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-12838-RAP
In the Matter of: David Greenwald Bar 129247, A
Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Larry De Sha Deputy Trial
Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1336
Bar #117910
Counsel for Respondent: Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1336
Submitted to: Settlement Judge
Filed: May 17, 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.
A. Parties' Acknowledgments:
1.
Respondent is a member of the State Bar
of California, admitted May 17, 2011.
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 5.130, Rules of
Procedure.
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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.
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checked. Costs are waived in part as set forth in a separate attachment
entitled "Partial Waiver of Costs".
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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.
<<not>> checked. (4) Harm: Respondent's misconduct
harmed significantly a client, the public or the administration of justice.
<<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.
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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.
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(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.
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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.
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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.
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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:
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(1) Stayed
Suspension:
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(a) Respondent must be suspended from the practice of law for a period of one
(1) year.
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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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(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:
<<not>>
checked. (a) Respondent must be actually suspended from the practice of law in
the State of California for a period of sixty (60) days.
<<not>>
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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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:
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.
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(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:
<<not>>
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 5.162(A) & (E), Rules of Procedure.
<<not>> checked. No MPRE recommended. Reason: .
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(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:
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(5) Other Conditions:
ATTACHMENT
TO
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN
THE MATTER OF: DAVID GREENWALD
CASE
NO.: 09-O- 12838- RAP
WAIVER
OF VARIANCE:
The
parties waive any variance between the Notice of Disciplinary Charges filed on
January 20, 2011 and the facts and/or conclusions of law contained in this
stipulation. Additionally, the parties waive the issuance of an amended Notice
of Disciplinary Charges. The parties further waive the right to the filing of a
Notice of Disciplinary Charges and to a formal hearing on any charge not
included in the pending
Notice
of Disciplinary Charges.
FACTS:
1.
As of December 22, 2008, Respondent had one active client trust account at Bank
of America, account no. XXXXX5787 ("CTA 5787"). The balance in the
account that day was $61.20.
2.
Respondent made three deposits of personal funds of $10,000.00 each into CTA
5787 on December 26, 2008, January 14, 2009, and February 12, 2009. From
December 27, 2008 through February 13, 2009, Respondent wrote 23 checks against
CTA 5787 to pay his personal expenses, in amounts ranging from $24.77 to
$2,045.06, with total paid expenses in excess of $7,000. He also authorized a
total of $670.00 in electronic debits to make monthly payments on his credit
card from Target, for his payments due on February 3, March 3, and April 3,
2009. From January 8, 2009 through March 2, 2009, he made 12 payments to
himself by CTA checks payable to himself or "Cash" for a total of
$11,440.00.
3.
The balance in CTA 5787 as of March 31, 2009 was $2,353.46, all of which
belonged to Respondent.
4.
As of January 1, 2009, Respondent had another client trust account at Bank of
America, account no. XXXXX5370 ("CTA 5370"). The balance in the
account that day was $43.46.
5.
On February 17, 2009, Respondent transferred $8,930.00 to CTA 5370 from CTA
5787, raising the balance in CTA 5370 to $8,973.46. All of these funds belonged
to Respondent. Respondent made seven deposits of personal funds totaling
$97,069.58 into CTA 5370 between February 20, 2009 and June 3, 2009.
6.
From February 23, 2009 through June 1, 2009, Respondent wrote 33 checks against
CTA 5370 to pay his personal expenses, in amounts ranging from $59.75 to
$10,000.00, for total paid expenses in excess of $39,000. He also authorized at
least eight electronic debits for personal expenses in excess of $38,900. From
January 8, 2009 through March 2, 2009, he made more than 30 other payments to
himself by cash withdrawals totaling in excess of $34,000.00.
7.
The balance in CTA 5370 as of June 3, 2009 was $17,938.11, all of which
belonged to Respondent.
CONCLUSIONS
OF LAW:
8.
Respondent willfully violated rule 4-100(A) of the Califomia Rules of
Professional Conduct by his deposit of $30,000.00 of personal funds into CTA
5787, while it was designated as a client trust account, by maintaining
personal funds in the account, and by using the account to pay personal
expenses.
9.
Respondent willfully violated rule 4-100(A) of the Califomia Rules of
Professional Conduct by his deposit of more than $106,000.00 of personal funds
into CTA 5370, while it was designated as a client trust account, by
maintaining personal funds in the account, and by using the account to pay
personal expenses.
AGGRAVATING
CIRCUMSTANCES:
1.
Multiple Acts of Wrongdoing
Respondent
used CTA 5787 as a personal checking account from December 26, 2008
until
April 3, 2009, a period of 14 weeks. During that time, he made three improper
deposits of personal funds and made 38 payments or withdrawals for his personal
expenses. He used CTA 5370 as a personal checking account from February 20,
2009 until June 3, 2009, a period of 14 weeks also. During that time, he made
eight improper deposits of personal funds and made more than 60 payments or
withdrawals for his personal expenses. [Standard 1.2(b)(ii).]
MITIGATING
CIRCUMSTANCES:
1.
No Prior Discipline
At
the time of the first deposit of personal funds into CTA 5787 on December 26,
2008,
Respondent
had been a member of the State Bar of California for more than 21 years without
an imposition of discipline. [Standard 1.2(e)(i).]
2.
No Harm
Respondent’s
commingling of personal funds into the two client trust accounts caused no harm
to clients, the courts, or the administration of justice. [Standard
1.2(e)(iii).]
3.
Candor/Cooperation
On
February 22, 2011, Respondent filed his response to the Notice of Disciplinary
Charges,
admitting all of the alleged material facts except for willfulness. He has
subsequently cooperated fully with the State Bar during this proceeding, and
has admitted the material facts, his culpability for misuse of the two client
trust accounts, and the appropriate degree of discipline. [Standard 1.2(e)(v).]
SUPPORTING
AUTHORITY:
Standards
Standard
2.2(b) requires at least a three month actual suspension, irrespective of
mitigating circumstances, for any violation of rule 4-100(A).
Case
Law
In
Heavey v. State Bar (1976) 17 Cal.3d 131, attorney Heavy was found culpable of
using his CTA to pay personal expenses "from time to time." During
"nearly one full year," his CTA balance dropped 13 times below
$353.65 owed on behalf of one client. The California Supreme Court considered
the commingling to be more serious than the misappropriations. There was one
mitigating factor of no prior discipline in 30 years of practice, with no
aggravating factors. The California Supreme Court imposed discipline of an
actual suspension for 30 days, a stayed suspension for two
years,
and probation for two years.
Respondent’s
mitigating factors are essentially equal to that of attorney Heavey. Respondent
has additional mitigation due to candor and no harm, but Heavey had a
substantially longer period without prior discipline. Respondent has the
aggravating factor of multiple acts of misconduct, which includes more than 90
improper CTA transactions during a period of less than six months.
PENDING
PROCEEDINGS:
The
disclosure date referred to on page 2, paragraph A.(7), was April 15, 2011.
COSTS:
Respondent
acknowledges that the Office of the Chief Trial Counsel has informed Respondent
that as of April 14, 2011, the costs in this matter are $2,296.00. 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.
SIGNATURE
OF THE PARTIES
Case Number(s): 09-O-12838-RAP
In the Matter of: David Greenwald
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: David Greenwald and Larry DeSha
Respondent:
David Greenwald
Date: May 3,
2011
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Larry DeSha
Date: May 3,
2011
ACTUAL
SUSPENSION ORDER
Case Number(s): 09-O-12838-RAP
In the Matter of: David Greenwald
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:
Richard A. Honn
Judge of the
State Bar Court
Date: May 17,
2011
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 Los
Angeles, on May 17, 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:
DAVID GREENWALD
2360 W 23RD STREET
LOS ANGELES CA 90018
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
LARRY DESHA, Enforcement, Los Angeles
I
hereby certify that the foregoing is true and correct. Executed in Los Angeles
, California,
on May 17, 2011.
Signed by:
Angela
Carpenter
Case
Administrator
State Bar
Court