Case Number(s): 11-O-16057
In the Matter of: Adrian Henry Triminio, Bar # 192894, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Agustin Hernandez, Deputy Trial Counsel
1149 South Hill St.
Los Angeles, CA 90015-2299
(213) 765-1713
Bar # 161625
Counsel for Respondent: In Pro Per Respondent
ADRIAN HENRY TRIMINIO
P.O. Box 20322
Fountain Valley, CA 92728
(714) 615-2770
Bar # 192894
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 9, 1997.
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):
<<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 imposing discipline. (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.
See page 10.
IN THE MATTER OF: ADRIAN HENRY TRIMINIO
CASE NUMBER(S): 11-O-16057
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-16057 (Complainant: Hoa Thi Nguyen)
FACTS:
1. On February 8, 2006, Hoa Thi Nguyen (’Nguyen") employed Respondent to represent her in a real estate fraud action. Pursuant to the fee agreement, Respondent’s fees were to be billed at $200 per hour plus costs. Throughout Respondent’s representation of Nguyen, Nguyen paid Respondent $13,000 in fees and costs.
2. On April 5, 2006, Respondent filed an action on behalf of Nguyen in Orange County Superior Court entitled Hoa Thi Nguyen v. Linh Ngoc Nguyen, Jean H. Su, Phillip Ngo, Leesa Thuy Nguyen, Executive Corporation dba Century 21 Olympic Team, and Platinum Escrow, case no. 06CC04807 (’Nguyen matter").
3. In April 2007, defendants Phillip Ngo, Leesa Thuy Nguyen, Executive Corporation dba Century 21 Olympic Team (collectively referred to as the "Settling Defendants") communicated to Respondent an offer of $18,000 to settle the Nguyen matter as to these defendants only, contingent upon the court’s determination that the settlement was entered into in good faith. Thereafter, Respondent communicated this settlement offer to Nguyen. Nguyen informed Respondent that she did not accept this settlement offer.
4. On April 20, 2007, Respondent accepted the $18,000 settlement offer on behalf of Nguyen without Nguyen’s knowledge and in violation of Nguyen’s instructions. At no time did Respondent communicate to Nguyen that he had accepted the settlement offer on her behalf.
5. On April 25, 2007, the Settling Defendants filed an application for determination of a good faith settlement.
6. On May 22, 2007, the court filed an order finding that the settlement purportedly entered into by Nguyen and the Settling Defendants was made and entered into in good faith.
7. At no time did Nguyen accept this settlement offer and at no time did she execute a settlement agreement or release.
8. After not receiving a settlement agreement or release executed by Nguyen from Respondent, on August 9, 2007, the Settling Defendants filed an Ex Parte Application to Request the Court’s Inquiry into Plaintiff’s Failure to Execute Settlement Documents; and to Schedule a Date for Plaintiff and Her Attorney to Appear to Execute Settlement Documents ("Ex Parte Hearing"). Respondent failed to appear at the Ex Parte Hearing.
9. On August 9, 2007, the court set an OSC re Enforcement of the Settlement Agreement to be heard on August 30, 2007 ("OSC re Enforcement of Settlement"). On August 10, 2007, opposing counsel served notice of the August 30, 2007 OSC re Enforcement of Settlement on Respondent at his then current membership records address. Respondent received the notice.
10. On August 30, 2007, Respondent failed to appear at the OSC re Enforcement of Settlement, On August 30, 2007, the court denied the OSC re Enforcement of Settlement but scheduled an OSC re dismissal for failure to prosecute the Nguyen matter and for Respondent’s failure to appear at the Ex Parte Hearing and at the OSC re Enforcement of Settlement ("OSC re Dismissal"). The OSC re Dismissal was scheduled for September 19, 2007. On or about August 31, 2007, opposing counsel served notice of the September 19, 2007 OSC re Dismissal on Respondent at his then current membership records address. Respondent received the notice.
11. On September 19, 2007, Respondent appeared at the OSC re Dismissal. On this date, the court continued the OSC re Dismissal to October 24, 2007, and ordered Respondent to make a showing of good cause on that date with sufficient details of substantial work performed to prosecute the Nguyen matter, or the case would be dismissed. On September 19, 2007, the court imposed sanctions of $500 against Respondent and Nguyen jointly and severally payable within 30 days to the Settling Defendants. Respondent was present in court and had notice of the court’s orders.
12. On October 24, 2007, Respondent failed to appear at continued OSC re Dismissal. On this date, the court dismissed the Nguyen matter with prejudice.
13. On October 24, 2007, Respondent filed a request for dismissal of the Nguyen matter without Nguyen’s knowledge or consent.
14. On October 29, 2007, opposing counsel served Respondent with a notice of ruling indicating that on October 24, 2007, the court dismissed the Nguyen matter with prejudice at Respondent’s then current membership records address. Respondent received the notice.
15. At no time did Respondent file a motion to set aside or vacate the dismissal of the Nguyen matter.
16. To date, Respondent has failed to pay any portion of the $500 in sanctions that were imposed on September 19, 2007.
17. At no time did Respondent inform Nguyen that the court imposed sanctions of $500 against her and Respondent.
18. At no time did Respondent inform Nguyen that the court had scheduled the OSC re Enforcement of Settlement, OSC re Dismissal and a continued OSC re Dismissal.
19. At no time did Respondent inform Nguyen that her case was dismissed.
CONCLUSIONS OF LAW:
20. By accepting the $18,000 settlement offer in contravention of his client’s instructions, falling to appear at the August 9, 2007 Ex Parte Hearing, falling to appear at the August 30, 2007 OSC re Enforcement of Settlement, falling to appear at the October 24, 2007 continued OSC re Dismissal, allowing the Nguyen matter to be dismissed, and falling to file a motion to set aside or vacate the dismissal, 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 filing a request for dismissal of the Nguyen matter without Nguyen’s knowledge or consent, Respondent committed an act involving moral turpitude, dishonesty or corruption, in willful violation of Business and Professions Code, section 6106.
22. By falling to pay any portion of the $500 in sanctions that were imposed on September 19, 2007, Respondent wilfully disobeyed or violated an order of the court requiring him to do or forbear an act connected with or in the course of Respondent’s profession which he ought in good faith to do or forbear, in willful violation of Business and Professions Code, section 6103.
23. By falling to inform Nguyen that the court imposed sanctions of $500 against her and Respondent, the court had scheduled the OSC re Enforcement of Settlement, OSC re Dismissal and a continued OSC re Dismissal, and by failing to inform Nguyen that her case was dismissed, Respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services, in willful violation of Business and Professions Code, section 6068(m).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Harm:
Respondent’s misconduct significantly harmed Nguyen. She paid Respondent $13,000 in fees and costs and her case was dismissed due to Respondent’s misconduct which includes failing to appear at the August 9, 2007 Ex Parte Hearing, failing to appear at the August 30, 2007 OSC re Enforcement of Settlement, failing to appear at the October 24, 2007 continued OSC re Dismissal, allowing the Nguyen matter to be dismissed, and falling to file a motion to set aside or vacate the dismissal. (Standard 1.2(b)(iv).)
Multiple/Pattern of Misconduct:
Respondent’s misconduct evidences multiple acts of wrongdoing. Respondent committed numerous separate acts of professional misconduct violating four disciplinary provisions of the State Bar Act and Rules of Professional Conduct. (Standard 1.2(b)(ii).)
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
No Prior Discipline:
Though Respondent’s misconduct is serious, Respondent has no prior record of discipline in 15 years of practice and is entitled to mitigation. (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49; In the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn.13.)
Candor/Cooperation:
Respondent cooperated with the State Bar in these proceedings to the extent he acknowledged his misconduct and entered into a stipulation of facts, conclusions of law and disposition without the necessity of having a trial on this matter. (In the Matter of Johnson (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 190.)
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipline" pursuant to a set of written principles to "better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to standards are to this source).) The primary purposes of disciplinary proceedings and of the sanctions imposed 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." (ln re Morse (1995) 11 Cal.4th 184, 205; std 1.3.)
Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible" in determining level of discipline. (In re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal.4th 205, 220 and In re Young (1989) 49 Cal.3d 257, 267, fn. 11.) Adherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (In re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
Respondent committed numerous separate acts of professional misconduct violating four disciplinary provisions of the State Bar Act and Rules of Professional Conduct. Standard 1.6 (a) provides that where a Respondent commits two or more acts of misconduct, and different sanctions are prescribed by the standards that apply to those acts, the sanction imposed shall be the more or most severe prescribed in the applicable standards.
In this matter, the most severe sanction applicable to Respondent’s misconduct is found in standard 2.3, which applies to Respondent’s violation of Business and Professions Code section 6106. Standard 2.3 provides that culpability of an act of moral turpitude, fraud, or intentional dishonesty toward a client or of concealment of a material fact shall result in actual suspension or disbarment depending upon the extent to which the client 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. The level of discipline agreed to herein falls within the range provided for in standard 2.3.
In analyzing standard 2.3 to determine the appropriate discipline in this matter, it is important to consider the magnitude of Respondent’s misconduct which was inextricably related to the practice of law. Nguyen suffered significant harm as a result of Respondent’s misconduct. Respondent failed to perform competently to such an extent that the case was dismissed by the court at an OSC at which Respondent failed to appear. Respondent compounded his misconduct by filing a request for dismissal without Nguyen’s knowledge and consent on the same day that the court dismissed the case. Respondent did not inform Nguyen that that the court dismissed her complaint or that he had filed a request for dismissal. Respondent did not inform Nguyen that the court sanctioned her and Respondent $500 for failing to appear at an OSC. To date, the sanctions have not been paid. Respondent did not provide any legal services of value after Nguyen paid him $13,000 in fees and costs.
In determining the appropriate level of discipline, the matter of Levin v. State Bar (1989) 47 Cal.3d 1140, is instructive. The Supreme Court imposed a three-year stayed suspension, with six months of actual suspension and three years of probation on an attorney who settled a client’s case without consent. Levin, however, involved more serious misconduct and two separate client matters. He settled a client’s case without her consent and simulated her signature on the release and the settlement check. He also misrepresented that he actually witnessed her sign the release. When she found out that the member settled her case, he told her that he would provide her with a copy of the check and an accounting. He failed to do so and she complained to the State Bar. After he was contacted by the State Bar, he paid her an additional $650 to resolve the matter. In another client matter, the member misrepresented to opposing counsel that he had authority to settle the case when he did not. Opposing counsel learned of the member’s misrepresentation and the matter did not settle. He also communicated with a represented party. In aggravation, he attempted to conceal his dishonesty, offered to file a perjured document with the court, and committed multiple acts of misconduct. In mitigation, he had no record of discipline in 18 years of practice and displayed cooperation by stipulating to relevant facts. (Levin v. State Bar (1989) 47 Cal.3d 1140.)
In the instant matter, Triminio dismissed his client’s case with her consent instead of settling it as Levin did. The end result, however, is the same in that their respective client’s cases were terminated without their consent. As discussed above, the Levin matter is more egregious than the instant matter. Levin’s aggravating circumstances are also more egregious. The mitigating circumstances are similar.
Pursuant to Standard 2.3, and considering the magnitude of Respondent’s misconduct and aggravating circumstances and mitigated by his 15 years of practice without prior discipline and cooperating with the State Bar by entering into this stipulation, a two-year stayed suspension, with 90 days of actual suspension and three years of probation is an appropriate level of discipline to protect the public, the courts and the integrity of the legal profession.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was November 30, 2012.
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY.
The parties waive any variance between the Notice of Disciplinary Charges filed in this matter, and the facts and/or conclusions of law obtained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 30, 2012, the prosecution costs in this matter are $6,944. 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.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School, and/or any other educational course(s) to be ordered as a condition of reproval or suspension. (Rules Proc. of State Bar, rule 3201.)
Case Number(s) 11-O-16057
In the Matter of: Adrian Henry Triminio
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: Hoa Thi Nguyen
Principal Amount: $13,000
Interest Accrues From: October 24, 2007
2. Payee: Leesa Nguyen and/or Phillip Ngo & Executive Corporation
Principal Amount: $500
Interest Accrues From: September 19, 2007
3. Payee:
Principal Amount:
Interest Accrues From:
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 six months prior to the end of the disciplinary probation period herein.
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 quarterly
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.
Case Number(s): 11-O-16057
In the Matter of: Adrian Henry Triminio
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: Adrian Henry Triminio
Date: 12/3/12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Agustin Hernandez
Date: 12/3/12
Case Number(s): 11-O-16057
In the Matter of: Adrian Henry Triminio
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: 12-11-2012
[Rule 62(b), Rules Proc.; 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 December 21, 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:
ADRIAN H. TRIMINIO
TRIMINIO LAW OFFICE
PO BOX 20322
FOUNTAIN VALLEY, CA 92728
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 December 21, 2012.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court