State Bar Court of California

Hearing Department

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

ACTUAL SUSPENSION

 

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

Filed: February 12, 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 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.

 

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. .

<<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.

<<not>> checked. (4) Harm:  Respondent's misconduct harmed significantly a client, the public or the administration of justice.

<<not>> checked. (5) Indifference:  Respondent demonstrated indifference toward rectification of or atonement for the consequences of his or her misconduct.

<<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:

 

For a further discussion of Additional Aggravating Circumstances, see page 8.

 

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.

 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.  For a further discussion of Good Character, see page 8.

<<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: 

 

For a further discussion of Additional Mitigating Circumstances, see page 8.

 

D. Discipline:

 checked. (1)          Stayed Suspension:

 checked. (a) Respondent must be suspended from the practice of law for a period of one (1) year.
<<not>> checked. i. and until Respondent shows proof satisfactory to the State Bar Court of rehabilitation and present fitness to practice and present learning and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney Sanctions for Professional Misconduct.
<<not>> checked. ii. and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following: .
 checked. (b) The above-referenced suspension is stayed.

 checked. (2) Probation:  Respondent must be placed on probation for a period of one (1) year, which will commence upon the effective date of the Supreme Court order in this matter.  (See rule 9.18, California Rules of Court.)

checked. (3) Actual Suspension:

 checked. (a) Respondent must be actually suspended from the practice of law in the State of California for a period of thirty (30) days.
<<not>> checked. i. and until Respondent shows proof satisfactory to the State Bar Court of rehabilitation and present fitness to practice and present learning and ability in the law pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct
<<not>> checked. ii. and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following:

 

E. Additional Conditions of Probation:

<<not>> checked. (1) If Respondent is actually suspended for two years or more, he/she must remain actually suspended until  he/she proves to the State Bar Court his/her rehabilitation, fitness to practice, and learning and ability in the general law, pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct.

 checked. (2)                During the probation period, 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 probation.

<<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 to the monitor 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 probation 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 probation conditions.

 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 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.

<<not>> checked. (10)        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:

 checked. (1)               Multistate Professional Responsibility Examination:  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 during the period of actual suspension or within one year, whichever period is longer.  Failure to pass the MPRE results in actual suspension without further hearing until passage. But see rule 9.10(b), California Rules of Court, and rule 5.162(A) & (E), Rules of Procedure.

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

<<not>> checked. (2)         Rule 9.20, California Rules of Court:  Respondent must comply with the requirements of rule 9.20, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.

<<not>> checked. (3)         Conditional Rule 9.20, California Rules of Court:  If Respondent remains actually suspended for 90 days or more, he/she must comply with the requirements of rule 9.20, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 120 and 130 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.

<<not>> checked. (4)         Credit for Interim Suspension [conviction referral cases only]:  Respondent will be credited for the period of his/her interim suspension toward the stipulated period of actual suspension. Date of commencement of interim suspension:

<<not>> checked. (5)         Other Conditions:

ATTACHMENT TO

 STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

 

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.)

 

SIGNATURE OF THE PARTIES

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

 

ACTUAL SUSPENSION ORDER

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."

 

CERTIFICATE OF SERVICE

 

[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