State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 11-O-13878
In the Matter of: Nwabueze Ezeife, Bar # 165472 , A Member of
the State Bar of California, (Respondent).
Counsel For The State Bar: Treva R. Stewart
State Bar of California
Office of the Chief Trial Counsel
180 Howard Street
San Francisco, CA 94105
Bar # 239829
Counsel for Respondent: In Pro Per Respondent
Nwabueze Ezeife
480 Roland Way Ste 101
Oakland, CA 94621-2052
Bar # 165472Submitted to: Assigned Judge – State Bar Court
Clerk’s Office San Francisco.
Filed: March 2, 2012.
<<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.
A. Parties' Acknowledgments:
1. Respondent is
a member of the State Bar of California, admitted June 15, 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 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: three billing
cycles following the effective date of the Supreme Court order.
(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.
B.
Aggravating Circumstances [for definition, see
Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)].
Facts supporting aggravating circumstances are required.
checked. (1) Prior record of discipline [see standard 1.2(f)]
checked.
(a)
State Bar Court case # of prior case 00-O-12263, et al (Ezeife I)
checked.
(b)
Date prior discipline effective January 4, 2004
checked.
(c)
Rules of Professional Conduct/ State Bar Act violations: Rules 4-100(A),
4-100(B)(3), 3-700(D)(1), 3-100(A), 3-700(A)(2) and 1-300(A) of the Rules of
Professional Conduct and Sections 6068(b), 6068(M), 6103 and 6106 of the State
Bar Act
checked.
(d)
Degree of prior discipline Two years stayed suspension and until rehabilitation
and three years probation conditioned on six months actual suspension and until
respondent paid restitution
checked.
(e)
If Respondent has two or more incidents of prior discipline, use space provided
below.
State
Bar Court case # of prior case 06-0-12913, et al. (Ezeife II)
Date
prior discipline effective September 3, 2010
Rules
of Professional Conduct/State Bar Act violations: Rules 3-110(A) and 3-200(B)
of the Rules of Professional Conduct and Sections 6068(o), 6090.5(o)(2) and 6]
03 of the State Bar Act
Degree
of Discipline One year stayed suspension; two years probation condition on nine
months actual suspension
State
Bar Court case # of prior case 08-O-14845 (Ezeife III)
Date
prior discipline effective August 26, 2011
Rules
of Profession Conduct/State Bar Act violations: Rule 4-100(A) (three counts) of
the Rules of Professional Conduct
Degree
of Discipline Three years stayed suspension and four years probation
conditioned on one year actual suspension.
See
Stipulation Attachment for further discussion regarding prior records of
discipline.
<<not>> checked. (2) Dishonesty: Respondent's
misconduct was surrounded by or followed by bad faith, dishonesty, concealment,
overreaching or other violations of the State Bar Act or Rules of Professional
Conduct.
<<not>> checked. (3) Trust Violation: Trust funds or
property were involved and Respondent refused or was unable to account to the
client or person who was the object of the misconduct for improper conduct
toward said funds or property.
<<not>> checked. (4) Harm: Respondent's misconduct
harmed significantly a client, the public or the administration of justice.
<<not>> checked. (5) Indifference: Respondent
demonstrated indifference toward rectification of or atonement for the
consequences of his or her misconduct.
<<not>> checked. (6) Lack of Cooperation: Respondent
displayed a lack of candor and cooperation to victims of his/her misconduct or
to the State Bar during disciplinary investigation or proceedings.
<<not>> checked. (7) Multiple/Pattern of Misconduct:
Respondent's current misconduct evidences multiple acts of wrongdoing or
demonstrates a pattern of misconduct.
<<not>> checked. (8) No aggravating circumstances are
involved.
Additional aggravating circumstances:
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
<<not>>
checked. (1) No Prior Discipline: Respondent has no
prior record of discipline over many years of practice coupled with present
misconduct which is not deemed serious.
<<not>>
checked. (2) No Harm: Respondent did not harm the
client or person who was the object of the misconduct.
checked.
(3)
Candor/Cooperation: Respondent displayed spontaneous candor and
cooperation with the victims of his/her misconduct and to the State Bar during
disciplinary investigation and proceedings. Respondent was cooperative
throughout the State Bar’s investigation as well as the resolution of this
matter. In his response to the State Bar he openly and candidly expressed
remorse for his misconduct in this matter as well as his prior matters.
<<not>>
checked. (4) Remorse: Respondent promptly took
objective steps spontaneously demonstrating remorse and recognition of the
wrongdoing, which steps were designed to timely atone for any consequences of
his/her misconduct.
<<not>>
checked. (5) Restitution: Respondent paid $ on in
restitution to without the threat or force of disciplinary, civil or criminal
proceedings.
<<not>>
checked. (6) Delay: These disciplinary proceedings were
excessively delayed. The delay is not attributable to Respondent and the
delay prejudiced him/her.
<<not>>
checked. (7) Good Faith: Respondent acted in good
faith.
<<not>>
checked. (8) Emotional/Physical Difficulties: At the
time of the stipulated act or acts of professional misconduct Respondent
suffered extreme emotional difficulties or physical disabilities which expert
testimony would establish was directly responsible for the misconduct.
The difficulties or disabilities were not the product of any illegal conduct by
the member, such as illegal drug or substance abuse, and Respondent no longer
suffers from such difficulties or disabilities.
checked.
(9)
Severe Financial Stress: At the time of the misconduct, Respondent
suffered from severe financial stress which resulted from circumstances not
reasonably foreseeable or which were beyond his/her control and which were
directly responsible for the misconduct. At the time of the misconduct
Respondent was unable to secure consistent gainful employment sufficient to
provide for his four children and meet his other financial obligations. Also,
he incurred substantial unexpected travel expenses to Nigeria to attend to his
ill father.
checked.
(10) Family Problems: At the time of the misconduct, Respondent suffered
extreme difficulties in his/her personal life which were other than emotional
or physical in nature. At the time of the misconduct Respondent’s 89 year old
father suffered psychological problems requiring Respondent to make at least
two trips to Nigeria to attend to him and obtain treatment for him. Respondent
has also experienced difficulties in his marriage.
checked.
(11) Good Character: Respondent's good character is attested to by a wide
range of references in the legal and general communities who are aware of the
full extent of his/her misconduct.
<<not>>
checked. (12) Rehabilitation: Considerable time has passed since the acts
of professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
<<not>>
checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances:
D.
Discipline:
checked.
(1) Stayed
Suspension:
checked.
(a) Respondent must be suspended from the practice of law for a period of four
years.
<<not>> checked.
i. and until Respondent shows proof satisfactory to the State Bar Court of
rehabilitation and present fitness to practice and present learning and ability
in the law pursuant to standard 1.4(c)(ii) Standards for Attorney Sanctions for
Professional Misconduct.
<<not>>
checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
<<not>>
checked. iii. and until Respondent does the following:
<<not>>
checked. (b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on probation
for a period of four years, which will commence upon the effective date of the
Supreme Court order in this matter. (See rule 9.18, California Rules of
Court.)
checked. (3) Actual Suspension:
checked.
(a) Respondent must be actually suspended from the practice of law in the State
of California for a period of three years.
checked. i. and until
Respondent shows proof satisfactory to the State Bar Court of rehabilitation and
present fitness to practice and present learning and ability in the law
pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for
Professional Misconduct
<<not>>
checked. ii. and until Respondent pays restitution as set forth in the Financial
Conditions form attached to this stipulation.
<<not>>
checked. iii. and until Respondent does the following:
E. Additional Conditions of Probation:
<<not>>
checked. (1) If Respondent is actually suspended for two years or
more, he/she must remain actually suspended until he/she proves to the State
Bar Court his/her rehabilitation, fitness to practice, and learning and ability
in the general law, pursuant to standard 1.4(c)(ii), Standards for Attorney
Sanctions for Professional Misconduct.
checked.
(2)
During the probation period, Respondent must comply with the provisions of the
State Bar Act and Rules of Professional Conduct.
checked.
(3)
Within ten (10) days of any change, Respondent must report to the Membership
Records Office of the State Bar and to the Office of Probation of the State Bar
of California ("Office of Probation"), all changes of information,
including current office address and telephone number, or other address for
State Bar purposes, as prescribed by section 6002.1 of the Business and
Professions Code.
checked.
(4)
Within thirty (30) days from the effective date of discipline, Respondent must
contact the Office of Probation and schedule a meeting with Respondent's
assigned probation deputy to discuss these terms and conditions of probation.
Upon the direction of the Office of Probation, Respondent must meet with the
probation deputy either in-person or by telephone. During the period of
probation, Respondent must promptly meet with the probation deputy as directed
and upon request.
checked.
(5)
Respondent must submit written quarterly reports to the Office of Probation on
each January 10, April 10, July 10, and October 10 of the period of probation.
Under penalty of perjury, Respondent must state whether Respondent has complied
with the State Bar Act, the Rules of Professional Conduct, and all conditions
of probation during the preceding calendar quarter. Respondent must also state
whether there are any proceedings pending against him or her in the State Bar
Court and if so, the case number and current status of that proceeding. If the
first report would cover less than 30 days, that report must be submitted on
the next quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same
information, is due no earlier than twenty (20) days before the last day of the
period of probation and no later than the last day of probation.
<<not>>
checked. (6) Respondent must be assigned a probation monitor.
Respondent must promptly review the terms and conditions of probation with the
probation monitor to establish a manner and schedule of compliance. During the
period of probation, Respondent must furnish to the monitor such reports as may
be requested, in addition to the quarterly reports required to be submitted to
the Office of Probation. Respondent must cooperate fully with the probation
monitor.
checked.
(7)
Subject to assertion of applicable privileges, Respondent must answer fully,
promptly and truthfully any inquiries of the Office of Probation and any
probation monitor assigned under these conditions which are directed to
Respondent personally or in writing relating to whether Respondent is complying
or has complied with the probation conditions.
<<not>>
checked. (8) Within one (1) year of the effective date of the
discipline herein, Respondent must provide to the Office of Probation
satisfactory proof of attendance at a session of the Ethics School, and passage
of the test given at the end of that session.
checked. No Ethics School recommended. Reason: Respondent provided
proof of attendance at Ethics School and passage of the test given at the end
of the session on July 11, 2011 pursuant to Supreme Court order S182846.
<<not>>
checked. (9) Respondent must comply with all conditions of
probation imposed in the underlying criminal matter and must so declare under
penalty of perjury in conjunction with any quarterly report to be filed with
the Office of Probation.
<<not>>
checked. (10) The following conditions are attached hereto and incorporated:
<<not>> checked. Substance
Abuse Conditions.
<<not>> checked. Law Office
Management Conditions.
<<not>> checked. Medical
Conditions.
<<not>> checked. Financial
Conditions.
F. Other Conditions Negotiated by the Parties:
<<not>> checked. (1) Multistate Professional
Responsibility Examination: Respondent must provide proof of passage of
the Multistate Professional Responsibility Examination ("MPRE"),
administered by the National Conference of Bar Examiners, to the Office of
Probation during the period of actual suspension or within one year, whichever
period is longer. Failure to pass the MPRE results in actual suspension
without further hearing until passage. But see rule 9.10(b), California Rules
of Court, and rule 5.162(A) & (E), Rules of Procedure.
checked. No MPRE recommended. Reason: Respondent must remain
actually suspended until he provides proof of passage of the Multistate
Professional Responsibility Examination per Supreme Court order S182846.
checked.
(2)
Rule 9.20, California Rules of Court: Respondent must comply with the
requirements of rule 9.20, California Rules of Court, and perform the acts
specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar
days, respectively, after the effective date of the Supreme Court's Order in
this matter.
<<not>> checked. (3) Conditional Rule 9.20,
California Rules of Court: If Respondent remains actually suspended for
90 days or more, he/she must comply with the requirements of rule 9.20,
California Rules of Court, and perform the acts specified in subdivisions (a)
and (c) of that rule within 120 and 130 calendar days, respectively, after the effective
date of the Supreme Court's Order in this matter.
<<not>> checked. (4) Credit for Interim
Suspension [conviction referral cases only]: Respondent will be credited
for the period of his/her interim suspension toward the stipulated period of
actual suspension. Date of commencement of interim suspension:
checked.
(5)
Other Conditions: See Stipulation Attachment
Attachment language (if any):
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION
IN THE MATTER OF: NWABUEZE
EZEIFE, State Bar No. 165472
STATE BAR COURT CASE NUMBER:
11-O-13878
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.
FACTS AND CONCLUSIONS
OF LAW.
FACTS:
1. On or
about September 1, 2010 Respondent was placed on administrative suspension for
failure to pay his State Bar membership dues.
2. On or
about September 3, 2010 Respondent was actually suspended from the practice of
law in case number 06-0-12413 for nine months.
3. During all
relevant times, Respondent was not entitled to practice law.
4. During all
relevant times, Kelechi Charles Emeziem ("Emeziem") was the attorney
of record for Ntita Kalonji ("Mr. Kalonji") in the matter, Kalonji v.
Kalonji, Alameda Superior Court Case No. RF07309631.
5. On
November 23, 2010 Respondent appeared in court with Mr. Kalonji. Emeziem was
not present.
6. On March
30, 2011 Respondent appeared in court on behalf of Mr. Kalonji. Mr. Kalonji nor
Emeziem were present.
7. Respondent
held himself out as entitled to practice law on November 23, 2010 and March 30,
2011 when he knew that he was not entitled to practice law.
CONCLUSION OF
LAW:
By appearing
in court on behalf of Mr. Kalonji on November 23, 2010 and March 30, 2011 and
by holding himself out as entitled to practice law in California when he knew
that he was not entitled to practice law in California, respondent held himself
out as entitled to practice law when he was not an active member of the State
Bar of California, respondent wilfully violated Business and Professions Code
sections 6125 and 6126 and thereby failed to abide by and support the laws of
the State of California in violation of Business and Professions Code Section
6068(a).
PENDING
PROCEEDINGS.
The
disclosure date referred to, on page 2, paragraph A(7), was February 16, 2012.
AUTHORITIES
SUPPORTING DISCIPLINE.
Standard 1.7(b)
imposes disbarment when a member with a record of two prior impositions of
discipline is found culpable of professional misconduct in a pending
proceeding, unless the most compelling mitigating circumstances clearly
predominate.
Although
there are three prior impositions of discipline, the weight to be accorded for
purposes of aggravation is diminished by the fact that Ezeife III considered
Respondent to only have one prior record of discipline based on almost all of
the acts in Ezeife III being committed before the effective date in Ezeife II.
Similarly, all of Respondent’s acts in the instant matter (Ezeife IV) occurred
before the effective date of Ezeife 111.
Further,
disbarment is not recommended where the nature and extent of the prior records
do not warrant disbarment. In the Matter of Meyer (Review Dept. 1997) 3 Cal.
State Bar Ct. Rptr. 697. While some of Respondent’s past misconduct is serious,
none of the prior matters warranted disbarment. The most severe discipline
imposed was three years stayed and one year actual.
Finally,
compelling mitigating circumstances notwithstanding, a rigid application of
Standard 1.7(b) is not required to achieve the purposes of Standard 1.3. (See
Conroy v. State Bar (1991) 53 Cal.3d 495). A lengthy suspension will serve the
primary purposes of disciplinary proceedings provided for in Standard 1.3. In
the Matter of Miller (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 131; Arm v.
State Bar (1990) 50 Cal.3d 763.
Standard 2.6
provides that violation of Business & Professions Code Sections 6125 and
6126 "shall result in disbarment or suspension depending on the gravity of
the offense Or the harm, if any, to the victim."
Discipline
for the unauthorized practice of law varies. In In the Matter of Trousil (Review
Dept. 1990) I Cal. State Bar Ct. Rptr. 229, Trousil, who had three prior
records of discipline was suspended for two years stayed and 30 days actual for
a single charge of practicing law while suspended. Trousil’s prior discipline
did not include any actual suspension. In Morgan v. State Bar (1990) 51 Cal.3d
598, Morgan was disbarred. In addition to engaging in the unauthorized practice
of law, Morgan had obtained a pecuniary interest adverse to his client. He had
five prior impositions of discipline, one of which involved the unauthorized
practice of law and three involved actual discipline.
The matters
in which Respondent appeared were essentially for case status and did not
involve substantive findings. Further, there was no victim harmed by Respondent’s
misconduct.
Respondent
acknowledges that any further disciplinary action instituted against him will
likely result in disbarment.
COSTS OF
DISCIPLINARY PROCEEDINGS.
Respondent
acknowledges that the Office of the Chief Trial Counsel has informed respondent
that as of February 14, 2012, the prosecution costs in this matter are
approximately $2897. 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-13878
In the Matter of: Nwabueze C. I. Ezeife, State Bar No.
165472
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:
Nwabueze C. I. Ezeife
Date:
February 21, 2012
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Treva R. Stewart
Date:
February 21, 2012
ACTUAL SUSPENSION ORDER
Case Number(s): 11-O-13878
In the Matter of: Nwabueze C.I. Ezeife, State Bar No.:
165472
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.
checked.
All Hearing dates are vacated.
On p.2,(8)
Payment of Disciplinary of Disciplinary Costs, add the years “2013, 2014, and
2015” to the installment payments.
On p.2,
B.(1)(e) Prior case number “06-O-12913” is deleted and replace with
“06-O-12413.”
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: Lucy Armendariz
Date: March 2,
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 San
Francisco, on March 2, 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 San
Francisco, California, addressed as follows:
NWABUEZE C. I. EXEIFE
EZEIFE & ASSOCIATES
480 ROLAND WAY STE 101
OAKLAND, CA 94621-2052
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
TREVA R. STEWART, Enforcement, San
Francisco
I hereby
certify that the foregoing is true and correct. Executed in San Francisco,
California, on March 2, 2012.
Signed by:
Mazie Yip
Case
Admistrator
State Bar
Court