Case Number(s): 05-O-04730
In the Matter of: Jeffrey P. Lustman, Bar # 181141, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Paul T. O’Brien, SUPERVISING TRIAL COUNSEL
THE STATE BAR OF CALIFORNIA
1149 S. HILL ST.
LOS ANGELES, CA 90015-2299
Bar # 171252
Counsel for Respondent: In Pro Per Respondent
JEFFREY P. LUSTMAN
P.O. BOX 38653
LOS ANGELES, CA 90038
Bar# 181141
Submitted to: settlement judge State Bar Court Clerk’s Office Los Angeles
Filed: August 31, 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 13, 1995.
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 11 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 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.
<<not>> 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.
Respondent will attend six (6) additional units of Minimum Continuing Legal Education ("MCLE") in Ethics during the first year of the Reproval period and report his completion on the first quarterly report following completion.
IN THE MATTER OF: JEFFREY P. LUSTMAN
CASE NUMBER(S): 05-0-04730
FACTS AND CONCLUSIONS OF LAW.
1. On September 30, 2005, Respondent sent a letter to Justice Candace Cooper, Justice Laurence Rubin, and Justice Madeleine Flier, of the California Court of Appeal, Second Appellate District. Respondent wrote to the justices regarding a matter he had previously appealed, and which had been heard by the three justices seated as the assigned appellate panel, Shirley Skobin v. County of Los Angeles, et al, B 170099 (Los Angeles County Superior Court case no. LC061274).
2. Subsequent to the issuance of the Court of Appeal’s unpublished opinion, which granted, in part, and denied, in part, Respondent’s appeal on behalf of his client, the California Supreme Court denied the petition for review Respondent filed on Skobin’s behalf. By the time he wrote the letter, the Skobin case had been remanded to the trial court for further proceedings.
3. In his September 30, 2005, letter, Respondent renewed arguments that he had urged upon the Court of Appeal, originally, and further asserted that the Court of Appeal should have reversed a ruling by the trial court to dismiss a defendant nursing facility from the case. Because he did not agree with the panel’s decision, Respondent accused the three justices of engaging in a "blatant misrepresentation in an attempt to protect the county." Reiterating his accusation,
Respondent wrote: "The average victim of the system does not make decisions that can much affect you, and you decided to protect the County, which presumably made you feel safer than protecting its victims."
4. In the letter’s penultimate paragraph, Respondent wrote: "I will give you three weeks to come up with justification for what you did. If you do not contact me with such justification, I will report you to the Commission [on Judicial Performance], with probable follow-up publicity. If you believe that you can stop me by pulling rank, or if the State Bar pulls some threat on me to try to stop me, none of that will work. Someone has got to take a stand on judicial misbehavior, and I guess I’m elected."
CONCLUSIONS OF LAW
By accusing the three justices of "blatant misrepresentations," by threatening to report the three justices to the Commission on Judicial Performance unless they provided "justification" to Respondent for their decision within three weeks, and by unilaterally placing himself as the final arbiter, i.e., superior to the courts, Respondent wilfully failed to maintain the respect due to the courts of justice and judicial officers, in violation of Business and Professions Code section 6068(b).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was July 26, 2006.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.6 calls for disbarment or suspension where culpability found for violations of B&P §6068, with due regard for the purposes of imposing discipline, as set forth in Standard 1.3.
Standard 1.3 recognizes that rehabilitation of the member is a permissible object of the sanction imposed, provided it is consistent with the primary purposes of sanctions, protection of the public, courts and legal profession, and maintenance of high professional standards by attorneys and the preservation of public confidence in the profession.
Rule 5-100(A) prohibits a member from threatening to present criminal, administrative, or disciplinary charges to gain advantage in a civil dispute.
In Ramirez v. State Bar (1980) 28 Cal.3d 402, in pleadings filed with the court, the respondent "falsely maligned" justices of the California Court of Appeal, Third District, alleging that the justices on that panel had acted "unlawfully" and "illegally" in hearing a case the respondent had litigated. The respondent in Ramirez implied that the justices had acted as they had for monetary gain, and had named the justices as defendants in an appeal of their decision. He made those assertions with a reckless disregard for the truth. Ramirez, who wrote a letter of apology to the justices he had previously accused of improprieties, received a 30 day actual suspension.
In the Matter of Westphal, 808 S.W.2d 82 (Mo. banc 1991): Without any corroborative evidence, Respondent accused a judge of deliberate dishonesty and of purposefully ignoring the law to achieve personal ends. Respondent in that case, moreover, made the comments at a press conference. Respondent received a public reprimand.
OTHER CIRCUMSTANCES AFFECTING DISCIPLINE
Respondent now recognizes his misconduct, and offered to write a letter of apology to the justices to whom he wrote the offending letter on September 30, 2005. The parties recognize and agree that because the Skobin matter has again come before the Court of Appeal, Second District, it may not be appropriate (or prudent) for Respondent to do so at this time, and there is no requirement (nor prohibition) that write the proposed letter of apology. Respondent’s remorse, i.e., his recognition of wrongdoing, however, has not been "prompt." Moreover, "considerable time" has not elapsed since his misconduct, thus there is no evidence of meaningful rehabilitation. These factors, then, are not truly "mitigating," but have been considered in entering into this stipulation, particularly in light of Standard 1.3, above.
Case Number(s): 05-O-04730
In the Matter of: Jeffrey P. Lustman
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitations* and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
*I refer the State Bar Court to my letter of July 19, 2006 as explanation, particularly my contacts with the Ethics Hotline prior to my sending out my September 30, 2005 letter. (JPL)
Signed by:
Respondent: Jeffrey P. Lustman
Date: 8-2-06
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Paul T. O’Brien
Date: 8/3/06
Case Number(s): 05-O-04730
In the Matter of: Jeffrey P. Lustman
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: Richard A. Honn
Date: 8/29/06
[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 August 31, 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:
JEFFREY P. LUSTMAN
P O BOX 38653
LOS ANGELES, CA 90038
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Paul O’Brien, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 31, 2006.
Signed by:
Milagro del R. Salmeron
Case Administrator
State Bar Court