Case Number(s): 07-O-13112, 08-O-12454, 09-O-10794, 09-O-13797, 10-O-03264
In the Matter of: Gary Paul Crowder, Bar # 188966, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Dane C. Dauphine, Assistant Chief Trial Counsel
1149 South Hill St.
Los Angeles, CA 90015-2299
(213) 765-1293
Bar #121606,
Counsel for Respondent: In Pro Per Respondent
Gary P. Crowder
5320 Carpinteria Ave., Ste. B
Carpinteria, CA 93013
(805) 684-5995
Bar # 188966
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
Filed: November 16, 2011.
<<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 9, 1997.
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: 2013 and 2014. (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.
(Effective January 1, 2011)
In the Matter of: Gary Paul Crowder
Case Number(s): 07-O-13112,08-O-12454,09-O-10794,
09-O-13797, 10-O-03264
Financial Conditions
a. Restitution 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.
Payee German Zamudio-Guzman
From c/o Edel Ruiseco
Principal Amount $10,000
Interest Accrues May 20,2005
Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than
b. Installment Restitution Payments
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.
Payee CSF (as applicable) Minimum Payment Amount Payment Frequency
German Zamudio-$2,500 quarterly
Guzman c/o Edel Ruiseco
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.
c. Client Funds Certificate
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";
Financial Conditions
b. Respondent has kept and maintained the following:
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, 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.
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.
d. Client Trust Accounting School
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.
(Effective January 1,2011)
Financial Conditions
STATE BAR COURT CASE NUMBER: 07-O-13112, 08-O-12454,09-O-10794,09-O-13797,
10-O-03264
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-13112 (Complainant: Martha Ordaz)
FACTS:
1. On or about March 15, 2007, Gilberto Ordaz-Chavez ("Ordaz") was arrested and detained at
the Mira Loma Detention Facility (Mira Loma"). He had previously been ordered deported to Mexico on or about April 9, 2001.
2. On or about March 18, 2007, Ordaz hired Respondent to file a motion to represent him in his
immigration matter, in part to file a motion to reopen the case. At that time, Ordaz’s wife, Martha Ordaz ("Martha"), paid $2,500 in advanced fees to Respondent for his representation of Ordaz.
3. On or about April 14, 2007, Respondent filed on behalf of Ordaz a Request for Parole with
Reasonable Bond with a deportation officer at Mira Loma. No filing fee was required to be paid for the Request for Parole.
4. On or about May 9, 2007, Respondent’s employee, Jorge Ortega ("Ortega"), contacted
Martha and requested that she pay additional advanced fees and costs in the amount of $835, consisting of $450 as advanced costs for the court filing fee for a motion to reopen and $385 as advanced fees. On or about May 9, 2007, Martha paid $835 to Respondent, as requested by Ortega.
5. On or about June 1, 2007, Ordaz was released on bond and placed on house arrest.
6. On or about June 4, 2007, Ordaz and Martha met with Respondent, who informed them that
he would require $6,000 in additional funds to continue to represent Ordaz. Ordaz declined to pay additional funds. At that point, Respondent withdrew from representation and did not file a motion to reopen on behalf of Ordaz.
7. In total, Respondent had received from or on behalf of Ordaz $2,885 in advanced fees and
$450 in advanced costs (for the court filing fee for a motion to reopen). Respondent did not provide Ordaz with any accounting to show what fees had been earned and what costs had been incurred. In or about July 2007, Ordaz requested that Respondent refund the advanced fees and advanced costs paid to him. Respondent did not provide Ordaz with any refund of unearned fees or return the advanced costs.
8. In or about November 2010, at the request of the State Bar, Respondent finally provided
Ordaz with an accounting of fees and costs. In the accounting, Respondent alleged that the advanced fees he received from Ordaz were fully earned. Respondent did not claim that any court filing fee had been paid.
9. Respondent did not file any motions on behalf of Ordaz and did not incur costs for any court
filing fee on his behalf. Respondent did not return to Ordaz any portion of the $450 in advanced costs paid to him until in or about May 2011 after contact by the State Bar.
10. In or about July 2007, and the State Bar initiated an investigation based upon the complaint
by Ordaz and Martha to the State Bar regarding Respondent’s conduct in Ordaz’s case. On November 21, 2007 and December 20, 2007, a State Bar investigator mailed letters to Respondent at his State Bar membership address requesting a written response to allegations raised in Ordaz’s complaint. Respondent received the letters. Respondent did not provide the State Bar with a written response or otherwise participate in the investigation.
CONCLUSIONS OF LAW:
11. By failing to promptly provide Ordaz with an accounting of fees and costs, Respondent
failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession in willful violation of Rules of Professional Conduct, rule 4-100(B)(3).
12. By failing to return advanced costs to Ordaz until almost four years after the termination of
his employment, Respondent failed to pay promptly, as requested by a client, any funds in Respondent’s possession which the client is entitled to receive in willful violation of Rules of Professional Conduct, rule 4-100(B)(4).
13. By not providing a written response to Ordaz’s complaint or otherwise cooperating with the
State Bar’s investigation, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent in willful violation of Business and Professions Code, section 6068(i).
Case No. 08-O-12454 (Complainant: Jessica Hernandez)
FACTS:
14. On or about September 1, 2006, Sebastian Hemandez Sr. hired Respondent to represent his
14 year-old son, Giovanni Hernandez ("Giovanni"), in a criminal matter in which Giovanni was charged with murder, among other charges.
15. On or about September 1, 2006, Mr. Hemandez and his wife paid $5,000 in advanced fees to Respondent on behalf of Giovanni. Thereafter, Giovanni’s family paid further advanced fees to Respondent totaling approximately $27,000. Respondent did not have a written fee agreement with Giovanni or his family.
16. On or about January 31, 2008, Robert Schwartz substituted in as Giovanni’s counsel in place of Respondent. On or about February 24, 2008, Jessica Hernandez, Giovanni’s sister, mailed a letter to Respondent on behalf of Giovanni and his family which requested a refund of the advanced fees paid to Respondent. Respondent received the letter. Respondent did not respond to Jessica’s request for a refund.
17. On or about April 16, 2008, Jessica called Respondent and spoke to him. Respondent
informed Jessica that he had been too busy to review her letter but promised to do so and get back to her. Thereafter, Respondent did not provide any refund of unearned fees or promptly account for the fees received for his representation of Giovanni.
18. In or about November 2010 at the request of the State Bar, Respondent provided an accounting of fees to Giovanni to support his claim that all advanced fees received were fully earned.
CONCLUSIONS OF LAW:
19. By failing to provide a prompt accounting of fees, Respondent failed to render appropriate
accounts to a client regarding all funds coming into Respondent’s possession in willful violation of Rules of Professional Conduct, rule 4-100(B)(3). Case No. 09-O-10794 (State Bar Investigation regarding Sanctions)
FACTS:
20. On June 5, 2006, Respondent filed a petition for review in the U. S. Court of Appeals for the Ninth Circuit ("Ninth Circuit") on behalf of Conrado Ayala-Garcia ("Garcia") in an appeal from the Board of Immigration Appeals ("BOIA") entitled Conrado Ayala-Garcia v. Michael B. Mukasey, Attorney General, case no. 06-72900 (the "Garcia matter").
21. On June 6, 2006, Respondent filed a motion to stay deportation on behalf of Garcia and
continued to represent him in the Garcia matter until December 26, 2007, at which time the court granted the Attorney General’s motion to dismiss.
22. On December 26, 2007, the Ninth Circuit ordered Respondent to show cause within 28 days
why it should not impose monetary sanctions of not less than $1,000 and take other actions for conduct unbecoming a member of the bar and for Respondent’s repeated violations of the court’s orders and rules (the "Garcia OSC").
23. On December 26, 2007, the Garcia OSC was served on Respondent by certified mail at his
State Bar membership address. Respondent received the Garcia OSC. Respondent did not respond to the Garcia OSC.
24. On March 14, 2008, the Ninth Circuit ordered Respondent to pay sanctions in the amount of
$1,000 within 21 days. The sanctions order was served on Respondent by certified mail at his State Bar membership address. Respondent received the sanctions order. Respondent did not pay the sanctions to the Ninth Circuit.
25. Beginning in or about April 2007, Respondent was representing Maria Aguirre-Pineda
("Pineda") in the U. S. Court of Appeals for the Ninth Circuit ("Ninth Circuit") in the matter entitled United States of America v. Maria Elena Aguirre-Pineda, case no. 07-50196 (the "Pineda matter"). The Pineda matter was an appeal of a criminal matter.
26. On October 29, 2007, the Ninth Circuit issued an order in the Pineda matter that Respondent show cause within 14 days why it should not impose monetary sanctions of not less than $1,000 failure to comply with the court’s orders and rules (the "Pineda OSC"). On October 29, 2007, the Pineda OSC was served on Respondent by certified mail at his State Bar membership address and by facsimile transmission. Respondent received the Pineda OSC. Respondent did not respond to the Pineda OSC.
27. On March 3, 2008, Pineda filed a motion for the appointment of pro bono counsel. On
March 24, 2008, the Ninth Circuit granted Pineda’s motion for appointment of counsel and ordered counsel to be appointed.
28. On March 21, 2008, the Ninth Circuit ordered Respondent to pay sanctions in the amount of
$1,000 by April 11, 2008. The sanctions order was served on Respondent by certified mail at his State Bar membership address. Respondent received the sanctions order. Respondent did not pay the sanctions to the Ninth Circuit.
29. Respondent did not report in writing to the State Bar that judicial sanctions in the amount of
$1,000 had been imposed upon him in the Garcia matter or that judicial sanctions in the amount of $1,000 had been imposed upon him in the Aguirre matter.
CONCLUSIONS OF LAW:
30. By failing to pay sanctions ordered by the Ninth Circuit in the Garcia matter, Respondent
willfully disobeyed or 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.
31. By failing to pay sanctions ordered by the Ninth Circuit in the Pineda matter, Respondent
willfully disobeyed or 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.
32. By failing to report the imposition of judicial sanctions in the Garcia and Aguirre matters,
Respondent failed to report to the agency charged with attorney discipline, in writing, within 30 days of the time Respondent had knowledge of the imposition of any judicial sanctions against Respondent in willful violation of Business and Professions Code, section 6068(0)(3).
Case No. 09-O-13797 (Complainant: Edel P. Ruiseco obo German Zamudio-Guzman)
FACTS:
33. On January 7, 2005, German Zamudio-Guzman ("Zamudio") was arrested by border patrol
agents and detained in El Paso, Texas. On January 14, 2005, Zamudio hired Respondent to represent him in the related immigration matter in the United States District Court, Western District of Texas, El Paso Division, entitled German Zamudio-Guzman v. Respondent Ray Adams, in his capacity as a District Director of the CIS in El Paso District Office, case no. 05-0036-G.
34. The court set bond in the amount of $10,000 in a related criminal matter also pending in the
United States District Court, Western District of Texas, El Paso Division, and entitled United States of America v. German Zamudio-Guzman, case no. 05-0133-G. In or about March 2005, Guzman’s wife, Maria Mercedes Ramirez Terrazas Zamudio ("Maria"), provided $10,000 to Ramon J. Chamorro ("Chamorro"), the director of an organization which assists the Latino and Hispanic communities, to post a bond on Zamudio’s behalf, and Chamorro forwarded the funds to a Texas attorney who posted the bond.
35. On April 12, 2005, an application for an order approving assignment of bond funds
("Application") was filed with the court, requesting that the court assign such funds to Respondent at the conclusion of the case, if the conditions of the bond were satisfied. The Application was purportedly signed by Maria and Respondent, but both Maria and Respondent contend that the signatures on the application are not their signatures. On May 5, 2005, the court approved the assignment of the bond funds to Respondent and signed an order for return of the cash bail by delivery to Respondent.
36. On May 16, 2005, the court sent a $10,000 check to Respondent’s office, as the refund of
Zamudio’s bond. On May 20, 2005, the $10,000 funds received on behalf of Zamudio were deposited in a bank account held in Resp9ndent’s name at Washington Mutual Bank, account no. XXXXXX7643.1 This account was not designated as a trust account. Thereafter, Respondent did not account to Zamudio or Maria for the bond funds received on behalf of Zamudio, and the funds were not retumed to Zamudio or Maria who returned to Mexico where they now reside.
37. In or about June 2009, Zamudio employed Texas attorney Edel P. Ruiseco to obtain the
return of the funds, and Ruiseco contacted Respondent. In September 2009, Respondent responded to Ruiseco by letter stating that he recalled that the funds had been posted by someone other than Zamudio or Maria and that, to the best of his recollection, the funds were returned to that person, but he stated that the lapse of time did not allow him to respond with more detail.
38. Respondent was grossly negligent in failing to insure that his client received the funds
deposited in Respondent’s account.
CONCLUSIONS OF LAW:
39. By depositing the $10,000 bond funds received on behalf of Zamudio in a bank account
which was not designated as a trust account, 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 Rules of Professional Conduct, rule 4-100(A).
40. By not accounting to Zamudio for the $10,000, Respondent failed to render appropriate
accounts to a client regarding all funds coming into Respondent’s possession in willful violation of Rules of Professional Conduct, rule 4-100(B)(3).
41. By acting with gross negligence in failing to ensure that the $10,000 received on behalf of
Zamudio was disbursed to him, Respondent committed an act involving moral turpitude, dishonesty or corruption in willful violation of Business and Professions Code, section 6106.
Case No. 10-O-03264 (Complainant: Thelma Gamaz)
FACTS:
42. On or about October 3, 2008, Rene Gamaz ("Gamaz") employed Respondent to obtain a
permanent residence card for Gamaz’s minor son, Rene Gamaz Jr. ("Rene Jr."), or seek U.S. citizenship for Rene Jr. At that time, Rene was in E1 Salvador, and his permanent residence card had expired in 2003. Since Respondent had other unrelated business in Mexico, Respondent agreed to travel to E1 Salvador and bring Rene Jr. to Mexico where Gamaz would meet them by car and drive Respondent and Rene Jr. to the United States.
43. During the period from in or about October 2008 through March 10, 2009, Gamaz paid
Respondent $4,000 in advanced fees for his legal services.
44. On March 11, 2009, Respondent traveled to E1 Salvador to bring Rene Jr. to Mexico, but
Respondent was prevented from leaving E1 Salvador with Rene Jr. Respondent took no further action to obtain a permanent residence car for Rene Jr. or to seek U.S. citizenship for Rene Jr.
45. Thereafter, the United States Embassy in E1 Salvador called Gamaz in the United States and informed him that Respondent was prevented from bringing Rene Jr. to the United States because Rene Jr.’s permanent residence card had expired in 2003. Gamaz requested a refund of fees. At that time, Ortega represented to Gamaz that Respondent had used the funds for the travel to E1 Salvador.
46. Respondent did not provide any accounting to Gamaz for how he had earned the fees or what amount he had incurred in costs until in or about May 2011.
CONCLUSIONS OF LAW:
47. By failing to account promptly to Gamaz for the $4,000 in advanced fees received from
Gamaz, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession in willful violation of Rules of Professional Conduct, rule 4-100(B)(3).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was November 9, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide that the sanction to be imposed shall be the most severe when there are two or more acts of misconduct found where different sanctions are prescribed by the Standards. The most severe sanction is that provided by Standard 2.2 which provides that the appropriate sanction for willful misappropriation is disbarment or, if the amount of funds is insignificantly small or if the most compelling mitigating circumstances clearly predominate, an actual suspension of not less than one year. Case law has diverged from this standard where the misappropriation occurred due to gross negligence. "As the term is used in attorney discipline cases, willful misappropriation’ covers a broad range of conduct varying significantly in the degree of culpability. An attorney who deliberately takes a client’s funds, intending to keep them permanently, and answers the client’s inquiries with lies and evasions, is deserving of more severe discipline than. An attorney Mm has acted negligently, without intent to deprive mad without acts of deception….Thus, we have ordered discipline as light as 30 days of actual suspension when the misappropriation resulted from negligence and other mitigating factors were present." (Edwards v. State Bar (1990) 52 Cal.3d 28[imposing 1 year actual suspension for willful misappropriation of $3,000 where restitution was made promptly and there were no acts of deceit]; see also, In the Matter of Bouyer (Review Dept. 1991) 1 Cal.State Bar Ct. Rptr. 404 [recommending a six-month actual suspension for misappropriation due to gross negligence of client funds in three separate client matters mitigated by voluntary restitution to the clients prior to the involvement of the State Bar].
Based on the evidence currently available, the misappropriation was due to gross negligence and is closer to the misconduct in Bouyer which resulted in a six-month actual suspension.
Case Number(s): 07-O-13112, 08-O-12454, 09-O-10794, 09-O-13797, 10-O-03264
In the Matter of: Gary P. Crowder
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: Gary P. Crowder
Date: 11-09-11
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Dane C. Dauphine
Date: 11-9-11
Case Number(s): 07-O-13112, 08-O-12454, 09-O-10794, 09-O-13797, 10-O-03264
In the Matter of: Gary Paul Crowder
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.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 11-15-11
(Effective January 1, 2011)
Actual Suspension Order
[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 November 16, 2011, 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:
Gary P. Crowder
5320 Carpinteria Ave Ste B
Carpinteria, CA 93013
Courtesy copy:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Mia Ellis, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on
November 16, 2011.
Signed by:
Laine Silber, Case Administrator
State Bar Court