Case Number(s): 10-O-09367,10-O-09369,12-O-15314
In the Matter of: RAYMOND FAULKNER CHOI, Bar # 227132, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eli D. Morgenstern, Bar #190560,
Counsel for Respondent: Raymond Faulkner Choi, Bar #227132,
Submitted to: Assigned Judge.
Filed: November 6, 2013.
<<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 December 1, 2003.
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 12 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: for the following two billing cycles following the effective date of 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.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: RAYMOND FAULKNER CHOI, State Bar No. 227132
STATE BAR COURT CASE NUMBER: 10-O-09367, 10-O-09369, 12-O-15314
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts arc true and thin he is culpable of violations of the specified statutes and Rule of Professional Conduct.
Case No. 10-O-09367 (State Bar Investigation)
FACTS:
I. Respondent was the attorney of record for John Van Le, the defendant in a criminal matter (“the Le matter”).
2. On May 11, 2009, and June 11, 2009, Respondent failed to appear for pretrial hearings in the Le matter, despite the that that he received advance notice of both of those hearings.
3. Before failing to appear on May 11, 2009, and June 11, 2009, Respondent failed to notify the court, his client, or opposing counsel that he would not appear.
CONCLUSIONS OF LAW:
4. By failing to appear for pretrial hearings in the Le matter, and by failing to notify the court and his client that he would not appear, Respondent willfully failed to perform legal services competently, in violation of rule 3-11O(A)of the Rules of Professional Conduct.
Case No. 10-O-09369 (State Bar Investigation)
FACTS:
5. Respondent was the attorney of record for Xuan Huong Nguyen ("Nguyen"), the defendant in a criminal matter ("the Nguyen matter").
6. On June 22, 2010, both Respondent and Nguyen appeared at a pretrial hearing in the Nguyen matter before Judge Steven D. Bromberg. At the hearing, Nguyen informed the court that she wished to retain new counsel. Respondent also informed the court that Nguyen had not paid him and he wished to be relieved as attorney of record for Nguyen. Judge Bromberg informed both Nguyen and Respondent that inasmuch as the matter was a felony criminal case, unless Nguyen was prepared to represent herself Respondent would remain as attorney of record until new counsel made an appearance on behalf of Nguyen. To that end Judge Bromberg ordered Respondent to return for the next pre-trial appearance on June 24, 2010.
7. On the morning of June 24, 2010, Respondent telephoned Judge Bromberg’s court and spoke with the court clerk. Respondent informed the clerk that he was busy with another case involving another client who had been involved in a police raid and that he would be unable to appear that morning on behalf of Nguyen.
8. On June 24, 2010, when the Nguyen matter was called, Respondent was not present to represent Nguyen. At Judge Bromberg’s direction, the court clerk telephoned Respondent and left several messages on his phone advising him that the court required his immediate appearance, and if he did not appear by the close of business, a bench warrant hold would be issued for the next day. Respondent did not appear before the court before the close of business on June 24, 2010. Accordingly, a bench warrant hold was issued. On June 24, 2010, the court held an in camera hearing in the Nguyen matter, and Respondent was relieved as counsel in absentia.
9. On June 25, 2010, Respondent appeared before Judge Bromberg. Respondent was given a full opportunity to explain his conduct. At the conclusion of the hearing, Judge Bromberg sanctioned Respondent $I ,000 pursuant to Code of Civil Procedure section 177.5.
10. On July 1, 2010, Respondent again appeared before Judge Bromberg requesting to address the court. Respondent was given that opportunity and apologized to the court for his conduct and advised the court of his intent to avoid these types of situations in the future.
11. Respondent was unable to promptly pay the $1,000 in sanctions imposed by Judge Bromberg. However, he sought and was granted extensions of time to pay the sanctions. On December 7, 2011, Judge Bromberg issued an Order Re: Sanctions which required Respondent to make monthly payments of $100 due on the tenth (10th) day of each month until the $1000 sanction imposed by Judge Bromberg is paid in full. To date, Respondent has not paid the full amount of the sanction.
CONCLUSIONS OF LAW:
12. By failing to appear for the June 24, 2010 pretrial hearing in the Nguyen matter as ordered by the court, Respondent willfully disobeyed an order of the court requiring him to do an act connected with or in the course of his profession, which he ought in good faith to do, in violation of Business and Professions Code section 6103.
Case No. 12-O-15314 (State Bar Investigation)
FACTS:
13. On December 13, 2011, Respondent entered into an Agreement in Lieu of Discipline ("ALD”) with the Office of the Chief Trial Counsel of the State Bar of California in case numbers 10-O-09367 and 10-O-09369. On December 13, 2011, the ALD became effective, and was effective for a period of one year from that date.
14. During the effective period of the ALD, Respondent was required, among other things, to comply with the provisions of the State Bar Act (Business and Professions Code §§ 6000 et seq.), and the California Rules of Professional Conduct,
15. As described below, Respondent committed violations of the State Bar Act and Rules of Professional Conduct while representing Desiree Sandoval ("Sandoval") in a criminal matter during the effective period of the ALD.
16. In May 2012, Sandoval employed Respondent to represent her in a criminal matter ("the Sandoval matter ). At the time that she employed Respondent, Sandoval was in custody.
17. On May 11, 2012, Respondent appeared at a pre-trial conference in the Sandoval matter, and substituted in as attorney of record for Sandoval. At the May 11, 2012 pre-trial conference, the court advised Respondent of the scheduled trial date in the Sandoval matter of June 6, 2012. At the May 11, 2012 pre-trial conference, Respondent requested an additional pre-trial conference be set for May 25, 2012. The court granted Respondent’s request.
18. On May 25, 2012, Respondent appeared at the pre-trial conference for the Sandoval matter. At the pre-trial conference, the court, at Respondent’ request, set an additional pre-trial conference for June 1, 2012.
19. On June 1, 2012, Respondent failed to appear at the pretrial conference in the Sandoval matter.
20. On June 6, 2012, Respondent .failed to appear at the trial in the Sandoval matter. At the June 6, 2012 trial, Sandoval appeared and requested that Respondent be replaced with appointed counsel. On June 6, 2012, the court appointed counsel to replace Respondent as Sandoval’s counsel in the Sandoval matter, and continued the trial date.
CONCLUSIONS OF LAW:
21. By failing to appear at both the June 1, 2012 pre-trial conference and the June 6, 2012 trial in the Sandoval matter, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
22. By violating Rules of Professional Conduct, rule 3-110(A), in the Sandoval matter during the effective period of the ALD in Case Nos. 10-O-09367 and 10-O-09369, Respondent failed to keep all agreements made in lieu of disciplinary prosecution with the agency charged with attorney discipline in willful violation of Business and Professions Code, section 6068(I).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Harm (Std. 1,2(b)(iv)): Respondent’s misconduct caused harmed the administration of justice as it caused delay in the Le, Nguyen, and Sandoval criminal matters.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent failed to perform with competence in the Le and Sandoval matters, and disobeyed a court order in the Nguyen matter. Further, by committing misconduct in the Sandoval matter, Respondent violated the terms of the ALD in Case Nos. 10-O-09367 and 10-O-09369. Respondent’s multiple acts of misconduct are an aggravating circumstance. (In the Matter of Bach (Review Dept. 1991) 1 Cal, State Bar Ct. Rptr. 631, 646-647 [three acts of misconduct found to constitute multiple acts of misconduct].)
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
No Prior Discipline: Respondent was admitted to practice law in California on December 2003 and had no record of discipline prior to his misconduct in 2009 and 2010 in the Le and Nguyen matters. Respondent is entitled to only nominal mitigation for his approximately five and one-half years of discipline-free practice. (In the Matter of Duxbury (Review Dept. 1999) 4 Cal. State Bar Ct. Rptr. 66 [attorney’s five years of discipline-free practice is of "nominal" weight].)
Prefiling Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of the Chief Trial Counsel prior to the filing of a Notice of Disciplinary Charges, thereby saving the State Bar Court time and resources. (Silva-Vidor v. State Bar (1989) 49 Cal 3d 1071, 1079 [where mitigative credit was given for entering into a stipulation as to facts and culpability],)
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipline" pursuant to a set of written principles to "better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to standards are to this source).) The primary purposes of disciplinary proceedings and of the sanctions imposed are "the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession." (In re Morse (1995) 11 Cal 4th 184, 205; std. 1.3.)
Although not binding, the standards are entitled to "’great weight’ and should be followed "whenever possible" in determining level of discipline. (ln re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal.4th 205, 220 and In re Young (1989) 49 Cal.3d 257, 267. fn. 11.) Adherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (ln re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
Respondent admits to committing five acts of professional misconduct. Standard 1.6 (a) requires that where a Respondent acknowledges two or more acts of misconduct, and different sanctions are prescribed by the standards that apply to those acts, the sanction imposed shall be the more or most seven prescribed in the applicable standards.
The most severe sanction applicable to Respondent’s misconduct is found in standard 2.6, which applies to Respondent’s violations of Business and Professions Code, section 6068(I) and section 6103.
Standard 2.6 provides that culpability for a violation of either section 6068(I) or section 6103 shall result in disbarment or suspension with consideration being given to the gravity of the offense or harm to the victim, and with regard to the purposes of attorney discipline as set forth in standard 1.3.
Respondent’s misconduct spans a period of three years and involves failing to appear at court ordered hearings on behalf of three separate criminal defense clients. Further, Respondent’s misconduct in the Sandoval matter violated the terms of an agreement in lieu of discipline, Respondent is entitled to mitigation for entering into this Stipulation, And, he is entitled to nominal mitigation for his five years of discipline-free practice. However, these mitigating factors are not sufficiently compelling to warrant a deviation from standard 2.6. Respondent’s multiple acts of misconduct spanning several years and involving three different clients, combined with the fact that his most recent misconduct violated the terms of an agreement in lieu of discipline, warrants a period of actual suspension.
In light of Respondent’s misconduct, the applicable standard, and the aggravating and mitigating circumstances surrounding the misconduct, a discipline consisting of a two year stayed suspension, and a two-year probation with conditions including a 90-day actual suspension is warranted order to satisfy the purposes of attorney discipline as set forth in standard 1.3.
Supreme Court case law also supports the recommended level of discipline, in King v. State Bar (1990) 52 Cal. 3d 307, the attorney was found culpable in two client matters of failing to perform with competence, failing to return client files, and violating his oath and duties as an attorney. In mitigation the hearing panel noted that the attorney did not have a prior record of discipline over many years of practice, was cooperative with his clients, and suffered from financial difficulties and depression, In aggravation, the attorney’s clients suffered harm and the attorney failed to appreciate the severity of his misconduct or the harm caused to his clients. The Supreme Court ordered, among other things, that the attorney be actually suspended for 90 days.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 1, 2013, the prosecution costs in this matter are $4,693. The costs are to be paid in equal amounts prior to February 1 for the following two billing cycles following the effective date of the discipline herein. 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.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School, or any other education course(s) to be ordered as a condition of reproval or suspension. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 10-O-09367, 10-O-09369, 12-O-15314
In the Matter of: RAYMOND FAULKNER CHOI
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 FAULKNER CHOI
Date: 10/7/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Eli D. Morgenstern
Date: 10/16/13
ACTUAL SUSPENSION ORDER
Case Number(s): 10-O-09367; 10-O-09369; 12-O-15314
In the Matter of: RAYMOND FAULKNER CHOI
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.
By agreement of the parties, numbered paragraph 11 on page 8 of the stipulation is modified by adding that respondent owes $700 of the sanction, which is payable to the clerk of the Orange County Superior 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.)
Signed by:
Judge of the State Bar Court: George E. Scott, Judge Pro Tem
Date: 11/5/13
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 Los Angeles, on November 6, 2013, 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 Los Angeles, California, addressed as follows:
RAYMOND F. CHOI
JUSTICE OC ATTORNEYS AT LAW
18697 FAIRFAX LN
HUNTINGTON BEACH, CA 92648
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ELI MORGENSTERN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 6, 2013.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court