Case Number(s): 09-O-16244-DFM, 10-O-00127
In the Matter of: Larry Gene Noe, Bar # 128640, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Katherine Kinsey
Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
213-765-1503
Bar# 183740
Counsel for Respondent: In Pro Per Respondent
Larry Gene Noe
Law Offices of Larry G. Noe
17621 Irvine Blvd Ste 200
Tustin, CA 92780
714-730-7084
Bar # 128640
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
checked. PREVIOUS STIPULATION REJECTED – Previous Stipulation Returned by Supreme Court Order S199840
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 17, 1987.
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 13 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: 2014, 2015. (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.
IN THE MATTER OF: Larry Gene Noe, State Bar No. 128640
STATE BAR COURT CASE NUMBER: 09-O-16244, 10-O-00127
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statues and/or Rules of Professional Conduct.
FACTS:
1. By at least 2008, William L. Cook ("Cook") was an officer for WLC Mortgage Services, Inc., and Arturo J. Ochoa ("Ochoa") was also an officer for WLC Mortgage Services, Inc. ("WLC"). Cook also controlled ConquistAmerica. Both Cook and Ochoa are not attorneys.
2. By December 2008, Cook had hired Respondent to work for ConquistAmerica as its corporate counsel. In addition, Respondent hired W-LC/ConquistAmerica to process loan modifications under Respondent’s supervision.
3. On February 1, 2009, Robert M. Flores ("Flores") met with Jody Chavez ("Chavez"), a loan consultant with ConquistAmerica, regarding obtaining a loan modification because his mortgage was in default. Chavez referred Flores to Respondent for the handling of the loan modification.
4. On February 19, 2009, Respondent sent Chavez to Flores’s home to provide Flores with a copy of Respondent’s retainer agreement.
5. On February 19, 2009, Flores signed Respondent’s retainer agreement employing Respondent for loan modification services. Pursuant to Respondent’s retainer agreement, Respondent may use WLC for loan modification services and Flores agreed to "hereby totally & unconditionally release and forever discharge [WLC] and agreed to indemnify and hold harmless [WLC] ... from and against any and all liability whatsoever due to judgments, claims, damages, expense and costs (including attorney’s fees)...".
6. Respondent did not obtain the informed written consent of Flores prior to agreeing to represent Flores in matter that was in actual conflict with WLC/ConquistAmerica.
7. Pursuant to Respondent’s retainer, Flores agreed to pay $3,000 in legal fees. On February 19, 2009, Flores gave three blank checks to Chavez. Chavez dated one check in the amount of $1,000 for February 27, 2009, and according to Respondent, WLC was to receive $905 of the $1,000. Chavez post-dated the remaining two checks for $1,000 each for March 27, 2009 and April 27, 2009, respectively.
8. On February 27, 2009, ConquistAmerica faxed a signed Borrowers Authorization to Flores’s lender, Washington Mutual, giving Respondent and WLC authorization to negotiate and discuss Flores’s account. In February 2009, Respondent also submitted a loan modification package to Flores’s lender.
9. From March 2, 2009 through March 14, 2009, Flores telephoned ConquistAmerica four or five times seeking the status of his loan modification and was told each time that everything was fine. Flores did not contact Respondent seeking the status of his loan modification. By March 14, 2009, Flores’s home had been scheduled for auction by his lender.
10. On March 14, 2009, Flores received a telephone call from an unknown entity informing him that his home was scheduled for auction and asked if he would be interested in a loan modification. In response, Flores immediately contacted his lender who told him that they had only received an authorization letter from Respondent and confirmed that his house was scheduled to be auctioned on May 12, 2009. Following his conversation with his lender, Flores put a stop payment on the two checks for $1,000 each.
11. On April 3, 2009, although his retainer agreement was with Respondent, Flores called ConquistAmerica terminating his retainer agreement and requesting a refund. A ConquistAmerica employee told Flores that they would give Flores a refund if he would submit a letter releasing ConquistAmerica from liability.
12. On July 8, 2009, Flores sent a letter to ConquistAmerica by fax once again canceling the loan modification and freeing ConquistAmedca "of all responsibility." In the letter, Flores asked that the two checks for $1,000 be returned and asked for a refund. ConquistAmerica received the letter from Flores By on or about July 9, 2009, Respondent became aware that Flores had requested a refund. Respondent returned the two checks that had not been cashed but did not immediately provide a refund.
13. In February 2012, Respondent paid Flores $1,260, reflecting a refund of the $1,000 plus interest.
CONCLUSIONS OF LAW:
14. By entering into an agreement to represent WLC/ConquistAmedca as corporate counsel and then entering into an agreement to represent Flores in his loan modification matter, without the informed written consent of the client, Respondent represented more than one client in a matter in which the interests of the clients actually conflicted in willful violation or Rules of Professional Conduct, rule 3-310(C)(2).
15. By paying a portion of the legal fees paid by Flores to WLC, Respondent shared legal fees with a person who is not a lawyer in willful violation of Rules of Professional Conduct, rule 1-320(A).
16. By failing to promptly refund $1,000 in unearned attorney’s fees to Flores, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(I))(2).
Case No. 10-O-00127 (Complainant: Carlos Nunez)
FACTS:
1. On April 30, 2009, Carlos Nunez ("Nunez") contacted Respondent’s office after hearing his radio advertisement for loan modification services and scheduled a meeting with a Miguel Ciccia ("Ciccia"), a non-attorney employee of Respondent.
2. On May 2, 2009, because it was inconvenient for Nunez to travel to Respondent’s office, Respondent sent Ciccia to Nunez’s home for the meeting. Jose Castro ("Castro") was also present in the meeting because he co-signed the home loan mortgage with Nunez. On May 2, 2009, Ciccia provided Nunez and Castro with a copy of Respondent’s retainer agreement. Pursuant to the retainer agreement, Nunez and Castro employed Respondent’s Loss Mitigation Finn ("LMF") for a loan modification/mitigation submission.
3. Nunez paid Respondent $3,000 in advanced attorney’s fees for loan modification services.
4. On May 18, 2009, LMF faxed the Borrower’s Authorization to SunTrust Mortgage, Castro’s lender giving SunTrust authorization to speak to Respondent’s office. Thereafter, Respondent took no additional steps to obtain a mortgage on behalf of Nunez and Castro.
5. On June 18, 2009, SunTrust Mortgage filed a Notice of Default on the Nunez/Castro property, and on or about July 16, 2009, SunTrust approved the Nunez/Castro property for foreclosure.
6. Thereafter, in August 2009, Castro contacted SunTrust directly regarding obtaining a loan Modification. In or about September 2009, Castro submitted his own loan modification package to SunTrust. On or about December 15, 2009, SunTrust approved Castro for a trial period plan under its Home Affordable Modification Program.
7. Respondent did not provide any services of value to Nunez and Castro and did not earn the advanced attorney’s fees he received.
8. While Respondent was only able to locate documentation indicating Nunez had paid him $2,400 in fees, Respondent agreed to refund the entire $3,000 acknowledging that Nunez had previously given him a blank money order, and Nunez may have not been
properly credited for the funds if the remaining $600 also had been paid with a blank money order.
9: On December 29, 2010, Respondent sent a refund of $900 to Nunez. On April 30, 2012, Respondent refunded $1,500 to Nunez. In July 2012, Respondent refunded the remaining $600 to Nunez and paid Nunez an additional $630 in interest.
CONCLUSIONS OF LAW:
10. By failing to pursue a loan modification on behalf of Nunez and Castro, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
11. By failing to promptly refund the $3,000 in attorney’s fees to Nunez, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was September 4, 2012.
FACTS RE AGGRAVATING CIRCUMSTANCES.
Standard 1.2(b)(iv) Multiple Acts: Respondent’s five acts of misconduct in two client matters evidences multiple acts of misconduct.
Standard 1.2(b)(ii) Harm: Respondent’s delay in refunding unearned fees to both clients harmed his clients.
ADDITIONAL MITIGATING CIRCUMSTANCES
Respondent has cooperated with the State Bar throughout the investigation and these proceedings and has entered into a stipulation of facts and conclusions of law. (ln the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rprt. 41, 50; In the Matter of Downey(Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 151,196.)
Respondent was admitted to the practice of law on June 17, 1987 and has no prior record of discipline. Although the present matter is serious, Respondent’s years of discipline free practice is a significant mitigating factor. (In the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106 fn. 13 [Noting that the Supreme Court has repeatedly applied Standard 1.2(e)(1) in cases involving serious misconduct and citing Rodgers v. State Bar (1989) 48 Cal.3d 300, 317; Cooper v. State Bar (1987) 43 Cal.3d 1016, 1029]:)
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipliner” pursuant to a set of written principles to "better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to standards are to this source).) The primary purposes of disciplinary proceedings and of the sanctions imposed are "the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession." (ln re Morse (1995) 11 Cal.4th 184, 205; std 1.3.)
Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible" in determining level of discipline. (ln re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal.4th 205, 220 and In re Young (1989) 49 Cal.3d 257, 267, fn. 11.) Adherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (ln re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
Respondent admits to committing five acts of professional misconduct. Standard 1.6 (a) requires that where a Respondent acknowledges two or more acts of misconduct, and different sanctions are prescribed by the standards that apply to those acts, the sanction imposed shall be the more or most severe prescribed in the applicable standards.
The Standards that are applicable to Respondent’s misconduct are Standards 2.4(b) and 2.10. Standard 2.4(b) states that culpability of a member for willfully failing to perform services for a client not demonstrating a pattern of misconduct shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client. Standard 2.10 requires reproval or suspension for a violation of any provision of the Rules of Professional Conduct not specified by the Standards, according to the gravity of the offense or the harm, if any, to the victim, with due regard for the purposes of imposing discipline set forth in Standard 1.3. The applicable rule violations under this Standard are Rules of Professional Conduct, rules 1-320(A), 3-310(C)(2) and 3-700(D)(2).
DISCUSSION
Pursuant to the standards, the discipline provided by the applicable standards ranges from reproval to suspension depending on the harm to the client and the extent of the misconduct. In the Flores matter, Respondent entered into an agreement in which he clearly favored one client over another. Specifically, in case no. 09-O-16244, Respondent entered into a retainer agreement with Flores without reviewing the agreement with Flores or disclosing the fact that Respondent was corporate counsel for WLC/ConquistAmerica. The retainer agreement signed by Flores contained language absolving Respondent’s one client, WLC, from liability to another, Flores. This created an actual conflict between Respondent’s two clients. In addition, Respondent split fees with WLC by giving it a portion of the $1,000 paid by Flores. This misconduct, in addition to the aggravating factors, calls for a period of actual suspension. Although the clients were harmed by the delay in receiving their funds, the State Bar has taken into consideration that Respondent made full restitution to the clients with interests, including amounts that were in dispute. Respondent has also has cooperated with the State Bar throughout these proceedings and took responsibility for how the underlying matters were mishandled by his office. Finally, Respondent’s twenty-five years of practice without any prior discipline is a significant factor in imposing actual suspension on the lower end of the spectrum.
In Matthew v. State Bar (1989) 40 Cal.3d 784, the respondent engaged in six acts of misconduct in three client matters. Specifically, the respondent failed to perform and failed to refund unearned fees in three client matters. The Supreme Court found the clients had suffered financial harm due to respondent’s failure to refund unearned fees. The Court ordered respondent suspended for three years, stayed, and that he be actually suspended for sixty days. In the present matter, Respondent engaged in five acts of misconduct in two client matters, somewhat less than in Matthew. Respondent failed to promptly refund unearned fees in two client matters. However, Respondent also split fees with non-attorney/client WLC and entered into a retainer agreement with Flores that contained terms that favored WLC over Flores. That type of misconduct, the Court has noted, creates a risk where profit is elevated above the client’s welfare. (ln the Matter of Bragg (Review Dept. 1997) 3 Cal State Bar Ct. Rptr. 615 citing In re Arnoff (1978) 22 Cal.3d 740, 748, fn. 4.)) While Respondent committed less acts of misconduct than Matthew, the additional acts of misconduct here, at the very least, created a risk to the client’s welfare. However, unlike the respondent in Matthew, Respondent has many years of practice without prior discipline. On balance, and considering the Standards, and the aggravating and mitigating circumstances, 60 days actual suspension serves the purposes of attorney discipline.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of August 8, 2012, the prosecution estimated costs in this matter are $3,689. 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-16244; 10-O-00127
In the Matter of: Larry Gene Noe
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: Larry Gene Noe
Date: September 4, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Katherine Kinsey
Date: September 4, 2012
Case Number(s): 09-O-16244; 10-O-00127
In the Matter of: Larry Gene Noe
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:
Judge of the State Bar Court: Richard A. Honn
Date: September 4, 2012
[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 September 5, 2012, 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:
LARRY G. NOE
LAW OFFICE OF LARRY G NOE
17621 IRVINE BLVD STE 200
TUSTIN, CA 92780
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 September 5, 2012.
Signed by:
Rose Luthi
Case Administrator
State Bar Court