State
Bar Court of California
Hearing
Department
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 09-C-10438
In the Matter of: David Gonzalez, Bar # 187618 A Member of the
State Bar of California, (Respondent).
Counsel For The State Bar: Michael J. Glass, Deputy Trial
Counsel
1149 South Hill Street
Los Angeles, CA 90015-2299
(213) 765-1254
Bar #102700
Counsel for Respondent: Arthur Margolis, Margolis &
Margolis
2000 Riverside Drive
Los Angeles, CA 90039
(323) 953-8996
Bar #57703
Submitted to: Assigned Judge.
Filed: May 5, 2011 . 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.
A. Parties' Acknowledgments:
1.
Respondent is a member of the State Bar
of California, admitted February 1, 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 10
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):
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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: prior to February ! in three billing cycles following the
effective date of discipline. (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.
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checked. Costs are waived in part as set forth in a separate attachment
entitled "Partial Waiver of Costs".
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checked. Costs are entirely waived.
B.
Aggravating Circumstances [for definition, see
Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)].
Facts supporting aggravating circumstances are required.
<<not>> checked. (1) Prior record of discipline [see
standard 1.2(f)]
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(a) State Bar Court case
# of prior case .
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(b) Date prior discipline
effective .
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(c) Rules of
Professional Conduct/ State Bar Act violations:
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(d) Degree of prior
discipline
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(e) If Respondent has two
or more incidents of prior discipline, use space provided below. .
<<not>> checked. (2) Dishonesty: Respondent's
misconduct was surrounded by or followed by bad faith, dishonesty, concealment,
overreaching or other violations of the State Bar Act or Rules of Professional
Conduct.
<<not>> checked. (3) Trust Violation: Trust funds or
property were involved and Respondent refused or was unable to account to the
client or person who was the object of the misconduct for improper conduct
toward said funds or property.
<<not>> checked. (4) Harm: Respondent's misconduct
harmed significantly a client, the public or the administration of justice.
<<not>> checked. (5) Indifference: Respondent
demonstrated indifference toward rectification of or atonement for the
consequences of his or her misconduct.
<<not>> checked. (6) Lack of Cooperation: Respondent
displayed a lack of candor and cooperation to victims of his/her misconduct or
to the State Bar during disciplinary investigation or proceedings.
<<not>> checked. (7) Multiple/Pattern of Misconduct:
Respondent's current misconduct evidences multiple acts of wrongdoing or
demonstrates a pattern of misconduct.
checked. (8) No aggravating circumstances are involved.
Additional aggravating circumstances:
C. Mitigating Circumstances [see standard 1.2(e)]. Facts
supporting mitigating circumstances are required.
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checked. (1) No Prior Discipline: Respondent has no
prior record of discipline over many years of practice coupled with present
misconduct which is not deemed serious.
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checked. (2) No Harm: Respondent did not harm the
client or person who was the object of the misconduct.
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checked. (3) Candor/Cooperation: Respondent displayed
spontaneous candor and cooperation with the victims of his/her misconduct and
to the State Bar during disciplinary investigation and proceedings.
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checked. (4) Remorse: Respondent promptly took
objective steps spontaneously demonstrating remorse and recognition of the
wrongdoing, which steps were designed to timely atone for any consequences of
his/her misconduct.
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checked. (5) Restitution: Respondent paid $ on
in restitution to without the threat or force of
disciplinary, civil or criminal proceedings.
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checked. (6) Delay: These disciplinary proceedings were
excessively delayed. The delay is not attributable to Respondent and the
delay prejudiced him/her.
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checked. (7) Good Faith: Respondent acted in good
faith.
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checked. (8) Emotional/Physical Difficulties: At the
time of the stipulated act or acts of professional misconduct Respondent
suffered extreme emotional difficulties or physical disabilities which expert
testimony would establish was directly responsible for the misconduct.
The difficulties or disabilities were not the product of any illegal conduct by
the member, such as illegal drug or substance abuse, and Respondent no longer
suffers from such difficulties or disabilities.
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checked. (9) Severe Financial Stress: At the time of
the misconduct, Respondent suffered from severe financial stress which resulted
from circumstances not reasonably foreseeable or which were beyond his/her
control and which were directly responsible for the misconduct.
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checked. (10) Family Problems: At the time of the misconduct, Respondent
suffered extreme difficulties in his/her personal life which were other than
emotional or physical in nature.
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checked. (11) Good Character: Respondent's good character is attested to
by a wide range of references in the legal and general communities who are
aware of the full extent of his/her misconduct.
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checked. (12) Rehabilitation: Considerable time has passed since the acts
of professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
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checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances: Respondent has no prior record of
discipline.
D.
Discipline:
checked.
(1) Stayed
Suspension:
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checked. (a) Respondent must be suspended from the practice of law for a period
of one year.
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checked. i. and until Respondent shows proof satisfactory to the State Bar
Court of rehabilitation and present fitness to practice and present learning
and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney
Sanctions for Professional Misconduct.
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following:
checked.
(b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on probation
for a period of two (2) years, which will commence upon the effective date of
the Supreme Court order in this matter. (See rule 9.18, California Rules
of Court.)
checked. (3) Actual Suspension:
checked.
(a) Respondent must be actually suspended from the practice of law in the State
of California for a period of sixty (60) days.
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checked. i. and until Respondent shows proof satisfactory to the State Bar
Court of rehabilitation and present fitness to practice and present learning
and ability in the law pursuant to standard 1.4(c)(ii), Standards for Attorney
Sanctions for Professional Misconduct
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following:
E. Additional Conditions of Probation:
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checked. (1) If Respondent is actually suspended for two years or more, he/she
must remain actually suspended until he/she proves to the State Bar Court
his/her rehabilitation, fitness to practice, and learning and ability in the
general law, pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions
for Professional Misconduct.
checked.
(2)
During the probation period, Respondent must comply with the provisions of the
State Bar Act and Rules of Professional Conduct.
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(3)
Within ten (10) days of any change, Respondent must report to the Membership
Records Office of the State Bar and to the Office of Probation of the State Bar
of California ("Office of Probation"), all changes of information,
including current office address and telephone number, or other address for
State Bar purposes, as prescribed by section 6002.1 of the Business and
Professions Code.
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(4)
Within thirty (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.
checked.
(5)
Respondent must submit written quarterly reports to the Office of Probation on
each January 10, April 10, July 10, and October 10 of the period of probation.
Under penalty of perjury, Respondent must state whether Respondent has complied
with the State Bar Act, the Rules of Professional Conduct, and all conditions
of probation during the preceding calendar quarter. Respondent must also state
whether there are any proceedings pending against him or her in the State Bar
Court and if so, the case number and current status of that proceeding. If the
first report would cover less than 30 days, that report must be submitted on
the next quarter date, and cover the extended period. In addition to all
quarterly reports, a final report, containing the same information, is due no
earlier than twenty (20) days before the last day of the period of probation
and no later than the last day of probation.
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checked. (6) Respondent must be assigned a probation monitor. Respondent must
promptly review the terms and conditions of probation with the probation monitor
to establish a manner and schedule of compliance. During the period of
probation, Respondent must furnish to the monitor such reports as may be
requested, in addition to the quarterly reports required to be submitted to the
Office of Probation. Respondent must cooperate fully with the probation
monitor.
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(7)
Subject to assertion of applicable privileges, Respondent must answer fully,
promptly and truthfully any inquiries of the Office of Probation and any
probation monitor assigned under these conditions which are directed to
Respondent personally or in writing relating to whether Respondent is complying
or has complied with the probation conditions.
checked.
(8)
Within one (1) year of the effective date of the discipline herein, Respondent
must provide to the Office of Probation satisfactory proof of attendance at a
session of the Ethics School, and passage of the test given at the end of that
session.
No Ethics School recommended. Reason:
checked.
(9)
Respondent must comply with all conditions of probation imposed in the
underlying criminal matter and must so declare under penalty of perjury in
conjunction with any quarterly report to be filed with the Office of Probation.
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checked. (10) The following
conditions are attached hereto and incorporated:
<<not>> checked. Substance
Abuse Conditions.
<<not>> checked. Law Office
Management Conditions.
<<not>> checked. Medical
Conditions.
<<not>> checked. Financial
Conditions.
F. Other Conditions Negotiated by the Parties:
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(1)
Multistate Professional Responsibility Examination: Respondent must
provide proof of passage of the Multistate Professional Responsibility Examination
("MPRE"), administered by the National Conference of Bar Examiners,
to the Office of Probation during the period of actual suspension or within one
year, whichever period is longer. Failure to pass the MPRE results in
actual suspension without further hearing until passage. But see rule 9.10(b),
California Rules of Court, and rule 5.162(A) & (E), Rules of Procedure.
<<not>> checked. No MPRE recommended. Reason:
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(2) Rule 9.20, California Rules
of Court: Respondent must comply with the requirements of rule 9.20,
California Rules of Court, and perform the acts specified in subdivisions (a)
and (c) of that rule within 30 and 40 calendar days, respectively, after the
effective date of the Supreme Court's Order in this matter.
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(3) Conditional Rule 9.20,
California Rules of Court: If Respondent remains actually suspended for
90 days or more, he/she must comply with the requirements of rule 9.20,
California Rules of Court, and perform the acts specified in subdivisions (a)
and (c) of that rule within 120 and 130 calendar days, respectively, after the
effective date of the Supreme Court's Order in this matter.
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(4) Credit for Interim
Suspension [conviction referral cases only]: Respondent will be credited
for the period of his/her interim suspension toward the stipulated period of
actual suspension. Date of commencement of interim suspension
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(5) Other Conditions:
Attachment language (if any)
ATTACHMENT
TO
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN
THE MATTER OF: David Gonzalez
CASE
NUMBER(S): 09-C-10438
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. 09-C- 10438 (Conviction Proceedings)
PROCEDURAL
BACKGROUND IN CONVICTION PROCEEDING:
1.
This is a proceeding pursuant to sections 6101 and 6102 of the Business and
Professions Code and rule 9.10 of the California Rules of Court.
2.
On August 23, 2010, Respondent was convicted of violating Insurance Code
section 750(a) (Unlawful offer or receipt of consideration for referral by
claims handler), one count, a misdemeanor.
3.
On March 3, 2011, the Review Department of the State Bar Court issued an order
referring the matter to the Hearing Department on the following issues: For a
hearing and decision recommending the discipline to be imposed in the event
that the hearing department finds that the facts and circumstances surrounding
the conviction involved moral turpitude or other misconduct warranting
discipline.
FACTS:
4.
In the underlying matter, on or about March 1, 2007, Respondent paid an individual
$300.00 for referring a personal injury case to Respondent’s firm.
5.
On or about August 23, 2010, imposition of sentence was suspended and
Respondent was placed on three (3) years formal probation, was ordered to serve
60 days in the Orange County Jail, with credit for time served of 1 day, pay a
$1000.00 Restitution fine, pay $1000.00 to the California Department of
Insurance Autohand Account, and pay restitution in the amount of $5,375.00 to
the Orange County District Attorney’s Office.
6.
On or about February 4, 2011, Respondent’s probation was modified to be
informal probation.
CONCLUSIONS
OF LAW:
7.
By being convicted of violating Insurance Code section 750(a) (Unlawful offer
or receipt of consideration for referral by claims handler), one count, a
misdemeanor, Respondent wilfully violated a law of this state in violation of
Business and Professions Code section 6068(a).
8.
Respondent’s conviction for violating Insurance Code section 750(a) (Unlawful
offer or receipt of consideration for referral by claims handler), one count, a
misdemeanor, also constitutes conviction of a crime involving other misconduct
warranting discipline.
PENDING
PROCEEDINGS.
The
disclosure date referred to, on page 2, paragraph A(7), was April 5, 2011.
AUTHORITIES
SUPPORTING DISCIPLINE.
Standard
3.4 provides that "Final conviction of a member of a crime which does not
involve moral turpitude inherently or in the facts and circumstances
surrounding the crime’s commission but which does involve other misconduct
warranting discipline shall result in a sanction as prescribed under part B of
these standards appropriate to the nature and extent of the misconduct found to
have been committed
by
the member."
In
In the Matter of Duxbury (Review Dept. 1994) 4 Cal. State Bar Ct. Rptr., the
Respondent was convicted of violating Insurance Code section 750(a)(Capping), a
misdemeanor. The court found that the facts and circumstances surrounding
Respondent’s conviction involved moral turpitude due to
Respondent’s
conversation with an undercover police officer in which Respondent approved of
the scheme for referral of clients at a fee of $500 per person, and
Respondent’s admission that he had engaged in this time of conduct on before.
The court recommended discipline consisting of a two year stayed suspension,
two years probation with conditions including a six month actual suspension. In
aggravation, although Respondent did not fully comprehend the seriousness of
his misconduct, he was remorseful. Respondent’s misconduct also harmed the
administration of justice. Respondent was given nominal mitigation for no prior
record of discipline over five years of practice. Respondent was also given
some mitigation for good character letters from two judges and two attorneys.
In
In the Matter of Nelson (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr., the
Respondent formed a partnership with a non-lawyer who acted as a capper for the
Respondent for approximately six months until the Respondent decided to close
his law office and relocate in order to cease his relationship with the
non-lawyer. During that time, the non-lawyer also exercised independent
authority to settle clients’ cases without the Respondent’s prior approval. The
Respondent’s pervasive capping activity was found to involve moral turpitude.
The court recommended discipline consisting of a two year stayed suspension,
two years probation with conditions, including a six month actual suspension.
In mitigation, the Respondent voluntarily withdrew from the improper activities
and cooperated with the State Bar. Additionally, his rehabilitation over the
subsequent five years was undisputed.
In
the instant case, as Respondent David Gonzalez’s misconduct is not as egregious
as that of the
Respondent’s
in Duxbury, supra, and Nelson, supra., discipline should be imposed as to
Respondent David Gonzalez consisting of a one year stayed suspension, two years
probation with conditions, including a 60 day actual suspension.
COSTS
OF DISCIPLINARY PROCEEDINGS.
Respondent
acknowledges that the Office of the Chief Trial Counsel has informed respondent
that as of April 5,2011, the prosecution costs in this matter are $1,636.00. Respondent
further acknowledges that should this stipulation be redacted or should relief
from the stipulation be granted, the costs in this matter may increase due to
the cost of further proceedings.
STATE
BAR ETHICS SCHOOL.
Because
Respondent has agreed to attend State Bar Ethics School as part of this
stipulation, Respondent may receive Minimum Continuing Legal Education credit
upon the satisfactory completion of State Bar Ethics School.
SIGNATURE
OF THE PARTIES
Case Number(s): 09-C-10438
In the Matter of: David Gonzalez
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:
David Gonzalez, Arthur Margolis, Michael J. Glass
Respondent:
David Gonzalez
Date: April
19, 2011
Respondent’s
Counsel: Arthur Margolis
Date: April
20, 2011
Deputy Trial
Counsel: Michael J. Glass
Date: April
21, 2011
ACTUAL
SUSPENSION ORDER
Case Number(s): 09-C-10438
In the Matter of: David Gonzalez
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.
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checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set
forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
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:
Richard A. Honn
Judge of the
State Bar Court:
Date: May 5,
2011
CERTIFICATE
OF SERVICE
[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 May 5, 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:
ARTHUR
L MARGOLIS ESQ
MARGOLIS & MARGOLIS LLP
2000 RIVERSIDE DR
LOS ANGELES, CA 90039
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
Michael J. Glass, Enforcement, Los Angeles
I hereby
certify that the foregoing is true and correct. Executed in , California, on
May 5, 2011.
Signed by:
Julieta E.
Gonzalez
Case
Administrator
State Bar
Court