Case Number(s): 10-O-09257 [10-O-10543; 10-O-10684; 10-O-10921; 11-O-16158; 11-O-19461]
In the Matter of: Anthony Bayard de Volo, Bar # 210018, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Donald R. Steedman
180 Howard Street, 7th Floor
San Francisco, CA 94105, Bar # 104927,
Counsel for Respondent: Samuel Bellicini
Fishkin & Slatter LLP
1111 Civic Dr Ste 215
Walnut Creek, CA 94596
Bar# 152191
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted on December 4, 2000.
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.
DISCLOSURE OF PENDING INVESTIGATIONS
The disclosure mentioned in paragraph A7 was made by letter dated February 23, 2012.
FACTS AND CONCLUSIONS OF LAW
COUNT ONE
Case No. 10-O-10684
Rules of Professional Conduct, rule 3-110(A)
[Failure to Perform with Competence]
1. Respondent wilfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, or repeatedly failing to perform legal services with competence, as follows:
2. Respondent represented Reinalda Chavez ("Chavez") in connection with her mortgage loan modification case between in or about July 2009 and February 24, 2010.
3. During that time, Chavez never met or spoke with respondent or any other lawyer connected with respondent’s law practice. Instead, Chavez received all legal advice from non-attorney agents of respondent’s law practice. Respondent delegated to non-attorneys the duty of signing Chavez up as a client, accepting advance fees from Chavez, explaining the terms of the fee agreement, and providing the initial legal advice concerning the legal engagement and potential outcomes. Respondent delegated to non-attorneys responsibility for negotiating the loan modification with Chavez’s lender. Respondent never personally contacted the lender. Respondent delegated to a non-attorney the duty of explaining the lender’s loan modification proposal and related documents.
4. Respondent failed to properly supervise his non-attorney staff, who engaged in incompetent legal services. This incompetence included but was not limited to the following: The above-mentioned non-attorneys led Chavez to believe that she was being represented by an attorney when this was not true.
5. By improperly delegating his duties to non-attorney staff, by failing to ever meet with the client, and by failing to properly supervise his non-attorney staff, respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence.
COUNT TWO
Case No. 10-O-09257
Rules of Professional Conduct, rule 3-110(A)
[Failure to Perform with Competence]
6. Respondent wilfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, and repeatedly failing to perform legal services with competence, as follows:
7. Respondent represented Kenneth Bousfield in connection with his mortgage loan modification case from on or about June 5, 2009 to in or about May 2010.
8. For most of the representation, Bousfield never met with respondent or any other lawyer connected with respondent’s law practice. Instead, Bousfield received all of his legal advice from non-attorney agents of respondent’s law practice. Respondent delegated to a non-attorney responsibility for signing Bousfield up as a client, accepting advance fees from Bousfield, explaining the terms of the fee agreement, and providing the initial legal advice concerning the legal engagement and potential outcomes. The fee agreement was particularly complex because, inter alia, it contained provisions which respondent later interpreted as advising the client that he did not qualify for a loan modification and, further, contained a provision by which the fee was said to be non-refundable and earned upon receipt. Respondent delegated to non-attorneys responsibility for negotiating the loan modification. Respondent never personally contacted the lender. Prior to January 2010, respondent delegated to non-attorneys the duty to provide information and advice to Bousfield concerning the firm’s progress in obtaining the loan modification, including the provisions of the temporary loan modification. By the time respondent first spoke with Kahn, in or about January 2010, the loan modification had been denied and the foreclosure process had begun.
9. Respondent failed to properly supervise his non-attorney staff, who engaged in incompetent legal services and inappropriate actions including: the above-mentioned non-attorneys led Bousfield to believe that he was being represented by an attorney when this was not true.
10. By improperly delegating his duties to non-attorney staff, by failing to meet with the client until far into his representation, by failing to properly supervise his non-attorney staff, respondent intentionally, recklessly and repeatedly failed to perform legal services with competence.
COUNT THREE
Case No. 10-O-10921
Rules of Professional Conduct, rule 3-110(A)
[Failure to Perform with Competence]
11. Respondent wilfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, and repeatedly failing to perform legal services with competence, as follows:
12. Respondent represented Becky Lois ("Lois") in connection with her mortgage loan modification case from on or about November 2008 to in or about November 2009.
13. For most of the representation, Lais never met with respondent or any other lawyer connected with respondent’s law practice. Instead, Lois received all of her legal advice from non-attorney agents of respondent’s law practice. Respondent delegated to non-attorneys responsibility for signing Lais up as a client, accepting advance fees from Lois, explaining the terms of the fee agreement, and providing the initial legal advice concerning the legal engagement and potential outcomes.
14. Respondent delegated to non-attorneys responsibility for negotiating the loan modification. Respondent never personally contacted the lender. Prior to June 2009, respondent delegated to non-attorneys the duty to provide information and advice to Lais concerning the firm’s progress in obtaining the loan modification.
15. In June 2009, respondent had his first and only conversation with Lais. At all times thereafter, respondent again delegated to the above-named non-attorneys his responsibility to provide legal advice and communication concerning the progress of the loan modification matter.
16. After his June 2009 telephone call with Lais, respondent failed to take competent actions to save Lais’ property from foreclosure and the house was lost in foreclosure in or about November 2009.
17. Respondent failed to properly supervise his non-attorney staff, who engaged incompetent legal services and inappropriate actions including: (1) advising Lais to provide the lender with documentation indicating that she had rented rooms in her house when this was not so and (2) failing to respond to Lais’ telephone calls and failing to to provide status updates during the time Lais’ house went into foreclosure.
18. By improperly delegating his duties to non-attorney staff, by failing to ever speak with his client except on one occasion, by failing to properly supervise his non-attorney staff, and by failing to take competent actions to save Lais’ property from foreclosure, respondent intentionally, recklessly and repeatedly failed to perform legal services with competence.
COUNT FOUR
Case No. 10-O-10543
Rules of Professional Conduct, rule 3-110(A)
[Failure to Perform with Competence]
19. Respondent wilfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, or repeatedly failing to perform legal services with competence, as follows:
20. On or about September 22, 2009, Veilka Gallo ("Gallo") employed respondent to represent her in a mortgage home loan modification matter. Gallo paid respondent $4,000.00 at that time for attorney fees.
21. On or about October 19, 2009, Gal]o employed respondent represent her in a mortgage loan matter concerning a second piece of real property. On or about October 19, 2009, Gallo paid respondent an additional $4,000.00 for legal fees.
22. Respondent represented Gallo until at least February, 2010. At all times through the conclusion of representation, Gallo never met or spoke with respondent or any other lawyer connected with respondent’s law practice. Instead, Gallo received all of his legal advice from non-attorney agents of respondent’s law practice. Respondent delegated to non-attorneys the responsibility for signing Gallo up as a client, accepting advance fees from Gallo, explaining the terms of the fee agreements, and providing the initial legal advice concerning the legal engagements and potential outcomes. This October 19, 2009, fee agreement was particularly complex because respondent subsequently interpreted it as authorizing him to take advance fees despite the language of the newly enacted Civil Code section 2944.7 subdivision (a). Respondent delegated to non-attorneys responsibility for negotiating the loan modifications with Gallo’s lender and providing legal advice and information to the client concerning ~he progress of the loan modification matters. Respondent never personally contacted the lender.
23. Respondent failed to properly supervise his non-attorney staff, who engaged incompetent and improper services as follows:
Respondent’s agents first advised Gallo to place funds with an escrow company. Then, on or about July 27, 2010, respondent or his agents caused the client’s funds to be removed from escrow and given to respondents’ agents in the amounts of $782.50 and $7,042.50, respectively. Respondent’s agents took this action without Gallo’s knowledge or consent. The funds were not returned to the client until September 10, 2010. However, neither respondent nor respondent’s agents had any right to take the funds and their actions constituted overreaching and misappropriation of funds.
Respondent’s agents engaged in competent legal services because they did not accurately explain to the client the ramifications of the loan modifications they obtained.
COUNT FIVE
Case Nos. 10-O-09257 and 10-O-10543
Business and Professions Code, section 6090.5(a)(2)
[Seeking an Agreement to Not to File/Withdraw a State Bar Complaint]
24. Respondent, while acting as a party or as an attorney for a party, wilfully violated Business and Professions Code, section 6090.5(a)(2), by agreeing or seeking agreement that professional misconduct not be reported to the disciplinary agency and that a plaintiff would withdraw a disciplinary complaint or would not cooperate with the investigation or prosecution conducted by the disciplinary agency, as follows:
25. At all times mentioned, the State Bar of California was the agency charged with the investigation of disciplinary complaints against lawyers.
26. On or about September 10, 2010, Gallo’s attorney Carlos Martinez ("Martinez") filed a lawsuit against respondent on behalf of Gallo. Thereafter, on or about September 30, 2010, in the course of negotiating a settlement of Gallo’s civil lawsuit against respondent, respondent sent an email to Martinez stating "Can yu [sic] retract any other complaints to DA or Bar." On or about October 8, 2010, the State Bar received a discipline complaint against respondent which had been submitted by Martinez on behalf of Gallo. By making the communication on or about September 30, 2010, respondent sought agreement that a plaintiff would not cooperate with an investigation or prosecution conducted by the disciplinary agency and sought agreement that professional misconduct not be reported to the State Bar.
27. On or about August 13, 2010, Bousfield filed a disciplinary complaint against respondent with the State Bar. Thereafter, respondent became aware of the complaint and the State Bar’s investigation. Thereafter, on or about November 3, 2010, respondent had a telephone conversation with Bousfield in which respondent offered Bousfield $2,000.00 if Bousfield would drop his State Bar complaint. By making the communication on November 3, 2010, respondent sought agreement that Bousfield would withdraw a disciplinary complaint and would not cooperate with the investigation or prosecution conducted by the disciplinary agency.
COUNT SIX
Case No. 11-O-16158
Rules of Professional Conduct, rule 3-110(A)
[Failure to Perform with Competence]
28. Respondent wilfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, or repeatedly failing to perform legal services with competence, as follows:
29. Respondent represented Tida Turay in connection with her mortgage loan modification case between in or about April 2009 and May 2010.
30. During that time, Turay never mot or spoke with respondent or any other lawyer connected with respondent’s law practice. Instead, Turay received all legal advice from non-attorney agents of respondent’s law practice. Respondent delegated to a non-attorney the duty of signing Turay up as a client, accepting advance fees from Turay, explaining the terms of the fee agreement, and providing the initial legal advice concerning the legal engagement and potential outcomes. Respondent delegated to non-attorneys, responsibility for negotiating the loan modification with Turay’s lender. Respondent never personally contacted the lender. Respondent delegated to these non-attorneys the duty of explaining the lender’s responses to the loan modification requests.
31. Respondent failed to properly supervise his non-attorney staff, who engaged in incompetent legal services. This incompetence included but was not limited to the following: Respondent’s agents advised Turay to provide documentation indicating that Turay’s sister was living in the residence and was providing financial assistance in paying the mortgage, when none of this was true.
32. By improperly delegating his duties to non-attorney staff, by failing to ever meet with the client, and by failing to properly supervise his non-attorney staff, respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence.
COUNT SEVEN
Case No. 11-O-16158
Rules of Professional Conduct, rule 3-400(B)
[Limiting Liability to a Client]
33. Respondent wilfully violated Rules of Professional Conduct, rule 3-400(B), by settling a claim or potential claim for respondent’s liability to the client for respondent’s professional malpractice, without informing the client in writing that the client may seek the advice of an independent lawyer of the client’s choice regarding the settlement and giving the client a reasonable opportunity to seek that advice, as follows:
34. On or about May 25, 2010, in response to the Turay’s request for a refund, respondent (acting through his agent asked Turay to sign a broad release. This document purported to release respondent from all liability in connection any cause of action including the "...acts and omissions or other false..." of respondent and thus was sufficiently broad to cover liability for professional malpractice.
35. Turay signed the document on or about May 25, 2010, and provided it to respondent’s agent.
36. Respondent obtained this document without informing Turay in writing that she could seek the advice of an independent lawyer of the client’s choice regarding the settlement and without giving the Turay a reasonable opportunity to seek that advice.
37. By obtaining the May 25, 2010 release, respondent settled a claim or potential claim for respondent’s liability to the client for respondent’s professional malpractice, without informing the client in writing that the client may seek the advice of an independent lawyer of the client’s choice regarding the settlement and giving the client a reasonable opportunity to seek that advice.
COUNT EIGHT
Case No. 11-O-19461
Rules of Professional Conduct, rule 3-400(A)
[Limiting Liability to a Client]
38. Respondent wilfully violated Rules of Professional Conduct, rule 3-400(A), by contracting with a client prospectively limiting respondent’s liability to the client for respondent’s professional malpractice, as follows:
39. On or about December 16, 2008, Luis S. Sousa and respondent entered a written fee agreement in which Sousa employed respondent to represent him in loan modification matters. In his written fee agreement, respondent inserted a provision whereby Sousa "...irrevocably and unconditionally release and forever discharges Representative and their agents, officers and employees from any and all charges and complaints that I have against them in connection with the services performed under this Fee Agreement."
40. By entering the fee agreement with Sousa with the above quoted language, respondent contracted with a client prospectively limiting respondent’s liability to the client for respondent’s professional malpractice.
SUPPORTING AUTHORITY
This case bears some similarities to In the Matter of Nelson (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 178, wherein a six month suspension was imposed upon an attorney who improperly delegated his law practice to non-attorneys. However, the State Bar is recommending a lower level of discipline here, because the Nelson case involved capping and solicitation and because respondent has agreed to this early settlement.
Case Number(s): 10-O-09257 et al
In the Matter of: Anthony Bayard de Volo
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
The terms of pleading nolo contendere are set forth in the Business and Professions Code and the Rules of Procedures of the State Bar. The applicable provisions are set forth below:
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a notice of disciplinary charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere will be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court will find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based.
Rules of Procedure of the State Bar, rule 5.56. Stipulations to Facts, Conclusions of Law, and Disposition
“(A) Contents. A proposed stipulation to facts, conclusions of law, and disposition must comprise:
[¶] . . . [¶]
(5) a statement that the member either:
(a) admits the truth of the facts comprising the stipulation and admits culpability for misconduct; or
(b) pleads nolo contendere to those facts and misconduct;
[¶] . . . [¶]
(B) Plea of Nolo Contendere. If the member pleads nolo contendere, the stipulation must also show that the member understands that the plea is treated as an admission of the stipulated facts and an admission of culpability.”
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 5.56 of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent: Anthony Bayard de Volo
Date: February 28, 2012
SIGNATURE OF THE PARTIES
Case Number(s): 10-O-09257
In the Matter of: Anthony Bayard de Volo
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: Anthony Bayard de Volo
Date: February 28, 2012
Respondent’s Counsel: Samuel Bellicini
Date: February 28, 2012
Deputy Trial Counsel: Donald R. Steedman
Date: March 1, 2012
Case Number(s): 10-O-09257 et al.
In the Matter of: Anthony Bayard de Volo
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.
checked. All Hearing dates are vacated.
On page 4 of the stipulation, an “X” is inserted in the box next to paragraph D.(1)(b).
On page 4 of the stipulation, the “X” in the box next to paragraph E.(1) is deleted.
On page 10 of the stipulation, in the final paragraph of numbered section 23, “agents engaged in competent legal services” is deleted, and in its place is inserted “agents engaged in incompetent legal services.”
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: Lucy Armendariz
Date: March 7, 2012
[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 March 7, 2012, 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:
SAMUEL C. BELLICINI
FISHKIN & SLATTER, LLP
1111 CIVIC DR STE 215
WALNUT CREEK, CA 94596
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DONANLD R. STEEDMAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on March 2, 2012.
Signed by:
Mazie Yip
Case Administrator
State Bar Court