Case Number(s): 10-O-08838, 11-O-12292, 11-O-13904, 11-O-14033
In the Matter of: Drew Allan Cicconi , Bar # 83202 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Lee Ann Kern, Deputy Trial Counsel
1149 South Hill Street
Los Angeles, California 90015
Bar #156623
Counsel for Respondent: In Pro Per Respondent
Drew Allan Cicconi
CICCONI LAW FIRM
101 S Topanga Blvd
PO Box 366
Topanga, CA 90290
Bar # 83202
Submitted to: Assigned Judge, State Bar Court Clerk’s Office Los Angeles
Filed: January 3, 2012.
<<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 29, 1978.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 14 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
<<not>> checked. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: 2013 and 2014. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
<<not>> checked. Substance Abuse Conditions.
<<not>> checked. Law Office Management Conditions.
<<not>> checked. Medical Conditions.
<< > checked. Financial Conditions.
IN THE MATTER OF: Drew Allan Cicconi , State Bar No. 83202
STATE BAR COURT CASE NUMBER: 10-O-08838, 11-O-12292, 11-O-13904,
11-O-14033
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 Nos. 10-O-08838 (Complainant: Kelly Cicconi), 10-0-08838 (State Bar Investigation), 11-O-12292 (State Bar Investigation), 11-O-13904 (State Bar Investigation), and 11 -O- 14033 (State Bar Investigation)
FACTS:
l. At all relevant times, Respondent maintained a Client Trust Account, number
***- **’8475, at Wells Fargo Bank ("CTA").
2. On March 2, 2007 and on April 26, 2011, Respondent misused his CTA by depositing into the CTA his own cash, as well as issuing paper checks payable to non-clients, transferring funds to non-clients, and making check card and point of sale (POS) purchases on numerous occasions from the CTA to pay his personal and business expenses. Respondent’s use of his CTA during that period includes, but is not limited to the following:
Date: 03/02/07, Check No. Online Transfer, Payee: Kelly Cicconi,
Amount: $435.00
Date: 03/12/07, Check No. 2070, Payee: CitiMortage,
Amount: $2,443.72
Date: 06/05/07, Check No. Online Transfer, Payee: Clothes and Shoes for Julia, Amount: $65.00
Date: 06/25/07, Check No. 2187, Payee: Kelly Cicconi,
Amount: $150.00
Date: 02/03/08, Check No. 2333, Payee: Dwight Wong (Rent),
Amount: $2880.00
Date: 09/11/08, Check No. 2454, Payee: Macy’s,
Amount: $97.38
Date: 10/07/08, Check No. 2469, Payee: Kelly Cicconi (Support),
Amount: $4,000.00
Date: 01/09/09, Check No. 2513, Payee: Kelly Cicconi (Support),
Amount: $4,000.00
Date: 01/29/09, Check No. 2522, Payee: Kelly Cicconi (Support),
Amount: $3,000.00
Date: 05/17/10, Check No. Deposit, Payee: Non-client Cash,
Amount: $1,500.00
Date: 06/03/10, Check No. Deposit, Payee: Non-client Cash,
Amount: $3,000.00
Date: 08/27/10, Check No. POS Purchase, Payee: Vons,
Amount: $30.26
Date: 01/31/11, Check No. POS Purchase, Payee: Arco,
Amount: $50.79
Date: 04/25/11, Check No. ATM Withdrawal, Payee: Cash,
Amount: $40.00
Date: 04/26/11, Check No. Check Card, Payee: Sage Brush Cantina,
Amount: $60.07
CONCLUSIONS OF LAW:
3. By depositing his own cash into the CTA, as welt as issuing paper checks payable to non-clients, transferring funds to non-clients, and making check card and POS purchases from the CTA to pay his personal and business expenses, Respondent deposited or commingled funds belonging to
Respondent in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import, in willful violation of Rules of Professional Conduct, rule 4-100(A).
Case No. 10-O-08838 (Kelly Cicconi)
FACTS:
4. On April 27, 2007, Respondent received two settlement checks in the amount of $500,000 each drawn from an account at City National Bank on behalf of his clients, Laura and Stephen Scott. On that same day, Respondent deposited the checks into his CTA, the checks immediately cleared, and Respondent issued the Scott’s a check in the amount of $850,000 for their share of the settlement t\mds.
5. Respondent earned attorney’s fees in the amount of $150,000 from the Scott’s settlement and his fee was fixed as of on or about April 27, 2007.
6. Respondent never moved his earned fees from the CTA. Instead, Respondent left the earned fees in the CTA and withdrew the fees as needed to pay his personal and business expenses.
CONCLUSIONS OF LAW:
7.By failing to move his $150,000 in earned fees from the CTA following the settlement in the Scott’s case, Respondent failed to withdraw funds formerly belonging in part to a client and in part presently or potentially to Respondent from a client trust account at the earliest reasonable time after Respondent’s interest in the funds became fixed, in willful violation of Rules of Professional Conduct, rule 4-100(A)(2).
Case No. 11-O-13904 (State Bar Investigation)
FACTS:
8. In early May 2011, Wells Fargo Bank notified the State Bar about non-sufficient funds ("NSF") in Respondent’s account, as set forth in paragraphs 11, above ("early May 2010 NSF item").
9. On April 21, 2011, an investigator for the State Bar mailed a letter to Respondent at his at his State Bar membership address requesting a response to the early May 2011 NSF item. The letter was not returned in the mail as undeliverable or for any other reason. Respondent received the
investigator’s letter.
10. On July 20, 2011, an investigator for the State Bar again mailed a letter to Respondent at his at his State Bar membership address requesting a response to the early May 2011 NSF item. The letter was not returned in the mail as undeliverable or for any other reason. Respondent received the investigator’s letter.
11. Respondent did not respond in writing to the State Bar’s letters or otherwise cooperate in the investigation regarding the early May 2011 NSF item.
CONCLUSIONS OF LAW:
12. By not providing a written response regarding the early May 2011 NSF item, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent, in willful violation of Business and Professions Code section 6068(i).
Case No. 11-O-14033 (State Bar Investigation)
FACTS:
13. In late May 2011, Wells Fargo Bank notified the State Bar about non-sufficient funds
(“NSF”) in Respondent’s account, as set forth in paragraphs 11, above (~’late May 2010 NSF items").
14. On April 21,2011, an investigator for the State Bar mailed a letter to Respondent at his at his State Bar membership address requesting a response to the late May 2011 NSF items. The letter was not returned in the mail as undeliverable or for any other reason. Respondent received the investigators letter.
15. On July 20, 2011, an investigator for the State Bar again mailed a letter to Respondent at his at his State Bar membership address requesting a response to late May 2011 NSF items. The letter was not returned in the mail as undeliverable or for any other reason. Respondent received the investigator’s letter.
16. Respondent did not respond in writing to the State Bar’s letters or otherwise cooperate in the investigation regarding the late May 2011 NSF items.
CONCLUSIONS OF LAW:
17. By not providing a written response regarding the late May 2011 NSF items, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent, in willful violation of Business and Professions Code section 6068(i).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was November 22, 2011.
MITIGATING CIRCUMSTANCES.
Standard 1.2(e)(i): Respondent was admitted to the bar on November 28, 1978, and has no prior record of discipline.
Standard 1.2(e)(iii): Respondent’s misconduct did not result in client harm.
AGGRAVATING CIRCUMSTANCES,
Standard 1.2(b)(ii): Multiple acts of misconduct. Respondent misused his trust account over a period of four years.
LEGAL AUTHORITIES SUPPORTING DISCIPLINE.
Although the Standards are not mandatory, it is well established that the Standards may be deviated from only when there is a compelling, well-defined reason to do so. See Aronin v. State Bar (1990) 52 Cal.3d 291; Bates v. State Bar (1990) 51 Cal.3d 1056, 1060, fn. 2.
Standard 1.6(a): When two or more acts of misconduct are found in a single disciplinary proceeding and different sanctions are prescribed by the standards, the discipline imposed should be the most severe of the different applicable sanctions.
Standard 2.2(b): Culpability of a member of violating rule 4-100(A), Rules of Professional Conduct, shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances, in this matter, good cause exists to deviate from the discipline described in Standard 2.2(b) because of Respondent’s lack of prior disciplinary record and lack of client harm.
Standard 2.6: Culpability of a member of a violation of sections 5068(i) shall result in suspension or disbarment.
Depositing personal funds into a client trust account and using the trust account for personal expenses constitutes comingling within the meaning of rule 4-100(A), Rules of Professional Conduct. (In the Matter of Doran (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 871) Rule 4-100(A) bars use of the trust account for personal purposes, even if client funds are not on deposit. (In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615,625.)
In the Matter of Broderick (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 138, Broderick was found culpable in a probation violation matter and in an original proceeding. In the original matter, Broderick misused his client trust account as a personal account, failed to respond to reasonable status inquiries, failed to safeguard client funds, and failed to cooperate in the State Bar’s investigation. In aggravation, Broderick had a prior record of discipline, engaged in multiple acts of misconduct, and caused his client harm. In mitigation, Broderick was candid and cooperative with the State Bar. The discipline was three years stayed suspension and four years probation, conditioned on actual suspension for one year.
Although the misconduct in the instant matter is similar to that in which Broderick engaged, Broderick’s misconduct was more extensive. In addition, the Broderick case involved the misuse of client funds and harm to that client, which are factors that are not present in the instant matter. As such, the discipline to which the State Bar and the Respondent stipulated is .just and reasonable.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 22, 2011, the prosecution costs in this matter are $5,473. 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.
In the Matter of: Drew Allen Cicconi
Case Number(s): 10-O-08838, 11-O-12292, 11-O-13904, 11-O-14033
a. Restitution
[]
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 Principal Amount Interest Accrues From
[]
Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than
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
[]
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.
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:
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:
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.
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.
Case Number(s): 10-O-08838, 11-O-12292, 11-O-13904, 11-O-14033
In the Matter of: Drew Allan Cicconi
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: Drew Allan Cicconi
Respondent: Drew Allan Cicconi
Date: December 5, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Lee Ann Kern
Date: December 15, 2011
Case Number(s): 10-0-08838, 11-0~12292, 11-0-13904, 11-0-14033
In the Matter of: Drew Allan Cicconi
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
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.
On page 9 of the stipulation, in the second line of numbered paragraph 8, the inaccurate reference (", as set forth in paragraphs 11, above") is deleted.
On page 9 of the stipulation, in the second line of numbered paragraph 13, the inaccurate reference (", as set forth in paragraphs 11, above") is deleted.
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: Donald F. Miles
Judge of the State Bar Court:
Date: December 22, 2011
[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on January 3, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSION OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL SUSPENSION
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:
DREW ALLAN CICCONI
CICCONI LAW FIRM
101 S. TOPANGA BLVD.
PO BOX 366
TOPANGA, CA 90290
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
LEE ANN KERN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 3, 2012.
Signed by: Tammy Cleaver
Case Administrator
State Bar Court