Case Number(s): 09-O-12248
In the Matter of: Barry D. Silbermann Bar #69402, 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: In Pro Per Respondent
Barry D. Silbermann
12400 Ventura Blvd., #413
Studio City, CA 91604
Tel. (310) 702-6699
Bar # 69402
Submitted to: Assigned Judge
Filed: May 20, 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 25, 1976.
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):
<<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, 2013 and 2014. (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.
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. Respondent has no prior discipline since his admission in ]976. Although the misconduct of commingling of personal funds in a trust account is serious, no client funds were put at risk.
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. Respondent has cooperated with the State Bar in providing records and entering into a stipulation in this matter.
IN THE MATTER OF: Barry David Silbermann
CASE NUMBER(S): 09-0-12248
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. 09-0-12248 (State Bar Investigation)
FACTS:
1. During the period from in or about August 2008 through June 2009, Respondent maintained a trust account at Wells Fargo Bank, account no. XXX-XXX8464 ("the CTA"). (The complete account number has been omitted due to privacy concerns.)
2. During the period from in or about August 2008 through June 2009, Respondent deposited his personal funds in the CTA, including, but not limited to, the following:
, Amount ($), Nature of the Funds
Date 08/25/08, Amount ($) 1,000.00, Nature of the Funds Personal loan to Respondent
Date 09/02/08, Amount ($) 1,039.00, Nature of the Funds Social Security Benefits for Respondent’s son
Date 10/02/08, Amount ($) 1,039.00, Nature of the Funds Respondent’s son Social Security Benefits for
Date 10/31/08, Amount ($) 991.50, Nature of the Funds Social Security Benefits for Respondent
Date 10/31/08, Amount ($) 1,039.00, Nature of the Funds Social Security Benefits for Respondent’s son
Date 12/01/08, Amount ($) 1,039.00, Nature of the Funds Social Security Benefits for Respondent’s son
Date 02/02/09, Amount ($) 1,100.00, Nature of the Funds Social Security Benefits for Respondent’s son
Date 02/02/09, Amount ($) 1,064.30, Nature of the Funds Respondent Social Security Benefits for
Date 04/02/09, Amount ($) 1,100.00, Nature of the Funds Social Security Benefits for Respondent’s son
Date 04/02/09, Amount ($) 1,064.30, Nature of the Funds Social Security Benefits for Respondent
Date 04/22/09, Amount ($) 4,118.80, Nature of the Funds Refund of funds attached by Respondent’s ex-wife
Date 04/30/09, Amount ($) 1,064.30, Nature of the Funds Social Security Benefits for Respondent
Date 05/07/09, Amount ($) 250.00, Nature of the Funds Social Security Benefits for Respondent
Date 05/07/09, Amount ($) 500.00, Nature of the Funds Personal loan to Respondent
Date 05/22/09, Amount ($) 1,066.30, Nature of the Funds Social Security Benefits for Respondent
Date 06/01/09, Amount ($) 1,100.00, Nature of the Funds Social Security Benefits for Respondent’s son
3. During the period from in or about August 2008 through June 2009, Respondent used funds in the CTA to pay personal debts, including, but not limited to, his family’s health insurance premiums, cable and dish network payments, Verizon wireless service, AAA membership, and utilities.
CONCLUSIONS OF LAW:
4. By depositing personal funds in the CTA, Respondent commingled funds belonging to Respondent in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import in willful violation of the Rules of Professional Conduct, rule 4-100(A).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was May 13, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide, at Standard 2.2(b), for a minimum actual suspension of three months irrespective of mitigating circumstances for the commission of a violation of rule 4-100, Rules of Professional Conduct, which does not result in the willful misappropriation of entrusted funds or property. Reported cases of discipline based on commingling and issuance of NSF checks include: In the Matter of Heiser (Review Dept. 1990) 1 Cal. State Bar Ct.
Rptr. 47 (6 months actual suspension); In the Matter of Bleecker (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 113 (60 days actual suspension); In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615 (6 months actual suspension); In the Matter of Doran (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 871 (6 months actual suspension). Here, Respondent’s prior record of 34 years with no record of discipline and his cooperation with the State Bar to resolve this matter by stipulation supports the imposition of a stayed suspension.
Case Number(s): 09-O-12248
In the Matter of: Barry David Silbermann
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: Barry David Silbermann and Dane C. Dauphine
Respondent: Barry David Silbermann
Date: May 13, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Dane C. Dauphine
Date: May 13, 2011
Case Number(s): 09-O-12248
In the Matter of: Barry David Silbermann
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
Page 6- Paragraph E. (7) The “X” in the box next to “No Ethics School Recommended” is deleted
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. Platel
Judge of the State Bar Court
Date: May 18, 2011
[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 20, 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:
BARRY DAVID SILBERMANN
12400 VENTURA BLVD STE 413
STUDIO CITY, CA 91604
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 May 20, 2011.
Signed by:
Johnnie Lee Smith
State Bar Court