Case Number(s): 07-O-13860
In the Matter of: Patrick Carter, Bar # 60763, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Treva R. Stewart, Bar # 239829,
Counsel for Respondent: Jonathan I. Arons, Bar # 111257,
Submitted to: Assigned Judge – 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 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 membership years: three billing cycles following the effective date of the Supreme Court Order herein. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.)
<<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: Patrick Carter, State Bar No. 60763
STATE BAR COURT CASE NUMBER: 07-O-13860-PEM
FACTS AND CONCLUSIONS OF LAW.
FACTS
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.
1. During at least from December, 2006 until its closure in January, 2008, respondent maintained an attorney-client trust account (hereinafter, "CTA"), account number 029-5094296 at Wells Fargo Bank.
2. On February 20, 2007, respondent deposited an official check from Citibank in the amount of $89,581.49 into his CTA.
3. On or about September 28, 2007, respondent informed the State Bar that he was divorced and upon his divorce, his joint checking account maintained with his wife was closed. Thereafter, he commenced using his CTA "on a couple of occasions" like a personal checking account. Respondent stated that he retired in early 2007, no longer had client funds in the CTA and would be closing the CTA.
4. On or about October 4, 2007, Wells Fargo Bank notified the State Bar of several insufficient funds (hereinafter, "NSF") transactions in respondent’s CTA.
5. Between on or about August 10, 2007, and on or about November 14, 2007, respondent issued the following checks and/or electronic funds transactions, even though there were insufficient funds in the account to cover these checks and electronic funds transactions:
Date 1: 8/17/07, Check Number: 1194, Amount: $2,000.00, Balance 2: -1,977.67, Payee: Citibank,
Date: 8/17/07, Check Number: 1197, Amount: $1,950.00, Balance: -3,927.67, Payee: Kaiser Permanente,
Date: 8/21/07, Check Number: electronic, Amount: $167.00, Balance: -190.67, Payee: American Express,
Date: 10/29/07, Check Number: unknown, Amount: $43.45, Balance: -99.10, Payee: Shell oil,
Date: 10/31/07, Check Number: unknown, Amount: $548.00, Balance: -681.10, Payee: American Express,
Date: 10/23/07, Check Number: electronic, Amount: $548.00, Balance: -535.65, Payee: American Express,
Date: 10/26/07, Check Number: unknown, Amount: $548.00, Balance: -569.65, Payee: American Express,
Date: 11/05/07, Check Number: electronic, Amount: $548.00, Balance: -715.10, Payee: American Express,
Date: 11/08/07, Check Number: electronic, Amount: $548.00, Balance: -749.10, Payee: American Express,
Date: 11/14/07, Check Number: electronic, Amount: $548.00, Balance: -783.00, Payee: American Express,
[Footnote 1: This is the date that the check was presented for payment. & Footnote 2: The balance in respondent’s CTA account when the check was presented for payment.]
6. As to each of these transactions, Wells Fargo Bank, at or near the time the transaction was presented for payment, notified respondent, in writing, of the NSF transaction, notified respondent of the NSF fee, and requested that respondent immediately deposit funds sufficient to cover the NSF transactions and resultant fees. Wells Fargo sent respondent the NSF transaction notices to 2523 28th Avenue, San Francisco, California, 941116-2911.
7. Respondent received the notices and was aware of their contents.
8. Records of respondent’s CTA reflect that between December 31, 2006 through the account’s closure in January, 2008, respondent issued funds for personal items from his CTA as follows:
Date: 1/29/07, Check #:1147, Amount: $1,500, Payee: Martha Carter,
Date: 3/6/07, Check #:1160, Amount: $24.50, Payee: Clover Cleaners,
Date: 3/12/07, Check #:1159, Amount: $335.00, Payee: filing fee,
Date: 4/2/07, Check #:1163, Amount: $ 57,612.35, Payee: North American Title,
Date: 4/5/07, Check #:1165, Amount: $600.00, Payee: Araville Residential,
Date: 4/16/07, Check #: chkcard 3, Amount:$119.00, Payee: Pet Camp LLC [Footnote: 3 Check Card purchase],
Date: 6/5/07, Check #:1172, Amount: $263.77, Payee: Benicia Highlands,
Date: 6/12/07, Check #:1175, Amount: $46.00, Payee: Mtn. Vista Farm client fees,
Date: 7/23/07, Check #: chk card, Amount: $22.99, Payee: Rose Drive Market,
Date: 7/30/07, Check #: chk card, Amount: $201.50, Payee: Rose Drive Market ,
Date: 8/15/07, Check #:1196, Amount: $220.89, Payee: Comcast,
Date: 9/13/07, Check #:1211, Amount: $116.39, Payee: Verizon Wireless,
Date: 9/17/07, Check #:1212, Amount: $1,107.44, Payee: Wells Fargo Home Mortgage,
9. A review of the CTA account also revealed that there was a disbursement made on behalf of a client from the account, as follows:
Date: 1/26/07, Check: 1139, Amount: $40.00, Notation: Client costs: telephone call
10. Expenditures from respondent’s CTA were for personal use and for a client matter(s).
Conclusions of Law
By maintaining his personal funds in his CTA and using his CTA for personal expenditures, as demonstrated by the aforementioned transactions, respondent commingled client and personal funds in his CTA in wilful violation of Rules of Professional Conduct, rule 4-100(A).
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed on March 28, 2008 and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
MITIGATING CIRCUMSTANCES.
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
Respondent has no prior record of discipline in more than 29 years of practice.
Upon becoming aware of these disciplinary proceedings, respondent cooperated in the investigation.
Respondent demonstrated recognition of his wrongdoing by taking steps to close the CTA account.
AUTHORITIES SUPPORTING DISCIPLINE
Standards for Attorney Sanctions for Professional Misconduct
Standard 2.2(b) provides that culpability of commingling of entrusted funds with personal property or another violation of rule 4-100 ... "shall result in at least a three month actual suspension, irrespective of mitigating circumstances. (Emphasis added).
Standard. 2.3 states that offenses involving moral turpitude shall result in actual suspension or disbarment.
Case Law
In In the Matter of Doran (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 871, the attorney was found culpable of violating rule 4-100 for depositing personal funds into his client trust account client trust account and using the client trust account for personal expenses, even where no client funds were in the client trust account. Doran, supra 3 Cal. State Bar Ct. Rptr. 871 at 876. The attorney also repeatedly wrote checks on an account which had insufficient funds which constituted moral turpitude. Id. Further, he was culpable of violating rules 3-110(A), 3700(A)(2) of the Rules of Professional conduct. Id. at 877-878. The attorney was suspended for 18 months, stayed, placed on three years probation and suspended for six months and until compliance with probation conditions.
RESTRICTIONS WHILE ON ACTUAL SUSPENSION.
1. During the period of actual suspension, respondent shall not:
1. Render legal consultation or advice to a client;
2. Appear on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner, or hearing officer;
3. Appear as a representative of a client at a deposition or other discovery matter;
4. Negotiate or transact any matter for or on behalf of a client with third parties;
5. Receive, disburse, or otherwise handle a client’s funds; or
6. Engage in activities which constitute the practice of law.
2. Respondent shall declare under penalty of perjury that he or she has complied with this provision in any quarterly report required to be filed with the Probation Unit, pertaining to periods in which the respondent was actually suspended from the practice of law.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was August 1, 2008.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of August 1, 2008, the costs in this matter are $4,271.40. 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.
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.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-13860
In the Matter of: Patrick Carter
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: Patrick J. Carter
Date: August 7, 2008
Respondent’s Counsel: Jonathan I. Arons
Date: August 22, 2008
Deputy Trial Counsel: Treva R. Stewart
Date: August 22, 2008
Case Number(s): 07-O-13860
In the Matter of: Patrick Carter
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.
1. On page 2, section A(8)-- costs to be paid in equal amounts prior to February 1 for the following membership years: 2010, 2011 & 2012.
2. On page 5, section F(2)-- an "x" is inserted in the box so that respondent is ordered to comply with the requirements of rule 9.20, California Rules of Court.
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: Pat E. McElroy
Date: September 9, 2008
[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 September 9, 2008, 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:
JONATHAN IRWIN ARONS
LAW OFC JONATHAN I ARONS
101 HOWARD ST #310
SAN FRANCISCO, CA 94105
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
TREVA STEWART, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on September 9, 2008.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court