Case Number(s): 07-O-11391; and 07-O-12957
In the Matter of: David Irvin Abrams, Bar # 133545, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Michael J. Glass, Deputy Trial Counsel
1149 South Hill Street
Los Angeles, CA 90015-2299
(213) 765-1254
Bar # 102700
Counsel for Respondent: Kevin Gerry, 433 N. Camden Drive, 4th Floor
Beverly Hills, CA 90210
(310) 275-1620
Bar # 129690
Submitted to: Settlement Judge
Filed: June 28, 2011 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 June 14, 1988.
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):
checked. Costs are awarded to the State Bar.
<<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.
ORDER OF INACTIVE ENROLLMENT:
The parties are aware that if this stipulation is approved, the judge will
issue an order of inactive enrollment under Business and Professions Code
section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule
5.111(D)(1).
Respondent was admitted to the practice of law in California on June 14, 1988, and has no prior record of discipline.
Respondent was cooperative with the State Bar during its investigation of Case Nos. 07-O-11391 and 07-O-12937.
At the time of the misconduct, Respondent was suffering from a bipolar condition which caused Respondent to suffer extreme emotional and physical difficulties. Respondent has since undergone treatment with the following: Dr. Alex Lazar, M.D., (Psychiatrist), from about 2005 through November 2008; Dr. Oscar Pakier, M.D., (Psychiatrist), from Nov. 2008 though the present; Dr. Karen Koch, LCSW, Psy.D, (Mental Health Therapist} off and on 2004-2005 through November 2008, then regular sessions from January 2009 through the present.
At the time of the misconduct, Respondent suffered from severe financial distress. Respondent had no savings and was forced to borrow over $90,000, from his parents to pay living expenses in 2007 and 2008. Respondent lost his office, car, and condominium. Respondent took the bus, rode his bike, and was forced to sell sentimental personal gifts to pawn shops in order to generate money.
At the time of the misconduct, Respondent suffered extreme difficulties in his personal life in that Respondent could not get along with his sister, brother-in-law, mother, and step-father. Respondent was constantly verbally attacking and fighting with them, and experienced extreme alienation and isolation as a result of his bipolar condition.
Respondent has also engaged in community service, from 2009 through the present, by volunteering and teaching a current events/news class each week, leading the Friday Night Shabbot Services, and serving as Vice President/Secretary of the Resident Council, at the Park Ventura Retirement Home in Woodland Hills, CA,. Additionally, from 2009 through the present, Respondent has done volunteer work at the Early Childhood Development Center in Woodland Hills, CA by reading stories to Pre-School children.
Restitution:
(a) Respondent must make restitution to Laura Marquez-Heredia ("Marquez-Heredia") in the amount of $28,639 plus 10 percent interest per year from April 12, 2006. If the Client Security Fund ("CSF") has reimbursed Marquez-Heredia for all or any portion of the principal amount of $28,639, respondent must pay restitution to CSF of the amount paid plus applicable interest and costs in accordance with Business and Professions Code section 6140.5. Respondent must furnish satisfactory proof of the restitution made to Marquez-Heredia and/or CSF to the State Bar’s Office of Probation.
(b) Respondent must make restitution to Robert and Liz Kalinowski ("the Kalinowskis") in the amount of $16,175 plus 10 percent interest per year from December 28, 2005. If the Client Security Fund ("CSF") has reimbursed the Kalinowskis for all or any portion of the principal amount of $16,175, respondent must pay restitution to CSF of the amount paid plus applicable interest and costs in accordance with Business and Professions Code section 6140.5. Respondent must furnish satisfactory proof of the restitution made to the Kalinowskis and/or CSF to the State Bar’s Office of Probation.
(c) On July 2, 2009, CSF paid $2,500 to Dorina Djurdjev ("Djurdjev") as reimbursement of the $2,500 paid to Respondent as advanced costs. Respondent must make restitution to CSF of the amount paid to Djurdjev by CSF, plus applicable interests and costs, in accordance with Business and Professions Code section 6140.5. Respondent must furnish satisfactory proof of the restitution made to CSF to the State Bar’s Office of Probation.
IN THE MATTER OF DAVID IRVIN ABRAMS
CASE NUMBER(S): 07-O-11391; 07-O-12957
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.
Case No. 07-O-11391 (Complainant: Laura Marquez)
FACTS:
1. In October 2004, Respondent assumed the representation of Laura Marquez ("Laura") in a dissolution of marriage pending in the Los Angeles County Superior Court entitled In re the Marriage of Laura Marquez and Robert Marquez, Case No. BD338977. Laura was previously represented by Attorney Michael Shook ("Shook") in this action.
2. In 2004, the family residence was sold. In July 2004, the net escrow proceeds of $299,435.22 were deposited into Shook’s client trust account.
3. On April 25, 2005, the court ordered Shook to transfer the $299,435.22 to Respondent’s client trust account. The court further ordered Respondent to disburse $27,598.79 to the County of Los Angeles Department of Child Support Services to satisfy all child support arrears of Robert Marquez ("Robert") through April 1, 2005. The court ordered that the check be made payable to the Court Trustee and be sent to the Los Angeles County Court Trustee forthwith. Respondent had knowledge of the order.
4. In May 2005, Shook issued a check for $299,435.22 to Respondent pursuant to the court’s order.
5. On June 2, 2005, Respondent deposited the $299,435.22 check into Respondent’s client trust account at Bank of America, account number xxxxxx5393 ("the cta"). (The full account number is omitted for privacy purposes)
6. On June 22, 2005, Respondent disbursed $27,461.13 from the cta to Laura, as payment of child support arrears, instead of $27,598.79 to the Court Trustee, leaving a balance in the cta of $271,974.09 ($299,435.22-$27,461.13) from the escrow proceeds.
7. On August 8, 2005, Patricia Barberis ("Barberis"), the attorney for Robert, filed an Application for an Order to Show Cause Re: Attorney Fees and Costs, Payment of Robert’s Share of Escrow Proceeds, and an Accounting of the Trust Funds (the "OSC"). The court set a hearing on the OSC for September 12, 2005. During the hearing on the OSC, on September 12, 2005, Respondent informed the court that he had sent payment of the child support arrears directly to Laura instead of the Court Trustee. The court continued the hearing on the OSC to September 22, 2005.
8. On September 20, 2005, Respondent filed a reply to the OSC. In the reply, Respondent acknowledged that he violated the court’s April 25, 2005, order.
9. Between July 11 and December 2005, Respondent intentionally withdrew funds from the cta for his own use and purpose, not for the benefit of the parties, and without the court’s permission, causing the balance to fall repeatedly below $271,974.09. On December 20, 2005, the balance in the cta fell to $227,537.61, or $44,436.48 below the $271,974.09 that should have remained in the cta on behalf of the parties.
10. On December 21, 2005, Respondent requested that Laura’s parents, Robert and Liz Kalinowski ("the Kalinowski’s"), loan him money to cover a shortfall in the cta. Respondent represented to the Kalinowskis that there was a $43,000.55 shortfall in the eta and that Respondent was owed $26,825 as attorneys fees. Respondent requested that the Kalinowski’s pay him $16,175 to cover the shortfall in the eta. The Kalinowskis complied with Respondent’s request, and on December 28, 2005, Respondent deposited the $16,175 received from the Kalinowski’s into the eta. After the deposit, the balance in the cta was $243,712.61, or $28,261.48, below the $271,974.09 that should have remained in the cta on behalf of the parties.
11. From December 30, 2005, to March 8, 2006, Respondent continued to withdraw funds from the cta for his own use and purpose, not for the benefit of the parties, and without court permission, causing balance to repeatedly fall below $271,974.09.
12. In or about March 2006, Respondent filed a stipulated judgment which was signed by the parties in the action. Respondent prepared the stipulated judgment, which erroneously provided that $292,039.12 remained from the escrow proceeds, when only $271,974.09 should be in trust after deducting the $27,461.13 payment to Laura. The stipulated judgment also erroneously provided that Laura was entitled to $120,000 and Robert was entitled to $172,200 from the remainder of the escrow proceeds. On March 3, 2006, the judge signed the stipulated judgment and made it an order of the court. The stipulated judgment did not provide that any attorney fees were to be paid from the escrow proceeds.
13. On March 21, 2006, Respondent disbursed $120,000 from the cta to Robert and Barberis pursuant to the stipulated judgment.
14. On March 22, 2006, Respondent disbursed $110,000 from the cta to Laura pursuant to the stipulated judgment, leaving a balance of $41,974.09 that should have remained in the cta from the escrow proceeds. On March 22, 2006, the balance in the cta was $73.84.
15. On or about March 20, 2006, Respondent informed Barberis that her client, Robert, had been overpaid by $11,216. Respondent requested that Barberis remit a check for $11,216 payable to Respondent’s cta. On or about March 23, 2006, Barberis denied Respondent’s request and informed Respondent that Robert owed no money to Laura or Respondent.
16. On April 3, 2006, Respondent filed an application with the court to correct he stipulated judgment. In the application, Respondent contended that Robert should have received only $109,784, from the escrow proceeds and that Robert should return $10,216 to Laura. Respondent further contended that Laura should have received $138,639 from the escrow proceeds, instead of $110,000. Respondent also contended that he earned $23,605.90 as attorney fees. The court set a hearing on Respondent’s application for April 12, 2006. There was no subsequent court order correcting the stipulated judgment or providing that any attorney fees were to be paid from the escrow proceeds. No one appeared for the hearing on April 12, 2006, and the court took the hearing off calendar.
17. In or about December 2006, Respondent told the Kalinowskis that he would return $16,175 to them with interest. To date, Respondent has not made restitution of the $16,175, or any interest thereon, to the Kalinowskis.
18. On or about October 19, 2007, Laura sent a letter to Respondent demanding payment of $28,639 from the escrow proceeds. Respondent received the letter. On October 29, 2007, Respondent represented to Laura that Robert returned $10,000 to Respondent, but did not produce any evidence of his receipt of the $10,000 from Robert. After March 22, 2006, Respondent made no deposit into the cta of $10,000 from Robert or any other source. To date, Respondent has not disbursed $28,639 to Laura, or any of the remaining balance of $41,974.09 from the escrow proceeds.
CONCLUSIONS OF LAW:
19. By issuing payment of the child support arrears directly to Laura, instead of the Court Trustee, in the amount of $27,461.13, instead of $27,598.79, Respondent willfully disobeyed and violated an order of the court requiring him to do an act connected with or in the course of Respondent’s profession which he ought in good faith to do, in willful violation of Business and Professions Code section 6103.
20. By not maintaining $271,974.09 in the cta from the escrow proceeds, Respondent willfully failed to maintain the balance of funds received for the benefit of a client and deposited in a bank account labeled "Trust Account." "Client’s Funds Account" or words of similar import, in willful violation of rule 4-100(A) of the Rules of Professional Conduct.
21. By intentionally misappropriating $44,436.48, from the escrow proceeds, Respondent committed an act involving moral turpitude, dishonesty, or corruption, in willful violation of Business and Professions Code section 6106. Case No. 07-O-12957 (Complainant: Dorina Diurdiev)
FACTS:
1. In January 2007, Dorina Djurdjev ("Djurdev") employed Respondent to represent her in a marital dissolution pending in the Fresno County Superior Court entitled In re Marriage of Radomir Djurdjev and Dorina Djurdjev, Case No. 05CEFL04713 (the "dissolution").
2. On or about March 1, 2007, Djurdev issued a $2,500 check to Respondent as advanced costs for Respondent to take the deposition of Lisa Rodgers ("Rodgers"). Respondent instructed Djurdjev to deposit the check into Respondent’s account at Bank of America, account number xxxxxxS026. (the full account number is omitted for privacy purposes.)
3. The account was not a trust account. On March 2, 2007, Djurdev deposited the check into the account as instructed.
4. Respondent subsequently used the $2,500, for his own use and purposes, not for the benefit of Djurdjev.
5. In or about August 2007, Respondent notified Djurdjev of his intention to terminate his representation of Djurdjev. Respondent never took the deposition of Rodgers.
6. On August 28, 2007, Djurdjev sent a written request to Respondent for the return of the $2,500 advanced for the deposition. Respondent received the request. Respondent did not return the $2,500 of Djurdjev.
CONCLUSIONS OF LAW:
7. By not depositing the $2,500 into a trust account on behalf of Djurdjev, Respondent failed to deposit funds received for the benefit of a client in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import, in willful violation of rule 4-100(A) of the Rules of Professional Conduct.
8. By intentionally misappropriating $2,500 from Djurdjev, Respondent committed an act involving moral turpitude, dishonesty, or corruption, in willful violation of Business and Professions Code section 6106.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was June 3, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.2 (a) provides that, "Culpability of a member of willful 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 a one-year actual suspension, irrespective of mitigating circumstances."
Standard 2.3 provides that, "Culpability 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 the misconduct and the degree to which it relates to the member’s acts within the practice of law.
Standard 2.6 provides, in pertinent part, that, "Culpability of a member of a violation of any of the following provisions of the Business and Professions Code shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3 :...(b) Sections 6103 through 6105; .... "
In Kaplan v. State Bar (1991) 52 Cal. 3d 1067, Respondent stole $29,000.00 of funds belonging to the law partnership of which he was a partner. The court imposed discipline consisting of disbarment. Respondent lied to the State Bar during its investigation and to his partners when they confronted him with his thefts. In mitigation, Respondent had no prior record of discipline and was suffering from extreme personal stress at the time of the misconduct. However, he failed to show that he had fully
recovered from the effects of the stresses. Respondent’s acts involved intentional dishonesty and concealment and was a purposeful design to defraud his partners. In aggravation, there was no indication that Respondent would have stopped his thefts if they had not been discovered by his partners.
In Kelly v. State Bar (1988) 45 Cal. 3d 649, Respondent misappropriated $19,597.05 of funds being held in trust for one client. Respondent subsequently contacted the client, whom he knew was then represented by another attorney, without the consent of their attorney and coerced the client into signing a statement that the client had loaned the misappropriated money to the Respondent. The court imposed discipline consisting of disbarment. The court noted that there was no evidence suggesting the Respondent’s behavior was an isolated act. The court also noted that Respondent’s lack of a prior record of discipline was not especially commendable. Respondent had been practicing long enough to know that his conduct was wrong (i.e. 7 and ½ years), but not so long as to make his blemish-free record surprising.
In Weber v. State Bar (1988) 47 Cal. 3d 492, in a probate matter, Respondent had misappropriated $25,000 entrusted to him, knowingly made false representations to the probate court regarding a tax audit and the cash balance of the estate trust account, twice failed to comply with lawful court orders to distribute portions of the estate, and had knowingly written a check, in response to a superior court order, on an account that held funds insufficient to cover the payment. The court imposed discipline consisting of disbarment. In aggravation, the court found that Respondent’s filing of lawsuits against the judges, attorneys who opposed him regarding his handling of the probate proceedings, the State Bar and its representatives provided a basis for a finding of aggravation. The court reasoned that the aforementioned lawsuits were highly probative on the question of the Respondent’s acceptance of responsibility for his actions and his contemptuous attitude toward disciplinary proceedings.
In the instant case, based on the facts, standards, aggravating and mitigating circumstances, and case law cited above, discipline consisting of disbarment with an order of restitution in the amount of $28,639 plus interest to Laura Marquez, $16,175 plus interest to the Kalinowskis, and $2,500 plus interest to the Client Security Fund (as the Client Security Fund previously paid Dorina Djurdjev $2,500) is appropriate.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of June 3, 2011, the prosecution costs in this matter are $6,061.30. 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.
Case Number(s): 07-O-11391; and 07-O-12957
In the Matter of: David Irvin Abrams Member number 133545
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: David I. Abrams
Date: June 7, 2011
Respondent’s Counsel: Kevin P. Gerry
Date: June 7, 2011
Deputy Trial Counsel: Michael J. Glass
Date: June 10, 2011
Case Number(s): 07-O-11391 and 07-O-12957
In the Matter of: David Irvin Abrams Member Number 133545
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.
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 5.58 (E) & (F), 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.)
Respondent is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herin, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 6-27-11
[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 June 28, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS; CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
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:
KEVIN P. GERRY
433 NORTH CAMDEN DRIVE 4TH FLOOR
BEVERLY HILLS, CALIFORNIA 90210
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MICHAEL J. GLASS, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on June 28, 2011.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court