Case Number(s): 08-O-13063-RAH (09-O-11317)
In the Matter of: Albert M. Sterwerf, Bar # 175454, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Jessica A. Lienau, 1149 S. Hill St.
Los Angeles, CA 90015, Bar # 269753
Counsel for Respondent: In Pro Per, Albert M. Sterwerf
1352 Irvine Blvd.
Tustin, CA 92780
Bar# 175454
Submitted to: Settlement Judge - State Bar Court Clerk’s Office Los Angeles.
Filed: October 4, 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 12, 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 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):
checked. Costs are added to membership fee for calendar year following effective date of discipline.
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: (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: Albert M. Sterwerf, State, Bar No. 175454
STATE BAR COURT CASE NUMBER: 08-O-13063-RAH (09-O-11317)
FACTS AND CONCLUSIONS OF LAW.
Respondent pleads nolo contendere to the following facts and violations. Respondent completely understands that the plea for nolo contendere shall be considered the same as an admission of the stipulated facts and of his culpability of the statutes and/or Rules of Professional Conduct
specified herein.
Case No. 08-O-13063
On May 12, 2003, Meilinda Irsan ("Irsan") employed now-deceased attorney John Reed ("Reed") to file an appeal before the Board of Immigration of Appeal ("BIA") after an immigration judge ordered her deported. Reed filed an appeal on Irsan’s behalf.
On December 11, 2003, Reed passed away. In December 2003, Reed’s office manager, Ali Tazerouni ("Tazerouni"), confirmed Reed’s passing to Irsan.
In August 2004, Tazerouni contacted Irsan and informed her that on August 9, 2004, the BIA denied her appeal. Tazerouni told Irsan that she had thirty days to file an appeal with the Ninth Circuit Court of Appeal ("Ninth Circuit") or by September 8, 2004. Yazerouni did not inform Irsan that she also had thirty days to voluntarily depart the United States.
On August 28, 2004, Irsan signed a retainer agreement employing Respondent to file an appeal with the Ninth Circuit and paid Respondent $4,000 in advanced attorney’s fees and $250 in advanced costs for filing fees. Irsan also paid Respondent an additional $1,000 toward a previous balance resulting from the BIA appeal. At the time Irsan employed Respondent for her Ninth Circuit appeal, Respondent was on two-week Naval Reserve duty. Tazerouni did not inform Irsan that Respondent was on Naval Reserve duty in South Korea.
On September 7, 2004, Respondent returned from Naval Reserve duty, and on September 10, 2004, Respondent filed a petition with the Ninth Circuit seeking review of the BIA’s denial of Irsan’s claims and seeking a request for stay of deportation.
On September 20, 2004, the Ninth Circuit issued an order suggesting that it lacked jurisdiction over the petition for review because it was filed more than 30 days after the date of the decision of the Board of Immigration Appeals. In its September 20, 2004 order, the Ninth Circuit ordered the petition voluntarily dismissed or Irsan must show cause why her case should not be dismissed for a lack of jurisdiction. The September 20, 2004 order was properly served on Respondent. Respondent received the order but did not inform Irsan that her petition for review was not timely filed and may be dismissed.
On October 12, 2004, Respondent filed a brief in response to the Ninth Circuit’ s show cause order regarding whether the court had jurisdiction. On November 22, 2004, the Ninth Circuit denied Irsan’s petition for review based on a lack of jurisdiction. Respondent was properly served with the order but did not inform Irsan that the petition appealing her order of removal had been denied.
From May 2005 through May 2007, Irsan telephoned Respondent’s office inquiring about the status of her appeal but did not speak to Respondent. Rather, one of Respondent’s employees repeatedly represented to Irsan that her appeal was pending.
On July 8, 2008, Irsan was pulled over by U.S. Immigration and Customs Enforcement and informed that there was a warrant for her arrest for violating the 2004 deportation order. Irsan was immediately sent to detention. On July 8, 2008, family friend Kenneth Bobu ("Bobu"), at Irsan’s husband’s, Wenhao Song’s ("Song"), request, telephoned Respondent several times to discus Irsan’s immigration matter. During the July 8, 2008 conversation, Respondent informed Bobu that Irsan’s Ninth Circuit appeal had been dismissed.
By failing to supervise his employees, by failing to monitor the status of Irsan’s immigration matter and by otherwise failing to perform competently on Irsan’s behalf, 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 failing to inform Irsan that her appeal with the Ninth Circuit had not been timely filed and by failing to inform Irsan that the Ninth Circuit had dismissed her petition on November 22, 2004, Respondent 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).
Case No. 09-O-11317
In 2006, Arezoo Rezvani ("Arezoo") and her estranged husband, Manoucher Tehrani ("Manoucher"), initiated dissolution proceedings ("Rezvani dissolution proceedings").
On June 26, 2006, after the Rezvani dissolution proceedings were initiated, Manoucher’s mother, Badri Tehrani ("Badri"), sued Arezoo for slander and other causes of action in a matter entitled Badri Tehrani v. Arezoo Rezvani et. al., Orange County Superior Court, case no. 06CC07625 (the "Tehrani action"). One of Respondent’s office employees and Manoucher were friends, and the employee asked Respondent to assist Badri. In November 2006, Respondent substituted in as counsel of record for Badri in the Tehrani action.
On June 8, 2007, Christopher Jafari ("Jafari"), counsel for Arezoo, filed a malicious prosecution action on Arezoo’s behalf against Respondent and Badri, entitled Arezoo Rezvani v. Badri Tehrani, Albert M. Sterwerfet. al., Orange County Superior Court, case no. 07CC06699 (the "Arezoo action"). In the malicious prosecution/Arezoo action, Arezoo alleged that the Tehrani action was filed in an attempt to pressure her in the dissolution and to force her to waive her share of the community property in her dissolution.
On October 15, 2007, Respondent filed a motion to strike the first amended complaint pursuant to the anti-SLAPP statute. On November 9, 2007, the court in the Arezoo action denied Respondent’s anti-SLAPP motion. Respondent filed an appeal. On October 6, 2008, the California Court of Appeal filed an Opinion affirming the lower court’s ruling in the Arezoo action and further ordered that Arezoo shall recover her costs on appeal.
On October 10, 2008, Jafari filed a Motion for Attorney’s Fees and Costs Subsequent to Appeal in the Arezoo action. On December 31, 2008, the court in the Arezoo action granted the motion for attorney’s fees and costs and ordered Respondent to pay $29,101.50 in fees and costs to Arezoo by no later than February 10, 2009. To date, Respondent has not paid any of the $29,101.50 to Arezoo.
On March 2, 2009, Respondent filed an Ex Parte Motion to Reconsider Award of Attorney’s Fees that was entered on December 31, 2008, arguing that 11 U.S.C. § 524 required the dismissal of Respondent from the action and an order vacating the Court’s December 31, 2008 sanctions order. Respondent further argued that awards of attorney’s fees are void upon a Bankruptcy Court discharge. The Superior Court denied Respondent’s Ex Parte Application, rejecting these arguments, by minute entry on March 3, 2009. Respondent has not yet appealed the Superior Court’s December 31, 2008 sanctions order to the Bankruptcy Court or the California Court of Appeals.
By not paying any of the $29,101.50 to Arezoo as ordered by the court in the Arezoo action, 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 § 6103.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was September 6, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.3, Title IV, Standards for Attorney Sanctions for Professional Misconduct, provides that the primary purposes of the disciplinary system 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."
Standard 1.6(a) states that if two or more acts of misconduct are found in a single disciplinary proceeding, and different sanctions are prescribed by the Standards for these acts of misconduct, the sanctions imposed shall be the more severe applicable sanction.
Standard 2.4(b) holds that where a member has wilfully failed to perform services or has wilfully failed to communicate with a client, the appropriate level of discipline is reproval or suspension, depending on the extent of the misconduct and the degree of harm to the client.
Standard 2.6(a) holds that a wilful violation of Business and Professions Code §§ 6068 and 6103 shall result in disbarment or suspension, depending on the gravity of the offense or the harm.
Standard 2.10 holds that the violation of any Rule of Professional Conduct not otherwise specifically discussed in the Standards, including rule 3-110(A) shall result in reproval or suspension according to the gravity of the offense or the harm to the victim.
In this case as the Respondent has mitigating factors and no aggravating factors, the appropriate level of discipline is one year suspension, stayed, with two years of probation with probationary and restitution conditions.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. 08-O-13063, Count Three, Alleged Violation Business & Professions Code § 6104 [Appearing for Party Without Authority]
Case No. 09-O-11317, Count Four, Alleged Violation Business & Professions Code § 6068(c) [Maintaining an Unjust Action]
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of September 6, 2011, the prosecution costs in this matter are $4161.00. 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-13063-RAH (09-O-11317)
In the Matter of: Albert M. Sterwerf
a. Restitution
checked. Respondent must pay restitution (including the principal amount, plus
interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee: Arezzo Rezvani
Principal Amount: $29,101.50
Interest Accrues From: December 31, 2008
checked. Respondent must pay above-referenced restitution and provide
satisfactory proof of payment to the Office of Probation not later than the end of Respondent’s probationary period. If Respondent obtains an order, prior to the end of his probationary period, from either the bankruptcy court or the state court which finds that Respondent does not have to pay this money to Arezoo Rezvani by virtue of Respondent’s bankruptcy proceedings, Respondent does not have to pay Arezoo Rezvani as a condition of this Stipulation.
<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. 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.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3. The requirements of this condition are in addition to those set forth in rule 4-100, Rules of Professional Conduct.
<<not>> checked. 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 Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
Case Number(s): 08-O-13063-RAH (09-O-11317)
In the Matter of: Albert M. Sterwerf
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
The terms of pleading nolo contendere are set forth in the Business and Professions Code and the Rules of Procedures of the State Bar. The applicable provisions are set forth below:
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a notice of disciplinary charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere will be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court will find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based.
Rules of Procedure of the State Bar, rule 5.56. Stipulations to Facts, Conclusions of Law, and Disposition
“(A) Contents. A proposed stipulation to facts, conclusions of law, and disposition must comprise:
[¶] . . . [¶]
(5) a statement that the member either:
(a) admits the truth of the facts comprising the stipulation and admits culpability for misconduct; or
(b) pleads nolo contendere to those facts and misconduct;
[¶] . . . [¶]
(B) Plea of Nolo Contendere. If the member pleads nolo contendere, the stipulation must also show that the member understands that the plea is treated as an admission of the stipulated facts and an admission of culpability.”
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 5.56 of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent: Albert M. Sterwerf
Date: September 23, 2011
Case Number(s): 08-O-13063-RAH (09-O-11317)
In the Matter of: Albert M. Sterwerf
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: Albert M. Sterwerf
Date: September 23, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Jessica A. Lienau
Date: September 23, 2011
Case Number(s): 08-O-13063-RAH (09-O-11317)
In the Matter of: Albert M. Sterwerf
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: October 4, 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 October 4, 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:
ALBERT M. STERWERF
LAW OFC ALBERT M STERWERF
1352 IRVINE BLVD
TUSTIN, CA 92780
<<not>> checked. by certified mail, No., with return receipt requested, through the United States Postal Service at, California, addressed as follows:
<<not>> checked. by overnight mail at, California, addressed as follows:
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Jessica A. Lienau, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 4, 2011
Signed by:
Cristina Potter
Case Administrator
State Bar Court