Case Number(s): 09-C-13147 and 10-N-08536
In the Matter of: Kenneth Melvin Bareilles, Bar # 44816, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Christine Souhrada, Deputy Trial Counsel
180 Howard Street
San Francisco, CA 94105
(415) 538-2183
Bar # 228256,
Counsel for Respondent: In Pro Per Respondent, Kenneth Melvin Bareilles
Law Office of Kenneth M. Bareilles
533 E St
Eureka, CA 95501-0313
(707) 443-9338
Submitted to: Assigned Judge – State Bar Court Clerk’s Office San Francisco.
<<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 January 15, 1970.
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: two billing cycles following the effective date of the Supreme Court Order. (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): 09-C-13147 and 10-N-08536
In the Matter of: Kenneth Melvin Bareilles
a. Restitution
checked. Respondent must pay restitution to any and all individuals or entities as ordered by the Humboldt County Superior Court (“Superior Court”)1 including any interest ordered by the Superior Court. Respondent must pay the restitution by the due date ordered by the Superior Court or on the payment schedule as set by the Superior Court. If no payment due-date or payment schedule is set by the Superior Court, Respondent must pay the restitution within six months from the date of the Superior Court order. Respondent must provide satisfactory proof of payment of any ordered restitution to the State Bar’s Office of Probation with his next scheduled quarterly report. [Footnote 1: Humbolt County has requested restitution to be ordered by the Superior Court. However, on June 18, 2010, finding the direct victims to be the property owners and not the county, the Superior Court denied the county’s request for restitution without prejudice, explicitly allowing for the request to be made again in case property owners come forward and want restitution.]
If any motion for an order of restitution, suit for restitution, or any other request for restitution from Respondent is made to the Superior Court, Respondent must notify the State Bar Office of Probation in his next scheduled quarterly report and include a copy of the request or motion.
If Respondent is ordered to pay any restitution by the Superior Court, Respondent must notify the State Bar Office of Probation in his next scheduled quarterly report and include a copy of the request or motion
If Respondent is ordered to pay any restitution by the Superior Court, Respondent must notify the State Bar Office of Probation in this next scheduled quarterly report and include a copy of the order.
If any individual who purchased land from Respondent requests (formally or informally, in writing or orally) restitution of any kind from Respondent, Respondent must report this request in writing to the Humboldt County District Attorney’s Office and the Superior Court within 30 days of the time Respondent becomes aware of the request for appropriate action, and provide proof of this reporting to the State Bar’s Office of Probation with his next scheduled quarterly report.
In each quarterly report, Respondent must report whether any motion for an order of restitution, suit for restitution, or any other request (whether formal or informal, written or oral) for restitution from Respondent has been made; if such request or motion had been made the status of the request or motion, and whether any restitution has been ordered.
Should no restitution be ordered by the time Respondent’s probationary period ends, this restitution requirement will terminate with the successful termination of Respondent’s probation.
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than 30 days before the termination of his probationary period.
<<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: KENNETH MELVIN BAREILLES, State Bar No. 44816
STATE BAR COURT CASE NUMBER: 09-C-13147 and 10-N-08536
I. FACTS AND CONCLUSIONS OF LAW
Facts:
1. On May 15, 2009, Respondent was convicted, by plea of nolo contendere for violating Government Code section 66499.30(b) (the Subdivision Map Act) for making an unlawful land sales transaction, a felony.
2. Specifically, Respondent owed a large tract of rural land in Humbolt County, which he illegally subdivided and sold parcels of Respondents, who owed the land for several decades, initially subdivided and sold the land as a large legal “patent parcels”. However, in 1992 he began illegal subdividing the patent parcels and selling the illegally subdivided land. The transfer of these illegal parcels was done via written sales agreement and was recorded with Humbolt County. Respondent continued these illegal sales until he was criminally prosecuted in 2008. Respondent illegally subdivided and sold approximately 33 parcels, but the statute of limitations had expired on the vast majority of these sales by the time Respondent was prosecuted in 2008.
3. A number of the individuals who purchased the illegally subdivided land grew marijuana on their land and did not obtain permits for the structures the built or the roads they graded.
4. Humbolt County has requested restitution be ordered by the Humbolt County Superior Court (“Superior Court”). However, on June 18, 2010, finding the direct victims to be the property owners and not the county, the Superior Court denied the county’s request for restitution without prejudice, explicitly allowing for the request to be made again in case property owners come forward and want restitution.
5. On July 23, 2010, after Respondent’s criminal conviction was transmitted to the State Bar Court, the Review Department of the State Bar Court issued an order (“Review Department Order”) placing Respondent on interim suspension pending final disposition of this disciplinary proceeding. In addition, the Review Department Order required Respondent to comply with rule 9.20 of the California Rules Court, which among other requirements, required that Respondent files an affidavit of compliance with rule 9.20 by September 1, 2010.
6. On August 28, 2010, Respondent filed an affidavit of compliance indicating that he was in compliance except that he still had one client file belonging to a pro bono client who lived in Europe and for whom he had not yet been able to secure other counsel. Respondent’s affidavit was rejected by Probation because the affidavit admitted that Respondent was not in compliance. Respondent mailed the file to his client in Europe and refilled his 9.20 affidavit on September 8, 2010.
Conclusions of Law
7. By violating Government Code section 66499.30(b), Respondent did not commit an act of moral turpitude; however, he committed other misconduct warranting discipline.
8. By failing to timely return all clients files in conformity with the requirements of Rule 9.20(a), Respondent failed to timely comply with the provisions of the Review Department Order requiring compliance with Rule 9.20, California Rules of Court thereby willfully violating rule 9.20, California Rules of Court.
II. SUPPORTING AUTHORITY
Although the parties are unaware of any State Bar law involving violations of the Subdivision Map Act, an analogy can be drawn to disciplinary cases involving securities law violations, including Chadwick v. State Bar (1989) 49 Cal.3d 103 ; In Re Murphy (1975) 14 Cal.3d 533; in Re Langford (1966) 64 Cal.2d 489; and In Re Clark (1959) 52 Cal.2d 322. The discipline in these cases ranged from one the three years actual suspension. However, unlike securities law violations which involve grave financial harm to duped purchasers, there are indications in the record that many of Respondent’s buyers were aware the property was illegally subdivided, and there does not appear to be evidence in the criminal record of harm to individual purchasers.
In assessing the level of discipline in a criminal conviction case, even where those convictions do not directly involve the practice of law, the court has found it to be its duty to impose a discipline that will protect the public from potential harm. In re Kelley (1990) 52 Cal.3d 487, 496. Given the significant period of actual suspension, and long probationary and stayed suspension periods, the stipulated discipline is sufficient to assure that Respondent will conform his future conduct to ethical standards and, therefore, protect the public, courts and profession. This is consistent with Standard 1.3 and Kelly.
III. PENDING PROCEEDINGS
The disclosure date referred to in paragraph A(7) of this stipulation, was October 6, 2010.
IV. ESTIMATE OF COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of October 6, 2010, the estimated prosecution costs in this matter are approximately $3,277. Respondent acknowledges that this figure is an estimate only. Respondent further acknowledges that should this stipulation be rejected of should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
Case Number(s): 09-C-13147 and 10-N-08536
In the Matter of: Kenneth Melvin Bareilles
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: Kenneth Melvin Bareilles
Date: October 25, 2010
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Christine Souhreda
Date: October 27, 2010
Case Number(s): 09-C-13147 and 10-N-08536
In the Matter of: Kenneth Melvin Bareilles
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.
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: Lucy Armendariz
Date: November 16, 2010
[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 San Francisco, on November 16, 2010, 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 San Francisco, California, addressed as follows:
KENNETH MELVIN BAREILLES
LAW OFFICE OF KENNETH M. BAREILLES
533 E ST
EUREKA, CA 95501-0313
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
CHRISTINE SOUHRADA, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on November 16, 2010.
Signed by:
Laine Silber
Case Administrator
State Bar Court