Case Number(s):11-O-11320, 11-O-11744, 11-O-13225, 12-O-10009
In the Matter of: James Michael Powell, Bar # 165639, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Katherine Kinsey, Deputy Trial Counsel, State Bar of California, 1149 S. Hill Street, Los Angeles, CA 90015, 213-765-1503, Bar # 183740
Counsel for Respondent: In Pro Per Respondent, James Michael Powell, 231 E. Alessandro Blvd, Ste A-263, Riverside, CA 92508, 951-275-9667, Bar# 165639
Submitted to: Assigned Judge of State Bar Court of Clerk’s Office Los Angeles
Filed: February 14, 2012
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 August 6, 1993.
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. Costs are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: 2013, 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 aggravating circumstances
Additional mitigating circumstances: Respondent was admitted to the practice of Iaw on August 6, 1993 and has no prior record of discipline.
(Effective January 1, 2011)
Stayed Suspension
FINANCIAL CONDITIONS
Case Number(s): 11-O-11320,11-O-11744,11-O-13225, 12-O-10009
In the Matter of: James Michael Powell
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: Dean Riley
Principal Amount: $725
Interest Accrues From: August 20, 2010
2. Payee: Jaime and Cecilia Medina
Principal Amount: $4,195
Interest Accrues From: November 23, 2010
3. Payee: Maria Garcia
Principal Amount: $1,200
Interest Accrues From: July 12, 2011
4. Payee:
Principal Amount:
Interest Accrues From:
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than within nine (9) months of the effective date of the discipline herein.
b. Installment Restitution Payments
<<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.
c. Client Funds Certificate
<<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’ Fund Account”;
.
(Effective January 1, 2011)
Financial Conditions
IN THE MATTER OF: James Michael Powell State Bar No. 165639
CASE NUMBERS: 11-O-11320, 11-O-11744, 11-O-13225, 12-O-10009
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.
1. On March 14, 2009, Dean Riley ("Riley") employed Respondent to assist him with Riley’s tax problems. From March 2009 to April 2010, Riley paid $2,025 of the $4,000 retainer amount. While Respondent did some initial work on Riley’s behalf, Respondent informed Riley that the work would not be completed until Riley paid the full retainer.
2. On August 20, 2010, Riley emailed Respondent stating that he had family issues to deal with and requested the return of his file. Respondent received the email but did not provide the file.
3. In October 2010, Riley wrote Respondent a letter again requesting his file. Respondent acknowledges receiving the letter but misplaced it.
4. In December 2010, Riley filed a complaint against Respondent with the State Bar of California regarding the return of his file and obtaining a refund of fees.
5. On May 2, 2011, Respondent turned over the client file to Riley.
6. On May 25,2011, Riley wrote Respondent and requested a refund of unearned fees. Respondent received the letter but did not provide a refund.
7. On September 26, 2011, Respondent wrote the State Bar acknowledging that he owed Riley a refund of $1,450 in unearned fees.
8. As of January 2012, Respondent had refunded $725 of the $1,450 in fees to Riley.
By not promptly returning the client file to Riley despite his requests, Respondent failed to release promptly, upon termination of employment, to his client, at the request of the client, all client papers and property in willful violation of Rules of Professional Conduct, rule 3-700(D)(1).
By not promptly refunding the attorney’s fees to Riley despite his request, 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).
1. In December 2009, Kariuki Jones ("Jones") hired Respondent to represent him in an unlawful detainer action. Pursuant to the retainer agreement, Jones was to pay Respondent $3,000 in attorney’s fees for the unlawful detainer and a related civil action. On December 30, 2009, Jones paid Respondent $1,000 in advanced attorney’s fees and $240 in filing fees.
2. Since Jones was not able to pay the full $3,000 in fees, Jones signed a promissory note and deed of trust on his two vacant lots on Respondent’s behalf to secure the balance of the remaining attorney’s fees.
3. By having Jones execute the promissory note and deed of trust, Respondent acquired a security and pecuniary interest adverse to his client in order to secure future fees.
4. Respondent agreed not to record the two deeds, but prior to Jones signing the promissory note, Respondent did not advise Jones in writing that he may seek the advice of independent counsel. In addition, Respondent did not disclose all the terms of the transaction to Jones in writing and thereafter did not have Jones consent to the terms of the transaction in writing.
5. Although he never recorded the deeds of trust, Respondent prepared reconveyances on the lots and provided them to Jones.
Based on the forgoing, Respondent knowingly acquired an ownership or security interest adverse to a client without assuring that the terms of the transaction were fair and fully disclosed to the client, without transmitting the terms in writing to the client in a manner which should reasonably have been understood to the client and without advising the client in writing that he may seek the advice of independent counsel in willful violation Rules of Professional Conduct, rule 3-300.
1. In November 2010, Jaime and Cecilia Medina (the "Medinas") employed Respondent to handle their bankruptcy and other matters related to their real property.
On November 23, 2010, the Medinas paid Respondent $4,195 in advanced attorney’s fees.
2. The Medinas gave their paperwork to Respondent’s employee Jorge Barrera ("Barrera") and only communicated with Barrera.
3. Respondent did not file the bankruptcy or otherwise provide legal services on the Medinas’ behalf.
4. In early 2011, the Medinas requested a refund of the $4,195 in advanced attorney’s fees.
5. In March 2011, Respondent represented to the Medinas that the $4,195 refund would be processed and returned to them by March 31,2011. Thereafter, Respondent failed to provide the refund.
6. Respondent agrees that he owes the Medinas $4,195 in unearned attorney’s fees.
By not promptly refunding the $4,195 in attorney’s fees to the Medinas despite their requests, 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).
1. On June 16, 2011, Maria Garcia ("Garcia") met with non-attorney Jorge Barrera ("Barrera") in Respondent’s office regarding pursuing an action against her lender stemming from the refinancing of her home. Barrera represented to Garcia that Respondent would file a legal action on her behalf but told Garcia that an audit would have to be done first. Barrera told Garcia that a legal action would be filed on her behalf without Respondent’s knowledge or consent.
2. On June 16, 2011, Garcia paid Respondent $600 in advanced attorney’s fees. On July 12, 2011, Garcia paid Respondent an additional $600 in fees.
3. As of November 2011, Garcia had not met with Respondent and had only communicated with Barrera. In addition, no legal action had been taken on Garcia’s behalf, and she had not received a copy of an audit. Therefore, on November 18, 2011, Garcia wrote Barrera a letter requesting a refund. Bah’era received the letter but did not notify Respondent that Garcia had requested the refund.
4. Respondent acknowledges that he failed to supervise his Barrera and agrees that Garcia is owed a refund of $1,200.
By failing to supervise Jorge Barrera, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
The disclosure date referred to, on page 2, paragraph A(7), was January 19, 2012.
Standard 2.4(b) states that culpability of a member of willfully failing to perform services in an individual matter not demonstrating a pattern of misconduct shall result in reproval or suspension depending upon the extent of misconduct and the degree of harm to the client.
Standard 2.8 states that culpability of a member of a willful violation of rule 3-300, Rules of Professional Conduct, shall result in suspension unless the extent of the member’s misconduct and the harm to the client are minimal, in which case, the degree of discipline shall be reproval.
Standard 2.10 states that a willful violation of any Rule of Professional Conduct not specified by the standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in Standard 1.3.
Case Number(s): 11-O-11320, 11-O-11744, 11-O-13225, 12-O-10009
In the Matter of: James Michael Powell
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: James M. Powell
Date: 2/3/12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Katherine Kinsey
Date:
2/3/12
Case Number(s): 11-O-11320, 11-O-11744, 11-O-13225, 12-O-10009
In the Matter of: James Michael Powell
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.
<<not>> 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. Platel
Date:
02-14-12
[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 February 14, 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:
JAMES M. POWELL
LAW OFFICES OF JAMES M POWELL
231 E ALESSANDRO BLVD
STE A-263
RIVERSIDE, CA 92508
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Katherine D. Kinsey, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 14, 2012.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court