshteh Khalifian ("Ms. Khalifian") to represent Ms. Khalifian in a criminal matter. Respondent agreed to represent Ms. Khalifian for a flat fee of $6,000. Sam paid Respondent $5,750 on behalf of Ms. Khalifian in or about August 2005.
On September 12, 2005, Respondent appeared in court at a preliminary examination and bail review hearing on behalf of Ms. Khalifian. On that date, the court denied a bail reduction but scheduled a further bail review heating for September 19, 2005. Respondent was present in court at the time the court scheduled the further bail review hearing and received notice of the hearing.
Thereafter, Respondent did not provide any legal services to Ms. Khalifian, nor did he communicate with her.
Respondent failed to appear at the September 19, 2005 further bail review heating. On that date, the court scheduled an order to show cause hearing for September 23, 2005. On September 19, 2005, the court notified Respondent by telephone of the September 23, 2005 order to show cause heating. Respondent received notice of the heating.
Respondent failed to appear at the September 23, 2005 order to show cause hearing. On that date, the court relieved Respondent as attorney of record for Ms. Khalifian and appointed a public defender.
Respondent’s employment by Ms. Khalifian terminated on September 23, 2005. Thereafter, Sam informed Respondent that he wanted Respondent to return any unearned fees that he had paid to Respondent.
Respondent earned only $3,000 of the $5,750 in advanced attorney’s fees paid to him by Sam on behalf of Ms. Khalifian. Respondent did not earn $2,750 of those advanced fees.
Additionally, Sam prevailed in a fee arbitration with Respondent which resulted in an award in favor of Sam and against Respondent in the amount of $2,750 plus $500 in costs.
Respondent has not returned to Sam any portion of the $2,750 in unearned fees paid by Sam nor any portion of the $500 award of costs.
On September 16, 2005, Respondent was enrolled in "not entitled" status because of his non-compliance with the State Bar’s Mandatory Continuing Legal Educational requirements.
Respondent remained enrolled in "not entitled" status until October 3, 2005, when he complied with MCLE requirements.
Respondent was aware of the fact that he was not entitled to practice law from September 16, 2005 through October 3, 2005 at all times during that period of time.
At no time did Respondent inform Ms. Khalifian or Sam that Respondent was enrolled in "not entitled" status effective September 16, 2005.
Case Number 07-O-11476
On or about April 27, 2004, Ignacio Davalos and Consuelo Davalos ("Mr. and Mrs. Davalos") employed Respondent to represent them in a civil matter against their landlords. Respondent agreed to provide all of the necessary legal services for a flat fee of $2,055. Mr. and Mrs. Davalos paid Respondent $2,055 in or about April 2004.
On or about August 17, 2004, Respondent filed a complaint on behalf of Mr. and Mrs. Davalos in San Bernardino County Superior Court entitled Davalos, et al. v. Haro, et al., case no. MCIMS06142 ("Davalos action"). At the time Respondent filed the complaint in the Davalos action, the court scheduled a Case Management Conference ("CMC") for February 7, 2005 and provided notice of the February 7, 2005 CMC to Respondent. Respondent received the notice.
Respondent failed to appear at the February 7, 2005 CMC. On that date, the court continued the CMC to April 4, 2005. On or about February 16, 2005, opposing counsel served notice of the April 4, 2005 CMC on Respondent. Respondent received the notice.
Respondent failed to appear at the April 4, 2005 CMC. Therefore, the court again continued the CMC to July 11, 2005, and ordered that Respondent personally appear at the July 11, 2005 CMC. On or about May 27, 2005, opposing counsel served notice of the July 11, 2005 CMC on Respondent. The notice served by opposing counsel informed Respondent that his personal appearance was required by the court. Respondent received the notice.
Respondent failed to appear at the July 11, 2005 CMC. On this date, the court scheduled an order to show cause hearing re sanctions for September 26, 2005 and ordered that Respondent personally appear at that hearing ("September 26, 2005 OSC"). On or about July 22, 2005, opposing counsel served notice of the September 26, 2005 OSC on Respondent. The notice served by opposing counsel informed Respondent that he needed to personally appear in court at the September 26, 2005 OSC. Respondent received the notice.
Respondent failed to appear at the September 26, 2005 OSC. As a result, the court scheduled another order to show cause hearing re dismissal for December 19, 2005 and ordered that Respondent personally appear at that hearing ("December 19, 2005 OSC"). The court also imposed sanctions of $500 on Respondent payable to the court within thirty (30) days. On or about September 29, 2005, opposing counsel served on Respondent notice of the December 19, 2005 OSC. The notice served by opposing counsel informed Respondent that the court had imposed sanctions of $500 on Respondent and that they were due within thirty (30) days. Respondent received the notice.
On December 19, 2005, Respondent arrived late for the December 19, 2005 OSC. At that time, the court imposed on Respondent additional sanctions of $500 payable to the court within thirty (30) days. On this date, the court served notice of the imposition of sanctions on Respondent. Respondent received the notice.
After filing the complaint in the Davalos action, Respondent failed to perform any further legal services of value on behalf of Mr. and Mrs. Davalos.
Respondent’s employment by the Davalos terminated in December 2005. Respondent did not earn any portion of the fees paid to him by Mr. and Mrs. Davalos.
On August 11, 2006, Mrs. Davalos mailed a letter to Respondent requesting a refund of the $2,055 paid to Respondent. Respondent received the letter.
On February 26, 2007, Mr. Davalos’ business associate, Manuel Montoya ("Montoya"), mailed a letter to Respondent on behalf of Mr. and Mrs. Davalos requesting a refund of the $2,055. Respondent received the letter.
Respondent has not returned any portion of the $2,055 to Mr. and Mrs. Davalos.
Respondent has not paid any portion of the sanctions that were ordered against him on September 26, 2005 and December 19, 2005, nor has he sought relief from or a modification of the court orders imposing the sanctions.
On or about April 20, 2007, the State Bar opened an investigation, case no. 07-O-11476, pursuant to a complaint filed by Montoya on behalf of Mr. and Mrs. Davalos ("Davalos complaint").
On July 5, 2007, a State Bar Investigator wrote to Respondent regarding the Davalos complaint. Respondent received the letter.
The investigator’s July 5, 2007 letter requested that Respondent respond in writing to specified allegations of misconduct being investigated by the State Bar in the Davalos complaint.
On or about August 15, 2007, Respondent mailed a letter to the investigator indicating that he had received the investigator’s July 5, 2007 letter, and requested an extension often days to submit a written response to the Davalos complaint.
On August 21, 2007, the investigator mailed a letter to Respondent granting him an extension until August 29, 2007, to submit a written response to the Davalos complaint. Respondent received the letter.
At no time after August 15, 2007, did Respondent provide a written response to specified allegations of misconduct being investigated by the State Bar in the Davalos complaint.
Legal Conclusions
By failing to appear in court on the Khalifian matter and failing to communicate with Ms. Khalifian after September 12, 2005, 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.
By failing to refund to Ms. Khalifian or Sam any portion of the $2,750 of the $5,750 paid to Respondent by Sam, Respondent failed to refund unearned fees after the termination of employment in wilful violation of rule 3-700(D)(2) of the Rules of Professional Conduct.
By failing to inform Ms. Khalifian that he was enrolled in "not entitled" status effective September 16, 2005, 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 Business and Professions Code, section 6068(m).
By failing to appear in court on February 7, 2005, April 4, 2005, July 11, 2005, and September 26, 2005, failing to timely appear in court on December 19, 2005 in the Davalos matter, and failing to perform any legal services of value after filing the complaint in the Davalos matter, 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.
By failing to refund to Mr. and Mrs. Davalos any portion of the $2,055 in fees, which he had not earned, Respondent failed to refund unearned fees after the termination of employment in wilful violation of rule 3-700(D)(2) of the Rules of Professional Conduct.
By failing to pay any portion of the sanctions that were ordered against him on September 26, 2005 and December 19, 2005, Respondent wilfully disobeyed or violated an order of the court requiring him to do or forbear an act connected with or in the course of Respondent’s profession which he ought in good faith to do or forbear, in wilful violation of Business and Professions Code, section 6103.
By not providing a written response to the allegations in the Davalos complaint or otherwise cooperating in the investigation of the Davalos complaint, Respondent failed to cooperate in a disciplinary investigation in wilful violation of Business and Professions Code, section 60680).
DISCUSSION RE STIPULATED DISCIPLINE
Standard 1.3 of the Standards For Attorney Sanctions For Professional Misconduct provides that the primary purpose of discipline is the protection of the public, the courts and legal profession; maintenance of high professional standards; and the preservation of public confidence in the legal profession.
Standard 2.4(b) states that reproval or suspension is the appropriate discipline, depending upon the extent of the misconduct and the degree of harm suffered by the client, for a member’s wilful failure to perform legal services or wilful failure to properly communicate with a client, where the misconduct is limited to a single client matter or does not demonstrate a pattern.
Standard 2.6 states that disbarment or suspension is the appropriate discipline, depending upon the gravity of the offense or harm, if any, to the victim, for violations of various sections of the Business and Professions Code, including sections 6068(i), 6068(m) and 6103.
Standard 2.10 states that reproval or suspension is the appropriate discipline, with due regard to the harm suffered by any victim and the purposes of imposing discipline, for violations of any of the Rules of Professional Conduct not specifically specified in other Standards, such as rule 3-700.
The parties submit that the stipulated discipline in this matter complies with the Standards and the purposes of the disciplinary process.
Respondent’s misconduct occurred and continued over a three year period of time. Respondent failed to perform the legal services for which he was employed and failed to promptly return unearned fees thereafter. Respondent also failed to comply with court orders and cooperate in a State Bar investigation.
While Respondent’s misconduct does not demonstrate a pattern, it does include multiple acts of misconduct in two client matters.
Additionally, Respondent’s misconduct deprived his former clients of funds to which they were entitled and wasted court resources.
Counter-balancing the aggravating circumstances surrounding Respondent’s misconduct is the fact that Respondent has no record of discipline since being admitted to the State Bar in June 1993.
Standard 2.6 and the above-discussed factors indicate that a period of actual suspension, but not disbarment, is the appropriate discipline in this matter.
In light of the above, the parties submit that the stipulated discipline, a 90 day actual suspension and until restitution is paid and the court ordered sanctions are satisfied, along with the probationary conditions specified herein, is sufficient to assure that Respondent will conform his future conduct to ethical standards and, therefore, protect the public, courts and profession. This is consistent with Standard 1.3.
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notices of Disciplinary Charges filed on November 27, 2007 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 as to these matters and further waive the right to a formal hearing on any charge or fact not included in the pending Notice of Disciplinary Charges.
PENDING PROCEEDINGS
The disclosure date referred to, on page one, paragraph A.(7), was November 7, 2008.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of November 7, 2008, the rough estimate of disciplinary costs to be assessed in this matter is $6,100.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-04553 and 07-O-11476
In the Matter of: Ruben D. Sanchez
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: Ruben D. Sanchez
Date: November 7, 2008
Respondent’s Counsel: Kevin A. Speir
Date: November 7, 2008
Deputy Trial Counsel: Brandon Tady
Date: November 7, 2008
Case Number(s): 05-O-04553 & 07-O-11476
In the Matter of: Ruben D. Sanchez
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 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Donald F. Miles
Date: November 10, 2008
[Rules Proc. of State Bar; Rule 5.27(B); 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 12, 2008, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL SUSPENSION
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:
KEVIN ANDREW SPEIR
LAW OFC KEVIN A SPEIR
26655 CHESTNUT DR
HEMET, CA 92544
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
BRANDON K. TADY, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 12, 2008.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court