Case Number(s): 09-O-13160; 10-O-00078
In the Matter of: Mark Epstein, Bar # 159801, 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: Jerome Fishkin, Fishkin & Slatter LLP, 1111 Civic Center Dr, Ste. 115, Walnut Creek, CA 94596, (925) 944-5600, Bar # 47798,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
Filed: October 12, 2011.
<<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 September 21, 1992.
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 11 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. 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.
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.
Additional aggravating circumstances:
Additional mitigating circumstances:
Attachment language (if any):
FACTS AND CONCLUSIONS OF LAW
COUNT ONE
Case No. 1040-00078
Business and Professions Code, section 6068(a)
[Failure to Comply With Laws]
1. Respondent willfully 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. State Farm Insurance was the homeowner’s insurance company for Nancy Mattingly. On or about October 26, 2006, State Farm Insurance issued a check in the amount of $29,917.91 in compensation for vandalism damages to Mattingly’s residence. The check was jointly payable to Mattingly and Bayview Loan Servicing, L.L.C., which was the servicing agent for the first deed of trust on Mattingly’s property.
3. In or about November 2006, Mattingly hired respondent to represent her with respect to several real estate matters. Bayview Loan Servicing and Mattingly had a dispute concerning the insurance proceeds in that both wanted to hold the funds. In particular, Bayview Loan Servicing declined to release the funds except in payment for the vandalism repairs. As servicing agent for the first deed of trust, Bayview Loan Servicing had a valid interest in assuring that the funds were used for the vandalism repairs. Mattingly signed the check and gave it to respondent.
4. On or about November 30, 2006, respondent deposited the check into his trust account at Bank of America (account number ending in 0728). Respondent took this action without the consent of Bayview Loan Servicing and without the consent of the beneficiaries of the first deed of trust in violation of Commercial Code section 3417 subdivision (a)(1.).
5. When respondent assumed control of the funds, entered a fiduciary relationship with Bayview Loan Services and the beneficiaries of the first deed of trust.
6. After assuming custody of the funds, respondent used the money for purposes other than repairs to the condominium and did so without the consent of either Bayview Loan Services or the beneficiaries of the first deed of trust. Specifically, respondent disbursed the funds from his trust account as follows:
Month: November 30, 2006, Amount: $11,442.37;
Month: February 2, 2007, Amount: $2,237.00;
Month: March 12, 2007, Amount: $2,200.00;
Month: March 14, 2007, Amount: $415.00;
Month: May 3, 20071, Amount: $747.66;
Month: June 7, 2007, Amount: $10,000.00;
Month: September 5, 2007, Amount: $2,829.89.
7. With the exception of the November 30, 2006 and May 3, 2007 payments, respondent personally received all these payments based on his claim for attorney fees. Respondent violated his fiduciary duties to Bayview Lore Services and the beneficiaries of the first deed of trust each time he removed the funds from trust. The payments were made with Mattingly’s permission.
8. At the time respondent made the June 7, 2007 payment, respondent was aware that Bayview Loan Services and the beneficiaries of the first deed were in the process of foreclosing on Mattingly’s condominium and that the foreclosure was imminent.
9. On or about June 15, 2007, Bayview Loan Services and the beneficiaries of the first deed of trust foreclosed on Mattingly’s condominium, thereby eliminating Mattingly’s ownership interest in the property and eliminating any claim she might have to the insurance proceeds. Respondent was aware of foreclosure at the time h withdrew the last of the insurance proceeds from his trust account on September 5, 2007.
10. Respondent paid the Bayview Loan Services $10,000 on April 28, 2008, and the remaining $19,971.92 on April 13, 2009.
11. By violating Commercial Code section 3417 subdivision (a)(1) and by violating his fiduciary duties to Bayview Loan Services and the beneficiaries of the first deed of trust, respondent failed to support the Constitution and laws of the United States and of this state.
COUNT TWO
Case No. 10-O-00078
Rules of Professional Conduct, rule 4-100(A)
[Commingling Personal Funds in Client Trust Account]
12. Respondent willfully violated Rules of Professional Conduct, rule 4-100(A), by depositing and commingling funds belonging to respondent in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import, as follows:
13. Between November 2006, and March 2009, respondent commingled non-client funds, i.e., his personal funds and his law office operating funds, into his trust account at Bank of America (labeled "The Epstein Group Attorney Client Trust Account", account number ending with 0728) on more than 20 occasions, including numerous deposits of several thousand dollars.
COUNT THREE
Case No. 09- 0-13160
Rules of Professional Conduct, rule 4-100(A)
[Failure to Deposit Client Funds in Trust Account]
14. Respondent willfully violated Rules of Professional Conduct, rule 4-100(A), by failing to deposit funds received for the benefit of a client in a bank account labeled."Trust Account," "Client’s Funds Account" or words of similar import, as follows:
15. At all pertinent times, respondent represented Augustus Puglia in a number of legal business litigation matters.
16. On or about October 9, 2007, respondent issued a bill to Puglia for services performed in a lawsuit entitled Puglia v. Avila. This bill included a charge of $4,396.25 for court reporting services.
17. On of about October 9, 2007, Puglia gave respondent a cheek in the amount of $13,031.95, which included payment for the above-mentioned court reporting services.
18. On or about October 9, 2007, respondent deposited the cheek into a non-trust account.
19. Respondent should have deposited the funds into a trust account because he had been entrusted with those funds by a client to pay the court reporting costs and because respondent had not yet paid the court reporting firm.
20. By depositing the funds into a non-trust account, respondent failed to deposit funds received for the benefit of a client in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import.
21. On November 2, 2007, respondent paid the court reporter $600.00. Respondent paid the remainder of the court reporter’s bill until on or about February 4, 2008.
DISCLOSURE OF PENDING INVESTIGATIONS
The disclosure mentioned in paragraph A.7 was made on September 15, 2011.
SUPPORTING AUTHORITY
See Kelley v. State Bar (1991) 53 Cal.3d 509, 518; In the Matter of Bleecker (Review Dept. 1990) 1 Cal State Bar Ct. Rptr. 113. The State Bar also considered the fact that this matter is being settled at an early stage and that respondent is able to present significant evidence in mitigation.
Case Number(s): 09-O-13160; 10-O-00078
In the Matter of: Mark Epstein
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
The terms of pleading nolo contendere are set forth in the Business and Professions Code and the Rules of Procedures of the State Bar. The applicable provisions are set forth below:
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a notice of disciplinary charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere will be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court will find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based.
Rules of Procedure of the State Bar, rule 5.56. Stipulations to Facts, Conclusions of Law, and Disposition
“(A) Contents. A proposed stipulation to facts, conclusions of law, and disposition must comprise:
[¶] . . . [¶]
(5) a statement that the member either:
(a) admits the truth of the facts
ose facts and misconduct;
[¶] . . . [¶]
(B) Plea of Nolo Contendere. If the member pleads nolo contendere, the stipulation must also show that the member understands that the plea is treated as an admission of the stipulated facts and an admission of culpability.”
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 5.56 of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent: Mark Epstein
Date: 09/27/2011
Case Number(s): 09-O-13160; 10-O-00078
In the Matter of: Mark Epstein
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 Epstein
Date: 09/27/2011
Respondent’s Counsel: Jerome Fishkin
Date: 09/28/2011
Deputy Trial Counsel: Donald Steedman
Date: 09/29/2011
Case Number(s): 09-O-13160; 10-O-00078
In the Matter of: Mark Epstein
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.
1. On page 2 of the stipulation, in paragraph A, (8) which relates to costs, DELETE the membership years, “2012, 2013 and 2014.” And, in their place, INSERT the following membership years: “2013, 2014, and 2015.”
2. On page 4, DELETE the ‘x’ from the box next to paragraph E,(1). The inclusion of a conditional 1.4(c)(ii) requirement is inappropriate, since respondent is only being suspended for one year, stayed, and 60 days actual.
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: Pat McElroy
Date: October 12, 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 San Francisco, on October 12, 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 San Francisco, California, addressed as follows:
JEROME FISHKIN
FIISHKIN & SLATTER LLP
1111 CIVIC DR STE 215
WALNUT CREEK, CA 94596
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
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 October 12, 2011.
Signed by:
GEORGE HUE
Case Administrator
State Bar Court