Case Number(s): 08-O-12676, 08-O-14737, 09-O-10095, 09-O-10382, 10-O-03290, 10-O-04753 and 10-O-08355
In the Matter of: MICHAEL THOMAS STOLLER, Bar # 120241 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erin McKeown Joyce, Deputy Trial Counsel
State Bar of California
1149 South Hill Street
Los Angeles, CA 90015-2299
Telephone: (213) 765-1356
Facsimile: (213) 765-1319
Bar # 149946,
Counsel for Respondent: David A. Clare,
444 West Ocean Boulevard
Suite 800
Long Beach, California 90802
Telephone: (562) 624-2837
Facsimile: (562) 624-2838
Bar # 44971,
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: March 3, 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 December 10, 1985..
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 14 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: two years following the effective date of the Supreme Court order of discipline. (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.
IN THE MATTER OF: MICHAEL THOMAS STOLLER, State Bar No. 120241
STATE BAR COURT CASE NUMBER: 08-O-12676, 08-O-14737, 09-O-10095, 09-O-10382, 10-O-03290, 10-O-04753 and 10-O-08355
FACTS AND CONCLUSIONS OF LAW
Respondent admits that the following facts are true and that he is culpable of violations of the specified Rules of Professional Conduct and Business and Professions Code sections.
Case No 08-O-12676
FACTS
1. On October 23, 2007, Christian hired Respondent for a loan modification and Chapter 13 bankruptcy. Christian paid Respondent $3,000.
2. On January 15, 2008, Respondent filed a Chapter 13 Petition on behalf of Christian, but did not file a Schedule I Employee Income form as required. Respondent never made any court appearances in the Christian bankruptcy.
3. Pursuant to the requirements for filing the Chapter 13 Petition, Respondent was required to meet personally with Christian. Respondent never met with Christian personally to review the Chapter 13 Petition.
4. On April 16, 2008, Respondent sent Christian a refund of $2,000.
CONCLUSIONS OF LAW
By failing to meet personally with Christian and failing to file the required Schedule I Employee Income form, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in wilful violation of Rule of Professional Conduct 3-110(A).
Case No. 08-0-14737
FACTS
1. On February 19, 2008, Keith Hardesty hired Respondent for a Chapter 7 bankruptcy. Hardesty paid $2,599 in advanced attorney fees for Respondent to file the Chapter 7 Petition on Hardesty’s behalf.
2. Respondent did not file a Chapter 7 Petition for Hardesty.
3. On October 17, 2008, Hardesty sent a certified letter to Respondent, terminating Respondent’s employment and requesting a full refund. Respondent received the request.
4. On November 3, 2008, Respondent refunded $1,300 to Hardesty.
5. It was not until the State Bar contacted Respondent that Respondent refunded the remainder of the unearned fees to Hardesty.
CONCLUSIONS OF LAW
By failing to file a Chapter 7 Petition on the behalf of Hardesty, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in wilful violation of Rule of Professional Conduct 3-110(A).
Case No 09-0-10095
FACTS
1. On March 6, 2008, Evangelina Rodriguez hired Respondent to file a Chapter 13 Petition on her behalf. Rodriguez paid Respondent $2,400 in installments.
2. On May 23, 2008, Respondent filed a Chapter 13 Petition for Rodriguez.
3. On May 27, 2008, the court issued a Notice of Incomplete Filing, listing several missing documents related to the Rodriguez Chapter 13 Petition.
4. Between July 1, 2008 and August 26, 2008, Respondent failed to appear at four 341(a) meetings to represent Rodriguez.
5. On August 18, 2008, the court sanctioned Respondent $2,000 for his failures to appear. Respondent paid the sanctions.
6. Respondent never reported the sanctions order in the Rodriguez bankruptcy to the State Bar.
CONCLUSIONS OF LAW
By failing to report the August 18, 2008 sanctions order to the State Bar, Respondent failed to report to the agency charged with attorney discipline, in writing, within thirty days of the time the attorney has knowledge of the imposition of judicial sanctions against the attorney, in wilful violation of Business and Professions Code section 6068(0)(3).
Case No 09-O-10382
FACTS
1. On January 17, 2008, Joseph Stevens hired Respondent to file a Chapter 13 Petition on his behalf.
2. On March 31, 2008, Stevens paid Respondent $2,699 in advanced fees through a wire transfer to Respondent.
3. Respondent never filed a Chapter 13 Petition for Stevens. After doing some preliminary research, Respondent determined Stevens did not qualify for a Chapter 13 Petition.
4. On April 19, 2009, Respondent contacted Stevens and asked Stevens if he were interested in pursuing a Chapter 7 Petition for a reduced fee. Stevens agreed.
5. On August 1, 2009, Respondent provided Stevens with a partial refund of $1,300, but he never filed a Chapter 7 Petition.
6. It was not until the State Bar contacted Respondent that Respondent refunded the remainder of the unearned fees to Stevens.
CONCLUSIONS OF LAW
By failing to file a bankruptcy petition on Stevens’ behalf, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in wilful violation of Rule of Professional Conduct 3-110(A).
Case No. 10-O-03290
FACTS
1. Respondent and J.D. Wells represented opposing parties in a marital dissolution matter, Los Angeles Superior Court Case No. LD041441.
2. On August 15, 2009, Respondent telephoned J.D. Wells’ client without Wells’ knowledge, consent, or presence. Respondent was aware that the client was represented by counsel at that time.
3. On August 27, 2009 Respondent emailed Wells’ client directly without Wells’ knowledge or consent.
CONCLUSIONS OF LAW
By contacting Wells’ client on two occasions while he know that opposing party was represented by counsel, Respondent communicated directly about the subject of the representation with a party the member knew to be represented by another lawyer in the matter, without the consent of the other lawyer, in wilful violation of Rule of Professional Conduct 2-100.
Case No. 10-O-04753
FACTS
1. Michael Atherton employed Respondent for a personal injury matter resulting from a car accident. The case resulted in a judgment against Atherton.
2. On October 16, 2009, Atherton acquired new counsel, Brandon Krueger, and Krueger requested the client’s file from Respondent.
3. On October 19, 2009, Respondent telephoned Krueger stating that he would assemble and deliver the original file. Respondent failed to do so.
4. It was not until the State Bar contacted Respondent that respondent provided the file to Atherton’s new attorney.
CONCLUSIONS OF LAW
By failing to turn over Atherton’s file to Krueger when he was initially contacted to do so, Respondent failed to promptly release to the client, at the request of the client, all the client papers and property, in wilful violation of Rule of Professional Conduct 3-700(D)(1).
Case No. 10-O-08355
FACTS
1. Respondent, who is not a member of the Bar in Arizona, opened a "multi-state practice" in Arizona to handle bankruptcy matters.
2. Respondent was not admitted in the Federal District Court for the District of Arizona at the time he filed several bankruptcy petitions in Arizona for Arizona residents.
CONCLUSIONS OF LAW
By filing several bankruptcy petitions in Bankruptcy court in the Federal District Court for the District of Arizona, while not admitted before that court or in the State of Arizona, Respondent practiced law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction in wilful violation of Rule of Professional Conduct 1-300(B).
AUTHORITIES SUPPORTING DISCIPLINE
STANDARDS FOR ATTORNEY SANCTIONS
To determine the appropriate level of discipline, the standards provide guidance. Drociak v. State Bar (1991) 52 Cal.3d 1085; In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119. A disciplinary recommendation must be consistent with the discipline in similar proceedings. See Snyder v. State Bar (1990) 49 Cal.3d 1302. Moreover, the recommended discipline must rest upon a balanced consideration of relevant factors. In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119.
Pursuant to Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession. Rehabilitation of a member is a permissible object of a sanction imposed upon the member but only if the imposition of rehabilitative sanctions is consistent with the above-stated primary purposes of sanctions for professional misconduct.
Pursuant to Standard 1.5 of the Standards for Attorney Sanctions for Professional Misconduct:
Reasonable duties or conditions fairly related to the acts of professional misconduct and surrounding circumstances found or acknowledged by the member may be added to a recommendation or suspension or; pursuant to rule 9.19, California Rules of Court, to a reproval. Said duties may include, but are not limited to, any of the following:
1.5(b): a requirement that the member take and pass an examination in professional responsibility;
1.5(d): a requirement that the member undertake educational or rehabilitative work at his or her own expense regarding one or more fields of substantive law or law office management;
1.5(f): any other duty or condition consistent with the purposes of imposing a sanction for professional misconduct as set forth in standard 1.3.
Pursuant to Standard 1.6(a) of the Standards for Attorney Sanctions for Professional Misconduct:
The appropriate sanction for an act of professional misconduct shall be that set forth in the following standards for the particular act of misconduct found or acknowledged. If two or more acts of professional misconduct are found or acknowledged in a single disciplinary proceeding, and different sanctions are prescribed by these standards for said acts, the sanction imposed shall be the more or most severe of the different applicable sanctions.
Pursuant to Standard 2.4(b) of the Standards for Attorney Sanctions for Professional Misconduct:
Culpability of a member of willfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of willfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Pursuant to Standard 2.6 of the Standards for Attorney Sanctions for Professional Misconduct:
Culpability of a member of a 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 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; ...
Pursuant to Standard 2.10 of the Standards of Attorney Sanctions for Professional Misconduct:
Culpability of a member of a violation of any provision of the Business and Professions Code not specified in these standards or of a willful violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to 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.
The stipulated discipline in this matter of an actual suspension of 60 days is appropriate. When more than one act of professional misconduct is acknowledged in a single disciplinary proceeding, and different sanctions are prescribed by these standards for said acts, the sanction imposed shall be the most severe of the different applicable standards. Standard 1.6(a). Therefore, Standards 2.4(b), 2.6, and 2.10 are applicable
to Respondent’s admitted Rules of Professional Conduct 3-110(A) and 2-100, and Business and Professions Code section 6068(0)(3) violations.
Standards 2.4(b), 2.6, and 2.10 call for reproval or suspension depending on the extent of the misconduct and the degree of harm to the client. The stipulated discipline of a sixty day actual suspension will demonstrate to the public that Respondent’s misconduct is unacceptable and is an appropriate deterrent to Respondent from repeating his misconduct.
Moreover, Respondent’s prior discipline in Case No. 09-J-11153 should not be given much aggravating weight, since the misconduct in that matter was contemporaneous with the misconduct in these matters. The aggravating weight of prior discipline is diminished when the misconduct underlying the prior discipline occurred during the same time period as the misconduct in the present matters. Under such circumstances, the totality of the charges brought in all the cases should be considered in order to
determine the appropriate discipline. In the Matter of Fredyl (Review Dept. 2001) 4 Cal. State Bar Ct. Rptr. 349.
COSTS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him that as of February 11,2011, the estimated costs in this matter are $8,565.47. 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-12676, 08-O-14737, 09-O-10095, 09-O-10382, 10-O-03290,
10-O-04753 and 10-O-08355
In the Matter of: Michael Thomas Stoller
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: Michael Thomas Stoller
Date: February 11, 2011
Respondent’s Counsel: David A. Clare
Date: February 11, 2011
Deputy Trial Counsel: Erin McKeoen Joyce
Date: February 11, 2011
Case Number(s): 08-O-12676, 08-O-14737, 09-O-10095, 09-O-10382, 10-O-03290,
10-O-04753 and 10-O-08355
In the Matter of: Michael Thomas Stoller
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: March 2, 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 March 3, 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
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:
Erin M. Joyce, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 3, 2011.
Signed by:
Johnnie Lee Smith
Case Adminstrator
State Bar Court