Case Number(s): 10-O-02067; [10-O-02574]
In the Matter of: Cynthia Flahive, Bar # 207823, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Deputy Trial Counsel
180 Howard Street
San Francisco, CA 94105
(415) 538-2037
Bar # 214209
Counsel for Respondent: In Pro Per Respondent
Cynthia Flahive
2360 E Bidwell St Ste 105
Folsom, CA 95630
(916) 235-8689
Bar # 207823
Submitted to: Assigned Judge at State Bar Court Clerk’s Office San Francisco
<<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 5, 2000.
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: 2013 and 2014. (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.
FACTS AND CONCLUSIONS OF LAW
Case No. 10-O-02067
Facts
1. On October 7, 2009, Cheryl Shores-Taylor ("Shores-Taylor"), hired respondent’s law firm to provide legal services in connection with negotiating and obtaining a home mortgage loan modification. On or about November 9, 2009, Shores-Taylor paid respondent $897.00 as advanced fees in the loan modification matter.
Conclusions of Law
Case No. 10-O-02754
Facts
1. At all relevant times herein, respondent maintained a client trust funds account at Wells Fargo Bank (Account No. xxxxx2599; hereinafter "trust account" or "respondent’s trust account." The account number has been excluded to protect the account from identity theft).
2. Nathaniel Giles: On November 19, 2009, respondent’s law firm was hired by Nathaniel Giles ("Giles") to file a Chapter 7 bankruptcy petition ("bankruptcy matter"). On the same date, Giles paid respondent $150 as advanced costs in the bankruptcy matter. Respondent deposited the $150 in advanced costs into her trust account on behalf of Giles. At all relevant times herein, respondent was required to maintain the advanced costs in her trust account. Thereafter, respondent withdrew the $150 in advanced costs from her trust account. At no time did respondent use the $150 for the benefit of Giles in the bankruptcy matter.
3. Lewis Roper: On March 10, 2010, respondent’s law firm was hired by Lewis Roper ("Roper") to file a Chapter 7 bankruptcy petition ("bankruptcy matter"). On the same date, Roper paid respondent $150 as advanced costs in the bankruptcy matter. Respondent deposited the $150 in advanced costs into her trust account on behalf of Roper. At all relevant times herein, respondent was required to maintain the advanced
costs in her trust account. Thereafter, respondent withdrew the $150 in advanced costs from her trust account. At no time did respondent use the $150 for the benefit of Roper in the bankruptcy matter.
4. Vincent Vong: On May 17, 2010, respondent’s law firm was hired by Vincent Vong ("Vong") to file a Chapter 7 bankruptcy petition ("bankruptcy matter"). On the same date, Vong paid respondent $449 as advanced costs in the bankruptcy matter. Respondent deposited the $449 in advanced costs into her trust account on behalf of Vong. At all relevant times herein, respondent was required to maintain the advanced costs in her trust account. Thereafter, respondent withdrew the $449 in advanced costs from her trust account. At no time did respondent use the $449 for the benefit of Vong in the bankruptcy matter. On October 29, 2010, respondent refunded $349 to Vong. Respondent still owes Vong $100.
5. Cecilia Masinas and Erik Neighbour: On February 9, 2010, Cecilia Masinas and Erik Neighbour ("Masinas and Neighbour"), hired respondent’s law firm to provide legal services in connection with negotiating and obtaining a home mortgage loan modification. On February 9, 2010, Masinas and Neighbour paid respondent $2,490 as advanced fees in the loan modification matter.
6. John di Schiavi and Irene Reyes: On October 6, 2009, John di Schiavi and Irene Reyes ("di Schiavi and Reyes"), hired respondent’s law firm to provide legal services in connection with negotiating and obtaining a home mortgage loan modification. On November 6, 2009, di Schiavi and Reyes paid respondent $897.50 as advanced fees in the loan modification matter.
7. Bill and Karen Moore: On October 2, 2009, Bill and Karen Moore ("the Moores"), hired respondent’s law firm to provide legal services in connection with negotiating and obtaining a home mortgage loan modification. On October 16, 2009, the Moores paid respondent $249.16 as advanced fees in the loan modification matter. On November 3, 2009, the Moores paid respondent $249.16 as advanced fees in the loan modification matter. On November 19, 2009, the Moores paid respondent $249.16 as advanced fees in the loan modification matter. On December 2, 2009, the Moores paid respondent $249.16 as advanced fees in the loan modification matter. On December 16, 2009, the Moores paid respondent $249.16 as advanced fees in the loan modification matter. On January 11, 2010, the Moores paid respondent $249.16 as advanced fees in the loan modification matter. In total, the Moores paid respondent $1,494.96 as advanced fees in the loan modification matter.
8. Edward Boe: On February 16, 2010, Edward Boe ("Boe"), hired respondent’s law firm to provide legal services in connection with negotiating and obtaining a home mortgage loan modification. On the same date, Boe paid respondent $1,495 as advanced fees in the loan modification matter.
Conclusions of Law:
1. By failing to maintain in her trust account the funds that she was required to maintain on behalf of her clients, respondent failed to maintain the balance of funds received for the benefit of a client and deposited in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import in willful violation of rule 4-100 of the Rules of Professional Conduct.
2. By offering to perform a home mortgage loan modification for Masinas and Neighbour, di Schiavi and Reyes, the Moores and Boe for a fee and demanding, charging, collecting and receiving fees from Masinas and Neighbour, di Schiavi and Reyes, the Moores and Boe prior to fully performing each and every service
respondent contracted to perform or represented she would perform, respondent negotiated, arranged or otherwise offered to perform a mortgage loan modification for a fee paid by the borrower, and demanded, charged, collected or received such fee prior to fully performing each and every service respondent had contracted to perform or represented that she would perform in violation of section 2944.7(a) of the Civil Code, respondent willfully violated Business and Professions Code section 6106.3.
PENDING PROCEEDINGS
The disclosure date referred to, on page 2, paragraph A(7), was December 13, 2011.
STATE BAR ETHICS SCHOOL
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the State Bar has informed respondent that as of December 12, 2011, the estimated prosecution costs in this matter are approximately $3,771.10. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any
final cost assessment. 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.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
AGGRAVATING CIRCUMSTANCES
There are no aggravating circumstances.
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(i). Respondent has been practicing law since 2000, and has no prior record of discipline.
Standard 1.2(e)(v). Respondent displayed spontaneous candor and cooperation to the State Bar during the disciplinary proceedings.
Standard 1.2(e)(vii). Respondent displayed remorse and recognition of wrongdoing for her misconduct. On October 8, 2010, respondent voluntarily attended State Bar Client Trust Accounting School to gain a better understanding of her duties in maintaining a trust account.
Standard 1.2(e)(iv). Respondent suffered from extreme difficulties in her personal life which expert testimony would establish were directly responsible for the misconduct and have since been resolved. During the time of the misconduct, respondent was having marital difficulties. Respondent has since resolved these issues.
SUPPORTING AUTHORITY
Standard 2.2(a) requires disbarment for the willful misappropriation of entrusted funds; the standard requires 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. Standard 2.2(b) requires at least a three-month actual suspension for a violation of rule 4-100, irrespective of mitigating circumstances.
Standard 2.10 requires that a violation of any provision of the Business and Professions Code not specified in the standards (e.g., section 6106.3) shall result in reproval or suspension according to the gravity of the offense or harm, if any, to the victim, with due regard to the purpose of imposing discipline set forth in standard 1.3.
The proper discipline for a willful violation of rule 4-100 is an actual suspension. (See In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615 [six months’ actual suspension for willful violation of former rule 8-101; prior record of discipline]; In the Matter of Doran (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr 871 [six months’ actual suspension for willful violation of rule 4-100; no prior record
of discipline]).
Based on the compelling mitigation and lack of aggravating circumstances in this matter, a 60-day actual suspension with a three-year probationary period is appropriate and will meet the purposes of attorney discipline.
Case Number(s): 10-O-02067 [10-O-02574]
In the Matter of: Cynthia Flahive
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: John di Schiavi and Irene Reyes
Principal Amount: $897.50
Interest Accrues From: 11/6/09
2. Payee: Bill and Karen Moore
Principal Amount: $1,494.96
Interest Accrues From: 1/11/10
3. Payee: Edward Boe
Principal Amount: $1,495.00
Interest Accrues From: 2/16/10
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 two (2) years from the effective date of discipline herein.
<<not>> 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)
Minimum Payment Amount
Payment Frequency
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
<<not>> 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.
<<not>> 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”;
Case Number(s): 10-O-02067 [10-O-02574]
In the Matter of: Cynthia Flahive
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: Nathaniel Giles
Principal Amount: $150.00
Interest Accrues From: 11/19/09
2. Payee: Lewis Roper
Principal Amount: $150.00
Interest Accrues From: 3/10/10
3. Payee: Vincent Vong
Principal Amount: $100.00
Interest Accrues From: 5/17/10
4. Payee: Cecilia Masinas and Erik Neighbour
Principal Amount: $2,490.00
Interest Accrues From: 2/9/10
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than two (2) years from the effective date of discipline herein.
<<not>> 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)
Minimum Payment Amount
Payment Frequency
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
<<not>> 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.
<<not>> 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.
<<not>> 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-02067; [10-O-02574]
In the Matter of: Cynthia Flahive
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: Cynthia Flahive and Susan I. Kagan
Respondent: Cynthia Flahive
Date: 12-20-11
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Susan I. Kagan
Date: 12/22/11
Case Number(s): 10-O-02067 [10-O-02574]
In the Matter of: Cynthia Flahive
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.)
Signed by:
Judge of the State Bar Court: Lucy Armendariz
Date: January 12, 2012
[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 January 24, 2012, 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:
CYNTHIA R. FLAHIVE
CINDER LAW GROUP
2360 EAST BIDWELL STREET SUITE 105
FOLSOM, CALIFORNIA 95630
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN I. KAGAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on January 12, 2012.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court