State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

ACTUAL SUSPENSION

Case Number(s): 07-O-13322

In the Matter of: Anthony Pagkas, Bar # 186112, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Robin Brune, Deputy Trial Counsel

180 Howard Street

San Francisco, California 94105

Bar # 149481,

Counsel for Respondent: In Pro Per Respondent

Anthony Pagkas

75 E. Santa Clara Street, Suite 1210

San Jose, California 95113

Bar# 186112

Submitted to: Assigned Judge – State Bar Court Clerk’s Office San Francisco.

Filed: December 2, 2010.

<<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.

A.  Parties' Acknowledgments:

1.    Respondent is a member of the State Bar of California, admitted December 11, 1996.

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 11 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. 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.

<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: .  (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.

B.        Aggravating Circumstances [for definition, see Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts supporting aggravating circumstances are required.

<<not>> checked. (1) Prior record of discipline [see standard 1.2(f)]

<<not>> checked. (a)    State Bar Court case # of prior case .
<<not>> checked. (b)    Date prior discipline effective .
<<not>> checked. (c)    Rules of Professional Conduct/ State Bar Act violations:
<<not>> checked. (d)    Degree of prior discipline  
<<not>> checked. (e)    If Respondent has two or more incidents of prior discipline, use space provided below. .

<<not>> checked. (2) Dishonesty:  Respondent's misconduct was surrounded by or followed by bad faith, dishonesty, concealment, overreaching or other violations of the State Bar Act or Rules of Professional Conduct.

<<not>> checked. (3) Trust Violation:  Trust funds or property were involved and Respondent refused or was unable to account to the client or person who was the object of the misconduct for improper conduct toward said funds or property.

checked. (4) Harm:  Respondent's misconduct harmed significantly a client, the public or the administration of justice. Respondent’s client suffered a significant default judgment.

<<not>> checked. (5) Indifference:  Respondent demonstrated indifference toward rectification of or atonement for the consequences of his or her misconduct.

<<not>> checked. (6) Lack of Cooperation:  Respondent displayed a lack of candor and cooperation to victims of his/her misconduct or to the State Bar during disciplinary investigation or proceedings. 

<<not>> checked. (7) Multiple/Pattern of Misconduct:  Respondent's current misconduct evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct.

<<not>> checked. (8) No aggravating circumstances are involved.
Additional aggravating circumstances: .

C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating circumstances are required.

<<not>> checked. (1)    No Prior Discipline:  Respondent has no prior record of discipline over many years of practice coupled with present misconduct which is not deemed serious.

<<not>> checked. (2)    No Harm:  Respondent did not harm the client or person who was the object of the misconduct. 

checked. (3)                    Candor/Cooperation:  Respondent displayed spontaneous candor and cooperation with the victims of his/her misconduct and to the State Bar during disciplinary investigation and proceedings. Respondent has been cooperative with the State Bar.

<<not>> checked. (4)    Remorse:  Respondent promptly took objective steps spontaneously demonstrating remorse and recognition of the wrongdoing, which steps were designed to timely atone for any consequences of his/her misconduct. 

<<not>> checked. (5)    Restitution:  Respondent paid $   on   in restitution to   without the threat or force of disciplinary, civil or criminal proceedings.

<<not>> checked. (6)    Delay:  These disciplinary proceedings were excessively delayed.  The delay is not attributable to Respondent and the delay prejudiced him/her.

<<not>> checked. (7)    Good Faith:  Respondent acted in good faith.

<<not>> checked. (8)    Emotional/Physical Difficulties:  At the time of the stipulated act or acts of professional misconduct Respondent suffered extreme emotional difficulties or physical disabilities which expert testimony would establish was directly responsible for the misconduct.  The difficulties or disabilities were not the product of any illegal conduct by the member, such as illegal drug or substance abuse, and Respondent no longer suffers from such difficulties or disabilities.

<<not>> checked. (9)    Severe Financial Stress:  At the time of the misconduct, Respondent suffered from severe financial stress which resulted from circumstances not reasonably foreseeable or which were beyond his/her control and which were directly responsible for the misconduct.

<<not>> checked. (10) Family Problems:  At the time of the misconduct, Respondent suffered extreme difficulties in his/her personal life which were other than emotional or physical in nature.

<<not>> checked. (11) Good Character:  Respondent's good character is attested to by a wide range of references in the legal and general communities who are aware of the full extent of his/her misconduct.

<<not>> checked. (12) Rehabilitation:  Considerable time has passed since the acts of professional misconduct occurred followed by convincing proof of subsequent rehabilitation.

<<not>> checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances: 

D. Discipline:

checked. (1)           Stayed Suspension:

checked. (a) Respondent must be suspended from the practice of law for a period of one year.
<<not>> checked. i. and until Respondent shows proof satisfactory to the State Bar Court of rehabilitation and present fitness to practice and present learning and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney Sanctions for Professional Misconduct.
<<not>> checked. ii. and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following: .
checked. (b) The above-referenced suspension is stayed.

checked. (2) Probation:  Respondent must be placed on probation for a period of two years, which will commence upon the effective date of the Supreme Court order in this matter.  (See rule 9.18, California Rules of Court.)

checked. (3) Actual Suspension:

checked. (a) Respondent must be actually suspended from the practice of law in the State of California for a period of thirty days.
<<not>> checked. i. and until Respondent shows proof satisfactory to the State Bar Court of rehabilitation and present fitness to practice and present learning and ability in the law pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct
<<not>> checked. ii. and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following: .

E. Additional Conditions of Probation:

<<not>> checked. (1)   If Respondent is actually suspended for two years or more, he/she must remain actually suspended until  he/she proves to the State Bar Court his/her rehabilitation, fitness to practice, and learning and ability in the general law, pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct.

checked. (2)                  During the probation period, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

checked. (3)                  Within ten (10) days of any change, Respondent must report to the Membership Records Office of the State Bar and to the Office of Probation of the State Bar of California ("Office of Probation"), all changes of information, including current office address and telephone number, or other address for State Bar purposes, as prescribed by section 6002.1 of the Business and Professions Code.

checked. (4)                  Within thirty (30) days from the effective date of discipline, Respondent must contact the Office of Probation and schedule a meeting with Respondent's assigned probation deputy to discuss these terms and conditions of probation. Upon the direction of the Office of Probation, Respondent must meet with the probation deputy either in-person or by telephone. During the period of probation, Respondent must promptly meet with the probation deputy as directed and upon request.

checked. (5)                  Respondent must submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10 of the period of probation. Under penalty of perjury, Respondent must state whether Respondent has complied with the State Bar Act, the Rules of Professional Conduct, and all conditions of probation during the preceding calendar quarter. Respondent must also state whether there are any proceedings pending against him or her in the State Bar Court and if so, the case number and current status of that proceeding. If the first report would cover less than 30 days, that report must be submitted on the next quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same information, is due no earlier than twenty (20) days before the last day of the period of probation and no later than the last day of probation.

<<not>> checked. (6)   Respondent must be assigned a probation monitor. Respondent must promptly review the terms and conditions of probation with the probation monitor to establish a manner and schedule of compliance. During the period of probation, Respondent must furnish to the monitor such reports as may be requested, in addition to the quarterly reports required to be submitted to the Office of Probation. Respondent must cooperate fully with the probation monitor.

checked. (7)                  Subject to assertion of applicable privileges, Respondent must answer fully, promptly and truthfully any inquiries of the Office of Probation and any probation monitor assigned under these conditions which are directed to Respondent personally or in writing relating to whether Respondent is complying or has complied with the probation conditions.

checked. (8)                  Within one (1) year of the effective date of the discipline herein, Respondent must provide to the Office of Probation satisfactory proof of attendance at a session of the Ethics School, and passage of the test given at the end of that session.
No Ethics School recommended.  Reason: .

<<not>> checked. (9)   Respondent must comply with all conditions of probation imposed in the underlying criminal matter and must so declare under penalty of perjury in conjunction with any quarterly report to be filed with the Office of Probation.

checked. (10)                The following conditions are attached hereto and incorporated:

<<not>> checked. Substance Abuse Conditions.
checked. Law Office Management Conditions.
<<not>> checked. Medical Conditions.
<<not>> checked. Financial Conditions.

F.  Other Conditions Negotiated by the Parties:

checked. (1)                  Multistate Professional Responsibility Examination:  Respondent must provide proof of passage of the Multistate Professional Responsibility Examination ("MPRE"), administered by the National Conference of Bar Examiners, to the Office of Probation during the period of actual suspension or within one year, whichever period is longer.  Failure to pass the MPRE results in actual suspension without further hearing until passage. But see rule 9.10(b), California Rules of Court, and rule 321(a)(1) & (c), Rules of Procedure.
<<not>> checked. No MPRE recommended.  Reason: .

<<not>> checked. (2)   Rule 9.20, California Rules of Court:  Respondent must comply with the requirements of rule 9.20, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.

<<not>> checked. (3)   Conditional Rule 9.20, California Rules of Court:  If Respondent remains actually suspended for 90 days or more, he/she must comply with the requirements of rule 9.20, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 120 and 130 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.

<<not>> checked. (4)   Credit for Interim Suspension [conviction referral cases only]:  Respondent will be credited for the period of his/her interim suspension toward the stipulated period of actual suspension. Date of commencement of interim suspension: .

checked. (5)                  Other Conditions: See attachment regarding modified law office management conditions.

Attachment language (if any):

ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

 

IN THE MATTER OF: Anthony Pagkas, State Bar No. 186112

STATE BAR COURT CASE NUMBER: 07-O-13323

 

FACTS AND CONCLUSIONS OF LAW.

 

In 2003, Ed Mumbert ("Mumbert") hired Pagkas to defend him in Styles v. Mumbert, Case no. 1-03-CV-002071, filed in Superior Court, County of Santa Clara. Respondent failed to timely respond to interrogatories. As a result of respondent’ s failure to timely respond to interrogatories, in January, 2005, the plaintiff succeeded in obtaining terminating sanctions against Mumbert. Mumbert terminated respondent and hired a second attorney to set aside the terminating sanctions order. However, the Court denied a set-aside and entered a default judgment against Mumbert in the sum of $730,466.000.

 

Thereafter, Mumbert sued respondent for malpractice, Mumbert v. Pagkas, case no 105CV053326, also filed in Superior Court, County of Santa Clara. Respondent filed a cross-complaint for attorney’s fees.

 

At the same time that the malpractice suit was going forward, Mumbert was also appealing the adverse ruling in the Styles v. Mumbert case. This was case number H029767, filed in the Court of Appeal, Sixth Appellate District.

 

The parties met to discuss settlement, but no resolution was reached. Thereafter, respondent purchased, from Styles, the rights to the judgment. Respondent sought to then negotiate with Mumbert, and obtain, from Mumbert, consideration for the judgment that respondent now held against Mumbert. Respondent sought a significant sum from Mumbert, originally asking for around $100,000 in the hopes of getting at least a third of that amount. Respondent also sought to intervene as the real party in interest in the pending appeal, by filing pleadings in the Sixth Court of Appeal asking to be substituted into the case in the stead of Styles. In his pleadings, respondent indicated that he should be allowed to step in as a respondent in order to "offset any [future malpractice] award."

 

On July 15, 2008, the Court of Appeal issued a published decision (164 Cal. App. 4th 1163), denying respondent’s motion to be substituted into the suit in the stead of Styles. The Court found that respondent had violated his fiduciary duties to Mumbert as his former client. The Court sanctioned respondent the sum of $5,260.00, payable to Mumbert.

 

Respondent did not report the sanctions order to the State Bar.

 

CONCLUSIONS OF LAW

 

1. Respondent failed to perform with competence, in reckless, repeated, and willful violation of Rules of Professional Conduct, rule 3-110(A) when he failed to timely respond to interrogatories, resulting in the default judgment against Mumbert.

 

2. Respondent maintained an adverse, pecuniary interest, adverse to his client, in willful violation of Rules of Professional Conduct, rule 3-300, when he, without his client’s knowledge or consent, purchased the judgment against Mumbert from Styles, and thereafter sought to obtain funds from Mumbert in satisfaction of the judgment.

 

3. Respondent violated Business and Professions Code, section 6068(o), when he failed to report the adverse ruling, and sanctions against him, to the State Bar.

 

PENDING PROCEEDINGS.

 

The disclosure date referred to, on page 2, paragraph A(7), was November 3, 2010.

 

COSTS OF DISCIPLINARY PROCEEDINGS.

 

Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of $2,258.00, the prosecution costs in this matter are $1,983.00. 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.

 

AUTHORITIES SUPPORTING DISCIPLINE

 

The Standards for Attorney Sanctions for Professional Misconduct, Standard 2.8, mandates suspension for a willful violation of Rules of Professional Conduct, rule 3-300, unless the extent of the member’s misconduct and the harm are minimal. The Standards for Attorney Sanctions for Professional Misconduct, Standard 2.6 mandates suspension for a willful violation of Business and Professions Code, section 6068. Case law demonstrates a range of discipline from reproval to two-years actual.

 

In a 3-300 case in which the attorney did not have a prior record of discipline, the discipline has encompassed a public reproval for a single instance of holding an interest adverse to a client without proper notice and consent (Connor v. State Bar, supra, 50 Cal.3d 1047); thirty-days actual suspension for rule 3-300 violations, mismanagement, and intentional misrepresentations involving two trusts (Schneider v. State Bar, supra, 43 Cal.3d 784); and a two-year actual suspension for a business transaction with a client without notice and consent and the improper solicitation of a client, coupled with a client abandonment, failure to communicate with his clients, and failure to return client property and advanced fees promptly. (Rose v. State Bar, supra, 49 Cal.3d 646.)

 

In In the Matter of Fonte, (1994) 2 Cal State Bar Ct. Rptr. 752, at 765. the attorney received a sixty day actual suspension, one year of stayed suspension, and two years of probation, for, among other misconduct, obtaining an adverse interest to his client in a trust matter. In In Re Silverton (2004) 4 Cal. State Bar Ct. Rptr. 643, the attorney received sixty days of actual suspension for an improper business transaction with his client: he was paying his clients a set amount for the right to negotiate their medical liens, if he successfully negotiated the lien, he would keep the profit from the negotiation. In In Matter of Hultman (1995) 3 Cal. State Bar Ct. Rptr. 297, the attorney made two loans to himself as trustee of a testamentary trust, using up most of the corpus of the trust, in conflict with his client. The Court imposed sixty days of actual suspension, three-years stayed.

 

In the present case, respondent’s lack of discipline and his cooperation in reaching this stipulation was taken into consideration.

 

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 Attachment.

 

Respondent admits that the aforementioned facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.

LAW OFFICE MANAGEMENT CONDITIONS

Case Number(s): 07-O-13323

In the Matter of: Anthony Pagkas

 

<<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/  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 3 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.

The above mentioned section “b” is modified to require that respondent complete three MCLE hours in conflicts.

SIGNATURE OF THE PARTIES

Case Number(s): 07-O-13323

In the Matter of: Anthony Pagkas

 

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: Anthony Pagkas

Date: November 13, 2010

 

Respondent’s Counsel:

Date:

 

Deputy Trial Counsel: Robin B. Brune

Date: November 17, 2010

ACTUAL SUSPENSION ORDER

Case Number(s): 07-O-13323

In the Matter of: Anthony Pagkas

 

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

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: Lucy Armendariz

Date: December 2, 2010

CERTIFICATE OF SERVICE

[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 December 2, 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 San Francisco, California, addressed as follows:

 

ANTHONY E. PAGKAS

LAW OFC ANTHONY E PAGKAS

75 E. SANTA CLARA ST #1210

SAN JOSE, CA 95113

 

checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

 

ROBIN BRUNE, Enforcement, San Francisco

 

I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on December 2, 2010.

 

Signed by:

Bernadette C.O. Molina

Case Administrator

State Bar Court