Case Number(s): 11-O-17381
In the Matter of: Charles W. Brower, Bar # 242460, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eli D. Morgenstern
The State Bar of California
Office of the Chief Trial Counsel
1149 South Hill Street
Los Angeles, CA 90015
(21’3) 765-1334
Bar# 190560
Counsel for Respondent: In Pro Per Respondent
Charles W. Brower
4280 Latham St Ste E
Riverside, CA 92501
Bar # 242460
Submitted to: Assigned Judge, State Bar Court Clerk’s Office Los Angeles.
Filed: April 04, 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 1, 2006.
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 10 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 (public reproval).
<<not>> checked. Case ineligible for costs (private reproval).
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: Three (3) billing cycles following the effective date of the discipline here in. See page 9 for further discussion regarding costs. (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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
(Effective January 1, 2011)
Reproval
IN THE MATTER OF: 11-O-17381, State Bar No. 242460
STATE BAR COURT CASE NUMBER: 11-O-17381
AIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND
STIPULATED FACTS AND CULPABILITY.
The parties waive any variance between the Notice of Disciplinary Charges filed on January 24,
2012, and the facts and/or conclusions of law contained in this stipulation and waive the issuance of an Amended Notice of Disciplinary Charges
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- 17381 (Complainant: John Dupnock)
Facts:
1. In or about 1989, Anna Demuth ("Demuth") prepared a will and trust. The will named John
Dupnock ("Dupnock"), Demuth’s brother, as the administrator and the Demuth trust as the beneficiary. Dupnock and Stella McKishin ("McKishin"), Demuth’s sister, were two of the beneficiaries of the trust.
2. On June 5, 2009, Demuth prepared a hand-written will. This will named Koke Ahankoob,
Demuth’s friend and caretaker, as the administrator.
3. On May 26, 2010, Demuth died at the age of 96. Prior to her death, Demuth lived in
Califomia for approximately 49 years.
4. On July 19, 2010, Dupnock and McKishin, New Jersey residents, following an intemet
search, employed Respondent to contest Demuth’s hand-written will on the grounds of undue influence and to investigate whether Demuth was a victim of potential elder abuse.
5. On July 20, 2010, Dupnock paid Respondent $2,500 as an advanced fee for Respondent’s
legal services.
6. On July 20, 2010, Cynthia Chapman ("Chapman"), a New Jersey resident and McKishen’s
daughter, on behalf of Dupnock and McKishen, mailed Respondent a letter and enclosed with it copies of Demuth’s original will and trust and the hand-written will. Subsequently, Dupnock provided Respondent with copies of Demuth’s birth and death certificates.
7. On August 19, 2010, Respondent sent Chapman an e-mail stating, among other things, that
the court refused to permit him to lodge the copy of the original will. Consequently, Respondent stated that he intended to commence a traditional probate proceeding.
8. On September 21, 2010, Respondent sent a letter to Dupnock via facsimile requesting that
Dupnock provide updated addresses for the beneficiaries listed in Demuth’s trust, their respective ages, and whether they are deceased. On September 22, 2010, Dupnock sent Respondent a facsimile with the information regarding the beneficiaries that Respondent had requested in his September 21, 2010 letter.
9. After September 21, 2010, Respondent did not communicate with Dupnock, McKishin, or
Chapman.
10. On October 7, 2010, Dupnack and McKishin sent Respondent a letter via facsimile inquiring about the status of Demuth’s probate proceeding. Respondent received the facsimile. Respondent did not respond to it.
11. On November 11, 2010, Chapman, on behalf of Dupnock and McKishin, sent Respondent a
letter via facsimile and e-mail expressing her frustration with Respondent’s services and lack of
communication. Chapman asked that Respondent contact Dupnock immediately. Respondent received the facsimile and e-mail. Respondent did not respond to it.
12. At no time did Respondent commence a probate proceeding with respect to Demuth’s estate.
13. By ceasing all communication with Dupnock, McKishin, and Chapman, New Jersey
res:i~dents, after on or about September 21, 2010, Respondent constructively terminated his employment with Dupnock and McKishin.
14. Dupnock and McKishin did not employ new counsel after Respondent ceased
communicating with them in September 2010.
Conclusions of Law:
By the foregoing conduct, Respondent failed, upon termination of employment, to take
reasonable steps to avoid reasonably foreseeable prejudice to his clients, in wilful violation of rule 3700(A)(2) of the Rules of Professional Conduct.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the
interest of justice:
Case No. Count Alleged Violation
11-O-17381 TWO Rules of Professional Conduct, rule 3-700(D)(2)
THREE Business and Professions Code § 6068(i)
FINANCIAL CONDITION.
1. Restitution
Within thirty (30) days of the effective date of the discipline herein, Respondent must pay
restitution to June Dupnock, the widow of John Dupnock, in the sum of $2,500 and provide satisfactory proof of payment to the Office of Probation. Mr. Dupnock passed away on March 7, 2012. If the Client Security Fund ("CSF") has reimbursed Ms. Dupnock for all or any portion of the $2,500, Respondent must pay CSF in the amount paid, plus applicable interest and costs.
MITIGATING CIRCUMSTANCES.
Emotional Difficulties
During the time period that Respondent committed the misconduct herein, he was experiencing
depression which was caused, in significant part, by untreated issues surrounding Respondent’s history of Attention-deficit hyperactivity disorder ("ADHD").
In May 2011, Respondent began treatment with a psychiatrist specializing in ADHD and its
emotional ramifications. Respondent’s counseling for both ADHD and depression has helped him understand the causes of his depression and to cope with the symptoms. Respondent’s emotional difficulties and his rehabilitation are mitigating circumstances. (Std. 1.2(e)(iv).)
2. Candor and Cooperation
Respondent is entitled to significant mitigation for entering into this stipulation. (Std. 1.2(e)(v).)
OTHER FACTORS IN CONSIDERATION.
Respondent has advised the State Bar that he intends to seek full-time employment in the
restaurant industry, and does not plan to return to full-time legal work.
AUTHORITIES SUPPORTING DISCIPLINE.
1. Standards Standard 1.3 of the Standards For Attorney Sanctions For Professional Misconduct ("Standards") provides that, "[T]he primary purposes of disciplinary proceedings.., 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." The appropriate level of discipline for the culpability of a member who violates rule 3-700(A)(2) of the Rules of Professional Conduct is not specified in the Standards. Under Standard 2.10, the appropriate level of discipline for a violation of a rule not specified in the Standards is a reproval or suspension, according to the gravity of the offense or the harm, if any, to the victim, with due regard for the purposes of imposing discipline set forth in Standard 1.3. In consideration of the totality of the facts and circumstances surrounding Respondent’s misconduct, the parties respectfully submit that Respondent’s misconduct warrants a reproval.
2. Case Law
In In the Matter of Hanson (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 703, the Review
Department ordered an attorney public reproved, who in a single client matter, failed to refund promptly an unearned legal fee and failed to take reasonable steps to avoid prejudice to a client prior to withdrawal from representation.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7) was March 13, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him that as of March 13, 2012, the prosecution costs in this matter are approximately $3,269. The costs are to be paid in equal amounts prior to February 1 for the following three billing cycles following the effective date of the discipline herein.
If Respondent fails to pay any installment within the time provided herein or as may be modified by the State Bar Court pursuant to section 6086.10, subdivision (c), the remaining balance of the costs is due and payable immediately and enforceable both as provided in Business and Professions Code section 6140.7 and as a money judgment unless relief has been granted under the Rules of Procedure of the State Bar of California. (Rules Proc. of State Bar, rule 286.) 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.
Case Number(s): 11-O-17381
In the Matter of: Charles W. Brower
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: Charles W. Brower
Date: 3/21/12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Eli D. Morgenstern
Date: 3/28/12
Case Number(s): 11-O-17381
In the Matter of: Charles W. Brower
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 REPROVAL IMPOSED.
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.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 4/2/12
[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 April 4, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSION 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:
CHARLES W. BROWER ESQ
BANKRUPTCY PROFESSIONALS
4280 LATHAM ST STE E
RIVERSIDE, CA 92501
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Eli D. Morgenstern, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on April 4, 2012.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court