Case Number(s): 07-O-10009
In the Matter of: Frank Edward Miller, Bar # 162270, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Djinna M. Gochis, Bar # 108360,
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: June 17, 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 14, 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 10 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 (public reproval).
<<not>> 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.
<<not>> 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.
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.
See page 8-9. Respondent then employed a staff person who took several of his files, including this one.
IN THE MATTER OF: Frank Edward Miller, State Bar No. 162270
STATE BAR COURT CASE NUMBER: 07-O-10009
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
1. On February 10, 2006, Respondent was employed by Raymond Wang ("Wang") to substitute into his already pending divorce case.
2. Wang paid the Respondent $5,000.00.
3. In February 2006, after he was employed, Respondent prepared and served responses to Interrogatories and Production of Documents to opposing counsel, Raymond Nadel. ("Nadel").
4. The responses were not adequate and thereafter, Nadel sought to obtain further answers. He was unable to contact the Respondent by telephone or letter.
5. Nadel served a motion to compel, which was properly served on Respondent’s law office, and which was heard on May 23, 2006. Respondent did not appear. Respondent and his client were jointly sanctioned in the sum of $1,840.00. Respondent was properly served with notice of the sanction. Respondent was also ordered to respond without objection. He did not pay nor did he seek to modify or set aside the sanction, nor was any further response made. Respondent has not done so, to date.
6. In July 2006, Nadel filed a motion for evidentiary, terminating and further monetary sanctions. Respondent appeared on July 26, 2006. He was sanctioned an additional $1,415.00. The case was not terminated, and the balance of the motion was continued to September 15, 2006. Thereafter, Wang substituted the Respondent out of the case.
7. Between the time that he was employed in February 2006 and September 2006, Wang was unable to contact the Respondent with regard to the status of his case, either by telephone or by letter.
8. On October 2, 2006, Wang requested a refund of the unearned fees. Respondent has not refunded any portion of the unearned fees since that time.
9. Respondent has neither appealed, nor paid, the sanctions against him.
Conclusions of Law
By his conduct
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was May 28, 2009.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of May 15, 2009, the prosecution costs in this matter are $1,983. 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.
MITIGATING CIRCUMSTANCES.
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
During the time frame in which this misconduct occurred, Respondent was requested to hire, and did hire a criminal probationer, CL, in an effort to assist her in her rehabilitation. Respondent’s bookkeeper had an extended conversation with CL’s probation officer before they mutually decided to take the chance in employing her. They agreed she should not be allowed to handle any money. She did not handle any money. She seemed to be doing well at the job; however, she did fail to advise Respondent of contacts from Mr. Wang and other clients or opposing counsel. Respondent advises that he was thus unaware of the problem with the responses to interrogatories and production of documents until July 2006, when he made the appearance on the motion for terminating sanctions and was sanctioned the second time. He did not receive the prior motion for sanctions, for the hearing of May 2006, and therefore did not appear. This employee also took original files from Respondent’s office. Some were retrieved. Some were not, among them Mr. Wang’s file.
Although Respondent is being given mitigation credit as a result of the conduct of this employee, Respondent understands first, that it was his choice to hire someone who had questionable credentials to work in a law office and secondly, he should have been taking affirmative steps to assess the status of the case he took on behalf of Wang, and, when there was no apparent action in the file, he should have followed up. Had he done so, he would likely have discovered the problem, and been able to rectify it, rather than being sanctioned twice.
Respondent terminated the employee and her probation officer was made aware of the additional conduct.
STATE BAR ETHICS SCHOOL.
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
FINANCIAL CONDITIONS, RESTITUTION.
Within one (1) year from the effective date of discipline in this matter, respondent must make restitution to Raymond Wang or the Client Security Fund if it has paid, in the principal amount of $ $5,000 plus interest plus interest at the rate of 10% per annum from February 10, 2006 and furnish satisfactory evidence of restitution to the Office of Probation. Respondent shall include, in each quarterly report required herein, satisfactory evidence of all restitution payments made by him or her during that reporting period.
Within one (1) year of the effective date of the discipline in this matter, Respondent shall either pay the two pending sanctions against him for $1,840 and $1,450 respectively, or he must have them modified or set aside. Respondent shall provide proof of the payment or the order setting aside the sanctions within thirty (30) days after the payment or the order to set aside.
AUTHORITIES SUPPORTING DISCIPLINE.
Several of the standards in the Standards for Attorney Sanctions for Professional Misconduct apply in analyzing the best disposition to satisfy the protection of the public, the courts, the legal profession, as well as the maintenance of high professional standards and the preservation of public confidence as required by 1.3. Respondent has a prior, also in the area of performance and refund of fees. That was a private reproval. The prior was not remote in time nor, was it so minimal in severity that a higher level of discipline is unjust. (Standard 1.7). There was a communication breakdown between Respondent and his client as well as opposing counsel over several months. Such conduct may result in either reproval or suspension depending on the extent of harm. While Respondent will be addressing the sanctions, such that the client will never be responsible for them, Respondent should have been or readily become aware of the problem in his client’s case, and did not. (Standard 2.4). Conduct, which results in sanctions or a failure to obey a court order can lead to suspension or disbarment depending on the harm (Standard 2.6).
Balancing the facts of the case, as mitigated by the conduct of an employee that was not discovered for nearly nine months, a public reproval with the conditions as outlined above seems appropriate to address the willful failures in this case.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-10009
In the Matter of: Frank Edward Miller
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: Frank Edward Miller
Date: June 9, 2009
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Djinna M. Gochis
Date: June 9, 2009
Case Number(s): 07-O-10009
In the Matter of: Frank Edward Miller
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 with 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. Platel
Date: June 16, 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 17, 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:
FRANK E. MILLER
LAW OFFICE OF FRANK MILLER
6245 BRISTOL PKWY #421
CULVER CITY, CA 90230
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DJINNA GOCHIS, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on June 17, 2009.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court