Case Number(s): 07-O-12570-DFM
In the Matter of: Raymond Hillel Aver, Bar # 109577, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Bita Shasty, Bar # 183740
Counsel for Respondent: Edward O. Lear, Bar # 132699
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
Filed: February 11, 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 12, 1983.
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 13 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 added to membership fee for calendar year following effective date of discipline.
<<not>> checked. costs to be paid in equal amounts prior to February 1 for the following membership years: (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.
Case Number(s): 07-O-12570
In the Matter of: Raymond Hillel Aver A Member of the State Bar
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: Ben Brooks & Associates
Principal Amount: $1,000
Interest Accrues From:
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.
<<not>> 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.
<<not>> 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-12570
In the Matter of: Raymond Hillel Aver A Member of the State Bar
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a Notice of Disciplinary Charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere shall be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court shall find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based. (Added by Stats. 1996, ch. 1104.) (emphasis supplied)
Rule 133, Rules of Procedure of the State Bar of California STIPULATION AS TO FACTS, CONCLUSIONS OF LAW AND DISPOSITION
(a) A proposed stipulation to facts, conclusions of law, and disposition must set forth each of the following:
(5) a statement that Respondent either
(i) admits the facts set forth in the stipulation are true that he or she is culpable of violations of the specified statutes and/or Rules of Professional Conduct or
(ii) pleads nolo contendere to those facts and violations. If the Respondent pleas nolo contendere, the stipulation shall include each of the following:
(a) an acknowledgement that the Respondent completely understands that the plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his or her culpability of the statutes and/or Rules of Professional Conduct specified in the stipulation; and
(b) if requested by the Court, a statement by the Deputy trial counsel that the factual stipulations are supported by evidence obtained in the State Bar Investigation of the matter (emphasis supplied)
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 133(a)(5) of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent: Raymond Hillel Aver
Date: February 10, 2009
IN THE MATTER OF: Raymond Hillel Aver
CASE NUMBER: 07-O-12570
FACTS AND CONCLUSIONS OF LAW
Respondent admits that the following facts are true and that he is culpable of violation of the specified statute and/or Rules of Professional Conduct:
1. On or about March 31, 2006, Azhar Awan filed for bankruptcy in United States Bankruptcy Court, Central District, Santa Ana Division, case no. 8:06-bk-10413-TA (the "bankruptcy action"). There were no assets in the bankruptcy action.
2. The bankruptcy court initially set the meeting of creditors for May 4, 2006. Thereafter, the meeting of creditors was continued several more times to September 29, 2006.
3. Legend Land, LLC, an Arizona company, was listed as a secured creditor in Awan’s bankruptcy filing.
4. Ben Brooks & Associates was an agent authorized to act on Legend Land’s behalf in the bankruptcy action.
5. The law firm of Jaburg & Wilk was the Arizona counsel for Ben Brooks & Associates and Legend Land, LLC.
6. Sandra E. Dousdebes was a paralegal with Jaburg & Wilk.
7. In July 2006, Ben Brooks & Associates, acting as an authorized agent on behalf of Legend Land, employed Respondent to file a motion for relief from the automatic stay on behalf of Legend Land in the bankruptcy action.
8. On July 17, 2006, Respondent emailed Dousdebes and requested certain documents and information to prepare the motion for relief.
9. On July 26, 2006, Dousdebes provided the documents in response to Respondent’s July 17, 2006 email.
10. On July 28, 2006, Respondent emailed Dousdebes asking her to contact him regarding the motion for relief. That day, Dousdebes called Respondent’s office but Respondent’s assistant told Dousdebes that Respondent was on another telephone call.
11. On August 4, 2006, Respondent prepared a draft of the motion for relief from automatic stay.
12. On September 6, 2006, Dousdebes emailed Respondent requesting his recommendation as to how to proceed in the bankruptcy action. On September 6, 2006, Respondent received the email and called Dousdebes in response.
13. On September 13, 2006, Dousdebes emailed Respondent with additional documentation and information. In the September 13, 2006 email, Dousdebes informed Respondent that he would have the retainer check at the end of the week. On September 13, 2006, Respondent received and reviewed the additional information.
14. On September 18, 2006, Ben Brooks & Associates sent Respondent a check in the amount of $1,000 for advanced fees. Respondent received the check on September 20, 2006. Respondent did not provide a retainer agreement to the client.
15. On September 29, 2006, the bankruptcy court continued the meeting of creditors from September 29, 2006 to November 16, 2006.
16. By October 20, 2006, Respondent reviewed the docket in the bankruptcy action and knew that the meeting of creditors was scheduled for November 16, 2006.
17. On October 21, 2006, Respondent emailed Dousdebes requesting additional documentation and information "needed to finalize motion for relief from the automatic stay."
18. On November 20, 2006, Dousdebes provided Respondent with additional information in support of the motion for relief. On November 20, 2006, Respondent received the information provided by Dousdebes. Thereafter, Respondent no longer communicated with Dousdebes or anyone else associated with the bankruptcy action.
19. On November 30, 2006, Respondent reviewed and revised the motion for relief from the automatic stay. Thereafter, Respondent did no further work on the motion for relief and performed no further services on behalf of Legend Land.
20. On January 16, 2007, Dousdebes emailed Respondent requesting a status report on the motion for relief in the bankruptcy action. Respondent received the January 16, 2007 email but failed to respond.
21. On February 5, 2007, Dousdebes emailed Respondent requesting a status report on the motion for relief. Dousdebes noted in the email that the client had requested the status update. Respondent received the February 5, 2007 email but failed to respond.
22. On February 12, 2007, Dousdebes emailed Respondent requesting a status report on the motion for relief from the stay. Dousdebes noted that the client was "anxious for an update". Respondent received the February 12, 2007 email but failed to respond.
23. On March 5, 2007, Dousdebes faxed Respondent a request for an update on the motion for relief from the stay in the bankruptcy action. Respondent received the March 5, 2007 fax but failed to respond.
24. On March 14, 2007, Randy Nussbaum, an attorney with Jaburg & Wilk, wrote Respondent regarding the motion for relief from stay in the bankruptcy action. In his March 14, 2007 letter, Nussbaum told Respondent that Respondent had failed to file the motion for stay and had failed to respond to the firm’s requests for status. In his March 14, 2007 letter, Nussbaum asked Respondent to return the client’s $1,000 retainer immediately. Nussbaum sent the March 14, 2007 letter to Respondent via facsimile and by U.S. mail. Respondent received the March 14, 2007 letter but failed to respond.
25. As of March 15, 2007, Respondent had not filed the motion for relief from stay on behalf of Legend Land. From on or about November 30, 2006 to March 15, 2007, Respondent failed to perform the services for which he was employed.
26. On March 15, 2007, Awan received his discharge in the bankruptcy action. The motion for relief from stay was now moot.
27. On March 30, 2007, Nussbaum wrote Respondent again requesting that Respondent refund the $1,000 retainer. In the March 30, 2007 letter, Nussbaum informed Respondent that if he failed to return the $1,000, the matter would have to be brought to the attention of the State Bar. Nussbaum sent the March 30, 2007 letter to Respondent via facsimile and by U.S. mail. Respondent received the March 30, 2007 letter but failed to provide a refund to Legend Land, its authorized agent or its counsel. Respondent did not provide any response to the March 30, 2007 letter.
Conclusions of Law (Count One)
28. By failing to file the motion for relief from stay prior to the discharge in the bankruptcy action, Respondent intentionally, recklessly or repeatedly failed to perform legal services with competence in wilful violation of Rules of Professional Conduct, rule 3-110(A).
Conclusions of Law (Count Two)
29. By failing to respond to Dousdebes’s fax and emails and by failing to respond to Nussbaum’s letters, Respondent failed to respond promptly to reasonable status inquiries of a client in which Respondent had agreed to provide legal services in wilful violation of Business and Professions Code section 6068(m).
Conclusions of Law (Count Three)
30. By failing to refund any unearned fees to Legend Land, its authorize agent or its counsel, Respondent failed to refund unearned monies in wilful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Supporting Authority
Standard 2.4(b) provides that a member’s culpability for wilfully failing to perform services in a individual matter or matters not demonstrating a pattern of misconduct shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm, if any, to the victim.
Standard 2.6(a) provides that a member’s violation of Business and Professions Code section 6068 shall result in reproval or suspension depending upon the gravity of the harm to the client.
Pending Proceedings
The disclosure date referred to on Page 2, paragraph A.(7), was made on July 15, 2008.
Costs of Disciplinary Proceedings
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of July 15, 2008, the costs in this matter are approximately $2,157.10. 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 costs of further proceedings.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-12570
In the Matter of: Raymond Hillel Aver
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: Raymond H. Aver
Date: 2/10/09
Respondent’s Counsel: Edward O. Lear
Date: 2/10/09
Deputy Trial Counsel: Bita Shasty
Date: 2/10/09
Case Number(s): 07-O-12570
In the Matter of: Raymond Hillel Aver
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
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.
To accurately reflect the agreement of the parties, Paragraph a (Restitution) of the Financial Conditions is amended to delete the words “plus interest of 10% per annum”.
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: 2/10/09
[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 Los Angeles, on February 11, 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:
EDWARD O LEAR
CENTURY LAW GROUP LLP
5200 W CENTURY BLVD #345
LOS ANGELES CA 90045
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
BITA SHASTY, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 11, 2009.
Signed by:
Angela Owens-Carpenter
Case Administrator
State Bar Court