Case Number(s): 10-O-03545 [10-O-08920]
In the Matter of: James J. Murray, Bar # 66952, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagaan, Deputy Trial Counsel
180 Howard Street
San Francisco, CA 94105
(415) 538-2037
Bar # 214209,
Counsel for Respondent: Megan Zavieh, 39827 San Moreno Ct
Fremont, CA 94539
(510) 209-0755
Bar # 206446,
Submitted to: Settlement Judge – 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 December 18, 1975.
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 12 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. 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.
<<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.
FACTS AND CONCLUSIONS OF LAW
Case No. 10-O-03545 (The Torres matter)
Facts
1. On May 12, 2009, respondent was hired by Luis Torres ("Torres") to set aside a default judgment.
2. In October 2009, Torres terminated respondent’s services and requested return of his client file. Soon thereafter, respondent received Torres’ request, but failed to return the client file to Torres.
3. In October 2009, Torres hired a new attorney to represent him in the default judgment matter. In October 2009, Torres’ new attorney contacted respondent to request Torres’ client file. Soon thereafter, respondent received the new attorney’s request, but failed to return the client file to Torres.
4. It was not until January 2010, that respondent returned the client file to Torres.
5. On February 6, 2010, Torres filed a complaint against respondent with the State Bar ("Torres complaint").
6. On May 4, 2010, and on June 28, 2010, a State Bar Investigator sent letters to respondent regarding the Torres complaint. The State Bar Investigator’s letters requested that respondent respond in writing to the specified allegations of misconduct being investigated by the State Bar in the Torres complaint. Soon after mailing, respondent received the State Bar Investigator’s letters, but failed to provide a written response to the allegations of misconduct in the Torres complaint.
Conclusions of Law
1. By failing to return the client file to Torres for more than two months after Torres terminated respondent’s services and requested return of the client file, respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property in willful violation of rule 3-700(D)(1) of the Rules of Professional Conduct.
2. By not providing a written response to the State Bar Investigator’s letters regarding the allegations in the Scott complaint, or otherwise cooperate in the investigation of the Scott complaint, respondent failed to cooperate and participate in a disciplinary investigation pending against respondent in willful violation of section 6068(m) of the Business and Professions Code.
Case No. 10-O-08920 (The Moyosore matter)
Facts
1. In 2009, respondent was hired by Isiak Moyosore ("Moyosore") to file a complaint on behalf of Moyosore in relation to a real property dispute.
2. On November 6, 2009, Moyosore paid respondent $2,000.00 as advanced fees. On December 18, 2009, Moyosore paid respondent $1,000.00 as advanced fees. In total, Moyosore paid respondent $3,000.00 as advanced fees.
3. Thereafter, respondent performed services of limited value on behalf of Moyosore. Respondent did not earn $1,500.00 of the $3,000.00 paid as advanced fees by Moyosore.
4. On May 13, 2010, Moyosore terminated respondent’s services and requested a refund of unearned fees and return of his client file. Soon thereafter, respondent received Moyosore’s requests, but failed to refund unearned fees and failed to return the client file to Moyosore.
5. It was not until November 2010, that respondent returned the client file to Moyosore.
6. To date, respondent has not refunded any portion of $1,500.00 in unearned fees to Moyosore.
Conclusions of Law
1. By failing to return the client file to Moyosore for more than five months after Moyosore terminated respondent’s services and requested return of the client file, respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property in willful violation of rule 3-700(D)(1) of the Rules of Professional Conduct.
2. By failing to refund $1,500.00 in unearned fees to Moyosore, respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of rule 3-700(D)(2) of the Rules of Professional Conduct.
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A (7) was November 16, 2010.
STATE BAR ETHICS SCHOOL
If respondent attends State Bar Ethics School as part of this stipulation (see page 5), 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 November 10, 2010, the estimated prosecution costs in this matter are approximately $2,602.00. 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
Standard 1.2(b)(i). Respondent has two prior records of discipline.
MITIGATING CIRCUMSTANCES
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 for his misconduct.
Standard 1.2(e)(iv). Respondent suffered from extreme emotional and physical problems which expert testimony would establish were directly responsible for the misconduct and have since been resolved. During the time of the misconduct, respondent was undergoing treatment for multiple medical issues which was physically and mentally debilitating. Respondent has since recovered.
SUPPORTING AUTHORITY
Standard 2.6 requires that a violation of Business and Professions Code section 6068(i) shall result in disbarment 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.
Standard 2.10 requires that a violation of any provision of the Rules of Professional Conduct not specified in the standards (e.g., rules 3-700(D)(1) and 3-700(D)(2)) 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.
Standard 1.7(b) requires disbarment if a member has a record of two prior impositions of discipline unless the most compelling mitigating circumstances clearly predominate.
In view of the compelling mitigation in this matter, the parties agree that it is appropriate to deviate from standard 1.7(b) (see, e.g., Arm v. State Bar (1990) 50 Cal. 3d 763), and that the appropriate level of discipline is a six-month actual suspension to run consecutive with the discipline imposed in Case Nos. 05-O-03820 & 06-O-14375.
Respondent is aware that should he commit any additional misconduct, or violate the conditions of probation in this matter, disbarment is likely.
Case Number(s): 10-O-03545 [10-O-08920]
In the Matter of: James J. Murray
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: Isiak Moyosore
Principal Amount: $1,500.00
Interest Accrues From: 12/18/09
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
<<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-03545 [10-O-08920]
In the Matter of: James J. Murray
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: James J. Murray
Date: November 22, 2010
Respondent’s Counsel: Megan Zavieh
Date: November 22, 2010
Deputy Trial Counsel: Susan I. Kagan
Date: November 29, 2010
Case Number(s): 10-O-03545 [10-O-08920]
In the Matter of: James J. Murray
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 135(b), 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: December 20, 2010
[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 December 20, 2010, 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 San Francisco, California, addressed as follows:
MEGAN E. ZAVIEH
39827 SAN MORENO CT
FREMONT, CA 94539
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 December 20, 2010.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court