Case Number(s): 07-H-10071
In the Matter of: Stephen Adrian Rodriguez, Bar # 219019, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Miho Mural, Bar # 235178
Counsel for Respondent: Stephen Allan Rodriguez, Sr., Bar # 158840
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: November 6, 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 February 8, 2002.
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. Costs are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: two (2) billing cycles following the effective date of the Supreme Court order. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.)
<<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.
Respondent has been diagnosed with Attention Deficit Disorder and received special accommodations during the bar exam. He is attempting to receive special accommodations for the MPRE, which he believes will enable him to pass the examination.
Respondent now realizes the seriousness of his misconduct and his ethical responsibilities to timely comply with the terms and conditions of any disciplinary order imposed against him.
IN THE MATTER OF: STEPHEN ADRIAN RODRIGUEZ, State Bar No. 219019
STATE BAR COURT CASE NUMBER: 07-H-10071
FACTS AND CONCLUSIONS OF LAW
Stephen Adrian Rodriguez ("Respondent") admits that the following facts are tree and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
FACTS
1. Respondent was admitted to the practice of law in the State of California on February 8, 2002, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California.
2. On or about October 19, 2005, Respondent entered into a Stipulation Re Facts, Conclusions of Law and Disposition ("Stipulation") with the State Bar of California in case no. 05-0-00098.
3. On or about November 18, 2005, the Heating Department of the State Bar Court filed an Order approving the Stipulation and imposing upon Respondent a public reproval with conditions (the "Order").
4. On or about November 18, 2005, the Order was properly served by mail upon Respondent.
5. The Order and the public reproval became effective on December 9, 2005.
6. Pursuant to the November 18, 2005 Order, Respondent was required to comply with certain terms and conditions attached to the public reproval, including the following conditions:
a. To comply with the State Bar Act and the Rules of Professional Conduct during the condition period attached to the reproval;
b. To submit to the Office of Probation written quarterly reports each January 10, April 10, July 10 and October 10 of each year or part thereof during the condition period attached to the reproval, certifying under penalty of perjury that he has complied with all provisions of the State Bar Act and the Rules of Professional Conduct during the preceding calendar quarter or part thereof covered by the report and to file a final report no earlier than twenty days prior to the expiration of the condition period attached to the reproval and not later than the last day of said period; and
c. To take and pass the Multistate Professional Responsibility Examination ("MPRE") administered by the National Conference of Bar Examiners mad provide satisfactory evidence of same to the Office of Probation within one (1) year of the effective date of the discipline order.
7. On or about December 5, 2005, a Probation Deputy from the Office of Probation wrote a letter to Respondent in which she reminded Respondent of the terms and conditions of the public reproval imposed upon Respondent pursuant to the November 18, 2005 Order. In the December 5, 2005 letter, the Probation Deputy specifically advised Respondent that his first quarterly report was due on April 10, 2006, that he was required to take and pass the MPRE by or before December 9, 2006, and that he was required to complete State Bar Ethics School and provide proof of his compliance to the Office of Probation by or before December 9, 2006. Enclosed with the letter to Respondent were a copy of the portion of the Stipulation setting forth the conditions of Respondent’s reproval, a Quarterly Report form specially tailored for Respondent to use to submit his quarterly reports, a quarterly report information sheet, a schedule for the MPRE, and an information sheet and schedule for State Bar Ethics School.
8. The Probation Deputy’s December 5, 2005 letter to Respondent was mailed on or about December 5, 2005 via the U.S. Postal Service, first class postage prepaid, in a sealed envelope properly addressed to Respondent at his State Bar membership records address. The letter was not returned by the U.S. Postal Service as undeliverable or for any other reason.
9. Respondent received the December 5, 2005 letter from the Probation Deputy.
10. On or about April 4, 2006, Respondent filed the April 10, 2006 quarterly report with the Office of Probation, but the report was defective. In the report, Respondent failed to certify under penalty of perjury that he had complied with the State Bar Act and Rules of Professional Conduct.
11. On or about May 31, 2006, a Supervising Attorney from the Office of Probation wrote a letter to Respondent advising him that the April 10, 2006 quarterly report that was filed on or about April 4, 2006 was defective. In the letter, she enclosed a blank quarterly report form and requested Respondent to correct the defect and re-submit the April 10, 2006 quarterly report within the next week.
12. The Supervising Attorney’s May 31, 2006 letter to Respondent was mailed on or about May 31, 2006 via the U.S. Postal Service, first class postage prepaid, in a sealed envelope properly addressed to Respondent at his State Bar membership records address. The letter was not returned by the U.S. Postal Service as undeliverable or for any other reason.
13. Respondent received the May 31, 2006 letter from the Supervising Attorney.
14. On or about July 10, 2006, Respondent belatedly re-submitted the amended April 10, 2006 quarterly report to the Office of Probation. He failed to submit it by June 7, 2006, as requested by the Supervising Attorney from the Office of Probation.
15. On or about July 10, 2006, Respondent timely filed the July 10, 2006 quarterly report with the Office of Probation.
16. On or about August 30, 2006, a Probation Deputy from the Office of Probation wrote a letter to Respondent acknowledging receipt of the July 10, 2006 quarterly report. In the letter, she reminded him that his next quarterly report was due on or before October 10, 2006, that the final report was due by December 9, 2006, and that he must submit proof of completion of the MPRE no later than December 9, 2006. In bold writing, she advised him that, "FAILURE TO TIMELY FILE THE FINAL REPORT AND/OR ANY OTHER REQUIRED PROOF OF COMPLIANCE WILL RESULT IN A REFERRAL FOR REVIEW AND DETERMINATION OF FURTHER ACTION."
17. The Probation Deputy’s August 30, 2006 letter to Respondent was mailed on or about August 30, 2006 via the U.S. Postal Service, first class postage prepaid, in a sealed envelope addressed to Respondent at his State Bar membership records address. The August 30, 2006 letter was not returned by the U.S. Postal Service as undeliverable or for any other reason.
18. Respondent received the August 30, 2006 letter from the Probation Deputy.
19. On or about October 11, 2006, Respondent belatedly filed with the Office of Probation the quarterly report, which was due on or before October 10, 2006.
20. On or about December 13, 2006, after the reproval period ended, Respondent filed a motion for extension of time to take and provide proof of passage of the MPRE.
21. On or about December 14, 2006, Respondent belatedly filed with the Office of Probation the final report, which was due on or before December 9, 2006. In the final report, Respondent indicated that he had taken the MPRE on November 4, 2006, but did not pass the examination. He indicated in the final report that he had registered to take the March 10, 2007 MPRE.
22. On or about December 20, 2006, the State Bar of California, by and through the Office of Probation, filed and properly served Respondent with its opposition to his motion for extension of time.
23. On or about January 3, 2007, Respondent filed a reply to the State Bar’s opposition to his motion for extension of time.
24. On or about January 4, 2007, the State Bar Court filed its Order, denying Respondent’s motion for extension of time based on the fact that Respondent’s motion was not timely.
25. On or about January 11, 2007, Respondent filed a motion for reconsideration.
26. On or about January 19, 2007, the State Bar of California, by and through the Office of Probation, filed and properly served Respondent with its opposition to Respondent’s motion for reconsideration.
27. On or about February 14, 2007, the State Bar Court filed its Order, denying Respondent’s motion for reconsideration because no good cause had been shown.
28. On or about March 10, 2007, Respondent took the MPRE, but did not receive a passing score.
29. To date, Respondent has failed to submit to the Office of Probation satisfactory proof of passage of the MPRE, which should have been completed no later than December 9, 2006.
CONCLUSIONS OF LAW
By failing to timely re-submit a compliant quarterly report that was due on April 10, 2006, by failing to timely submit the quarterly report that was due on October 10, 2006 and the final report that was due on December 9, 2006, and by failing to submit proof of passage of the MPRE, which proof was due by December 9, 2006, Respondent failed to comply with the conditions of the public reproval, in willful violation of rule 1-110 of the Rules of Professional Conduct.
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A(7), was October 4, 2007.
AUTHORITIES SUPPORTING DISCIPLINE
Pursuant to Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct ("Standards"), the primary purposes of disciplinary proceedings and imposing 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."
Here, the requested discipline complies with Standard 1.3.
Standard 1.6(a) provides that the appropriate sanction for an act of professional misconduct shall be the sanction set forth in the Standards for the particular misconduct found or acknowledged.
Standard 2.9 provides that, "[c]ulpability of a member of a wilful violation of rule 1-110, Rules of Professional Conduct, shall result in suspension" (emphasis added).
Finally, Standard 1.7(a) provides that if a member is found culpable of misconduct and has a prior record of one imposition of discipline, the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior was remote in time and the offense for which it was imposed was so minimal that it would be manifestly unjust to impose greater discipline in the current proceeding.
The Supreme Court gives the Standards "great weight," and will reject a recommendation consistent with the Standards only where the Court entertains "grave doubts" as to its propriety. In re Naney (1990) 51 Cal. 3d 186, 190; see also In re Silverton (2005) 36 Cal. 4th 81, 91, 92. Further, although the Standards are not mandatory, it is well established that the Standards may be deviated from
only when there is compelling, well-defined reason to do so. See Aronin v. State Bar (1990) 52 Cal. 3d 276, 291; see also Bates v. State Bar (1990) 52 Cal. 3d 1056, 1060, fn. 2.
In the case at bar, the stipulated discipline is within the range of discipline prescribed by the Standards as set forth above. Also, it is supported by case law. The case most analogous to the matter before us is Conroy v. State Bar (1990) 51 Cal. 3d 799. In Conroy, the underlying discipline was a private reproval with conditions, one of which was that respondent was required to take and pass the Professional Responsibility Examination ("PRE’) within one year of the effective date of the reproval, on or before December 30, 1987. The respondent failed to timely take and pass the PRE. However, he did tardily take and pass the PILE in March 1988, before the State Bar filed the reproval violation proceeding. In Conroy, the respondent defaulted at the Hearing Department level and was found culpable of willful violation of rule 9-101 of the former Rules of Professional Conduct, the precursor to role 1-110 of the Rules of the Professional Conduct.
The Supreme Court in Conroy deemed the belated passage of the PRE to be an "extenuating factor," but not "significant mitigation." In aggravation, the Court found that the respondent had the one prior private reproval, that by defaulting, the respondent failed to appreciate the seriousness of the charges mad the importance of participating in the State Bar proceedings, and that by suggesting on review that his misconduct was a mere technical lapse, he had failed to show remorse for his misconduct. On balance, the Supreme Court concluded that the aggravating circumstances significantly outweighed the mitigating circumstances, and imposed a one (1) year suspension from practice, stayed, with a one (1) year period of probation on terms and conditions, including a sixty-day (60) actual suspension.
Unlike the attorney in Conroy, who only violated a single condition of his reproval, Respondent violated three separate reproval conditions: belatedly filing his quarterly reports, belatedly filing his final report, and failing to take and pass the MPRE by December 9, 2006, as ordered. Also, Respondent, unlike the attorney in Conroy, still has not taken and passed the MPRE, and therefore, has not brought himself into compliance with the conditions of his reproval. Although Respondent claims that he took the MPRE (for the third time) in August 2007, he waited until November 2006 to first take the exam, even though he was fully aware that he was required to take and pass the MPRE by December 9, 2006.
Moreover, even though Respondent’s misconduct is more egregious than that of the attorney in Conroy, the State Bar is willing to resolve the matter for less discipline because Respondent has been participating in the disciplinary proceedings, has been candid and cooperative, and has acknowledged and accepted responsibility for his misconduct. More importantly, unlike the attorney in Conroy, who was found to have several aggravating factors against him, the only aggravation against Respondent is his prior record of discipline. Thus, by imposing a six (6) months period of stayed suspension, with one (1) year probation with conditions, the public, the courts, and the legal profession would be adequately protected and the purposes of the disciplinary proceedings will be achieved.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that, as of October 4, 2007, the costs in this matter are $1,636.00. Costs to be paid in equal amounts prior to February 1 for the following two (2) billing cycles following the effective date of the Supreme Court order. Respondent further acknowledges that should this stipulation be rejected or should relief from this stipulation be granted, the costs in this matter may increase due to the costs of further proceedings.
SIGNATURE OF THE PARTIES
Case Number(s): 07-H-10071
In the Matter of: Stephen Adrian Rodriguez
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: Stephen Adrian Rodriguez
Date: October 19, 2007
Respondent’s Counsel: Stephen Allen Rodriguez, Sr.
Date: October 19, 2007
Deputy Trial Counsel: Miho Murai
Date: October 19, 2007
Case Number(s): 07-H-10071
In the Matter of: Stephen Adrian Rodriguez
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: November 5, 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 Los Angeles, on November 6, 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 Los Angeles, California, addressed as follows:
STEPHEN A. RODRIGUEZ
4801 WILSHIRE BLVD #301
LOS ANGELES, CA 90010
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Miho Murai, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 6, 2007.
Signed by:
Milagro del R. Salmeron
Case Administrator
State Bar Court