Case Number(s): 09-O-19445
In the Matter of: Ricardo A.Torres, II, Bar # 164848, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eli D. Morgenstern, Deptuty Trial Counsel
The State Bar of California
Office of the Chief Trial Counsel
1149 South Hill Street
Los Angeles,CA 90015-2299
(213)765-1334
Bar #190560,
Counsel for Respondent: Eric Y. Nishizawa, Law Offices of Eric Y. Nishizawa
14028 Tahiti Way #P-46
Marina Del Rey, CA 90292
(213)489-0910
Bar #140344
Submitted to: Assigned Judge
Filed: June 3, 2011 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 June 7, 1993 .
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. Costs are awarded to the State Bar.
<<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.
9.
ORDER OF INACTIVE ENROLLMENT:
The parties are aware that if this stipulation is approved, the judge will
issue an order of inactive enrollment under Business and Professions Code
section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule
5.111(D)(1).
IN THE MATTER OF: Ricardo Anthony Torres II
CASE NUMBER(S): 09-0-19445
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statute.
Case No. 09-0-109445 (Complainant: Lawrence Prijoles)
Facts:
1. On or about March 28, 2005, Lawrence Prijoles ("Prijoles") and his wife, Rachel Prijoles, were driving in an automobile in San Diego County when they were involved in a head-on traffic collision with John Peter Cannon ("Cannon"). Cannon was driving under the influence of alcohol and caused the collision. The Prijoleses suffered serious personal injuries as a result of the collision.
2. At all relevant times to the stipulated facts herein, Respondent and three other law firms represented the Prijoleses in their personal injury claims arising out of the March 28, 2005, automobile accident.
3. Progressive Management Systems, Access Medical, and Scripps (collectively, the "medical providers") provided medical services to the Prijoleses.
4. On July 24, 2009, following a jury trial, the Prijoleses received a general damage verdict against Cannon in the sum of $523,962.67, and a finding for punitive damages. On July 30, 2009, prior to a trial on the issue, Prijoleses agreed to accept $125,000 in punitive damages against Cannon. In total, the Prijoleses recovered $648,962.67 ($523,962.67 + $125,000).
5. In August 2009, Respondent received a check from Cannon in the sum of $125,000 made payable to "Ricardo A. Tortes, II, CTA, Lawrence Prijoles and Rachel Prijoles." On August 15, 2009, Respondent deposited the check in his client trust account at Union Bank ("CTA").
6. In August 2009, Respondent also received two settlement drafts from Encompass Insurance Company ("Encompass"), Cannon’s insurance company. One draft was in the sum of $302,815, and was made payable to "Ricardo A. Tortes II and Rachel Prijoles." The other draft was in the sum of $221,147.67, and was made payable to "Lawrence Prijoles & Law Office of Ricardo A. Torres, II, Client Trust Account."
7. On August 19, 2009, Respondent deposited the two settlement drafts from Encompass in the
8. In total, Respondent deposited $648,962.97 in the CTA, which he was required to disburse to, and on behalf of, the Prijoleses.
9. As of September 19, 2009, Respondent had disbursed from his CTA a total of $559,746.50 to, and on behalf of, the Prijoleses. This sum included all of the attomey fees and costs which Respondent and the other attorneys were entitled, as well as the expert fees.
10. To date, Respondent has not paid any of the medical providers. Respondent misappropriated the remaining portion of the Prijoleses’ settlement funds, or $89,216.47 ($648,962.97-$559,746.50).
11. To date, Respondent has not provided Prijoles with an accounting of the settlement funds.
Conclusions of Law:
By misappropriating $89,216.47 of the Prijoleses’ settlement funds, Respondent committed an act(s) of moral turpitude, dishonesty, or corruption in wilful violation of Business and Professions Code section 6106.
PENDING PROCEEDINGS.
The disclosure date referred to on page 2, paragraph A(7), was April 13,2011.
AGGRAVATING CIRCUMSTANCES.
1. Prior Record of Discipline
A prior record of discipline is an aggravating circumstance. (Std. 1.2(b)(i).) Respondent has been a member of the State Bar since June 7, 1993, and has been disciplined on two prior occasions.
On December 17, 2001, the California Supreme Court ordered (S 101274), among other things, that Respondent be suspended from the practice of law for one year, stayed, and placed on probation for three years on condition that he be actually suspended for 30 days for misconduct that he committed in four State Bar Initiated matters. Respondent’s misconduct included violating: (i) rule 4-100(A) of the
Rules of Professional Conduct ("rule") by commingling funds and using his CTA to issue checks for his personal use; (ii) Business and Professions Code section 6068(i) ("section") by failing to cooperate in State Bar investigations; and (iii) section 6106 by issuing checks from his client trust account when there were insufficient funds to cover the checks. (Supreme Court Case No. S 101274; State Bar Court Case
Nos 99-O-11923, 99-0-13035, 00-O-11506; 00-0-12741).
On February 1,2011, the State Bar Court filed its Decision in Case No. 09-0-14520, a default disciplinary matter. In the Decision, the State Bar Court recommended, among other things, that Respondent be suspended from the practice of law for a minimum of one year and remain suspended until the following requirements are satisfied: (i) Respondent makes restitution to the complainant, or reimburses the Client Security Fund to the extent of any payment from the fund to the complainant, and furnish satisfactory proof to the State Bar’s Office of Probation; (ii) the State Bar grants a motion to terminate his suspension pursuant to the Rules of Procedure of the State Bar; and (iii) if he remains suspended for two years or more as a result of not satisfying the preceding requirements, Respondent must also provide proof to the Stat Bar Court of his rehabilitation, fitness to practice, and learning and ability in the general law before his suspension will be terminated.
Respondent’s misconduct in Case No. 09-O-14520 included violating: (i) section 6106 by making misrepresentations of fact to his client; (ii) rule 4-.100(B)(3) by not providing his client with an accounting of the fees that the client had paid to him; (iii) rule 3-700(D)(2) by failing to promptly refund any portion of the unearned fee that the client had paid to him upon termination of his employment; (iv) rule 3-700(D)(1) by failing to return the client file to the client; and (v) section 6068(i) by failing to cooperate in a State Bar investigation.
To date, the Supreme Court has not issued its order with respect to State Bar Case No. 09-0-14520.
2. Trust Violation
Respondent’s refusal or inability to account for the Prijoleses’ settlement funds is a serious aggravating circumstance, in light of the fact that Respondent misappropriated $89,216.47 of those funds. (Std. 1.2(b)(iii).)
3. Harm
Respondent’s misappropriation of the Prijoleses’ settlement funds has harmed them. (Std. 1.2(b)(iv).)
MITIGATING CIRCUMSTANCE.
1. Candor and Cooperation
Respondent’s stipulation to the facts, his culpability, and his disbarment is a mitigating
circumstance. (Standard 1.2(e)(v). See also, In the Matter of Spaith (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 511, 521 .)
AUTHORITIES SUPPORTING DISCIPLINE.
1. Standards
Standard 1.7(b) of the Standards for Attorney Sanctions for Professional Misconduct
("Standards") provides that if a member has a record of two prior impositions of discipline, the degree of discipline in the current proceeding shall be disbarment unless the most compelling mitigating circumstances clearly predominate.
Standard 2.2(a) provides that culpability of a member of wilful misappropriation of entrusted funds shall result in disbarment. Only if the amount of funds misappropriated is insignificantly small or if the most compelling mitigating circumstances clearly predominate, shall disbarment not be imposed.
Here, the amount of funds that Respondent misappropriated is not insignificant. The contrary is true. In addition, Respondent has been disciplined on two prior occasions. The mitigating circumstance discussed above is not sufficiently compelling to justify a deviation from the Standards. The parties submit that Respondent’s misconduct, and the aggravating circumstances surrounding the misconduct, warrant disbarment.
2. Case Law
The Supreme Court has repeatedly held that disbarment is the usual discipline for the wilful misappropriation of client funds. (See, Grim v. State Bar (1991) 53 Cal.3d 21; Edwards v. State Bar (1990) 52 Cal.3d 28, 37; Howard v. State Bar (1990) 51 Cal.3d 215,221;. and Chang v. State Bar (1989) 49 Cal.3d 114, 128)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him that as of April 13, 2011, the prosecution costs in this matter are approximately $2,827. 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.
Case Number(s): 09-O-19445
In the Matter of: Ricardo A. Torres II
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: Ricardo A. Torres II and Eric Y. Nishizawa and Eli D. Morgenstern
Respondent: Ricardo A. Torres
Date: May 1, 2011
Respondent’s Counsel: Eric Y. Nishizawa
Date: May 2, 2011
Deputy Trial Counsel: Eli D. Morgenstern
Date: May 9, 2011
Case Number(s): 09-O-19445
In the Matter of: Ricardo A. Torres II
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.
At page 5, restitution should be “$89,216.47” not “$89,211.47”. (See page 7)
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.)
Respondent Ricardo A. Torres II is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herin, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Richard A. Honn
Judge of the State Bar Court
Date: June 3, 2011
(Effective January 1, 2011)
Disbarment Order
[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 3, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
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:
ERIC Y. NISHIZAWA
LAW OFE ERIE NISHIZAWA
14028 TAHITI WAY #P-46
MARINA DEL REY, CA 90292
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Eli D. Morgenstern, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on June 3, 2011.
Signed by:
Cristina Potter
Case Administrator
State Bar Court