Case Number(s): 10-O-01662;10-O-08024;11-O-11606
In the Matter of: Brian Ching, Bar # 79456 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Robin Brune, Deputy Trial Counsel
180 Howard Street
San Francisco, California 94105
Bar # 149481
Counsel for Respondent: Carol Langford, 100 Pringle Avenue Suite 570
Walnut Creek, California 94596
Bar # 124812
Submitted to: Settlement 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 April 17, 1978.
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 14 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. (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.
See other circumstances noted in attachment.
IN THE MATTER OF: Brian Ching
CASE NUMBERS: 10-O-01662;10-O-08024;11-O-11606
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case No. 10-O-08024 (Complainant: Dozie Ezeife obo Emeka Ogbu)
FACTS:
Emeka Ogbu hired respondent in July, 2006 to represent him in a personal injury claim from an accident which occurred on November 26, 2005. On June 12, 2007, Geico insurance issued respondent a check for $7,800 in settlement of the claim. The check was endorsed, but no bank account number was stamped on the back of the check, and there is no evidence that it was negotiated through respondent’s attorney-client trust account. Respondent did not advise Ogbu of his receipt of the funds.
In June, 2010, Mr. Ogbu hired attorney Dozie Ezeife to find out what happened to his case. Ezeife wrote to Ching six times in June and July, 2010, on Ogbu’s behalf. Ching issued a check to Ogbu in the sum of $6,800 in June, 2010 against his attorney-client trust account. However, there were insufficient funds in Ching’s trust account to cover the check. Ezeife wrote Ching a letter in July, 2010 advising of the NSF check and demanding a response. Respondent failed to respond.
On or before April 1, 2011, in conjunction with the State Bar prosecution of this matter, respondent paid Ogbu the sum of $10,768.27, representing $7,800 in principal and $2,968.27 in interest.
CONCLUSIONS OF LAW:
1. By misappropriating Ogbu’s $7,800 in funds in June, 2007, respondent committed acts of moral turpitude, in willful violation of Business and Professions Code, section 6106.
2. By failing to deposit Ogbu’s $7,800 in funds in trust; by failing to maintain the funds in trust; by failing to promptly notify Ogbu of his receipt of the funds, and by failing to promptly pay out the funds, respondent willfully violated Rules of Professional Conduct, rule 4-100(A)& (B)(1)& (4).
3. By failing to notify Obgu of the receipt of funds, and by failing to promptly respond to the inquiry of Ezeife on behalf of Ogbu, regarding the NSF check, respondent failed to respond to the reasonable status inquiries of a client in which he had agreed to provide legal services, and failed to keep his client informed of significant developments in his case, in willful violation of Business and Professions Code, section 6068(m).
Case No. 10-O-1662 (Complainant: Frank Korkmazian)
FACTS:
In August, 2007, Frank Korkmazian hired respondent to represent him in his ongoing civil matter, Wright v. Korkmazian, case no. RG 07337041, filed in Superior Court, County of Alameda. Kormazian paid respondent the sum of $3,640 for the representation. Respondent failed to respond to discovery and other orders of the Court. The Court issued the following sanctions. Each of the sanctions were ordered against respondent and his client, ("defendants and their counsel") as follows:
1. On June 16, 2008, the Court sanctioned respondent the sum of $2,240 payable on July 1, 2008, in response to the plaintiff’s allegations that the defendants, and their counsel (the respondent) failed to provide further responses to interrogatories.
2. On August 21, 2008, the Court sanctioned respondent the sum of $2,250 payable on September 2, 2008, in response to the plaintiff’s allegations that the defendants, and their counsel (the respondent) failed to provide further responses to plaintiff" s special interrogatories and plaintiff’s request for production of documents.
3. On September 22, 2008 the Court ordered $3,540 in sanctions in response to the plaintiff Sylvia Wright’s Notice of Motion and Motion for Monetary, Issue and Evidence Sanctions, for allegations that the defendants and their attorney (the respondent) disobeyed the Court’s June 16, 2008 discovery Order. The sanctions were payable October 6, 2008.
4. On September 22, 2008, the Court ordered $2,540 in monetary sanctions against respondent, payable on October 6, 2008, in response to the plaintiffs Notice of Motion and Motion for Monetary, Issue and Evidence Sanctions Re the Court’s August 21, 2008 Amended Discovery order. The plaintiff in this motion alleged that defendants and their attorney (the respondent) failed to abide by the Court’s August 21, 2008 discovery Order. These sanctions were also payable on October 6, 2008.
In addition to the monetary sanctions, the Court also issued evidentiary sanctions against respondent’s client.
Respondent paid counsel for the plaintiff, Jacqueline DeSouza, the sum of $6,027.32 on or about May 2, 2011, representing payment of two of the four sanctions orders, the June 16, 2008 order for $2,240 and the September 22, 2008 order for $2,540, plus interest.
CONCLUSIONS OF LAW:
1. By failing to pay the sanctions orders of the Court, dated June 16, 2008 and September 22, 2008, for $2,540 by the dates specified in the Court order; and by failing to pay the sanctions orders, the September 22, 2008 order for $3,540 and the order of August 21, 2008, respondent failed to abide by the orders of the Court in a matter in which he agreed to provide legal representation, in willful violation of Business and Professions Code, section 6103.
2. By failing to abide by the discovery orders, resulting in issues sanctions against his client, respondent failed to perform, in willful violation of Rules of Professional Conduct, rule 3-110(A).
Case No. 11-O-11606 (Complainant: Pao Hoang)
FACTS:
Mr. Pao Hoang hired respondent on May 17, 2008 to file suit as a result of an automobile accident on May 14, 2008. The client rejected a partial settlement in January, 2009, and forwarded the respondent the cost for the court fees. Respondent filed suit in May, 2010, Hoang vs. Ortiz, case number RG10514787, filed in Superior Court, County of Alameda Thereafter, the client met with one Ms. Chau, of respondent’s office, in June, 2010, and December, 2010. Thereafter, the client did not hear from
respondent. The client’s sister repeatedly called and faxed respondent to get a status on the case. Respondent failed to appear at a hearing on October 25, 2010, and as a result, the case was dismissed. Respondent claims no notice of the hearing at which the case was dismissed, but a notice of the dismissal was duly served on him by the court clerk in a timely fashion. Respondent failed to advise his client of the dismissal. Respondent filed a Motion to Set Aside on March 23, 2011, five months after the
dismissal, and after respondent received notice of the State Bar complaint. Respondent’s motion to set aside is still pending before the superior court.
CONCLUSIONS OF LAW:
1. By delaying for one year before filing suit and by failing to respond to the dismissal for five months, respondent failed to perform, in willful violation of the Rules of Professional Conduct, rule 3-110(A).
2. By failing to keep the client apprised of the status of the case, including informing him of the dismissal, and responding to his inquiries, respondent failed to keep his client informed of significant events in a matter in which he agreed to provide legal services, and failed to respond to his reasonable inquiries, in willful violation of Business and Professions Code, section 6068(m).
PENDING PROCEEDINGS:
The disclosure date referred to, on page 2, paragraph A(7), was March 16, 2011.
AUTHORITIES SUPPORTING DISCIPLINE:
Standard 2.2 of the Attorney Sanctions for Professional Misconduct call for a minimum one year actual suspension, irrespective of mitigating circumstances, for willful misappropriation of entrusted funds or property.
Standard 2.6 of the Attorney Sanctions for Professional Misconduct call for disbarment or suspension for a violation of Business and Professions Code, section 6103.
In Hipolito v. State Bar (1989) 48 Cal. 3d. 621, the attorney received one year of actual suspension, three-years stayed, for misappropriation of $2,000. In Edwards v. State Bar, (1990) 52 Cal. 3d. 28, the attorney received one year of actual suspension for misappropriation of $3,000. The attorney paid full restitution prior to the State Bar complaint in that matter. In Bates v. State Bar (1983) 34 Cal. 3d. 920, the attorney received three years of suspension, and until restitution, for misappropriation of $2,200. The attorney had been practicing eight years with no prior discipline. In In the Matter of Elliot (1996) 3 Cal. State Bar Ct. Rptr. 541, the attorney received two years of suspension and until restitution of $4,000 in a default matter.
In this matter, the State Bar took into consideration the fact that respondent was admitted in 1978 and has no prior discipline, as well as the fact that the respondent is participating in the State Bar LAP program. In addition, the State Bar took into consideration that all restitution was paid.
COSTS OF DISCIPLINARY PROCEEDINGS:
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of March 16, 2011, the prosecution costs in this matter are $4,802.68. 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 CIRCUMSTANCES:
Respondent’s son, Keith Ching, was diagnosed with schizophrenia in 2006, and passed away unexpectedly in November, 2010 at the age of 20. Respondent’s efforts to respond to his son’s condition affected his financial management of his practice. Respondent was also caring for his ill father, who passed away in 2007. Respondent is participating in the LAP program.
ADDITIONAL CONDITIONS:
CURRENT TELEPHONE NUMBER
Respondent shall maintain with the Probation Unit, State Bar Court, a current address and a current telephone number at which Respondent can be reached and respond within twelve (12) hours.
LAP
On March 7, 2011, respondent completed the intake for the LAP program. Respondent shall complete the LAP process and enter into an LAP contract (participation plan).
Respondent shall comply with all provisions and conditions of his participation plan with the State Bar Lawyer’s Assistance Program (’LAP") and all modifications thereto, until such time as he graduates from LAP or until the expiration of this stipulation, whichever is sooner. Within 14 calendar days from the effective date of this stipulation, respondent shall sign a waiver with LAP that authorizes LAP to provide Probation with information regarding his compliance with LAP, and respondent shall
provide the Office of Probation with a copy of the waiver. Revocation of this written waiver would be a violation of this stipulation. In addition, with each quarterly report and before the due date of his final report, respondent shall request and obtain from LAP written proof of his compliance with LAP, and provide the original of the LAP compliance report to the Office of Probation with his written report. The written LAP compliance report shall be dated not sooner than 10 calendar days prior to the date respondent submits his required reports to the Office of Probation.
Case Number(s): 10-O-1662; 10-O-08024; and 11-O-11606
In the Matter of: Brian Ching
checked. a. Unless Respondent has been terminated from the Lawyer Assistance Program (“LAP”) prior to respondent’s successful completion of the LAP, respondent must comply with all provisions and conditions of respondent’s Participation Agreement with the LAP and must provide an appropriate waiver authorizing the LAP to provide the Office of Probation and this court with information regarding the terms and conditions of respondent’s participation in the LAP and respondent’s compliance or non-compliance with LAP requirements. Revocation of the written waiver for release of LAP information is a violation of this condition. However, if respondent has successfully completed the LAP, respondent need not comply with this condition.
<<not>> checked. b. Respondent must obtain psychiatric or psychological help/treatment from a duly licensed psychiatrist, psychologist, or clinical social worker at respondent’s own expense a minimum of ** times per month and must furnish evidence to the Office of Probation that respondent is so complying with each quarterly report. Help/treatment should commence immediately, and in any event, no later than thirty (30) days after the effective date of the discipline in this matter. Treatment must continue for ** days or ** months or ** years or, the period of probation or until a motion to modify this condition is granted and that ruling becomes final.
If the treating psychiatrist, psychologist, or clinical social worker
determines that there has been a substantial change in respondent’s condition,
respondent or Office of the Chief Trial Counsel may file a motion for modification
of this condition with the Hearing Department of the State Bar Court, pursuant
to rule 5.300 of the Rules of Procedure of the State Bar. The motion must be
supported by a written statement from the psychiatrist, psychologist, or
clinical social worker, by affidavit or under penalty of perjury, in support of
the proposed modification.
<<not>> checked. c. Upon the request of the Office of Probation, respondent must provide the Office of Probation with medical waivers and access to all of respondent’s medical records. Revocation of any medical waiver is a violation of this condition. Any medical records obtained by the Office of Probation are confidential and no information concerning them or their contents will be given to anyone except members of the Office of Probation, Office of the Chief Trial Counsel, and the State Bar Court, who are directly involved with maintaining, enforcing or adjudicating this condition.
Other:
Case Number(s): 10-O-1662
In the Matter of: Brian Ching
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: Sylvia Wright’s Counsel, Jacqueline DeSouza
Principal Amount: $2,250
Interest Accrues From: 8/21/08
2. Payee: Sylvia Wright’s Counsel, Jacqueline DeSouza
Principal Amount: $3,540
Interest Accrues From: 10/6/2008
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than ninety days prior to the end of his probationary period.
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) Sylvia Wright’s Counsel Jacqueline DeSouza
Minimum Payment Amount $500
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
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.
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): 10-O-1662; 10-O-08024;, 11-O-11606
In the Matter of: Brian Ching
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: Brian Ching
Date: 5-13-11
Respondent’s Counsel: Carol Langford
Date: 5-5-11
Deputy Trial Counsel: Robin Brune
Date: 5-18-11
Case Number(s): 10-O-01662; 10-O-08024; and 11-O-11606
In the Matter of: Brian Ching
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.
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: Patricia McElroy
Date: June 16, 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 San Francisco, on June 16, 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:
CAROL LANGFORD
100 PRINGLE AVENUE NUMBER 570
WALNUT CREEK, CALIFORNIA 94596
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ROBIN BRUNE, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on June 16, 2011.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court