Case Number(s): 09-O-18676-RAP
In the Matter of: Garry Lawrence Jones, Bar # 66344 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Larry DeSha, Bar #117910 ,
Counsel for Respondent: David A. Clare, Bar #44971 ,
Submitted to: Settlement Judge 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):
<<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: (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.
checked. (c) Rules of Professional Conduct/ State Bar Act violations: Rule 3-] ]0(A); Business and Professions Code section 6068(o)(3)
checked. (e) If Respondent has two or more incidents of prior discipline, use space provided below. State Bar Court case # 05-0-04889
Date prior discipline effective: August 22, 2007
Rules of Professional Conduct/State Bar Act violations:
Rule 3-110(A); Business and Professions Code section 6103
Degree of prior discipline: Public Reproval
Case Number(s): 09-O-18676-RAP
In the Matter of: Garry Lawrence Jones
a. Restitution
<<not>> 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.
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than
<<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: GARRY LAWRENCE JONES
CASE NO.: 09-0-18676-RAP
WAIVER OF VARIANCE:
The parties waive any variance between the Notice of Disciplinary Charges filed on February 16, 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. On March 28, 2005, Alfredo Zaldivar ("Zaldivar") hired Respondent for a personal injury case arising from a recent automobile accident. On that same day, Zaldivar signed a lien on the recovery for Hess Rehabilitation Center ("Hess"), who provided treatment for Zaldivar’s injuries arising from the accident.
2. On May 23, 2005, Hess sent Respondent a written notice that Zaldivar’s treatment was complete, and that Hess’s bill was $2,290. Respondent received the notice and the bill.
3. The personal injury case was settled in December 2005 for $3,500.00, and Respondent deposited the settlement check into his client trust account ("CTA") on December 14, 2005. Respondent promptly paid himself $1,233.33 for his fees and costs.
4. On February 28, 2006, Respondent paid $1,100.00 to Zaldivar, which left $1,166.67 in his CTA for payment of the lien held by Hess.
5. Respondent did not notify Hess of the settlement nor that he had received the settlement funds.
6. On December 30, 2008, January 7, 2009, and February 5, 2009, Hess sent written requests to Respondent for a status report on the case. Respondent did not reply to any of the three requests.
7. On February 18, 2009, Zaldivar received a bill from a collection agency for Hess, demanding a total of $3,155.18, consisting of the principal of $2,290.00 and accrued interest of $865.18. Zaldivar called Respondent that same day, and Respondent promised to resolve the lien.
8. On February 27, 2009, Respondent attempted to settle the lien for the $1,166.67 still held in his CTA. The collection agency refused to settle for that amount, but Respondent sent them a check for that amount, which completed disbursement of the settlement funds.
9. The collection agency subsequently contacted Zalvidar and demanded $2,018.51. On May 14, 2009, Zalvidar and the collection agency settled the lien for an additional $1,211.06, which Zalvidar promptly paid.
10. Zalvidar did not directly demand reimbursement from Respondent, but complained to the State Bar. After a written inquiry from the State Bar, Respondent reimbursed Zalvidar for the $1,211.06 on November 9, 2010.
CONCLUSIONS OF LAW:
11. Respondent willfully violated rule 3-110(A) of the California Rules of Professional Conduct by his failure to resolve the medical lien promptly after his receipt of the settlement funds and after his knowledge that a collection agency was seeking payment of the medical lien. This was a reckless and repeated breach of his duties to provide competent legal services to both his client and the lienholder.
DISMISSALS:
The State Bar respectfully requests the Court to dismiss the following alleged violations in the furtherance of justice:
Count Two Alleged Violation B&PC section 6068(m)
Count Three Alleged Violation B&PC section 6068(m)
Count Four Alleged Violation B&PC section 6068(i)
SUPPORTING AUTHORITY:
Standards
Standard 2.4(b) requires a reproval or suspension for willfully failing to perform services in an individual matter not demonstrating a pattern of misconduct, depending upon the extent of the misconduct and the degree of harm to the client.
Case Law
In the Matter of Riley (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91, attorney Riley was found culpable of failure to promptly resolve liens on eight cases. In addition to the eight violations of rule 3-110(A), there were three related violations of section 6068(a) of the Business and Professions Code for failure to comply with statutory medical liens, there was one count for charging an illegal fee, and there were three violations of rule 4-100(B)(4) for failure to pay the liens as instructed by the
clients.
The Review Department found some slight mitigation by the passage of more than five years since the violations. There were aggravating factors of multiple acts of wrongdoing and substantial harm to the clients and the courts, arising from the necessity of lawsuits against Respondent and some of his clients. The Review Department determined that an actual suspension was required to "augment
[Riley’s] understanding of the importance of his duties" to lienholders, and recommended an actual suspension of 90 days, based upon standard 2.2(b) for the three violations of rule 4-100(B)(4). The Review Department found no reason to deviate from the standard, in view of the "sheer number of violations" and the substantial harm to eight clients.
Lesser discipline is appropriate here because Respondent is not culpable of a violation of any part of rule 4-100, he caused minor harm to only one client, and he made full restitution to the client without the necessity of a lawsuit.
PENDING PROCEEDINGS:
The disclosure date referred to on page 2, paragraph A.(7), was May 11,2011.
COSTS:
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of May 10, 2011, the costs in this matter are $3,269.00. 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.
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Case Number(s): 09-O-18676-RAP
In the Matter of: Garry Lawrence Jones
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: Garry Lawrence Jones and David A. Clare and Larry DeSha
Respondent: Garry Lawrence Jones
Date: May 23, 2011
Respondent’s Counsel: David A. Clare
Date: May 23, 2011
Deputy Trial Counsel: Larry DeSha
Date: May 27, 2011
Case Number(s): 09-O-18676-RAP
In the Matter of: Garry Lawrence Jones
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.
On page 4, the "X" in the box at paragraph £.(13) is deleted, and the following language is added under the heading "Additional mitigating circumstances": "See mitigating circumstances described on page 11."
On page 5 of the Stipulation, the "X" in the box at paragraph E.(1) is deleted. On page 6 of the Stipulation, the "X" in the box at paragraph F.(3) is deleted.
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: May 31, 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 June 2, 2011, I deposited a true copy of the following document(s):
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:
STIPULATION RE FACTS, CONCLUSIONS
OF LAW AND DISPOSITION AND ORDER APPROVING
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 June 2, 2011.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court