Case Number(s): 08-O-12104; 09-O-13405
In the Matter of: Nicholas C. Rowley Bar # 220036 A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Ashod Mooradian
Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1004
Bar # 194283
Counsel for Respondent: David A. Clare
Attorney At Law
444 West Ocean Blvd., Suite 800
Long Beach, CA 90802
(562) 624-2837
Bar # 44971
Submitted to: Settlement Judge, State Bar Court Clerk’s Office Los Angeles
Filed: November 10, 2011
<<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 May 30, 2002.
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. Costs are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: 2013, 2014 The two years following the effective date of the disciplinary order issuing as the result of this stipulation. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<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.
(Effective January 1, 2011)
Stayed Suspension
IN THE MATTER OF: Nicholas C. Rowley, State Bar No.; 22036
STATE BAR COURT CASE NUMBER: 08-O-12104; 09-O-13405
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 8, 2011, 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.
NICHOLAS C. ROWLEY ("Respondent") admits that the following facts are true and that.he is culpable of violations of the specified Rules of Professional Conduct.
Case No. 08-O-12104 (Complainant: Brendee & Charles Thomas)
Facts:
1. Respondent was admitted to the practice of law in the State of California on May 30, 2002, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California.
2. In December 2005, Brendee Thomas ("Brendee") met with Respondent’s medical expert, Dr. Charles Ballard ("Ballard"), regarding her personal injury matter.
3. On February 24, 2006, after receiving Ballard’s assessment, Brendee Thomas and her husband, Charles Thomas, employed Respondent to pursue medical malpractice and loss of consortium actions on their behalf.
4. On April 13, 2006, Respondent filed a civil action entitled Brendee Thomas and Charles Thomas v. Lilia Pacini, M.D et al., Riverside Superior Court, case number INC058037 (the "Thomas action").
5. On June 12, 2006, the court in the Thomas action scheduled an Order to Show Cause ("OSC") for July 14, 2006 as to why unserved parties should not be dismissed. Respondent’s office received notice of the July 14, 2006 OSC, but Respondent was not personally aware of the notice. Respondent’s role in the Thomas action was to be the trial attorney. All pre-trial litigation and discovery was to be handled by Respondent’s law partner and/or associate attorneys. Nevertheless, Respondent was the lead attorney in the Thomas action and was ultimately responsible for the handling of the case.
6. On July 14, 2006, the court held the OSC regarding dismissal of the Thomas action. Neither Respondent nor anyone from his office appeared in court on behalf of the Thomases.
7. Thereafter, the Thomas action was dismissed due to Respondent’s failure to timely file proof of service on all defendants with the court. Respondent had served all defendants on July 10, 2006, but the proofs of service were not filed with the court until July 18, 2006, after the
Thomas action had already been dismissed.
8. When Respondent was informed of the dismissal of the Thomas action by his office he contacted the opposing counsel for defendants and arranged for their agreement to a stipulation to set-aside the dismissal.
9. On August 4, 2006, Brendee emailed Respondent regarding the dismissal. On August 4, 2006, Respondent responded to Brendee by email saying he would have the dismissal set aside.
10. On September 5, 2006, Respondent filed a motion to set aside the dismissal in the Thomas action. The hearing on the motion was scheduled for September 18, 2006. On September 18, 2006, the court granted the motion to set aside the dismissal in the Thomas action.
11. In January 2007, Larry E. White ("White"), an opposing counsel in the Thomas action, scheduled the depositions of the Thomases. On January 29, 2007, Respondent’s office informed the Thomases by letter that their depositions were set for February 12, 2007.
12. On February 12, 2007, the Thomases and White appeared at Respondent’s office for their depositions. But Respondent was not present and the deposition had been cancelled without notice to the Thomases or to White. Respondent’s receptionist explained to White that the deposition was off calendar because of the sudden departure of Respondent’s law partner from the firm. It was this law partner that was assigned to defend the Thomases at their deposition.
13. On May 9, 2007, White contacted Respondent by letter regarding the supplemental discovery responses to the discovery defendant’s served in February 2007. Respondent’s office received White’s letter.
14. On May 14, 2007, Respondent’s office provided opposing counsel with supplemental responses to discovery.
15. On November 14, 2007, Respondent’s office informed the Thomases by letter that their depositions were re-scheduled for December 7, 2007.
16, On November 19, 2007, the court set trial in the Thomas action for July 7, 2008, but the court also stated that the trial would trail for two weeks.
17. On December 7, 2007, White and the Thomases appeared for the depositions of the Thomases. Respondent did not appear but his office arranged for a contract attorney to defend the Thomases at the deposition.
18. At the December 7, 2007 deposition, Respondent’s contract attomey was not prepared to respond to any of the defendant’s several requests for documents that were part of the deposition notice. Further, since Respondent could not be reached, the deposition did not go forward and had to be rescheduled.
19. On January 4, 2008, Respondent wrote Brendee informing her that he was going to withdraw as counsel. Attached to his letter was a copy of Brendee’s file and a substitution of attorney form. Respondent believed at this time that he had an irreconcilable difference with the Thomases about their case and decided he would not continue representing them in the Thomas action.
20. Brendee received Respondent’s January 4, 2008 letter, but refused to return a signed substitution of attomey to Respondent.
21. In February 2008, Respondent determined that he would have to file a motion to be ,relieved as counsel. Respondent instructed the non-attorney paralegal and office manager ("Office Manager") under the supervision of his law partner, to prepare the motion to be relieved as counsel.
22. On February 19, 2008, Respondent filed his motion to be relieved as counsel of record in the Thomas action. At the time Respondent filed the motion to be relieved as counsel, no one in his office had propounded any written or other type of discovery in the Thomas action.
23. On March 17, 2008, the Thomases filed opposition to Respondent’s motion to be relieved as counsel arguing that if Respondent was permitted to withdraw they would not be able to find another attorney this late in the case. The Thomases opposition also stated that Respondent had failed to conduct discovery on their behalf, was difficult to contact and was essentially attempting to dump their case.
24. Respondent’s office received the opposition filed by the Thomases. Respondent, who was in Iowa at this time, was contacted and informed by his office staff of what was stated by the Thomases in their opposition.
25. Respondent became very upset at what he believed were unfair accusations and determined to file a reply to the Thomases opposition. Respondent dictated a declaration to the Office Manager who was to then prepare a draft for Respondent’s review. Respondent also instructed that the declaration was to be filed under seal.
26. On March 27, 2008, despite Respondent’s instructions, the Office Manager filed the draft declaration Respondent had dictated to her as Respondent’s Reply to the Thomases’ opposition to the motion to be relieved as counsel. The Office Manager signed the declaration on behalf of Respondent and filed it with the court in the Thomas action and served it on opposing counsel. The Office Manager did not file the reply under seal as instructed by Respondent.
27. In the Reply, Respondent made the following statements:
"There are facts that I have learnd within the purview of the attorney client privilege that lead me to believe that Plaintiff Thomas’s case is frivolous. I do not believe Plaintiff Thomas is a likeable or credible witness and therefore I seriously doubt that a jury would end up giving her any compensation after a trial. Furthermore, at this point, I despise the woman based on her misrepresentations and I hereby represent to her and to this court that if I am FORCED to represent her that I will not be able to put my heart into it. I believe I have done the diligent thing by informing Plaintiff four months ago that I would not be able to represent her any further. NOW, she expects me to continue to work and to do it for free (because that is what it will be if she loses this case which I anticipate being the case.) ..." "[P]laintiff’s opposition is absolutely untrue except that I am prejudiced against her. I despise her and would rather shovel manure than represent her at trial .... "
28. On April 23, 2008, the court in the Thomas action granted Respondent’s motion to be relieved as counsel.
Conclusions of law:
29. By failing to supervise the Office Manager and ensure that his Reply to the Thomases’ opposition to his motion to be relieved as counsel was filed under seal so that Respondent would not assume a position prejudicial and antagonistic to his client without the precaution of an in camera proceedings or other proceedings that protected the interests of his clients, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with
competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
30. By failing to take necessary corrective action in the Thomas action when it became clear that his reliance upon his law partners to perform competently was no longer reasonable because his law partners had: 1) permitted the Thomas action to be dismissed on July 14, 2006; 2) failed to propound discovery on behalf of the Thomases in the Thomas action; 3) failed to appear on behalf of the Thomases at the February 12, 2007 deposition; 4) did not serve responses to the defendant’s February 2007 discovery responses until May 14,2007; and 5) appeared at the December 7, 2007 deposition unprepared to respond to the defendant’s request for production of documents, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
Attachment
Case No. 09-O-13405 (State Bar Investigation)
Facts:
31. At all times relevant herein, Respondent maintained a Wells Fargo General Business Account designated account no. xxx- xxxxx940 ("non-trust account").
32. At all times relevant herein, Respondent maintained a Wells Fargo IOLTA Account designated account no. xxx- xxxxx265 ("trust account").
33. In November 2007, Respondent and his wife lost their new-born child who died shortly after birth. This was a devastating experience for Respondent and his family. Starting in November 2007, Respondent spent virtually all of his time in Iowa to be with his family during the aftermath of this tragedy and left the operation of this California law office in the hands of his law partners and the Office Manager.
34. In November 2007, Respondent was relying on his law partners to handle all pre-litigation matters and discovery in all of his cases. Respondent’s law partners were also to assume responsibility for the accounting of client settlements, including deposits and disbursals into and out of Respondent’s bank accounts.
35. Beginning in November 2007, a series of insurance settlements were achieved for Respondent’s clients. These were not cases that were filed in court, but involved matters that were all pre-litigation. Consequently, Respondent was not be directly involved in the settlement of any of these cases, but was relying on his law partner to supervise the settlement process.
36. Once the settlements were achieved Respondent left it up to the Office Manager to finalize the accounting of client settlements. The Office Manager was to perform the deposits of settlement funds and disbursements to all clients. At this time, the Office Manager was a signatory on Respondent’s non-trust account.
37. On November 8, 2007, the Office Manager deposited into Respondent’s non-trust account, a settlement check for $7,500 received on behalf of his client Miguel Trigueros.
38. On November 8, 2007, the Office Manager deposited into Respondent’s non-trust account, a settlement check for $7,000 received on behalf of his client Samuel Asencio.
39. On November 11, 2007, the Office Manager deposited into Respondent’s non-trust account, a settlement check for $7,000 received on behalf of his client Enrique Rivera.
40. On January 16, 2008, the Office Manager deposited into Respondent’s non-trust account, a settlement check for $11,000 received on behalf of his clients Margarita Mejia and Alfonso Mejia.
41. On January 16, 2008, the Office Manager deposited into Respondent’s non-trust account, a settlement check for $6,500 received on behalf of his client Anthony Cornell.
42. On January 21, 2008, non-trust account check number 1070 was made payable to the Office Manager in the amount of $1,271.87. This check was issued by the Office Manager for what she believed was her year-end bonus. Respondent did not authorize the issuance of check number 1070, nor was he even aware that the Office Manager had written herself this check until several months later.
43. On January 28, 2008, non-trust account check number 1076 was made payable to the Office Manager in the amount of $3,516. This check was issued by the Office Manager for what she believed was her year-end bonus. Respondent did not authorize the issuance of check number 1076, nor was he even aware that the Office Manager had written herself this check until several months later.
44. On February 26, 2008, the Office Manager deposited into Respondent’s non-trust account, a settlement check for $3,000 received on behalf of his client Dana Bradarich.
Conclusions of law:
45. By failing to supervise the Office Manager, who repeatedly deposited settlement checks received on behalf of clients into Respondent’s non-trust account, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
46. By failing to supervise the Office Manager, who issued check numbers 1070 and 1076, made payable to herself from Respondent’s non-trust account, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
C. FACTS SUPPORTING MITIGATION.
1. Respondent has no prior record of discipline. However, the weight of this factor is diminished by the fact that Respondent had been admitted only for five years at the time the misconduct herein occurred.
2. Respondent has exhibited candor and significant cooperation with the State Bar of California. During the pendency of this matter, Respondent cooperated with the State Bar, informally providing information that assisted the State Bar in its understanding of Respondent’s misconduct herein. Finally, Respondent also cooperated in that he has stipulated to facts, conclusions of law and level of discipline. Standard 1.2(e)(i). Standard 1.2(e)(v).
3. At the time of his misconduct, Respondent suffered extreme personal difficulties in his personal life related to his family. In November 2007, Respondent and his wife lost their new-born child who died shortly after birth. This was a devastating experience for Respondent and his family which took place during the same general time period as the misconduct herein.
4. Respondent’s good character has been attested to by attorneys and non-attorney members of the general community who are aware of the full extent of Respondent’s misconduct. In addition, Respondent has provided pro bono legal services to numerous clients.
Finally, Respondent served honorably in the United States Armed Forces for three years (with
three additional years in the reserves) and is a decorated combat medic
D. AUTHORITIES SUPPORTING DISCIPLINE.
Applicable Standards:
Standard 1.3 provides that the primary purposes of attorney discipline are, "the protection of the public, the courts and the legal profession; the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession."
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(b), in relevant part, provides that culpability of a member of 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.
Aggravating & Mitigating Circumstances:
Standard 1.2(b) provides for a greater degree of sanction set forth in the standards where aggravating circumstances exist. In this case there are no aggravating circumstances.
Standard 1.2(e) provides for a more lenient degree of sanction than set forth in the standards where mitigating circumstances exist. As discussed above, there are three mitigating circumstances in this matter. First, Respondent has no prior record of discipline. Second, Respondent has exhibited candor and significant cooperation with the State Bar of California. Third, Respondent’s good character has been attested to attorneys and non-attorney members of
the general community who are aware of the full extent of Respondent’s misconduct.
3 Standard 1.2(e)(vi).
Caselaw:
In Matter of Aguiluz, the Review Department reviewed the discipline for an attorney with no prior record who had been found culpable of abandoning a single client and observed that in those matters the discipline ranged from no actual suspension to 90 days actual suspension. In Aguiluz, the court recommended respondent be suspended from the practice of law for one year, with execution of the suspension stayed, and that he be placed on probation for two years, subject to various terms and conditions.
E. PENDING PROCEEDINGS.
The disclosure date referred to on page two, paragraph A. (7) was October 21, 2011.
F. DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No.; 08-O-12104, Count; One, Alleged Violation; 3-110(A)
Case No.; 09-O-13405, Count; Four, Alleged Violation; 4-100(A)
Case No.; 09-O-13405, Count; Six, Alleged Violation; B&P 6106
Case No.; 09-O-13405, Count; Seven, Alleged Violation; 1-320(A)
G. COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him
that as of October 21, 2011, the prosecution costs in this matter are $6,185.40. 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.
(Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 32, 45-46.
In the Matter of: Case Number(s):
NICHOLAS C. ROWLEY 08-O-12104; 09-O-13405
Within 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 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.)
[ ] 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 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:
STATE BAR CLIENT TRUST ACCOUNTING SCHOOL: Within one (1) year of the effective
date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the State Bar Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session. In addition, Respondent will not receive Minimum Continuing Legal Education (MCLE) credit for attending the State Bar Client Trust Accounting School as required in this condition. Th requirement in this condition is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending this course. (Rule 3201, Rules of Procedure of the State Bar of California.)
Case Number(s): 08-O-12104; 09-O-13405
In the Matter of: Nicholas C. Rowley
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: Nicholas C. Rowley
Date: 10/28/2011
Respondent’s Counsel: David A. Clare
Date: 10/31/2011
Deputy Trial Counsel: Ashod Mooradian
Date:11/1/2011
Case Number(s): 08-O-12104
In the Matter of: Nicholas C. Rowley
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.
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 5.58 (E) & (F), 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: Richard A. Honn
Date: 11/9/11
[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 November 10, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSION 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:
DAVID ALAN CLARE
DAVID A. CLARE, ATTORNEY AT LAW
444 W. OCEAN BLVD STE 800
LONG BEACH, CA 90802
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 November 10, 2011.
Signed by:
Cristina Potter
Case Administrator
State Bar Court