Case Number(s): 11-O-12848
In the Matter of: Philip Deitch, Bar # 29164, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Charles A. Murray, 1149 South Hill Street, Los Angeles, CA 90015-2299, (213) 765-1276, Bar # 146069
Counsel for Respondent: In Pro Per Respondent, Philip Deitch, 2633 Lincoln Blvd., Ste. 818, Santa Monica, CA 90405, (310) 899-9600, Bar # 29164
Submitted to: Settlement 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 January 14, 1959.
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 11 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, 2014, and 2015 (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.: 90-O-11668
Discipline effective: September 15, 1994
Violations: Rules of Professional Conduct, Rules 3-110(A), 3-700(A)(2), and 4-100 (B)(4). Business and Professions Code section 6103, and 6068(m).
Degree of prior discipline – 90 days stayed suspension, with two years probation
State Bar Court case no: 80-O-245
Discipline effective: June 18, 1982
Violation: Rules of Professional Conduct, rules 3-110(A) (former rule 6-101).
Degree of prior discipline: Private Reproval
NO HARM TO A CLIENT:
At the time Respondent wrote the checks from his CTA, he had no client funds in the account. All of the funds in the account, which he should have moved to business or personal account, belonged to him. Thus, Respondent did not harm any client by his improper use of the CTA. (see In re Gadda (Review Dept. 2002} 4 Cal. State Bar Ct. Rptr 416, 442-43.)
CANDOR/COOPERATION (Entering into a Stipulaiton):
Respondent’s stipulation herein to the facts, his culpability, and his discipline at this early stage is a mitigating circumstance. (In re Spaith (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 96, 106, fn. 13.)
REMORSE/RECOGNITION/REMEDIAL ACTION:
Respondent demonstrated remorse and recognition of his misconduct, including changing office procedures to make sure funds are routed to the proper account, instructing his staff to deliver the trust account statements to him directly, and he now reviews those monthly statements personally. (Sternlieb v. State Bar (1990} 52 Cal. 3d 317, 333. Remorse and steps taken to establish office procedures which will avoid the practices that contributed to the violation; and see, In re Sternberg (Review Dept. 1997) 2008 Calif. Op. LEXIS 5, 22.)
RESPONDENTS PHYSICAL/MEDICAL ISSUES:
At the time Respondent committed the misconduct herein, he was suffering from giant cell arteritis, which causes cognitive impairment, In January 2010 Respondent was diagnosed with giant cell arteritis, which causes daily flu like symptoms and placed him at a high risk of blindness. Respondent was treated with steroids, which caused sleeping problems. Respondent’s disease and it’s treatment further distracted him from his duty to oversee his client trust account.
RESPONDENT’S WIFE’S PHYSICAL/MEDICAL ISSUES:
At the time Respondent committed the misconduct herein, his wife was suffering from serious illness. She had surgery some time ago for a pancreatic tumor. Most of her pancreas was surgically removed, and all of her spleen. Consequently, among other things, she is a very severe diabetic and is insulin dependent. She is unable to work because of the daily symptoms of her condition and the medication that she takes for her condition. Respondent’s focus on his wife’s care distracted him from the duty of properly administering his client trust account.
CLIENT TRUST ACCOUNTING SCHOOL
Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passing of the test given at the end of that session .
IN THE MATTER OF: Philip Deitch, State Bar No. 11-O-12848
STATE BAR COURT CASE NUMBER: 29164
CASE NUMBER(S): 11-O-12848
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-12848 (State Bar Investigation)
FACTS:
1. At all times relevant to these charges, Respondent maintained a client trust account at Bank of the West, account number 652-01XXXX (the "CTA") (the account number is partially obscured for privacy purposes).
2. From January 18, 2011 to February 11,2011, Respondent issued at least ten checks from his CTA for non-client related purposes:
Check Date: 1/18/11, Payee: Cash, Amount:$500.
Check Date: 1/20/11, Payee: Carla Rogers, Amount:$500, Note: Ms. Rogers is Respondent’s wife.
Check Date: 1/25/11, Payee: Carla Rogers, Amount:$500.
Check Date: 1/25/11, Payee: Cornelius Albert, Amount:$1,025, Note: Mr. Albert is an employee in Respondent’s office.
Check Date: 1/28/11, Payee: Cornelius Albert, Amount:$600.
Check Date: 1/31/11, Payee: Cornelius Albert, Amount:$600, Note: Memo: Rent.
Check Date: 2/2/11, Payee: Phillip Deitch, Amount:$250.
Check Date: 2/2/11, Payee: U-Haul, Amount:$1,254.50.
Check Date: 2/4/11, Payee: Internal Revenue Service, Amount:$500.
Check Date: 2/4/11, Payee: Eleno, Amount:$180.
Check Date: 2/11/11, Payee: Cash, Amount:$400.
3. The funds in the CTA at the time Respondent issued the checks were not client funds. They were Respondent’s funds that he should not have held in the CTA and that he should have withdrawn from the CTA before disbursing for non-client related purposes.
CONCLUSIONS OF LAW:
4. By using his CTA to pay non-client related expenses, Respondent deposited or commingled funds belonging to Respondent 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).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was February 8, 2012.
AUTHORITIES SUPPORTING DISCIPLINE.
Pursuant to Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct, the primary purposes of disciplinary proceedings and imposing sanctions for professional misconduct 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."
Pursuant to Standard 2.2 (b), culpability of a member of commingling of entrusted funds or property with personal property or the commission of another violation of rule 4-100, Rules of Professional Conduct, none of which offenses result in the willful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances.
Pursuant to Standard 1.7(b), 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(f),the degree of discipline in the current proceeding shall be disbarment, unless the most compelling mitigating circumstances clearly predominate.
The Supreme Court gives the Standards "great weight," and will reject a recommendation consistent with the Standards only where the Court entertains "grave doubts" as to its propriety. (In re Naney (1990) 51 Cal. 3d 186, 190; see also In re Silverton (2005) 36 Cal. 4th 81, 91.) Further, although the Standards are not mandatory, it is well established that the Standards may be deviated from only when there is a compelling, well-defined reason to do so. (See Aronin v. State Bar (1990) 52 Cal. 3d 276, 291; see ,also Bates v. State Bar (1990) 52 Cal. 3d. 1056, 1060, fn. 2.)
Depositing personal funds in a client trust account and using that account for personal expenses constitutes commingling within the meaning of rule 4-100 of the Rules of Professional Conduct, even where there are no client funds in the trust account. (In re Doran (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 871,875-876.) The stipulated discipline herein falls within Standard 2.2(b).
Good cause exists to deviate from Standard 1.7(b). The nature of the Respondent’s misconduct herein combined with the mitigating factors indicate that imposing the sanction set forth in standard 1.7(b) would not further the purpose of standard 1.3.
The court has declined to recommend disbarment in a case where the respondent had three prior impositions of discipline when the second and third discipline did not result in actual suspension and the three priors differed from the offense involved in the fourth. (In re Bouyer (1998) 3 Cal. State Bar Ct. Rptr. 888, 892 [90 days actual suspension, 18 mos. stayed suspension, and 2 years probation], see also Arm v. State Bar (1990) 50 Cal.3d 763,780 [Court declined to disbar respondent who had been previously discipline on three occasions, because the prior discipline while inherently aggravating did not show such a pattern that the most severe discipline was called for on the record].) Here, none of Respondent’s prior discipline has resulted in actual suspension. Respondent’s prior discipline was for misconduct different from the misconduct in the present case. Therefore, there is no pattern of misconduct established that would justify imposing disbarment under standard 1.7(b), see Arm, supra.
The court has also found that prior discipline over twenty years old that was minimal in nature does not merit significant weight in aggravation. (In re Hanson (1994) 2 Cal. State Bar Ct. Rptr. 703,713 [where respondent was disciplined given a private reproval 19 years earlier for misconduct involving acts other than those in the present matter, the prior misconduct did not merit significant weigh in aggravation], see also In re Shinn (1992) 2 Cal. State Bar Ct. Rptr. 96, 105 [private reproval more than 20 years earlier for improperly stopping payment on a $500 check to another law firm was too remote in time to merit "significant" weight on the issue of degree of discipline].) Here, Respondent’s first prior, a private reproval, is almost thirty years old and merits little or no weight in aggravation.
Thus, the stipulated discipline of ninety (90) days actual suspension, two (2) years stayed suspension and three (3) years probation with conditions is appropriate given that the purposes of public discipline, namely public protection, are satisfied by the terms of this stipulation.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of December 5, 2011, the prosecution costs in this matter are $2797.00. 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.
SIGNATURE OF THE PARTIES
Case Number(s): 11-O-12848
In the Matter of: Philip Deitch, State Bar No.: 29164
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: Philip Deitch
Date: April 5, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Charles A. Murray
Date: April 20, 2012
Case Number(s): 11-O-12848
In the Matter of: Philip Deitch, State Bar No.: 29164
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: April 30, 2012
[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 May 1, 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:
PHILIP DEITCH
LAW OFC OF PHILIP DEITCH
2633 LINCOLN BLVD., SUITE 818
SANTA MONICA, CA 90405
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
CHARLES MURRAY, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on May 1, 2012.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court