Case Number(s): 05-O-05228-DFM
In the Matter of: Douglas M. Borthwick, Bar # 176372, A Member of the State Bar of California, (Respondent)
Counsel For The State Bar: Jean Cha, Bar # 228137
Counsel for Respondent: Ellen A. Pansky, Bar # 77688
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
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 5, 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):
<<not>>checked. until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 284, Rules of Procedure.
checked. costs to be paid in equal amounts prior to February 1 for the following membership years: Costs to be paid in equal amounts prior to February 1 for the following two billing cycles following the effective date of the Supreme Court Order. (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.
N/A
See page 8.
Attachment language begins here (if any):
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF DOUGLAS M. BORTHWICK CASE NUMBER: 05-O-05228-DFM
FACTS.
1. Respondent admits that the following facts are true and that he is culpable of willfully violating California Business and Professions Code section 6106 as follows:
2. In June 2003, Respondent began employment at Ahrens and Rosa, a Santa Ana, California firm.
3. On April 15, 2005, Ahrens and Rosa was downsizing its practice and allowed Respondent to resign his employment.
4. Although Respondent had employed a resume writing service, Quest Career Marketing ("Quest") to assist him in preparing a new version of his resume, it was not ready when he learned of an opening at the Law Offices of Robert B. Reeves. Wishing to apply as soon as possible, on May 17, 2005, Respondent submitted his old resume to the Law Offices of Robert B. Reeves in response to that firm’s advertisement for an attorney position without revising the dates underneath the description of his employment at Ahrens and Rosa.
5. The resume submitted by Respondent on May 17, 2005 to the Law Offices of Robert B. Reeves, listed Respondent’s employment with Ahrens and Rosa as "6/03 to present". In fact, as of the date the resume was submitted, and for a period of one month, Respondent had not worked at Ahrens and Rosa.
6. Respondent was interviewed on May 26, 2005, nine days after he submitted his old resume to the Law Offices of Robert B. Reeves.
7. Mr. Reeves and Derek Pakiz ("Pakiz"), an associate of the firm, separately interviewed Respondent.
8. Respondent did not, however, point out to either Mr. Reeves or to Mr. Pakiz that the dates of his employ with Ahrens and Rosa as stated on the resume were outdated. The dates on the resume were incorrect and, on its face, the resume gave the false impression to the interviewers that Respondent was still employed.
9. After the interviews, on May 26, 2005, Respondent taxed his newly revised resume, which he had now received from Quest, to Mr. Reeves’s office. There is a confirmation that it was sent to a proper fax address. This new resume did not include references to dates for Respondent’s employments. The new resume did reference a subsequent professional engagement above the reference to the prior employment at Ahrens and Rosa. The new resume did not on its face clarify that Respondent no longer worked at Ahrens and Rosa.
10. Respondent was hired by the Law Offices of Robert B. Reeves.
11. After a short time, Respondent’s employment with the office terminated in that neither employer nor employee found it a good fit.
CONCLUSION OF LAW.
By his gross negligence in presenting an obsolete resume to a prospective employer and failing to take reasonable steps to correct the substantive and relevant fact that, he was no longer employed by Ahrens and Rosa at either the time he submitted the resume, prior to his interviews, or at the time of his interview, Respondent committed an act involving moral turpitude, dishonesty or corruption in willful violation of California Business and Professions Code Section 6106.
DISMISSALS.
The parties respectfully request that the Court dismiss the alleged violations related and limited to references to the courts of practice referred to at paragraphs, 7, 8, and 16 of the Notice of Disciplinary Charges in the interest of justice.
MITIGATING CIRCUMSTANCES.
A ten-year period with no prior discipline is mitigating. (Standard 1.2(e)(i); In re Young (1989) 49 Cal.3d 257, 269.)
OTHER CIRCUMSTANCES RELEVANT TO THE DISPOSITION.
Respondent has presented character letters from a variety of individuals in the community attesting to their respective faith in Respondent and his overall honesty. For purposes of this stipulation only, these letters bear upon the disposition agreed to by the parties.
Respondent acknowledges that there were inaccuracies in his resume and that he should have taken the appropriate measures to prevent any reasonable misunderstanding of its content, accuracy, and substance of the substance in his resume. Respondent now understands that he should have updated his resume before submitting it to a potential employer.
AUTHORITIES SUPPORTING DISCIPLINE.
Where there is a violation of Business and Professions Code section 6106, disbarment or actual suspension is appropriate depending on the extent to which the victim is harmed or misled and depending on the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law. (Standard 2.3.) The purposes of sanctions for 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 1.3.) In order to properly fulfill the purposes of lawyer discipline, we must review the nature and extent of the facts and circumstances surrounding the misconduct. Here, Respondent submitted a resume for employment that contained inaccurate information, on its face. The employer would not be able to ascertain its inaccuracy on its face. The resume was submitted and on its basis Respondent received the benefit of interviews. Respondent’s two interviews resulted in Respondent obtaining legal employment.
Sixty days actual suspension was imposed where an attorney falsified his resume, received an invitation to at least one job interview based on the falsified resume, did not attempt to correct the misrepresentations during the interview, and gave untruthful responses to interrogatories propounded by the State Bar. In the Matter of Frank Sterling Mitchell (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 332. While Mr. Mitchell’s conduct was arguably worse because there was evidence that he submitted the same resume to at least two other firms and there were untruthful responses to State Bar interrogatories, Mr. Mitchell was given credit for more mitigation than is present in this matter, including the loss of a child. Also, in the Mitchell circumstance, the attorney was not hired.
In this case, Respondent was hired. The employer expended resources in interviewing and hiring the Respondent. A resume is a critical tool in that evaluation. Then, the employment did not work out. As was said in Mitchell, in part, "An attorney’s statements in a resume, job interview or research paper should be as trustworthy as that professional’s representation to a court or client." (Ibid. at 341.) The legal profession depends on the candor and honesty of peers to allow for a smooth civil exchange built on trust and the honor system. When an attorney abuses that trust, the entire system is harmed. There was harm in this case.
In the case of In the Matter of Wyrick (Review Department 1992) 2 Cal. State Bar Ct. Rptr. 83, Respondent omitted to disclose that he had been on suspension to at least three potential employers. Given his prior and the three instances, this member received six months actual suspension. Omissions of material fact constitute serious misconduct.
Accepting, for purposes of this stipulation, that the conduct of this member was grossly negligent, the fact remains that the information presented, on its face, created an inherently false impression. However, balancing the various elements of this case against both Mitchell and Wyrick, the disposition of a sixty-day actual suspension is appropriate.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was February 26, 2008.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of February 22, 2008, the estimated prosecution costs in this matter are approximately $3,654.00. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. 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.
STATE BAR ETHICS SCHOOL.
Because Respondent has agreed to attend State Bar Ethics School as part of this stipulation, Respondent will receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-05228-DFM
In the Matter of: Douglas M. Borthwick
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: Douglas M. Borthwick
Date: 2/25/08
Respondent’s Counsel: Ellen a. Pansky
Date: 2/27/08
Deputy Trial Counsel: Jean Cha
Date: 2/27/08
Case Number(s): 05-O-05228-DFM
In the Matter of: Douglas M. Borthwick
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. Honn
Date: 3-4-08
[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 March 5, 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:
ELLEN ANNE PANSKY
PANSKY & MARKLE
1010 SYCAMORE AVE #101
SOUTH PASADENA, CA 91030
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
JEAN CHA, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 5, 2008.
Signed by:
Tammy R. Cleaver
Case Administrator
State Bar Court