Case Number(s): 11-H-10679, 11-O-10798
In the Matter of: Milton Kerlan, Jr., Bar # 39719, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Timothy G. Byer, DTC
1149 S. Hill St.
Los Angeles, CA 90015
(213) 765-1325
Bar # 172472
Counsel for Respondent: Jason M. Kerlan
P.O. Box 975
Fresno, CA 93714
(559) 259-5959
Bar# 183897,
Submitted to: Assigned Judge, State Bar Court Clerk’s Office Los Angeles.
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 January 4, 1967.
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):
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.
<<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.
State Bar Court Case No. 94-0-13646 et al., effective July 8, 1998, Rules of Professional Conduct, rule 3-110(A), Business & Professions Code, section 6068(i), 1 year stayed suspension and 2 years probation with conditions including restitution; State Bar Court Case No. 01-O04925, effective October 21,2003, Business & Professions Code, sections 6068(1<) and 6103, public reproval and 5 years probation with conditions including restitution; State Bar Court Case No. 04-O-14531, et al., effective July 6, 2008, Rules of Professional Conduct, rule 3700(D)(2) and 1-110, Business & Professions Code, section 6106, 3 years stayed suspension and 5 years probation with conditions including 90 days actual suspension
(Effective January 1, 2011)
Actual Suspension
IN THE MATTER OF: Milton Kerlan, Jr., State Bar No. 39719
STATE BAR COURT CASE NUMBER: 11-H-10679, 11-O-10798
FACTS:
1. On October 1, 2003, the State Bar Court filed an Order approving the stipulation to
public reproval entered into between Respondent and the Office of the Chief Trial Counsel of the State Bar, of California in State Bar Case No. 01-O-04925 ("October 1 Order"). The October 1 Order directed Respondent to comply with the following reproval conditions for a period of five years, which was to commence upon the effective date of the October 1 Order;
a. that Respondent submit written quarterly reports ( "Quarterly Reports") to
the (then) Probation Unit of the Office of the Chief Trial Counsel on each January 10, April 10,
July 10, and October 10 of the reproval period;
b. that Respondent submit a final report ( "Final Report"), to be due no
earlier than 20 days before the last day of the reproval period and no later than the last day of the
period;
c. that Respondent make restitution to Kimberly Jackson or to the Client
Security Fund on behalf of Kimberly Jackson in the principal amount of $6,666.67 plus interest
accruing from November 18, 1996, at the rate of 10% per annum, to be paid in full within 54
months from the effective date of the October 1 Order; and
d. that Respondent make restitution to Irene Castellanos or to the Client
Security Fund on behalf of Irene Castellanos in the principal amount of $5,000 plus interest
accruing from September 30, 1994, at the rate of 10% per annum, to be paid in full within 54
months from the effective date of the October 1 Order.
2. On March 20, 2008, the State Bar Court filed an Order Pursuant to Telephonic Status
Conference ("March 20 Order") in which Respondent’s reproval conditions were modified to:
a. extend the reproval period for two years, ending on October 21, 2010; and
b. require Respondent to complete all restitution no later than 30 days prior to the
termination of his reproval period, and to provide satisfactory proof of completion with his Final Report.
3. The March 20 Order was mailed to Respondent, who received it.
4. On October 7, 2009, the State Bar Court filed a Minute Order ("Minute Order") in which
the court modified Respondent’s restitution requirements to require Respondent to pay $50 per month to Irene Castellanos or to the Client Security Fund on her behalf, commencing on November 15, 2009 and continuing monthly thereafter, and to provide proof of payment to the Office of Probation quarterly commencing on January 10, 2010. The Minute Order was mailed to Respondent, who received it.
5. Respondent failed to make $50 monthly restitution payments to Irene Castellanos or to
the Client Security Fund on her behalf in November and December of 2009, and in February, March, April, May, and June of 2010.
6. Respondent failed to timely file his Quarterly Reports in July and October of 2009, and
in January, April, and July of 2010, and failed to timely file his Final Report by the last day of the reproval period (October 21, 2010).
7. Respondent failed to complete all restitution by September 21, 2010.
CONCLUSIONS OF LAW:
8. By not timely making $50 monthly restitution payments to Irene Castellanos or to the
Client Security Fund on her behalf, by not timely filing Quarterly Reports or his Final Report, and by not completing all restitution by September 21, 2010, Respondent failed to comply with all conditions attached to public or private reprovals or other discipline administered by the State Bar, in willful violation of Rules of Professional Conduct, rule 1-110.
Case No. 11-O-10798
FACTS:
9. On June 6, 2008, the Supreme Court of California filed Order No. S 162323 (State Bar
Court Case Nos. 04-O-t 4531, 07-H-11827 (cons.)) ("June 6 Order"). The June 6 Order directed
Respondent to comply with the conditions of probation recommended by the Hearing Department of the State Bar Court in its Order Approving Stipulation filed February 13, 2008 ("2008 Stipulation"). The June 6 Order was mailed to Respondent, who received it. The 2008 Stipulation included the following requirements:
a. that Respondent be placed on probation for a period of 5 years, which was to
commence upon the effective date of the June 6 Order;
b. that Respondent submit written quarterly reports ( "Quarterly Reports") to the
(the, n) Probation Unit of the Office of the Chief Trial Counsel on each January 10, April 10, July 10, and October 10 of the period of probation;
c. that Respondent be assigned a probation monitor, with whom Respondent was to
promptly review the terms and conditions of probation to establish a manner and schedule of
compliance, to whom Respondent was to fumish such reports as may be requested, and with whom Respondent was to cooperate fully; and
d. that, with each Quarterly Report, Respondent was to fumish to the Office of
Probation evidence that that he had been received monthly psychiatric treatments from Dr. Clark A. Feldman, M.D.
10. Paul R. Freeman was Respondent’s assigned probation monitor. Mr. Freeman attempted
to contact Respondent on several occasions in July 2008 by calling Respondent’s answering service and leaving messages for Respondent requesting a return call. Respondent received all of Mr. Freeman’s messages but retumed none of them.
11. The Office of Probation sent Respondent a letter dated August 1, 2008, which
Respondent received, directing Respondent to contact Mr. Freeman immediately. Respondent did not initiate contact with Mr. Freeman in response to the letter.
12. Respondent failed to cooperate fully with his probation monitor by failing to return the
probation monitor’s numerous telephone messages in July 2008, and by failing to initiate contact with Mr. Freeman in response to the August 1, 2008 letter from the Office of Probation.
13. Respondent failed to timely file his Quarterly Reports in October 2009, and in January,
April, and July of 2010.
14. Respondent failed to fumish the Office of Probation with proof of monthly psychiatric
treatments with Dr. Feldman with his Quarterly Reports for July or October of 2009 or for January, April, July, or October of 2010, or for January 2011.
CONCLUSIONS OF LAW:
15. By not cooperating fully with his probation monitor, by not timely filing his Quarterly
Reports, and by not fumishing the Office of Probation with proof of monthly psychiatric treatments with Dr. Feldman, Respondent failed to comply with all conditions attached to a disciplinary probation, in wilful violation of Business and Professions Code, section 6068(k).
AGGRAVATING CIRCUMSTANCES:
Multiple/Pattern of Misconduct: Respondent’s multiple failures to comply with his probation
conditions demonstrate a pattern of misconduct.
MITIGATING CIRCUMSTANCES:
No Harm: Respondent’s failures to comply with probation conditions did not result in harm to
any of his clients’ matters. Candor/Cooperation: Respondent agreed to settle this matter at a very early stage in the disciplinary proceedings. (Standards for Attomey Sanctions for Professional Misconduct, Standard
1.2(e)(v).)
Severe Financial Stress: Respondent’s sole source of income during the period of this
misconduct amounted to approximately $700/mo. from Social Security; he has no savings; he receives public assistance in the form of food stamps. Respondent was unable to afford the psychiatric care required by the Medical Conditions following the retirement of his physician, due to the difficulty of obtaining psychiatric care under Medicare.
AUTHORITIES SUPPORTING DISCIPLINE:
Standard 1.7(b) provides that "If a member is found culpable of professional misconduct in any
proceeding in which discipline may be imposed and the member has a record of two prior impositions of discipline as defined by standard 1.2(0the degree of discipline imposed in the current proceeding shall, be disbarment unless the most compelling mitigating circumstances clearly predominate."
Deviation from 1.7(a), as with any Standard, may be appropriate where its application would be
manifestly unjust. In re." RonaldRobert Silverton, (2005) 36 Cal.4th 81. Under the instant
circumstances, disbarment of Respondent would be manifestly unjust.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was August 15,2011.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent
that as of August 15,2011, the prosecution costs in this matter are $3,689.00. 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.
(Do not write above this line.)
Case Number(s): 11-H-10679, 11-O-10798
In the Matter of: Milton Kerlan, Jr.
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: Milton Kerlan, Jr.
Date: 10/4/11
Respondent’s Counsel: Jason M. Kerlan
Date: 10/20/11
Deputy Trial Counsel: Timothy G. Byer
Date: 10-21-11
Case Number(s): 11-H-10679, 11-O10798
In the Matter of: Milton Kerlan, Jr.
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
[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 1, 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 Los Angeles, California, addressed as follows:
JASON M KERLAN ESQ
PO BOX 975
FRESNO, CA 93714
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
TIMOTHY G. BYER, ENFORCEMENT, LOS ANGELS
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 1, 2011.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court