Case Number(s): 09-O-12427
In the Matter of: Marvyn Barry Gordon, Bar # 65981, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar Hugh G Radigan,
Deputy Trial Counsel
1149 South Hill Street
Los Angeles, California 90015
213-765-1206
Bar # 94251
Counsel for Respondent: Andres F. Quintana,
26135 Mureau Road, Suite 101
Calabasas, California 91302
818-914-2100
Bar # 190525
Submitted to: Settlement Judge
Filed: July 21, 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 December 18, 1975.
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. 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: 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-O-12427
In the Matter of: Marvyn Barry Gordon
a. Restitution
checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee: J.C. Scott-Klane
Principal Amount: $5,904.91
Interest Accrues From: January 21, 2009
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than six months from the issuance of the Supreme Court order approving the discipline herein.
<<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.
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: Marvyn Barry Gordon
CASE NUMBER(S): 09-O-12427
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-O-12427 (Complainant: J. C. Scott-Klane)
FACTS:
1. In March 2006, J.C. Scott-Klane ("Klane") employed Respondent to represent her in a personal injury claim against Richard and Jane Kellard (the "Kellards") related to a slip and fall incident.
2. In September 2008, Respondent settled Klane’s claim for $225,000.
3. Some of Klane’s medical expenses related to the claim were covered by her husband’s medical insurance through the Writers’ Guild Association ("WGA").
4. On December 12, 2008, Respondent provided an accounting for the $225,000 settlement to Klane (the "accounting"). In the accounting, Respondent indicated that $13,420.25 would be "withheld until further notice" for payment to WGA.
5. Respondent negotiated a reduction of WGA’s subrogation claim with its claims
representative. On July 17, 2007, WGA claimed a subrogation lien of $19,812.07. Respondent negotiated a reduction of WGA’s subrogation claim to $13,420.25.
6. Under Respondent’s contingency fee agreement with Klane, Respondent was entitled to 44% of the $225,000 received on behalf of Klane, or $99,000.
7. In addition to $99,000, Respondent charged attorney’s fees to WGA and collected $5,904.91 as fees from the $13,420.25 withheld from the $225,000 settlement for WGA. Respondent disclosed to Klane that he would seek attorney’s fees from WGA for honoring its lien and providing status reports during the litigation.
8. On January 21, 2009, Scott sent Respondent a written request for the release of the original client file on behalf of Klane. Respondent received the request.
9. On January 28, 2009, Klane sent Respondent a written request for the release of the original client file to Scott. Respondent received the request.
10. On February 6, 2009, Respondent charged Klane $1,878.57 to copy the client file and provided Klane a copy, but not the original, of the client file. Respondent later reversed the charge.
11. On February 10 and 12, 2009, Scott sent Respondent written requests for the release of the original client file. Respondent received the requests.
12. To date, Respondent has not released the original client file to Klane or Scott. Client received all documents necessary to her representation.
CONCLUSIONS OF LAW:
13. By negotiating a reduction of WGA’s subrogation claim without a signed conflict waiver, Respondent negligently created a conflict of interest between Respondent and Klane by not securing the informed written consent of the client with respect to the lien negotiations constituting a willful violation of rule 3-310(C)(1) of the Rules of Professional Conduct.
14. By not releasing the original client file to Klane or Scott, Respondent willfully failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property in willful violation of rule 3-700(D)(1) of the Rules of Professional Conduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A (7), was July 7, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards should be followed whenever possible. In re Silverton (2005) 36 Cal. 4th 81, 92. In imposing discipline, the court should consider the appropriate discipline in light of the standards, but in so doing the court may consider any ground that may form a basis for an exception to application of the standards. In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980. Inasmuch as the standards are not mandatory, they may be deviated from when there is a compelling, well-defined reason to do so. Bates v. State Bar (1990) 51 Cal. 3rd 1056, 1061.
Standard 1.6(a) provides that if 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 sanction imposed shall be the more or most severe of the different applicable sanctions.
Standard 2.4(b) provides that where culpability of a member of a willful failure to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.10 provides that where culpability of a member of a violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim with due regard for the purpose of imposing discipline set forth in standard 1.3.
In consideration of the facts and circumstances surrounding Respondent’s misconduct, and the aggravating and mitigating circumstances present, the parties submit that the intent and goals of the Standards are met in this matter with the imposition of a one year stayed suspension and one year probation. Respondent’s inadvertent failure to keep his client’s fully informed and secure their consent to the lien negotiation process undertaken on their behalf constitutes a failure to perform services and Respondent has agreed to make full and complete restitution with interest to the clients.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case Number 09-0-12427;, Count One;, Alleged Violation Rule 4-100(B)(1)
Case Number 09-0-12427;, Count Two;,
Alleged Violation Two Business and Professions Code section 6104
Case Number 09-0-12427;, Count Three;, Alleged Violation Rule 4-100(A) ;,
Case Number 09-0-12427;, Count Four;, Alleged Violation Rule 4-200(A)
Case Number 09-0-12427;, Count Five;,
Alleged Violation;, Business and Professions Code section 6106
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of July 7, 2011, the prosecution costs in this matter are $5,272.00. 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.
Case Number(s): 09-O-12427
In the Matter of: Marvyn Barry Gordon
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: Marvyn Barry Gordon
Date: 7/19/11
Respondent’s Counsel: Andres F. Quintana
Date: 7/19/11
Deputy Trial Counsel: Hugh G. Radigan
Date: 7/19/11
Case Number(s): 09-O-12427
In the Matter of: Marvyn Barry Gordon
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.
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: Donald F. Miles
Date: 7/21/11
[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 January 24, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING STAYED SUSPENSION; NO ACTUAL SUSPENSION
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;
ANDRES F. QUINTANA
QUINTANA LAW GROUP, APC
26135 MUREAU ROAD SUITE 101
CALABASAS, CALIFORNIA 91302
checked by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
HUGH G. RADIGAN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on July 21, 2011.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court