Case Number(s): 07-O-14460
In the Matter of: William C. Dresser, Bar # 104375, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Bar # 214209
Counsel for Respondent: Bar #
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
Filed: February 9, 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.
1. Respondent is a member of the State Bar of California, admitted December 3, 1982.
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 10 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. costs added to membership fee for calendar year following effective date of discipline.
<<not>> checked. 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.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
No Prior Discipline: Respondent has no prior record of discipline over many years of practice. See page 8.
FACTS AND CONCLUSIONS OF LAW
Facts
1. Prior to April 24, 2004, respondent was hired by Joseph Flores ("Flores") to file a complaint against Flores’ former employer, Herbert Ragle ("Ragle"), for unpaid wages. On April 24, 2004, respondent filed a complaint in the matter, Joseph Flores v. Herb Ragle, HR Electric & Engineering, et al, Santa Clara County Superior Court Case No. 1-04-CV-018791.
2. On February 3, 2005, the parties executed a settlement agreement in Case No. 1-04-CV-018791. The settlement agreement provided for Ragle to pay Flores a total of $16,000. The parties agreed to allow Ragle to pay the $16,000 in monthly installments, with the last installment payment to be made on January 1, 2006. The settlement agreement also provided as follows: "If any such payment is not made on or before the due date or within the grace period, the unpaid balance shall become due and may be enforced by plaintiff, in which case defendants also agree to pay plaintiff’s attorney’s fees and costs. Plaintiff will provide defendants with a request for dismissal upon receipt of final payment." There was no express provision for interest under the settlement agreement.
3. Through July 2005, Ragle made installment payments to Flores totaling $9,000. Thereafter, Ragle ceased making installment payments to Flores. As of the last installment payment made in July 2005, Ragle still owed Flores $7,000 under the settlement agreement ($16,000 less $9,000), which was due and payable at that time.
4. At all relevant times herein, respondent had an associate attorney ("Associate") in his law office. At all relevant times herein, respondent delegated authority for handling the court matters in Case No. 1-04-CV-018791 to Associate.
5. On January 31, 2007, at respondent’s direction, Associate filed a notice of motion to enforce the settlement agreement in Case No. 1-04-CV-018791. In the notice of motion, Associate requested a judgment pursuant to the settlement agreement and for the court to retain jurisdiction over the parties to enforce the settlement agreement until performance in full of the terms of the settlement. A hearing on Associate’s motion to enforce the settlement was scheduled to take place on March 6, 2007.
6. In or about February 2007, Ragle hired attorney Leonard J. Siegal ("Siegal") to represent him in Case No. 1-04-CV-018791.
7. On February 13, 2007, Siegal sent respondent a letter enclosing check number 122, dated February 13, 2007, from Ragle made payable to Flores and respondent in the amount of $7,000 ("$7,000 check"). In the letter, Siegal offered the following terms of settlement of Case No. 1-04-CV-018791: "Pursuant to the settlement agreement entered into with Herb Ragle, enclosed is Mr. Ragle’s check in the amount of $7,000 as a final payment in this case. You are authorized to release and negotiate this check upon (1) taking your motion to enforce settlement agreement off calendar, and (2) remitting a filed copy of a Request for Dismissal with prejudice."
8. On February 14, 2007, respondent received Siegal’s February 13, 2007 letter, but failed to respond to it. Thereafter, respondent’s staff forwarded the $7,000 check to Flores’ wife to endorse. At the time, FIores’ wife held power of attorney on behalf of her husband who was stationed overseas on active duty with the National Guard.
9. Prior to March 1, 2007, Flores’ wife returned the signed $7,000 check to respondent. On March 1, 2007, respondent signed the $7,000 check and deposited it into his client trust account. On March 2, 2007, respondent issued a check from his trust account in the amount of $7,000 to Flores’ wife. At no time prior to negotiating the $7,000 check, or issuing payment of the $7,000 to Flores’ wife, did respondent advise Siegal of his actions.
10. By negotiating the $7,000 check, respondent accepted the terms set forth in Siegal’s February 13, 2007 letter for settlement of Case No. 1-04-CV-018791, thus terminating any further claims by Flores against Ragle. In addition, the deposit of Ragle’s $7,000 check into respondent’s client trust account created a fiduciary obligation for respondent to maintain those funds on behalf of Ragle. Therefore, respondent was required to maintain the $7,000 in his client trust account until the pre-conditions attached to the check were fulfilled. Flores was not entitled to the $7,000 until the preconditions were satisfied and the settlement was finalized.
11. Prior to negotiating the $7,000 check, respondent failed to take the motion to enforce settlement agreement off calendar and failed to remit a filed copy of a Request for Dismissal with prejudice to Siegal, thereby violating the terms of the settlement in Case No. 1-04-CV-018791. In fact, at the time of negotiating the check, respondent had no intention of complying with the conditions attached to the negotiation of the $7,000 check since he believed Flores was entitled to prejudgment interest, costs and attorney’s fees under the original settlement agreement.
12. On February 26, 2007, Siegal sent respondent a letter requesting an update on the status of the dismissal of Case No. 1-04-CV-018791. Respondent received Siegal’s February 26, 2007 letter, but failed to respond to it.
13. On March 6, 2007, the hearing on Associate’s motion to enforce the settlement agreement was held. Associate appeared at the hearing on behalf of Flores. Siegal did not attend the hearing or file an opposition to Associate’s motion. Prior to the March 6, 2007 hearing, respondent failed to direct Associate to disclose to the court that Flores paid $7,000 in full settlement of Case No. 1-04-CV-018791. Hence, Associate did not disclose this information to the court at the March 6, 2007 hearing. At the hearing, the court granted Associate’s motion and requested that he submit a proposed judgment.
14. On March 7, 2007, Siegal called respondent. At that time, respondent informed Siegal that he had negotiated the $7,000 check and proceeded with the March 6, 2007 hearing. In response, Siegal requested that respondent have the order set aside. Respondent refused to set aside the order. On March 14, 2007, respondent sent a letter to Siegal offering to settle all outstanding issues for $935.44 in interest to Flores. Respondent specified that the offer had "to be agreed to by March 16, 2007," or he would file a motion for attorney fees. Siegal did not respond to respondent’s March 14, 2007 letter by March 16, 2007.
15. On March 16, 2007, at respondent’s direction, Associate filed a motion for attorney’s fees in Case No. 1-04-CV-018791. A hearing on the motion was scheduled to take place on May 10, 2007.
16. On March 22, 2007, Associate submitted a proposed judgment to the court in Case No. 1-04-CV-018791. The proposed judgment contained several errors based on respondent’s failure to supervise Associate’s handling of the matter. Specifically, in the proposed judgment, Associate listed the following amounts to be paid to Flores: "Damages" in the amount of $16,000, "Prejudgment interest" in the amount of $1,108.33 and "Attorney fees" in the amount of $1,043.61. However, Associate did not include a statement acknowledging full payment of the $16,000 in "Damages." Moreover, there was no express provision for prejudgment interest in the original settlement agreement and the court did not expressly award prejudgment interest at the March 6, 2007 hearing. In addition, the court had not awarded attorney’s fees since the hearing on that issue had not yet occurred.
17. On March 22, 2007, the court entered the judgment submitted by Associate.
18. On March 28, 2007, Siegal filed a motion to vacate the court’s March 6, 2007 order and the March 22, 2007 judgment.
19. On May 10, 2007, the hearing on Associate’s motion for attorney’s fees was held. On June 11, 2007, the court issued an order denying the motion.
20. On July 13, 2007, a hearing on the motion to vacate the court’s March 7, 2007 order and the March 22, 2007 judgment was held. Associate appeared at the hearing on behalf of Flores. On August 7, 2007, the court issued an order vacating the March 6, 2007 order in its entirety and vacating the March 22, 2007 judgment in its entirety. The court also issued an order requiring respondent to pay sanctions to Ragle in the amount of $950, plus $40 in costs ($990 total). The court ordered that Flores was not entitled to any further recovery of the $16,000 and that the case would be dismissed with prejudice upon payment of the $990 by respondent. In the order, the court made the following findings, inter alia: "1) By accepting and cashing defendants’ check for $7,000.00, plaintiff has accepted the pre-conditions that accompanied the check, namely to take his motion off calendar and to file a dismissal with prejudice; 2) By accepting and cashing defendants’ check for $7,000.00, plaintiff effectively terminated any further recovery....5) Plaintiffs attorney’s actions that are the basis of this motion were bad faith actions and tactics within the meaning of CCP § 128.6." Respondent received a copy of the court’s August 7, 2007 order, but failed to pay the sanctions.
21. On October 22, 2007, Siegal sent a letter to respondent requesting payment of the sanctions. Respondent received Siegal’s October 22, 2007 letter, but failed to respond to it. On October 30, 2007, Ragle filed a complaint with the State Bar against respondent. On December 10, 2007, Siegal sent another letter to respondent requesting payment of the sanctions. Respondent received Siegal’s December 10, 2007 letter, but failed to respond to it. On January 11, 2008, State Bar Investigator Jeanne Isola sent a letter to respondent regarding the allegations in the complaint filed by Ragle.
22. On March 10, 2008, more than seven months after the court issued its August 7, 2007 order, respondent paid Siegal $990.00.
Conclusions of Law
1. By negotiating the $7,000 check without fulfilling the conditions attached to the check, thereby violating the terms of the settlement in Case No. 1-04-CV-018791 and extinguishing his client’s entitlement to any further recovery and by not supervising Associate’s actions in handling Case No. 1-04-CV-018791, which resulted in Associate’s failure to disclose to the court at the March 6, 2007 hearing that Ragle had already paid Flores the principal amount in full ($16,000.00) and Associate’s failure to file an accurate proposed judgment, respondent failed to supervise Associate in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
2. By failing to promptly pay the $990 in sanctions imposed against him in the court’s August 7, 2007 order, respondent willfully disobeyed and violated an order of the court requiring him to do an act connected with or in the course of his profession which he ought in good faith to do, in willful violation of section 6103 of the Business and Professions Code.
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A (7) was January 5, 2009.
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. In addition, respondent will receive credit for attendance at State Bar Ethics School under this stipulation if he attends the course after the filing of this stipulation, but before the effective date of discipline.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
AGGRAVATING CIRCUMSTANCES
There are no aggravating circumstances in this matter.
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(i). Respondent has been in practice since December 3, 1982. He has no prior record of discipline.
SUPPORTING AUTHORITY
Standard 2.4(b) requires reproval or suspension for a respondent who has wilfully failed to perform services in which he was retained.
Standard 2.6 requires that a violation of Business and Professions Code section 6103 shall result in disbarment or suspension according to the gravity of the offense or harm, if any, to the victim, with due regard to the purpose of imposing discipline set forth in standard 1.3.
Generally, suspension is the proper discipline for a failure to perform with competence. (See Layton v. State Bar (1990) 50 Cal.3d 889 [30 days’ actual suspension for failing to perform in one matter; no prior record of discipline]; Van Sloten v. State Bar(1989) 48 Cal.3d 921 [six months’ stayed suspension for failing to perform in one matter; no prior record of discipline]; Stuart v. State Bar (1985) 40 Cal.3d 838 [30 days’ actual suspension for failing to perform in one matter; prior private reproval]; see also/n the Matter of Aguiluz (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 32 [one-year stayed suspension for failing to perform in one matter; no prior record of discipline].)
Based on the standards and the case law, as well as respondent’s 25 years of discipline-free practice, a two-year stayed suspension is appropriate in this matter.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-14460
In the Matter of: William C. Dresser
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: William C. Dresser
Date: 1/28/09
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Susan I. Kagan
Date: 1/29/09
Case Number(s): 07-O-14460
In the Matter of: William C. Dresser
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.
<<not>> 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: February 9, 2009
[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 San Francisco, on February 9, 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:
WILLIAM CHARLES DRESSER
LAW OFC WILLIAM C. DRESSER
4 N 2ND ST #1230
SAN JOSE, CA 95113 - 1307
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN KAGAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on February 9, 2009.
Signed by:
Laine Silber
Case Administrator
State Bar Court