Case Number(s): 10-O-10687-LMA
In the Matter of: Abel Hernandez, Bar # 159902, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Ashod Mooradian, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
Bar # 194283
Counsel for Respondent: In Pro Per Respondent
4614 Hawthorn Woods
San Antonio, TX 78249
Bar # 159902
Submitted to: Assigned Judge
Filed: November 30, 2011 at 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 October 14, 1992.
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 11 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. Costs are added to membership fee for calendar year following effective date of discipline (public reproval).
checked. Case ineligible for costs (private reproval).
<<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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
<<not>> checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
IN THE MATTER OF: ABEL HERNANDEZ
CASE NUMBER(S): 10-O-10687
AND STIPULATED FACTS AND CULPABILITY:
The parties waive any variance between the Notice of Disciplinary Charges ("NDC") filed on May 13, 2011, and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
ABEL HERNANDEZ ("Respondent") admits that the following facts are true and that he is culpable of violations of the specified Rules of Professional Conduct.
Case No. 10-O- 10687 (Complainant: Andres Vasquez)
Facts Supporting Culpability:
1. At all times relevant herein, Respondent, an attorney licensed to practice law in Texas and California, has been advertising his services on the Internet as an expert on the legal and business aspects of starting a new church.
2. In March 2010, Pastor Andres Vasquez ("Vasquez") asked his administrative assistant, Virginia Tellers ("Tellers"), to search the Interact for an expert to help Vasquez start his new church, New Living Way, in California.
3. On March 15, 2010, Tellers contacted Respondent by telephone. Respondent quoted Tellers $1,997.00 for the following legal services: (i) consultation to determine the client’s vision for his church; (ii) inform and educate the client on the ecclesiastical requirements of a church; (iii) review and revise the church’s articles of incorporation; and (iv) obtain tax exempt status for the client’s church with an additional $750 fee as well as a $35 fee for the Secretary of State. Tellers reported her conversation with Respondent to Vasquez.
4. On March 16, 2010, Vasquez called Respondent. Respondent reiterated to Vasquez the legal services which he would provide for $1,997 in advanced fees. Vasquez agreed to employ Respondent.
5. Vasquez never provided Respondent with his organization’s financial records for the previous three years which was required before the Internal Revenue Service could make a tax-exempt status determination.
6. On March 17, 2010, Vasquez mailed to Respondent a $1,997.00 check for his legal services.
7. On March 23, 2010, Respondent negotiated Vasquez’s $1,997.00 check.
8. Thereafter, Respondent did not provide Vasquez with legal services or assistance in starting Vasquez’s church.
9. Between on April 1 and July 20, 2010, Vasquez and Tellers repeatedly telephoned and emailed Respondent, requesting a return call or an email response.
10. Respondent received the telephone messages and the emails but did not return the messages or respond to the emails.
Conclusions of Law:
11. By not providing Vasquez with legal services or assistance in starting Vasquez’s new church, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
12. By not returning his client’s multiple calls and emails, Respondent failed to respond to client inquiries in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code, section 6068(m).
1. Respondent has no prior record of discipline and had been admitted to the practice of law in California for nearly eighteen (18) years when the misconduct herein occurred.
2. Respondent has exhibited candor and cooperation with the State Bar of California in that he has stipulated to facts, conclusions of law and level of discipline 2.
3. Respondent has expressed remorse to the State Bar for his misconduct and acknowledged his wrongdoing.
4. On September 26, 2011, Respondent paid $1,997.00 to his client Andres Vasquez as restitution.
D. AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.3 provides that the primary purposes of attorney discipline are, "the protection of the public, the courts and the legal profession; the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession."
Standard 1.6(a) provides that if two or more acts of misconduct are found in the same proceeding, the sanction imposed shall be the more or most severe of the different applicable sanctions. Standard 1.6(b) provides that a greater or lesser degree of discipline than the appropriate sanction prescribed by these standards shall be imposed or recommended, depending on the net effect of the aggravating and mitigating circumstances, if any.
Standard 2.4(b), in relevant part, provides that culpability of a member of willfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.10 provides that the culpability of a member for violation of any provision of the Business and Professions Code or any Rule of Professional Conduct not specified in the Standards shall result in reproval or suspension, according to the gravity of the offense or harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in Standard 1.3.
Based on Standard 1.6(a), the recommended sanction for Respondent’s misconduct herein is found in Standard 2.4(b), which provides for reproval or suspension.
Aggravating & Mitigating Circumstances:
Standard 1.2(b) provides for a greater degree of sanction set forth in the standards where aggravating circumstances exist. No aggravating circumstances exist in this matter.
Standard 1.2(e) provides for a more lenient degree of sanction than set forth in the standards where mitigating circumstances exist. Four mitigating circumstances exist in this matter. First, pursuant to Standard 1.2(e)(i), Respondent has no prior record of discipline and had been admitted to the practice of law in California for nearly eighteen (18) years when the misconduct herein occurred. Second, pursuant to Standard 1.2(e)(v), Respondent has exhibited candor and cooperation with the State Bar of California in that he has stipulated to facts, conclusions of law and level of discipline. Third, pursuant to Standard 1.2(e)(vii), Respondent has expressed remorse to the State Bar for his misconduct and acknowledged his wrongdoing. Fourth, on September 26, 2011, Respondent paid $1,997.00 to his client Andres Vasquez as restitution.
In In the Matter of Respondent G, Respondent G failed to notify his client that she would owe an inheritance tax to the State of California. He later failed to tell her that a Superior Court had fixed the tax at $818, and that this was enforceable as a judgment against her. Four years later, the state Controller notified Respondent G that the amount then owed, including interest, was $1,273.57. Respondent G again failed to notify his client, but the Controller notified her. Two years later, the Controller recorded a judgment lien against the client. The client then paid the $818 and G agreed to pay the interest of $455.57, but failed to do so.
The Review Department held that the failure to notify the client initially of her obligation to pay inheritance tax, and the subsequent failure to inform the client of the fixed assessment, were violations of the precursor to Rule 3-110(A). The Review Department imposed a private reproval with the condition that Respondent G pay restitution for the remaining $455.57 to satisfy the judgment lien, as he had agreed earlier.
In In the Matter of Ward, the Review Department recognized that failures to communicate were sometimes also failures to perform with competence, but stated that charging both for the same facts would be duplicative.
Respondent clearly failed to communicate adequately with the client. At the very first inquiry, his duty was to communicate in writing that he was waiting on the necessary financial records. He did not cause the client any appreciable harm, and he ultimately provided a full refund.
E. PENDING PROCEEDINGS.
The disclosure date referred to on page two, paragraph A. (7) was November 18, 2011.
F. STATE BAR ETHICS SCHOOL EXCLUSION.
Respondent resides outside California and is unable to attend State Bar Ethics School. As an alternative to State Bar Ethics School, the parties agree that Respondent will complete the following courses: Six (6) hours of minimum Continuing Legal Education ("MCLE") courses in general legal ethics and as approved by the Office of Probation. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses. (Rule 3201, Rules of Procedure of the State Bar.)
G. MPRE EXCLUSION.
The protection of the public and the interests of the Respondent do not require passage of the MPRE in this case.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No.10-O- 10687 Count THREE Alleged Violation RPC 3-700(D)(2)
Case No 10-O- 10687 Count FOUR Alleged Violation B&P 60680 (j)
Case Number(s): 10-O-10687-LMA
In the Matter of: Abel Hernandez
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: Abel Hernandez and Ashod Mooradian
Respondent: Abel Hernandez
Date: November 22, 2011
Deputy Trial Counsel: Ashod Mooradian
Date: November 23, 2011
Case Number(s): 10-O-10687-LMA
In the Matter of: Abel Hernandez
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
checked. All court dates in the Hearing Department 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.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Judge of the State Bar Court: Lucy Armendariz
Date: November 30, 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 24, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
in a sealed envelope for collection and mailing on that date as follows:
by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:
4614 Hawthorn Woods
San Antonio, Texas 78249
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Ashod Mooradian, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on November 30, 2011
Bernadette C.O. Molina
State Bar Court