Case Number(s): 11-O-11247
In the Matter of: Scott Nelson Harlow , Bar # 107024 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: AGUSTIN HERNANDEZ, Senior Trial Counsel, 1149 South Hill Street, Los Angeles, CA 90015-2299, (213) 765-1713, Bar# 161625
Counsel for Respondent: In Pro Per Respondent, SCOTT NELSON HARLOW, 225 South Civic Drive, Suite 2-15, Palm Springs, CA 92262, (760) 325-8818, Bat# 107024
Submitted to: Assigned Judge – State Bar Court Clerk’s Office 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 7, 1982.
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 15 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.
IN THE MATTER OF: Scott Nelson Harlow, State Bar No. 107024
STATE BAR COURT CASE NUMBER: 11-O-11247 & 12-O-11564
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- 11247 (Complainant: Brahm Elmendorp):
FACTS:
1. In 1999, Brahm Elmendorp ("Elmendorp") employed Respondent to represent him in a civil matter against his landlords Gershwin Haltman and Ellen Eloise Haltman dba Haltman Enterprises (collectively "Haltmans"). Elmendorp had found a prospective buyer for his business, Gravel Pit, LLC, but the Haltmans refu~ed to grant Elmendorp consent to assign the lease to the prospective buyer. Elmendorp claimed damages of $90,000 as a result of not being able to sell his business ("Elmendorp matter").
2. Elmendorp had a credit of $1,325 with Respondent from unearned fees previously advanced in other unrelated legal matters. Respondent was to apply this $1,325 toward fees incurred in the Elmendorp matter.
3. At no time did Respondent provide any legal services in the Elmendorp matter.
4. From 1999 through 2011, Respondent misrepresented to Elmendorp that Respondent had filed a lawsuit with the court pertaining to the Elmendorp matter, but it kept getting continued by the court due to lack of availability of judges. At the time Respondent made this statement, the statement was false and Respondent knew or was grossly negligent in not knowing that his statement was false. At no time did Respondent file a lawsuit with the court pertaining to the Elmendorp matter.
5. In 2007, Respondent recommended to Elmendorp that he should elect to proceed with arbitration because judges were still not available. Elmendorp accepted Respondent’s recommendation and agreed to proceed to arbitration. Thereafter, Respondent told Elmendorp that the Elmendorp matter was proceeding to arbitration. At the time Respondent made this statement, the statement was false and Respondent knew or was grossly negligent in not knowing that his statement was false. At no time did Respondent file a petition or any other pleading to arbitrate the Elmendorp matter.
6. In June 2007, Respondent prepared a purported declaration for Elmendorp to sign in support of his arbitration claim. On June 10, 2007, Elmendorp signed the declaration and provided it to Respondent. Respondent prepared and provided this declaration to Elmendorp to mislead him into believing that Respondent was working on the Elmendorp matter. At the time Respondent provided this declaration to Elmendorp, Respondent knew that there was no arbitration pending in the Elmendorp matter.
7. Thereafter, Respondent told Elmendorp that he had obtained a judgment of $85,000 in his favor against the Haltmans. At the time Respondent made this statement, the statement was false and Respondent knew or was grossly negligent in not knowing that his statement was false. At no time did Respondent obtain a judgment.
8. Thereafter, Respondent told Elmendorp that he had attached a $75,000 certificate of deposit owned by the Haltmans through a writ of execution as a partial satisfaction of the judgment. At the time Respondent made this statement, the statement was false and Respondent knew or was grossly negligent in not knowing that his statement was false. At no time did Respondent obtain a writ of execution or attach a $75,000 certificate of deposit owned by the Haltmans.
9. In March 2010, Respondent told Elmendorp that there was a court hearing in the Elmendorp matter scheduled for April 1, 2010. At the time Respondent made this statement, the statement was false and Respondent knew or was grossly negligent in not knowing that his statement was false. There was no court hearing scheduled for April 1, 2010, in the Elmendorp matter.
10. On April 1, 2010, Respondent sent an email to Elmendorp stating that Gershwin Haltman had appeared in court that day without any of the documents that he had been ordered to produce at the hearing. Respondent stated that the judge ordered Gershwin Haltman to appear in court on April 9, 2010 with all of the documents that Respondent had requested him to produce. Respondent stated that if Gershwin Haltman appeared in court on April 9, 2010, without the documents, he would be arrested. At the time Respondent made these statements, the statements were false and Respondent knew or was grossly negligent in not knowing that his statements were false. There was no court hearing held on April 1, 2010, in the Elmendorp
matter.
11. On April 9, 2010, Respondent sent Elmendorp an email stating that Respondent had appeared in court that day and tried to have Gershwin Haltman arrested but the judge would not arrest him. At the time Respondent made this statement, the statement was false and Respondent knew or was grossly negligent in not knowing that his statement was false. There was no court hearing held on April 9, 2010, in the Elmendorp matter.
12. On May 23,2011, Elmendorp went to Respondent’s office to inquire about the status of his case. Respondent told Elmendorp that he had obtained a judgment of $110,000 in Elmendorp’s favor against the Haltmans. On this date, Respondent also told Elmendorp that he needed to pay a $405 court fee to file a petition to confirm the arbitration award. During this visit, Elmendorp’s friend, Eve Vykydal, who was also present at this meeting issued a check to Respondent in the amount of $405 to pay for the court’s fee. (Respondent did not negotiate this check.) At the time Respondent made these statements, the statements were false and Respondent knew or was grossly negligent in not knowing that his statements were false. At no time did Respondent obtain a judgment or arbitration award in the Elmendorp matter.
13. On May 23, 2011, Respondent provided to Elmendorp a purported judgment in the amount of $110,000 in favor of Elmendorp against the Haltmans, and a purported writ of execution for $110,000. Respondent prepared and provided the purported judgment and writ of execution to Elmendorp to mislead him into believing that Respondent was working on the Elmendorp matter. At the time Respondent provided the judgment and writ of execution to Elmendorp, Respondent knew that he had not obtained a judgment or writ of execution.
14. Respondent did not provide any legal services of value to Elmendorp.
15. Respondent did not earn any portion of the fees paid by Elmendorp.
16. To date, Respondent has failed to refund to Elmendorp any portion of the advanced fees that he was paid.
17. On October 21, 2010, Elmendorp sent a letter to Respondent requesting copies of all documents filed with the court on the Elmendorp matter. Respondent received the letter.
18. In June 2011, attorney Michael Zitomer ("Zitomer") contacted Respondent on behalf of Elmendorp and requested the return of the client file. Respondent told Zitomer that he would forward Elmendorp’s file to him forthwith.
19. At no time did Respondent release Elmendorp’s file to him or to Zitomer.
CONCLUSIONS OF LAW:
20. By failing to perform any legal services in the Elmendorp 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).
21. By knowingly or grossly negligently making false statements to Elmendorp orally and by email, and by creating the purported declaration, judgment and writ of execution, Respondent committed an act involving moral turpitude, dishonesty or corruption, in willful violation of Business and Professions Code, section 6106.
22. By failing to refund to Elmendorp any portion of the $1,325 in advanced fees, which he has not earned, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned, in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
23. By not releasing the client file to Elmendorp or Zitomer, Respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property, in willful violation of Rules of Professional Conduct, rule 3-700(D)(1).
Case No. 12-O-11564 (Complainant: Rodd Gerardi):
FACTS:
24. In April 2005, Rodd Gerardi ("Gerardi") employed Respondent to represent him in a civil matter against Synergy Financial Management Corporation dba DirectLender.com to recover unpaid commissions in the alleged amount of $24,021.88 ("Gerardi matter").
25. On May 17, 2005, Gerardi paid Respondent $1,000 in advanced fees to represent him the Gerardi matter.
26. At no time did Respondent provide any legal services in the Gerardi matter.
27. From 2005 through December 2011, Respondent misrepresented to Gerardi that Respondent had filed a lawsuit with the court pertaining to the Gerardi matter. At the time Respondent made this statement, the statement was false and Respondent knew or was grossly negligent in not knowing that his statement was false. Respondent made this statement to mislead Gerardi into believing that Respondent was working on the Gerardi matter. At no time did Respondent file a lawsuit with the court pertaining to the Gerardi matter.
28. In early 2007, Respondent told Gerardi that the Gerardi matter was proceeding to judicial arbitration in April 2007. At the time Respondent made this statement, the statement was false and Respondent knew or was grossly negligent in not knowing that his statement was false. Respondent made this statement to mislead Gerardi into believing that Respondent was working on the Gerardi matter. At no time was there an arbitration hearing scheduled in the Gerardi matter.
29. On April 20, 2007, Respondent prepared a purported arbitrator’s award indicating that the arbitrator had awarded Gerardi $24,021.88 in the Gerardi matter. Respondent simulated the purported arbitrator’s signature on the arbitrator’s award. Respondent prepared and provided this arbitrator’s award to Gerardi to mislead him into believing that Respondent was working on the Gerardi matter. At the time Respondent prepared and provided this arbitrator’s award to Gerardi, Respondent knew or was grossly negligent in not knowing that an arbitration hearing had never been held in the Gerardi matter.
30. From November 2007 through March 2011, Respondent sent Gerardi numerous emails indicating that due to the court’s busy calendar, the Gerardi matter had not yet been set for trial. At the time Respondent made this statement, the statement was false and Respondent knew or was grossly negligent in not knowing that his statement was false. Respondent made this statement to mislead Gerardi into believing that Respondent was working on the Gerardi matter. At no time did Respondent file a lawsuit with the court pertaining to the Gerardi matter.
31. Respondent did not provide any legal services of value to Gerardi.
32. Respondent did not earn any portion of the fees paid by Gerardi.
33. To date, Respondent has failed to refund to Gerardi any portion of the advanced fees that he was paid.
CONCLUSIONS OF LAW:
34. By failing to perform any legal services in the Gerardi matter, Respondent intentionally, recklessly, repeatedly failed to perform legal services with competence, in willful violation of Rules of Professional Conduct, rule 3-110(A).
35. By knowingly or grossly negligently making false statements to Gerardi, creating a false arbitrator’s award, and simulating the purported arbitrator’s signature, Respondent committed an act involving moral turpitude, dishonesty or corruption, in willful violation of Business and Professions Code, section 6106.
36. By failing to refund to Gerardi any portion of the $1,000 in advanced fees, which he has not earned, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned, in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
SUPPORTING AUTHORITY.
Standards:
Standard 1.3, Title IV, Standards for Attorney Sanctions for Professional Misconduct, provides that the primary purposes of the disciplinary system 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."
Standard 2.3 provides that "[c]ulpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client or another person or of concealment of a material fact to the court, client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’ s acts within the practice of law."
Standard 1.6(a) states that "[i]f two or more acts of professional misconduct are found or acknowledged in a single disciplinary proceeding, and different sanctions are prescribed by these standards for said acts, the sanction imposed shall be the more or most severe of the different applicable sanctions."
Standard 2.4(b) provides that "[c]ulpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client."
Case Law:
The Supreme Court has emphasized the importance of the standards and has held that great weight should be given to the application of the standards in determining the appropriate level of discipline. (In re Silverton (2005) 36 Cal. 4th 81 .) The standards must be followed unless there is a compelling reason justifying a deviation from the standards. (In the Matter of Bouyer (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 404.) The Supreme Court has held that unless it has "grave doubts as to the propriety of the recommended discipline," it will uphold the application of the standards. In re Silverton, supra, 36 Cal. 4th at p. 91-92.
The Supreme Court imposed a six-month actual suspension on an attorney who failed to perform legal services on behalf of a client and then misrepresented the status of a case to the client. In mitigation, the attorney had no record of prior discipline. (Hansen v. State Bar (1978) 23 Cal.3d 68.)
Respondent’s misconduct is more serious than the misconduct in Hansen and warrants more discipline. In this case, Respondent made misrepresentations to two clients to conceal that he had failed to prosecute their respective cases. To compound his misrepresentations, Respondent also fabricated documents in both matters and even simulated an arbitrator’s signature to further mislead the clients into believing that he had been working on their cases. Respondent carried out these misrepresentations for twelve years with Elmendorp and six years with Gerardi.
Respondent is entitled to limited mitigation for having no record of prior discipline since being admitted in 1982. However, the misconduct is serious and protracted over a long period of time which warrants significant discipline. Discipline consisting of a two-year stayed suspension with one year of actual suspension and three years of probation is appropriate and sufficient to protect the public, the courts and the integrity of the legal profession.
PENDING PROCEEDINGS:
The disclosure date referred to on page 2, section A.(7), was on March 16, 2012.
Case Number(s): 11-O-11247 & 12-O-11564
In the Matter of: Scott Nelson Harlow
a. Restitution
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: Brahm Elmendorp
Principal Amount: $1,325
Interest Accrues From: January 30, 2004
2. Payee: Rodd Gerardi
Principal Amount: $1,000
Interest Accrues From: May 17, 2005
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than 30 days from the effective date of disciplinary order herein. With respect to Gerardi only, if Respondent can locate and provide to the Office of Probation satisfactory proof of any partial refund of unearned fees on a date prior to the date of this stipulation, Respondent shall be given credit according to proof.
<<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.
<<not>> 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.
SIGNATURE OF THE PARTIES
Case Number(s): 11-O-11247 & 12-O-11564
In the Matter of: Scott Nelson Harlow
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: Scott Nelson Harlow
Date: March 19, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Agustin Hernandez
Date: March 19, 2012
Case Number(s): 11-O-11247 & 12-O-11564
In the Matter of: Scott Nelson Harlow
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.
Page 2, Para. B.(2): Dishonesty is deleted as a separate aggravating factor as it is already encompassed within the culpability finding regarding acts of moral turpitude. (See In the Matter of Burckhardt (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 343,351; In the Matter of Mapps (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 1, 11.)
Page 2, Para. B.(4) [Harm]: The box for this aggravating factor is deemed checked.
Page 4 [Additional Mitigating Circumstances]: Respondent is entitled to significant mitigating credit for his years of discipline-free practice before the instant misconduct began. (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49 [17 years of discipline-free practice is significant mitigating factor even though misconduct was serious].) In addition, Respondent is entitled to mitigation for admitting his misconduct and entering into an extensive stipulation of facts in this case. (Std. 1.2(e)(v); see also In the Matter of Gadda (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 416, 443; In the Matter of Johnson (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 190 [where appropriate, more extensive weight in mitigation is accorded those who admit to culpability as well as facts].)
For authorities supporting the appropriate level of discipline under the above circumstances, see In the Matter of Peterson (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 73.
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: Donald F. Miles
Date: March 27, 2012
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 March 27, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL SUSPENSION
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:
SCOTT NELSON HARLOW
225 S CIVIC DR STE 2-15
PALM SPRINGS, CA 92262
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
AGUSTIN HERNANDEZ, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 27, 2012.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court