State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 09-O-11933
In the Matter of: Leo A. Akulian, Bar # 208006, A Member of
the State Bar of California, (Respondent).
Counsel For The State Bar: Esther J. Rogers,
THE STATE BAR OF CALIFORNIA
180 Howard Street
San Francisco, California 94105-1639
(415) 538-2258
Bar # 148246
Counsel for Respondent: Russell K. Ryan, 1690 W. Shaw Ave.,
Ste. 200
Fresno, California 93711
(559) 439-4000
Bar # 139835
Submitted to: Assigned Judge – State Bar Court
Clerk’s Office San Francisco.
Filed: June 29, 2010 .
<<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 July 10,
2000.
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):
checked. 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.
<<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 284, Rules of
Procedure.)
<<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.
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.
checked. (4) Harm: Respondent's misconduct harmed significantly a
client, the public or the administration of justice. See Attachment.
<<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.
<<not>> checked. (8) No aggravating circumstances are
involved.
Additional aggravating circumstances:
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
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. See Attachment.
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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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(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. See Attachment
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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.
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. See Attachment.
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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:
D.
Discipline:
checked.
(1) Stayed
Suspension:
checked.
(a) Respondent must be suspended from the practice of law for a period of two
(2) years.
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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:
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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 ninety (90) 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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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.
checked.
(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.
checked.
(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:
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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.
<<not>>
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:
checked.
(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 321(a)(1) & (c), Rules of
Procedure.
<<not>> checked. No MPRE recommended. Reason:
checked.
(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.
<<not>> checked. (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.
<<not>> checked. (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:
<<not>> checked. (5) Other Conditions:
Attachment language (if any):
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION
IN THE MATTER OF: Leo A.
Akulian , State Bar No. 208006
STATE BAR COURT CASE NUMBER:
09-O-11933
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.
FACTS AND
CONCLUSIONS OF LAW.
Count One
Facts
On July 12,
2005, Kent Pressley, Jaquette Morson and three children were injured in an
automobile accident. On or about February 3, 2006, Pressley and Morson employed
respondent to represent them in a personal injury action. The statute of
limitations would expire on July 12, 2007. On or about July 12, 2007,
respondent’s employee arranged for a lawsuit to be filed, but the lawsuit was
not filed. On or about July 13, 2007, respondent’s employee caused a false
complaint to be filed. The false complaint, filed in pro per, alleged that the
accident occurred on July 13, 2007 to conceal the expiration of the statute of
limitations.
The complaint
listed an incorrect address and therefore Pressley and Morson were unaware that
the complaint was filed late and that they were listed in pro per on the
complaint. Thereafter, no one took any action to prosecute the personal injury
matter on behalf of Pressley or Morson and the case was dismissed. Respondent
contends that he believed that he informed his clients in June 2007 that he was
unable to represent them and therefore was unaware that his staff had filed a
complaint.
In or about
February 2008, respondent contends that he leaned that his employee had filed a
late complaint and that the statute of limitations had run.
Between in or
about April 2008 and April 2009, respondent and his staff-falsely informed
Pressley and Morson that their case had settled and the insurance company had
paid out funds. Respondent and his staff presented Pressley and Morson with 14
false settlement checks totaling approximately $53,000 and with fabricated
settlements and releases. Respondent engaged in this conduct to conceal a
potential claim for malpractice.
In truth and
in fact, respondent knew that there were no settlements and that respondent was
funding the settlements with his own money.
Conclusions
of Law
By failing to
properly supervise his office staff, respondent recklessly failed to perform
legal services with competence, in willful violation of Rules of Professional
Conduct, rule 3-110(A).
Count Two
Facts
Count One is incorporated
by reference as if fully set forth herein.
Conclusions
of Law
By
misrepresenting that there was a settlement in the personal injury case and by
providing the clients with funds which respondent purported were personal
injury settlement funds, respondent committed acts of moral turpitude and
dishonesty, in willful violation of Business and Profession Code section 6106.
Count Three
Facts
Count One is
incorporated by reference as if fully set forth herein.
Conclusions
of Law
By failing to
inform his clients that his firm missed the statute of limitations and that
respondent may have committed malpractice, respondent failed to respond
promptly to a client’s reasonable status inquiries, in willful violation of
Business and Professions Code, section 6068(m).
PENDING
PROCEEDINGS.
The
disclosure date referred to, on page 2, paragraph A(6), was June 3, 2010.
COSTS OF
DISCIPLINARY PROCEEDINGS.
Respondent
acknowledges that the Office of the Chief Trial Counsel has informed respondent
that as of June 3, 2010, the prosecution costs in this matter are approximately
$2,500. 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.
AGGRAVATING
CIRCUMSTANCES.
Standard
1.2(b)(iv). Respondent’s conduct significantly harmed Pressley and Morson. They
lost their cause of action against the defendants in the personal injury case as
a result of respondent’s misconduct.
MITIGATING
CIRCUMSTANCES.
No Prior
Record (Standard 1.2(e)(i)) Respondent has been admitted since July 2000 and
has no prior record of discipline.
Cooperation
(Standard 1.2(e)(v)) Respondent agreed to the imposition of discipline without
requiring a hearing.
Emotional
Difficulties (Standard 1.2(e)(iv)) At the time that the complaint was filed,
respondent was distracted from his law practice because his father and
grandfather were suffering from terminal illnesses. At the time that respondent
discovered that the complaint was filed, he was still distracted because he was
mourning the death of his father and grandfather.
SIGNATURE OF THE PARTIES
Case Number(s): 09-O-11933
In the Matter of: Leo A. Akulian
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: Leo
A. Akulian
Date: June 6,
2010
Respondent’s
Counsel: Russell K. Ryan
Date: June 7,
2010
Deputy Trial
Counsel: Esther J. Rogers
Date: June
10, 2010
ACTUAL SUSPENSION ORDER
Case Number(s): 09-O-11933
In the Matter of: Leo A. Akulian
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:
Judge of the
State Bar Court: LUCY ARMENDARIZ
Date: June 25,
2010
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 San
Francisco, on June 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:
RUSSELL K. RYAN
MOTSCHIEDLER, MICHAELIDES & WISHON, LLP
1690 W SHAW AVE STE 200
FRESNO, CA 93711
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
ESTHER ROGERS, Enforcement, San Francisco
I hereby
certify that the foregoing is true and correct. Executed in San Francisco,
California, on June 29, 2010.
Signed by:
Laine Sibler
Case
Administrator
State Bar
Court