Case Number(s): 07-O-14008-LMA
In the Matter of: Justin M. Gingery, Bar # 204217, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Tammy M. Albertsen-Murray, Bar # 154248,
Counsel for Respondent: Jonathan I. Arons, Bar # 111257,
Submitted to: Settlement 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 8, 1999.
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: two (2) 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: JUSTIN M. GINGERY, State Bar No. 204217
STATE BAR COURT CASE NUMBER: 07-O-14008-LMA
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.
Facts.
Case No. 07-0-14008, Count One (A), Rules of Professional Conduct, Rule 1-300(A) [Aiding the Unauthorized Practice of Law]
From April 2004 through May 2007, respondent was a founding member and partner with two other attorneys ("respondent’s partners") in respondent’s Sacramento law firm. At all relevant times, respondent mainly practiced personal injury law at respondent’s law firm.
From at least December 2005 through May 2007, respondent and respondent’s partners employed respondent’s father, non-attorney Richard Gingery, Sr. ("Richard Gingery"), as an "Administrator" in. respondent’s law firm.
From at least December 2005 through May 2007, respondent and respondent’s partners permitted Richard Gingery to handle all of the pre-litigation personal injury matters in respondent’s law firm with little or no supervision by respondent or respondent’s partners.
Despite the fact that respondent stipulated to discipline, effective May 25, 2007, for misconduct which included aiding and abetting the unauthorized practice of law of his non-attorney father, Richard Gingery, Sr., respondent failed to take reasonable steps to prevent Richard Gingery from practicing law. Respondent did not terminate Richard Gingery’s employment with his firm. Respondent did not terminate his own association with partners that did not want to terminate Richard Gingery. Having acquiesced to Richard Gingery’s continued employment, respondent stood idly by and did nothing while Richard Gingery continued openly and wantonly to practice law.
From at least December 2005 through May 2007 until respondent’s first discipline became effective, respondent and respondent’s partners permitted Richard Gingery, with no meaningful supervision by respondent or respondent’s partners and with full knowledge of Richard Gingery’s past practice of unlawful practice of law, to 1) provide legal advice to clients; 2) negotiate settlements with insurance companies; and 3) discuss settlement with clients.
Tammy Toms
Between June, 2006 and approximately January, 2009, Ms. Toms was a client of respondent’s law firm.
Richard Gingery, Sr. was assigned the handling of Ms. Toms’ case. File documents reflect that during the course of Gingery, Sr.’s involvement in the handling of Ms. Toms’ case, Gingery, Sr. gave Ms. Toms legal advice about her case, advised her regarding insurance coverage issues, advised her regarding the legal status of her employment. At no time did Gingery, Sr. inform Ms. Toms on his non-attorney status.
Respondent and his then-partners failed to supervise non-attorney Richard Gingery, Sr.’s work on Ms. Toms’ case. Neither respondent nor his then-partners informed Ms. Toms that Richard Gingery, Sr. was not an attorney.
Linda Villanueva
Between December 2005 and May 2007, Linda Villanueva was a client of respondent’s law firm in relation to a personal injury matter stemming from a motor vehicle accident.
Richard Gingery, Sr. was assigned the handling of Ms. Villanueva’s case. File documents reflect that during the course of Gingery, Sr.’s involvement in the handling of Ms. Villanueva’s case, Gingery, Sr. held settlement negotiations with an insurance adjuster, including issuing a demand for settlement, rejecting a settlement offer, issuing a counter-offer and ultimately accepting a settlement offer on Ms. Villanueva’s behalf. Documents reflect that Gingery, Sr. gave the impression to the insurance adjuster that he is an attorney. At no time did Gingery, Sr. inform Ms. Villanueva or the insurance adjuster of his non-attorney status.
Respondent and his then-partners failed to supervise non-attorney Richard Gingery, Sr.’s work on Ms. Villanueva’s case. Neither respondent nor his then-partners informed Ms. Villanueva that Richard Gingery, Sr. was not an attorney.
Lourdes Smith
Between January 2006 and December 2006, Lourdes Smith was a client of respondent’s law firm in relation to a personal injury matter stemming from a motor vehicle accident.
Richard Gingery, Sr. was assigned the handling of Ms. Smith’s case. File documents reflect that during the course of Gingery, Sr.’s involvement in the handling of Ms. Smith’s case, Gingery, Sr. held settlement negotiations with an insurance adjuster. Documents reflect that Gingery, Sr. gave the impression to the insurance adjuster that he is an attorney. At no time did Gingery, Sr. inform Ms. Smith or the insurance adjuster of his non-attorney status. File documents further reflect that Richard Gingery affirmatively told Ms. Smith that he was an attorney.
Respondent and his then-partners failed to supervise non-attorney Richard Gingery, Sr.’s work on Ms. Villanueva’s case. Neither respondent nor his then-partners informed Ms. Villanueva that Richard Gingery, Sr. was not an attorney.
Stephanie Birket
Between January 2007 and at least May 2007, Stephanie Birket was a client of respondent’s law firm in relation to a personal injury matter stemming from a motor vehicle accident. Ms. Birket was a minor at the time of the accident; Malissa Birket is Stephanie Birket’s mother.
Richard Gingery, Sr. was assigned the handling of Ms. Birket’s case. File documents reflect that during the course of Gingery, Sr.’s involvement in the handling of Ms. Birket’s case, Gingery, Sr. gave Malissa and/or Stephanie Birket legal advice about Stephanie’s case, advised them regarding insurance coverage issues and engaged in settlement negotiations on Stephanie Birket’s behalf. At no time did Gingery, Sr. inform Malissa or Stephanie Birket of his non-attorney status. Documents further reflect that in January 2007, Richard Gingery affirmatively told Malissa Birket that he was an attorney.
Respondent and his then-partners failed to supervise non-attorney Richard Gingery, Sr.’s work on Ms. Birket’s case. Neither respondent nor his then-partners informed Malissa and Stephanie that Richard Gingery, Sr. was not an attorney.
Elizabeth Contreras
Between October 2006 and April 2007, Elizabeth Contreras was a client of respondent’s law firm in relation to a personal injury matter stemming from a motor vehicle accident.
Richard Gingery, Sr. was assigned the handling of Ms. Contreras’ case. File documents reflect that during the course of Gingery, Sr.’s involvement in the handling of Ms. Contreras’ case, Gingery, St. held settlement negotiations with an insurance adjuster. Documents reflect that Gingery, Sr. gave the impression to the insurance adjuster that he is an attorney. At no time did Gingery, Sr. inform Ms. Contreras or the insurance adjuster of his non-attorney status.
Respondent and his then-partners failed to supervise non-attorney Richard Gingery, Sr.’s work on Ms. Contreras’ case. Neither respondent nor his then-partners informed Ms. Contreras that Richard Gingery, Sr. was not an attorney.
Conclusion of Law.
Particularly because of respondent’s recent prior discipline involving, in part, respondent’s allowing his father’s unauthorized practice of law ("UPL"), respondent knew or should have known that his father, Richard Gingery, would attempt to continue to engage in UPL and that he (Richard Gingery) must therefore be carefully monitored and closely supervised to prevent his continued UPL. By allowing Richard Gingery, a non-attorney, to hold himself out as an attorney and provide legal advice to clients, negotiate settlements with insurance companies and discuss settlement with clients, all with little or no supervision by respondent or respondent’s partners, respondent aided and abetted Richard Gingery in the unauthorized practice of law, in willful violation of Rules of Professional Conduct, rule 1-300.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(6), was October 14, 2009.
DISMISSAL.
The parties respectfully request that the Court dismiss the following alleged violation in the interest of justice:
Case No.: 07-O-14008, Count: ONE(B), Alleged Violation: Business and Professions Code, section 6106 [moral turpitude]
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 14, 1009, the prosecution costs in this matter are approximately $4271.85, which includes 617.85 in taxable costs. 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.
Standard 2.10;
In the Matter of Jones (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 411,415 [in which attorney received 6 months actual suspension for, among other things, abdicating "basic professional responsibilities and allow[ing] a non-lawyer almost free rein to perform such responsibilities in the lawyer’ s name."];
Crawford v. State Bar (1960) 54 Cal.2d 659, 666 [in which an attorney was disciplined for forming a partnership with a non-lawyer, his disbarred father, holding "unauthorized practice of law includes the mere holding out by a layman that he is... entitled to practice law."]; and
Farnham v. State Bar (1976) 17 Cal.3d 605,612 [in which an attorney was disciplined - including 6 months’ actual suspension - for a pattern of misconduct that included UPL while suspended. Court held that "While [Respondent] did not sign any legal documents or make a court appearance on [his client’s] behalf, in a larger sense, the practice of law includes legal advice and counsel and the mere preparation of legal instruments."]
OTHER CONDITION NEGOTIATED BY THE PARTIES.
LIMITATION OF ACTIVITIES OF RESPONDENT’S EMPLOYEES:
Respondent agrees that he will not permit his non-attorney employees, agents or independent contractors to engage in the following conduct proscribed by Rules of Professional Conduct, Rule 1-311:
(1) Render legal consultation or advice to clients;
(2) Appear on behalf of a client in any hearing or proceeding or before any judicial officer,
(3) arbitrator, mediator, court, public agency, referee, magistrate, commissioner, or hearing officer;
(4) Appear as a representative of the client at a deposition or other discovery matter;
(5) In any other manner not otherwise identified above, allow any non-attorney over whom respondent has supervisory or other authority to practice law.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-14008-LMA
In the Matter of: JUSTIN M. GINGERY
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: Justin M. Gingery
Date: November 16, 2009
Respondent’s Counsel: Jonathan I. Arons
Date: November 16, 2009
Deputy Trial Counsel: Tammy M. Alberstsen-Murray
Date: November 16, 2009
Case Number(s): 07-O-14008-LMA
In the Matter of: JUSTIN M. GINGERY
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.
<<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.
1. p. 2, item B(1)(b): effective date of prior discipline is May 25, 2007;
2. P. 2, item B(1)(d): degree of prior discipline, in relevant part, is: stayed suspension for two years and until respondent complies with standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct (hereafter "standard or std.’);
3. p. 4, item D(3)(i): delete the recommendation for compliance with standard 1.4(c)(ii) as that is normally recommended for actual suspensions of two years or more in duration. (Std. 1.4(c)(ii).); and
4. p. 5, item E(8): Insert "x" in box recommending compliance with Ethics School requirement and delete the "x" and language regarding not recommending same. (Rule 290(a), Rules Proc. of State Bar.)
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 McElroy
Date: November 18, 2009
[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 18, 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 San Francisco, California, addressed as follows:
JONATHAN IRWIN ARONS
LAW OFC JONATHAN I ARONS
221 MAIN ST STE 740
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:
TAMMY A. ALBERTSEN-MURRAY, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on November 18, 2009.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court