Case Number(s): 10-N-10038 Investigation matter 09-O-17763
In the Matter of: Elizabeth Shivell, Bar #98471, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erica L.M. Dennings, Office of the Chief Trial Counsel
180 Howard Street
San Francisco, Ca 94105
Bar #145755
Counsel for Respondent: Howard Melamed, 319 Lennon Lane
Walnut Creek, CA 94598-2418
(925) 932-0417
Bar #40962
Submitted to: Assigned Judge
Filed: May 5, 2011 State Bar Court Clerk’s Office San Francisco
<<not>> checked. <<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 May 29, 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 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).
checked. (c) Rules of Professional Conduct/ State Bar Act violations: 3-110(a), 3-700(D)(2), 4-100(B)(3), 4-100(a) of the Rules of Professional Conduct, and sections 6068(m), 6]06, (and 60?0.5((3)(2) of the Business (and Professions code.
checked. (d) Degree of prior discipline Two years, suspension, stayed, two years probation with conditions including (actual suspension for one year (and until she makes restitution.
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. 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.
Respondent suffered from physical and psychological difficulties from 2005-2006 which contributed to her conduct. Respondent sought appropriate medical care and self-referred to the Lawyers Assistance Program to address the psychological issues. In 2008 respondent suffered a near fatal illness, a month long coma and lengthy recovery which delayed her ability to work and promptly repay funds to Hudson upon discovery of the missing trust funds. Respondent was in ongoing care from several physicians who diagnosed respondent with severe ulcerative colitis in the remainder of her colon, abdominal adhesion, five abdominal hernias, and several infections as a result of her impaired immune system. These conditions affected her ability to work full time. Respondent finally had extensive gastrointestinal surgery in December 2010 and March 2011 to remedy these conditions. Respondent’s condition directly affected her ability to meet the deadlines under rule 9.20.
checked. (9) Severe Financial Stress: At the time of the misconduct, Respondent suffered from severe financial stress which resulted from circumstances not reasonably foreseeable or which were beyond his/her control and which were directly responsible for the misconduct. Respondent’s computer with trust fund records was stolen from her home office in 2007 which hampered respondent’s ability to manage her client trust account. Following her 2008 illness, respondent was unable to work full time until November 2008. As a result, respondent lost her home and her business, but nonetheless made payments to Hudson from attorney fees awards and other income even before paying personal obligations.
Respondent filed her California Rule of Court §9.20 declaration with the State Bar on January 24, 2011. Respondent was hospitalized for surgery between December 7 and 12, 2010, and did not return to work until January 14, 2011. Ms. Shivell was ill for 4 weeks before being admitted to the hospital. Her ill health which lead to surgery, and the surgery itself, prevented Ms. Shivell from filing her §9.20 declaration in a timely fashion. Ms. Shivell attempted to file her declaration in October, 2010 but it was rejected by the State Bar Court because it was not filled out correctly, which occurred due to her illness that affected her
concentration.
IN THE MATTER OF:
ELIZABETH L. SHIVELL (#98471)
CASE NUMBER(S): Investigation matter 09-O~ 17763, 10-N- 10038
FACTS AND CONCLUSIONS OF LAW.
Investigation matter 09-O- 17763
Facts
Prior to December 2005, respondent represented Lynn Hudson (aka D’Arrigo) in a dissolution and child custody matter. In 2005, the family home belonging to Hudson and her former spouse was sold, In December 2005, $56,740.52 from the house sale was transferred to respondent and was to be held in trust pending resolution of various financial issues between the parties. Respondent deposited the check from the title company into her client trust account at Bank of America, account number 16646-xxxxx. (The last digits of the account number are deleted to protect privacy). Thereafter, respondent received two checks in the amount of $723.97 and $19,409.45 from the sale of the home. These two checks were paid to Hudson. Hudson was entitled to at least $56,740.52 of the funds. Thereafter, respondent used the money for her own use and benefit and did not disburse any of the $56, 740.52 to Hudson until January 2008. In or about late 2007, respondent admitted to Hudson that she had misappropriated her funds but that she would pay her back. Respondent began regular payments in January 2008 except for the months she was hospitalized for a near fatal illness in 2008 and in rehabilitation thereafter. In 2008 and 2009, Hudson communicated with respondent on several occasions concerning payment of the funds she was entitled to: Between January 8, 2008 and September 2009, respondent paid Hudson $18,950.00. Hudson previously agreed to pay respondent attorney’s fees of $19,409.45 from the proceeds of the sale of the home, which was verified in court pleadings. On December 22, 2010, respondent paid Hudson $28,569.22 which was the balance owing Hudson plus interest, per the calculations of respondent’s forensic accountant.
Conclusions of Law
By misappropriating at least $56,749.52 of her client’s funds, respondent committed an act or acts involving moral turpitude, dishonesty or corruption in willful violation of section 6106 of the Business and Professions Code.
By not disbursing any of Hudson’s funds for three years after receiving them, respondent failed to promptly pay funds her client was entitled to receive in willful violation of rule 4-100(B)(4) of the rules of Professional Conduct.
Case no. 10-N- 10038
Facts
On or about August 9, 2010, the California Supreme Court filed a disciplinary order
in State Bar Court case number 06-0-14100 et al (Supreme Court Case Number S183838). The disciplinary order required respondent to comply with California Rule of Court 9.20 and to perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 days, respectively, after the effective date of the order. The order also suspended respondent from the practice of law. The order became effective thirty days after it was filed (California Rules of Court, rule 9.18(b)), and at all times subsequent has remained in full force and effect. Notice of the rule 9.20 order was properly served upon respondent in the manner prescribed by California Rule of Court 9.18(b) at the address respondent maintained with the State Bar in accordance with Business and Professions Code section 6002.1 subdivision (a). Respondent received actual notice of the Supreme Court order as follows:
(a) On or about August 9, 2010, the Supreme Court mailed a copy of the order,
which respondent received shortly thereafter;
(b) On or about August 24, 2010, the State Bar’s Office of Probation mailed
respondent a letter, which respondent received shortly thereafter, reminding
respondent of her duty to comply with rule 9.20;
(c) On or about November 4 and 5, 2010, respondent had telephonic
conversations with the Office of Probation concerning her duty to comply
with rule 9.20.
The deadlines for complying with rule 9.20(a) and rule 9.20(c) expired on or about
October 8 and 18, 2010, respectively.
Conclusion of Law
By not submitting her compliance declaration until January 24, 2011, Respondent violated an order of the court requiring respondent to do or forbear an act connected with or in the course of respondent’s profession which respondent ought in good faith to do or forbear in wilful violation of section 6103 of the Business and Professions Code.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was April 20, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
SUPPORTING AUTHORITY
Standard 2.2(a) requires disbarment for the willful misappropriation of entrusted funds. The standard suggests not less than a one-year actual suspension if the amount of funds is insignificantly small or if the most compelling mitigating circumstances clearly predominate. Neither of those circumstances exists in this matter.
Standard 2.2(b) requires at least a three-month actual suspension for a violation of rule 4-100, irrespective of mitigating circumstances.
Standard 2.3 requires an actual suspension or disbarment for a respondent that has committed an act of moral turpitude. Respondent committed multiple acts of moral turpitude.
Standard 1.7(a) provides that if a member is found culpable of professional misconduct in any proceeding which discipline may be imposed and the member has a record of one prior imposition of discipline as defined by standard 1.2(0, the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior proceeding was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust.
Disbarment is the proper discipline for misappropriation, even when the respondent has no prior record of discipline. (See In re Abbott (1977) 19 Cal.3d 249 [disbarment for misappropriation of over $29,000; no prior record of discipline]; Kaplan v. State Bar (1991) 52 Cal.3d 1067 [disbarment for misappropriation of approximately $30,000 and lying to the State Bar; no prior record of discipline]; Chang v. State Bar (1989) 49 Cal.3d 114 [disbarment for misappropriation of over $7,000; no prior record of discipline]; Kelly v. State Bar (1988) 45 Cal.3d 649 [disbarment for misappropriation of approximately $20,000; no prior record of discipline]; In the Matter of Spaith (Review Dept. 1996) 3 Cal.State Bar Ct.Rptr. 511 [disbarment for misappropriation of approximately $40,000 in one client matter; no prior record of discipline]; In the Matter of Keuker (Review Dept. 1991) 1 Cal.State Bar Ct.Rptr. 583 [disbarment for misappropriation of approximately $66,000 in one client matter; no prior record of discipline].)
Based on the misappropriation alone, disbarment is the appropriate level of discipline in this matter.
Disbarment is the appropriate general standard for a wilful violation of rule 955. Bercovich v. State Bar (1990) 50 Cal.3d. 116, 131.
Case Number(s): 10-N-10038
In the Matter of: Elizabeth L. Shivell
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.
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.)
Respondent 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 herein, 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:
Judge of the State Bar Court
Lucy Armendariz
Date: May 5, 2011
Case Number(s): 10-N-10038
In the Matter of: Elizabeth L. Shivell
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: Elizabeth L. Shivell and Howard Melamed and Erica L.M. Dennings
Respondent: Elizabeth L. Shivell
Date: April 15, 2011
Respondent’s Counsel: Howard Melamed
Date: April 15, 2011
Deputy Trial Counsel: Erica L.M. Dennings
Date: May 2, 2011
Case Number(s): 10-N-10038
In the Matter of: Elizabeth L. Shivell
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: Elizabeth L. Shivell only
Respondent: Elizabeth L. Shivell
Date: April 15, 2011
Respondent’s Counsel: Howard Melamed
Date:
Deputy Trial Counsel: Erica L.M. Dennings
Date:
[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 San Francisco, on May 5, 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:
HOWARD RICHARD MELAMED
319 LENNON LN
WALNUT CREEK, CA 94598 - 2418
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERICA L. M. DENNINGS, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco
, California, on May 5, 2011.
Signed by:
Bernadette C.O. Medina
Case Administrator
State Bar Court