Case Number(s): 07-O-12720
In the Matter of: Eduardo A. Rivera, Bar # 62528, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eli Morgenstern, DTC
The State Bar of California
1149 South Hill Street
Los Angeles, CA 90015-2299
Tel: (213) 765-1334
Bar # 190560,
Counsel for Respondent: In Pro Per Respondent
Eduardo A. Rivera, Esq.
P.O. Box 1587
Calexico, CA 92231-2815
Tel (760) 357-6801
Bar # 62528
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
<<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 18, 1974.
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 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following three billing cycles following the effective date of the Superior Court Order. See Page 8 for additional information re: Costs. (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.
IN THE MATTER OF: Eduardo A. Rivera, State Bar No. 62528
STATE BAR COURT CASE NUMBER: 07-O-12720
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statute and Rule of Professional Conduct.
Facts
1. Prior to 1998, Brian Pye ("Pye") and Daniel O. Robinson ("Robinson") formed a California corporation known as "Portico Express, Inc." ("Portico Express") which owned and operated a convenience store/mini-mart and gasoline station in an industrial park in Calexico. Pye’s share of the corporation was 1/3, and Robinson’s share was 2/3. Thereafter, a disagreement arose between Pye and Robinson, and Robinson assumed control of all operations and finances of Portico Express. In or about late 1998, Robinson arranged the sale of Portico Express to Jose and Martha Ortega.
2.. On May 28, 1999, in anticipation of receiving net proceeds from the sale of Portico Express, Pye and Robinson entered into a written agreement. Respondent, who was the attorney for Robinson, prepared the agreement. By the terms of the agreement, the net proceeds from the sale of Portico Express were to be deposited into an interest bearing trust account maintained by Respondent for the benefit of Pye and Robinson pending a determination of the rights and obligations of the respective shareholders by litigation or arbitration. The arbitration was to be held by no later than on or about September 10, 1999. The agreement further provided that upon the close of escrow, all activities of Portico Express were to cease.
3. On August 16, 1999, the proceeds from the sale of Portico Express in the amount of $35,437.22 were delivered to Respondent. In or about August 1999, Respondent deposited the $35,437.22 in his client trust account.
4. Soon after Respondent deposited the funds in his client trust account, Robinson made demands upon Respondent for the funds. Respondent explained to Robinson that the May 28, 1999 agreement prohibited him from disbursing the funds to Robinson. Nevertheless, Respondent caused to be prepared a civil complaint on behalf of Robinson Ford Sales, Inc. ("Robinson Ford"), a California corporation owned by Robinson, against Portico Express (the "Portico Express action"). The complaint sought from Portico Express money allegedly owed by Portico Express for loans made by Robinson Ford on behalf of Portico Express. On or about June 26, 2000, Robinson signed the complaint as owner ("Goodman"), who acted as attorney of record for Robinson Ford, but Goodman did nothing substantive with regard to the Portico Express action.
5. On June 27, 2000, the complaint was filed in the Imperial County Superior Court titled, Robinson Ford Sales, Inc. v. Portico Express, Inc., case number L 00345 (the "Portico Express action"). On June 27, 2000, the complaint was served on Robinson as agent for the service of process on Portico Express. At no time did Respondent, Goodman, or Robinson inform Pye of the Portico Express action.
6. On October 11, 2000, the court filed a default judgment against Portico Express in the Portico Express action in the amount of $74,545.46. At no time did Respondent, Goodman, or Robinson inform Pye of the default judgment entered in the Portico Express action.
7. On October 20, 2000, a writ of execution was issued on the default judgment in the Portico Express action. At no time did Respondent, Goodman, or Robinson inform Pye of the writ of execution.
8. On October 23, 2000, Respondent issued Robinson Ford a check from his client trust in the sum of $31,137.82 pursuant to the writ of execution. The sum represented the net proceeds from the sale of Portico Express in the sum of $35,437.22 minus the amount paid to settle a lawsuit brought by the Imperial County Air Pollution Control District against Portico Express. Respondent issued the check to Robinson Ford pursuant to the writ of execution without notice to Pye.
9. On January 30, 2004, Respondent wrote a letter to Pye and informed him for the first time that he had disbursed $31,137.82 to Robinson Ford pursuant to a writ of execution, a copy of which he enclosed with the letter. Pye received the letter.
10. On December 15, 2004, Pye filed a complaint in the Imperial County Superior Court titled, Brian Pye v. Daniel O. Robinson, Robinson Ford Sales, Eduardo A. Rivera, Bennett Goodman, case number ECU 02044 (the "Pye action").
11. On September 11, 2007, following a court trial, a judgment was entered in the Pye action. The court awarded damages against Respondent, Robinson, and Robinson Ford, jointly and severally, in the amount of $16,437.70. The court also ordered that Pye recover from Respondent, Robinson, and Robinson Ford, jointly and severally, his costs of suit.
12. On May 11, 2009, an Acknowledgment of Satisfaction of Judgment was filed in the Pye action.
Conclusions of Law
By the foregoing conduct, Respondent breached the fiduciary duty that he owed to Pye in violation of Business and Professions Code section 6106.
PENDING PROCEEDINGS.
The disclosure date referred to on page 2, paragraph A(7), was September 21, 2010.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him that as of September 21, 2010, the prosecution costs in this matter are approximately $2,046.61. The costs are to be paid in equal amounts prior to February 1 for the following three billing cycles following the effective date of the Supreme Court Order.
If Respondent fails to pay any installment within the time provided herein or as may be modified by the State Bar Court pursuant to section 6086.10, subdivision (c), the remaining balance of the costs is due and payable immediately and enforceable both as provided in Business and Professions Code section 6140.7 and as a money judgment unless relief has been granted under the Rules of Procedure of the State Bar of California. (Rules Proc. of State Bar, rule 286.)
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.
1. Harm
Respondent’s breach of the fiduciary duty that he owed to Pye caused harmed to Pye. (Std. 1.2(b)(iv).)
MITIGATING CIRCUMSTANCES.
1. No Prior Record of Discipline
Respondent has been a member of the State Bar since December 18, 1974, and has no prior record of discipline. This is a significant mitigating circumstance. (Std. 1.2(e)(i).)
2. Candor and Cooperation
Respondent is entitled to significant mitigation for entering into this stipulation. (Std. 1.2(e)(v).) Respondent responded promptly to all State Bar inquiries, willingly provided any and all documentation requested, and from the beginning of the investigation admitted to the misconduct described in this stipulation.
3. Good Character
Respondent has furnished evidence of his considerable record of pro bono and community service activities and demonstrated his good moral character and his commitment to the legal profession. (Std, 1.2(e)(vi).)
4. Remorse
Respondent’s has expressed genuine remorse for his misconduct. (Std. 1.2(e)(vii). Following the court’s decision in the Pye action, Respondent spoke to Pye in-person and apologized to him for having breached the fiduciary duty that he owed to Pye. As stated in paragraph 12 of the Statement of Facts, the judgment in the Pye action has been satisfied.
At all times during the State Bar’s investigation and prosecution of this matter, Respondent admitted to his culpability and expressed remorse for having breached the fiduciary duty that he owed to Pye.
AUTHORITIES SUPPORTING DISCIPLINE.
1. Standards
"The primary purposes of disciplinary proceedings.., are the protection of the public, the courts[,] and the legal profession; the maintenance of high professional standards by attorneys[;] and the preservation of public confidence in the legal profession." (Std 1.3.)
Standard 2.3 of the Standards for Attorney Sanctions for Professional Misconduct ("Standards") provides that 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 corn% 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 attorney’s acts within the practice of law.
Here, Respondent breached the fiduciary duty that he owed to Pye to hold the proceeds of the sale of Portico Express in his client trust account. The misconduct related directly to the practice of law and caused harm to Pye.
However, the misconduct described herein was an anomaly. Respondent has been a member of the State Bar for approximately 36 years and has no prior record of discipline. Respondent was candid and cooperative with the State Bar at all times during the investigation and prosecution of this matter, and has expressed genuine remorse for the breach of the fiduciary duty that he owed to Pye. The parties submit that the stipulated disposition contemplates the aggravating and mitigating circumstances that are present, is within the range of discipline mandated by the Standards, and meets the goals of attorney discipline.
2. Case Law
In In the Matter of Riley (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91, 114, Respondent violated the fiduciary duty that he owed to medical lienholders by failing to either pay the lienholders in full, or take appropriate steps to resolve the dispute promptly. Respondent also committed rule violations in twelve different client matters. The Review Department recommended a one year stayed suspension, and a three year probation with conditions including a 90-day actual suspension.
Although Respondent and the attorney in Riley breached their fiduciary duties, the attorney in Riley committed additional misconduct in a twelve different client matters. Here, Respondent committed misconduct in a single matter. Moreover, the misconduct in Riley began only nine years after the attorney’s admission to the practice of law. Here, the misconduct was committed in or about 2000, about 26 years after Respondent’s admission to the practice of law. And, Respondent has not committed any misconduct since 2000. As stated above the goals of attorney discipline are accomplished by the stipulated disposition herein.
STATE BAR ETHICS SCHOOL.
Because Respondent has agreed to attend State Bar Ethics School as part of this stipulation, he may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
Case Number(s): 07-O-12070
In the Matter of: Eduardo A. Rivera
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: Eduardo A. Rivera
Date: October 14, 2010
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Eli D. Morgenstern
Date: October 19, 2010
Case Number(s): 07-O-12070
In the Matter of: Eduardo A. Rivera
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: Richard A. Platel
Date: November 2, 2010
[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 November 4, 2010, 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:
EDUARDO A. RIVERA
430 MARY AVE
P.O. BOX 1587
CALEXICO, CA 92231-2815
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Eli D. Morgenstern, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 4, 2010.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court