Case Number(s): 09-O-11124
In the Matter of: Mark T. Clausen, Bar # 196721, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Donald R. Steedman, Supervising Trial Counsel
180 Howard Street, 7th Floor
San Francisco CA 94105
Bar # 104927,
Counsel for Respondent: In Pro Per, Mark T. Clausen
18 E Fulton Rd
Santa Rosa, CA 95403
Bar # 196721
Submitted to: Settlement 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 July 22, 1998.
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):
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.
<<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.
FACTS AND CONCLUSIONS OF LAW
1. Respondent wilfully violated Business and Professions Code, section 6068(a), by failing to support the Constitution and laws of the United States and of this state, as follows:
2. On or about June 23, 2008, respondent and the State Bar entered a stipulation wherein respondent agreed to receive an actual suspension for disciplinary violations, specifically, prior incidences of practicing law while on suspension (State Bar case number 07-O-11741). The stipulation provided that respondent would receive a 30-day actual suspension but also provided as follows:
"Payment of Disciplinary Costs--Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7 (Check one option only):
"[x] until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 284, Rules of Procedure .... "
3. On or about October 24, 2008, the Supreme Court filed an order imposing the stipulated discipline (Supreme Court case number S 166100).
4. Notice of the rule 9.20 order was properly served upon respondent in the manner prescribed by California Rule of Court 9.18(b) at the address respondent maintained with the State Bar in accordance with Business and Professions Code section 6002.1 subdivision (a).
5. Respondent was aware of the order prior to its effective date.
6. The order became effective on or about November 23, 2008, and at all times thereafter has remained in full force and effect.
7. On or about November 24, 2008, the State Bar sent respondent a letter reminding him that he would remain on suspension until he paid his disciplinary costs. Respondent received this letter shortly thereafter.
8. Respondent’s suspension lasted more than 30 days because respondent (1) did not pay the applicable disciplinary costs within the thirty-day period and (2) never sought or obtained relief from payment of the costs.
9. Respondent remained on actual suspension until on or about February 4, 2009.
10. During the period of suspension, respondent signed and submitted pleadings and letters on behalf of clients to courts, as follows:
Date respondent signed: 12/31/2008, Date filed: 1/14/2009, Document: Stipulation and Order Vacating Stay and Granting Leave to the Parties to Submit 5-page Supplement Briefs on the Application of Vasquez v. State, Case: O’Connell v. City of Stockton, case no. CV 019275, Court: San Joaquin County Superior Court.
Date respondent signed: 1/6/2009, Date filed: 1/7/2009, Document: Supplemental Memorandum of Points and Authorities in Support of Motion for Attorney Fees [re application of Vasquez v. State],Case: O’Connell v. City of Stockton, case no. CV 019275, Court: San Joaquin County Superior Court.
Date respondent signed: 1/14/2009, Date filed: 1/14/2009, Document: Notion of Motion and Motion for Sanctions, Case: Musalian v. Adams, case number SCV-236208, Court: Sonoma County Superior Court.
Date respondent signed: 1/14/2009, Date filed: 1/14/2009, Document: Memorandum of Points and Authorities in Support of Motion for Sanctions, Case: Musalian v. Adams, case number SCV-236208, Court: Sonoma County Superior Court.
Date respondent signed: 1/26/2009, Date filed: 1/27/2009, Document: Plaintiff’s Supplemental Request for Judicial Notice in Support of Motion of Attorneys Fees and Costs, Case: O’Connell v. City of Stockton, case no. CV 019275, Court: San Joaquin County Superior Court.
Date respondent signed: 1/26/2009, Date filed: n/a, Document: Letter to the Honorable Elaine Rushing “Re: Attorney John Warner’s Letter of January 23, 2009, Case: Musaelian v. Adams, case number SCV-236208, Court: Sonoma County Superior Court.
Date respondent signed: 1/27/2009, Date filed: n/a, Document: Letter to Clerk of the Court, with copies to Judges Rushing and Golden and opposing counsel John Warner, “Re: Withdrawal of Defendant’s Motion For Sanctions.”, Case: Musaelian v. Adams, case number SCV-236208, Court: Sonoma County Superior Court.
11. Respondent represents that he was unaware that his suspension continued after the initial 30-day actual suspension.
12. Prior to the actual suspension, though not required to do so by the terms of the stipulation imposing the suspension, respondent represents that he provided written notice of the pending suspension and a copy of the stipulation imposing the suspension to those judges, attorneys and clients involved in his then-pending cases.
13. In response to the State Bar’s investigation, respondent timely produced copies of some of these notices, including those filed and served in the cases of O’Connell v. City of Stockton, case no. CV 019275, and Musaelian v. Adams, case no. 236208, in which respondent later signed and submitted pleadings and letters on behalf of clients to the court as set forth in paragraph 10, above.
14. Respondent represents that he did not engage in the practice of law during the period of the initial 30-day actual suspension. The State Bar is not aware of any allegation or evidence to the contrary.
15. On completion of the initial 30-day actual suspension respondent was otherwise eligible to return to the practice of law on payment of the applicable disciplinary costs. Respondent represents that he had more than adequate funds to pay those costs and other members of the State Bar had offered to pay those costs, but respondent did not pay those costs at the time because he was unaware they were due as a condition of reinstatement to active status.
16. After the initial 30-day actual suspension and while still suspended for non-payment of the applicable disciplinary costs, respondent signed and submitted pleadings and letters on behalf of clients to the court during the period December 31, 2008 thru January 27, 2009, as set forth in paragraph 10, above, including a Notice of Motion and Motion for Sanctions on January 7, 2009 in the matter of Musaelian v. Adams, case no. 236208.
17. On January 23, 2009, attorney John Wamer, an involved party in Musaelian v. Adams, case no. 236208, directed a letter to the trial court, Honorable Elaine Rushing, advising that respondent had filed the January 7, 2009 sanctions motion while suspended from the practice of law.
18. On January 26, 2009 respondent directed a letter to the Honorable Elaine Rushing, stating in part: "Attorney Warner is incorrect to assert that I am currently suspended from the practice of law. I served a 30-day suspension from November 23 to December 23, 2008, and was there after reinstated to active status, where I remain. Had attorney Warner extended a modicum of professional courtesy by contacting me before making a contrary representation to the Court, his error would have been corrected."
19. Respondent represents that after tendering this letter, on or about January 26, 2009, upon examination of his status with the State Bar, he found he was still listed as suspended.
20. On January 27, 2009, respondent directed a letter on attorney letterhead to the Clerk of the Court in the matter of Musaelian v. Adams, case no. 236208, copied to the Honorable Elaine Rushing, attorney John Warner and State Bar Probation Officer Cindy Jollota, stating: "Please drop from calendar defendants’ motion for sanctions set for hearing before Judge Golden on February 23, 2009. The motion may be refiled at a later date, once issues concerning my Bar status are satisfactorily resolved." Although this letter served to withdraw the sanctions motion which respondent had filed on January 7, 2009 while suspended from the practice of law, it is the position of the State Bar that respondent should not have used attorney letterhead and should have had an active member of the State Bar drop the motion from calendar, rather than doing so himself while suspended from the practice of law.
21. Respondent represents that, upon tender of the January 27, 2009 letter to the Court Clerk he did not again engage in the practice of law again until fully reinstated. The State Bar is not aware of any allegation or evidence to the contrary.
22. On or about January 28, 2009 respondent contacted his State Bar Probation Officer Cindy Jollota and was advised that he remained in suspended status for failure to pay the applicable investigatory costs. Respondent advised State Bar Probation Officer Cindy Jollota that respondent was unaware that he remained in suspended status for failure to pay applicable investigatory costs, and believed he had been returned to active status on completion of the initial 30-day actual suspension. Respondent candidly stated that, believing he had been reinstated to active status following the completion of the initial 30-day actual suspension, he had engaged in the practice of law following completion of the initial 30-day actual suspension. Respondent was advised not to practice law until the applicable investigatory costs were paid and he was returned to active status. As stated, respondent represents that he did not again engage in the practice of law again until fully reinstated, and the State Bar is not aware of any allegation or evidence to the contrary.
23. Respondent represents that on January 28, 2009 he tendered payment of the applicable investigatory costs and 2009 State Bar dues (due February 2009) by certified check sent by overnight mail to the State Bar’s San Francisco office. He there after contacted the State Bar on a daily basis to inquire about his status with the State Bar. Respondent was informed there was a significant delay in processing payments as a result of the influx of payments on State Bar dues due February 2009. The State Bar is not aware of any allegation or evidence to the contrary.
24. Respondent represents he continued to contact the State Bar and on February 4, 2009 was afforded the opportunity to hand-deliver payment of the applicable investigatory costs and 2009 State Bar dues to the State Bar’s San Francisco office for immediate processing and reinstatement. Respondent represents he immediately drew on funds for another certified check for payment of the applicable investigatory costs and traveled to the State Bar’s San Francisco office where he tendered payment for immediate processing and reinstatement. The State Bar is not aware of any allegation or evidence to the contrary.
25. Respondent was reinstated February 4, 2009, following payment of the applicable investigatory costs. Respondent also paid his 2009 State Bar dues that date, which were not a condition of reinstatement to active status and were due February 2009 for all members of the State Bar.
26. Prior to the commencement of the State Bar investigation, respondent provided to his State Bar Probation Officer Cindy Jollota written accounts of the events and copies of the letters and some of the pleadings respondent had directed to the court while suspended for non-payment of the applicable investigatory costs. Respondent represented that he was unaware his initial 30-day actual suspension would remain in place until applicable investigatory costs were paid, and believed he had been returned to active status on completion of the initial 30-day actual suspension, during which time he had not practiced law.
27. In response to the State Bar investigation, respondent was cooperative and candid and timely provided copies of each of the letters and pleadings respondent had directed to the court while suspended for non-payment of the applicable investigatory costs, and written accounts of the events. Respondent represented that he was unaware his initial 30-day actual suspension would remain in place until applicable
investigatory costs were paid, and believed he had been returned to active status on completion of the initial 30-day actual suspension, during which time he had not practiced law.
28. Though respondent represents that he was unaware that his suspension continued after the initial 30-day actual suspension, he concedes that he acted in disregard of his duty to assure that he had returned to active status before he resumed practice.
29. Each time respondent submitted one of these pleadings or letters, respondent engaged in the practice of law in violation of Business and Professions Code section 6125.
30. In each of the pleadings and letters cited above, respondent held himself out both as practicing law and entitled to practice law, and he thereby violated Business and Professions Code section 6126 subdivisions (a) and (b).
31. By violating Business and Professions Code sections 6125, 6126(a) and 6126(b), respondent failed to support the laws of this state in violation of Business and Professions Code section 6068(a).
PENDING PROCEEDINGS
The disclosure date referred to on page one, paragraph A.(7) was October 4, 2010.
AUTHORITIES SUPPORTING DISCIPLINE
Standard 2.3 provides that culpability for violating Business and Professions Code sections 6068, 6125 and 6126 shall result in disbarment or suspension depending upon the gravity of the offense and the harm, if any, to the victim with due regard to the purposes of imposing discipline. Standard 1.7 (a) provides for progressive discipline. In this instance, the State Bar is recommending a longer period of stayed suspension than in the previous discipline, but the same period of actual suspension given the unusual circumstances of the misconduct.
Case Number(s): 09-O-11124
In the Matter of: Mark T. Clausen
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: Mark T. Clausen
Date: November 15, 2010
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Donald R. Steedman
Date: November 15, 2010
Case Number(s): 09-O-11124
In the Matter of: Mark T. Clausen
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: Lucy Armendariz
Date: November 29, 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 29, 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:
MARK T. CLAUSEN
LAW OFC MARK CLAUSEN
18 E FULTON RD
SANTA ROSA, CA 95403
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DONALD STEEDMAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on November 29, 2010.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court