Case Number(s): 05-O-04874-RAP; 06-O-12504-RAP
In the Matter of: Aftab Malik, Bar # 171926, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Margaret P. Warren, Bar # 108774
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: October 30, 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 1, 1994.
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 13 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. Costs are added to membership fee for calendar year following effective date of discipline.
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. If respondent fails to pay any installment within the time provided herein or as may be modified by the State Bar Court pursuant to Business and Professions Code section 6086.10, subdivision (c), the remaining balance of the costs is due and payable immediately and enforceable both as provided in Business and Professions Code section 6140.7 and as a money judgment unless relief has been granted under the Rules of Procedure of the State Bar of California. (Rules Proc. of State Bar, rule 286.) (Hardship, special circumstances or other good cause per rule 284, 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.
Respondent relied on representations made as recently as January 2007 by his former clients, defendants in the Sassoon litigation, that they would negotiate settlement of the attorney’s fees and costs Respondent was personally and individually ordered to pay to Sassoon, pursuant to the San Francisco Superior Court’s order of November 30, 2004, at such time as the former clients-defendants negotiated "global" settlement of their dispute with plaintiff Sassoon.
Case Number(s): 05-O-04874-RAP; 06-O-12504-RAP
In the Matter of: Aftab Malik
<<not>> checked. a. Within days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
checked. b. Within days/ months/ one (1) years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than six (6) hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Other:
IN THE MATTER OF: AFTAB MALIK, State Bar No. 171926
STATE BAR COURT CASE NUMBER: 05-O-04874-RAP; 06-O-12504-RAP
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was October 25, 2007.
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 November 20, 2006 and the facts and 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.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Alleged Violation:
Case No.: 05-O-04874, Count: One, Alleged Violation: Bus. & Prof. Code section 6103
Case No.: 05-O-04874, Count: Two, Alleged Violation: Bus. & Prof. Code section 6068(o)(3)
For the sake of clarity, please note that the sole disciplinary violation stipulated to herein, in case no. 05-O-04874, is a violation of rule 3-700(A)(1) of the Rules of Professional Conduct.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 25, 2007, the costs in this matter are approximately $5,539.00. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and Rules of Professional Conduct:
Statement of Acts or Omissions of Respondent which are Admitted and Acknowledged by Respondent as Cause or Causes for Discipline (Case No. 05-O-04874):
1. Between 2003 and 2005, Respondent was counsel of record for the defendant, Mahmoud Harkous ("Harkous") in Harkous’s criminal appeal, United States of America vs. Mahmoud Harkous, case number 03-50507, filed in the United States Court of Appeals, Ninth Circuit (the "Harkous matter"). A Notice of Appeal was filed on October 10, 2003.
2. After the Notice of Appeal was filed in his case, Harkous informed Respondent that he no longer wanted to pursue his criminal appeal and accordingly instructed Respondent to do nothing further in the matter.
3. Upon being informed by Harkous that Harkous no longer wished to pursue his appeal, Respondent was required by the Rules of the United States Court of Appeals for the Ninth Circuit, Circuit Rule 4-1 (c), to file a motion to withdraw as counsel on appeal with the Clerk of the Court within twenty-one (21) days after the filing of the notice of appeal; furthermore, pursuant to Circuit Rule Circuit Rule 4-1 (c)(5), such motion to withdraw was required to be accompanied by a statement of reasons and an affidavit or signed statement from the defendant, showing that the defendant had been advised of his rights with regard to the appeal and expressly stating that the defendant wished to dismiss the appeal voluntarily.
4. Respondent never filed any motion to withdraw as counsel of record in the Harkous matter, as he was required to do by the Ninth Circuit’s rules, or otherwise formally sought the Court’s permission to withdraw. Respondent never notified the Court in any manner that Harkous was withdrawing his appeal.
Conclusions of Law (Case No. 05-O-04874):
5. By failing to obtain permission from the Ninth Circuit Court of Appeals to withdraw as counsel of record in the Harkous matter, as he was required to do by that tribunal’s rules, Respondent withdrew from employment in a proceeding before a tribunal without its permission, in wilful violation of rule 3-700(A)(1) of the Rules of Professional Conduct.
Statement of Acts or Omissions of Respondent which are Admitted and Acknowledged by Respondent as Cause or Causes for Discipline (Case No. 06-O-12504):
6. In 2005 and early 2005, Respondent was counsel for defendant Imperial Rubber Industries, Inc. ("Imperial") in the matter entitled Sassoon vs. Imperial Rubber Industries, Inc. et al., San Francisco Superior Court case number CGC-04-428467.
7. Respondent did not file an answer on behalf of Imperial to plaintiffs complaint and on May 18, 2004, the Court entered a default and default judgment against Imperial in the amount of $773,070.15.
8. On July 15, 2004, the Court heard and granted, pursuant to Code of Civil Procedure ("C.C.P.") section 473(b), Respondent’s motion to vacate the default and default judgment entered against Imperial.
9. On August 18, 2004, the Court vacated the default and default judgment entered against Imperial, and ordered pursuant to C.C.P. § 473(b) that Respondent pay reasonable compensatory legal fees and costs to plaintiff Sassoon in an amount to be determined upon Sassoon’s submission of a memorandum of fees and costs.
10. In October 2004, plaintiff Sassoon filed a motion in support of the legal fees and costs he sought from Respondent. Respondent did not file an opposition to the motion.
9. On November 30, 2004, the Court ordered Respondent (solely and individually) to pay "forthwith" the plaintiffs legal fees and costs, in the amount of $66,431.68 plus interest.
10: On December 23, 2004, Respondent filed a motion to reconsider and to vacate the Court’s November 30, 2004 order awarding compensatory attorney’s fees and costs. On February 3, 2005, the Court entered an order denying Respondent’s motion for reconsideration. At no time did the Court issue any stay of enforcement of its November 30, 2004 order. On February 18, 2005, Sassoon had the Court’s November 30, 2004 order reduced to a judgment against Respondent in the amount of $66,431.68.
11. To date, Respondent has not filed any appeal from the Court’s November 30, 2004 order or otherwise sought to stay, modify or set aside the Court’s November 30, 2004 order in any fashion.
12. To date, Respondent has not paid plaintiff any portion of the attorney’s fees and costs ordered by the court.
Conclusions of Law (Case No. 06-O-12504):
13. By failing to comply with the San Francisco Superior Court’s order of November 30, 2004, Respondent disobeyed an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, in wilful violation of Business and Professions Code, section 6103.
AUTHORITIES SUPPORTING DISCIPLINE.
On the issue of clear and convincing evidence of culpability of withdrawal from employment without court permission (rule 3-700(A)(1)): In the Matter of Wolff(Review Dept. 2006) 5 Cal. State Bar Court Rptr. 1, 11-12.
Standard 2.10 of the Standards provides, in pertinent part:
Culpability of a member of a... wilful violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
On the issue of clear and convincing evidence of culpability of failure to obey a court order (Bus. & Prof. Code section 6103): In the Matter of Boyne (Review Dept, 1993) 2 Cal. State Bar Ct. Rptr. 389, 403-404; In the Matter of Respondent Y (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 867-868.
Standard 2.6, Standards for Attorney Sanctions for Professional Misconduct ("Standards"), provided that culpability of a member of a violation or violations of Bus. & Prof. Code section 6103 "shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3."
Standard 1.3 provides, in pertinent part:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts, and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession.
Standard 1.7 (a) provides, in pertinent part:
If a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one prior imposition of discipline as defined by standard 1.2(f), the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding...
Respondent’s violation of rule 3-700(A)(1) did not result in any harm to the client. Respondent’s violation of section 6103 of the Bus. & Prof. Code did not result in harm to his client, as the court order Respondent violated was directed solely and exclusively at Respondent.
The State Bar submits that the discipline and probationary conditions stipulated to by the parties herein meets the purposes of attorney discipline set forth in Standard 1.3 and will serve to adequately protect the public, the courts, and the legal profession.
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.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-04874-RAP; 06-O-12504-RAP
In the Matter of: Aftab Malik, State Bar No.: 171926
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.
Respondent enters into this stipulation as a condition of his/her participation in the Program. Respondent understands that he/she must abide by all terms and conditions of Respondent’s Program Contract.
If the Respondent is not accepted into the Program or does not sign the Program contract, this Stipulation will be rejected and will not be binding on Respondent or the State Bar.
If the Respondent is accepted into the Program, upon Respondent’s successful completion of or termination from the Program, this Stipulation will be filed and the specified level of discipline for successful completion of or termination from the Program as set forth in the State Bar Court’s
Signed by:
Respondent: Aftab Malik
Date: October 25, 2007
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Margaret P. Warren
Date: October 25, 2007
Case Number(s): 05-O-04874-RAP; 06-O-12504-RAP
In the Matter of: Aftab Malik, State Bar No.: 171926
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: Richard A. Platel
Date: October 30, 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 Los Angeles, on October 30, 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 Los Angeles, California, addressed as follows:
AFTAB MALIK
MALIK LAW OFFICES
433 N CAMDEN DR STE 600
BEVERLY HILLS, CA 90210-4410
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MARGARET WARREN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 30, 2007.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court