Case Number(s): 08-O-12070-RAH
In the Matter of: Stephen Borrelli, Bar # 143746, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Ashod Mooradian, Bar # 194283,
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
<<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 11, 1989.
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 16 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: Total costs added to membership fee for one (1) calendar year following effective date of discipline. (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: STEPHEN BORRELLI, State Bar No. 143746
STATE BAR COURT CASE NUMBER: 08-O-12070-RAH
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 ("NDC") filed on June 22, 2009, 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. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
B. FACTS AND CONCLUSIONS OF LAW.
Stephen Borrelli ("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:
1. Respondent was admitted to the practice of law in the State of California on December 11, ,1989, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California.
Barton Properties Lawsuit
2. On November 9, 2006, Steve Selinger ("Selinger") employed Respondent to represent Selinger’s company, Barton Properties, in a lawsuit against the City of Los Angeles, Los Angeles County Superior Court, case no. BC 311407, entitled Barton Properties, Inc. v. City of Los Angeles, et al. ("Barton Properties Lawsuit").
3. In approximately August, 2007, Respondent informed Selinger that Respondent had been suffering from depression over a child custody dispute.
4. On August 20, 2007, defendant filed and served a "Motion to Compel Responses to Set of Special Interrogatories and for Award of Monetary Sanctions." Respondent had previously received the Special Interrogatories properly served on him by defendant but had failed to respond to them and failed to inform Selinger of them. At or about that same time, defense counsel also filed a "Motion to Compel Response to Second Demand for Production of Documents and for Award of Monetary Sanctions." Respondent had previously received the Second Demand for Production of Documents properly served on him by defendant but had failed to respond to them and failed to inform Selinger of them. Respondent received said motions but did not prepare or file an opposition to either motion. Respondent did not inform Selinger of the defendant’s Motions to Compel.
5. On September 26, 2007, defendant filed and served a "Motion to Compel Supplemental Responses to First Set of Form Interrogatories and to First Set of Special Interrogatories and for Award of Monetary Sanctions." Respondent had previously received the First Set of Form Interrogatories and the First Set of Special Interrogatories properly served on him by defendant but had failed to adequately respond to them and failed to inform Selinger of them. Respondent received said motion but did not prepare of file an opposition to the motion. Respondent did not inform Selinger of the defendant’s Motion to Compel.
6. Although Respondent was properly served with all three Motions to Compel listing the hearing date, and although Respondent was aware of the hearing date, on November 28, 2007, Respondent failed to appear for the hearing on the discovery motions. The Court granted the motions and sanctioned Barton Properties and Respondent a total of $1,750.00 for reasonable attorneys’ fees in connection with both motions. Respondent never informed Selinger of the hearing date, the rulings, or the resulting sanction orders.
7. On December 3, 2007, Respondent received a copy of the Notice of Entry of Order Regarding Discovery Motions. In approximately December, 2007, Respondent admitted
to Selinger that Respondent’s depression over the loss of his child custody dispute had caused him to become inattentive to his work. Respondent promised to provide Selinger a declaration for the Court, in which Respondent would assume fault for the inattention to the discovery motions. Respondent never provided that declaration to Selinger. Respondent never paid the sanctions the Court ordered him to pay.
Sunset Lawsuit
8. In early October 2007, Selinger employed Respondent to represent Selinger’s company, Sunset Drive Corporation ("Sunset"), in United States Court of Appeals for the Ninth Circuit ("9th Circuit") case no. 07-55017, entitled Sunset Drive Corporation v. City of Redlands ("Sunset Lawsuit") and to file a Reply Brief in that case which was due October 15, 2007. Prior to Sunset’s employment of Respondent, attorney William J. Davis had been representing Sunset. Selinger had informed Respondent that Sunset’s Reply Brief in the appeal was due by October 15, 2007.
9. On October 4, 2007, Selinger informed Davis that Sunset had retained new counsel to file the Reply Brief in the Sunset Lawsuit. Selinger asked Davis to request a 45 day extension of time for new counsel to prepare and file the Reply Brief.
10. On October 8, 2007, Respondent called Davis and informed him that Respondent would be taking over the Sunset Lawsuit on Selinger’s behalf. Respondent asserted to Davis that he needed a 45 day extension of time to prepare and file the Reply Brief, and told Davis that he would fax to Davis a substitution of attorney form for Davis’s signature.
11. Davis then requested and obtained a 45 day extension of time from the Court for Sunset to substitute Respondent in as counsel, and to file a Reply Brief, to be due on November 29, 2007. On November 1, 2007, Selinger signed a substitution of attorney and provided the signed document to Respondent.
12. From October through early November 2007, Davis contacted Respondent by U.S. mail, fax, email, and phone, inquiring about the status of the substitution of attorney form Davis had provided to Respondent. During this time, Respondent repeatedly represented to Davis that he would send him the substitution of attorney form. At no time did Respondent ever provide the signed substitution of attorney form to Davis or file it with the Court.
13. From October 23, 2007, through December 14, 2007, Respondent sent Selinger at least four email messages asserting that Respondent was working on the Reply Brief. Respondent never informed Selinger that the Reply Brief was overdue.
14. Respondent never made an appearance for Sunset in the Sunset Lawsuit. On November 20, 2007, Davis filed a motion seeking to withdraw as counsel for Sunset in the Sunset Lawsuit on the grounds that Respondent had not yet entered his appearance on Sunset’s behalf, had not provided the promised substitution of attorney, and that Davis had stopped working on the case in early October 2007, based on Respondent’s representations.
15. On December 20, 2007, Selinger sent Respondent an email asking whether Respondent had filed the Reply Brief. Respondent received the email but did not respond to it.
16. On January 2, 2008, Selinger sent Respondent an email asking why Respondent had not replied to Selinger’s December 20 email. Respondent received the email but did not respond to it.
17. Between January 2, 2008 and January 9, 2008, Selinger learned that Respondent had never filed a substitution of attorney or filed the Reply Brief in the Sunset Lawsuit.
18. On January 9, 2008, Selinger sent Respondent an email terminating Respondent’s services and asking Respondent to prepare a declaration in support of Selinger’s request to file a late Reply Brief. Respondent received the email but did not respond to it.
Conclusions of Law:
19. By not serving discovery responses in the Barton Properties Lawsuit, by not responding to defense counsel’s properly served Motions to Compel, by not appearing at the hearing on the Motions to Compel, and by not providing the declaration to Selinger, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in wilful violation of Rules of Professional Conduct, rule 3-110(A).
20. By not forwarding Sunset’s Substitution of Attorney to Davis, and by not filing the Reply Brief in the Sunset Lawsuit, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in wilful violation of Rules of Professional Conduct, rule 3-110(A).
21. By not replying to Selinger’s emails sent on December 20, 2007, January 2, 2008, and January 9, 2008, Respondent failed to respond promptly to reasonable status inquiries of a client in wilful violation of Business and Professions Code, section 6068(m).
22. By not informing Selinger of the defendant’s discovery requests; and by not informing Selinger that the defendant had filed motions to compel discovery responses, and by not informing Selinger that Respondent had not filed oppositions to the defendant’s discovery motions, and by not informing Selinger of the sanctions awarded against Selinger and Respondent as a result of the discovery motions, and by not informing Selinger that the Reply Brief was overdue, and by not informing Selinger that Respondent had neither appeared in the Sunset Lawsuit on Selinger’s behalf nor filed the substitution of attorney, Respondent willfully failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services in wilful violation of Business and Professions Code, section 6068(m).
23. By not informing Selinger that the Reply Brief was overdue; and by not informing Selinger that Respondent had neither appeared in the Sunset Lawsuit on Selinger’s behalf nor filed the substitution of attorney, Respondent willfully failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services in wilful violation of Business and Professions Code, section 6068(m).
24. By not paying the $1,750 in discovery sanctions the court ordered him to pay at the hearing on November 28, 2007, Respondent willfully disobeyed or violated an order of the court requiring him to do or forbear an act connected with or in the course of Respondent’s profession which he ought in good faith to do or forbear in wilful violation of Business and Professions Code, section 6103.
25. By not withdrawing from employment when he became aware that his depression over the loss of his child custody dispute was causing him to neglect his duties to Selinger, Respondent willfully failed to withdraw from employment when his mental or physical .condition rendered it unreasonably difficult for him to carry out the employment effectively in wilful violation of Rules of Professional Conduct, rule 3-700(B)(3).
C. AUTHORITIES SUPPORTING DISCIPLINE.
Applicable Standards:
The determination of discipline begins "by looking to the purpose of sanctions for attorney misconduct.’’1 [Footnote 1: In re Morse (1995) 1 11 Cal.4th 184, 205.] "The primary purposes of disciplinary proceedings...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.’’2 [Footnote 2: Standard 1.3]
The standards provide guidance and deserve "great weight.’’3 [Footnote 3 - In re Silverton (2005) 36 Ca.4th 81, 92; In re Morse, supra, 11 Cal.4th at p. 205; In re Naney (1990) 51 Cal.3d 186, 190; Van Sloten v. State Bar (1989) 48 Cal.3d 921,933, fn. 5.]
]"[A]dherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct.’’4 [Footnote 4 - In re Naney, supra, 51 Cal.3 d at p. 190; see also In re Brown (1995) 12 Cal.4th 205,220.]
The California Supreme Court accepts a disciplinary recommendation resulting from application of the standards unless it has "grave doubts" about the recommendation’s propriety.5 [Footnote 5 - In re Morse, supra, 11 Cal.4th at p. 206; In re Lamb (1989) 49 Cal.3d 239, 245.]
Standard 1.6(a) provides that if two or more acts of misconduct are found in the same proceeding, the sanction imposed shall be the more or most severe of the different applicable sanctions. Standard 1.6(b) provides that a greater or lesser degree of discipline than the appropriate sanction prescribed by these standards shall be imposed or recommended, depending on the net effect of the aggravating and mitigating circumstances, if any.
Standard 2.4 provides that culpability of a member for wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.6(a) provides that culpability of a member for "...violation of any of the following provisions of the Business and Professions Code shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3:
(a) Sections 6067 and 6068;
(b) Sections 6103 through 6105..."
Aggravating Circumstances:
Standard 1.2(b) provides for a greater degree of sanction than set forth in the Standards where aggravating circumstances exist. In this matter, the following two circumstances should be considered aggravating.
First, while not demonstrating any pattern of misconduct, Respondent’s misconduct evidences multiple acts of wrongdoing.6 [Footnote 6 - Standard 1.2(b)(ii)] In this matter, Respondent’s misconduct includes two failures to perform, two failures to inform his client of significant developments, a failure to respond to client’s status inquiry, a failure to obey court orders and a failure to withdraw when mandatory.
Second, Respondent’s misconduct significantly harmed the client Selinger and the administration of justice.7 [Footnote 7 - Standard 1.2(b)(iv).] Respondent’s misconduct resulted in one Selinger lawsuit being dismissed. Further, Respondent’s failures to communicate regarding the status of these cases misled and deprived Selinger of the time he would have otherwise had to move to set aside the dismissal or take other action. In addition, the failure of Respondent to appear when ordered by the court, to respond to motions properly served upon him resulted in sanctions from the court and in each circumstance thereby occasioning the waste of judicial time and resources was a significant harm to the administration of justice. Finally, Respondent’s misconduct demonstrated a lack of respect for the authority of the court by an officer of the court resulting in harm to the public’s respect for the legal profession.
Mitigating Circumstances:
Standard 1.2(e) provides for a more lenient degree of sanction than set forth in the Standards where mitigating circumstances exist. In this case, there are three mitigating circumstances.
First, Respondent has no prior record of discipline.8 [Footnote 8 - Standard 1.2(e)(i).]
Respondent’s misconduct in this matter did not begin until 2007 and consequently it can be said that Respondent practiced law free of ethical violations for nearly eighteen (18) years. Respondent is therefore entitled to significant mitigation for his prior good record.
Second, Respondent has shown spontaneous candor and cooperation to the State Bar during disciplinary investigation and proceedings.9 [Footnote 9 -Standard 1.2(e)(v).]
Further, Respondent has also cooperated in that he has stipulated to facts, conclusions of law and level of discipline.
Third, Respondent has expressed directly to the State Bar his remorse for his misconduct and especially for the fact that his wrongdoing has harmed a client.10 [Footnote 10 - Standard 1.2(e)(vii).] The State Bar is satisfied that Respondent’s remorse is genuine and demonstrates that Respondent has taken a significant first step towards ensuring that ethical misconduct will not recur in the future.
Given the nature and scope of Respondent’s misconduct, and considering evidence of aggravating and mitigating circumstances, the appropriate level of discipline under the Standards is a period of actual suspension of 30 days "to deter the recalcitrant attorney from future wrongdoing."11 [Footnote 11 - In Re Silverton (2005) 36 Cal. 4th 81, 95.]
Caselaw:
In King v. State Bar 12, a case involving two client matters, the attorney was found culpable of failing to perform competently, failing to communicate, and failing to return client files. In one client matter the attorney filed a complaint in a personal injury action and then failed to serve the complaint on the defendants. Five years later, the court dismissed the action. During that five year period, the attorney failed to take any action to prosecute the complaint. In response to the client’s repeated requests for the status of the case, the attorney assured him the case would be going to trial. Then, he failed to return the client’s file at the client’s request. The client received a default judgment against the attorney for malpractice, which went unpaid. [Footnote 12 - 1990) 52 Cal.3d 307.]
In the second client matter, a client hired the attorney to close probate on a case. The client made numerous inquiries about the status of the probate matter but many of the inquiries went unanswered. The attorney took no significant action to close probate. Then, he failed to turn over the client’s file until seven months after she had requested that he do so.
In mitigation, the attorney had no prior discipline. In aggravation, the first client suffered a significant financial loss and the attorney failed to appreciate the severity of his misconduct. The court ordered, inter alia, the attorney suspended for four years, stayed, an actual suspension of ninety (90) days and four years probation.
In Matter of Greenwood13, the attorney was charged with two instances of reckless failure to perform legal services which resulted in the dismissal of his client’s civil lawsuits and failure to cooperate with the State Bar investigation. [Footnote 13: (Review Dept.1998) 3 Cal. State Bar Ct. Rptr. 831.] The Review Department held that this misconduct warranted a discipline recommendation of 18-months stayed suspension, two years probation and a 90-day actual suspension.
Comparison:
In this matter, like the attorneys in King and Greenwood, Respondent has repeatedly failed to perform legal services with competence. In addition, like the attorneys in King and Greenwood, Respondent has also failed to keep his client reasonably informed of significant developments and has also failed to respond to his client’s status inquiries. Finally, like the attorneys in King and Greenwood, Respondent also has mitigation. However, Respondent’s mitigation is significant. As discussed above, Respondent has no prior record of discipline, displayed candor and cooperation with the State Bar and has shown remorse. Respondent’s prior record of good conduct together with candor, cooperation and remorse that calls for a different outcome than attorneys in King and Greenwood.
Therefore, Respondent’s actual suspension from the practice of law for 30 days is a level of discipline consistent with the applicable standards and caselaw.
D. PENDING PROCEEDINGS.
The disclosure date referred to on page one, paragraph A. (7) was November 16, 2009.
E. COSTS.
Respondent acknowledges that the Office of Chief Trial Counsel has informed Respondent that as of November 18, 2009, the estimated prosecution costs in this matter are approximately $2,422.56. Respondent acknowledges that this figure is an estimate only. 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.
If Respondent fails to pay any installment within the time provided herein or as may be modified by the State Bar Court pursuant to section 6068.10, subdivision (c), the remaining balance of the costs is due and payable immediately and enforceable both as provided in Business and Professions Code, section 6140.7 and as a money judgment unless relief has been granted under rule 286 of the Rules of Procedure of the State Bar of California.
Case Number(s): 08-O-12070-RAH
In the Matter of: STEPHEN BORRELLI
checked. a. Within 90 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/ One (1) 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 Six (6) 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.)
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 two (2) 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.
Other:
SIGNATURE OF THE PARTIES
Case Number(s): 08-O-12070-RAH
In the Matter of: STEPHEN BORRELLI
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: Stephen Borrelli
Date: November 20, 2009
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Ashod Mooradian
Date: November 24, 2009
Case Number(s): 08-O-12070-RAH
In the Matter of: STEPHEN BORRELLI
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: Donald F. Miles
Date: December 8, 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 Los Angeles, on December 8, 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:
STEPHEN T BORRELLI ESQ
LAW OFFICE OF ASTEVE T BORRELLI
9854 NATIONAL BLVD #405
LOS ANGELES, CA 90034
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Ashod Mooradian, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 8, 2009.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court