Case Number(s): 11-O-10016; 11-O-14021
In the Matter of: Jerry A. LaCues, Bar # 77088, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Charles T. Calix, Deputy Trial Counsel
1149 South Hill St.
Los Angeles, CA 90015-2299
(213)765-1255
Bar # 146853
Counsel for Respondent: In Pro Per Respondent
Jerry A. LaCues
3110 Chino Ave., #230
Chino Hills, CA 91709
B~r # 77088
Submitted to: Assigned Judge of State Bar Court of Clerk’s Office of Los Angeles
<<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 21, 1977.
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 13 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.
Additional mitigating circumstances:
Case Number(s): 11-O-10016, 11-O-14021
In the Matter of: Jerry A. LaCues, State Bar Number 77088
a. Restitution
<<not>> checked. 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.
1. Payee:
Principal Amount:
Interest Accrues From:
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than
<<not>> checked. 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.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. 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.
1. 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:
i. 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.
checked. 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.
IN THE MATTER OF: Jerry A. LaCues
CASE NUMBER(S): 11-O-10016, 11-O-14021
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 No. 11-O- 10016 (Complainant: Michael Goudie)
FACTS:
1. In or about 2003, Michael Goudie ("Goudie") employed Respondent to collect a money judgment of $131,821.74 awarded by the Los Angeles County Superior Court in the case entitled Cau-Min Li v. Zhanjun Luo, case no. KC025568 (the "Li case"). Goudie had purchased the judgment from the judgment creditor. At that time, Goudie paid Respondent $4,500 in advanced fees.
2. Goudie also employed Respondent to pursue a malpractice claim against a prior counsel who had failed to timely contest the action of the judgment debtor in the Li case in encumbering real property to evade satisfaction of the judgment. Respondent filed a civil action for malpractice in or about 2004 and prepared the case for trial, but the case was settled for a waiver of costs.
3. The debtor in the Li case filed for bankruptcy and Respondent represented Goudie in opposing the discharge of the debt. The bankruptcy trustee was successful in setting aside the encumbrance on the judgment debtor’s real property, which was the sole asset of the bankruptcy estate.
4. In June 2006, Respondent reached a stipulated agreement with the bankruptcy trustee that $120,000 of the funds from the sale of the property would be paid to satisfy Goudie’s judgment lien. Thereafter, the judgment debtor continued to contest issues in the bankruptcy case, increasing the expenses of the bankruptcy trustee, and the bankruptcy trustee sought to obtain reimbursement prior to
any payment in satisfaction of the judgment in the Li case.
5. On May 14, 2009, Respondent filed a motion in the bankruptcy court to enforce the settlement with the bankruptcy trustee which was granted by the court. During the pendency of that motion, the bankruptcy trustee made several offers to pay lesser amounts, which Goudie rejected. After, the court granted the motion to enforce the settlement, Goudie requested that Respondent seek payment of Respondent’s attorney fees from the bankruptcy trustee, but Respondent advised against this action.
6. In June 2009, Respondent received on behalf of Goudie the sum of $120,000 from the bankruptcy trustee in satisfaction of the judgment in the Li case. On June 26, 2009, Respondent deposited the $120,000 in a client trust account maintained by Respondent at Pacific Western Bank (the "CTA").
7. After the deposit of the $120,000 received on behalf of Goudie in the CTA, the balance in the CTA dropped below that amount beginning on or about July 10, 2009. On July 24, 2009, the balance in the CTA was $91,300.12.
8. Respondent states that he believed that his fee agreement with Goudie gave him a lien on any recovery for his fees, but neither Goudie nor Respondent can produce a copy of the 2003 fee agreement. Also, Respondent states that he and Goudie had discussed his fees during the time that the motion to enforce the settlement was pending, and Respondent believes that Goudie had agreed that Respondent could take a third of the funds for his fees instead of the hourly fees provided for in the 2003
fee agreement. Respondent does not have any written confirmation of a change in the fee agreement, and Goudie states that he did not agree that Respondent could take a third to pay his fees.
9. On August 31, 2009, Respondent disbursed $80,000 from the CTA to Goudie. At that time, Respondent did not provide any explanation to Goudie for why he was disbursing less than the full amount of the funds received on behalf of Goudie. By letter dated September 1, 2009, Goudie asked Respondent why he had retained a third of the funds and requested the disbursement of the remaining funds and an accounting for Respondent’s fees.
10. Thereafter, Respondent provided the billing to Goudie for fees totaling $49,061, but Respondent did not disburse any additional funds to Goudie. By letter dated September 23, 2009, Goudie informed Respondent that he disputed Respondent’s fees. On November 5, 2009, Goudie emailed and mailed a letter to Respondent requesting that he pay Goudie the remaining $20,000 of the funds Respondent received on his behalf by a certain date.
11. On December 1, 2009, Respondent paid Goudie the sum of $8,200 from the CTA. On or about December 2, 2009, Goudie emailed and mailed a letter to Respondent demanding payment of further funds received by Respondent on his behalf. Respondent received the letter. Thereafter, Respondent did not promptly pay to Goudie the remaining funds received on his behalf as requested by the client.
12. After the disbursement of $8,200 from the CTA to Goudie on or about December 1, 2009, Respondent was required to maintain the sum of $31,800 on behalf of Goudie in the CTA. On or about May 28, 2010, the balance in the CTA was $16,161.40. On June 30, 2010, the balance in the CTA was $3,652.51. On July 20, 2010, the balance in the CTA was $1,647.54. On or about November 19, 2010, the balance in the CTA was $67.06.
13. In or about January 2010, Respondent agreed to return to Goudie $16,300 of the funds he had taken as fees. Between in or about September 2010 and in or about December 2011, Respondent paid that sum to Goudie.
CONCLUSIONS OF LAW:
14. By not maintaining the funds received on behalf of Goudie in the CTA until disbursed at Goudie’s direction, Respondent failed to maintain the balance of funds received for the benefit of a client and deposited 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. 11-O-14021 (Complainant: Donald Hitzfield)
FACTS:
15. On or about February 13, 2004, Donald V. Hitzfield ("Hitzfield") hired Respondent to represent Hitzfield in a medical malpractice matter against Larry Marc Gersten, M.D ("Dr. Gersten").
16. On or about May 13, 2004, Respondent served notice of intent to sue on Dr. Gersten.
17. On or about November 17, 2004, Respondent filed a lawsuit on behalf of Hitzfield titled Donald V. Hitzfield v. Larry Marc Gersten, M.D., OSC Case No. 04CC11377. On or about March 29, 2005, Respondent dismissed the lawsuit pursuant to an arbitration clause in Hitzfield’s binding arbitration agreement with Dr. Gersten.
18. Between in or about February 2004 and in or about November 2011, Hitzfield repeated contacted Respondent to induce Respondent to perform the work necessary to conduct the conduct the
arbitration hearing and to then conduct the arbitration hearing. During that time, Respondent repeatedly assured Hitzfield that Respondent was working on the matter or would work on the matter, when in fact Respondent was not working on the matter or did not perform the work he had told Hitzfield that he would perform.
19. As of November 2011, Respondent has failed to set the arbitration hearing and/or communicate with opposing counsel to set the arbitration hearing.
CONCLUSIONS OF LAW:
20. By repeatedly assured Hitzfield that he was working on the matter or would work on the matter, when in fact he was not working on the matter or did not perform the work he had told Hitzfield that he would perform, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was November 21,2011.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.2 of the Standards Pertaining to Sanctions for Professional Misconduct provides that the appropriate sanction for a violation of the trust fund rule which does not constitute willful misappropriation of entrusted fees is at least three months actual suspension, irrespective of mitigating circumstances.
Standard 2.4 addresses offenses involving willful failure to communicate or to perform services and, in the case of failure to perform in an individual matter or matters not demonstrating a pattern of misconduct, provides for reproval or suspension upon the extent of the misconduct and the degree of harm to the client.
Misconduct which involves the unilateral taking of fees from client funds has resulted in a discipline below the minimum set forth in the standard. See Dudugjian and Holliday v. State Bar (1991) 52 Cal.3d 1092 (imposing a public reproval for retaining $5,000 settlement funds in a non-trust account and refusing to disburse to the clients in a mistaken belief that the clients had given permission for the attorneys to take the funds as fees).
Failure to perform (not establishing a pattern) has resulted in stayed suspension or an actual suspension up to 90 days even with no prior record of discipline. See Layton v. State Bar (1991) 50 Cal.3d 889 (30 day actual suspension for abandonment of a single trust/estate matter with no prior discipline in 30 years); King v. State Bar (1990) 52 Cal.3d 307 (three months actual suspension for abandonment in two client matters with no prior misconduct and substantial mitigation); Harris v. State
Bar (1990) 51 Cal.3d 1082 (90 days actual for abandonment of single client matter; no prior discipline in 10 years); Van Sloten v. State Bar (1989) 48 Cal. 3d 921 (stayed suspension, no actual, for abandonment of a single client matter; no prior discipline); In the Matter of Aguiluz (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 32 (stayed suspension, no actual, for abandonment of client and failure to release client file; no prior discipline).
Respondent’s misconduct involved two client matters and does not establish a pattern. He has a prior discipline of a private reproval. Given the extent of the misconduct and the degree of harm to the clients, a 30-day actual suspension with a probation is an appropriate level of discipline under the standards and the case law.
Case Number(s): 11-O-10016, 11-O-14021
In the Matter of: Jerry A. LaCues
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: Jerry A. LaCues and Charles T. Calix
Respondent: Jerry A. LaCues
Date: December 1, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Charles T. Calix
Date: December 20, 2011
Case Number(s): 11-O-10016, 11-O-14021
In the Matter of: Jerry A. LaCues
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.
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: 1/9/12
[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 9, 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 Los Angeles, California, addressed as follows:
JERRY A LACUES ESQ
LAW OFFICE JERRY A LACUES
3110 CHINO AVENUE NUMBER 230
CHINO HILLS, CALIFORNIA 91709
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Charles T. Calix , Enforcement, Los Angeles, California
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 9, 2012.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court