Case Number(s): 06-O-14939-RAP
In the Matter of: Deirdre Mary-Ellen Kraft, Bar # 179539, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Larry DeSha, Bar # 117910,
Counsel for Respondent: Gastone Bebi, Bar # 110183,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: June 5, 2009.
<<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 6, 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 8 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 (public reproval).
checked. Case ineligible for costs (private reproval).
<<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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
<<not>> checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
IN THE MATTER OF: DEIRDRE MARY-ELLEN KRAFT, State Bar No. 179539
STATE BAR COURT CASE NUMBER: 06-O-14939-RAP
IN THE MATTER OF: DEIRDRE MARY-ELLEN KRAFT
CASE NO.: 06-O-14939-RAP
FACTS
1. On July 8, 2005, Respondent was hired by Linda Dias ("Dias") for a dissolution of marriage. They signed a fee agreement providing that Respondent would work for up to 12.0 hours on the case for a minimum fee of $2,100.00. Dias paid the $2,100.00.
2. On July 19, 2005, Dias reported that she and her husband had reconciled, and instructed Respondent to place the case on hold. On July 22, 2005, Dias requested a refund of any unearned fee. Respondent refused, citing that she had expended 6.37 hours on the case and was entitled to her minimum fee of $2,100.
3. On January 11, 2006, Dias informed Respondent that the reconciliation did not work, and instructed Respondent to proceed with the dissolution of marriage. Respondent agreed to credit Dias with the 5.63 hours remaining under the fee agreement, and sent Dias new forms to update and return. Dias did not provide the updated information.
4. On June 6, 2006, Dias sent Respondent a letter terminating her services and requesting a refund of unearned fees. Respondent refused to refund anything, citing that she had spent a total of 9.58 hours on the case.
5. On October 6, 2006, Dias sent a written complaint to the State Bar, alleging that Respondent had failed to perform, communicate, and provide a refund. On November 9, 2006, the State Bar notified Respondent of Dias’s allegations and requested Respondent’s written response. On December 9, 2006, Respondent sent her written response, denying any misconduct.
6. On March 5, 2007, .Dias sent Respondent a letter demanding a settlement offer within one week. Otherwise, Dias would request fee arbitration.
7. On March 7, 2007, Respondent sent Dias a letter accusing Dias of making false claims to the State Bar concerning Respondent, but offering to refund $1,050.00 if Dias would sign a written agreement to "waive any further claims and to stop any present claims that we have or may have pending against each other." Dias rejected this offer by letter of March 20, 2007.
8. On March 29, 2007, Respondent sent a second letter to Dias, still offering to retired the $1,050.00 if Dias would agree to "waive any and all future legal or administrative rights." As of that date, Dias’s remaining rights were to request fee arbitration and to determine whether it would be binding or nonbinding. Dias rejected Respondent’s offer and requested fee arbitration.
9. The parties subsequently agreed to binding arbitration, and the hearing was held on March 21, 2008. On April 4, 2008, the arbitrator issued the award, which held that Respondent was entitled to keep the entire $2,1000 Dias did not request reconsideration or other review, and the award became final on July 14, 2008.
10. This complaint from Dias is the only complaint ever filed with the State Bar against Respondent.
11. Dias took no action in response to Respondent’s improper offer of settlement, and Respondent’s misconduct caused no harm to Dias or the State Bar’s investigation.
12. At all stages since the dispute between Dias and Respondent arose, Respondent was candid with Dias. During the State Bar’s investigation of Dias’s complaint, both Dias and her counsel have cooperated fully and have been candid at all times, including their prompt stipulation to all material facts.
CONCLUSIONS OF LAW:
1. By accusing Dias of making false claims against Respondent to the State Bar, and then offering a refund of $1,050.00 in exchange for stopping any present or pending claims, Respondent sought an agreement to withdraw a disciplinary complaint to the State Bar, in willful violation of Business and Professions Code, section 6090.5(a)(2).
DISMISSALS:
1. The State Bar requests dismissal of Count One, alleging failure to refund an unearned fee in violation of Rule 3-700(D)(2), on grounds of lack of evidence. [Rule 262(a).]
2. The State Bar further requests dismissal of Count Three, alleging a threat of criminal charges to obtain an advantage in a civil dispute in violation of Rule 5-100(A), on the grounds of furtherance of justice. [Rule 262(e)(1).]
SUPPORTING AUTHORITY:
Business and Professions Code section 6090.5(a) states its own range of discipline for violations of the statute. The range runs from private reproval to disbarment.
There is no other published authority for the appropriate discipline for a violation of the statute without some other violation.
PENDING PROCEEDINGS:
The disclosure date referred to on page 2, paragraph A.(7), was May 27, 2009.
SIGNATURE OF THE PARTIES
Case Number(s): 08-O-14939-RAP
In the Matter of: DEIRDRE MARY-ELLEN KRAFT
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: Deirdre Mary-Ellen Kraft
Date: May 28, 2009
Respondent’s Counsel: Gastone Bebi
Date: May 28, 2009
Deputy Trial Counsel: Larry DeSha
Date: May 29, 2009
Case Number(s):08-O-14939-RAP
In the Matter of: DEIRDRE MARY-ELLEN KRAFT
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department 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 125(b), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: June 4, 2009
[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 Los Angeles, on June 5, 2009, 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:
GASTONE BEBI
444 WEST “C” STREET STE 400
SAN DIEGO, CA 92101
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
<<not>> checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERNEST LARRY DESHA, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on June 5, 2009.
Signed by:
Angela Owens-Carpenter
Case Administrator
State Bar Court