Case Number(s): 10-O-08238, 10-O-09577, 10-O-09579, 10-O-10532, 10-O-10329, 10-O-10638, 10-O-11150, 10-O-11193, 10-O-11201, 11-O-10486, 11-O-11982
In the Matter of: Raymond Carl Prospero, Bar # 238087, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Dane C. Dauphine
Supervising Trial Counsel
1149 South Hill St.
Los Angeles, CA 90015-2299
(213) 765-1293
Bar# 121606
Counsel for Respondent: In Pro Per Respondent
Raymond Prospero
P.O. Box 2950
Corona, CA 92878
(951) 277-4395
Bar # 238087
Submitted to: Assigned Judge, State Bar Court Clerk’s Office Los Angeles
Filed: October 25, 2011.
<<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 November 22, 2005.
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 23 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.
<<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.
Attachment language (if any): Respondent shall pay $1,040 to Timothy Krantz pursuant to the sanctions order dated August 28, 2009, of the Orange County Superior Court in TBF Financial v. Tyson Gomez, case no. 30-2009-00257423, no later than two years after the effective date of the disciplinary order. Respondent shall receive credit for any payment made prior to the issuance of the disciplinary order.
Respondent shall also pay $250 to the Riverside County Superior Court as ordered by the court on August 16, 2010, in the matter entitled Crisanto Leonar and Pacita Leonar v. Howard Kim, case no. RIC529492, no later than two years after the effective date of the disciplinary order. Respondent shall receive credit for any payment made prior to the issuance of the disciplinary.
In the Matter of: Case Number(s): Raymond Carl
Prospero, no. 238087 10-O-08238, 10-O-09577, 10-O-09579, 10-O-09759, 10-O-10532, 10-O-10329, 10-O-10638, 10-O-11150, 10-O-11193, 10-O-11201, 11-O-10486, 11-O-11982
Substance Abuse Conditions Respondent must abstain from use of any alcoholic beverages, and shall not use or possess any narcotics, dangerous or restricted drugs, controlled substances, marijuana, or associated paraphernalia, except with a valid prescription.
b. checked. Respondent must attend at least 2 meetings per month of:
<<not>> checked. Alcoholics Anonymous
<<not>> checked. Narcotics Anonymous
<<not>> checked. The Other Bar
checked. Other program Respondent may attend meetings of Alcoholics Anonymous, The Other Bar, or
Celebrate Recovery.
As a separate reporting requirement, Respondent must provide to the Office of Probation satisfactory proof of attendance during each month, on or before the tenth (10th) day of the following month, during the condition or probation period.
Respondent must select a license medical laboratory approved by the Office of Probation. Respondent must furnish to the laboratory blood and/or urine samples as may be required to show that Respondent has abstained from alcohol and/or drugs. The samples must be furnished to the laboratory in such a manner as may be specified by the laboratory to ensure specimen integrity. Respondent must cause the laboratory to provide to the Office of Probation, at the Respondent’s expense, a screening report on or before the tenth day of each month of the condition or probation period, containing an analysis of Respondent’s blood and/or urine obtained not more than ten (10) days previously. Respondent must maintain with the Office of Probation a current address and a current telephone number at which Respondent can be reached. Respondent must return any call from the Office of Probation concerningtesting of Respondent’s blood or urine within twelve (12) hours. For good cause, the Office of Probation may require Respondent to deliver Respondent’s urine and/or blood sample(s) for additional reports to the laboratory described above no later than six hours after actual notice to Respondent that the Office of
Probation requires an additional screening report. 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:
In the Matter of:
Case Number(s):
Raymond Carl Prospero, no. 238087
10-O-08238, 10-O-09577, 10-O-09579, 10-O-09759, 10-O-10532, 10-O-10329,
10-O-10638, 10-O-11150, 10-O-11193, 10-O-11201, 11-O-10486, 11-O-11982
Financial Conditions
a. Restitution
<<not>> 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.
Payee; Cynthia Banzali, Principal Amount; $3,000, Interest Accrues From; July 1, 2010
Payee; Amanda Gomez, Principal Amount; $1,500, Interest Accrues From; July 1, 2010
Payee; Cheryl K. Hart, Principal Amount; $1,500, Interest Accrues From; July 1, 2010
Payee; Kimberly Serna, Principal Amount; $1,800, Interest Accrues From; July 1, 2010
Payee; Maria Lopez or Gerardo Trujillo, Principal Amount; $2,000, Interest Accrues From; July 1, 2010
Payee; Amelia Campbell $6,000, Principal Amount; $2,000, Interest Accrues From; July 1, 2010
Payee; Jessica Clark, Principal Amount; $2,050, Interest Accrues From; July 1, 2010
Payee; Pacita Leonor, Principal Amount; $1,500, Interest Accrues From; July 1, 2010
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than two years from the effective date of the disciplinary order. Respondent shall receive credit towards completion of restitution for payments made prior to the issuance of the disciplinary order.
b. Installment Restitution Payments
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.
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.
c. Client Funds Certificate
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:
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:
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,
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.
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.
d. Client Trust Accounting School
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.
(Effective January 1,2011)
Financial Conditions
ATTACHMENT TO STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: Raymond Carl Prospero, no. 238087
CASE NUMBER(S): 10-O-08238,10-O-09577,10-O-09579,10-O-09759, 10-O-10532,10-O-10329,10-O-10638,10-O-11150, 10-O-11193,10-O-11201,11-O-10486,11-O-11982
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.
Background Facts
1. During the period from in or about January 2010 to June 2010, Respondent shared an office with non-attorney John Alarcon ("Alarcon"). During that time, Respondent shared legal fees received from clients with Alarcon in willful violation of the Rules of Professional Conduct, rule 1-320(A).
2. During this same period, Respondent’s abuse of alcohol became increasingly destructive to his practice of law. Beginning on June 30, 2010 until August 15, 2010, Respondent was out of his office obtaining medical treatment and counseling for alcohol addiction.
3. When Respondent returned to his office, he learned that his name had been removed from the office and that Alarcon had taken funds from the general office account that Respondent shared with Alarcon. Respondent removed some of the client files from the office and returned later to retrieve the rest of the files, but Alarcon denied Respondent access. In October 2010, Alarcon had several boxes of client files delivered to Respondent’s home.
Case No. 10-O-08238 (Complainant: Cynthia Banzali)
FACTS:
4. On or about December 21, 2009, Cynthia Banzali ("Banzali") employed Respondent to represent her in filing a Chapter 7 bankruptcy petition and to represent her at a 341 (a) creditors meeting for a flat fee of $1,499. During the months of December 2009 through March 2010, Banzali paid Respondent $1,400 in advanced fees.
5. On March 3, 2010, Banzali met with Respondent and signed a bankruptcy petition.
6. On April 28, 2010, Banzali also paid Respondent $1,500 in advanced fees for representation in seeking a modification of her home loan. Respondent received the advanced fees for loan modification work which had not been completed in violation of Civil Code section 2944.7(a).
7. On March 31, 2010, staff in Respondent’s office informed Banzali that her bankruptcy petition would be filed that week. Thereafter, the petition was not filed, and on or about June 7, 2010, Respondent told Banzali that he thought the bankruptcy was put on hold pending a loan modification.
8. On or about June 17, 2010, Respondent filed a bankruptcy petition on behalf of Banzali in the U.S. Bankruptcy Court located in Santa Ana, case no. 8:10-bk-18214-ES. The petition was not accompanied by the required documents, and on June 17, 2010, the bankruptcy court issued a case commencement deficiency notice identifying a number of deficiencies which needed to be corrected within 14 days from filing of the petition. The court served the notice by mail on both Respondent and
Banzali. Thereafter, Respondent did not file the required documents or take action to address the deficiencies.
9. After Banzali received the notice of deficiencies from the court, she called Respondent’s office repeatedly and left messages asking him to call her. Respondent received the messages but did not return Banzali’s calls.
10. On or about June 24, 2010, Banzali employed new counsel and mailed a letter to Respondent terminating his services.
11. In her letter of June 24, 2010, Banzali requested that Respondent refund the fees she had paid. Respondent received the letter. Respondent did not respond to Banzali’s letter.
12. Banzali initiated fee arbitration with the Riverside County Bar Association. On or about April 22, 2011, the arbitrator determined that Respondent had not earned the fees he received and awarded a refund of $3,000 to Banzali. Thereafter, the award became final.
13. At no time has Respondent refunded any of the unearned fees to Banzali.
CONCLUSIONS OF LAW:
14. By not responding to Banzali’s calls in June 2010, Respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services in willful violation of the Business and Professions Code, section 6068(m).
15. By accepting fees for loan modification work prior to completion of the services, Respondent engaged in conduct in violation of Civil Code section 2944.7(a) in willful violation of Business and Professions Code, section 6106.3.
16. By not refunding any of the unearned fees to Banzali, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of the Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 10-O-09577 (Complainant: Amanda Gomez)
FACTS:
1. On April 5, 2010, Amanda Gomez ("Gomez") and her husband, Juan O. Gomez, employed Respondent to represent her in filing for bankruptcy relief. On that date, Gomez paid Respondent $1,500 as a flat fee for his services.
2. Beginning on June 30, 2010 until August 15, 2010, Respondent was out of his office obtaining medical treatment and counseling for alcohol addiction.
3. Clark needed to complete credit counseling to file for bankruptcy relief which she and her husband completed on August 11, 2010. Thereafter, they called and left messages for Respondent at Respondent’s office, but no one returned their calls. Finally, on August 24, 2010, Respondent’s former staff informed Gomez that Respondent had entered medical treatment for alcohol abuse and closed his office, and Gomez received a phone number where she could reach Respondent. During the next week,
Gomez left several messages for Respondent, asking that he return her calls, but Respondent did not return Gomez’s calls.
4. Respondent never returned the $1,500 in unearned fees to Gomez. In or about December 2010, Gomez employed new counsel who filed a bankruptcy petition for her.
CONCLUSIONS OF LAW:
17. By ceasing to perform services for Gomez without informing her that he was withdrawing from representation, Respondent failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client in willful violation of the Rules of Professional Conduct, rule 3-700(A)(2).
18. By not refunding the $1,500 in unearned fees to Gomez after withdrawing from representation, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of the Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 10-O-09579 (Complainant: Timothy Krantz)
FACTS:
19. Beginning in or about April 2009, Respondent represented the defendant in the Orange County Superior Court case entitled TBF Financial, Inc., v. Tyson Gomez, case no. 30-2009-00257423.
20. On August 28, 2009, the court ordered that the defendant and his counsel pay discovery sanctions of $1,040 to opposing counsel, Timothy Krantz. Respondent had notice of the court’s order. Thereafter, Tyson Gomez did not pay the sanctions and filed bankruptcy.
21. Respondent did not pay the $1,040 sanctions to opposing counsel as ordered by the court.
CONCLUSIONS OF LAW:
22. By not paying the $1,040 in sanctions to Timothy Krantz as ordered by the court, Respondent willfully disobeyed or violated an order of the court requiring him to do or forbear an act connected with or in the course of Respondent’s profession which he ought in good faith to do or forbear in willful violation of the Business and Professions Code, section 6103.
Case No. 10-O-09759 (Complainant: Debbie Nielsen)
FACTS:
5. In or about May 2008, Deborah E. Nielsen ("Nielsen") employed Respondent to represent her filing for Chapter 7 Bankruptcy relief. Nielsen paid Respondent $1,450 as attorney fees and advanced costs for court filing fees. On May 22, 2008, Respondent filed a bankruptcy petition on behalf of Nielsen in the U.S. Bankruptcy Court, Central District of California (Riverside), case no. 6:08-bk 15940. In October 2008, the Trustee and the attorney for the trustee contacted Respondent with regard to an interest Nielsen held in some property willed to her from her parents and shared with her four sisters. It was believed that the equity in the property could be used to pay some of Nielsen’s debts. In the meantime the case was put on hold while this matter was to be researched.
6. Over the following 20 months, Nielsen made periodic calls to Respondent’s office inquiring as to the status of the case and was told either that Respondent was working on it.
7. Beginning on June 30, 2010 until August 15, 2010, Respondent was out of his office obtaining medical treatment and counseling for alcohol addiction.
8. In or about July 20101 Nielsen learned that Respondent was no longer at his office address. When Nielsen tried to contact Respondent by certified mail, it was returned undelivered. In July 2010, the bankruptcy court suspended Respondent from practice before the Central District, and he became disqualified to represent her further in that court. Respondent did not contact Nielsen and inform her that he had to withdraw from representation. Respondent did not release the client file to Nielsen.
9. CONCLUSIONS OF LAW:
10. By withdrawing from representation without informing Nielsen and releasing the file to Nielsen, Respondent failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client in willful violation of the Rules of Professional Conduct, rule 3-700(A)(2).
Case No. 10-O-10532 (Complainant: Cheryl K. Hart)
FACTS:
11. On December 12, 2008, Cheryl Hart and Edward Hart employed Respondent to represent them in filing for bankruptcy relief and $1,500 in advanced fees to Respondent. Since the Harts had requested that their bank modify their home loan, Respondent advised them to wait until the loan modification was complete before filing bankruptcy.
12. Beginning on June 30, 2010 until August 15, 2010, Respondent was out of his office obtaining medical treatment and counseling for alcohol addiction.
13. In June 2010, the Harts had still not had a final determination on their loan modification request, but they needed to address debts arising from their former business which had closed in December 2008 and decided to ask Respondent if they should now proceed with a bankruptcy case.
14. In or about July 2010, the contacted Respondent’s office and were told that Respondent was ill and would not return to the office until August 2010. In or about August 2010, Hart contacted Respondent’s office and was told that Respondent was not returning to the office. In fact, Respondent was being denied access to the office by his former staff, John Alarcon.
15. On August 24, 2010, Respondent mailed a letter to the Harts stating that he was closing his law firm but would continue to practice law part-time and asked if they wanted Respondent to continue representing them. The Harts returned the Client Intention Form enclosed in Respondent’s letter stating that they wanted a refund of the fees paid.
16. Respondent did not refund the $1,500 in unearned fees to the Harts.
17. CONCLUSIONS OF LAW:
18. By not refunding the $1,500 in unearned fees to the Harts, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of the Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 10-O- 10329 (Complainant: Rebecca McGuire & Katherine C. Sloan)
FACTS:
19. In or about September 2006, Rebecca McGuire ("McGuire") employed Respondent to represent her 15-year-old daughter, Katherine Charlotte Sloan ("Katherine"), in a personal injury claim arising from a car accident. Respondent agreed to take the case on contingency fee basis.
20. On June 3, 2009, Respondent filed a civil action on behalf of Katherine in the Riverside County Superior Court entitled Katherine Sloan v. Amy Truong, case no. RIC527962 ("Sloan case"). Thereafter, Respondent never filed a proof of service in the Sloan case.
21. On September 1, 2009, the court issued an order to show cause ("OCS") why sanctions of $150 should not be ordered for failure to file a proof of service to be heard on December 2, 2009. On December 2, 2009, Respondent sent other counsel to make a special appearance in the Sloan case and to inform the court that he was attempting to locate the defendant, and the court continued the hearing to February 3, 2010. On February 3, 2010, Respondent again sent other counsel to make a special
appearance in the Sloan case and the court again continued the hearing to May 5, 2010. On May 5, 2010, the court dismissed the Sloan case without prejudice.
22. Beginning on June 30, 2010 until August 15, 2010, Respondent was out of his office obtaining medical treatment and counseling for alcohol addiction.
23. On September 29, 2010, Respondent mailed a letter to Katherine stating that he was closing his law firm but would continue to practice law part-time. He stated that the insurance company for the defendant was prepared to make a settlement offer and asked if Katherine wanted him to continue to represent her. Katherine returned the Client Intention Form enclosed in Respondent’s letter stating that he would like Respondent to continue to represent her and requested a return receipt, but the mail was returned as rejected. Respondent did not inform Katherine that her case had been dismissed by the court. Respondent took no action to pursue Katherine’s claim or to file a new action which was still viable since Katherine had become an adult only in 2009.
24. CONCLUSIONS OF LAW:
25. By not taking action to pursue Katherine’s case and causing the dismissal of the case or thereafter seek to settle her claim or file a new case, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of the Rules of Professional Conduct, rule 3-110(A).
26. By not informing Katherine that her case had been dismissed, Respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code, section 6068(m).
Case No. 10-O-10638 (Complainant: Kimberl¥ A. Serna)
FACTS:
27. On October 16, 2007, Kimberly Serna ("Serna") employed Respondent to prepare and file a bankruptcy petition on her behalf. On the date, Serna paid Respondent $1,500 for attorney fees and $300 as advanced costs for court filing fees. Thereafter, Respondent prepared a petition on behalf of Serna but never filed the petition.
28. In January 2009, when Serna requested to know the status of her matter, Respondent informed her by email that he had confirmation from his courier service that the documents were forwarded for filing. In fact, Respondent never filed the petition and never informed Serna that it was not filed. Thereafter, Respondent repeatedly told Serna that there was a court date set, but as each date approached, Respondent had a staff person call Serna to tell her that the date was continued. In March of 2010, Respondent told Serna that he needed updated information to provide to the court including a credit report which Serna provided to Respondent. Thereafter, Respondent informed Serna that there was a court date set in her matter for July 30, 2010.
29. Beginning on June 30, 2010 until August 15, 2010, Respondent was out of his office obtaining medical treatment and counseling for alcohol addiction.
30. On July 29, 2010, Serna contacted Respondent’s office to find out where the court hearing would be, and she learned from Respondent’s former staff that, in fact, her case had never been filed with the bankruptcy court.
31. On August 24, 2010, Respondent mailed a letter to Serna stating that he was closing his law firm but would continue to practice law part-time and asked if Serna wanted Respondent to continue representing her. Serna returned the Client Intention Form enclosed in Respondent’s letter stating that she wanted a refund of the funds paid to Respondent in fees and costs. Respondent received the mail but did not respond.
32. Respondent’s services were of no value to Serna, and he did not earn any of the fees paid by Serna. Respondent did not refund any of the $1,500 to Serna. Also, Respondent never returned the advanced costs of $300 paid by Serna for the court filing fee.
CONCLUSIONS OF LAW:
33. By not filing Serna’s bankruptcy petition despite assurances that he had done so, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of the Rules of Professional Conduct, rule 3-110(A).
34. By misrepresenting to Serna that he had filed her bankruptcy petition when he knew, or was grossly negligent in not knowing, that he had failed to do so, Respondent committed an act involving moral turpitude, dishonesty or corruption in willful violation of Business and Professions Code, section 6106.
35. By not refunding the $1,500 in unearned fees to S erna, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of the Rules of Professional Conduct, rule 3-700(D)(2).
36. By not returning the $300 in advanced costs to Serna which had not been used to file the bankruptcy petition as requested by Serna, Respondent, failed to pay promptly, as requested by a client, any funds in Respondent’s possession which the client is entitled to receive in willful violation of Rules of Professional Conduct, rule 4-100(B)(4).
Case No. 10-O-11150 (Complainant: Maria Lopez & Gerardo Trujillo)
FACTS:
37. On December 1, 2009, Maria Lopez ("Lopez") and Gerardo Trujillo ("Trujillos"), a married couple, employed Respondent to prepare and file a bankruptcy petition. In December 2009, they paid Respondent a total of $2,000, which included a flat fee of $1,700 and advanced costs of $300 for the court filing fee. Thereafter, Respondent did not prepare and file a bankruptcy petition for Lopez and Yrujillo.
38. Beginning on June 30, 2010 until August 15, 2010, Respondent was out of his office obtaining medical treatment and counseling for alcohol addiction.
39. On August 24, 2010, Respondent mailed a letter to Trujillo stating that he was closing his law firm but would continue to practice law part-time and asked if Trujillo wanted Respondent to continue representing him. Lopez and Trujillo returned the Client Intention Form enclosed in Respondent’s letter stating that they wanted Respondent to continue to represent them and would like to meet with him as soon as possible. Thereafter, Lopez and Trujillo called Respondent and left messages requesting that he return their calls, but Respondent did not respond to the calls from Lopez and Trujillo.
40. On September 30, 2010, Lopez and Trujillo mailed a letter to Respondent asking him to proceed with their bankruptcy filing or to return the fees to them so that they could seek help elsewhere. Respondent received the letter but did not respond. Respondent received the letter but did not respond.
41. Respondent did not refund the $1,700 in unearned fees or return the $300 in advanced costs to Lopez and Trujillo.
CONCLUSIONS OF LAW:
42. By not preparing and filing a bankruptcy petition on behalf of Lopez and Trujillo despite repeated request by the clients, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of the Rules of Professional Conduct, rule 3-110(A).
43. By not responding to letters and telephone calls from Lopez and Trujillo, Respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code, section 6068(m).
44. By not refunding the $1,700 in uneamed fees as requested by Lopez and Trujillo, Respondent failed to refund promptly any part of a fee paid in advance that has not been eamed in willful violation of the Rules of Professional Conduct, rule 3-700(D)(2).
45. By not retuming the $300 in advanced costs to Lopez and Trujillo which had not been used to file the bankruptcy petition as requested by Lopez and Trujillo, Respondent, failed to pay promptly, as requested by a client, any funds in Respondent’s possession which the client is entitled to receive in willful violation of Rules of Professional Conduct, rule 4-100(B)(4).
Case No. 10-O-11193 (Complainant: Amelia Campbell)
FACTS:
46. On May 11, 2010, Amelia Campbell ("Campbell") employed Respondent to represent her and Senior Life, a corporation for which Campbell is an officer, as defendants in a civil action. At that time, Campbell paid Respondent $6,000 in advanced fees pursuant to an hourly fee agreement.
47. On May 26, 2010, Respondent filed a demurrer on behalf of Campbell. On June 2, 2010, Respondent filed an answer on behalf of Senior Life. Respondent informed Campbell that he had filed a demurrer on her behalf and that the hearing was to be held on August 2, 2010.
48. Beginning on June 30, 2010 until August 15, 2010, Respondent was out of his office obtaining medical treatment and counseling for alcohol addiction.
49. During the month of July 2010, Campbell called Respondent’s office on multiple occasions inquiring into the status of her matter. Although she left messages, Respondent did not return the calls. Eventually, someone at Respondent’s office told her that Respondent was on medical leave but that he or some other attorney would appear for the demurrer. Campbell appeared at court for the August 2, 2010, hearing on the demurrer and learnd that the hearing had been continued to August 17, 2010.
Campbell contacted Respondent’s office and was told by Respondent’s staff that Respondent or some other attomey would appear for the hearing. Campbell appeared for the demurrer hearing on August 17, 2010, but no attorney appeared to represent her. The court continued the hearing to September 27, 2010.
50. On August 21, 2010, Campbell mailed a letter to Respondent’s office terminating Respondent’s employment and requesting an accounting and refund of unearned fees as well as the release of her file. On October 8, 2010, Respondent signed substitutions of attorney were filed to substitute new counsel in place of Respondent as counsel for Campbell and Senior Life. Respondent did not release Campbell’s client file or provide any accounting for the $6,000 received from Campbell. Respondent did not earn all of the $6,000 advanced by Campbell, but Respondent did not refund any of the unearned fees to Campbell.
51. CONCLUSIONS OF LAW:
52. By not appearing at the demurrer hearing on behalf of Campbell on August 17, 2010, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of the Rules of Professional Conduct, rule 3-110(A).
53. By not releasing the client file to Campbell as requested by Campbell when she terminated Respondent’s employment, 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 the Rules of Professional Conduct, rule 3-700(D)(1).
54. By not providing an accounting for the $6,000 advanced by Campbell as fees, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession in willful violation of Rules of Professional Conduct, rule 4-100(B)(3).
55. By not refunding any of the unearned fees to Campbell after she terminated his employment, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of the Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 10-O-11201 (Complainant: Jessica M. Clark)
FACTS:
56. On August 18, 2009, Jessica Clark ("Clark") employed Respondent to represent her in filing for bankruptcy relief, and Clark paid Respondent $2,050. In October 2009, Clark provided information to Respondent as requested for him to complete her bankruptcy petition and completed credit counseling so that the petition could be filed.
57. Respondent never filed a bankruptcy petition for Clark.
58. Over the next several months after October 2009, Clark called Respondent’s office and left messages requesting that he inform her of the case number for her bankruptcy case. Respondent did not return the calls, but Respondent’s secretary left Clark a message informing her that Respondent wanted her to know that a court date was scheduled for June 18, 2010.
59. During the week of June 18, 2010, Respondent called Clark and told her that the court date had been postponed and that he would get back to her with a new date. At that time, Clark asked Respondent for the case number, but he said that he did not have the file in hand. In fact, Respondent knew that there was no court date and that he had not filed Clark’s bankruptcy petition.
60. On June 18, 2010, Clark became concerned and visited the bankruptcy court in Riverside and learned that her case had never been on calendar. On that date, Clark went to Respondent’s office and confronted him. Respondent gave Clark some paperwork with a case number on it and Clark’s name and set an appointment with her for July 7, 2010. In fact, Respondent knew that he had not filed a bankruptcy petition on behalf of Clark. Clark returned to the courthouse and discovered that the case number provided by Respondent was not for her case.
61. Beginning on June 30, 2010 until August 15, 2010, Respondent was out of his office obtaining medical treatment and counseling for alcohol addiction.
62. On July 7, 2010, Clark returned to Respondent’s office and learned that he was away from the office seeking medical attention.
63. On August 24, 2010, Respondent mailed a letter to Clark stating that he was closing his law firm but would continue to practice law part-time and asked if she wanted Respondent to continue representing her. Clark returned the Client Intention Form enclosed in Respondent’s letter stating that she wanted a refund of the fees paid. Respondent did not refund any of the $2,050 in unearned fees to Clark.
64. CONCLUSIONS OF LAW:
65. By not preparing and filing a bankruptcy petition on behalf of Clark despite assurances that he had done so, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of the Rules of Professional Conduct, rule 3-110(A).
66. By misrepresenting to Clark that he had filed a bankruptcy petition on her behalf when he knew, or was grossly negligent in not knowing, that he had failed to do so, Respondent committed an act involving moral turpitude, dishonesty or corruption in willful violation of Business and Professions Code, section 6106.
67. By not refunding the $2,050 to Clark upon her request, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of the Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 11-O-10486 (Complainant: Pacita Leonor)
FACTS:
68. On October 14, 2008, Pacita Leonor ("Leonor") employed Respondent to represent her in a breach of contract matter and signed a fee agreement to pay Respondent an hourly fee for his representation. At that time, Leonor paid Respondent $350 for Respondent to send a demand letter to the opposing party in Leonor’s matter.
69. On February 2, 2009, Leonor paid Respondent $1,500 in advanced fees. On June 23, 2009, Respondent filed a civil action on behalf of Leonor and her husband, Crisanto Leonor, in the Riverside County Superior Court entitled Crisanto Leonar and Pacita Leonar v. Howard Kim, case no. RIC529492 ("the Leonor case"). Thereafter, Respondent did not file a proof of service of the summons on the defendant.
70. On September 12, 2009, the court issued an order to show cause ("OSC") why sanctions should not be ordered for failure to file a proof of service. Respondent did not appear for the hearing on the OSC and the case management conference ("CMC") set for January 7, 2010, but sent another attorney in his place. At that time, the court sanctioned Respondent to pay $150 on or before January 27, 2010, to the court for failure to file a proof of service of the summons and continued the CMC to May 13, 2010.
71. On May 13, 2010, Respondent sent another attorney to appear in his place for the CMC. At that time, the court issued an OSC why the Leonor case should not be dismissed unless an answer or default is entered prior to the OSC hearing set for June 28, 2010 and continued the CMC to that same date.
72. Beginning on June 30, 2010 until August 15, 2010, Respondent was out of his office obtaining medical treatment and counseling for alcohol addiction.
73. On June 28, 2010, Respondent did not appear for the OSC and CMC and did not send any attorney in his place. Leonor and her husband appeared for the OSC and CMC. The court continued the CMC to August 16, 2010, and ordered that an attorney from Respondent’s law firm personally appear on that date for an OSC why sanctions of $250 should not be ordered against Respondent’s firm for failure to appear. The clerk mailed a notice of the order to Respondent’s law office.
74. On August 16, 2010, Respondent did not appear for the OSC and case management conference or send any attorney in his place. Leonor and her husband appeared for the OSC and made an oral motion to be allowed to proceed in pro per because she believed that Respondent had abandoned her, and the court granted the motion. At that time, the court ordered that Respondent’s firm pay sanctions of $250 to the clerk on or before September 7, 2010, and the court also continued the CMC to November 19, 2010. The court clerk mailed a notice of the order to Respondent’s law office.
75. On August 24, 2010, Respondent mailed a letter to Leonor informing her that he was closing his law office but was available to continue her representation at a new location if she wished. Leonor received Respondent’s letter and returned the enclosed Client Intention Form to Respondent indicating that she wished him to continue with her representation. Thereafter, Respondent did not contact Leonor or respond to her calls.
76. On December 22, 2010, Leonor mailed a letter to Respondent stating that she now intended to seek new counsel and requested that Respondent release the client file and refund the fees she paid to him. Respondent received the letter but did not respond.
77. Respondent did not release the client file to Leonor. Respondent did not account to Leonor for the $1,500 in advanced fees or refund any of the fees to Leonor.
78. Leonor was unable to find new counsel. On April 7, 2011, Leonor filed a request for dismissal without prejudice, and the court dismissed the case.
CONCLUSIONS OF LAW:
79. By withdrawing from representation without informing Leonor and releasing the file to Leonor, Respondent failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client in willful violation of the Rules of Professional Conduct, rule 3-700(A)(2).
80. By not providing an accounting for the $1,500 advanced by Leonor as fees, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession in willful violation of Rules of Professional Conduct, rule 4-100(B)(3).
Case No. 11-O-11982 (Complainant: Chris Mercadal)
FACTS:
81. In February 2011, Respondent requested to go on inactive status with the State Bar. On February 24, 2011, the entry was made to place Respondent on inactive status effective February 2, 2011.
82. On March 7, 201 l, Respondent mailed a letter on his law office letterhead to Chris Mercadal ("Mercadal") stating that his office represented the Merced family in their dispute with Mercadal over some real property in Riverside. At the time that Respondent mailed the letter, he knew that he had requested that the State Bar enroll him as an inactive member. Respondent mailed the letter to assist a client who was a friend and who did not pay Respondent for his services.
83. After Mercadal received Respondent’s letter, he learned from the State Bar that Respondent was inactive. On March 10, 2011, Mercadal emailed Respondent, responding to the letter and raising the issue of Respondent’s inactive status. Respondent responded by email to state that he was voluntarily inactive and would return to active status. Mercadal responded that Respondent should not contact him if he had not changed his status back to active. Thereafter, Respondent did not return to
active status but ceased to represent the Merced family in the matter.
CONCLUSIONS OF LAW:
84. By holding himself out in his letter of March 7, 2011, as entitled to practice law when he was on inactive status in violation of Business and Professions Code section 6126, Respondent failed to support the laws of this state in willful violation of Business and Professions Code, section 6068(a).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was September 22, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
According to Standard 2.4 of the Standards for Attorney Discipline, the appropriate discipline for culpability of a member of a pattern of wilfully failing to perform services demonstrating the member’s abandonment of the causes in which he or she was retained shall result in disbarment. Such misconduct in an individual matter or in matters not demonstrating a pattern shall result in reproval or suspension.
In cases involving abandonment of four to six clients, the court has often imposed an actual suspension of two years. See In the Matter of Brockway (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 944, 961 [2 year actual suspension imposed for misconduct in four separate client matters with a prior discipline].
The court in Brockway stated that disbarment is imposed where there are more instances of misconduct such that the behavior was characterized as a habitual disregard of clients’ interests or a pattern of misconduct under standard 2.4(a).
Here, Respondent has
committed misconduct affecting at least 10 clients, but the misconduct occurred
during a period when Respondent was abusing alcohol and does not establish
habitual disregard or a pattern. Respondent has completed a rehabilitation
program and is demonstrating a desire to rehabilitate himself.
Case Number(s): 10-O-08238, 10-O-09577, 10-O-09579, 10-O-09579, 10-O-01532, 10-O-10329, 10-O-10329, 10-O-10638, 10-O-11150, 10-O-11193, 10-O-11201, 11-O-0486, 11-O-11982
In the Matter of: Raymond Carl Prospero
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: Raymond C. Prospero
Date: 9/29/11
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Dane C. Dauphine
Date: 10/3/2011
Case Number(s): 10-O-08238, 10-O-09577, 10-O-09579, 10-O-09759, 10-O-10532, 10-O-10329, 10-O-10638, 10-O-11150, 10-O-11193, 10-O-11201, 11-O-10486, 11-O-11982
In the Matter of: Raymond Carl Prospero
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 AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
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.)
Page 14 – Paragraph 11, second line – Delete – “And $1,500”
- Insert – And said $1,500.”
Page 15 – Paragraph 14 – First Line – Delete – “The contacted”
- Insert – “The Harts contacted
Page 16 – Paragraph 27– Second Line – Delete – “On the date “
- Insert – “On that date”
Signed by:
Judge of the State Bar Court: Richard A. Platel
Date: 10-19-11
(Effective January 1, 2011)
Actual Suspension Order
[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 October 25, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSION 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:
Raymond C. Propsero
PO Box 2950
Corona, CA 92878
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Dane Dauphine, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 25, 2011.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court