Case Number(s): 06-O-10219, 06-O-13116
In the Matter of: Marie I. Klopchic, Bar # 201106, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Bar # 214209
Counsel for Respondent: Bar #
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
<<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 6/7/99.
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. 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.
<<not>> checked. costs are 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.
Attachment language begins here (if any):
FACTS AND CONCLUSIONS OF LAW
Case No. 06-O-10219
Facts
1. Prior to August 23, 2005, Debra Hoelter ("Hoelter") employed attorney Leslie Shaw ("Shaw") to represent her in a dissolution proceeding, In re Marriage of Franklin DeSpain and Debra Hoelter, El Dorado County Superior Court case number SFL2005-0232. Respondent represented Franklin DeSpain in the matter.
2. At the time Shaw began representing Hoelter, Hoelter had been served with a temporary restraining order and a notice of hearing on the temporary restraining order set for August 30, 2005. Hoelter had not yet been served with the petition for dissolution.
3. On August 23, 2005, Shaw wrote respondent regarding the case, advised that he was unavailable for the hearing scheduled for August 30, 2005 due to a trial, and requested that the hearing be continued until September 6, 2005.
4. On August 25, 2005, Shaw sent respondent a letter and enclosed a proposed stipulation to continue the August 30, 2005 hearing. In the letter, Shaw also told respondent that he asked Hoelter if she would allow him to accept service on her behalf, so that she would not have to be personally served.
5. On August 25, 2005, respondent wrote a letter to Shaw agreeing to continue the hearing scheduled for August 30, 2005 on the condition that Shaw agree to accept service on Hoelter’s behalf.
6. On August 29, 2005, Shaw called respondent and left a message with respondent’s assistant that Hoelter agreed to allow him to accept service on her behalf. Shaw also stated that since the condition of him accepting service on Hoelter’s behalf was met, he anticipated that respondent would advise the Court that the parties had agreed to a continuance with the understanding that the temporary restraining orders would remain in full force and effect through the September 6, 2005 hearing. Shaw stated that there would be no appearance by any member of his firm on Hoelter’s behalf on August 30, 2005.
7. On August 29, 2005, Shaw sent a letter to respondent via facsimile memorializing his conversation with respondent’s assistant. In the letter, respondent stated that Hoelter authorized him to accept service, that he expected respondent to inform the Court of their agreement to continue the hearing, and that there would no appearance by any member of his firm on behalf of Hoelter.
8. Shaw instructed Hoelter not to appear at the hearing because he believed it would be continued.
9. Prior to appearing at the August 30, 2005 hearing, respondent spoke with her assistant who summarized her August 29, 2005 conversation with Shaw including the fact that he was not going to appear at the August 30, 2005 hearing.
10. On August 30, 2005, respondent appeared at the hearing on the temporary restraining order. At the hearing, respondent stated: "We have--Leslie Shaw has been retained to represent Debra Hoelter. He told me he was not going to be available to appear this morning, but Ms. Hoelter would be here." In fact, respondent knew that Hoelter was not going to appear and Shaw never told respondent that Hoelter would appear. Respondent’s statement that Shaw told her Hoelter would appear at the hearing was a misrepresentation to the Court.
11. In considering whether to issue a permanent restraining order, the judge expressed concern about whether Hoelter had received sufficient notice of the hearing. The judge was concerned that if he entered a permanent restraining order, Hoelter would file a motion to set it aside. Therefore, the judge suggested the matter be continued for two or three weeks. He also suggested that respondent and Shaw talk and continue the temporary restraining order while the parties wait for the next hearing date. After the judge suggested continuing the matter, respondent stated: "And Mr. Shaw and I knew that he was not going to appear, and he and I agreed that if requested- and he understands that his client was supposed to be here and request it." In fact, respondent knew that neither Shaw nor Hoelter would be at the hearing, that Shaw expected her to ask for a continuance, and that Shaw never discussed Hoelter appearing without him and asking for a continuance. Respondent’s statement that Hoelter would be at the hearing and request a continuance were misleading.
12. At no time during the hearing did respondent ask for a continuance or mention that she and Shaw had discussed a continuance.
13. Respondent’s statements to the Court that she expected Hoelter to appear and her failure to mention that she and Shaw discussed a continuance were meant to persuade the Court to issue a permanent restraining order without Hoelter or Shaw being present. Based on respondent’s statements, the Court issued a permanent restraining order for one year to August 10, 2006.
14. Thereafter, the parties reconciled and the case was dismissed. Although Shaw prepared a motion to set aside the permanent restraining order, it was not filed based on the reconciliation and dismissal.
Conclusions of Law
By misrepresenting Shaw’s statements regarding his client’s appearance at the hearing and not informing the court that Shaw requested a continuance, respondent sought to mislead the judge or judicial officer by an artifice or false statement of fact or law in willful violation of Business and Professions Code section 6068(d).
By misrepresenting Shaw’s statements to the Court such that the court issued a permanent restraining order, respondent committed an act involving moral turpitude, dishonesty and corruption in willful violation of Business and Professions Code section 6106.
Case No. 06-O-13116
Facts
1. On June 13, 2005, respondent was hired by petitioner, Rodolfo Mendoza ("Mendoza"), to represent him in the dissolution proceeding, Mendoza v. Mendoza, El Dorado Superior Court Case No. 20040022. Mendoza’s wife, Yolanda Mendoza, was represented by attorney, Dee Schilling ("Schilling").
2. On June 13, 2005, respondent filed a notice of motion for modification of child support, visitation and spousal support.
3. On July 12, 2005, a hearing was held in the matter. Respondent attended the hearing. At the hearing, the Court granted respondent’s motion and ordered respondent to prepare the Findings and Order after Hearing as to custody and visitation. At all times relevant herein, the order was in full force and effect. Thereafter, respondent failed to comply with the Court’s order.
4. On September 9, 2005, a mandatory settlement conference was held in the matter. Respondent attended the conference. At the conference, the parties reached a full settlement on all issues. The Court ordered respondent to prepare the Notice of Entry of Judgment and Settlement Agreement. At all times relevant herein, the order was in full force and effect. Thereafter, respondent failed to comply with the Court’s order.
Conclusions of Law
By not complying with the July 12 and September 9, 2005 orders, respondent wilfully disobeyed court orders requiring her to do acts in the course of her profession which she ought in good faith to do in violation of Business and Professions Code section 6103.
WAIVE 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 June 6, 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 December 21, 2006.
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.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES AGGRAVATING CIRCUMSTANCES
Standard 1.2(b)(iv). Respondent’s misconduct harmed significantly the administration of justice. In addition to misleading the judge, which led to the issuance of a year-long permanent restraining order against Hoelter, respondent’s misconduct caused Shaw to incur unnecessary expense in relation to his appearance at the courthouse on September 6, 2005, and the effort undertaken in drafting a motion to set aside the restraining order issued on August 30, 2005.
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(i). Respondent has been in practice since 1999 and has no prior record of discipline.
SUPPORTING AUTHORITY
Standard 2.3 requires an actual suspension or disbarment for a respondent that has committed an act of moral turpitude.
Standard 2.6(a) states that a violation of Business and Professions Code sections 6068 and 6103 shall result in disbarment or suspension depending on the gravity of the offense or harm, if any, to the victim, with due regard to the purpose of imposing discipline set forth in standard 1.3.
In accordance with the standards, a 30-day actual suspension is the proper discipline for respondent’s willful violation of section 6068(d) of the Business and Professions Code. (See Drociak v. State Bar (1991) 52 Cal.3d 1085 [30 days’ actual suspension for violation of Business and Professions Code section 6068(d) and 6106; no prior record of discipline].)
SIGNATURE OF THE PARTIES
Case Number(s): 06-0-10219, 06-O-13116
In the Matter of: Marie I. Klopchic
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: Marie I. Klopchic
Date: 1-10-07
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Susan I. Kagan
Date: 1-10-07
Case Number(s): 06-0-10219, 06-O-13116
In the Matter of: Marie I. Klopchic
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: Pat McElroy
Date: June 29, 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 San Francisco, on January 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 San Francisco, California, addressed as follows:
MARIE I KLOPCHIC
6680 ALHAMBRA AVE #208
MARTINEZ CA 94553
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN KAGAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on January 30, 2007.
Signed by:
George Hue
Case Administrator
State Bar Court