Case Number(s): 09-J-10857
In the Matter of: Bruce Matsuo Nishioka, Bar # 153321, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar Dane C. Dauphine, Supervising Trial Counsel
1149 South Hill St.
Los Angeles, CA 90015-2299
Tel. (213) 765-1293
Bar # 121606
Counsel for Respondent: George M. Mavris, 1 Point Saint George P1.
Crescent City, CA 95531
Tel. (707) 464-1418
Bar # 179471
Submitted to: Assigned Judge
Filed: June 22, 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.
1. Respondent is a member of the State Bar of California, admitted June 11, 1991.
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: 2012 and 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.
IN THE MATTER OF: Bruce Matsuo Nishioka
CASE NUMBER(S): 09-J-10857
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-J-10857 (Discipline in Other Jurisdiction)
PROCEDURAL BACKGROUND IN OTHER JURISDICTION:
1. Respondent was admitted by the Oregon Supreme Court to practice law in the State of Oregon on May 2, 2001.
2. On February 9, 2009, Respondent entered into a Stipulation for Discipline with the Oregon State Bar in case no. 08-80 admitting that Respondent had committed violations of rules 1.5(a), 5.3(a), and 5.5(a) of the Oregon Rules of Professional Conduct.
3. On or about February 23, 2009, the State Disciplinary Board of the Supreme Court of the State of Oregon approved the stipulation in case no. 08-80 and ordered that Respondent be publicly reprimanded. Thereafter, that order became final.
FACTS:
4. James Henry Wilsdon died testate August 5, 2005 (hereinafter "Deceased"). The Deceased named his son, John Wilsdon (hereinafter "Wilsdon") to serve as his personal representative. Wilsdon, his sister, and the Deceased’s wife were the beneficiaries of the Deceased’s estate. About late September 2005, Wilsdon retained Respondent to probate the Deceased’s estate and represent him as the Deceased’s personal representative. Pursuant to Respondent’s written fee agreement with Wilsdon, Respondent’ s time would be billed at the rate of $180 per hour and legal assistant time would be billed at the rate of $65 per hour.
5. At all material times, Respondent used the services of Donald Tilton (hereinafter "Tilton"), a non-lawyer legal assistant and/or law clerk concerning the Wilsdon probate matter. About November 15, 2005, Tilton prepared and filed a probate petition, signed by Wilsdon, which identified Respondent as Wilsdon’s attorney, In the Matter of Estate of James Henry Wilsdon, Curry County Circuit Court Case No. 05PR087 (hereinafter "Probate Case").
6. On December 13, 2005, the court appointed Wilsdon to serve as the Deceased’s personal representative, and on December 14, 2005, issued letters testamentary. On January 5, 2006, Tilton prepared and sent notice of the probate and Wilsdon’s appointment to the Deceased’s heirs. Tilton thereafter prepared, and Wilsdon signed, a final accounting and petition for general judgment of final distribution, which was filed with the court on March 10, 2006. The petition stated that there were no assets to probate because they had all been designated "pay on death" by the Deceased and therefore passed to the heirs outside of the state.
7. About March 13, 2006, Respondent filed a motion to extend the time to file the inventory or to file a motion to close the probate. Respondent represented to the court that additional assets had been discovered and investigation was required. The motion was accomplished with an affidavit signed by Tilton stating that he was investigating the Deceased’s assets. The court granted the motion and extended the time for filing of the inventory to March 27, 2006. Thereafter, Respondent submitted a proposed order approving final accounting in the Probate Case, which stated that no additional assets had been found. The court signed the order on May 22, 2006, and closed the Probate Case.
8. In April 2007, Tilton prepared, and on May 21, 2007, filed a Petition to Reopen Estate. The petition, signed by Wilsdon, stated that further administration of the estate was necessary because he had learned of an unprobated asset - an account held by Franklin Templeton in the name of the Deceased alone; and that claims and expenses had been presented to the personal representative during the original probate, but they had not been paid from estate assets because there were no assets to pay them. The
claims and expenses consisted of the Deceased’s funeral expenses that had been paid by the Deceased’s wife, and Respondent’s attorney fees and costs that were paid by the Deceased’s daughter.
9. On July 18, 2007, the court signed a Limited Judgment Reopening Estate and Appointing Personal Representative. The court again appointed Wilsdon to serve as the Deceased’s personal representative.
10. On October 8, 2007, Tilton prepared, signed, and filed an inventory in the Probate Case. Tilton represented that he had power of attorney for the personal representative; that he had read the inventory; and verily believed it to be true. The inventory identified the Franklin Templeton account and stated that its values as of the date of the Deceased’s death to be $13,754.43.
11. About December 20, 2007, Tilton, again purporting to act for Wilsdon pursuant to a power of attorney, prepared, signed, and thereafter filed a final accounting and petition for general judgment of final distribution. The final accounting was supported by an affidavit signed by the Respondent in which he represented to the court that the estate had received $16,463.21 from the Franklin Templeton investment; reimbursed the Deceased’s daughter $4,268.21 for her payment of Respondent attorney’s fees and costs incurred in connection with the Probate Case; .and reimbursed the Deceased’s wife $4,446.50 for the Deceased’s funeral expenses. Respondent did not obtain or seek the court’s approval of the attorney fees as required by ORS 116.183(1) before reimbursing the Deceased’s daughter from estate funds.
12. About January 3, 2008, the court advised the Respondent of its concerns and questions regarding the final accounting and petition for general judgment of final distribution, including the payment of attorneys fees for the original probate without court approval; the reasonableness of fees paid and/or claimed in the Probate Case; Tilton’s representations concerning his status as an attorney; and Tilton’s actions in the Probate Case.
13. About March 17, 2008, Respondent withdrew from the representation. The court thereafter determined that the work performed for the Probate Case was below local standards, and on May 2, 2008, approved only $1,500 as reasonable attorney fees and costs for all work performed in the original Probate Case and after the Probate Case was reopened.
(Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 266, 284 [recommending six months actual suspension for illegal fees and failure to refund fees but noting that standard 2.7 does not apply]. Culpability for offenses involving other violations not specified in another standard shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim (Standard 2.10).
Here, Respondent was disciplined in Oregon pursuant to a stipulation where it was determined that his mental state was one of negligence rather than intent to commit the misconduct. Respondent was negligent in failing to supervise the paralegal, Tilton, adequately. He incorrectly assumed that Tilton would seek his direction and obtain approval of all documents submitted to the court concerning the probate case. His misconduct also resulted from his failure to comply with court rules to obtain approval of the fees before they were paid from estate assets. Respondent demonstrated remorse by reimbursing the estate for funds that were paid without court approval. Considering Respondent’s refund of fees and that he cooperated in entering into a stipulation both with the Oregon disciplinary authorities and the California State Bar, a stayed suspension with a period of probation will provide adequate protection of the public.
14. During the Respondent’s representation, Triton had access to the Respondent’s letterhead and pleading forms and the Respondent permitted Tilton to have them on Tilton’s computer. Tilton provided legal advice and services to Wilsdon and engaged in the unauthorized practice of law. Respondent did not adequately supervise Tilton and failed to ensure that Tilton’s work was compatible with Respondent’s professional obligations. Respondent did not approve or know of all of Tilton’s actions or review all of Tilton’s work concerning the Probate Case, and did not adequately communicate with Wilsdon.
15. During Respondent’s representation of Wilsdon, Tilton’s name was billed to the client at the rate of $180 per hour for the initial probate, and $100 per hour for work performed after the Probate Case was reopened, which amounts exceeded the $65 per hour authorized in Respondent’s fee agreement. As a result of these charges and the failure to obtain court approval of the fees before they were paid, Respondent charged and collected illegal and excessive attorney fees for work performed in the Probate Case.
CONCLUSIONS OF LAW:
16. The disciplinary proceeding in the other jurisdiction provided Respondent with fundamental constitutional protection.
17. Respondent’s conduct in the other jurisdiction as set forth above would warrant the imposition of discipline in California as violation(s) of the following:
18. By allowing Tilton access to Respondent’s letterhead and pleading forms and failing to supervise him, Respondent aided a person in the unauthorized practice of law in willful violation of Rules of Professional Conduct, rule 1-300(A).
19. By failing to ensure that the Probate Case was handled properly, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
20. By failing to obtain court approval for his fees prior to receiving them, Respondent collected an illegal fee in willful violation of Rules of Professional Conduct, rule 4-200(A).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was May 12, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Discipline call for a reproval or suspension depending on the extent of the misconduct and the degree of harm to the client or victim. 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. Culpability for failure to perform in matters
not demonstrating a pattern shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client (Standard 2.4). Standard 2.7 applies to offenses involving an agreement to collect an unconscionable fee and requires at least a six-month actual suspension, but that standard does not specifically apply to illegal fees. See In the Matter of Harney
Case Number(s): 09-J-10857
In the Matter of: Bruce Matsuo Nishioka
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: Bruce M. Nishioka
Date: 5-31-11
Respondent’s Counsel: George M. Mavris
Date: 5/27/11
Deputy Trial Counsel: Dane C. Dauphine
Date: 6-6-11
Case Number(s): 09-J-10857
In the Matter of: Bruce Matsuo Nishioka number 153321
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 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. Honn
Date: 6-22-11
[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 June 22, 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:
GEORGE M. MAVRIS
1 POINT SAINT GEORGE PLACE
CRESCENT CITY, CALIFORNIA 95531
<<not>> checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Dane Christopher Dauphine, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on June 22, 2011.
Signed by:
Cristina Potter
Case Administrator
State Bar Court