Case Number(s): 08-PM-12565
In the Matter of: Russell H. Takasugi, Bar # 118792, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Terrie Goldade, Bar # 155348
Counsel for Respondent: Arthur Margolis, Bar # 57703
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: October 20, 2008
<<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 11, 1985.
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 11 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 (no actual suspension).
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 (actual suspension).
<<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.
State Bar Court Case # 00-O-13793 & 00-0-14652. Date prior discipline effective December 20, 2001. Rules of Professional Conduct rule 3-110(A) and Business and Professions Code section 6068(m) violations. Degree of prior discipline Public Reproval.
State Bar Court Case # 94-O-19509. Date prior discipline effective February 8, 1996. Rules of Professional Conduct rule 3-110(A), 3-700(A)(2), 3-700(D)(2), and Business and Professions Code section 6068(m) violations. Degree of prior discipline Private Reproval.
Additional aggravating circumstances: .
Additional mitigating circumstances:
Attachment language (if any):
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statute.
1. On November 8, 2006, Respondent executed a Stipulation re Facts, Conclusions of Law and Disposition with the State Bar in State Bar Court Case No. 05-0-01451 ("Stipulation"). The Hearing Department of the State Bar Court filed an order approving the Stipulation on November 30, 2006.
2. On March 29, 2007, the California Supreme Court filed an Order in Case No. S149864 (State Bar Court Case No. 05-0-01451) that Respondent be suspended from the practice of law for a period of two years and until he provides proof to the satisfaction of the State Bar Court of his rehabilitation, fitness to practice and learning and ability in the general law pursuant to standard 1.4(c)(ii) of the Standards for Attorney Sanctions for Professional Misconduct, that execution of suspension be stayed and that Respondent be placed on probation for a period of two years subject to the conditions of probation as recommended by the Hearing Department of the State Bar Court in its order approving the Stipulation filed on November 30, 2006 and that he be actually suspended for 30 days. Respondent was ordered to comply with the following terms and conditions of probation, among others:
a. As a condition of probation, Respondent was ordered to comply with the Rules of Professional Conduct and the State Bar Act and report such compliance quarterly on each January 10, April 10, July 10, and October 10 under penalty of perjury ("quarterly report"). Respondent filed his first four quarterly reports late:
Due: 7/10/07, Filed: 7/16/07
Due: 10/10/07, Filed: 10/12/07
Due: 1/10/08, Filed: 1/11/08
Due: 4/10/08, Filed: 9/26/08
b. As a condition of probation, Respondent was ordered to successfully complete six hours of live instruction continuing legal education courses in the areas of law office management and/or attorney client relations. Respondent was to provide proof of completion to the Office of Probation within six months of the effective date of the disciplinary order-by September 28, 2007. On October 1, 2008, Respondent provided proof to the Office of Probation that he had completed five hours of live instruction continuing legal education courses in the areas of law office management and/or attorney client relations.
3. On April 9, 2007, the Office of Probation mailed an initial letter to Respondent at his membership records address outlining the terms and condition of his probation. The letter enclosed numerous attachments including a quarterly report instructions form which instructed that "[t]he report with any attachments should be mailed on the last day of the month of each calendar quarter (i.e., March 31st, June 30th, September 30th and December 31st).’’ The quarterly report instructions form also include a chart setting forth the dates for each report period with the corresponding date each report was due. Respondent received the letter.
4. On April 27, 2007, Respondent telephoned the Office of Probation and a telephonic initial meeting was held during which the conditions of Respondent’s probation, including their deadlines, were reviewed. It was the testimony of the Probation Deputy that, among other things, Respondent was reminded that his quarterly reports were due in the Office of Probation by each January 10, April 10, July 10, and October 10. Respondent stated that he would contact the Office of Probation so that a future initial meeting could be held in person.
5. On May 25, 2007, the Office of Probation conducted an initial meeting with Respondent during which all of the conditions of Respondent’s probation, including their deadlines, were reviewed. It was the testimony of the Probation Deputy that, among other things, Respondent was reminded that his quarterly reports were due in the Office of Probation by each January 10, April 10, July 10, and October 10.
6. On July 16, 2007, the Office of Probation left a telephonic voice mail message for Respondent at his membership records telephone number stating that the Office of Probation had not received his quarterly report due July 10, 2007. On July 18, 2007, the Office of Probation received a telephonic voice mail message from Respondent stating that he would mail in his quarterly report due July 10, 2007.
7. On August 12, 2008, the Office of Probation suggested to Respondent that he complete his MCLE at the State Bar’s annual convention and reviewed courses with him that might meet the requirements of his stipulation.
8. On August 21, 2008, Respondent submitted courses for the Office of Probation’s review; a telephone call was placed to Respondent that day, but he was unavailable. Respondent left a voice mail message with the Office of Probation the next day.
9. On August 25, 2008, Respondent and the Office of Probation again reviewed courses offered at the State Bar’s annual convention that might meet the requirements of his stipulation. Because it did not appear that there would be six hours of courses that would satisfy his probation condition, Respondent was advised that he might want to contact attorneys who are approved MCLE providers to determine whether they could provide him with the remaining hour requirement of law office management and/or attorney client relations MCLE. Respondent was advised that approved MCLE providers are listed on the State Bar’s website.
10. On September 25, 2008, Respondent contacted the Office of Probation to again go over courses offered at the State Bar’s annual convention that might meet the requirements of his stipulation. On that day, he faxed to the Office of Probation the courses he proposed to take at the State Bar’s annual convention.
11. On September 26, 2008, the Office of Probation faxed Respondent confirmation that four of Respondent’s proposed courses would meet his probation condition requiring live attendance at MCLE in the areas of law office management and/or attorney client relations.
12. On October 1, 2008, the Office of Probation received satisfactory evidence that Respondent completed four courses satisfying five hours credit toward his probation condition requiring live MCLE in the areas of law office management and/or attorney client relations.
Legal Conclusion: By failing to timely file his Quarterly Reports due July 10, 2007, October 10, 2007, January 10, 2008, and April 10, 2008; and by failing to timely complete five hours of live instruction continuing legal education courses in the areas of law office management and/or attorney Client relations; and by failing to ever complete one hour of live instruction of continuing legal education courses in the areas of law office management and/or attorney client relations, Respondent wilfully violated Business and Professions Code, section 6068(k).
PENDING PROCEDURES.
The disclosure date referred to, on page one, paragraph A.(7) was October 8, 2008.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of Probation has informed respondent that as of October 8, 2008, the estimated prosecution costs in this matter are approximately $1,546. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. 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.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.6, subsection (a), states that culpability of a member of a violation of Business and Professions Code, section 6068(k), shall result in disbarment or suspension depending upon the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
An attorney who violated his probation by failing to timely complete restitution and by failing to timely attend Ethics School, received two years’ probation with a condition that he was to be actually suspended for the first 30 days. In the Matter of Gorman (Review Dept. 2003) 4 Cal. State Bar Ct. Rptr. 567. Neither bad purpose nor intentional evil is required to establish willful violations of disciplinary probation. Id. at 572. An attorney’s cooperation in stipulating to facts warrants some mitigative consideration. Id. More serious sanctions are assigned to probation violations closely related to reasons for imposition of previous discipline or to rehabilitation. Id. at 573-574.
In this matter, Respondent’s underlying disciplinary violation was in relation to failing to cooperate with the State Bar in the investigation of a disciplinary matter. After the Notice of Disciplinary Charges was filed, he located his file and provided the State Bar with all relevant documentation and information. The probation conditions violated were related to his original misconduct, important for his rehabilitation, and were intended to assist the State Bar in monitoring Respondent’s rehabilitation. However, in light of Respondent’s circumstances set forth below, the Office of Probation is willing to request 30 days actual suspension in relation to standard 2.6 based upon Respondent’s belated compliance in relation to most of his conditions, his stipulation to his violations, and his agreement to reinstate his probation, including that his actual suspension will continue until he completes the remaining one hour of live instruction of continuing legal education courses in the areas of law office management and/or attorney client relations imposed in relation to State Bar Court Case No. 05-0-01451.
OTHER CIRCUMSTANCES CONSIDERED IN RESOLVING THIS MATTER
Respondent contends that he timely completed and mailed his quarterly report due April 10, 2008, and that it must have been lost by the United States Postal Service. Respondent also contends that he did not understand that his quarterly reports were due in the Office of Probation on or before each January 10, April 10, July 10, and October 10; Respondent contends that he thought mailing his quarterly reports by the 10th was compliance. Respondent asserts that he now understands this obligation and, in fact, has timely filed his quarterly reports due July 10, 2008 and October 10, 2008.
Respondent contends that he searched for a program offering live instruction in the areas of law office management and/or attorney client relations, but that he was unable to locate such a program. On April 30, 2008 (after the deadline), Respondent did complete one hour of non-live instruction in the area of law office management and/or attorney client relations to show his good faith; he acknowledges that this hour does not satisfy his probation condition. Additionally, although Respondent was late in passing the MPRE (his deadline was April 28, 2008), he passed the August 8, 2008 MPRE with a scaled score of 102. An 86 is required for passage.
OTHER PROBATION CONDITIONS NEGOTIATED BY THE PARTIES.
1. Initial Meeting: Within 30 days’ from the effective date of discipline, Respondent must contact the Office of Probation and schedule a meeting with Respondent’s assigned probation deputy to discuss these terms and conditions of probation. Upon the direction of the Office of Probation, Respondent must meet with the probation deputy either in-person or by telephone. During the period of probation, Respondent must promptly meet With the probation deputy as directed and upon request.
2. Law Office Management Plan: Within 30 days of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation within those 30 days. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency tliat caused or contributed to Respondent’s misconduct in the current proceeding.
During the period of probation imposed as a result of this stipulation, Respondent must comply with the law office management/organization plan developed by Respondent and approved by the Office of Probation. With each quarterly report required during the period of probation, Respondent shall aver under penalty of perjury whether he has complied with the law office management/organization plan during the period covered by the report.
3. MCLE: Within one year of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than six hours of participatory Minimum Continuing Legal Education (MCLE) approved courses in law office management and/or attorney client relations. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.) Respondent will not receive credit for any MCLE courses in which he is an instructor.
4. Law Practice Management and Technology Section: Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for two years. Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation in the first report required. If Respondent is not permitted to pay for two years, he must renew his membership within 30 days prior to its termination and provide proof of such renewal in the first quarterly report due after such renewal.
WAIVER OF ANY VARIANCES
The parties stipulate to waive any variance in the language, allegations, and conclusions of law between this stipulation and the Notice of Motion and Motion to Revoke Probation filed on July 1, 2008. Respondent acknowledges that this stipulation contains language, allegations, and a conclusion of law which may differ from the language, allegations, and conclusion of law contained in the Notice of Motion and Motion to Revoke Probation filed on July 1, 2008. The parties further stipulate to waive the fight to have any amendment to the Notice of Motion and Motion to Revoke Probation.
SIGNATURE OF THE PARTIES
Case Number(s): 08-PM-12565
In the Matter of: Russell H. Takasugi
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: Russell H. Takasugi
Date: October 14, 2008
Respondent’s Counsel: Arthur Margolis
Date: October 15, 2008
Deputy Trial Counsel: Terrie Goldade
Date: October 16, 2008
Case Number(s): 08-PM-12565
In the Matter of: Russell H. Takasugi
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 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: Richard A. Honn
Date: October 16, 2008
[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 20, 2008, 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:
ARTHUR LEWIS MARGOLIS, ESQ.
MARGOLIS & MARGOLIS LLP
2000 RIVERSIDE DR
LOS ANGELES, CA 90039
<<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:
TERRIE GOLDADE, ESQ., Office of Probation, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 20, 2008.
Signed by:
Rose Luthi
Case Administrator
State Bar Court