Case Number(s): 11-O-15186, 11-O-18350
In the Matter of: Jay Tenenbaum, Bar # 134221, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erin McKeown Joyce
Deputy Trial Counsel
State Bar of California
1149 South Hill Street
Los Angeles, CA 90015-2299
Telephone: (213) 765-1356
Facsimile: (213) 765-1319
Bar # 149946
Counsel for Respondent: Edward O. Lear
Century Law Group LLP
5200 West Century Blvd., #345
Los Angeles, CA 90045
Telephone: (310) 642-6900
Facsimile: (310) 642-6910
Bar# 132699
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: March 8, 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.
1. Respondent is a member of the State Bar of California, admitted June 14, 1988.
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 14 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.
Costs are awarded to the State Bar.
<<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.
9.
ORDER OF INACTIVE ENROLLMENT:
The parties are aware that if this stipulation is approved, the judge will
issue an order of inactive enrollment under Business and Professions Code
section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule
5.111(D)(1).
IN THE MATTER OF: Jay Tenenbaum, State Bar No. 134221
STATE BAR COURT CASE NUMBER: 11-O-15186 and 11-O-18350
PENDING PROCEEDINGS:
The disclosure date referred to on page two, paragraph A.(7), was February 28, 2012.
Respondent admits that the following facts are true and that he is culpable of violations of the specified Rules of Professional Conduct and Business and Professions Code sections.
Case No. 11-O-15186
FACTS
1. On May 5, 2011, the California Supreme Court entered an order ($190896) effective on June 4, 2011, suspending Respondent from the practice of law for five years. Execution of the five year period of suspension was stayed and Respondent was placed on a five year probation, subject to conditions. Pursuant to the May 5, 2011 Supreme Court order, Respondent was actually suspended for the first three (3) years of his probation, and Respondent was ordered to comply with the conditions of probation recommended by the Hearing Department of the State Bar Court in its order approving stipulation filed on January 10, 2011.
2. On May 5, 2011, the Clerk of the Supreme Court properly served a copy of the order on Respondent at his State Bar membership records address. Respondent received actual notice of the May 5, 2011 Supreme Court order.
3. Pursuant to the May 5, 2011 Supreme Court order, Respondent was actually suspended starting on June 4, 2011, and remains on actual suspension at the time of the filing of this stipulation.
4. Despite his actual suspension which began on June 4, 2011, Respondent continued to practice law and to hold himself out as eligible to practice law in numerous lawsuits throughout California.
5. On May 27,2011, Respondent filed an Application for and Renewal of Judgment, Memorandum of Costs after Judgment, Declaration of Jay M. Tenenbaum, Declaration to Change Attorney of Record, Assignment of Judgment, and Substitution of Attorney in Fresno County Superior Court, case no. 11CECL04948, entitled First Select, Inc. v. Julieta Lagos (the "Lagos matter") on behalf of First Select.
6. On June 7, 2011, three days after the start of his actual suspension, Respondent filed a Declaration of Reasonable Diligence, Proof of Service, and Declaration of Mailing in Fresno County Superior Court, case no. 11CECG01585, entitled Gryphon Solutions, LLC v. Gonzales (the "Gonzales matter") on behalf of Gryphon Solutions.
7. On June 8, 2011, Respondent and opposing counsel filed a Stipulation to Vacate and Set Aside Default in a lawsuit filed February 8, 2011 in Tulare County Superior Court, case no. 11-241166, entitled Credigy Receivables, Inc. v. Fitzgerald (the "Fitzgerald matter") on behalf of Credigy Receivables.
8. After June 4, 2011, while Respondent was on actual suspension, Respondent continued to provide legal services to Gryphon Solutions in several collection matters, including a collection lawsuit in Kings County Superior Court, case no. 11C0145, entitled Gryphon Solutions, LLC v. Villasenor (the "Villasenor matter") on behalf of Gryphon Solutions.
9. After June 4, 2011, Respondent called the opposing attorney in the Villasenor matter, Jith Meganthan, and requested that Meganthan agree to continue a hearing on the demurrer filed by Meganthan be until after July 22, 2011. Meganthan agreed to request the continuance from the court.
10. On June 9, 2011, Meganthan wrote to the court clerk and requested the continuance of the hearing in the Villasenor matter, and copied his letter to Respondent. At no time prior to the time he received this letter or after did Respondent notify Meganthan of his actual suspension.
11. On June 16, 2011, Respondent exchanged emails with Meganthan concerning the pending demurrer in the Villasenor matter.
12. On June 16, 2011, Respondent and his wife Linda Seals (who was also an attorney on actual suspension at the time) filed a Summons and Verified Complaint in Fresno County Superior Court, case no. 11CECG02098, entitled Credigy Receivables Inc, v. Javier Delrio (the "Delrio matter") on behalf of Credigy Receivables.
13. On June 16, 2011, Respondent recorded a Notice of Pendency of Action with the Fresno County Recorder in Credigy Receivables v. Hazzor Khan, Fresno County Superior Court, case no. 11CECG00427, (the "Khan matter") on behalf of Credigy Receivables.
14. On July 5, 2011, Respondent filed a proof of service in Fresno County Superior Court, case no. 11CECG01541, entitled Gryphon Solutions LLC v. Mike P. Silva (the "Silva matter") on behalf of Gryphon Solutions.
15. On July 12,2011, Respondent filed his Rule 9.20 Compliance Declaration, in which he averred under penalty of perjury that: I notified all opposing counsel or adverse parties not represented by counsel in matters that were pending on the date upon which the order to comply with rule 9.20 was filed by certified or registered mail, return receipt requested, of my disqualification to act as an attorney after the effective date of my suspension, disbarment or the Supreme Court’s acceptance of my resignation, and filed a copy of my notice to opposing counsel/adverse parties with the court, agency or tribunal before which litigation was pending for inclusion in its files.
16. On July 13, 2011, Respondent filed a proof of service in the Lagos matter.
17. Respondent continued to provide legal services to Gryphon Solutions in Fresno County Superior Court, case no. 11CECG01604, entitled Gryphon Solutions v. Malone (the Malone matter") after his suspension began on June 4, 2011.
18. On October 7, 2011, Respondent sent an email to the mediator in the Malone matter proposing a payment plan on the agreed $7,000 settlement he negotiated while on suspension.
19. On October 13, 20111, Respondent prepared a stipulation for entry of judgment in the Malone matter and forwarded the stipulation to the mediator.
20. As set forth above, the California Supreme Court issued a three year suspension order effective on June 4, 2011, which required Respondent to comply with California Rule of Court 9.20.
21. Specifically, the Supreme Court’s May 5, 2011 order required that Respondent comply with California Rule of Court 9.20, by performing the acts specified in subdivisions (a) and (c) within 30 and 40 days, respectively, after the effective date of the Supreme Court’s May 5, 2011 order. A true and correct copy of the Supreme Court’s May 5, 2011 order is attached hereto as Exhibit 1.
22. The Supreme Court’s May 5, 2011 order required that Respondent comply with subdivision (a) of rule 9.20 of the California Rules of Court no later than July 4, 2011, by notifying all clients and any co-counsel of his suspension, delivering to all clients any papers or other property to which the clients are entitled, refunding any unearned attorney fees, notifying opposing counsel and adverse parties of his suspension, and filing a copy of the required notice with the court, agency, or tribunal before which the litigation is pending.
23. The Supreme Court’s May 5, 2011 order required that Respondent comply with subdivision (c) of rule 9.20 of the California Rules of Court no later than July 14, 2011, by filing with the Clerk of the State Bar Court an affidavit showing that he fully complied with those provisions of the Suspension Order regarding rule 9.20.
24. On March 28, 2011, Respondent substituted in as counsel for Gryphon Solutions in a lawsuit filed in Fresno Superior Court, case no. 07CECL03785, entitled CACV of Colorado, LLC v. Hunsaker (the "Hunsaker matter") on behalf of Gryphon Solutions.
25. Respondent failed to notify his opposing counsel and the opposing parties in the litigation which was ongoing as of May 5, 2011, of his suspension, including his opposing counsel and the opposing parties in the Fitzgerald matter, the Khan matter, the Villasenor matter, and the Hunsaker matter.
26. Respondent failed to file the notices required by Rule 9.20 in the courts where he was counsel of record as of May 5, 2011, which notified the courts of his suspension in the Fitzgerald matter, the Khan matter, the Villasenor matter, and the Hunsaker matter.
27. At the time Respondent filed his 9.20 Compliance Declaration with the State Bar Court on July 12, 2011, Respondent was grossly negligent in not knowing it was false, because he had not notified opposing counsel, opposing parties and courts of his suspension.
28. Respondent enlisted his father-in-law, a licensed attorney, Philbert E. Seals, State Bar No 33025, to substitute into the ongoing litigation in which Respondent was counsel of record at the time the May 5, 2011 Supreme Court order was entered and the litigation Respondent undertook after the entry of the May 5, 2011 Supreme Court order.
29. At no time did Respondent file the notices required by Rule 9.20 in the ongoing litigation where he was counsel of record as of May 5, 2011, of his three year actual suspension.
CONCLUSIONS OF LAW
By filing the multiple pleadings in several Superior Courts throughout California and by continuing to provide legal services to Gryphon Solutions in the Villasenor and Malone matters after June 4, 2011, Respondent held himself out to his clients, courts, opposing counsel and a court mediator as entitled to practice law and actually practiced law when he was not an active member of the State Bar in wilful violation of Business and Professions Code sections 6125 and 6126, and thereby failed to support the laws of the State of California in wilful violation of Business and Professions Code section 6068(a).
By failing to notify his opposing counsel and the courts where he was counsel of record as of May 5, 2011, of his disciplinary suspension, Respondent willfully failed to comply with subdivision (a)(4) of California Rule of Court 9.20.
By filing the false 9.20 declaration with the State Bar Court, Respondent committed an act or acts involving moral turpitude, dishonesty, or corruption in wilful violation of Business and Professions Code section 6106.
Case No. 11-O-18350
FACTS
1. On June 17, 2011, after his actual suspension began, Respondent substituted into a lawsuit then pending in Alameda Superior Court, case no. 2002052579, entitled First Select, Inc. v. Archuleta (the "Archuleta matter") on behalf of First Select.
2. That same day, June 17, 2011, Respondent filed a Memorandum of Costs after Judgment, Acknowledgement of Credit, Declaration of Accrued Interest and Assignment of Judgment in the Archuleta matter.
3. On June 30, 2011, Philbert Seals filed a Notice of Change of Attorney in the Archuleta matter.
4. On October 3, 2011, Respondent filed a Notice of Levy and Writ of Execution in the Archuleta matter.
5. Respondent failed to. notify his opposing counsel and the court in the Archuleta matter of his suspension.
6. At the time Respondent filed the materially false 9.20 Compliance Declaration with the State Bar Court on July 12, 2011, Respondent knew that it was false or was grossly negligent in not knowing it was false.
7. Respondent actively concealed from the State Bar, his opposing counsel and the court in the Archuleta matter that he was suspended from active practice of law effective June 4, 2011.
8. In an effort to conceal his continued unauthorized practice of law and his three year suspension from active law practice, Respondent enlisted his father-in-law, a licensed attorney, Philbert E. Seals, State Bar No 33025, to substitute into the Archuleta matter.
9. At no time did Respondent file the required notices to the court in the Archuleta matter of his three year actual suspension.
CONCLUSIONS OF LAW
By substituting into the Archuleta matter and filing the multiple pleadings in the Archuleta matter after June 4, 2011, Respondent held himself out to the court and opposing counsel as entitled to practice law and actually practiced law when he was not an active member of the State Bar in wilful violation of Business and Professions Code sections 6125 and 6126, and thereby failed to support the laws of the State of California in wilful violation of Business and Professions Code section 6068(a).
By failing to notify his opposing counsel and the court in the Archuleta matter of his disciplinary suspension, Respondent willfully failed to comply with subdivision (a)(4) of California Rule of Court 9.20.
AUTHORITIES SUPPORTING DISCIPLINE
STANDARDS FOR ATTORNEY SANCTIONS
To determine the appropriate level of discipline, the standards provide guidance. Drociak v. State Bar(1991) 52 Cal.3d 1085; In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119. A disciplinary recommendation must be consistent with the discipline in similar proceedings. See Snyder v. State Bar (1990) 49 Cal.3d 1302. Also, the recommended discipline must rest upon a balanced consideration of relevant factors. In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119.
Pursuant to Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s 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 1.2 of the Standards for Attorney Sanctions for Professional Misconduct:
(b) "Aggravating circumstance" is an event or factor established clearly and convincingly by the State Bar as having surrounded a member’s professional misconduct and which demonstrates that a greater degree of sanction than set forth in these standards for the particular act of professional misconduct found or acknowledged is needed to adequately protect the public, courts and legal profession.
Circumstances which shall be considered aggravating are:
(ii) that the current misconduct found or acknowledged by the member evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct.
Pursuant to Standard 1.6(a) of the Standards for Attorney Sanctions for Professional Misconduct:
The appropriate sanction for an act of professional misconduct shall be set forth in the following standards for the particular act of misconduct found or acknowledged. If 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 sanctions imposed shall be the more or the most severe of the different application sanctions.
Pursuant to Standard 1.6(b)(1) of the Standards for Attorney Sanctions for Professional Misconduct:
Aggravating circumstances are found to surround the particular act of misconduct found or acknowledged and the net effect of those aggravating circumstances, by themselves and in balance with any mitigating circumstances found, demonstrates that a greater degree of sanction is required to fulfill the purposes of imposing sanctions set forth in standard 1.3. In that case, a greater degree of discipline than the appropriate sanction shall be imposed or recommended.
Pursuant to Standard 1.7(a) of the Standards for Attorney Sanctions for Professional
Misconduct:
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 one prior imposition of discipline as defined by standard 1.2(f), the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior proceeding unless the prior discipline imposed was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust.
Pursuant to Standard 2.3 of the Standards for Attorney Sanctions for Professional Misconduct:
Culpability 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 a 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.
Pursuant to Standard 2.6 of the Standards for Attorney Sanctions for Professional Misconduct:
Culpability of a member of a violation of any of the following provisions of the Business and Professions Code shall result in disbarment or suspension depending on 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:
(a) Sections 6067 and 6068;
(b) Sections 6103 through 6105 ....
Pursuant to Standard 2.10 of the Standards for Attorney Sanctions for Professional
Misconduct:
Culpability of a member ... of a wilful violation of any Rule of Professional Conduct not specified in these 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
Respondent’s wide-spread misconduct which began at the start of his three year disciplinary suspension warrants his disbarment. Disbarment is the appropriate discipline in these matters, and falls within the applicable standards.
FURTHER AGREEMENTS OF THE PARTIES
The factual statements contained in this Stipulation constitute admissions of fact and may not be withdrawn by either party, except with court approval.
COSTS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him that as of February 28, 2012, the estimated costs in this matter are $4,180. 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-15186 and 11-O-18350
In the Matter of: Jay Tenenbaum
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: Jay Tenenbaum
Date: February 28, 2012
Respondent’s Counsel: Edward O. Lear
Date: February 28, 2012
Deputy Trial Counsel: Erin McKeown Joyce
Date: February 28, 2012
Case Number(s): 11-O-15186 and 11-O-18350
In the Matter of: Jay Tenenbaum
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.)
Respondent is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herin, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Judge of the State Bar Court: Richard A. Platel
Date: March 8, 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 March 8, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
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:
EDWARD LEAR
CENTURY LAW GROUP LLP
5200 W CENTURY BLVD #345
LOS ANGELES, CA 90045
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERIN JOYCE, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 8, 2012.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court