Case Number(s): 06-O-10354, 06-O-13315, 06-O-13536 and 07-O-15030 (Investigation Matter)
In the Matter of: David R. Ortega, Bar # 113890, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Jayne Kim, Bar # 174614,
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Settlement 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 14, 1984.
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 15 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 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<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.
Case Number(s): 06-O-10354, 06-O-13314, 06-O-13536
In the Matter of: David R. Ortega
a. Restitution
checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee: Jong Song
Principal Amount: $1830.00
Interest Accrues From: September 4, 2006
2. Payee: Leticia Madrigal
Principal Amount: $500.00
Interest Accrues From: August 22, 2006
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable): Jong Song
Minimum Payment Amount: $100.00
Payment Frequency: monthly
2. Payee/CSF (as applicable): Leticia Madrigal
Minimum Payment Amount: $100.00
Payment Frequency: monthly
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3. The requirements of this condition are
in addition to those set forth in rule 4-100, Rules of Professional Conduct.
checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
IN THE MATTER OF: DAVID R. ORTEGA, State Bar No. 113890
STATE BAR COURT CASE NUMBER: 06-O-10354, 06-O-13315, 06-O-13536 and 07-O-15030 (Investigation Matter)
CASE NO. 06-O-10354:
1. During the period from September 2004 to Marcia 2006, Respondent maintained a client trust account at California Bank and Trust designated account no. 22200976-61, ("CTA"). The account was used by Respondent for the deposit of client funds and the deposit of Respondent’s funds during the above-time period. Respondent’s pattern of misuse of his CTA is demonstrated as follows:
2. From August 31, 2004, through March 29, 2006, Respondent issued 196 checks written to himself or to cash totaling $46,080 from his CTA all for his own benefit, use and enjoyment.
3. From September 1, 2004, through January 26, 2006, Respondent made 139 point of sale purchases and payments from the CTA, totaling $25,209.62, all for his own benefit, use and enjoyment.
4. From July 21, 2005 through March 20, 2006, Respondent made fifteen wire-transfers of his personal funds to the CTA totaling $30,985.00,
5. On December 3, 2005, Respondent wrote a personal rent payment check #1362 in the amount of $1,645, from his CTA. On December 7, 2005, the payee of check #1362 presented the check for payment at California Bank and Trust. The check was paid by the bank creating an overdraft of-$452.04 in Respondent’s CTA. The bank imposed an overdraft fee of $30.00 increasing the total overdraw to -$482.04.
6. On January 4, 2006, Respondent wrote a personal rent payment check #1379 in the amount of $1,645 from his CTA. On January 9, 2006, the payee of check #1379 presented the check for payment at California Bank and Trust. The check Was paid by the bank creating an overdraft of -$450.82 in Respondent’s CTA.
7. By depositing at least $30,985 of his personal funds into his CTA, by writing to himself and cashing 196 checks, personal checks, from his CTA totaling $46,080, by making 139 point of sales purchases or payments totaling approximately $25,209.62 from his CTA, and by overdrawing his CTA, Respondent deposited or commingled funds belonging to Respondent in his CTA and otherwise misused his CTA for personal funds transactions, in violation of Rules of Professional Conduct, rule 4100(A).
8. By knowingly writing checks against non-sufficient funds from his CTA, depositing his personal funds in his CTA, and using his CTA as his personal account for personal purchases, payments, and cash withdrawals, Respondent committed an act or acts involving moral turpitude, dishonesty or corruption, in violation of Business and Professions Code, section 6106.
CASE NO. 06-O-13315
9. On March 28, 2005, Leticia Madrigal ("Madrigal") employed Respondent to pursue an action against Monison-Hope Roofing Co. ("Morrison"). Madrigal paid Respondent $2,500 in advanced fees on April 13, 2005. Respondent’s duties were stated in a Professional Legal Services Agreement ("Agreement"). On May 19, 2005, Madrigal employed Respondent to pursue an action against her neighbors to abate a nuisance ("the nuisance case"). Madrigal paid Respondent $3,500 in advanced fees on May 19, 2005.
10. In July 2005 Respondent received notice from the State Bar that he was to be actually suspended beginning on August 22, 2005. From on or about August 22, 2005 to on or about October 10, 2006, Respondent was administratively actually suspended from the practice of law for child and family support noncompliance. Respondent never informed Madrigal of his suspension.
11. On August 31,2005, Respondent began billing Madrigal for legal services he performed as an attorney on the two cases. Respondent continued billing Madrigal for legal services as rendered by Respondent on August 31,2005, September 1, 2005, September 2, 2005, September 13, 2005, October 3, 2005, October 10, 2005, October 14, 2005, October 15, 2005, and October 18, 2005 - all dates that Respondent was on actual administrative suspension. During this period, Respondent billed Madrigral for 2.5 hours at $200/hour and collected $500 in illegal fees.
12. On October 31, 2005, after Madrigal’ s nuisance case became moot, Respondent transferred the balance of Madrigal’s advanced fees $2,380, from the nuisance case client ledger to the Morrison case client ledger. Although Respondent did not have true retainer with Madrigal, he advised Madrigal that the advanced fees were non-refundable.
13. On June 9, 2006, Madrigal terminated Respondent’s services in the "Morrison case. On June 15, 2006, Madrigal demanded a full refund of all unused advanced fees paid to Respondent. On June 27, 2006, Respondent wrote to Madrigal claiming that their Agreement provided that refunds would not be made upon a client’s termination of services.
14. On June 29, 2006, after learning that Respondent was suspended on August 22, 2005, Madrigal demanded that Respondent refund all of the advanced fees paid to him for his legal services in the Morrison case and the nuisance case. Respondent has not refund any portion of the (illegal) fees paid by Madrigal.
15. By engaging in telephone conversations and by sending legal correspondence to Madrigal, and by remaining as attorney of record in the Madrigal matter during his period of actual administrative suspension or not entitled status, Respondent wilfully violated Business and Professions Code, section 6068(a), by holding himself out as practicing or entitled to practice law or otherwise practicing law when he was not an active member of the State Bar, Jn violation of Business and Professions Code, sections 6125 and 6126.
16. By charging and collecting a fee for legal services performed while he was on actual administrative suspension, Respondent charged or collected an illegal or unconscionable fee, in violation of Rules of Professional Conduct, rule 4-200(A).
17. By failing to comply with Madrigal’s demand to return unearned fees in the nuisance case, by applying the unearned fees from the nuisance case to the Morrison case, and by failing to promptly refund fees paid in advance that have not been earned, Respondent failed to promptly return unearned fees, in violation of Rules of Professional Conduct, rule 3-700(D)(2).
CASE NO. 06-O-13536:
18. On September 1, 2004, Eunice Williamson ("Williamson") employed Respondent to pursue an action against Keith Sidebottom regarding a automobile accident later filed on February 7, 2005 as Williamson v. Sidebottom, case no. 064253, Riverside County Superior Court (the "Sidebottorn" case). Respondent agreed to handle Williamson’s case on a contingency fee basis. Williamson advanced Respondent $425 for costs.
19. Respondent did not notify Williamson of his actual suspension after his actual suspension began on August 22, 2005. On April 13, 2006, Williamson met with Respondent to discuss her case. Respondent did not inform Williamson during their meeting and discussion of her case, that he was actually suspended from the practice of law.
20. On May 3, 2006, Williamson telephoned Respondent and left a message requesting Respondent’s opinion on whether or not she should file a claim against her own insurance company regarding the Sidebottom litigation. Williamson sent Respondent a letter on May 9, 2006 requesting the same advice. On May 9, 2006, Respondent left Williamson a telephone voice message advising her not to file a claim against her own insurance carrier.
21. On June 16, 2006, Williamson met with Respondent and again discussed her case. Again, Respondent did not inform Williamson that he was actually suspended from the practice of law.
22. By providing Williamson with legal advice by telephone and in person, and by remaining as attorney of record in the Williamson case during his period of actual administrative suspension, and not entitled to practice law, Respondent wilfully violated Business and Professions Code, section 6068(a), by holding himself out as practicing or entitled to practice law or otherwise practicing law when he was not an active member of the State Bar, in violation of Business and Professions Code, sections 6125 and 6126.
CASE NO. 07-O-15030: (Investigation Matter)
23. From on or about August 22, 2005 to on or about October 10, 2006, when Respondent was administratively suspended from the practice of law, he committed other acts involving the unauthorized practice of law.
24. For purposes of this stipulation, Respondent contends that he was suffering from emotional difficulties stemming from a bitter marital dissolution and financial difficulties. Because of these difficulties, Respondent continued to hold himself out or practice law during his administrative suspension. Respondent understands that these difficulties do not excuse or justify his misconduct.
25. In Riverside County Superior Court case no. TEC067608, entitled Leehy v. Ortega, Respondent filed several pleadings as Attorney of Law during his administrative suspension.
26. In September 2006, Respondent agreed to represent Jong Song ("Song") in a hearing before the California Medical Board in case no. 09-2004-159780. Respondent charged Song for $150/hour for 12.2 hours of legal work performed during Respondent’s administrative suspension and, consequently, collected $1830.00 in illegal fees. Respondent knew he was not entitled practice law at this time but accepted this case in order to obtain money. Respondent returned to active status with the State Bar on October 10, 2006, and continued to work on Song’s case through completion of the hearing. A decision by the Medical Board was issued on January 9, 2007.
27. By filing pleadings in Leehy v. Ortega, accepting representation of Song, and otherwise continuing his taw practice during the period of his administrative suspension, Respondent wilfully violated Business and Professions Code, section 6068(a), by holding himself out as practicing or entitled to practice law or otherwise practicing law when he was not an active member of the State Bar, in violation of Business and Professions Code, sections 6125 and 6126.
28. By intentionally engaging in the unauthorized practice of law during the time of his administrative suspension, Respondent committed acts involving moral turpitude, dishonesty or corruption in violation of Business and Professions Code section 6106.
29. By charging and collecting a fee for legal services performed while he was on actual administrative suspension, Respondent charged or collected an illegal or unconscionable fee, in violation of Rules of Professional Conduct, rule 4-200(A).
OTHER CIRCUMSTANCES:
During discussions in case no. 07-0-15030, Respondent notified the State Bar of his misconduct in the Song matter. Without such notification, the State Bar would not have been aware of the misconduct.
SUPPORTING AUTHORITIES:
Std. 2.3 provides for a range of discipline from actual suspension to disbarment for an act of moral turpitude.
Std 2.6 provides for a range of discipline from suspension to disbarment for a violation of Business and Profession Code sections 6068(a), 6125, 6126. Std 2.2 provides for a minimum of three months actual suspension, irrespective of mitigating circumstances, for a violation of Rule 4-100.
Std. 2.7 provides for a minimum of six months actual suspension, irrespective of mitigating circumstances, for a violation of Rule 4-200.
Pursuant to the Standards, Respondent’s misconduct warrants significant discipline. The scope of his misconduct is far greater than any single or isolated act(s) of misconduct. Respondent repeatedly misused his CTA for approximately 19 months in connection with his wilful (and in bad faith) disobedience of family support orders. Respondent concealed his personal funds in his CTA in order to hide such funds from his ex-wife and in further attempts to circumvent his family law obligations. In addition, knowing that he was suspended from the practice of law, Respondent continued to provide legal services with the purpose of charging and receiving (illegal) attorney fees. Given the nature and scope of Respondent’s misconduct, including aggravation evidence, the appropriate level of discipline is a minimum of two years actual suspension and until reinstatement pursuant to Std 1.4(c)(ii).
PENDING PROCEEDINGS:
The disclosure date referred to, on page one, paragraph A.(7) was January 9, 2008.
COSTS:
Respondent acknowledges that the Office of Chief Trial Counsel has informed Respondent that as of January 9, 2008, the estimated prosecution costs in this matter are approximately $5,649.94. Respondent acknowledges that this figure is an estimate only. 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.
If Respondent fails to pay any installment within the time provided herein or as may be modified by the State Bar Court pursuant to section 6068.10, 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.)
OTHER CONDITIONS:
Within 60 days from the effective date of discipline, Respondent shall provide written notice to Leticia Madrigal of her right to initiate and participate in binding fee arbitration regarding fees owed in conjunction with Respondent’s services during the period of time Respondent was an active member of the State Bar. Respondent shall send such notices via U.S. Certified Mail and provide copies of such notices, certified mail receipts, and return receipts, to the Office of Probation with the 60-day period.
Within three months of any request for fee arbitration, Respondent shall participate in the fee arbitration proceedings and provide satisfactory proof of the proceedings to the Office of Probation with each quarterly report.
Respondent shall comply with any award, decision or final determination by the fee arbitrator. Within 30 days after the fee arbitrator’s issuance of an award, decision, or final determination, Respondent shall provide a copy of the award, decision, or final determination to the Office of Probation and satisfactory compliance thereof.
SIGNATURE OF THE PARTIES
Case Number(s): 06-O-10354, 06-O-13314, 06-O-13536 and 07-O-15030 (Investigation matter)
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: David R. Ortega
Date: January 16, 2008
Respondent’s Counsel: Ashod Mooradian
Date: January 17, 2008
Deputy Trial Counsel: Jayne Kim
Date: January 17, 2008
Case Number(s): 06-O-10354, 06-O-13314, 06-O-13536 and 07-O-15030 (Investigation matter)
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: January 23, 2008
[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 January 23, 2008, 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:
DAVID RICHARD ORTEGA ESQ
LAW OFC DAVID R ORTEGA
41538 EASTMAN DR #C
MURRIETA, CA 92562
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Jayne Kim and Ashod Mooradian, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 23, 2008.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court