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-14114
In the Matter of: Gary Lee Merkle, A Member of the State
Bar of California, (Respondent), Bar # 122325
Counsel For The State Bar: Adriana M. Burger, Bar # 92534
Counsel for Respondent: Bar #
Submitted to: Assigned Judge State Bar Court Clerk’s Office
Los Angeles
Filed: March 4, 2009
<<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 January 3, 1986.
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):
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until costs are paid in full, Respondent will remain actually suspended from
the practice of law unless relief is obtained per rule 284, Rules of Procedure.
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costs to be paid in equal amounts prior to February 1 for the following
membership years: (hardship, special circumstances or other good cause per rule
284, Rules of Procedure.)
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checked. costs waived in part as set forth in a separate attachment entitled
"Partial Waiver of Costs".
<<not>>
checked. costs 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.
<<not>>checked. (4) Harm: Respondent's misconduct harmed
significantly a client, the public or the administration of justice.
<<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.
checked. (8) No aggravating circumstances are involved.
Additional aggravating circumstances:
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
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(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. Respondent has been practicing for over 22 years without
any prior discipline from the State Bar of California.
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(2) No Harm: Respondent did not harm the client or person
who was the object of the misconduct. Respondent handled one client matter
while suspended for a one month period due to his being in non compliance with
his Mandatory continued Legal Education certification (MCLE). There is no
evidence that the Respondent committed any harm to the client.
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(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.
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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.
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checked. (5) Restitution: Respondent paid $ on in restitution to without
the threat or force of disciplinary, civil or criminal proceedings.
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checked. (6) Delay: These disciplinary proceedings were excessively
delayed. The delay is not attributable to Respondent and the delay prejudiced
him/her.
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checked. (7) Good Faith: Respondent acted in good faith.
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(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.
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(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.
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(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. In 2006, Respondent experienced family problems that
contributed to his stress.
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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.
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checked. (12) Rehabilitation: Considerable time has passed since the acts of
professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
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checked. (13) No mitigating circumstances are involved.
Additional
mitigating circumstances:
D.
Discipline:
checked. (1) Stayed Suspension:
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(a) Respondent must be suspended from the practice of law for a period of One
(1) year.
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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.
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following:
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(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 (30) days.
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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
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following:
E. Additional Conditions of Probation:
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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.
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(2) During the probation period, Respondent must comply with the
provisions of the State Bar Act and Rules of Professional Conduct.
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(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.
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(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.
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(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.
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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.
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(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.
<<not checked>> No Ethics School recommended. Reason:
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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.
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(10) The following conditions are attached hereto and incorporated:
<<not>> checked. Substance
Abuse Conditions.
<<not>>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:
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:
<<not>> checked. (5) Other Conditions:
ATTACHMENT
TO
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
In the matter of Gary Lee Merkle Bar # 122325
Case No. 07-O-14114
FACTS
On or about
September 18, 2006, Respondent’s license to practice law in California was
suspended by the State Bar of California Supreme Court for his failure to
comply with his Mandatory Continued Legal Education (MCLE) requirement.
On or about
October 18, 2006, Respondent submitted MCLE compliance materials, his
compliance card, and the fees to the State Bar. The State Bar reinstated
Respondent to active status on October 19, 2006.
As a result
of the above, Respondent was not eligible to practice law from September 18,
2006 to October 19, 2006.
Respondent
explained that he did not timely complete his MCLE because he wanted to attend
classes related to his field of Workers Compensation law and was unable to
arrange the class prior to the MCLE deadline. Respondent acknowledges that he
should have been aware that his license had been suspended and that he should
have completed his MCLE in a timely fashion.
Despite the
above, Respondent improperly engaged in the practice of law by filing a
Declaration of Readiness to proceed in the California Workers Compensation
Appeals Court in a client matter; sending a letter to an adjuster in the same
matter; and, appearing in court for a trial in a Social Security matter
regarding the same client but a different matter. The details are as follows:
On or about
June 1, 2006, Jeffrey Galier ("Galier") hired Respondent to represent
Galier and substitute into Galier’s ongoing case before the Worker’s
Compensation Appeal Board, Van Nuys, California, entitled Jeffrey Galier vs.
American Calvest Corporation, Case No. VNO 433323 ("WC matter"). On
or about June 9, 2006, Respondent filed a Substitution of Counsel on behalf of
his client, with the Van Nuys Workers Compensation Appeals Board in the Galier
matter. On or about October 13, 2006, Respondent sent a settlement proposal to
the adjuster regarding the Galier WC matter. On or about October 13, 2006,
Respondent prepared and filed a Declaration of Readiness to Proceed with the
Van Nuys Workers Compensation Appeals Board in the Galier matter.
On or about
June 9, 2006 Galier hired Respondent to represent Galier in his claim to obtain
disability benefits against the United States Department of Social Security
Administration. On June 13, 2006, Respondent filed with the Social Security
Administration Office of Hearings and Appeals, the Appointment of
Representative in the Social Security matter. On or about September 26, 2006,
Respondent appeared on behalf of Galier in the trial before the Social Security
Administration.
CONCLUSIONS
OF LAW
Violation:
Business and Professions Code, section 6068(a)
[Failure to
support laws-section 6125/6126
Practicing
law while enrolled in In-Active Status]
By filing the
Declaration of Readiness to proceed, sending the letter to the adjuster, and,
appearing in court for the trial in the Social Security matter, Respondent held
himself out as practicing or entitled to practice law and practiced and/or
attempted to practice law when he was not an active member of the State Bar in
willful violation of Business and Professions Code, sections 6125 and 6126, and
thereby failed to support the laws of the State of California.
DISCIPLINE
AND SUPPORTING AUTHORITY
Standard 2.6
provides that a violation of Business and Professions Code, Section 6068(a)
shall result in a disbarment or suspension depending upon the gravity of the
offense and the harm, if any to the victim of the misconduct.
Standard 1.3
provides guidance as to the imposition of discipline and interpretation of
specific standards. It provides that "[t]he primary purposes of
disciplinary proceedings conducted by the State Bar of California and of
sanctions imposed upon a finding or acknowledgment of a member’s professional
misconduct 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. Rehabilitation of a
member is a permissible object of a sanction imposed upon the member but only
if the imposition of rehabilitative sanctions is consistent with the
above-stated primary purposes of sanctions for professional misconduct."
Respondent’s
misconduct is serious and involves the practice of law. Additionally,
Respondent should have known and did in fact know that he was not permitted to
practice law until his MCLE matter had been resolved with the State Bar. Respondent
practiced law by filing papers with the court, corresponding with an adjuster
and appearing in a trial of another matter with the same client. These factors
indicate that suspension is appropriate and required in this matter.
However,
Respondent recognizes that he violated the rule and appears to sincerely regret
his actions. In light of this and the factors within this stipulation, it is
very unlikely that this Respondent will commit any misconduct in the future.
Additionally, it does not appear that this Respondent poses any danger to the
public. Therefore, it is the State Bar’s recommendation that the Court impose
the minimum suspension in the range of Standard 2.6 and 1.4 of thirty (30) days
actual suspension.
The State Bar
believes that this agreed stipulation is consistent with the Standards and will
provide insurance of continued public protection.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-14114
In the Matter of: Gary Lee Merkle
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
Lee Merkle
Date: 2/18/09
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Adrianna M. Burger
Date: 3/2/09
ACTUAL
SUSPENSION ORDER
Case Number(s): 07-O-14114
In the Matter of: Gary Lee Merkle
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:
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The stipulated facts and disposition are APPROVED and the DISCIPLINE
RECOMMENDED to the Supreme Court.
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checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set
forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
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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:
Date:
CERTIFICATE
OF SERVICE
[Rule 62(b) Rules Proc.; 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 March 4, 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 Los Angeles, California, addressed as follows:
GARY
LEE MERKLE
6454
VAN NUYS BLVD STE 150
VAN
NUYS, CA 91401
checked. by
interoffice mail through a facility regularly maintained by the State Bar of
California addressed as follows:
ADRIANNA
BURGER, Enforcement, Los Angeles
I hereby
certify that the foregoing is true and correct. Executed in Los Angeles,
California, on March 4, 2009.
Signed by:
Johnnie Lee
Smith
Case
Administrator
State Bar
Court