Case Number(s): 06-O-14507, 07-O-10129
In the Matter of: Jennifer Fay Blackburn, Bar # 214781, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Bar # 214209
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
Filed: October 23, 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 November 5, 2001.
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 are added to membership fee for calendar year following effective date of discipline.
<<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.
FACTS AND CONCLUSIONS OF LAW
Case No. 06-O-14597
Facts
1. From November of 2001 through September 15, 2003, respondent was an associate attorney and employee of the law firm Kharazi & Sirabian,
2. On November 6, 2002, Virginia Mae Smith ("Smith") and Joan Charleen Rodman ("Rodman") employed the Kharazi & Sirabian firm to file Chapter 7 bankruptcy petitions on their behalf. Although Smith and Rodman are domestic partners, each signed a separate fee agreement with the Kharazi & Sirabian firm to file a joint Chapter 7 bankruptcy petition. Respondent signed the fee agreements on behalf of Hadi-Ty S. Kharazi ("Kharazi"). Respondent explained to Smith that they would each need to file separate bankruptcy petitions. Smith and Rodman paid a total of $800 in attorney’s fees to the Kharazi & Sirabian firm~ Respondent was assigned to work on Smith and Rodman’s cases.
3. On November 21, 2002, respondent received Smith and Rodman’s completed questionnaires.
4. On November 25, 2002, respondent wrote to Smith and Rodman regarding issues in the case. She also advised Rodman to sell real property she owned in Oregon.
5. On February 3, 2003, Smith and Rodman wrote to respondent’s paralegal, Laura, with updated information about their income and informed her that the Oregon property had not sold. Smith and Rodman asked that respondent contact them if she needed more information. Respondent received the updated information.
6. On March 1,2003, Smith and Rodman reviewed drafts of their bankruptcy petitions.
7. On September 15, 2003, respondent ended her employment with Kharazi & Sirabian. Respondent and Kharazi orally agreed that beginning on September 16, 2003, respondent would complete the bankruptcy cases she was already working on for the firm and that he would refer any new bankruptcy cases that came into the firm to her. Respondent agreed to complete work on the Smith and Rodman cases without further compensation from the clients.
8. On April 7, 2004, Smith called respondent at the Kharazi and Sirabian firm. Smith was told that respondent no longer worked for the firm and was given respondents address and telephone number.
9. Respondent took no further steps to complete the bankruptcy matter for Smith and Rodman, including not filing the bankruptcy petition.
10. On October 25, 2005, one of Smith’s creditors, Unifund CCR Partners ("Unifund"), filed a lawsuit against Smith for a debt owed on a credit card. Unifund CCR Partners v. Virginia Smith, Fresno County Superior Court case number 05CLCL00614. Smith had provided information about this debt to respondent when she employed her to file the bankruptcy petition. After receiving notice about the Unifund lawsuit, Smith and Rodman called respondent on several occasions to determine the status of the bankruptcy petition, leaving messages for respondent to return their calls. Respondent received the messages, but did not respond.
11. In January 2006, Smith and Rodman went to Central California Legal Services, Inc. ("CCLS") due to fact that respondent had not filed a bankruptcy petitions on their behalf.
12. In February 2006, Ofra Pleban ("Pleban"), an attorney with CCLS called and spoke to respondent about Smith and Rodman’s case. Respondent told Pleban that she would help Smith and Rodman with their bankruptcy filings and asked that Pleban give Smith and Redman her cell telephone number so that they could contact her directly. Pleban also gave respondent Smith’s telephone number at that time. After the conversation with Plegan, respondent took no actions to complete the bankruptcy matter for Smith and Rodman,
13. On April 26, 2006, Pleban wrote respondent a letter stating respondent had failed to complete the bankruptcy matter, failed to communicate with Smith and Rodman, and requesting that she take action in the matter right away. Respondent received the letter, but did not respond to it. After April 2006, respondent took no steps to complete the bankruptcy matter for Smith and Rodman.
Conclusions of Law
By not filing the petitions or taking any other steps to complete the bankruptcy matters for Smith and Rodman, respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
By not Informing Smith and Rodman that she had left the Kharazi and Sirabian firm and not notifying them of her new address and telephone number, respondent has failed to keep a client reasonably informed of significant developments in a matter in which respondent had agreed to provide legal services in willful violation of section 6068(m) of the Business and Professions Code.
By not returning Smith and Rodman’s telephone calls and not responding to Pleban’s letter regarding the status of the bankruptcy matter, respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services in willful violation of section 6068(m) of the Business and Professions Code.
Case No. 07-O-10129
Facts
1. On November 24, 2003, Christopher Dondero ("Dondero") employed respondent to represent him in a bankruptcy matter. Dondero paid respondent a total of $635 as fees.
2. On September 1, 2004, Dondero spoke to respondent to confirm she had received the final payment for fees. Respondent confirmed receipt of his final payment and assured him that she did not need anything further to file the petition.
3. From September 15, 2004 through December 2005, Dondero called respondent approximately once per month to determine the status of his bankruptcy case, leaving messages for her to return his calls. Respondent received the messages, but did not return Dondero’s calls. During the period of September 2004 through December 2005, Dondero went to respondent’s office at 1145 W. Shaw Avenue, Fresno. Respondent’s office was empty. Dondero also tried to send respondent a facsimile, but found that the number was disconnected.
4. Respondent took no steps to pursue Dondero’s bankruptcy matter, including not filing the bankruptcy petition. Respondent’s services Were of little or no value to Dondero. However, respondent did not return any portion of the fees that Dondero paid.
5. On February 22, 2007, a State Bar investigator wrote respondent a letter requesting a response to Dondero’s allegations by March 10, 2007. On March 9, 2007, respondent sent a letter via facsimile to the State Bar investigator requesting an extension to respond to Dondero’s complaint until March 26, 2007.
6. On March 9, 2007, the State Bar investigator wrote respondent a letter in which she granted her request for an extension to respond by March 27, 2007.
7. Thereafter, respondent failed to provide a written response to the letter.
Conclusions of law
By not pursuing Dondero’s bankruptcy matter, respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
By not returning Dondero’s telephone calls regarding the status of his case, respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which respondent had agreed to provide legal services in willful violation of section 6068(m) of the Business and Professions Code.
By not informing Dondero that she had moved from her office, respondent failed to keep a client reasonably informed of significant developments in a matter in which respondent had agreed to provide legal services in willful violation of section 6068(m) of the Business and Professions Code.
By failing to refund any portion of the fees Dondero paid, respondent wilfully failed to refund promptly any part of a fee paid in advance that has not been earned in violation of rule 3-700(D)(2) of the Rules of Professional Conduct.
By failing to provide a written response to the State Bar investigator’s letter in the Dondero matter, respondent failed to cooperate with and participate in the State Bar investigation in willful violation of section 6068(i) of the Business and Professions Code.
WAIVER OF VARIANCE BETWEEN NDC AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed on June 27, 2007, 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 October 9, 2007.
MCLE
Because respondent has agreed to participate in MCLE courses as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of the MCLE courses.
SUPPORTING AUTHORITY
Standard 2.4(b) requires reproval or suspension for a respondent who has wilfully failed to perform services in which she was retained.
Standard 2.6(a) requires that a violation of Business and Professions Code section 6068 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.
Based on respondent’s misconduct in two client matters, a stayed suspension is the appropriate level of discipline.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
AGGRAVATING CIRCUMSTANCES
Standard 1.2(b)(iv). Due to respondent’s failure to perform, her clients were unable to file petitions for bankruptcy in a timely manner, causing significant harm to the clients.
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(iv). Respondent was in the process of relocating her family during the time that Ms. Smith, Ms. Rodman and Mr. Dondero were attempting to contact her.
Standard 1.2(e)(v). Respondent displayed spontaneous candor and cooperation to the State Bar during the disciplinary proceedings.
Standard 1.2(e)(vii). Respondent displayed remorse for her misconduct.
Case Number(s): 06-O-14507; 07-O-10129
In the Matter of: Jennifer Fay Blackburn
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: Christopher Dondero
Principal Amount: $635.00
Interest Accrues From: November 24, 2003
2. Payee:
Principal Amount:
Interest Accrues From:
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 .
<<not>> 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)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
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.
<<not>> 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.
SIGNATURE OF THE PARTIES
Case Number(s): 06-O-14507; 07-O-10129
In the Matter of: Jennifer Fay Blackburn
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: Jennifer Fay Blackburn
Date: October 12, 2007
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Susan I. Kagan
Date: October 18, 2007
Case Number(s): 06-O-14507; 07-O-10129
In the Matter of: Jennifer Fay Blackburn
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: George Scott
Date: October 23, 2007
[Rules Proc. of State Bar; Rule 5.27(B); 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 October 23, 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:
JENNIFER F. BLACKBURN
PMB 242
16-540 KEAAU PAHOA RD STE 2
KEAAU, HI 96749
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN I KAGAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on October 23, 2007
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court