Case Number(s): 07-O-10996
In the Matter of: Charles Colin Cossio, Bar # 167901, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Brandon K. Tady, Bar # 83045,
Counsel for Respondent: David Cameron Carr, Bar # 124510,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
<<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 10, 1993.
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 16 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 (3) billing cycles following the effective date of the Supreme Court order on this matter. (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-O-10996
In the Matter of: C. Colio Cossio
a. Restitution
checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee: Robert Russell or CSF
Principal Amount: $4924.00
Interest Accrues From: October 7, 2009
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. 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.
checked.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3. The requirements of this condition are
in addition to those set forth in rule 4-100, Rules of Professional Conduct.
checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
Case Number(s): 07-O-10996
In the Matter of: C. Colio Cossio
<<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.
checked. b. Within days/12 months/ 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 4 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: C. Colin Cossio, State Bar No. 167901
STATE BAR COURT CASE NUMBER: 07-O-10996-RAP
FACTS AND CONCLUSIONS OF LAW.
Respondent admits the following facts are true and he is culpable of the violations of the specified statutes.
Case number 07-O-10996-RAP.
FACTS.
1. Respondent was a sole practitioner. He delegated to his wife the responsibilities for managing his attorney client trust account ("CTA"). Respondent authorized his wife to make deposits into and write checks on his CTA.
2. When Respondent received a settlement check for a bodily injury claim, his practice was to tell his wife how the settlement funds were to be disbursed including the name of the payee and the amount of each check. Respondent’s wife wrote checks on the CTA and Respondent signed them.
3. Respondent’s wife is not an attorney and she did not have accounting or bookkeeping experience before she began managing Respondent’s CTA. Respondent did not instruct his wife how to properly manage the CTA. Respondent also did not independently review the CTA to verify his wife was properly managing this account.
4. On October 15, 2002, Robert E. Russell ("Russell") employed Respondent to represent him in an underinsured motorist bodily injury claim.
5. Russell received medical treatment for his bodily injuries from Sam Maywood, M.D ("Dr. Maywood") and Coast Surgery Center ("Coast"). On or about October 20, 2003, Respondent signed a medical lien on behalf of Russell agreeing to pay Dr. Maywood from any settlement of Russell’s bodily injury claim ("Maywood Lien").
6. On August 17, 2005, Russell and Respondent signed a medical lien agreeing to pay Coast from any settlement of Russell’s bodily injury claim ("Coast Lien").
7. In February 2006, Respondent settled Russell’s underinsured motorist claim following a binding arbitration. On or about February 9, 2006, Respondent received a settlement check from the underinsured motorist carrier. The settlement check was payable to Russell and Respondent in the sum of $236,638 in full satisfaction of the arbitration award. On or about February 9, 2006, the settlement check was deposited into Respondent’s CTA.
8. On February 17, 2006, Respondent provided Russell with a Final Accounting itemizing the gross arbitration award, attorney’s fees and costs, and outstanding medical liens and expenses. ("February Final Accounting"). The February Final Accounting listed outstanding medical liens of $4924.00 for BB&B Physical Therapy ("BB&B"), $2228.86 for Regents MRI ("Regents"), $9,983.00 for Dr. Maywood, and $10,655.00 for Coast for a total of $27,800.86. Respondent gave Russell a copy of the February Final Accounting and Russell reviewed it.
9. On February 17, 2006, Russell wrote on the February Final Accounting: "I dispute Dr. Sam Maywood and Coast Surgery Center billing please hold in trust pending negotiation of these bills." Below Russell’s statement on the February Final Accounting, Respondent wrote: "[f]unds will remain in Client Trust Account until resolved with providers.] On or about February 17, 2006, Russell signed the February Final Accounting.
10. Respondent agreed with Russell that he would use his best efforts to negotiate reductions in Dr. Maywood’s and Coast’s Liens.
11. According to the February Final Accounting, Respondent was required to maintain the sum of $27,800.86 in the CTA until he paid BB&B’s, Regent’s, Dr. Maywood’s and Coast’s Liens.
12. On April 7, 2006, June 7, 2006, and July 1 I, 2006 Nelly Normandia ("Nelly"), the billing supervisor from Dr. Maywood’s office, called Respondent because he did not pay Dr. Maywood’s lien. Nelly left messages for Respondent to call her. Respondent received the messages. Respondent did not respond to the messages.
13. On August 14, 2006, Respondent negotiated a 25% reduction of Coast’s Lien. Coast agreed to a reduction from $10,655 to $7,991 provided the reduced amount was paid within 30 days. Respondent did not inform Russell of the 25% reduction of Coast’s bill.
14. On August 29, 2006 and September 27, 2006, Andrea, a representative of Coast, called Respondent and left messages because Respondent did not pay Coast’s Lien. Respondent received the messages. Respondent did not respond to the messages.
15. On September 14, 2006, December 11, 2006, and January 8, 2007, Nelly sent Respondent letters because Respondent did not pay Dr. Maywood’s Lien. Respondent received these letters from Nelly. Respondent did not respond to the September 14, 2006, December 11, 2006, and January 8, 2007 letters.
16. On January 9, 2007, Nelly called Respondent because Respondent did not pay Dr. Maywood’s Lien. Nelly left a message for Respondent. Respondent received the message. Respondent did not respond to the message.
17. On February 9, 2007, Andrea from Coast called Respondent about payment of Coast’s lien. Respondent told Andrea he "dropped the ball" and he would call her back about payment.
18. On or about February 20, 2007 and March 16, 2007, April 16, 2007, Andrea from Coast called Respondent and left messages for him because he did not pay Coast’s Lien. Respondent received the messages. Respondent did not respond to the messages.
19. On April 19, 2007, Russell sent a letter to Respondent asking Respondent to contact him about the monies Respondent agreed to hold in trust to pay Dr. Maywood’s and Coast’s Liens. Respondent received the letter.
20. On May 6, 2007, Respondent provided Russell with another final accounting for Russell’s underinsured motorist claim ("May Final Accounting"). The May Final Accounting contained the statement that Respondent maintained $20,638.00 in his CTA including $9983.00 for Dr. Maywood’s Lien and $10,655.00 for Coast’s Lien. This statement was not correct and the amount maintained in the CTA on May 6, 2007 was substantially less than $20,638.00. The May Final Accounting also contained the statement that Respondent did not have any other monies held in trust for Russell. Respondent gave the May Final Accounting to Russell.
21. On May 6, 2007, Russell signed the May Final Accounting.
22. On May 11, 2007, a representative from Coast sent a letter to Respondent stating that if Coast’s Lien was not paid in full by May 21, 2009, Russell’s account would be turned over to collections. Coast withdrew its offer to reduce its lien by 25%.
23. On May 16, 2007, Respondent signed CTA check number 2063 payable to Dr. Maywood in the amount of $9,983. This is the full amount of Dr. Maywood’s Lien. On May 17, 2007, Respondent sent CTA check number 2063 to Dr. Maywood by U.S. Postal Service Certified Mail. Dr. Maywood received and cashed the check. Respondent did not attempt to negotiate any reduction of Dr. Maywood’s Lien.
24. On May 16, 2007, Respondent issued CTA check number 2064 payable to Coast in the amount of $10,665 as payment of Coast’s Lien. This is the full amount of Coast’s Lien. On May 17, 2007, Respondent sent CTA check number 2064 to Coast by U.S. Postal Service Certified Mail. Coast received the check and cashed it.
25. During the present disciplinary proceeding, the State Bar discovered from reviewing Respondent’s CTA records that Respondent did not pay BB&B’s and Regent’s Liens. Respondent agrees he did not pay BB&B’s and Regent’s Liens. Respondent did not know that BB&B’s and Regent’s Liens had not been paid.
26. Respondent immediately paid Regent’s Lien. Respondent attempted to locate BB&B and was not successful.
27. Respondent agrees to pay Russell $4924.00 which is the amount of BB&B’s Lien.
28. From on or about November 9, 2006 until on or about May 16, 2007 the balance in the CTA fell below $20,648, as follows:
Date: 11/09/2006, CTA Balance: $16,356.97
Date: 11/15/2006, CTA Balance: $15,356.97
Date: 11/16/2006, CTA Balance: $12,023.64
Date: 11/17/2006, CTA Balance: $13,523.64
Date: 11/29/2006, CTA Balance: $10,423.64
Date: 12/06/2006, CTA Balance: $8,923.64
Date: 12/11/2006, CTA Balance: $4,923.65
Date: 12/15/2006, CTA Balance: $4,423.65
Date: 12/28/2006, CTA Balance: $3,628.65
Date: 01/04/2007, CTA Balance: $3,028.65
Date: 01/08/2007, CTA Balance: $2,952.90
Date: 03/07/2007, CTA Balance: $17,952.90.
Date: 03/09/2007, CTA Balance: $7,656.74
Date: 03/12/2007, CTA Balance: $6,169.24.
Date: 03/15/2007, CTA Balance: $4,169.24
Date: 04/17/2007, CTA Balance: $3,335.91
Date: 04/19/2007, CTA Balance: $2,323.41
Date: 04/20/2007, CTA Balance: $2,003.41
Date: 05/01/2007, CTA Balance: $11,503.41
Date: 05/04/2007, CTA Balance: $9,253.41
Date: 05/09/2007, CTA Balance: $5,212.41
Date: 05/11/2007, CTA Balance: $4,712.41
Date: 05/14/2007, CTA Balance: $4,212.41
29. At all times between November 9, 2006 and May 16, 2007, the balance in the CTA was less than $27,800.86.
30. On April 20, 2007, the balance in Respondent’s CTA fell to $2,003.41. On that date, Respondent was required to maintain $27,800.86 in his CTA on behalf of Russell.
31. Respondent’s wife wrote checks on the CTA causing the balance to drop below $27,800.86. Respondent signed the checks but did not review the CTA to determine whether the checks were proper withdrawals. Respondent’s wife mistakenly believed that the $27,800.86 that was held in trust for Russell belonged to Respondent.
32. Respondent has paid Regent’s Dr. Maywood’s, and Coast’s Medical Liens. He has not paid BB&B’s Medical Lien because he cannot locate BB&B. Instead, Respondent agrees to pay the funds owed to BB&B directly to Russell.
CONCLUSIONS OF LAW
33. By failing to negotiate Dr. Maywood’s Lien, by failing to pay Coast’s Lien within 30 days to preserve the 25% reduction, and by failing to timely pay BB&B’s and Regent’s Liens, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in violation of California Rules of Professional Conduct ("Rules of Professional Conduct"), rule 3-110 (A).
34. By failing to maintain at least $27,800.86 in his CTA until he paid Dr. Maywood’s, Coast’s, BB&B’s, and Regent’s Liens, Respondent failed to maintain client funds in trust in wilful violation of Rules of Professional Conduct, rule 4-100(A).
35. By delegating management of the CTA to his wife and by not supervising her, Respondent was grossly negligent in the management of his CTA and his gross negligence caused him to unintentionally misappropriate $27,800.86 of Russell’s settlement funds for his own use. By unintentionally misappropriating $27,800.86 of Russell’s settlement funds for his own use, Respondent committed an act involving moral turpitude, dishonesty, or corruption in wilful violation of California Business and Professions Code, section 6106.
36. Respondent was grossly negligent in not knowing that funds were no longer in trust when he represented in the May Final Account that he maintained $20,638.00 in trust to pay Dr. Maywood’s and Coast’s Liens. By providing Russell with the May Final Account that included the unintentional misrepresentation that $20,638.00 was held in trust, Respondent committed an act involving moral turpitude, dishonesty, or corruption in wilful violation of Business and Professions Code, section 6106.
DISMISSALS
The parties respectfully request that the Court dismiss Count Four of the Notice of Disciplinary Charges filed in this matter on August 20, 2008. This Count alleges that Respondent failed to respond to Russell’s reasonable status inquiries in wilful violation of Business and professions Code, section 6068(m).
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND
STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed on August 20, 2008 and the facts contained in this Stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to a formal hearing on any charge not included in the Notice of Disciplinary Charges.
PENDING PROCEEDINGS.
None. The disclosure date referred to, on page 2, paragraph A(6), was September 29, 2009.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of September 25, 2009, the disciplinary costs in this matter are $3763. 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.
AGGRAVATING CIRCUMSTANCES.
See Section B of the Stipulation.
MITIGATING CIRCUMSTANCES.
Respondent was admitted to the State Bar on December 10, 1983 and he does not have a record of prior discipline. Respondent’s misconduct is serious; but, the State Bar acknowledges that In the Matter of Stamper (Review Department 1990)1 Cal. State Bar Ct. Rptr. 96, 106, the Review Department held that Standard 1.2 (e) (i) has been repeatedly applied by the Supreme Court in cases involving serious misconduct.
Respondent cooperated with the State Bar in the present disciplinary proceeding which is a mitigating circumstance under Standard 1.2 (e) (v).
Respondent provided the State Bar with five letters, three from attorneys and two from non-attorneys, attesting to his good character, to his community service, and to his military service in Iraq in Operation Desert Storm. These letters are a mitigating circumstance under Standard 1.2 (e) (vi).
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.
OTHER CONDITIONS NEGOTIATED BY THE PARTIES.
See Law Office Management Conditions attached to this Stipulation.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION.
See Section F (1) of the Stipulation.
FINANCIAL CONDITIONS, RESTITUTION.
See Financial Conditions attached to this Stipulation.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.2 (a) provides that culpability of a member of wilful misappropriation of entrusted funds or property shall result in disbarment. Only if the amount of funds or property misappropriated is insignificantly small or if the most compelling mitigating circumstances clearly predominate, shall disbarment not be imposed. In those latter cases, the discipline shall not be less than one-year actual suspension, irrespective of mitigating circumstances.
In the present proceeding, the stipulated discipline of two years actual suspension with the requirement of a Standard 1.4 (c) (ii) hearing is consistent with Standard 2.2 (a). Respondent’s misappropriation was caused by his gross negligence in delegating to his wife the management of his CTA and then failing to supervise her. Respondent’s years in practice without prior discipline, his recognition of wrongdoing by making restitution to Regents and BB&B or Russell, and his evidence of good character are important mitigating circumstances.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-10996
In the Matter of: C. Colio Cossio
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: C. Charles Cossio
Date: October 8, 2009
Respondent’s Counsel: David Cameron Carr
Date: October 8, 2009
Deputy Trial Counsel: Bradon K. Tady
Date: October 8, 2009
Case Number(s): 07-O-10996
In the Matter of: C. Colio Cossio
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.
Stipulation is 16 pages, not including this order.
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: Donald F. Miles
Date: October 22, 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 San Francisco, on October 23, 2009, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW 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:
DAVID C. CARR
LAW OFFICE OF DAVID CAMERON CARR
3333 CAMINO DEL RIO S STE 215
SAN DIEGO, CA 92108
<<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:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
BRANDON K. TADY, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on October 23, 2009.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court