Case Number(s): 08-O-12370-RAH, 09-O-14963-RAH
In the Matter of: Donald C. Amamgbo, Bar # 164716, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Larry DeSha, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1336
Bar # 117910
Counsel for Respondent: David A. Clare, 444 W. Ocean Blvd.; Ste. 800
Long Beach, CA 90802
(562) 624-2837
Bar # 44971
Submitted to: Settlement Judge - State Bar Court Clerk’s Office Los Angeles
Filed: September 19, 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 June 15, 1993.
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 13 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 and 2014. (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.
Respondent has no prior record of discipline in 14 years of practice prior to the misconduct herein. See Stipulation Attachment, page 11.
IN THE MATTER OF: Donald C. Amamgbo,
STATE BAR COURT CASE NUMBER: 08-O-12370-RAH; 09-O-14963-RAH
WAIVER OF VARIANCE:
The parties waive any variance between the Notice of Disciplinary Charges filed on May 13, 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.
FACTS FOR CASE NO. 08-O-12370-RAH:
1. On January 31, 2007, Sherry Hursey ("Hursey") agreed to hire an attorney to represent her in a personal injury claim arising from an automobile accident on January 27, 2007. Unbeknown to Hursey, she was dealing only with a nonlawyer paralegal ("Yolanda") who was operating the attorney’s law office while the attorney was on an extended vacation. Yolanda engaged in the unauthorized practice of law in Hursey’s case, including evaluating Hursey’s case, drafting and sending letters to the
other driver’s insurance company ("Travelers"), and arranging for medical treatment.
2. On March 21, 2007, Yolanda notified Hursey that her attorney was not available to continue work on her case, but that Yolanda was going to work for a second attorney ("Sherman") who would be willing to take her case from the first attorney. Hursey signed a new fee agreement with Sherman, but never got a copy purporting to be signed by Sherman.
3. On May 24, 2007, Yolanda sent a letter to Travelers with notice that Hursey had completed medical treatment for a total bill of $1,640.00,
4. In early June 2007, in anticipation of entering a guilty plea to two felony counts of federal income tax evasion, Sherman negotiated with Respondent for Respondent to take most but not all of the cases in Sherman’s law practice, including 146 personal injury cases. An agreement was reached whereby Respondent would take over the cases, lease Sherman’s main office in Marina Del Rey, rent a satellite office in Reseda where Yolanda worked, and temporarily continue the employment of three nonlawyers who had been working for Sherman, including Yolanda.
5. Hursey’s case was not on the list of cases which Sherman and Respondent agreed would be transferred to Respondent, and Respondent had no knowledge of this case until he later heard from the State Bar.
6. Respondent failed to inspect Sherman’s satellite office in Reseda, where Yolanda worked. If he had done so, he would have seen that the office was a single small room measuring about 10 feet on each side, in which there was one desk for Yolanda and no room for any other employee, such as an attorney who could meet with clients or supervise Yolanda’s work for Sherman or Respondent.
7. On June 12, 2007, Yolanda sent a letter to Travelers, notifying Travelers that Hursey had changed attorneys from Sherman to Respondent. Yolanda forged Respondent’s signature to the letter. Hursey was not informed of this change of attorneys and did not consent to it.
8. On July 26, 2007, a paralegal formerly employed by Sherman, who was working in the Marina Del Rey law office that Respondent took over from Sherman, negotiated a settlement of Hursey’s case for $4,500. Neither Respondent nor Hursey were aware of this negotiation or settlement.
9. On August 17, 2007, someone in Respondent’s office forged Hursey’s signature to a general release of all claims in exchange for $4,500, and sent the release to Travelers. On August 21, 2007, Travelers sent their check for $4,500 to Yolanda at her office in Reseda.
10. On August 26, 2007, Yolanda invited Hursey to come to Yolanda’s office in Reseda to discuss her case. Hursey went there on that same day. Yolanda informed Hursey of the settlement and offered her an accounting and a check for $1,500. It was the first time that Hursey had been informed that Respondent had taken over her case. Hursey refused to accept the settlement and demanded that Respondent explain how the case was settled without her authority. Yolanda promised to have Respondent call Hursey and explain, but Yolanda later told Hursey that Respondent was not available. Yolanda never informed Respondent of Hursey’s demand or the existence of Hursey’s case.
11. Someone in Respondent’s office then forged Hursey’s endorsement to the settlement check, and deposited it into Respondent’s Client Trust Account ("CTA") on August 29, 2007. Respondent and the treating doctor were promptly paid $1,500 each, and $1,500 was retained in the CTA to pay Hursey.
12. Thereafter, Yolanda invited Hursey several times to return to her office to discuss the settlement, but Hursey declined.
13. On June 7, 2008, Hursey complained to the State Bar that Respondent had settled her case without authority and had caused forgery of her signature on the release and the settlement check.
14. On September 18, 2008, the State Bar sent a letter to Respondent requesting a written response to Hursey’s allegations. Respondent subsequently retained counsel, who informed the State Bar on October 14, 2008 that Respondent knew nothing about Hursey or her case before the State Bar’s inquiry.
15. On February 10, 2009, Respondent met with Hursey, and they settled her claim against Respondent for $5,500 for her damages arising from his negligence in handling her case. Respondent paid Hursey the $5,500 that same day.
16. Respondent did not notice until the State Bar’s inquiry that his CTA carried a balance of $1,500 owed to Hursey since August 29, 2007. He did not supervise Yolanda’s activities in this case during the first few months after she became his employee, and did not have any other attorney supervising her on Respondent’s behalf.
CONCLUSIONS OF LAW FOR CASE NO. 08-O-12370-RAH
17. Respondent repeatedly or recklessly failed to perform legal services with competence by his failure to exercise reasonable supervision of his employees, resulting in their accepting Hursey as a client without the knowledge of Respondent or Hursey, settling Hursey’s case without authority from Respondent or Hursey, and forging Hursey’s signature to the release and settlement check, and Respondent thereby willfully violated rule 3-110(A) of the California Rules of Professional Conduct.
FACTS FOR CASE NO. 09-O-14963-RAH:
18. On January 31, 2007, Esteban Benavidez ("Benavidez") agreed to hire an attorney to represent him in a personal injury claim arising from an automobile accident on January 27, 2007. Unbeknown to Benavidez, he was dealing only with a nonlawyer paralegal ("Yolanda") who was operating the attorney’s law office while the attorney was on an extended vacation. Yolanda engaged in the unauthorized practice of law in Benavidez’s case, including evaluating Benavidez’s case, drafting and sending letters to the other driver’s insurance company ("Travelers"), and arranging for medical treatment. Benavidez was involved in the same accident as client Hursey in case no. 08-O-12370-RAH above, and it was Benavidez who referred Hursey to their first attorney.
19. On March 23, 2007, Yolanda notified Travelers that Benavidez had changed attorneys to attorney Sherman, and that attorney Sherman and Yolanda could be reached at the same address previously given Travelers. Benavidez did not approve this change of attorneys and was not made aware of it.
20. In early June 2007, in anticipation of entering a guilty plea to two felony counts of federal income tax evasion, Sherman negotiated with Respondent for Respondent to take over Sherman’s law practice, including 146 personal injury cases. An agreement was reached whereby Respondent would take over the cases, lease Sherman’s main office in Marina Del Rey, rent a satellite office in Reseda where Yolanda had worked for Sherman, and continue the employment of three nonlawyers who had been working for Sherman, including Yolanda.
21. Benavidez’s case was not on the list of cases which Sherman and Respondent agreed would be transferred to Respondent, and Respondent had no knowledge of this case until he later heard from the State Bar.
22. Respondent failed to inspect Sherman’s satellite office in Reseda, where Yolanda worked. If he had done so, he would have seen that the office was a single small room measuring about 10 feet on each side, in which there was one desk for Yolanda and no room for any other employee, such as an attorney who could meet with clients or supervise Yolanda’s work for Sherman or Respondent.
23. On June 12, 2007, Yolanda sent a letter to Travelers, notifying Travelers that Benavidez had changed attorneys from Sherman to Respondent. Yolanda forged Respondent’s signature to the letter. Benavidez was not informed of this change of attorneys and did not consent to it.
24. On July 13, 2007, Yolanda forged Respondent’s signature to a letter to Travelers which stated that Benavidez had completed medical treatment. It enclosed his medical reports and the final bill showing a total of $3,220 in medical expenses.
25. On August 27, 2007, a paralegal formerly employed by Sherman, who was working in the Marina Del Rey law office that Respondent took over from Sherman, negotiated a settlement of Benavidez’s case for $3,000. Neither Respondent nor Benavidez were aware of this negotiation or settlement. Benavidez was an uninsured driver and was not entitled to damages for pain and suffering.
26. On August 28, 2007, someone in Respondent’s office forged Benavidez’s signature to a general release of all claims in exchange for $3,000, and sent the release to Travelers. On August 29, 2007, Travelers sent their check for $3,000 to Respondent’s newly-acquired office in Marina Del Rey.
27. On September 6, 2007, someone in Respondent’s Marina Del Rey office wrote checks for the disbursement of Benavidez’s settlement funds from the CTA, consisting of checks for $1,500 to Benavidez’s treating doctor, $1,000 to Respondent for his fee, and $500 to Benavidez.
28. On September 7, 2007, Benavidez’s settlement check was deposited into Respondent’s CTA. Benavidez’s endorsement had been forged.
29. On September 10, 2007, Yolanda sent a letter to Benavidez on Respondent’s letterhead, stating that Benavidez had not returned her telephone calls, and requesting him to call her as soon as possible. This was the first indication to Benavidez that Respondent was connected to his case.
30. On an unknown date thereafter, Benavidez called Yolanda and learned that his case had been settled. In early October 2007, Benavidez went to Yolanda’s office, ratified the settlement, and picked up his check for $500. Benavidez subsequently cashed the check, and it was paid from Respondent’s CTA on October 12, 2007.
CONCLUSIONS OF LAW FOR CASE NO. 09-O-14963-RAH:
31. Respondent repeatedly or recklessly failed to perform legal services with competence by his failure to exercise reasonable supervision of his employees, resulting in their accepting Benavidez as a client without the knowledge of Respondent or Benavidez, settling Benavidez’s case without authority from Respondent or Benavidez, and forging Benavidez’s signature to the release and settlement check, and Respondent thereby willfully violated rule 3-110(A) of the California Rules of Professional Conduct.
DISMISSALS:
The State Bar respectfully requests the Court to dismiss the following alleged violations in the interests of justice:
Case Number: 08-O-12370-RAH, Count: One, Alleged Violation: B&PC section 6106;
Case Number: 09-O-14963-RAH, Count: Two, Alleged Violation: B&PC section 6106;
Case Numbers: 08-O-12370-RAH, and 09-O-14963-RAH: Count: Four, Alleged Violation Rule: 4-100(B)(4),
Case Number: 08-O-12370-RAH, Count: Five, Alleged Violation: Rule 4-100(B)(3),
Case Number: 09-0-14963-RAH, Count: Six, Alleged Violation: Rule 4-100(B)(3),
Case Number 09-0-14963-RAH, Count: Seven, Alleged Violation: Rule 3-700(D)(1),
Case Numbers: 08-0-12370-RAH and 09-0-14963-RAH, Count: Eight, Alleged Violation: Rule B&PC section 6068(a),
Case Numbers: 08-0-12370-RAH and 09-O-14963-RAH, Count: Nine, Alleged Violation: Rule 3-310(C)(1)
MITIGATING CIRCUMSTANCES:
1. No Prior Discipline. Although the misconduct herein is serious, Respondent has no prior record of discipline since being admitted to the practice of law on June 15, 1993. [Standard 1.2(e)(i).]
SUPPORTING AUTHORITY:
Standards
Standard 2.4(b) requires a reproval or suspension, depending upon the extent of the misconduct and the degree of harm to the client, when there is a willful failure to perform services in matters not demonstrating a pattern of misconduct or willful failure to communicate.
Case Law
In Palomo v. State Bar (1984) 36 Cal.3d 785, attorney Palomo received a check for $3,000.00 as a partial distribution from a decedent’s estate to one of his clients. Palomo forged the client’s endorsement to the check, instructed his office manager to deposit the check into his CTA, and forgot about it. The office manager deposited it into the office’s payroll account, and spent the account balance below the $3,000 on several occasions.
The client complained some four months later, and Palomo then paid the client $3,150. Palomo was found culpable of endorsing the check without authority, failure to deposit it into his CTA, failure to notify the client of receipt of the funds, and misappropriation of part of the funds. He admitted to failure to supervise his office manager and failure to review his CTA records. There was an aggravating factor of a prior discipline of a public reproval imposed only one month before he received the check. There was one mitigating factor of reasonable promptness in paying the client in only 15 days after the client complained to him.
The California Supreme Court imposed a stayed suspension for one year and probation for one year. In departing from the usual "substantial discipline" normally imposed for CTA violations, the Court was influenced by the lack of a specific intent to defraud the client and by the fact that it was only one incident of misconduct.
Respondent’s failure to supervise his staff resulted in two settlements without the clients’ prior knowledge or permission, plus forged signatures to the releases and settlement checks, but it did not result in any misappropriation or provable financial loss to either client.
Respondent did not personally forge anything, there is no evidence that he knew about
the settlements or forgeries prior to contact by the State Bar, and he has the mitigating factor of 14 years without prior discipline.
PENDING PROCEEDINGS:
The disclosure date referred to on page 2, paragraph A.(7), was August 29, 2011.
COSTS:
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of August 30, 2011, the costs in this matter are $4,161.00. 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.
Case Number(s): 08-O-12370-RAH; 09-O-14963-RAH
In the Matter of: Donald C. Amamgbo
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: Donald C. Amamgbo
Date: August 31, 2011
Respondent’s Counsel: David A. Clare
Date: August 31, 2011
Deputy Trial Counsel: Larry DeSha
Date: September 1, 2011
Case Number(s): 08-O-12370-RAH; and 09-O-14963-RAH
In the Matter of: Donald C. Amamgbo
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 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. Platel
Date: September 16, 2011
[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 September 19, 2011, 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:
DAVID ALAN CLARE ESQUIRE
444 WEST OCEAN BOULEVARD SUITE 800
LONG BEACH, CALIFORNIA 90802
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Ernest Larry DeSha, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 19, 2011
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court