Case Number(s): 09-O-13295
In the Matter of: Martin Edgar Keller, Bar # 104159, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Katherine Kinsey, Deputy Trial Counsel
State Bar of California
1149 S. Hill Street
Los Angeles, CA 90015
213-765-1503
Bar #183740,
Counsel for Respondent: In Pro Per Respondent
Martin Edgar Keller
323 W. Court St., Ste 302
San Bernardino, CA 92401
909-889-2681
Bar# 104159
Submitted to: Settlement Judge.
<<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 November 22, 1982.
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.
<<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 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.
Respondent has no prior record of discipline over 28 years of practice. Respondent displayed candor and cooperation with the State Bar during the disciplinary proceedings.
IN THE MATTER OF: Martin Edgar Keller
CASE NUMBER(S): 09-0-13295
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. 09-0-13295 (Complainant: Linda L. Way)
FACTS:
1. In June 2001, Linda L. Way ("Way") purchased a mobile home from Mapleridge Realty ("Mapleridge"). The property had roof problems, and Way was required to repair the roof to secure a loan. Way’s real estate agent, Patricia Wolpak ("Wolpak"), recommended roofer Andy Dalton ("Dalton"). Way hired Dalton to perform the repairs to her roof. Six months after moving into the mobile home, the unit suffered extensive water damage from rain coming through the roof.
2. In April 2002, Way employed Respondent on a contingency fee basis to represent her in claims against the manufacturer, real estate agent and/or the roofing contractor for the faulty repairs to the roof of her mobile home.
3. On May 7, 2003, Way telephoned Respondent regarding her case. On May 7, 2003,
Respondent told Way he would file a lawsuit on her behalf by the end of the week.
4. On June 3, 2003, Way called Respondent to request an update on her case. On June 3, 2003,
Respondent told Way he would file a lawsuit against Dalton at the end of the week. Way suggested to Respondent that they also include Maplewood as a defendant in the lawsuit.
5. On June 23, 2003, Respondent informed Way that he had drafted a complaint against Dalton and Mapleridge and was hoping to file the complaint within a week.
6. At no time did Respondent file a civil complaint on Way’s behalf or otherwise pursue any legal action on her behalf.
7. On August 14, 2003, Respondent informed Way that he was in the process of serving the defendants. At the time Respondent made this representation to Way, he knew that he had not filed a civil complaint on Way’s behalf and would not be serving a complaint.
8. On November 17, 2003, Way spoke to Respondent who told her he had served Wolpak on November 10, 2003 and had to wait thirty days for a response. At the time Respondent made this representation to Way, he knew that he had not filed a civil complaint and had not served Wolpak.
9. On December 15, 2003, Respondent informed Way that Mapleridge had been improperly served, but he now had the correct name and address of the legal agent and would re-serve Mapleridge. At the time Respondent made this representation to Way, he knew that he had not filed a civil action and had not tried to serve Mapleridge.
10. From in or about 2004 through in or about 2006, Respondent continued to misrepresent to Way that she had a pending legal action.
11. In July 2008, Respondent told Way that he had received a settlement offer of $35,000 in her case but said he would be holding out for more money. At the time Respondent made this representation to Way, he knew that a $35,000 settlement offer had not been made.
12. In November 2008, Respondent told Way that he had received a $90,000 settlement offer from Dalton’s insurance company, and that the settlement funds should be received by December 2008. At the time Respondent made this representation to Way, he knew that Dalton’s insurance company had not made a settlement offer for $90,000 or for any amount.
13. In December 2008, Way called Respondent for a status update. Respondent told Way that nothing would happen on her matter until after the holidays.
14. In February 2009, Respondent informed Way that he would fax a release for her signature and that Way would have her settlement funds two to three weeks later.
15. On March 23, 2009, Way wrote to Respondent expressing her frustration at the length of time it was taking Respondent to resolve the issues with her leaking roof. In the letter, Way the case number of her lawsuit.
16. By April 2009, Way had still not received settlement funds, a settlement release, copies of the inspection reports and had not received the case number of her lawsuit. As a result, Way employed new counsel, Brian Brandt ("Brandt").
17. In April 2009, Brandt contacted Respondent and requested Way’s file. After reviewing the file, Brandt discovered that Respondent had not filed a lawsuit on Way’s behalf and the statute of limitation had run.
18. On May 21, 2009, Brandt filed a legal malpractice action against Respondent on Way’s behalf. In or about October 2009, Respondent and Way settled the legal malpractice action and has paid the full settlement to Way.
CONCLUSIONS OF LAW:
19. By failing to file and pursue a civil action on Way’s behalf, Respondent intentionally,
recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
20. By making misrepresentations to Way that a lawsuit had been filed and served and by making misrepresentations to Way that the settlement monies had been negotiated and would be sent to her, Respondent committed an act involving moral turpitude or dishonesty in willful violation of Business and Professions Code, section 6106.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was April 14, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.3 states that culpability of a member of an act of moral turpitude or intentional dishonesty toward a court, client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of misconduct is harmed or misled.
In the Matter of Johnston (1997) 3 Cal. State Bar Ct. Rptr. 585, the respondent failed to perform on a client’s behalf, failed to communicate and misrepresented the status of the case to the client. The respondent also failed to cooperate with the State Bar, and the matter proceeded by default. The Review Department found the respondent culpable of moral turpitude in violation of Business and Professions Code section 6106 based on his misrepresentations to the client. The Review Department also found that the respondent violated Rules of Professional Conduct, rule 3-110(A) and Business and Professions Code sections 6068(m) and 6068(i). In Johnston, the respondent had no prior record of discipline after 12 years of practice.
The Review Department in Johnston recommended that the respondent be suspended for one year, that execution of the suspension be stayed and that he be placed on probation for two years subject to conditions, including actual suspension for the first 60 days of probation.
Case Number(s): 09-O-13295
In the Matter of: Martin Edgar Keller
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.
<<not>> 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:
Richard A. Platel
Judge of the State Bar Court
Date: May 2, 2011
Case Number(s): 09-O-13295
In the Matter of: Martin Edgar Keller
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.
<<not>> 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:
Richard A. Platel
Judge of the State Bar Court
Date: May 2, 2011
Case Number(s): 09-O-13295
In the Matter of: Martin Edgar Keller
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: Martin Edgar Keller and Katherine Kinsey
Respondent: Martin Edgar Keller
Date: April 14, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Katherine Kinsey
Date: April 14, 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 4, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND RDER 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:
MARTIN EDGAR KELLER
KELLER & HOLT
323 WCOURT ST STE 302
SAN BERNARDINO CA 92401
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
KATHERINE KINSEY, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on May 4, 2011.
Signed by:
Katherine Kinsey
State Bar Court