Case Number(s): 11-O-18578-RAH
In the Matter of: Evan A. Nielsen, Bar # 239691, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kim Kasreliovich, Deputy Trial Counsel
t t49 S. Hill Street
Los Angeles, CA 90015
(213) 765-1378
Bar # 261766
Counsel for Respondent: Edward Lear, Century Law Group LLP
5200 W Century Blvd #345
Los Angeles, CA 90045
(310) 624-6900
Bar # 132699
Submitted to: Settlement 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 1, 2005.
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: Costs to be paid in full one billing cycle following the effective date of the Supreme Court Order in this case. (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.
For a further discussion of Additional Aggravating Circumstances, see page 8.
For a further discussion of Additional Mitigating Circumstances, see page 8.
IN THE MATTER OF: EVAN A. NIELSEN
CASE NUMBER(S): 11-O-18578 -RAH
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-18578 (Complainant: The Arizona Supreme Court)
FACTS:
1. Arizona Supreme Court rule 31 (b) states, "Except as hereinafter provided in section (d), no person shall practice law in this state or represent in any way that he or she may practice law in this state unless the person is an active member of the state bar." Section (d) lists several enumerated exceptions.
2. Respondent is not presently, and has never been, licensed to practice law in Arizona and Respondent does not fall within an exception to the licensing requirement.
3. At all times relevant herein, Respondent was located and working in Arizona and California.
4. Respondent’s firm, E. A. Nielsen & Associate, PC, employed an attorney licensed to practice law in Arizona.
5. On June 6, 2011, Respondent accepted representation of Linda Kruszka ("Kruszka") in a civil matter regarding possession of her horse trailer, which was located in Arizona, held by Arizona resident Jerry Kempf ("Kempf’).
6, On June 6, 2011, Respondent spoke via telephone with Kruszka and signed the fee agreement "Evan Nielsen, DBA, Esq." for the firm Nielsen & Associate, PC.
7. On June 6, 2011, Respondent charged and collected $750 in order to begin work on Kruszka’s case.
8. On June 7, 2011, Respondent prepared a Power of Attorney for Specific Power of Attorney for Identified Transaction ("Power of Attorney") for Kruszka to sign. On June 7, 2011, Kruszka signed and notarized the Power of Attorney.
9. On June 8, 2011, Respondent prepared a Waiver and Release for Kempf to sign upon return of the horse trailer.
10. From June 8, 2011 through June 14, 2011, Respondent contacted Kempf on two occasions to negotiate terms and conditions to release the horse trailer.
11. On or about June 8, 2011, Respondent sent an email to Kruszka relaying his conversation with Kempf and providing Kruszka with legal options and counsel.
12. On December 1, 2012 Respondent refunded $280 to Kruszka, which was the portion of the $750 actually earned by Respondent and represented 2.33 hours of time billed at the para-professional rate of $120 per hour. The remainder of the fee was earned by the Arizona licensed attorney.
CONCLUSIONS OF LAW:
13. By accepting representation of Kruszka as a client, collecting a fee for representation, preparing and executing the Power of Attorney and Waiver and Release and negotiating with Kempf when he was not entitled to practice law in Arizona, Respondent practiced law in a jurisdiction where practicing is in violation of the regulations of the profession in that jurisdiction in violation of the Rules of Professional Conduct, rule 1-300(B).
14. By accepting representation of Kruszka and charging and collecting fees from Kruszka, when he was not entitled to practice law in Arizona, Respondent entered into an agreement for, charged, or collected an illegal fee in violation of the Rules of Professional Conduct, rule 4-200(A).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Additional Aggravating Circumstances: Respondent received two prior warnings regarding similar conduct from Arizona. First, in February 2010 the Arizona State Bar conducted an investigation into allegations that Respondent was engaged in the unauthorized practice of law on a matter unrelated to the instant case. This matter was resolved with a warning letter from the Arizona State Bar to Respondent in May 2010.
Second, in June 2010, the Arizona State Bar again investigated Respondent regarding allegations of the unauthorized practice of law on a loan modification matter. This was resolved with an Order of Informal Reprimand.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Good Character: Respondent’s character has been attested to by an extensive range of individuals including three attorneys, four small business owners, and the former mayor of Queens Creek, Arizona. All 16 of Respondent’s references are aware of his misconduct in this matter and each spoke highly of his strong moral character and his ability as a legal advocate.
Civic service and charitable work can also be evidence of good character. (See In the Matter of Respondent K (Review Dept. 1993) 2 Cal. State Bar Ct Rptr. 335, 359; Porter v. State Bar (1990) 52 Cal.3d 518, 529). Respondent has regularly participated in worthwhile causes. Respondent has devoted substantial time to his faith community, The Church of Jesus Christ of Latter-Day Saints, over the last 30 years. This service has included volunteer teaching Sunday school and missionary work in the Philippines. Respondent has also been involved with the Boy Scouts of America since 1976 to the present.
Additional Mitigating Circumstances: Respondent has entered into a stipulation before a Notice of Disciplinary Charges has been filed thereby saving the time and resources of the State Bar Court, and is receiving slight mitigation for doing so. (In the matter of Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr 151,156; In the Matter of Johnson (Review Dept. 2000) 4 Cal, State Bar Ct. Rptr. 179, 190; see also Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079.)
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 m 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.)
Standard 2.10 provides that a member’s culpability of violation of any provision of the Business and Professions Code not specified in these standards or of a willful 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 harm to the victim with due regard to the purposes of imposing discipline. Rules of Professional Conduct 1-300(B) and 4-200(B) are not specified in the Standards and therefore fall within the province of Standard 2.10, In the present case, Respondent violated Rules of Professional Conduct 1-300(B) by practicing law without a license in Arizona and rule 4-200(A) for collecting an illegal fee for the work he performed without a license.
Engaging in the unauthorized practice of law is a grave breach of the duties of an attorney and therefore actual suspension is warranted. (See In the Matter of Wells (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 896 [Respondent engaged in the unauthorized practice of law in another jurisdiction in two cases and over several years, charged an illegal and unconscionable fee and engaged in moral turpitude for misrepresenting her entitlement to practice law. There was significant mitigation and aggravation present and Respondent received six months actual suspension and until restitution is paid in full].) In the present case, Respondent’s activities are limited to a one week time period and the collection of a single illegal fee. When coupled with Respondent’s mitigation, thirty (30) days actual suspension satisfies the purposes of imposing discipline.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was January 2, 2013.
COSTS
The Office of the Chief Trial Counsel estimates that, as of December 6, 2012, the costs in this matter are approximately $2,865. Respondent 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 the six hours of MCLE credit referred to on page 5, paragraph 8, of this stipulation. (Rules Proc. of State Bar, role 3201.)
Case Number(s): 11-O-18578-RAH
In the Matter of: Evan A. Nielsen
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: Evan A. Nielsen
Date: 1/8/13
Respondent’s Counsel: Edward O. Lear
Date: 1/14/13
Deputy Trial Counsel: Kim Kasreliovich
Date: 1/16/13
Case Number(s): 11-O-18578-RAH
In the Matter of: Evan A. Nielsen
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.
<<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. Honn
Date: 2/11/13
MODIFICATIONS TO STIPULATION
1) Add, at page 8, "Additional Facts re Mitigating Circumstances": Respondent has no prior discipline in California.; and
2) Delete costs provision at page 2, item A. (8) and insert instead:
"It is recommended that costs be awarded to the State Bar in accordance with Business and Professions Code section 6086.10 and that costs be enforceable both as provided in Business and Professions Code section 6140.7 and as a money judgment. It is further recommended that costs be paid with respondent’s membership fees for the year 2014. If respondent fails to pay costs as described above, or as may be modified by the State Bar Court, costs are due and payable immediately."
[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 February 12, 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:
EDWARD 0 LEAR ESQ
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:
Kimberly G. Kasreliovich, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California on February 12, 2013.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court