Case Number(s): 10-O-05855-DFM
In the Matter of: Daniel Joseph Sweeney, Bar # 78362 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Larry DeSha, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1336
Bar # 117910
Counsel for Respondent: In Pro Per Respondent
Daniel Joseph Sweeney
290 E. Verdugo Ave.; Ste. 108
Burbank, CA 91502
(818) 841-9300
Bar# 78362
Submitted to: Assigned 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 December 21, 1977.
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. 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.
State Bar Court case number 93-H-12614-ERP Date prior discipline effective: October 21, 1993 Rules of Professional Conduct/State Bar Act violations: rule 1-110 Degree of prior discipline: the period for compliance with the conditions attached to the Public Reproval in case number 90-O-12361 was extended by six (6) months
IN THE MATTER OF: DANIEL JOSEPH SWEENEY
CASE NO.: 10-O-05855-DFM
WAIVER OF VARIANCE:
The parties waive any variance between the Notice of Disciplinary Charges filed on February 1, 2011 and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
FACTS:
1. On July 24, 2009, Khachik Sarkissian ("Sarkissian") hired Respondent to handle his "child support arrearage problem," which was an arrearage in child support payments which had accrued over more than five years. Respondent had been Sarkissian’s attorney in the dissolution of marriage, for which judgment, including the final child support order, was entered on December 27, 2002. The child support order terminated in September 2008, when the child reached age 18. There was no written fee agreement, but they agreed to an hourly rate of $350 and a deposit of $1,500, which Sarkissian paid on July 24, 2009.
2. Sarkissian mistakenly thought that he could get the arrearage greatly reduced by a retroactive modification to the child support order, but such retroactive modifications are forbidden by statute. The only legal service possible was negotiation with the Department of Child Support Services ("DCSS") for a payment plan with a forbearance of enforcement of the judgment, Sarkissian and Respondent spoke to each other of “reduced monthly payments," but Sarkissian meant those payments which had accrued in the past, and Respondent meant future payments to satisfy DCSS.
3. Sarkissian provided Respondent with incomplete financial records, which could not be used to show a financial hardship in the negotiations with DCSS. Sarkissian was self-employed, but he omitted the IRS Form 1040 Schedule C (business income) from the federal tax returns he provided Respondent for 2007 and 2008.
4. During the month of September 2009, Sarkissian made several requests by telephone for a status report. Respondent replied to two of the calls with requests for the missing Schedule C’s. Respondent did not return the other four calls. Sarkissian did not provide a Schedule C for either year.
5. On October 12, 2009, Sarkissian sent an e-mail requesting a status report and an accounting, and demanding a "court date soon." By this time it was clear to Respondent that Sarkissian thought the court was going to decrease his child support arrearage. Respondent did not reply, and did not otherwise advise Sarkissian that the court could not modify his arrearage.
6. On November 3, 2009, Sarkissian sent a letter to Respondent in which Sarkissian complained of no accounting and no communication from Respondent since July 24, 2009. Sarkissian requested a refund of his $1,500 if Respondent was not interested in handling the case. Respondent did not reply.
7. On May 3, 2010, a State Bar complaint analyst sent a written inquiry to Respondent concerning a complaint received from Sarkissian about Respondent’s failures to perform and communicate. The inquiry requested a written response by May 14, 2010. Respondent did not reply.
8. On July 1, 2010, a State Bar investigator sent a letter to Respondent requesting his written response to specific allegations made by Sarkissian. The investigator also requested any documents which supported the written response, and requested that the written response be submitted by July 9, 2010. Respondent did not reply.
9. On July 19, 2010, a State Bar investigator sent another letter to Respondent which repeated the requests made in the letter of July 1, 2010. Respondent did not reply.
10. Respondent provided no legal services of any value to Sarkissian.
11. Respondent paid the refund of $1,500.00 to Sarkissian on June 3, 2011.
CONCLUSIONS OF LAW:
12. Respondent’s failure to reply to Sarkissian’s letter of November 3, 2009, or to work on the case at anytime thereafter, made November 3, 2009 the effective date of the termination of Respondent’s services.
13. Respondent failed to correct Sarkissian’s mistaken impression of a pending court date after Sarkissian’s mistake became apparent to Respondent by October 12, 2009, and failed to notify Sarkissian in writing that no services would be performed without full disclosure of Sarkissian’s income. Respondent thereby repeatedly or recklessly failed to perform legal services with competence, and willfully violated rule 3-110(A) of the California Rules of Professional Conduct.
14. Respondent failed to render an appropriate accounting of Sarkissian’s funds after Sarkissian requested an accounting on October 12, 2009, and Respondent thereby willfully Violated rule 4-100(B)(3) of the California Rules of Professional Conduct.
15. After termination of his services on November 3, 2009, Respondent failed to promptly refund any part of a fee paid in advance that has not been earned, and Respondent thereby willfully violated rule 3-700(D)(2) of the California Rules of Professional Conduct.
16. Respondent failed to cooperate and participate in a disciplinary investigation when he failed to respond to the State Bar’s letters of May 3, 2010, July l, 2010, and July 19, 2010. He thereby willfully violated Business and Professions Code section 60680(i).
DISMISSALS:
The State Bar respectfully requests the Court to dismiss Count Two, which alleges violations of section 6068(m) of the Business and Professions Code, and further requests dismissal of Count Three, which alleges a violation of rule 3-700(A)(2) of the Rules of Professional Conduct. These dismissals are requested in the interests of justice.
SUPPORTING AUTHORITY:
Standards
Standard 2.2(b) requires an actual suspension of at least three months for a violation of rule 4-100(A), irrespective of mitigating circumstances.
The standards are not binding upon the court and should not be followed in a talismanic fashion.
See discussion in In re Silverton (2005) 36 Cal.4th 81, 91-92.
Case Law
In Sternlieb v. State Bar (1990) 52 Cal.3d 317, attorney Sternlieb misappropriated $2,997 from her CTA by collecting her fees before she was authorized to use those CTA funds, which she was holding pending a division of community property in a divorce case. She was found culpable of violating the predecessors of Rule 4-100(A) by failing to maintain client funds in her CTA, Rule 4-100(B)(3) by failing to render an accounting, and Rule 4-100(B)(4) by failure to pay the funds as requested by the client. The decision does not mention Standard 2.2(b) nor any aggravating
circumstances. The Supreme Court found mitigating factors of no prior discipline in more than eight years of practice, evidence of good character, and remorse. An actual suspension of 30 days was considered adequate for protection of the public.
Respondent here does not have the misappropriation violation, but also does not have Ms. Sternlieb’s mitigating factors of no prior discipline, evidence of good character, and remorse.
PENDING PROCEEDINGS:
The disclosure date referred to on page 2, paragraph A(7), was June 2, 2011.
COSTS:
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of June 6, 2011, the costs in this matter are $3,269.00. 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.
Case Number(s): 10-O-05855
In the Matter of: Daniel Joseph Sweeney
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: Daniel Joseph Sweeney
Date: June 7, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Larry DeSha
Date: June 7, 2011
Case Number(s): 10-O-05855-DFM
In the Matter of: Daniel Joseph Sweeney
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:
Judge of the State Bar Court: Donald F. Miles
Date: 6/27/11
[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 June 28, 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:
DANIEL JOSEPH SWEENEY
290 EAST VERDUGO Number 108
BURBANK, CALIFORNIA 91502
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
LARRY DESHA, ESQUIRE, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on June 28, 2011.
Signed by:
Rose Luthi
Case Administrator
State Bar Court