Case Number(s): 08-O-14270, 09-O-11036, 09-O-11672
In the Matter of: Carl Jacob Hoppes, Bar # 147820, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Dane C. Dauphine, Bar #121606
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angles.
Filed: December 4, 2009.
<<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 August 10, 1990.
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 12 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: 2011, 2012. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure
<<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-14270, 09-O-11036, 09-O-11672
In the Matter of: Carl Jacob Hoppes
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: Heidi Argandona (Spinali)
Principal Amount: $9,678.43
Interest Accrues From: July 17, 2007
2. Payee: Brian Lehrer
Principal Amount: $1,620.50
Interest Accrues From: March 5, 2009
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
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) Heidi Argandona (Spinali)
Minimum Payment Amount $2,000
Payment Frequency quarterly
2. Payee/CSF (as applicable) Brian Lehrer
Minimum Payment Amount: $250
Payment Frequency: quarterly
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: Carl Jacob Hoppes, State Bar No. 147820
STATE BAR COURT CASE NUMBER: 08-O-14270, 09-O-11036, 09-O-11672
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.
THE GLADDEN MATTER FACTS:
1. On or about August 14, 2007, Sandra Gladden ("Gladden") hired Respondent to represent her in a marital dissolution action. Gladden signed a fee agreement which provided for Gladden to pay a $2,500 retainer fee, stating that the retainer was a nonrefundable retainer to reserve a block of attorney time but that Respondent’s fees and costs would be applied against the retainer fee. Gladden paid Respondent $2,820 as advanced fees for his legal services.
2. On or about August 28, 2007, Respondent filed a petition for dissolution of marriage on behalf of Gladden in the San Diego County Superior Court, case number DN147909 ("the Gladden case"). Thereafter, Gladden’s husband filed a motion to dismiss the Gladden case on the grounds that had previously filed a petition for dissolution in Florida, the state of Gladden’s residence.
3. On or about November 27, 2007, Respondent appeared in court on behalf of Gladden. On or about November 30, 2007, the court dismissed the Gladden case in favor of another state’s jurisdiction. Thereafter, Respondent’s representation of Gladden terminated.
4. At the time that Respondent’s representation terminated, he had last billed Gladden on November 6, 2007, for services through October 29, 2007, and that billing showed a credit balance of $1,219.50. Respondent did not provide a further billing to account for the fees paid by Gladden until a final bill dated January 4, 2008, was prepared which included Respondent’s representation at the November court hearing and subsequent email communications with Gladden on November 28, 2007, and December 5, 2007. That billing showed a credit balance of $40.50.
5. In January of 2008, Gladden moved from a residence in Coral Springs, Florida, to a new address. Respondent’s final billing to Gladden dated January 4, 2008, was addressed to Gladden at the Coral Springs address. Gladden did not receive that billing.
6. On or about February 25, 2008, Gladden sent an email to Respondent’s assistant, Kelly Molina ("Molina"), stating that she had not received her client file. On or about the same date, Molina sent Gladden an email stating that she would send another copy of the file to Gladden.
7. On or about March 3, 2008, Gladden sent an email to Respondent’s office indicating that she had not received her file or any accounting from Respondent for the fees paid. At that time, Molina responded by email to Gladden indicating that she would locate Gladden’s bills and fax them to her. Molina did not send to Gladden the file or a final invoice for Respondent’s services to account for the fees paid by Gladden.
8. Gladden also sent a letter to Respondent on or about March 3, 2008, via certified mail. The letter informed Respondent that she still had not received her file. The letter also indicated that Gladden believed she was owed $1,219.50 in unearned fees according to Respondent’s last invoice dated November 6, 2007 and that she had not received a refund or an accounting for the fees. Respondent received the letter.
9. Respondent did not provide Gladden with her file promptly upon receiving her written request Or. communicate with her to arrange for release of the file. In September 2008, Gladden spoke by telephone with Respondent’s paralegal who informed her that the file was in storage. Respondent is informed by his paralegal that, on September 14, 2008, the paralegal took Gladden’s original file to the post office to send to Gladden, but the cover letter prepared by the paralegal was addressed to Gladden at the wrong address. Gladden never received the file.
10. On or about September 17, 2008, Respondent filed a complaint against Respondent with the State Bar of California.
11. On or about February 5, 2009, Respondent sent a letter to a State Bar investigator responding to Gladden’s complaint. In his response, he stated that Gladden had a $40 credit balance according to Respondent’s invoices.
12. On or about February 23, 2009, Respondent sent to Gladden copies of his invoices, including the January 4, 2008, billing which "showed a credit balance due to Gladden of $40.50. Respondent did not include a refund of that amount.
13. On October 12, 2009, Respondent issued a check to Gladden for a $40.00 refund.
CONCLUSIONS OF LAW:
14. By failing to respond promptly to Gladden’s written request for her file in March 2008, Respondent failed to release to the client upon termination of employment and at the request of the client all client papers in willful violation of Rules of Professional Conduct, rule 3-700(D)(1).
15. By not refunding $40.50 in unearned fees to Gladden in January 2007 when the final billing to her was prepared, Respondent failed to refund promptly upon termination of employment any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
THE ARGANDONA MATTER
FACTS:
16. On or about June 10, 2004, Heidi Argandona ("Argandona") employed Respondent to represent her in a marital dissolution proceeding. Argandona agreed to pay Respondent an hourly fee for his legal services.
17. On or about December 18, 2006, Respondent withdrew from a trust account he maintained in Argandona’s name the sum of $15,000 which he had been authorized to receive as both advanced fees and in payment of earned fees of approximately $2,098.
18. On or about March 13, 2007, Argandona informed Respondent by telephone that his services were terminated and that she wanted a final accounting for the fees and a refund of unearned fees. When Respondent did not provide the accounting and refund, Argandona went to Respondent’s office on March 27, 2007, and met with Respondent. At that time, Respondent acknowledged to Argandona that he did not have the financial means to refund to her the unearned fees. Respondent told her that she could receive payment from the firm’s Chapter 13 bankruptcy filing.
19. On or about July 17, 2007, Respondent provided a final invoice for Argandona to her counsel. The invoice dated July 17, 2007, indicated that there was a credit balance owed to Argandona of $9,678.43. Respondent has not refunded any amount of the unearned fees to Argandona:
CONCLUSIONS OF LAW:
20. By not providing Argandona with an accounting for the advanced fees until July 17, 2007, Respondent failed to render appropriate accounts to a client regarding her funds in willful violation of Rules of Professional Conduct, rule 4-100(B)(3).
21. By not refunding $9,678.43 in Unearned fees to Argandona promptly upon termination of employment, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
THE LEHRER MATTER
FACTS:
22. On or about December 22, 2008, "Brian Lehrer ("Lehrer") employed Respondent to represent him in a marital dissolution proceeding filed by Lehrer’s wife. Lehrer signed a fee agreement which provided for him to pay a $2,500 retainer fee, stating that the retainer was nonrefundable to reserve a block of attorney time but that Respondent’s fees and costs would be applied against the retainer fee. At that time, Lehrer paid Respondent $2,500 in advanced fees.
23. On or about January 7, 2009, Respondent filed a response on behalf of Lehrer in the San Diego County Superior Court, case no. S37002 ("the Lehrer case"). Thereafter, Lehrer and his wife decided to move to New Jersey and not pursue the dissolution proceedings in California.
24. According to Respondent’s invoice dated January 14, 2009, Lehrer had a credit of $1,620.50. Respondent did not provide Lehrer with any further accounting for the fees received from Lehrer.
25. On or about February 9, 2009, Lehrer sent an email to Respondent informing him that Lehrer was terminating Respondent’s representation. In the email, Lehrer requested that Respondent refund unearned fees. Respondent received the email.
26. On or about March 5, 2009, Respondent filed a substitution of attorney in the Lehrer case substituting out as Lehrer’s counsel.
27. On or about March 9, 2009, Respondent informed Lehrer by email that he would not refund any fees to Lehrer. Respondent took that position relying upon the provision in his fee agreement that the amount paid was nonrefundable. Respondent did not earn the remaining balance of $1,620.50 in fees paid by Lehrer for legal services. Respondent has not refunded the unearned fees to Lehrer.
CONCLUSIONS OF LAW:
28. By not refunding the unearned fees to Lehrer promptly upon termination of employment, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules’ of Professional Conduct, rule 3-700(D)(2).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was November 2, 2009.
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct (the ’°Standards"):
Standard 1.6(a) provides that where 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 sanctions imposed shall be the more or most severe of the different applicable sanctions.
Standard 2.2(b) provides for a minimum actual suspension of three months irrespective of mitigating circumstances for the commission of a violation of rule 4-100, Rules of Professional Conduct, which does not result in the willful misappropriation of entrusted funds or property.
Standard 2.10 provides for a reproval or suspension according to the gravity of the offense or the harm, if any, to the victim for offenses involving other violations not specified in other standard.
Case Law
Although standard 1.2(b) provides for a minimum discipline of 3-months of actual suspension, a failure to render appropriate accountings for client funds has resulted in stayed suspension and actual suspension of less than 90 days. (In the Matter of Fonte (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr, 751 [60-day actual suspension for failure to account for fees and conflicts in two client matters where attorney had 25 years with no discipline]; In the Matter of Cacioppo (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 128. [six-month stayed suspension for failure to render a proper accounting of settlement funds and failing to communicate, where attorney had prior public reproval]; In the Matter of Lazarus (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 387 [two-month stayed suspension for failure to notify client of receipt of settlement funds and failure to render an accounting of settlement funds].)
Failure to refund an unearned fee has resulted in discipline of a public reproval for a single violation or actual suspension up to 6 months where there are repeated violations or other misconduct. (Matthew v. State Bar (1989) 49 Cal.3d 784 [60-days actual Suspension for failing to account for and/or refund unearned fees in three matters and failing to and failing to perform services diligently in two of the matters; no prior record of discipline]; In the Matter of Lindmark (Review Dept. 2004) 4 Cal. State Bar Ct. Rptr. 668 [public reproval for failure to refund $5,000 which was eventually reduced to a judgment against the attorney and collected by a bank account levy 21 months after termination of employment; no prior discipline]; In the Matter of Nees (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 459 [6-month suspension in a default case for failing to communicate with the client in a habeas corpus case, failing to perform services, failing to release the client file, and failing to refund unearned fees on $7,000, all in one client matter, no prior discipline]; In the Matter of Hanson (Review Dept. 1994) 2 Cal. State Bar Ct. Rprt. 703 [public reproval for failure to refund $1,000 in unearned fees for 15 months until after State Bar involvement; prior private reproval considered remote in time]; In the Matter of Kennon (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 267 [30-days actual suspension for failing to perform and communicate in two client matters and failing to refund unearned fees of $2,000 in one of the eases; no prior discipline].)
SIGNATURE OF THE PARTIES
Case Number(s): 08-O-14270, 09-O-11036, 09-O-11672
In the Matter of: Carl Jacob Happes
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: Carl J. Hoppes
Date: November 18, 2009
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Dane C. Dauphine
Date: November 19, 2009
Case Number(s): 08-O-14270, 09-O-11036, 09-O-11672
In the Matter of: Carl Jacob Hoppes
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
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 stipulation consists of 13 pages, not 12 (see paragraph A(3).)
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 135(b), 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: December 3, 2009
[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 December 4, 2009, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING STAYED SUSPENSION. NO ACTUAL SUSPENSION
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:
CARL J. HOPPES
HOPPES & ASSOCIATES
4721 3RD ST
LA MESA, CA 91941-5208
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DANE C. DAUPHINE, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 4, 2009.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court