Case Number(s): 07-J-12645-RAH
In the Matter of: Daniel Scott Wittenburg, Bar # 158254, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eli D. Morgenstern, Bar # 190560,
Counsel for Respondent: David Cameron Carr, Bar # 124510,
Submitted to: Assigned 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 8, 1992.
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 12 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. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: three billing cycles following effective date of the discipline herein. Please see pages 9 and 10 for further discussion regarding discipline costs. (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.
Case Number(s): 07-J-12645
In the Matter of: Daniel Scott Wittenberg, State Bar No.: 158254
<<not>> checked. a. Within days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
<<not>> checked. b. Within days/ months/ one (1) years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than six (6) hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Other:
IN THE MATTER OF: Daniel S. Wittenberg, State Bar No. 158254
STATE BAR COURT CASE NUMBER: 07-J-12645
AGREEMENTS AND WAIVERS PURSUANT TO BUSINESS AND PROFESSIONS CODE SECTION 6049.1.
1. Respondent’s culpability determined in the disciplinary proceeding in the State of Colorado would warrant the imposition of discipline in the State of California under the laws or roles in effect in this State at the time the misconduct was committed; and
2. The proceeding in the above jurisdiction provided Respondent with fundamental constitutional protection.
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are tree and that he is culpable of violations of the specified statute.
Facts
1. At all relevant times to the stipulated facts herein, Respondent was a member of the State Bar of California and Colorado.
2. In 2006, Respondent traveled to Georgia, where he met a colleague. Respondent and his colleague attended a college football game. At the time, Respondent had an existing client in Georgia.
3. On November 20, 2006, Respondent submitted a travel and expense report to his firm concerning the expenses that he incurred during the trip to Georgia. The travel and expense report that he submitted showed that expenses in the amount of $1,031.49 should be billed to the Georgia client.
4. On December 3, 2006, the firm reimbursed Respondent for the expenses reflected in the travel and expense report.
5. At or about the same time that Respondent was concluding his work for the Georgia client, Respondent’s firm reimbursed Respondent for his expenses. The client previously had made an overpayment against its account. Respondent held the client’s bill for December 2006.
6. In January 2007, Respondent’s firm’s billing department asked Respondent if the overpayment should be applied to the expenses that had been paid to Respondent. Respondent immediately notified the billing department that the expenses should not be applied to the overpayment. The billing department then returned the overpayment to the client. On March 13, 2007, on his own initiative, Respondent reimbursed the firm to cover the travel expense reimbursement that had been previously paid to him.
7. Respondent reported to the firm’s managing partner and risk management officer that he had presented a false expense reimbursement statement to the firm. Moreover, Respondent’s Georgia client was never billed for the expenses for which Respondent was reimbursed. Respondent and his firm agreed that Respondent would self-report his conduct to the Colorado Office of Attorney Regulation Counsel. Respondent and his firm also agreed that Respondent would be required to: (1) attend counseling; (2) double his annual CLE ethics requirements, and (3) submit all expense requests through the firm’s managing partner. The firm did not terminate Respondent’s employment.
8. On June 12, 2007, Respondent and the Colorado Office of Attorney Regulation Counsel entered into a Stipulation, Agreement, and Affidavit Containing the Respondent’s Conditional Admission of Misconduct (the "Stipulation"), in the matter titled, People of the State of Colorado v. Daniel Scott Wittenberg, Case No. 07PDJ038 ("the Colorado disciplinary matter"). The Stipulation was filed with the Supreme Court of Colorado on June 14, 2007.
9. On June 19, 2007, the Supreme Court of Colorado entered its Order approving the Stipulation. The Colorado Supreme Court found that Respondent violated Colorado Rules of Professional Conduct 8.4(c), the equivalent of California Business and Professions Code section 6106. The Supreme Court of Colorado ordered Respondent suspended from the practice of law for ninety (90) days, stayed imposition of the suspension, and placed Respondent on probation for two years. Pursuant to the stipulation, no actual suspension time was ordered.
10. On June 29, 2007, the Supreme Court of Colorado entered an Amendment to the Order approving the Stipulation. A certified copy of the Stipulation, the Order approving the Stipulation, and the Amendment to the Order approving the Stipulation are cumulatively attached hereto as Exhibit 1.
11. On or about June 28, 2007, Respondent advised the State Bar of California of the Supreme Court’s Order approving the Stipulation in the Colorado disciplinary matter. On or about July 3, 2007, Respondent advised the State Bar of California of the Supreme Court’s Amendment to the Order approving the Stipulation in the Colorado disciplinary matter.
12. Respondent is also a member of the bar of Washington State and the District of Columbia. The regulatory authorities in those jurisdictions have imposed reciprocal discipline identical to Colorado, i.e, stayed suspension of 90 days with no actual time.
Legal Conclusion
By presenting a false expense reimbursement statement to the firm, Respondent wilfully violated Business and Professions Code section 6106.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), is December 4, 2007.
OTHER CONDITIONS NEGOTIATED BY THE PARTIES.
Respondent must comply with the conditions of probation imposed by the Colorado Supreme Court in the disciplinary matter titled People of the State of Colorado v. Daniel Scott Wittenberg, Case No. 07PDJ038 ("the Colorado disciplinary matter").
Respondent must state under penalty of perjury in each quarterly report that he must submit to the Office of Probation whether he has complied with the conditions of probation imposed in the Colorado disciplinary matter.
In the event that the Colorado Supreme Court finds that Respondent has violated the conditions of probation imposed in the Colorado disciplinary matter and imposes a sanction against Respondent for the violation, Respondent must report the matter to the California State Bar pursuant to his duty under Business and Professions Code section 6068(o)(6).
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of December 4, 2007, the costs in this matter are $1,636. The costs are to be paid in equal amounts prior to February 1 for the following three billing cycles following the effective date of the Supreme Court Order. 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 6086.10, 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.)
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.3 of the Standards for Attorney Sanctions for Professional Misconduct ("Standard(s)") provides that, "[C]ulpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client or another person or of concealment of a material fact to a court, client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law."
In People v. Kotarek (Colo. 1997) 941 P.2d 925, the attorney submitted a false expense report and was paid the amount of $68.20. Unlike Respondent, the attorney concealed his conduct from his law firm, did not report to the Colorado Office of Attorney Regulation, and did not reimburse the firm until after his conduct was discovered and he was fired. The attorney was actually suspended for 90 days.
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
Lack of harm to a client or the person who is the object of the misconduct is a mitigating circumstance under Standard 1.2(e)(ii). Here, Respondent reported his submission of the false expense reimbursement statement to the firm and the Georgia client was never billed for this expense. Although the firm reimbursed Respondent for the expenses that he incurred on his trip to Georgia, Respondent reimbursed the firm to cover the travel expense reimbursement that had been previously paid to him.
Respondent displayed spontaneous candor and cooperation to the firm, the Colorado Office of Attorney Regulation Counsel, and the State Bar of California. This is a mitigating circumstance under Standard 1.2(e)(v).
Respondent reported to the firm’s managing partner and risk management officer that he had presented a false expense reimbursement statement to the firm and after he had, on his own initiative, reimbursed the firm to cover the travel expense reimbursement that had been previously paid to him. Respondent then agreed to self-report his conduct the Office of Attorney Regulation Counsel. Respondent and his firm also agreed that Respondent would be required to: (1) attend counseling; (2) double his annual CLE ethics requirements, and (3) submit all expense requests through the firm’s managing partner. Respondent is currently complying with these requirements. Respondent actions demonstrate his remorse, recognition of his misconduct, and were designed to timely atone for the consequences of his misconduct. Accordingly, Respondent is deserving of mitigation pursuant to Standard 1.2(e)(vii).
Respondent’s decision, made alone, to remedy the consequences of his misconduct and to cooperate fully in explaining the misconduct to his law firm are important.
Respondent has furnished evidence of his exemplary record of involvement in bar association and community service activities that demonstrate his good moral character and his commitment to the legal profession.
STATE BAR ETHICS SCHOOL EXCLUSION.
It is not recommended that Respondent attend State Bar Ethics School, because: (1) he resides in the state of Colorado; and (2) the Supreme Court of Colorado ordered Respondent to attend the ethics school sponsored by the Office of Attorney Regulation in the Order approving the Stipulation in the Colorado Disciplinary Matter.
In lieu of State Bar Ethics School, it is recommended that within one year of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than six (6) hours of Minimum Continuing Legal Education ("MCLE") approved courses in general legal ethics. Respondent cannot satisfy this condition with the submission of satisfactory evidence that he has completed the ethics school sponsored by the Office of Attorney Regulation. That is, Respondent cannot apply the credits earned by attending the ethics school sponsored by the Office of Attorney Regulation to the requirement that he complete no less than six 6 hours of MCLE approved courses in general legal ethics.
SIGNATURE OF THE PARTIES
Case Number(s): 07-J-12645
In the Matter of: Daniel Scott Wittenberg, State Bar No.: 158254
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: Daniel S. Wittenberg
Date: November 28, 2007
Respondent’s Counsel: David Cameron Carr
Date: December 3, 2007
Deputy Trial Counsel: Eli D. Morgenstern
Date: December 4, 2007
Case Number(s): 07-J-12645
In the Matter of: Daniel Scott Wittenberg, State Bar No.:158254
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: December 20, 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 Los Angeles, on December 21, 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:
DAVID C CARR ESQ
LAW OFFICE OF DAVID CAMERON CARR
3333 CAMINO DEL RIO STE S STE 215
SAN DIEGO, CA 92108
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Eli D. Morgenstern, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 21, 2007.
Signed by:
Julieta E. Gozales
Case Administrator
State Bar Court