Case Number(s): 10-C-08846
In the Matter of: Albert R. Zarate, Bar # 165863 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Cindy McCaughey, Deputy Trial Counsel, 1149 S. Hill Street, Los Angeles, CA 90015, 213/765-1491, Bar # 222126
Counsel for Respondent: James I. Ham, Esq., Pansky Markle Ham LLP, 1010 Sycamore Ave., Suite 308, South Pasadena, CA 91030, Bar # 100849
Submitted to: Assigned Judge, State Bar Court Clerk’s Office Los Angeles
Filed: March 10, 2011
<<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 13, 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 11 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. (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.
Attachment language (if any):
IN THE MATTER OF: Albert R. Zarate, State Bar No.: 165863
STATE BAR COURT CASE NUMBER: 10-C-08846
Respondent Albert R. Zarate admits that the following facts are true and that he is culpable of violation of the Business & Professions Code as follows:
FACTS
1. On or about August 23; 2010, in the Fairfax County General District Court, case number GC 10141697, Respondent entered a plea of guilty and was convicted of violating Virginia Crime section 18.2-96 (petit larceny), one count, a misdemeanor which involves moral turpitude.
2. In the underlying matter, on or about July 19, 2010, after Respondent purchased a men’s necktie from Nordstrom’s Department Store in Tysons Corner Center, VA, Respondent concealed several other neckties within his shopping bag and left the store without paying for the neckties.
3. The parties acknowledge that the elements of the offense charged in Fairfax County General District Court, would constitute a violation of California Penal Code section 490.5 (shoplifting).
4. On or about August 23, 2010, in the Fairfax County General District Court, Respondent was sentenced to one year probation and 360 days in jail with 350 days of that term suspended. Respondent was additionally ordered to pay various fines and fees and to stay out of Nordstrom’s.
5. On or about December 22, 2010 in State Bar Court Case no. 10-C-08846, the Review Department issued an order imposing interim suspension from the practice of law effective January 5, 2010. Respondent was also ordered to comply with rule 9.20, California Rules of Court. Respondent has abstained from the practice of law during the interim suspension and has complied with Rule 9.20.
CONCLUSIONS OF LAW
1. By being convicted of violating Virginia Crime Code section 18.2-96 (petit larceny), a misdemeanor, Respondent committed an act involving moral turpitude, dishonesty or corruption in violation of California Business and Professions Code section 6106.
PENDING PROCEEDINGS
The disclosure date referred to on page 2, paragraph A(7), is not applicable
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of February 16, 2011, the prosecution costs in this matter are $1,636.00 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.
ADDITIONAL MITIGATING CIRCUMSTANCES
Under Standard 1.2(e)(i), Respondent has no prior record of discipline since his admission to the State Bar of California on October 13, 1993.
Under Standard 1.2(e)(iv) Respondent was experiencing extreme emotional difficulties due to a marital separation at the time of the act of professional misconduct, which Dr. Mahteme Selassie of Bethesda, MD establishes the marital situation was directly responsible for the misconduct and Dr. Selassie has provided that because Respondent immediately sought, and is actively participating in treatment, Respondent no longer suffers from such difficulties.
Under Standard 1.2(e)(v)Respondent demonstrated spontaneous candor and cooperation displayed to the State Bar during disciplinary investigation and proceedings by immediately self-reporting the incident in detail, accepting full responsibility. Moreover, Respondent entered his guilty plea in the Fairfax County General District Court shortly after charges were filed.
Under Standard 1.2(e)(vi) Respondent has provided letters of good character from a number of colleagues who are aware of his misconduct and nonetheless attest to his good character.
Under Standard 1.2(e)(vi) Respondent has promptly and spontaneously demonstrated remorse for his misconduct by voluntarily performing approximately 40 hours of non-court ordered community service, seeking psychological counseling and reporting the misconduct to his current employer, a federal government agency. Because Respondent’s employment requires a national security clearance, Respondent is being monitored by his employer. Respondent has been granted conditional security clearance, and Respondent is required to comply with certain conditions, including psychological counseling, reporting any changes in his mental health, and reporting any future incidents which could raise a national security concern. Respondent has been in compliance with these conditions.
AUTHORITIES SUPPORTING DISCIPLINE
Pursuant to Standard 1.3:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct 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. Rehabilitation of a member is a permissible object of a sanction imposed upon the member but only if the imposition of rehabilitative sanctions is consistent with the above-stated primary purposes of sanctions for professional misconduct.
Pursuant to Standard 3.2:
Final conviction of a member of a crime which involves moral turpitude, either inherently or in the facts and circumstances surrounding the crime’s commission shall result in disbarment. Only if the most compelling mitigating circumstances clearly predominate, shall disbarment not be imposed. In those latter cases, the discipline shall not be less than a two-year actual suspension, prospective to any interim suspension imposed, irrespective of mitigating circumstances.
The Supreme Court has recognized that the Standards provide a guideline and do not mandate the discipline to be imposed. (Boehme v. State Bar .(1988) 47 Cal.3d 448, 454; Greenbaum v. State Bar (1987) 43 Cal.3d 543, 550.) The Court has also held that each case must be resolved on its own particular facts and not by application of rigid standards. ( In re Nadrich (1988) 44 Cal.3d 271,278.) Moreover, the Supreme Court has rejected imposition of the two-year minimum. (In re Young (1989) 49 Cal.3d 257, 268-70).
After finding aggravating factors of fraud on the bail bondsman surrounding the conviction for harboring or aiding a principal in a felony involving moral turpitude (Pen.Code, § 32), the Court in In re Young, supra, 49 Cal.3d 257 imposed a five-year suspension, stayed, and a four-year actual suspension, with credit for the three years Young had spent on interim suspension.
In the Matter of DeMassa (1991) 1 Cal. State Bar Ct. Rptr 737, the Review Department found a one-year stayed suspension with sixty days actual suspension appropriate discipline when the Respondent was convicted of a misdemeanor (after several felony charges were dismissed) involving moral turpitude but had no prior discipline, numerous character references and in the 12 years between the conviction and imposition of discipline, Respondent demonstrated a high degree of good character.
The DeMassa court pointed out:
In several cases where original proceedings were brought resulting in a finding of a single instance of giving knowingly false testimony or making a knowingly false statement, the Court, upon consideration of substantial mitigating evidence limited discipline to a reproval. (citing, Mushrush v. State Bar (1976) 17 Cal.3d 487 [rejecting a one year recommended period of actual suspension and ordering public reproval for one instance of false statements in obtaining a court order confirming a bankruptcy sale];Di Sabatino v. State Bar(1980) 27 Cal.3d 159 [three justices dissenting in favor of no discipline]; Sullins v. State Bar (1975) 15 Cal.3d 609[attorney publicly reproved for non disclosure of material information, no prior record of discipline in his 45 years as an attorney]; Mosesian v. State Bar(1972) 8 Cal.3d 60 [local committee’s recommendation of three months suspension reduced to reprimand].).
A two-year stayed suspension with sixty days actual
suspension is the appropriate discipline here. Respondent has been a member
since 1993 with no prior record of discipline. The misconduct which led to the
criminal conviction was outside the practice of law with slight harm to the
public. Respondent recognized his wrongdoing and immediately sought and
continues treatment for the situation. Respondent is being monitored through
his employer and must demonstrate a high level of rehabilitation in order to
maintain his employment which Respondent has chosen to do. Thus, the purposes
set out in Standard 1.3 are met with this disposition.
Case Number(s): 10-C-08846-3
In the Matter of: Albert R. Zarate
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: Albert R. Zarate
Date: March 2, 2011
Respondent’s Counsel: James I. Ham
Date: March 3, 2011
Deputy Trial Counsel: Cindy McCaughey
Date: March 3, 2011
Case Number(s): 10-C-08846
In the Matter of: Albert R. Zarate
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 5, the “x” in box F(3) is deleted to remove the conditional rule 9.20 requirement.
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: March 10, 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 March 10, 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:
James Irwin Ham, Esq.,
Pansky Markle Ham LLP
1010 Sycamore Ave Unit 308
South Pasadena, CA 91030
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Cynthia McCaughey, ESQ., Enforcement, Los Angels
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 10, 2011.
Signed by:
Rose Luthi
Case Administrator
State Bar Court