Case Number(s): 08-O-14650
In the Matter of: Gregory M .Burke, Bar # 188891 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Monique T. Miller, State Bar of California
Office of The Chief Trial Counsel
1149 South Hill Street
Los Angeles CA 90015-2299
Tel: (213) 765-1486, Bar # 212469,
Counsel for Respondent: In Pro Per, Gregory M .Burke
BURKE MOLINA
3419 Via Lido Ste 360
Ne .,wport Beach CA 92663
Tel: (888)679-5767
Bar #188891
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles .
<<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 3, 1997.
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. 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. (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-14650
In the Matter of: Gregory M. Burke
a. Restitution
<<not>> 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: **
Principal Amount: **
Interest Accrues From: **
2. Payee: **
Principal Amount: **
Interest Accrues From: **
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 **.
<<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.
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.
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: Gregory M. Burke, State Bar No. 188891
STATE BAR COURT CASE NUMBER: 08-O-14650
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(6), was January 20, 2011.
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.
FACTS
1. At all times relevant herein, Respondent maintained a client trust account at Washington Mutual
Bank, in Los Angeles, California, account no. xxxxx-x47471 [The account number is excluded to protect the account from identity theft.](the "CTA").
2. Between September 2008 and February 2009, Respondent made several withdrawals from his CTA to pay for personal expenses, as follows:
Date: 9/19/08, Method of Payment: E Check 0171669, Amount: $186, Payee: Verizon Wireless;
Date: 10/14/08, Method of Payment: Debit, Amount: $357.50, Payee: AT&T;
Date: 10/16/08, Method of Payment: E Check 9602426, Amount: $412, Payee: Verizon Wireless;
Date: 10/22/08, Method of Payment: Debit, Amount: $500, Payee: Paypal;
Date: 10/22/08, Method of Payment: Debit, Amount: $2.34, Payee: Paypal;
Date: 11/03/08, Method of Payment: Debit, Amount: $301, Payee: Paypal;
Date: 11/03/08, Method of Payment: E Check 000100, Amount: $219, Payee: Cox Communications;
Date: 11/21/08, Method of Payment: Debit, Amount: $89.99, Payee: Paypal;
Date: 11/24/08, Method of Payment: Debit, Amount: $278.76, Payee: AT&T;
Date: 11/28/08, Method of Payment: Debit, Amount: $200, Payee: Paypal;
Date: 1/2/09, Method of Payment: Debit, Amount: $377.75, Payee: AT&T;
Date: 1/6/09, Method of Payment: Debit, Amount: $205.74, Payee: Cox Enterprises Broadband;
Date: 1/16/09, Method of Payment: Debit, Amount: $34.95, Payee: Paypal;
Date: 2/9/09, Method of Payment: Debit, Amount: $233.32, Payee: Cox Enterprises Broadband;
Date: 03/13/09, Method of Payment: Debit, Amount: $269.95, Payee: Paypal;
3. In 2008 and 2009, Respondent employed his wife, Mrs. Burke, as his secretary and bookkeeper,
delegating to her the task of handling the monthly reconciliation of the clients’ funds coming into
Respondent’s possession in his CTA. As a result of Respondent’s failure to provide Mrs. Burke with
any method by which she could reconcile or verify the CTA balances, Mrs. Burke issued the
following electronic debits and checks issued from the CTA, resulting in the debits and checks being
returned for or paid against insufficient funds in the CTA:
Presentment Date: 9/15/08, Check No. Or Electronic Debit (ED): ED, Amount: $186 , CTA Balance at Presentment: $ 19.51;
Presentment Date: 9/15/08, Check No. Or Electronic Debit (ED): ED, Amount: $312.73, CTA Balance at Presentment: $ 19.51;
Presentment Date: 9/17/08, Check No. Or Electronic Debit (ED): ED, Amount: $312.73, CTA Balance at Presentment: $ 67.51;
Presentment Date: 9/23/08, Check No. Or Electronic Debit (ED): ED, Amount: $312.73, CTA Balance at Presentment: $ 31.51;
Presentment Date: 10/17/08, Check No. Or Electronic Debit (ED): ED, Amount: $219, CTA Balance at Presentment: $ 45.01;
Presentment Date: 10/24/08, Check No. Or Electronic Debit (ED): # 100, Amount: $219, CTA Balance at Presentment: $ 167.67;
Presentment Date: 11/3/08, Check No. Or Electronic Debit (ED): #99, Amount: $248.41, CTA Balance at Presentment: $ 47.67;
Presentment Date: 3/2/09, Check No. Or Electronic Debit (ED): ED, Amount: $179.36, CTA Balance at Presentment: $ 3.67;
4. On March 19, 2009, Respondent deposited into his CTA two settlement checks issued by Intercare
Insurance Services, dated March 11, 2009, totalling $30,000 and payable to client Nanci Kassol and
Respondent.
CONCLUSIONS OF LAW
5. By using his client trust account to pay for personal expenses, Respondent commingled funds
belonging to Respondent in a bank account labeled "Trust Account," "Client’s Funds Account" or
words of similar import, in wilful violation of Rules of Professional Conduct, rule 4-100(A).
6. By failing to supervise the work delegated to a staff member, Respondent intentionally, recklessly,
or repeatedly failed to perform legal services with competence, in wilful violation of Rules of
Professional Conduct, rule 3-110(A).
Respondent has been practicing for 14 years without a prior record of discipline.
No client harm resulted from Respondent’s misconduct in this matter.
Respondent cooperated with the State Bar upon being contacted regarding his commingling of funds in his client trust account and promptly entered into the instant stipulation.
The Standards for Attorney Sanctions for Professional Misconduct
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) states that "culpability of a member of commingling of entrusted funds or property with personal property or the commission of another violation of rule 4-100, none of which results in a wilful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances."
Standard 2.4(b) provides that a wilful failure to perform services in an individual matter or matters not demonstrating a pattem of misconduct shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Case Law
In In Re Ronald Robert Silverton (2005) Supreme Court Order S 123042, the Supreme Court stated that the standards are entitled to great weight and that the State Bar court should follow the guidance of the
Standards for Attorney Sanctions whenever possible.
In In the Matter of Whitehead (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 354, the Standards for Attorney Sanctions for Professional Misconduct are not to be rigidly applied, and an actual suspension of less than three months for commingling may be appropriate in the circumstances of a particular case.
The disclosure date referred to, on page 2, paragraph A(6), was January 20, 2011.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that, as of January 20, 2011, the prosecution costs in this matter are $1,983. 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-14650
In the Matter of: Gregory M. Burke
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: Gregory M. Burke
Date: February 18, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Monique T. Miller
Date: February 25, 2011
Case Number(s): 08-O-14650
In the Matter of: Gregory M. Burke
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.
Page 5 – Section E(7)-Place check mark in box.
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 14, 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 15, 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:
GREGORY M. BURKE
BURKE MOLINA
3419 VIA LIDO STE 360
NEWPORT BEACH, CA 92663
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows: MONIQUE MILLER, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 15, 2011.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court