State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

REPROVAL

Case Number(s): 11-O-18027-RAP

In the Matter of: LOUISA MORITZ NETTO, Bar # 232509, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: William Todd, Bar #259194,

Counsel for Respondent: Jon H. Freis, Bar #204708,

Submitted to: Settlement Judge.

Filed: July 16, 2013.

  <<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 November 24, 2004.

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 9 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 added to membership fee for calendar year following effective date of discipline (public reproval).

<<not>> checked. Case ineligible for costs (private reproval).

<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: .  (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.

B.        Aggravating Circumstances [for definition, see Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts supporting aggravating circumstances are required.

<<not>> checked. (1) Prior record of discipline [see standard 1.2(f)].

<<not>> checked. (a) State Bar Court case # of prior case .

<<not>> checked. (b) Date prior discipline effective .

<<not>> checked. (c) Rules of Professional Conduct/ State Bar Act violations:

<<not>> checked. (d) Degree of prior discipline  

<<not>> checked. (e) If Respondent has two or more incidents of prior discipline, use space provided below or a separate attachment entitled “Prior 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.

checked. (4)    Harm:  Respondent's misconduct harmed significantly a client, the public or the administration of justice. Please see "Attachment to Stipulation," at 7.

checked. (5)    Indifference:  Respondent demonstrated indifference toward rectification of or atonement for the consequences of his or her misconduct. Please see "Attachment to Stipulation," at 7.

<<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. 

<<not>> 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. 

<<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.

<<not>> 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.

<<not>> 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.

<<not>> 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: Please see "Attachment to Stipulation," at 7.  

D. Discipline:

<<not>> checked. (1) Private reproval (check applicable conditions, if any, below):

<<not>> checked. (a) Approved by the Court prior to initiation of the State Bar Court proceedings (no public disclosure).

<<not>> checked. (b)Approved by the Court after initiation of the State Bar Court proceedings (public disclosure).

or

checked. (2)    Public reproval (Check applicable conditions, if any below)

E. Additional Conditions of Reproval:

checked. (1)    Respondent must comply with the conditions attached to the reproval for a period of one year.

checked. (2)    During the condition period attached to the reproval, 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 the condition period.

<<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 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 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 conditions attached to the reproval.

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 State Bar Ethics School, and passage of the test given at the end of that session.

<<not>> checked. No Ethics School recommended.  Reason: .

<<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.

checked. (10) 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 within one year of the effective date of the reproval.

<<not>> checked. No MPRE recommended.  Reason: .

<<not>> checked. (11) 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:

 

Attachment language (if any):.

ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

 

IN THE MATTER OF: LOUISA MORITZ NETTO, State Bar No. 232509

STATE BAR COURT CASE NUMBER: 11-O-18027-RAP

FACTS AND CONCLUSIONS OF LAW.

Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.

Case No. 11-O-18027-RAP (Complainant: Anthony Magnanimo)

FACTS:

1. On September 16, 2010, Anthony Magnanimo ("Magnanimo") consulted Brian Dozier ("Dozier") regarding a loan modification on a commercial property. Dozier is not an attorney, is not admitted to the practice of law in California and had not been specifically authorized by Respondent to enter into an agreement on Respondent’s behalf with Magnanimo. Nonetheless, Magnanimo and Dozier executed an agreement which stated that Magnanimo was hiring the Law Office of Louisa Moritz to complete a commercial loan modification. Magnanimo paid $15,000 in the form of three checks of $5,000 each, with one check payable to Respondent, one to Dozier and one to another attorney. Magnanimo understood the $15,000 payment to be a payment of legal fees. Dozier negotiated all three checks.

2. Though services were provided to Magnanimo by the other attorney, Respondent was not aware that Dozier had entered into any agreement with Magnanimo and Respondent did not specifically authorize the agreement. Further, Respondent was not asked to perform any services for Magnanimo, and performed no services for Magnanimo.

3. In February 2011, Dozier delivered $5,000 of Magnanimo’s fee to Respondent, and $5,000 of Magnanimo’s fee to the other attorney. Both payments were made by cashier’s check. Dozier kept the remaining $5,000 of Magnanimo’s $15,000 fee.

4. Respondent knew or should have known that funds Dozier received from Magnanimo were understood by Magnanimo to be legal fees.

5. On February 13, 2013, more than a year after Magnanimo complained to the State Bar, Respondent delivered a $5,000 refund to Magnanimo.

6. Pursuant to a stipulated disposition in a separate disciplinary proceeding, the other involved attorney admitted ethical violations in the Magnanimo matter and agreed to make restitution to Magnanimo in the amount of $5,000.

CONCLUSIONS OF LAW:

7. By sharing with non-lawyer Dozier the legal service fees Magnanimo paid to Dozier, Respondent shared legal fees with a person who is not a lawyer in willful violation of Rules of Professional Conduct rule 1-320(A).

ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.

Harm (Std. 1.2(b)(iv)): Respondent’s fee sharing with Dozier denied Magnanimo $5,000 of his funds for more than two years. Harm to a client is an aggravating circumstance. (See In the Matter of Casey (Review Dept. 2008) 5 Cal. State Bar Ct. Rptr. 117; Standard 1.2(b)(iv).)

Indifference (Std. 1.2(b)(v)): Respondent failed to return any of the fees paid by Magnanimo for over two years, which is demonstrative of indifference. Additionally, during the investigation of this matter Respondent initially denied any wrongdoing, which suggests an initial lack of insight into her own misconduct. Respondent’s indifference and lack of insight are aggravating circumstances. (See In the Matter of Casey (Review Dept. 2008) 5 Cal. State Bar Ct. Rptr. 117; Standard 1.2(b)(v).)

ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.

No Prior Discipline: Though Respondent has no prior discipline in the six years of practice that preceded the misconduct, the short duration of Respondent’s discipline-free practice limits the weight of this fact in mitigation. (See In the Matter of Aguiluz (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 32.)

Pre-Trial Stipulation: Respondent cooperated in the completion of this stipulation, and her cooperation extended to facts not easily proven. (Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079 [where mitigative credit was given for entering into a stipulation as to facts and culpability].)

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." (In 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.)

The sanction applicable to Respondent’s misconduct is found in standard 2.10, which applies to Respondent’s violation(s) of Rules of Professional Conduct rule 1-320(A). Standard 2.10 provides that culpability of a member of a willful violation of Rule of Professional Conduct rule 1-320(A) 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.

Here, though this Respondent lacks any prior discipline over the six years of practice that preceded this misconduct and has cooperated in preparing this stipulation, Respondent’s willingness to share fees with a non-attorney deprived Magnanimo of $5,000 of his funds for more than two years. Additionally, Respondent’s initial denial of wrongdoing demonstrates an initial lack of insight and indifference towards rectifying her misconduct which cannot be ignored, even as she has now agreed to enter into a pre-trial stipulation.

In this instance, public protection demands a public reproval, which is sufficient since this Respondent lacks any prior discipline, has refunded the fees she shared with the non-lawyer and has both admitted her misconduct and agreed to enter into this stipulation.

The stipulated level of discipline is appropriate under the Standards, and is consistent with a reported case involving misconduct of similar severity. In Connor v. State Bar (1990) 50 Cal.3d 1047, the attorney violated former Rules of Professional Conduct rule 5-101 by entering into a business transaction with a client without first advising the client to seek independent counsel. The attorney, who lacked a prior record of discipline, was publicly reproved for this violation.

COSTS OF DISCIPLINARY PROCEEDINGS.

Respondent acknowledges that the Office of the Chief Trial Counsel has informed her that as of April 5, 2013, the prosecution costs in this matter are $3,349. 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. (Rules Proc. of State Bar, rule 3201 .)

SIGNATURE OF THE PARTIES

Case Number(s): 11-O-18027-RAP

In the Matter of: LOUISA MORITZ NETTO

 

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: LOUISA MORITZ NETTO

Date: 7/16/13

 

Respondent’s Counsel: Jon H. Freis

Date: 7/16/13

 

Deputy Trial Counsel: William Todd

Date: 7/16/13

REPROVAL ORDER

Case Number(s): 11-O-18027-RAP

In the Matter of: LOUISA MORITZ NETTO

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.

<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.

<<not>> checked. All court dates in the Hearing Department 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.) 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: Donald F. Miles

Date: 7/16/13

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 Los Angeles, on July 16, 2013, 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:

 JON H. FREIS

120 EL CAMINO DR #204

BEVERLY HILLS, CA 90212

 

<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:

 

<<not>> checked. by overnight mail at , California, addressed as follows:

 

<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.

 

<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:

 

checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

WILLIAM TODD, Enforcement, Los Angeles

 

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on July 16, 2013.

 

Signed by:

Angela Carpenter

Case Administrator

State Bar Court