Case Number(s): 09-O-18768, 10-O-00828, 10-O-03109, 10-O-03145, 10-O-03527, 10-O-06075, 10-O-06211, 10-O-06345, 10-O-06944
In the Matter of: Roger Dale Stacy, Bar # 208500, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Dane C. Dauphine, Supervising Trial Counsel
1149 South Hill St.
Los Angeles, CA 90015-2299
(213) 765-1293
Bar # 121606
Counsel for Respondent: David Cameron Carr,
530 B St., #1410
San Diego, CA 92101
(619) 696-0526
Bar # 124510
Submitted to: Assigned 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 October 28, 2000.
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 19 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.
Respondent has no prior record of discipline since his admission on October 28, 2000.
In late 2009 and early 2010, Respondent took numerous steps to rectify problems that he became aware of in his law office. Respondent recognized that his practice had grown too large, too fast, creating problems with the level of customer service that he wished to provide. Respondent closed his satellite offices in Orange County, Calexico and Chula Vista. He created a new business plan and hired a new office manager. Most of the original staff were terminated, and Respondent replaced them with more able and qualified personnel. Respondent hired attorneys to make court appearances and assist him in the office and stopped using "appearance" attorneys. Respondent instituted new and improved office systems to handle telephone calls, documents, and client concerns. He also instituted an "open door policy where. most clients can drop in during normal working hours to address their cases. Respondent reopened a Los Angeles area office in Downey, California, that is staffed with full time attorneys; Respondent and his office manager spend at least one or two days a week supervising the Downey office. The San Diego office is now fully staffed with more qualified personnel and cases from the Imperial Valley and Chula Vista are serviced by the San Diego office. Respondent has also hired a family law paralegal who maintains the family law calendar and who has assisted Respondent in finishing all but a handful of family law cases. Respondent states that he is unaware of any issues regarding missed hearings or other calendar issues since the Santiago case. Respondent has moved from an active counsel role to a managerial and supervisory role to keep the firm in compliance with rules and provides better client service and communication. The caseload being handled by the firm is approximately 50% of what it was in early 2010. Respondent estimates that 40% of new cases are now coming from client referrals, a strong indication that the changes made in the firm have been successful. Ongoing training and improvements in law office management are Respondent’s main priorities at his time. Respondent seeks constant input from his staff attorneys and clients to further improve operations, including the use of a "suggestion box" where employees can post ideas.
Case Number(s): 09-O-18768, 10-O-00828, 10-O-03109, 10-O-03145, 10-O-03527, 10-O-06075, 10-O-06211, 10-O-06345, 10-O-06944, 10-O-07996, 10-O-09238
In the Matter of: Roger Dale Stacy, Number 208500
a. Restitution
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.
1. Payee: Amalia Oviedo
Principal Amount: $1,000
Interest Accrues From: 06/01/10
2. Payee: Margarita Salguero
Principal Amount: $1,300
Interest Accrues From: 08/01/09
3. Payee: Marciano Ibarra
Principal Amount: $2,774
Interest Accrues From: 01/01/10
4. Payee: Javier Osuna-Ruiz
Principal Amount: $1,099
Interest Accrues From: 05/01/10
5. Payee: Luz Rosas
Principal Amount: $1,000
Interest Accrues From: 04/01/10
Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than six (6) months following the effective date of the Supreme Court order herein.
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 quarterly
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.
Case Number(s): 09-O-18768,10-O-00828,10-O-03109, 10-O-03145,10-O-03527,10-O-06075, 10-O-06211,10-O-06345,10-O-06944, 10-O-07996,10-O-09238
In the Matter of: Roger Dale Stacy, number 208500
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 comprising the stipulation and admits culpability for misconduct; or
(b) pleads nolo contendere to those 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: Roger D. Stacy
Date: 3/28/11
IN THE MATTER OF: Roger Dale Stacy, number 208500
CASE NUMBER(S): 09-O-18768, et al.
FACTS AND CONCLUSIONS OF LAW.
Respondent pleads nolo contendere to the following facts and violations. Respondent completely understands that the plea for nolo contendere shall be considered the same as an admission of the stipulated facts and of his culpability of the statutes and/or Rules of Professional Conduct specified herein.
Case No. 09-O-18768 (Complainant: Antonio Vargas Ramirez)
FACTS:
1. On January 14, 2009, Antonio Vargas Ramirez ("Ramirez") hired Respondent to file and handle to conclusion a bankruptcy petition. Ramirez agreed to pay a fee of $1,099 and a filing fee of $299 for filing of the petition and representation at the creditors’ meeting as well as other services. Between approximately January 14, 2009, and May 11, 2009, inclusive, Ramirez paid Respondent sums totaling approximately $1,400.
2. On August 3, 2009, Respondent filed a bankruptcy petition on behalf of Ramirez. A creditors’ meeting was scheduled for September 16, 2009. Respondent received due notice of the meeting.
3. On September 16, 2009, Respondent did not attend the creditors’ meeting. He made attempts on short notice to get coverage for that meeting with an attorney appearance service but was unable to do so. As a result, the creditors’ meeting was rescheduled to September 25, 2009. Respondent was served by mail with notice of the continued hearing date.
4. On September 25, 2009, Respondent did not appear for the creditors’ meeting. At that time, Ramirez represented himself.
5. On or about December 17, 2009, Respondent filed a reaffirmation agreement on behalf of Ramirez in his bankruptcy case. On April 6, 2010, Ramirez received a discharge of debts by the bankruptcy court.
CONCLUSIONS OF LAW:
6. By not attending the creditors’ meeting on or about September 16, 2009, and September 25, 2009, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
Case No. 10-O-00828 (Complainant: Blanca Martinez)
FACTS:
7. On or about January 5, 2009, Blanca Martinez ("Blanca") hired Respondent to file and handle to conclusion a bankruptcy petition on her behalf. During the month of January 2009, Blanca paid Respondent advanced attorney fees totaling approximately $1,400.
8. On or about June 24, 2009, Respondent filed a bankruptcy petition on behalf of Blanca. The court scheduled the creditors’ meeting for July 22, 2009. Respondent received notice of the hearing. Respondent did not inform Blanca of the July 22, 2009, creditors’ meeting.
9. On or about July 22, 2009, Respondent did not appear at the creditors’ meeting in Ramirez’s bankruptcy case. As a result, the heating was rescheduled to September 1, 2009. Respondent received notice of the hearing.
10. On or about September 1, 2009, shortly before the hearing was scheduled to begin, Respondent’s office staff member informed Blanca that Respondent would not be appearing at the hearing and advised Blanca that she may appear without an attorney.
11. Respondent did not appear at the September 1, 2009, creditors’ meeting. No other attorney appeared on behalf of Blanca at the hearing.
12. On October 31, 2009, Blanca received a discharge of debts.
CONCLUSIONS OF LAW:
13. By not appearing at the July 22, 2009, and September 1, 2009, hearings, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
Case No. 10-O-03109 (Complainant: Juan B. Martinez)
FACTS:
14. On or about May 22, 2009, Juan B. Martinez ("Juan") went to Respondent’s law office in the City of Orange and hired Respondent to file and pursue a bankruptcy petition on his behalf. Respondent charged Juan $1,099 as attorney’s fees and $299 as filing fees. Respondent agreed to accept payment in installments. Between approximately May 22, 2009, and July 6, 2009, Juan made two installments of advanced attorney’s fees, totaling approximately $800.
15. Thereafter, Respondent closed his law office in Orange but did not inform Juan where Respondent could be reached. In or about August 2009, Juan discovered that Respondent had vacated his law office, and Juan could not reach Respondent by telephone or by any other means.
16. Juan later discovered Respondent’s law office in San Diego, and he contacted Respondent to request a refund of fees. On or about April 14, 2010, Respondent paid Juan $800, as a refund of the advanced attorney’s fees. On that date, Juan met with a member of Respondent’s staff who requested that Juan sign a written release of liability in consideration of the refund of unearned attorney’s fees.
Respondent’s staff did not inform Juan, orally or in writing, that he may seek another lawyer’s advice about the release and give Juan an opportunity to seek that advice.
CONCLUSIONS OF LAW:
17. By not informing Juan that Respondent had closed his law office in Orange and could be reached at his San Diego office, Respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code, section 6068(m).
18. By obtaining a release of liability from Juan without advising him in writing to seek independent counsel and giving him time to do so, Respondent settled a potential claim for Respondent’s liability to the client for Respondent’s professional malpractice without informing the client in writing that the client may seek the advice of an independent lawyer of the client’s choice regarding the settlement and giving the client a reasonable opportunity to seek that advice in willful violation of Rules of Professional Conduct, rule 3-400(B).
Case No. 10-O-03145 (Complainant: Amelia Murillo)
FACTS:
19. On or about May 22, 2009, Amelia Murillo ("Murillo") hired Respondent to file and pursue a bankruptcy petition on her behalf. Respondent charged Murillo $1,099 as attorney’s fees and $299 as filing fees. Respondent agreed to accept payment in installments. Between approximately May 22, 2009, and July 6, 2009, Murillo made two installments of advanced attorney’s fees, totaling approximately $800.
20. Thereafter, Respondent closed his law office in Orange but did not inform Murillo where Respondent could be reached. In or about August 2009, Murillo discovered that Respondent had vacated his law office, and Murillo could not reach Respondent by telephone or by any other means.
21. Murillo later discovered Respondent’s law office in San Diego, and she contacted Respondent to request a refund of fees. On or about April 14, 2010, Respondent paid Murillo $800 as a refund of the advanced attorney’s fees. On that date, Murillo met with a member of Respondent’s staff who requested that Murillo sign a written release of liability in consideration of the refund of unearned attorney’s fees. Respondent’s staff did not inform Murillo, orally or in writing, that she may seek another lawyer’s advice about the release and give Murillo an opportunity to seek that advice.
CONCLUSIONS OF LAW:
22. By not informing Murillo that Respondent had closed his law office in Orange and could be reached at his San Diego office, Respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code, section 6068(m).
23. By obtaining a release of liability from Murillo without advising her in writing to seek independent counsel and giving her time to do so, Respondent settled a claim or potential claim for Respondent’s liability to the client for Respondent’s professional malpractice, without informing the client in writing that the client may seek the advice of an independent lawyer of the client’s choice
regarding the settlement and giving the client a reasonable opportunity to seek that advice willful violation of Rules of Professional Conduct, rule 3-400(B).
Case No. 10-O-03527 (Complainant: Amalia Oviedo)
FACTS:
24. On July 3, 2007, Amalia Oviedo ("Oviedo") went to Respondent’s office and employed Respondent to prepare a petition for dissolution of marriage for her. This visit to Respondent’s office was the only time that Oviedo ever met with Respondent. At that time, she paid Respondent $500 in cash towards a fee of $1,000 for his legal services and received a receipt. Oviedo, who is not fluent in English, informed Respondent’s staff that she did not want to represent herself in court. Nevertheless, Respondent’s staff had her sign a fee agreement written in English which she could not read that stated
that the attorney’s services would not include litigation.
25. On August 25, 2007, Oviedo returned to Respondent’s office and paid a further $500 in cash for Respondent’s services and received a receipt. At that time, Respondent’s staff presented her with a petition for marital dissolution and related documents which were prepared in English for her to represent herself. Oviedo signed the petition, which she could not read, and Respondent’s staff told her they would file the petition. At no time did Respondent or his staff file a petition for dissolution on
behalf of Oviedo in court.
26. During the period from August 2007 to March 2009, Oviedo telephoned Respondent’s office repeatedly and left messages asking that someone return her call. No one returned her call. During that time period, Oviedo also visited Respondent’s office approximately 10 times inquiring into the status of her case, and each time she was told that Respondent was unavailable. When Oviedo requested an appointment, Respondent’s staff took her name and number and told her someone would call to schedule the appointment. No one called Oviedo to schedule an appointment.
27. On February 25, 2009, Oviedo’s husband filed a petition for dissolution of marriage in the San Diego County Superior Court, case no. D514507. After Oviedo was served with the petition, she went to Respondent’s office in March 2009 and met with his staff. Respondent’s staff told Oviedo that Respondent would handle it, and she left the petition with Respondent’s office.
28. Thereafter, Oviedo did not hear from Respondent. In January 2010, she returned to Respondent’s office and found that it was closed. She then located a new office address for Respondent. In June 2010, she sent Respondent a letter requesting a refund of the fees paid to him. Respondent has not refunded any of the $1,000 in fees received from Oviedo.
CONCLUSIONS OF LAW:
29. By not responding to Oviedo’s inquiries about her case, Respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code, section 6068(m).
30. By failing to supervise his staff who informed Oviedo that Respondent would file her petition for dissolution and not filing the petition for dissolution on behalf of Oviedo, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
Case No. 10-O-06075 (Investigation re the Santiago Case)
FACTS:
31. In April 2009, Respondent filed a marital dissolution petition on behalf of Trinidad B. Santiago ("Santiago") in the San Diego County Superior Court, case no. D515404. At all pertinent times herein, Respondent was the attorney of record for Santiago.
32. The court scheduled a Case Management Conference ("CMC") in Santiago’s case for December 21, 2009. Respondent received due notice of the CMC. Respondent did not appear at the CMC. As a result, the court rescheduled the CMC to February 8, 2010. The court also issued an Order to Show Cause (OSC) requiring Respondent to appear and show why sanctions should not be imposed for his failure to appear at the CMC on December 21, 2009. Respondent received due notice of the OSC.
33. On or about February 8, 2010, Respondent informed the court that he had hired an attorney appearance service to make a special appearance for him at the CMC on December 21, 2009. The court ordered Respondent to file by May 3, 2010, a written declaration attesting that he hired an attorney appearance service to make the appearance at the CMC. The court also scheduled another hearing on May 3, 2010. Respondent received due notice of the hearing and of the order.
34. On May 3, 2010, Respondent did not appear in court for the OSC. Also, Respondent did not file the declaration as ordered by the court. As a result, the court ordered that Respondent pay sanctions of $1,000 to the court and indicated that the sanctions would be reported to the State Bar. Respondent received due notice of the sanctions.
35. Respondent did not report the sanctions to the State Bar. Respondent erroneously believed that the reporting by the court was sufficient to meet all reporting obligations.
36. Respondent did not pay the sanctions promptly. On October 19, 2010, Respondent paid the sanctions to the court.
CONCLUSIONS OF LAW:
37. By not filing the court-ordered declaration, not appearing for the OSC, and not paying the sanctions promptly as ordered by the court, Respondent willfully disobeyed or violated an order of the court requiring him to do or forbear an act connected with or in the course of Respondent’s profession which he ought in good faith to do or forbear in willful violation of Business and Professions Code, section 6103.
38. By not reporting the sanctions imposed on him by the court on May 3, 2010, Respondent failed to report to the agency charged with attorney discipline, in writing, within 30 days of the time Respondent had knowledge of the imposition of any judicial sanctions against Respondent in willful violation of Business and Professions Code, section 6068(0)(3).
Case No. 10-O-06211 (Complainant: Margarita Salguero)
FACTS:
39. On January 17, 2009, Margarita Salguero ("Salguero") employed Respondent to prepare and file a bankruptcy petition for her. At that time, Salguero agreed to pay Respondent $1,099 in fees prior to the filing of the petition and a filing fee of $299. On that date, she paid Respondent $300 towards the fees.
40. During the months from February through June 2009, Salguero paid Respondent additional sums totaling $1,000 in advanced fees. In July 2009, Salguero went to Respondent’s office to make a final payment and discovered that the office was closed.
41. At no time did Respondent provide any legal services to Salguero. Respondent did not earn the fees advanced by Salguero. Respondent has not refunded the fees to Salguero.
CONCLUSIONS OF LAW:
42. By not informing Salguero that he had moved his office and where he could be reached, Respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code, section 6068(m).
43. By not refunding the $1,300 in unearned fees to Salguero after moving his office without informing her, 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).
Case No. 10-O-06345 (Complainant: Marciano Ibarra)
FACTS:
44. On December 4, 2009, Marciano Ybarra ("Ybarra") employed Respondent to file a bankruptcy petition on his behalf. Ybarra spoke to Respondent’s staff and did not meet with Respondent. At that time, Ybarra paid Respondent $2,500 in advanced fees for the legal services. Ybarra also paid Respondent $274 as advanced costs. Respondent deposited all funds received from Ybarra in his business account and did not deposit the advanced costs in a trust account.
45. Later in the month of December 2009, Ybarra went to Respondent’s office and informed Respondent’s staff that he did not want to proceed with the bankruptcy petition. Ybarra requested a refund of the fees, but Respondent’s staff told him that the fees were non-refundable.
46. At no time did Respondent provide any legal services to Ybarra. Respondent did not earn the fees advanced by Ybarra. Respondent has not refunded the fees to Ybarra.
CONCLUSIONS OF LAW:
47. By depositing the $274 in advanced costs received from Ybarra in his business account and not in a trust account, Respondent failed to deposit funds received for the benefit of a client in a trust account in willful violation of Rules of Professional Conduct, rule 4-100(A).
48. By not refunding the $2,500 to Ybarra in December 2009, 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).
Case No. 10-O-06944 (Complainant: Javier Osuna-Ruiz)
FACTS:
49. On July 24, 2009, Javier Osuna-Ruiz ("Osuna-Ruiz") visited Respondent’s office seeking legal representation in filing a bankruptcy petition. Osuna-Ruiz spoke to Respondent’s staff and did not meet with Respondent. Respondent’s staff informed Osuna-Ruiz that he qualified for a Chapter 7 bankruptcy and advised Osuna-Ruiz that he must complete a credit counseling course and bring certain documents needed to complete the petition.
50. On August 21, 2009, Osuna-Ruiz completed a credit counseling course. On August 22, 2009, Osuna-Ruiz returned to Respondent’s office. Again, he did not meet with Respondent, and he was told by Respondent’s staff that Respondent was in a meeting. At that time, Osuna-Ruiz signed a fee agreement and paid Respondent $1,099 in advanced fees for the legal services. He also left with Respondent’s staff the documents he had been instructed to bring, including the certificate of completion of credit counseling.
51. On September 10, 2009, Osuna-Ruiz returned to Respondent’s office to sign the bankruptcy petition. Again, Respondent did not meet with Osuna-Ruiz who signed the petition in Respondent’s office.
52. During the period from September 2009 through March 2010, Osuna-Ruiz called Respondent’s office on multiple occasions asking for the status of his case or to schedule an appointment, but Respondent never returned his call. During that period, Osuna-Ruiz also visited Respondent’s office on multiple dates, but he was always told that Respondent was not available.
53. On March 19, 2010, Respondent filed Osuna-Ruiz’s bankruptcy petition by electronic filing, but he failed to file the certificate of completion of credit counseling. On March 23, 2010, the court mailed to Respondent’s office a notice that the certificate of counseling was due.
54. On March 25, 2010, Osuna-Ruiz received a notice from the bankruptcy court that a meeting of creditors was scheduled for April 21, 2010. During the week of April 5, 2010, Respondent’s staff called Osuna-Ruiz and scheduled an appointment. On April 12, 2010, Osuna-Ruiz met with Respondent who advised him not to attend the creditors’ meeting, stating that a document had not been filed with the court and that he was going to file a motion to vacate. Respondent did not appear at the creditors’ meeting in Osuna-Ruiz’s case or file any motion regarding the matter.
55. On April 7, 2010, the bankruptcy court ordered that Osuna-Ruiz’s petition be dismissed without prejudice for failure to file the certificate of counseling. On or about April 19, 2010, Respondent filed the certificate of counseling. Thereafter, he took no further action to vacate the dismissal of the case.
56. Respondent did not provide any services of value to Osuna-Ruiz and did not earn the fees received from him. Respondent has not refunded any of the $1,099 in unearned fees to Osuna-Ruiz.
CONCLUSIONS OF LAW:
57. By not responding to Osuna-Ruiz’s inquiries about his case, Respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code, section 6068(m).
58. By not filing Osuna-Ruiz’s bankruptcy petition promptly and with the certificate of counseling and not taking action to get the case reinstated, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
59. By not refunding the $1,099 to Osuna-Ruiz after the dismissal of his case, 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).
Case No. 10-O-07996 (Investigation re NSF checks)
FACTS:
60. On or about June 18, 2010, check no. 1021 payable to Respondent in the sum of $1,158 and drawn upon Respondent’s client trust account at Bank of America was presented for payment when the balance in the account was approximately $191. The bank returned the check due to insufficient funds.
61. On or about July 6, 2010, check no. 1024 payable to USBC in the sum of $6,403 and drawn upon Respondent’s client trust account at Bank of America was presented for payment when the balance in the account was approximately $4,888. The bank returned the check due to insufficient funds.
62. Respondent did not maintain the required recordkeeping for the trust account and reconcile the account on a monthly basis. His failure to do so resulted in the issuance of checks drawn against insufficient funds.
CONCLUSIONS OF LAW:
63. By not keeping records for his trust account and reconcile the account on a monthly basis, Respondent failed to maintain, and to preserve for five years from final appropriate disposition, complete records of all client funds coming into Respondent’s possession in willful violation of Rules of Professional Conduct, rule 4-100(B)(3).
Case No. 10-O-09238 (Complainant: Luz Rosas)
FACTS:
64. On February 5, 2010, Luz Rosas ("Rosas") employed Respondent at an office in Calexico, California, to prepare and file a bankruptcy petition on her behalf, and she signed a fee agreement agreeing to pay a fee of $1,000 plus a filing fee of $299 for Respondent’s legal services. Rosas did not meet with Respondent and communicated only with his staff. At that time, Rosas paid Respondent $500 in advanced fees.
65. On February 8, 2010, Rosas paid Respondent an additional $500 in advanced fees. Again, she did not meet with Respondent and communicated only with his staff. In March 2010, Rosas learned that Respondent’s Calexico office was closed.
66. Respondent did not provide any legal services to Rosas or inform her of the closing of his office or where he could be located. Respondent did not earn any of the $1,000 in advanced fees. Respondent has not refunded any of the $1,000 in fees to Rosas.
CONCLUSIONS OF LAW:
67. By not taking action to complete Rosas’s bankruptcy petition, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules Professional Conduct, rule 3-110(A).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A (7), was March 8, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
According to Standard 2.4 of the Standards for Attorney Discipline, the appropriate discipline for culpability of a member of a pattern of willfully failing to perform services demonstrating the member’s abandonment of the causes in which he or she was retained shall result in disbarment. Such misconduct in an individual matter or in matters not demonstrating a pattern shall result in reproval or suspension.
In cases involving a pattern of misconduct not primarily intentional in nature, and in which the attorney has no prior record of discipline, suspension and not disbarment is most likely to be deemed adequate to protect the public. See Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, where the Supreme Court imposed a one-year actual suspension for 14 matters of misconduct mitigated by several years of
trouble-free practice following a series of tragic personal and health calamities.
Here, Respondent’s misconduct involved ten client matters as well failure to maintain proper trust account records. The parties agree that the stipulated disposition is within the discipline called for by the standards.
Case Number(s): 09-O-18768, 10-O-00828, 10-O-03109, 10-O-03145, 10-O-03527, 10-O-06075, 10-O-06211, 10-O-06345, 10-O-06944, 10-O-07996, 10-O-09238
In the Matter of: Roger Dale Stacy, number 208500
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: Roger D. Stacy
Date: 3-16-11
Respondent’s Counsel: David C. Carr
Date: 3-16-11
Deputy Trial Counsel: Dane C. Dauphine
Date: 3-21-11
Case Number(s): 09-O-18768, 10-O-00828, 10-O-03109, 10-O-03145, 10-O-03527, 10-O-06075, 10-O-06211, 10-O-06345, 10-O-06944, 10-O-07996, 10-O-09238
In the Matter of: Roger Dale Stacy Number 208500
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: Donald F. Miles
Date: 4/12/11
[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 April 13, 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 C. CARR, ESQ.
LAW OFFICE OF DAVID CAMERON CARR
530 B STREET SUITE 1410
SAN DIEGO, CALIFORNIA 92101
<<not>> checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DANE DAUPHINE, ESQ., Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on April 13, 2011.
Signed by:
Rose Luthi
Case Administrator
State Bar Court