Case Number(s): 07-O-10909
In the Matter of: Keith W. Lusk, Bar # 82379, A Member of the State Bar of California, (Respondent)
Counsel For The State Bar: Allen Blumenthal, Bar # 110243
Counsel for Respondent Bar #
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
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 29, 1978.
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 284, Rules of Procedure.
checked. costs to be paid in equal amounts prior to February 1 for the following membership years: 2009 and 2010. (hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
At the time of the stipulated acts respondent suffered physical difficulties which, while not extreme, contributed to respondent’s state of mind at the time of the misconduct. The difficulties were not the result of any illegal conduct or substance abuse and have been corrected by medication.
Attachment language begins here (if any):
IN THE MATTER OF: Keith W. Lusk
CASE NUMBER(S): 07-0-10909 ET AL.
FACTS AND CONCLUSIONS OF LAW.
A. FACTS
In 2006 and 2007, respondent Keith W. Lusk (hereinafter "respondent") was employed by International Credit Recovery, dba ICR (hereinafter "ICR") to represent it in recovering debts owed them. ICR is in the business of purchasing from creditors debts owed them and pursuing, as assignee, those debts, including filing lawsuits if necessary. Respondent represents ICR in its lawsuits to recovery those debts.
From September 18, 2006 until March 1, 2007, respondent was administratively suspended from the practice of law for failure to comply with his Mandatory Continuing Legal Education requirements ("MCLE"). As discussed post, despite this suspension, respondent continued to file lawsuits on behalf of ICR and continued to represent them in their matters.
On or about July 13, 2006, the State Bar of California’s Member Services Department sent respondent a 60-day non-compliance letter, notifying respondent that he was not in compliance with his MCLE requirements. Respondent received this July 13, 2006 letter, but failed to provide the State Bar evidence of his having complied with his MCLE requirements. On or about July 20, 2006, a State Bar Member Services employee telephoned respondent’s office and spoke with respondent’s assistant about respondent’s MCLE requirements, again advising him of his need to provide evidence of his compliance with his MCLE requirements. Respondent’s assistant informed respondent of this communication and of the State Bar’s need for him to comply with his MCLE requirements. Respondent, however, failed to provide the State Bar with evidence of his MCLE compliance.
On August 18, 2006, the State Bar’s Member Services sent respondent a final notice, by certified mail, which contained a warning letter stating that if respondent failed to comply with the MCLE requirements by September 15, 2006, the State Bar would place respondent on inactive status. On or about August 28, 2006, respondent’s wife, attorney Martha Lusk, received this August 18, 2006 letter from Member Services and signed to confirm the letter’s delivery. She informed respondent of this letter. Respondent knew that he was going to be suspended by September 18, 2006 if he did not comply with his MCLE requirements and provide evidence of that compliance to the State Bar.
Subsequently, respondent failed to comply with his MCLE requirements and failed to provide the State Bar with evidence of his compliance. On September 18, 2006, respondent was administratively suspended from the practice of law for failure to comply with his MCLE requirements. He was placed on inactive status and, thus, not entitled to practice law or hold himself out as entitled to practice law in California.
On September 25, 2006, the State Bar sent respondent a letter informing him that he had been suspended from the practice of law and placed on inactive status. Respondent received this September 25, 2006 letter by September 30, 2006.
On or about October 2, 2006, respondent mailed an MCLE compliance card to the State Bar stating "I have complied with the 25-hour MCLE requirement." On October 3, 2006, the State Bar sent to respondent a letter informing him that his reinstatement submission was incomplete because he failed to provide documentation to support his MCLE compliance. Subsequently, respondent failed to submit proper documentation to the State Bar. Respondent remained .on suspension and inactive status until March 2, 2007.
On or about February 16, 2007, respondent completed his MCLE compliance statement and sent his proof of study credit, verified by his wife, to the State Bar. On March 5, 2007, the State Bar notified respondent in writing that his active status was reinstated, effective March 2, 2007.
However, from September 18, 2006 through March 1, 2007, respondent, while suspended from the practice of law, had filed 49 lawsuits on behalf of ICR and continued to represent ICR in several other matters already filed. He also continued to file pleadings in those lawsuits and make appearances.
For example, on or about November 20, 2006, respondent filed an opposition to a motion to set aside default and default judgment filed by defendants, Jonathan and Deborah Aroz, in a matter entitled Metzler v. Aroz, Fresno Superior Court Case No. 04CECL 07453. He also appeared at a hearing via telephone on November 28, 2006 in that matter. The court ordered the defendants’ motion re-filed. When it was, respondent, on January 30, 2007, again filed an Opposition to Motion to set Aside Default and Default Judgment. On February 6, 2007, respondent appeared at a hearing via court call on the Aroz’ motion. He did all this while suspended from the practice of law.
B. CONCLUSIONS OF LAW
By filing pleadings, making appearances, and remaining the counsel of record in at least 49 civil cases while suspended and enrolled inactive for MCLE non compliance, respondent wilfully violated the law by practicing law in California without being an active member of the State Bar, in violation of Business & Professions Code section 6068(a) by violating Business & Professions Code, sections 6125 & 6126.
By filing pleadings and making appearances, when respondent was not entitled to practice law or hold himself out as entitled to practice law, respondent misrepresented his status to the Superior Court and, thus, engaged in acts of moral turpitude, in wilful violation of Business & Professions Code, section 6106.
SUPPORTING AUTHORITY
Both the Standards for Attorney Sanctions for Professional Misconduct (hereinafter "Standards") and case law support a period for actual suspension. Standard 2.6 of the Standards states:
Culpability of a member of a violation of any of the following provisions [6125 and 6126] of the Business and Professions Code shall result in disbarment or suspension depending on the gravity or harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3."
Standard 2.3 states:
Culpability of a member of an act of moral turpitude, fraud, 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.
The Supreme Court recently re-affirmed that great weight is to be given to the Standards and that they should be followed whenever possible. (In re Silverton (2005) 36 Cal.4th 81, 92 [emphasis added].)
Thus, while the Standards are not mandatory, the Supreme Court has held that they should be followed unless the charged attorney can demonstrate the existence of extraordinary circumstances justifying a lesser sanction. (In re Silverton, supra, 36 Cal.4th at 92.) It is Respondent’s burden to demonstrate that there are extraordinary circumstances justifying a lesser sanction than that recommended by the Standards.
Case law also supports a period of actual suspension. For example, in the Matter of Trousil (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 229, an attorney received a 30 day actual suspension for engaging in the unauthorized practice of law by representing one client in a bankruptcy matter while suspended for nonpayment of dues. In aggravation, the court found that Trousil had three prior records of discipline.
In Chasteen v. State Ear (1985) 40 Cal.3d 586, an attorney who practiced law while suspended for over a year, failed to act competently and commingled and misappropriated funds, was suspended for five years, stayed, including 60 days actual suspension. Chasteen also had a prior record of discipline. In mitigation, the court found that Chasteen suffered from alcoholism and severe depression.
In Farnham v. State Bar (1976) 17 Cal.3d 605, an attorney who engaged in the unauthorized practice of law, violated his oath and duties as an attorney, and committed acts involving moral turpitude and dishonesty, was suspended for two years, stayed, including six months actual suspension. Farnham had a prior record of discipline. In In the Matter of Taylor (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 563, an attorney was disbarred for failure to perform and communicate and failure to return client files and unearned fees and for engaging in the unauthorized practice of law while suspended for nonpayment of membership dues. The court found that "practicing law while suspended has resulted in a range of discipline from suspension to disbarment, depending on the circumstances of the misconduct, including the nature of any companion charges and the existence and gravity of prior disciplinary proceedings." Id. at 580.
The recommended discipline for this matter is well within the Standards and case law. In recommending 30 days actual suspensions the parties took into account that respondent had no record of prior discipline in 29 years of practicing law, that respondent’s violations involved the unauthorized practice of law in numerous civil cases, and respondent was suffering from health problems when he engaged in the misconduct. Thus, although the number of filings is greater than in Trousil, respondent’s lack of priors and all the circumstances here, make respondent’s case most like Trousil’s misconduct and, therefore, the parties agree he should receive a similar discipline. Respondent has acknowledged his misconduct and is aware that should he not comply with the conditions for his discipline, he will receive a significant period of actual suspension. Likewise, any future misconduct could lead to very significant discipline being imposed.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was December 13, 2007.
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.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-10909
In the Matter of: Keith W. Lusk, SBN 82379
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: Keith W. Lusk, in pro per
Date: 12/27/07
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Allen Blumenthal
Date: 1/11/08
Case Number(s): 07-O-10909
In the Matter of: Keith W. Lusk, SBN 82379
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: Lucy Armendariz
Date: 2/5/08
[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 San Francisco, on February 6, 2008, 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:
KEITH WILLIAM LUSK
P O BOX 26238
FRESNO, CA 93729 - 6238
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ALLEN BLUMENTHAL, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on February 6, 2008.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court