State Bar Court of California
Los Angeles Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 10-O-08646
In the Matter of: Jose Elias Sanchez, Bar # 212603, A
Member of the State Bar of California, (Respondent).
Counsel for The State Bar: PAUL T. O’BRIEN
1149 S. HILL STREET
LOS ANGELES, CA 9015-2299
(213) 765-1378
Bar # 171252,
Counsel for Respondent: FRANK MARCHETTI
1155 N. CENTRAL AVE., STE. 101
GLENDALE, CA 91202
(626) 237-3208
Bar # 203185
Submitted to: Settlement Judge, State Bar Court Clerk’s
Office San Francisco.
Filed: November 2, 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.
A. Parties' Acknowledgments:
1.
Respondent is a member of the State Bar of California, admitted March
15, 2001.
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 9 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: February 1 for
the following membership years: two billing cycles following the effective date
of the Supreme Court order imposing the discipline herein. (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.
B. Aggravating
Circumstances [for definition, see Standards for Attorney Sanctions for
Professional Misconduct, standard 1.2(b)]. Facts supporting aggravating
circumstances are required.
checked. (1) Prior record of discipline [see standard 1.2(f)]
checked. (a) State Bar Court case #
of prior case 05-O-03424.
checked. (b) Date prior discipline
effective December 26, 2006.
checked. (c) Rules of Professional
Conduct/ State Bar Act violations:
checked. (d) Degree of prior
discipline Private reproval
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(e) If Respondent has two
or more incidents of prior discipline, use space provided below.
<<not>> checked. (2) Dishonesty: Respondent's
misconduct was surrounded by or followed by bad faith, dishonesty, concealment,
overreaching or other violations of the State Bar Act or Rules of Professional
Conduct.
<<not>> checked. (3) Trust Violation: Trust funds or
property were involved and Respondent refused or was unable to account to the
client or person who was the object of the misconduct for improper conduct
toward said funds or property.
<<not>> checked. (4) Harm: Respondent's misconduct
harmed significantly a client, the public or the administration of justice.
<<not>> checked. (5) Indifference: Respondent
demonstrated indifference toward rectification of or atonement for the
consequences of his or her misconduct.
checked. (6) Lack of Cooperation: Respondent displayed a lack of
candor and cooperation to victims of his/her misconduct or to the State Bar
during disciplinary investigation or proceedings.
<<not>> checked. (7) Multiple/Pattern of Misconduct:
Respondent's current misconduct evidences multiple acts of wrongdoing or
demonstrates a pattern of misconduct.
<<not>> checked. (8) No aggravating circumstances are
involved.
Additional aggravating circumstances: **.
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
<<not>>
checked. (1) No Prior Discipline:
Respondent has no prior record of discipline over many years of practice
coupled with present misconduct which is not deemed serious. **
checked.
(2)
No Harm: Respondent did not harm the client or person who was the object
of the misconduct.
<<not>>
checked. (3) Candor/Cooperation:
Respondent displayed spontaneous candor and cooperation with the victims of
his/her misconduct and to the State Bar during disciplinary investigation and
proceedings. **
checked.
(4)
Remorse: Respondent promptly took objective steps spontaneously
demonstrating remorse and recognition of the wrongdoing, which steps were
designed to timely atone for any consequences of his/her misconduct.
Respondent promptly took steps to ensure that his client, Maria Lopez, was made
whole for the NSF check he issued from his CTA.
checked.
(5)
Restitution: Respondent paid $4,000 on July 19, 2010 in restitution
to Maria Lopez without the threat or force of disciplinary, civil or
criminal proceedings.
<<not>>
checked. (6) Delay: These
disciplinary proceedings were excessively delayed. The delay is not
attributable to Respondent and the delay prejudiced him/her. **
<<not>>
checked. (7) Good Faith: Respondent
acted in good faith. **
checked.
(8)
Emotional/Physical Difficulties: At the time of the stipulated act or
acts of professional misconduct Respondent suffered extreme emotional
difficulties or physical disabilities which expert testimony would establish
was directly responsible for the misconduct. The difficulties or
disabilities were not the product of any illegal conduct by the member, such as
illegal drug or substance abuse, and Respondent no longer suffers from such
difficulties or disabilities. Respondent ahs provided a report from his
therapist that demonstrates that he has made great progress in dealing with
severe depression resulting from events in his personal life since the time of
the misconduct.
<<not>>
checked. (9) Severe Financial Stress:
At the time of the misconduct, Respondent suffered from severe financial stress
which resulted from circumstances not reasonably foreseeable or which were
beyond his/her control and which were directly responsible for the misconduct.
**
<<not>>
checked. (10) Family Problems: At the time of the misconduct, Respondent
suffered extreme difficulties in his/her personal life which were other than
emotional or physical in nature. **
<<not>>
checked. (11) Good Character: Respondent's good character is attested to
by a wide range of references in the legal and general communities who are
aware of the full extent of his/her misconduct. **
<<not>>
checked. (12) Rehabilitation: Considerable time has passed since the acts
of professional misconduct occurred followed by convincing proof of subsequent
rehabilitation. **
<<not>>
checked. (13) No mitigating circumstances are involved. **
Additional mitigating circumstances: **
D.
Discipline:
checked.
(1)
Stayed Suspension:
checked.
(a) Respondent must be suspended from the practice of law for a period of one
year.
<<not>>
checked. i. and until Respondent shows proof satisfactory to the State Bar
Court of rehabilitation and present fitness to practice and present learning
and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney
Sanctions for Professional Misconduct.
<<not>>
checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
<<not>>
checked. iii. and until Respondent does the following: **.
checked.
(b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on probation
for a period of two years, which will commence upon the effective date of the
Supreme Court order in this matter. (See rule 9.18, California Rules of
Court.)
checked. (3) Actual Suspension:
checked.
(a) Respondent must be actually suspended from the practice of law in the State
of California for a period of 30 days.
<<not>>
checked. i. and until Respondent shows proof satisfactory to the State Bar
Court of rehabilitation and present fitness to practice and present learning
and ability in the law pursuant to standard 1.4(c)(ii), Standards for Attorney
Sanctions for Professional Misconduct
<<not>>
checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
<<not>>
checked. iii. and until Respondent does the following: **.
E. Additional Conditions of Probation:
<<not>>
checked. (1) If Respondent is actually suspended for
two years or more, he/she must remain actually suspended until ** he/she proves
to the State Bar Court his/her rehabilitation, fitness to practice, and learning
and ability in the general law, pursuant to standard 1.4(c)(ii), Standards for
Attorney Sanctions for Professional Misconduct.
checked.
(2)
During the probation period, Respondent must comply with the provisions of the
State Bar Act and Rules of Professional Conduct.
checked.
(3)
Within ten (10) days of any change, Respondent must report to the Membership
Records Office of the State Bar and to the Office of Probation of the State Bar
of California ("Office of Probation"), all changes of information,
including current office address and telephone number, or other address for
State Bar purposes, as prescribed by section 6002.1 of the Business and
Professions Code.
checked.
(4)
Within thirty (30) days from the effective date of discipline, Respondent must
contact the Office of Probation and schedule a meeting with Respondent's
assigned probation deputy to discuss these terms and conditions of probation.
Upon the direction of the Office of Probation, Respondent must meet with the
probation deputy either in-person or by telephone. During the period of
probation, Respondent must promptly meet with the probation deputy as directed
and upon request.
checked.
(5)
Respondent must submit written quarterly reports to the Office of Probation on
each January 10, April 10, July 10, and October 10 of the period of probation.
Under penalty of perjury, Respondent must state whether Respondent has complied
with the State Bar Act, the Rules of Professional Conduct, and all conditions
of probation during the preceding calendar quarter. Respondent must also state
whether there are any proceedings pending against him or her in the State Bar
Court and if so, the case number and current status of that proceeding. If the
first report would cover less than 30 days, that report must be submitted on
the next quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same
information, is due no earlier than twenty (20) days before the last day of the
period of probation and no later than the last day of probation.
<<not>>
checked. (6) Respondent must be assigned a probation
monitor. Respondent must promptly review the terms and conditions of probation
with the probation monitor to establish a manner and schedule of compliance.
During the period of probation, Respondent must furnish to the monitor such
reports as may be requested, in addition to the quarterly reports required to
be submitted to the Office of Probation. Respondent must cooperate fully with
the probation monitor.
checked.
(7)
Subject to assertion of applicable privileges, Respondent must answer fully,
promptly and truthfully any inquiries of the Office of Probation and any probation
monitor assigned under these conditions which are directed to Respondent
personally or in writing relating to whether Respondent is complying or has
complied with the probation conditions.
checked.
(8)
Within one (1) year of the effective date of the discipline herein, Respondent
must provide to the Office of Probation satisfactory proof of attendance at a
session of the Ethics School, and passage of the test given at the end of that
session.
No Ethics School recommended. Reason:
<<not>>
checked. (9) Respondent must comply with all conditions
of probation imposed in the underlying criminal matter and must so declare
under penalty of perjury in conjunction with any quarterly report to be filed with
the Office of Probation.
<<not>>
checked. (10) The following conditions are attached hereto and
incorporated:
<<not>> checked. Substance
Abuse Conditions.
<<not>> checked. Law Office
Management Conditions.
<<not>> checked. Medical
Conditions.
<<not>> checked. Financial
Conditions.
F. Other Conditions Negotiated by the Parties:
checked.
(1)
Multistate Professional Responsibility Examination: Respondent must
provide proof of passage of the Multistate Professional Responsibility
Examination ("MPRE"), administered by the National Conference of Bar
Examiners, to the Office of Probation during the period of actual suspension or
within one year, whichever period is longer. Failure to pass the MPRE
results in actual suspension without further hearing until passage. But see
rule 9.10(b), California Rules of Court, and rule 5.162(A) & (E), Rules of
Procedure.
<<not>> checked. No MPRE recommended. Reason:
<<not>> checked. (2) Rule 9.20,
California Rules of Court: Respondent must comply with the requirements
of rule 9.20, California Rules of Court, and perform the acts specified in
subdivisions (a) and (c) of that rule within 30 and 40 calendar days,
respectively, after the effective date of the Supreme Court's Order in this
matter.
<<not>> checked. (3) Conditional
Rule 9.20, California Rules of Court: If Respondent remains actually
suspended for 90 days or more, he/she must comply with the requirements of rule
9.20, California Rules of Court, and perform the acts specified in subdivisions
(a) and (c) of that rule within 120 and 130 calendar days, respectively, after
the effective date of the Supreme Court's Order in this matter.
<<not>> checked. (4) Credit for
Interim Suspension [conviction referral cases only]: Respondent will be
credited for the period of his/her interim suspension toward the stipulated
period of actual suspension. Date of commencement of interim suspension:.
<<not>> checked. (5) Other
Conditions:
Attachment language (if any):
(Effective
January 1, 2011)
Actual
Suspension
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION
IN THE MATTER OF: Jose Elias
Sanchez, State Bar No.: 212603
STATE BAR COURT CASE NUMBER:
10-O-08646; 10-O-09773
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and
that he is culpable of violations of the specified statutes and/or Rules of
Professional Conduct.
Case No. 10-O-08646; 10-O-09773 (State Bar Investigations)
FACTS:
1. On or about April 10, 2010, Respondent issued check
number 7075 to Roger Ordonez, in the amount of $3,000, from his client trust
account at Wells Fargo Bank, #XXXXXX-0827 ("CTA"). Payment of cheek
number 7075 caused the balance in Respondent’s CTA to fall to -$1,986.39.
2. On or about July 7, 2010, Respondent issued check number
7094 to Roger Ordonez, in the amount of $1,110, from his CTA, payment of which
caused the balance in Respondent’s CTA to fall to $21.39.
3. On or about July 15, 2010, Respondent issued check
number 7095 to Maria Lopez, in the amount of $4,000, from his CTA, payment of
which caused the balance in Respondent’s CTA to fall to -$3,956.39. Respondent
had deposited funds for Lopez’s benefit into a wholly separate client trust
account and failed to exercise due care when issuing check number 7095 to
Lopez.
4. When Respondent issued check numbers 7075, 7094, and
7095 from his CTA, he should have known that there were insufficient funds in
his CTA to cover those checks.
LEGAL CONCLUSIONS
By issuing check numbers 7075, 7094, and 7095 from his CTA,
when he should have known there were insufficient funds in the account to pay
those cheeks, Respondent wilfully committed an act or acts involving moral
turpitude.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7),
was October 7, 2011.
(Effective January 1,2011)
(Do not write above this line.)
AUTHORITIES SUPPORTING DISCIPLINE.
Pursuant to Standard 2.3, culpability of a member of an act
of moral turpitude shall result in actual suspension or disbarment depending
upon the exstent to which the victim of the misconduct is harmed or misled and
depending upon the magnitude of the act of misconduct and the degree to which
it relates to the member’s acts within the practice of law. Here, by recklessly
maintaining--or failing to maintain--adequate records to ensure that
withdrawals of funds were made from the same client trust account into which
monies were deposited for the benefit of one client, and by grossly negligently
making premature disbursements from his client trust account, Respondent
committed an act of moral turpitude.
DISMISSALS. The parties respectfully request the Court to
dismiss the following alleged violations in the interest of justice:
Case No. 10-0-08646; 10-O-09773, Count ONE, Alleged
Violation RPC 4-100(A)
Case No. 10-O-08646; 10-O-09773, Count TWO, Alleged
Violation B&P § 6106
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial
Counsel has informed respondent that as of October 7, 201 I, the prosecution
costs in this matter are $$3,269. 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.
(Effective January 1, 2011)
SIGNATURE OF THE PARTIES
Case Number(s): Jose Elias Sanchez
In the Matter of: 10-O-08646; 10-O-09773
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:
Jose Elias Sanchez
Date:
10/18/11
Respondent’s
Counsel: Frank E. Marchelti
Date:
10/18/11
Deputy Trial
Counsel: Paul T. O’Brien
Date:
10/21/11
ACTUAL SUSPENSION ORDER
Case Number(s): 10-O-08646; 10-O-09773
In the Matter of: Jose Elias Sanchez
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.
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: Richard A. Honn
Date: 10/31/11
(Effective
January 1, 2011)
Actual
Suspension Order
CERTIFICATE OF SERVICE
[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 November 2, 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 San
Francisco, California, addressed as follows:
FRANK E. MARCHETTI
1155 N CENTRAL AVE STE 201
GLENDALE, CA 91202
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
Paul O’Brien, Enforcement, Los Angeles
I hereby
certify that the foregoing is true and correct. Executed in San Francisco,
California, on November 2, 2011.
Signed by:
George Hue
Case
Administrator
State Bar
Court