Case Number(s): 08-O-13689; 09-O-16854
In the Matter of: Thomas Craig Nelson, Bar # 82506, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Mia Ellis, Deputy Trial Counsel
1149 South Hill Street
Los Angeles, CA 90015
Bar # 228235
Counsel for Respondent: In Pro Per Respondent
Thomas Craig Nelson
1005 Rose, cram St., Suite 201
San Diego, CA 92106
Bar # 82506
Submitted to: Settlement Judge
<<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 November 29, 1978.
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: 2012, 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.
Case Number(s): 08-O-13689; and 09-O-16854
In the Matter of: Thomas Craig Nelson
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: James Frampton
Principal Amount: $4,350
Interest Accrues From: November 3, 2009
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than sixty (60) days after the effective date of the Supreme Court order.
<<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.
IN THE MATTER OF: THOMAS CRAIG NELSON
CASE NUMBER(S): 08-0-13689 and 09-0-16854
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case No. 08-O-13689 (Stephen Ellis).
FACTS:
1. On June 18, 2008, the State Bar of California mailed to Respondent notice that the Supreme Court had entered an order that he be suspended as of July 1, 2008, due to his nonpayment of State Bar membership fees. Respondent received the notice of suspension.
2. On July 1, 2008, Respondent was suspended from the practice of law due to his failure to pay State Bar membership fees. On July 1, 2008, Respondent was also enrolled inactive due to his failure to comply with the minimum continuing legal education ("MCLE") requirements.
3. On July 2, 2008, Respondent filed a complaint in the San Diego County Superior Court entitled Smith Capital Limited Partnership v. The Lansing Companies, LLC, et al., ease no. 37-200800065068 ("Smith ease"). The complaint listed Respondent as counsel for plaintiff Smith Capital Limited Partnership.
4. On July 11, 2008, Respondent recorded a notice of pendency of action with the county recorder. Respondent signed the Notice as plaintiff’s counsel.
5. On July 21, 2008, counsel for the Lansing Companies, Edward B. Gerard, spoke to Respondent by telephone and informed him that he had learned that Respondent was not entitled to practice law. On July 22, 2008, attorney Brandon K. Braga filed a substitution of attorney to replace Respondent as plaintiff’s counsel in the Smith case.
6. On August 14, 2008, Respondent signed as plaintiff’s counsel a notice of withdrawal of notice of pendency of action.
7. On August 28, 2008, Respondent was returned to active status.
CONCLUSIONS OF LAW:
By misrepresenting to the court and opposing counsel that he was entitled to practice law when he was not an active member of the State Bar, Respondent committed acts involving moral turpitude, dishonesty or corruption in willful violation of Business and Professions Code, section 6106.
By filing a complaint, signing the notice of pendency action and withdrawal of pendency action when he was not an active member of the State Bar of California in violation of Business and Professions Code sections 6125 and 6126, Respondent failed to support the Constitution and laws of this state in willful violation of Business and Professions Code, section 6068(a).
Case No. 09-0-16854 (Complainant: James P. Frampton)
FACTS:
1. On June 18, 2008, the State Bar of California mailed to Respondent notice that the Supreme Court had entered an order that he be suspended as of July 1, 2008, due to his nonpayment of State Bar membership fees. Respondent received the notice of suspension.
2. On July 1, 2008, Respondent was suspended from the practice of law due to his failure to pay State Bar membership fees. On July 1, 2008, Respondent was also enrolled inactive due to his failure to comply with the minimum continuing legal education ("MCLE") requirements.
3. On July 21, 2008, attorney Edward B. Gerard spoke to Respondent by telephone and informed him that Respondent was not entitled to practice law.
4. On July 28, 2008, James P. Frampton ("Frampton") employed Respondent to represent him in a civil matter and paid Respondent $2,500 in advanced fees.
5. On August 26, 2008, Respondent paid his bar dues. On or about August 28, 2008, Respondent submitted proof to the State Bar of compliance with the MCLE requirements. On August 28, 2008, Respondent was returned to active status.
6. During the period from September 2008 to March 2009, Frampton spoke to Respondent inquiring about the status of his legal matter, and Respondent represented that he was negotiating with the other party’s counsel.
7. On March 25, 2009, Frampton paid Respondent an additional $1,850 in advanced fees for Respondent’s legal representation.
8. On July 28, 2009, Frampton spoke to Respondent and expressed frustration that Respondent had not taken sufficient action on his matter. At that time, respondent agreed to refund the entire $4,350 in advanced fees to Frampton. At that time, Respondent and Frampton effectively terminated Respondent’s representation.
9. On November 3, 2009, Frampton obtained a small claims court judgment against Respondent for the $4,350 he had paid to Respondent.
10. On October 2, 2009, Frampton submitted a complaint to the State Bar regarding Respondent’s conduct in his case.
11. On December 18, 2009, and January 5, 2010, a State Bar Investigator mailed a letter to Respondent at his State Bar membership address requesting a response to allegations raised by Frampton’s complaint. Respondent did not provide the State Bar with a response.
CONCLUSIONS OF LAW:
By not providing a written response to Frampton’s complaint or otherwise cooperating with the State Bar’s investigation, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent in violation of Business and Professions Code, section 6068(i).
By not refunding to Frampton any of the $4,350 unearned fees, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned willfully violating Rules of Professional Conduct, rule 3.700(D)(2).
By not taking sufficient action to pursue Frampton’s case, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, willful violation of Rules of Professional Conduct, rule 3-110(A).
By misrepresenting to Frampton that he was entitled to practice law when he was not an active member of the State Bar in violation of Business and Professions Code sections 6125 and 6126, Respondent committed acts involving moral turpitude, dishonesty or corruption in violation of Business and Professions Code, section 6106.
By signing a retainer agreement with Mr. Frampton and accepting attorney’s fees when he was not an active member of the State Bar of California, Respondent failed to support the Constitution and laws of this state in violation of Business and Professions Code, section-6068(a).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was June 22, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
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 to a court, client or another person 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 misconduct and the degree to which it related to the member’s acts within the practice of law.
Standard 2.4 - 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.
Standard 2.6 provides that culpability of a member of a violation of any of the following provisions of the Business and Professions Code 6068(a) and 60680) shall result in disbarment or suspension depending on the gravity of the offense or harm.
Standard 2.10 - 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.
Standard 1.7(a) - if a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one prior imposition of discipline as defined by standard 1.2(f) the degree of discipline imposed in the current proceeding shall be greater that imposed in the prior proceeding unless the prior discipline imposed was so remote in time to the current proceeding and the offense for which it was imposed was so. minimal in severity that imposing greater
discipline in the current proceeding would be manifestly unjust.
The unauthorized practice of law while suspended has resulted in a range of discipline from suspension to disbarment, depending on the circumstances of the misconduct, including the nature of any companion charges and the existence and gravity of prior disciplinary proceedings. In the Matter of Taylor (1991) 1 Cal. State Bar Ct. Rptr. 563.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of June 22, 2011, the prosecution costs in this matter are $.5,728.90. Respondent further acknowledges that this is an estimate and 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-13689; and 09-O-16854
In the Matter of: Thomas Craig Nelson
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: Thomas Craig Nelson
Date: 6/23/2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Mia Ellis
Date: 6/24/11
Case Number(s): 08-O-13689 and 09-O-16854
In the Matter of: Thomas Craig Nelson
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: 7/8/11
[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 , 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;
THOMAS CRAIG NELSON
1005 ROSECRANS STREET SUITE 201
SAN DIEGO, CALIFORNIA 92106
checked by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Mia R. Elllis, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California on July 11, 2011.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court