Case Number(s): 08-O-12749, 09-O-14382 and 09-O-14860
In the Matter of: Susan E. Emrich, Bar # 171174, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Mia R. Ellis
Deputy Trial Counsel
1149 South Hill Street
Los Angeles, CA 90015
213-765-1380
Bar # 228235,
Counsel for Respondent: In Pro Per Respondent
Susan E. Emrich
Emrich & Associates
7676 Hazard Center Drive, Suite 500
San Diego, CA 92108
Bar# 171174
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
<<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 17, 1994.
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. 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: three billing cycles following the effective date of the Supreme Court order (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.
At the time of the misconduct, Respondent was suffering from depression. She has been diagnosed with Major Depression Disorder, Recurrent, Severe and Dysthymic Disorder. She continues to treat for this condition. Respondent voluntarily enrolled in the Lawyer’s Assistance Program of the State Bar. Respondent has no prior record of discipline.
Case Number(s): 08-O-12749, 09-O-14382, 09-O-14860
In the Matter of: Susan E. Emrich
checked. a. Unless Respondent has been terminated from the Lawyer Assistance Program (“LAP”) prior to respondent’s successful completion of the LAP, respondent must comply with all provisions and conditions of respondent’s Participation Agreement with the LAP and must provide an appropriate waiver authorizing the LAP to provide the Office of Probation and this court with information regarding the terms and conditions of respondent’s participation in the LAP and respondent’s compliance or non-compliance with LAP requirements. Revocation of the written waiver for release of LAP information is a violation of this condition. However, if respondent has successfully completed the LAP, respondent need not comply with this condition.
checked. b. Respondent must obtain psychiatric or psychological help/treatment from a duly licensed psychiatrist, psychologist, or clinical social worker at respondent’s own expense a minimum of two times per month and must furnish evidence to the Office of Probation that respondent is so complying with each quarterly report. Help/treatment should commence immediately, and in any event, no later than thirty (30) days after the effective date of the discipline in this matter. Treatment must continue for days or months or five years or, the period of probation or until a motion to modify this condition is granted and that ruling becomes final.
If the treating psychiatrist, psychologist, or clinical social worker
determines that there has been a substantial change in respondent’s condition,
respondent or Office of the Chief Trial Counsel may file a motion for
modification of this condition with the Hearing Department of the State Bar
Court, pursuant to rule 5.300 of the Rules of Procedure of the State Bar. The
motion must be supported by a written statement from the psychiatrist, psychologist,
or clinical social worker, by affidavit or under penalty of perjury, in support
of the proposed modification.
<<not>> checked. c. Upon the request of the Office of Probation, respondent must provide the Office of Probation with medical waivers and access to all of respondent’s medical records. Revocation of any medical waiver is a violation of this condition. Any medical records obtained by the Office of Probation are confidential and no information concerning them or their contents will be given to anyone except members of the Office of Probation, Office of the Chief Trial Counsel, and the State Bar Court, who are directly involved with maintaining, enforcing or adjudicating this condition.
Other:
Respondent’s therapy sessions with LAP can count toward satisfying the requirement of the medical condition as outlined above in Section b. Respondent’s licensed psychiatrist, psychologist, or clinical social worker must furnish evidence of compliance to the Office of Probation.
IN THE MATTER OF: Susan E. Emrich, State Bar No.171174
STATE BAR COURT CASE NUMBER: 08-O-12749, 09-O-14382 and 09-O-14860
Respondent admits that the following facts are true and that she is culpable of violations of the specified statues and/or Rules of Professional Conduct.
INCORPORATION OF PRIOR STIPULATION
On February 25, 2010, the parties lodged with the State Bar Court in Alternative Discipline Program ("ADP") proceedings a Stipulation re: Facts and Conclusions of Law in Case Number 08-O-12749 (the "Prior Stipulation"). Respondent was released from ADP proceedings under Rule 5.386 of the Rules of Procedure of the State Bar. The facts and conclusions of law from that Prior Stipulation, which remains binding, l are incorporated and fully set forth herein.
Case No. 08-O-12749 (Complainant: Carl Hoffman)
FACTS:
1. On December 23, 2005, Carl Hoffman hired Respondent to represent him in a copyright matter against Impact Confections.
2. On March 6, 2006, Respondent filed a lawsuit in United States District Court against Impact Confections, alleging copyright infringement, case no. 3:06-CV- 00489-BTM-NLS (the copyright matter).
3. In November 2007, Impact Confections filed a Motion for Summary Judgment (MS J) in the copyright matter.
4. Impact .Confections properly served the MSJ upon Respondent. Respondent knew that she was obligated to file a response to the MSJ on Mr. Hoffman’s behalf.
5. In December 2007, Respondent filed a motion to continue Impact Confections’ MSJ.
6. On December 26, 2007, the court granted Respondent’s motion to continue, in part, and scheduled a hearing on the MSJ for February 1, 2008.
7. Respondent never filed a response to the MSJ.
8. On January 28, 2008, Impact Confections filed a Notice of Non-Opposition to its MSJ. Impact Confections properly served the Notice upon Respondent.
9. On February 1, 2008, the court ordered that the MSJ would be submitted on papers.
10. On February 14, 2008, the court granted Impact Confections’ Motion for Summary Judgment, and entered a judgment in favor of Impact Confections and against Mr. Hoffman.
11. From February 14, 2008, through March 3, 2008, Mr. Hoffman called Respondent repeatedly to get updates on the status of his case.
12. From February 14, 2008, through March 3, 2008, Respondent spoke to Mr. Hoffman on at least one occasion, but she did not tell Mr. Hoffman that the court had entered judgment against him.
See Rule 5.386 of Rules of Procedure of the State Bar: Impact of Subsequent Proceedings on ADP Participation
13. On March 3, 2008, Mr. Hoffman learned that he had lost his case because the court granted Impact Confections’ summary judgment motion.
14. On July 1, 2008, Mr. Hoffman filed a motion to substitute Respondent out of the copyright matter.
15. On July 3, 2008, the court ordered Respondent to file a response to Mr. Hoffman’s motion to substitute Respondent out of the copyright matter. The court ordered Respondent to file her response by July 11, 2008.
16. Respondent did not file a response to Mr. Hoffman’s motion by July 11, 2008.
CONCLUSIONS OF LAW:
By never filing a response to Impact Confections’ Motion for Summary Judgment, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in willful violation of Rules of Professional Conduct, rule 3-110(A).
By not informing Mr. Hoffman that the court had entered a judgment against him, Respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services, in willful violation of business and Professions Code section 6068(m).
By not filing a response to Mr. Hoffman’s motion to substitute Respondent out of the copyright matter by July 11, 2008, Respondent disobeyed or violated an order of the court requiring her to do or forbear an act connected with, or in the course of, Respondent’s profession which she ought in good faith to do or forbear, in willful violation.of Business and Professions Code section 6103.
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 August 2, 2010 in case numbers 09-0-14382 and 09-0-14860, and the facts and conclusions of law contained in this stipulation.
Case No. 09-0-14382 (Complainant: Curt Bachman)
FACTS:
1. In January 2004, Respondent represented Square One Parachutes in a patent case entitled Para Gear Equipment Company v. Square One Parachutes, case no. 1:2004cv00601, Northern District of Illinois (Para Gear v. Square One).
2. Respondent failed to timely complete discovery in Para Gear v. Square One, although Respondent sought and received extensions of time to complete discovery.
3. On February 9, 2006, Respondent filed her own declaration in Para Gear v. Square One stating that she had been unable to conduct discovery in the ease because she had been hospitalized for complications related to pregnancy and subsequent miscarriages, during the discovery period.
4. The facts attested to in Respondent’s declaration were false. Respondent knew that the statements in her declaration were false.
5. On February 9, 2006, Respondent filed the signed declaration ofBrandi G. Stelter, attorney at law (Stelter), in Para Gear v. Square One to corroborate Respondent’s statements regarding Respondent’s medical emergencies. Stelter’s declaration stated that Stelter worked for Respondent, that Stelter had spoken with Respondent and Respondent’s husband about Respondent’s medical emergencies, Stelter had met with Respondent in the hospital to discuss Respondent’s cases and calendar, and Stelter agreed to monitor Respondent’s cases and obtain required continuances/extensions from the relevant courts and/or opposing counsel.
6. Stelter’s signature on the declaration was not placed on the declaration by Stelter, nor was it placed on the declaration with Stelter’s permission or authority. At the time that Stelter’s declaration was filed in Para Gear v. Square One, Respondent knew that Respondent did not employ Stelter, she did not employ Stelter to monitor her caseload and to seek continuances or extensions in cases, and that Stelter did not sign the Stelter declaration.
7. The facts attested to in Stelter’s declaration were false. Respondent knew that the statements in Stelter’s declaration were false.
CONCLUSIONS OF LAW:
By filing Stelter’s declaration, that was not signed by Stelter or with Stelter’s consent, and by filing a declaration that contained false statements, Respondent sought to mislead the judge by an artifice or false statement of fact in wilful violation of Business and Professions Code section 6068(d).
By signing Brandi Stelter’s signature without permission on the Stelter declaration, or causing Brandi Stelter’s signature to be placed on the Stelter declaration without Stelter’s permission, and by submitting a declaration to the court containing false statements, Respondent committed an act, or acts, of moral turpitude, dishonesty or corruption in.wilful violation of Business and Professions Code section 6106.
Case No. 09-0-14860 (State Bar Investigation)
FACTS:
1. In June 2006, Mo Husain hired Respondent to represent him and his company, MH Systems, Inc. (collectively, MHS), in an ongoing patent infringement case entitled MHSystems, Inc. v. Peter McNulty, et al., case no. CV 05-7263 DSF, United States District Court, Central District of California. (MHS v. McNulty).
2. On June 6, 2006, Respondent substituted into MHS v. McNulty.
3. On Octbber 23, 2006, the District Court ordered that the proceedings in MHS v.McNulty would be stayed until the completion of a separate proceeding in the United States Patent and Trademark Office (PTO proceeding). In its October 23, 2006, order, the District Court ordered the parties to submit joint status reports on the PTO proceeding every 90 days. Respondent received the order.
4. Respondent filed separate status reports in April 2007, July 2007, and October 2007 on behalf of MHS, but after that Respondent failed to file subsequent status reports, and did not participate in preparing and filing any joint status reports. The reports that the court ordered Respondent to file and that Respondent did not file included, but were not limited to, the status reports that were due on or about January 2008, and April 2008.
5. On June 10, 2008, the District Coth’t ordered MHS to file a status report regarding the PTO proceedings by July 8, 2008. Respondent received the order. Respondent failed to file a status report as required by the court’s June 10, 2008, order.
6. On August 6, 2008, the court ordered MHS to show cause in writing (OSC) by August 18, 2008 why MHS v. McNulty should not be dismissed, its Answer to McNulty’s counterclaims should not be stricken, and default entered on McNulty’s counterclaim. The court set an in-person hearing on September 8, 2008, for the OSC. Respondent received the co.urt’s August 6, 2008, OSC.
7. Respondent did not file a response to the OSC, and did not appear at the September 8, 2008, hearing. As a result, the court dismissed MHS’ complaint with prejudice, struck MHS’ Answer to the counterclaim, and entered a default against MHS on McNulty’s counterclaim.
8. On November 10, 2008, Respondent filed a motion to vacate the dismissal of MHS v. McNulty, and to set aside the default entered on the counterclaim.
9. On December 31, 2008, the court denied the motion to vacate the dismissal of MHS v. McNulty, but the court granted Respondent’s motion to set aside the default on the counterclaim, provided that Respondent pay the attorney fees that McNulty incurred as a result of her conduct. The amount of attorney fees would be determined later. The court also sanctioned Respondent $500.00, noting that the default was entered on the counterclaim due to Respondent’s failure to comply with the Court’s orders and to prosecute the action.
10. On February 20, 2009, the court awarded McNulty’s counsel $49,079.75 in attorney’s fees. The court ordered Respondent to pay McNulty’s attorney fees and the $500 sanction by on or about March 30, 2009. Respondent received the order. Respondent did not pay the attorney’s fees or the sanction.
11. By April 7, 2009, Respondent had not paid the February 20, 2009 sanction and attorney award order.
12. On April 9, 2009, the court ordered Respondent to show cause in writing by April 20, 2009, why the default should not be reinstated and why she should not be found in contempt for failure to obey a court order (2nd OSC). Respondent received the order.
13. Respondent failed to file a written response to the 2na OSC as ordered, and failed to appear at the hearing on or about April 27, 2009.
14. On April 27, 2009, Mo Husain, appeared in District Court and asked the court for a continuance so that he would secure new counsel. The District Court continued the status conference and Husain retained new counsel.
15. Respondent did not comply with the court’s October 23, 2006, order to submit status reports every 90 days.
16. Respondent failed to obey the June 10, 2008 court order, requiring MHS and Husain to file a status report of the PTO proceedings by July 8, 2008.
17. Respondent did not comply with the court’s order filed on August 6, 2008, requiring her to file a response to the OSC explaining why the action should not be dismissed and default judgment should not be granted.
18. Respondent failed to obey the coui’t orders issued on December 31, 2008, and on February 20, 2009, requiring her to pay sanctions and defendant’s attorney fees by March 30, 2009.
19. Respondent did not inform MHS that: the court issued an OSC on or about August 6, 2008, the Court’s dismissed MHS’ complaint and ordered an entry of default on Defendants’ counterclaims on or about September 8, 2008; the court denied MHS’ motion to vacate the dismissal ofMHS v. McNulty, but set aside the default on McNulty’s counterclaim on or about December 31, 2008.
CONCLUSIONS OF LAW:
By repeatedly failing to file quarterly reports, respond to Orders to Show Cause, appear at scheduled court hearings, pay court-ordered attorney fees and sanctions, and failing to prosecute MHS’ claim or defend MHS against McNulty’s counterclaim, Respondent intentionally, recklessly, or repeatedly failed to perform legal services withcompetence, in willful violation of Rules of Professional Conduct, rule 3-110(A).
By falling to file status reports, written responses, and failing to pay sanction and defendant’s attorney’s fees, Respondent disobeyed or violated orders of the court requiring her to do or forbear an act connected with or in the course of Respondent’s profession which she ought in good faith to do or forbear, in wilful violation of Business and Professions Code section 6103.
By failing to inform MHS of the court’s Orders to Show Cause, that MHS’ complaint was dismissed and default judgment was entered on McNulty’s cross-complaint, Respondent failed to keep her 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).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was August 16, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
Standards 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 provides that "[i]f 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."
Standard 2.3 provides that culpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client or another person or of concealment of a material fact of a court, client or another person al shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of the misconduct and the degree to which it related to the member’s acts within the practice of law.
Standard 2.4(b) provides that "culpability of a member of wilfull failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a matter of wilfully 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."
According to Standard 2.6, 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 the harm, if any, to the victim, with the due regard to the purposes of imposing discipline set forth in standard 1.3: sections 6068.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of August 16, 2011, the prosecution costs in this matter are $5404.57. Respondent further acknowledges that this is an estimate and 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-12749, 09-O-14382 and 09-O-14860
In the Matter of: Susan E. Emrich
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: Susan E. Emrich
Date:
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Mia Ellis
Date: September 11, 2011
Case Number(s): 08-O-12749, 09-O-14382 and 09-O-14860
In the Matter of: Susan E. Emrich
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: Donald. F. Miles
Date: September 15, 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 San Francisco, on September 16, 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 San Francisco, California, addressed as follows:
SUSAN E. EMRICH
EMRICH & ASSOCIATES
7676 HAZARD CENTER DR STE 500
SAN DIEGO, CA 92108
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MIA R. ELLIS, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on September 16, 2011.
Signed by:
Laine Silber
Case Administrator
State Bar Court