Case Number(s): 10-H-08935
In the Matter of: Vicenta E. Montoya-Torres Bar #97192, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Elina Kreditor, Bar #250641
Counsel for Respondent: Bar #
Submitted to: settlement Judge
Filed: June 23, 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 April 1, 1981.
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):
checked. Costs are added to membership fee for calendar year following effective date of discipline.
<<not>> 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: 3 counts of Rule of Professional Conduct 3-110(A), 3 counts of 6068(m), 1 count of 6068(i).
checked. e) If Respondent has two or more incidents of prior discipline, use space provided below or a separate attachment entitled “Prior Discipline”. SEE Aggravating CIRCUMSTANCES--PRIOR DISCIPLINE
section in the ATTACHMENT TO STIPULATION
checked. 3) Candor/Cooperation: Respondent displayed spontaneous candor and cooperation with the victims of his/her misconduct and to the State Bar during disciplinary investigation and proceedings. see
MITIGATING CIRCUMSTANCES section in the Attachment to Stipulation
checked. 8) Emotional/Physical Difficulties: At the time of the stipulated act or acts of professional misconduct Respondent suffered extreme emotional difficulties or physical disabilities which expert testimony would establish was directly responsible for the misconduct. The difficulties or disabilities were not the product of any illegal conduct by the member, such as illegal drug or substance abuse, and Respondent no longer suffers from such difficulties or disabilities. See MITIGATING CIRCUMSTANCES section in the Attachment to Stipulation
IN THE MATTER OF: VICENTA E. MONTOYA-TORRES
CASE NUMBER(S): 10-H-08935
FACTS AND CONCLUSIONS OF LAW
Vicenta E. Montoya-Torres ("Respondent") admits that the following facts are true and that she is culpable’ of violations of the specified statutes and/or Rules of Professional Conduct.
I. Facts
1. On August 26, 2009, the State Bar Court of California filed an order in case no. 05-J-03259 imposing on Respondent a public reproval (hereinafter "Reproval Order"). On or about August 26, 2009, a case administrator of the State Bar Court properly served a copy of the Reproval Order by mail on Respondent. Respondent received the Reproval Order.
2. On or about September 12, 2009, the Reproval Order became effective, fifteen days after service.
3. The Reproval Order imposed certain conditions attached to the reproval. On or about September 10, 2009, a probation deputy of the Office of Probation mailed a letter to Respondent at her member records address reminding her of the conditions attached to the reproval. Respondent received the letter from the probation deputy.
4. As a condition attached to the Reproval Order, Respondent was required to provide to the Office of Probation satisfactory proof of attendance at a session of the Ethics School, and the passage of the test given at the end of that session, within one (1) year of the effective date of the Reproval Order. Respondent did not attend Ethics School or provide proof of attendance and completion of the test to the Office of Probation within one (1) year. Respondent attended a session of Ethics School on April 28, 2011.
5. As a condition attached to the Reproval Order, Respondent was required to provide proof of passage of the Multistate Professional Responsibility Examination ("MPRE"), administered by the National Conference of Bar Examiners, to the Office of Probation within one (1) year of the effective date of the Reproval Order. Although Respondent took the MPRE in August 2010, she did not pass the MPRE and thus did not provide proof of passage to the Office of Probation within one (1) year.
lI. Conclusions of Law
By not completing Ethics School or the MPRE and providing proof to the Office of Probation within one year of the Reproval Order, Respondent failed to comply with conditions attached to a public reproval and thus willfully violated Rules of Professional Conduct, rule 1-110.
PENDING PROCEEDINGS
The disclosure date referred to, on page 2, paragraph A(7), was May 10, 2011.
COSTS OF DISCIPLINARY PROCEEDINGS
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 $2,287. 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.
MITIGATING CIRCUMSTANCES
Respondent has suffered from back pain for a number of years. The condition would occasionally prevent Respondent from working for 1 or 2 days at a time. In October 2010, Respondent was involved in a car accident that exacerbated her back pain. Respondent sought treatment for chronic back pain after the accident. Respondent’s acute back pain prevented her from sitting for long periods of time and
impacted her ability to concentrate.
Respondent acknowledged that she is at fault for failing to comply with the conditions of the public reproval and expressed remorse. Respondent has taken steps to remedy the violation by completing ethics school on April 28, 2011 and registering for the next available administration of the MPRE.
AGGRAVATING CIRCUMSTANCES--PRIOR DISCIPLINE
Standard 1.2(b)(i) of the Standards for Attomey Sanctions For Professional Misconduct ("the Standards") provides that the existence of prior record of discipline and the nature and extent of that record must be considered in aggravation. Respondent has been disciplined on two prior occasions by the State Bar of California.
A. Case Nos. 95-0-14347; 95-0-16029; 95-0-17734
On or about February 25, 1997, Respondent entered into a stipulation in case nos. 95-0-14347; 95-016029; 95-0-17734. Pursuant to the terms of the Stipulation, Respondent received a private reproval. Respondent stipulated to violations of section 6068(m) of the Business and Professions Code and rule 3110(A) of the Rules of Professional Conduct in three client matters. She also stipulated to a violation of
section 6068(i) in one of the three client matters.
In the first matter, Respondent failed to file an opening brief on behalf of a client with the Board of Immigration Appeals. She then filed a motion to dismiss the case without discussing the dismissal with her client.
In the second matter, Respondent failed to file a Motion to Reopen in order to obtain a stay of deportation for a client. She also failed to file an opening brief with the 9th Cir. on behalf of the same client. Respondent ultimately filed a motion to dismiss the case without discussing the dismissal with the client.
In the third matter, Respondent failed to pursue a client’s case after her motion for a change of venue was denied. She also failed to inform the client that the motion failed and that the Court had ordered the client deported. Upon being contacted by the State Bar regarding this matter, Respondent failed to respond.
B. Case No. 05-J-03259
On or about August 26, 2009, Respondent entered into a Stipulation Re Facts, Conclusion of Law and Disposition in case no. 05-J-03259. Pursuant to the terms of the Stipulation, Respondent was publicly reproved. Respondent’s failure to comply with the condition of the public reproval form the basis of the disciplinary proceedings in the instant mater, case no. 10-H-08935.
In case no. 05-J-032589, Respondent stipulated to violations of section 6068(m) of the Business and Professions Code and Rule 3-110(A) of the Rules of Professional Conduct. The violations stemmed from Respondent’s handling of an immigration matter in Nevada. Respondent failed to supervise her secretary, who filed a Motion to Re-Open on behalf of the client and signed Respondent’s name on the Motion, initialing behind the Respondent’s signature. Respondent also failed to investigate the client’s medical circumstances in order to appeal an order in absentia to deport the client. Respondent then failed to file an Opening Brief with the Board of Immigration Appeals. When the appeal was denied, Respondent failed to advise the client regarding the outcome of the appeal or his right to appeal the decision to the 9th Circuit. After the client hired new counsel, he overcame removal proceedings. Specifically, the deportation order was rescinded on grounds of ineffective assistance by Respondent. Respondent’s handling of this matter resulted in a private reprimand and a $500 fine from the State Bar
of Nevada.
AUTHORITIES SUPPORTING DISCIPLINE
A. Standards for Attorney Sanctions For Professional Misconduct
Standard 1.3 of the Standards provides that the primary purposes of attorney discipline are, "the protection of the public, the courts and the legal profession; the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession."
Standard 2.9 provides that a wilful violation of rule 1-110 of the Rules of Professional Conduct shall result in suspension.
Standard 1.7(a) provides that where a member has previously been found culpable of any misconduct, the degree of discipline imposed shall be greater than that imposed in the prior proceeding.
Standard 1.7 (b) provides, in relevant part, that where a member is found culpable of professional misconduct and has a record of two prior impositions of discipline, the degree of discipline shall be disbarment unless the most compelling mitigating circumstances clearly predominate.
B. Case Law
While the standards are entitled to great weight, "the recommended discipline must rest upon a balanced consideration of relevant factors." Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119 (1994). The standards need not be applied in a talismanic fashion and may be tempered with considerations peculiar to the offense and the offender. See In re Van Sickle, 4 Cal. State Bar Ct. Rptr. 980 (2006). Although the standards point to disbarment, several other factors indicate that deviating from the Standards is
appropriate. First, the relatively low level of discipline imposed in Respondent’s two prior matters, a private reproval followed by a public reproval, dictate against the imposition of disbarment in this matter. Moreover, the nature of the misconduct in the instant matter, is not so egregious as to dictate strict adherence to the Standards. Finally, the Review Department has, in the past, deviated from a disbarment recommendation in similar cases.
In the Matter of Meyer, 3 Cal. State Bar Ct. Rptr. 697 (1997), Respondent was placed on a two year stayed suspension, and three years probation with conditions, including a 90 day actual suspension. Respondent initially received a private reproval for misconduct in one client matter. When he failed to comply with the conditions of the reproval, he received an additional private reproval. In this third disciplinary matter, Respondent again failed to comply with conditions of the reproval by failing to complete six hours of CLE and failing to submit two probation reports. Although the Court acknowledged that Standard 1.7 (b) called for Respondent’s disbarment, the Court found that "the nature and extent of respondent’s two prior records of discipline are not
sufficiently severe to justify our recommending disbarment in this proceeding under standard 1.7(b)." 3 Cal. State Bare Ct. Rptr. at 704. The Respondent in In the Matter of Meyer did not appear at trial and the matter proceeded by default. The court found that there were no mitigating circumstances. Moreover, the court found that Respondent’s failure to rectify his misconduct by filing the reports and completing the CLE demonstrated an indifference toward rectification.
Unlike Meyer, the Respondent in the instant matter participated in the proceedings and cooperated with the State Bar in resolving this matter. Moreover, she has attempted to rectify the misconduct by attending Ethics School and registering for the next available administration of the MPRE. Finally, Respondent’s medical condition serves as a further mitigating factor.
Case Number(s): 10-H-08935
In the Matter of: Vicenta E. Montoya-Torres
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: Vicenta E. Montoya-Torres and Elina Kreditor
Respondent: Vicenta E. Montoya-Torres
Date: May 17, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Elina Kreditor
Date: May 31, 2011
Case Number(s): 10-H-08935
In the Matter of: Vicenta E. Montoya-Torres
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: Vicenta E. Montoya-Torres
Judge of the State Bar Court: Richard A. Honn
Date: June 21, 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 Angele s, on, November 21, 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:
NEIL N. NGUYEN
Nguyen & Associates
14550 Magnolia St Ste #201
Westminster, CA 92683
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Agustin Hernandez, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 21, 2011.
Signed by: Johnnie Lee Smith
Case Administrator
State Bar Court