Case Number(s): 11-O-18814-RAH, 12-O-12217-RAH
In the Matter of: Alana Gershfeld, Bar # 196454, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kimberly G. Anderson, The State Bar of California
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1083
Bar # 150359,
Counsel for Respondent: Richard A. Moss, 255 South Marengo Avenue
Pasadena, CA 91101
(626) 796-7400
Bar # 42329,
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 September 1, 1998.
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 14 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: two billing cycles following the effective date of the Supreme Court order. (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.
Case Number(s): 11-O-18814 and 12-O-12217
In the Matter of: Alana Gershfeld
a. Restitution
<<not>> 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:
Principal Amount:
Interest Accrues From:
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
<<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
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.
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.
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.
IN THE MATTER OF: Alana Gershfeld, State Bar No. 196454
STATE BAR COURT CASE NUMBER: 11-O-18814-RAH and 12-O-12217-RAH
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-18814 (Complainant: Dominic McGinty)
FACTS:
1. On August 25, 2009, Dominic McGinty ("McGinty") hired Respondent to represent him in a lawsuit for personal injuries against his landlord as a result of a slip and fall, which occurred on March 12, 2009.
2. On March 11, 2011, Respondent filed a lawsuit on behalf of McGinty against his landlord in the case entitled Dominic McGinty v. James Bechler, Los Angeles Superior Court Case No. NC055788.
3. The case was scheduled for a Case Management Conference ("CMC") on August 8, 2011. Respondent had notice of the CMC date.
4. On August 8,2011, Respondent failed to appear at the CMC. The court set the matter for an Order to Show Cause hearing ("OSC") regarding dismissal for failure to prosecute the case on September 1, 2011 and ordered counsel for the defendant to given notice of its ruling.
5. On August 9, 2011, counsel for the defendant served Respondent with notice of the ruling at the August 8, 2011 CMC and notice that the case was set for an OSC regarding dismissal for failure to prosecute the case on September 1 ,2011. Respondent received notice of the September 1,2011 hearing.
6. On September 1, 2011, Respondent failed to appear at the OSC. The court continued the OSC until September 27, 2011 and the clerk of the court served Respondent with notice of the September 27, 2011 hearing. Respondent received notice of the September 27, 2011 hearing.
7. On September 27, 2011, Respondent failed to appear at the OSC hearing. The court dismissed the case without prejudice pursuant to Code of Civil Procedure section 583.410(a). The court ordered counsel for defendant to give notice of its ruling.
8. On or about September 28, 2011, counsel ~br defendant served Respondent with notice of the court’s September 27, 2011 ruling dismissing the case. Respondent received notice of the court’s dismissal order.
9. Between August 2009 and October 2011, McGinty attempted to contact Respondent by telephone on approximately twelve occasions to request status updates on his case. Respondent received the messages, but she did not return McGinty’s calls.
10. On March 23, 2012, Respondent filed a motion to set aside the dismissal order pursuant to Code of Civil Procedure, section 473 and a declaration acknowledging the dismissal was her fault, which was granted by the court. On May 3, 2012, the court set aside the dismissal order. The court set the matter for a CMC on June 1, 2012. Respondent had notice of the June 1, 2012 CMC date. 11. On June 1, 2012, the Respondent failed to appear for the CMC and the case was dismissed a second time with prejudice.
CONCLUSIONS OF LAW:
12. By failing to attend the August 8,2011, September 1,2011, September 27, 2011 and June 1, 2012 hearings, and by failing to prosecute the case, Respondent repeatedly failed to perform legal services with competence in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
13. By failing to respond to McGinty’s telephone calls between August 2009 and in or about October 2011, Respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code, section 6068(m).
Case No. 12-O-12217 (Complainant: Greg Schwartz)
FACTS:
14. On July 14, 2011., Greg Schwartz ("Scwhartz") hired Respondent to represent him with respect to an uninsured motorist claim against his insurance company due to injuries sustained in a July 13, 2011 accident.
15. On August 3,2011, Respondent received and deposited a $15,000 settlement draft from the insurance company into her client trust account for the settlement of Schwartz’s claim. Pursuant to her agreement with Schwartz, Respondent issued a check from her client trust account to herself in the amount of $5,000 for her attorneys’ fees and she issued a check to Schwartz for $5,000. Respondent retained $5,000 to pay Schwartz’s medical bills.
16. Between August 3, 2011 and February 28, 2012, Respondent did not take any action on behalf of Schwartz to pay his medical bills out of the remaining $5,000 and she did not communicate with Schwartz about the payment of his medical bills.
17. On February 22, 2012, Schwartz filed a State Bar complaint against Respondent.
18. Respondent did not take any action on behalf of Schwartz to pay his medical bills out of the remaining $5,000 and she did not communicate with Schwartz about the payment of his medical bills until May 29, 2012, after having been made aware of the State Bar complaint Schwartz had filed against her.
19. Between August 3, 2011 and May 29, 2012, Respondent did not take any action to resolve the medical bills.
20. On May 29, 2012, Respondent issued checks to pay three of Schwartz’s medical providers a total of $3,575 and issued a check to Schwartz for the remaining $1,425 balance of his funds.
CONCLUSIONS OF LAW:
21. By failing to resolve Schwartz’s medical bills with his medical providers at any time between August 3, 2011 and May 29, 2012, Respondent repeatedly failed to perform legal, services with competence in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
22. By failing to pay Schwartz’s medical providers, and by failing to pay Schwartz the balance of the funds she was holding at any time between August 3, 2011 and May 29, 2012, Respondent failed to promptly pay our entrusted funds in willful violation of rule 4-100(B)(4) of the Rules of Professional Conduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was July 13, 2012.
AGGRAVATION.
Harm: Respondent’s conduct caused harm to McGinty as he lost his cause of action.
Multiple Acts of Misconduct: Respondent engaged in multiple acts of misconduct.
MITIGATION.
Additional Mitigating Circumstance:
Respondent was admitted to practice law in California on September I, 1998 and she has no prior record of discipline.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.6 of the Standards for Attorney Sanctions for Professional Misconduct ("Standard" or "Standards) provides that where culpability is found with respect to more than one violation, the discipline imposed shall be the more or most severe of the different applicable sanctions.
Standard 2.4(b) applies to cases where an attorney intentionally, recklessly or repeatedly fails to perform competent legal services for a client or clients not amounting to a pattern of misconduct. It states:
Culpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.6 applies to a failure to communicate with a client. It provides for a range of discipline from suspension to disbarment.
Standard 2.2(b) applies to Respondent’s role 4-10003)(4) violation. Standard 2.2(b) states:
Culpability of a member of commingling entrusted funds or property with personal property or the commission of another violation of rule 4-100 of the Rules of Professional Conduct, none of which offenses result in the willful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances.
Standard 2.2(b) is the most severe sanction and deviation from the applicable discipline standards in this case is not warranted. (ln re Silverton (2005) 36 Cal.4th 81, 89-94.)
DISCUSSION.
In determining the appropriate level of discipline, the Standards are entitled to great weight. (ln re Silverton (2005) 36 Cal.4th 81, 89-94 and In re Brown (1995) 12 Cal.4th 205,220.) But the Standards are not applied in a talismanic fashion, and the Court tempers its analysis of the proper level of discipline by considerations peculiar to the offense and the offender. (ln the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 994.) In the instant case, the discipline is within the applicable range based upon the Standards and case law and deviation is not appropriate.
Respondent’s record of no prior discipline for the first eleven years of her practice is entitled to significant weight as a mitigating factor. (See, In the Matter of Connor (Review Dept. 2008) 5 Cal. State Bar Ct. Rptr. 93, 106, recognizing that both the State Bar Court and the Supreme Court have considered the lack of a prior record of discipline as mitigation even where the conduct is found to be serious. See also, Edwards v. State Bar (1990) 52 Cal.3d 28, 31-32, assigning mitigation credit for almost twelve years of discipline-free practice despite an intentional misappropriation and commingling.)
However, in aggravation, Respondent’s actions did involve harm to one client and did involve multiple acts of misconduct. Respondent’s misconduct in two client matters does not amount to a pattern, but does involve multiple acts of misconduct.
In Matter of Aguiluz (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 32, 45-46, the Review Department reviewed the discipline for an attorney with no prior record who had been found culpable of abandoning a single client and observed that in those matters the discipline ranged from no actual suspension to 90 days actual suspension. See also, Van Sloten v. State Bar (1983) 48 Cal.3d 921; Wren v. State Bar (1983) 34 Cal.3d 81; Harris v. State Bar (1990) 51 Cal.3d 1082; Layton v. State Bar (1990) 50 Cal.3d 889.
In Matthew v. State Bar (1989) 49 Cal.3d 784,791, the Court concluded that the respondent’s abandonment of three clients in three different matters was not habitual and did not amount to a pattern, but was also not a single isolated incident. The Court concluded respondent’s misconduct warranted a sixty day actual suspension. The respondent in Matthew had not been practicing law for a lengthy period of time, whereas the Respondent in the instant case had been practicing law for approximately eleven years without any prior discipline in California at the time of the misconduct. The Respondent requires more discipline than the attorney in Matthew because of the trust account violation.
Taking into account the mitigating factor and the two aggravating factors, coupled with misconduct in two client matters that did not amount to a pattern of misconduct, but did involve multiple acts of misconduct and a trust account violation, a ninety-day actual suspension, together with three years’ probation and one year stayed suspension is necessary and appropriate to satisfy Standard 1.3.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of July 13, 2012, the prosecution costs in this matter are approximately $3,779.00. 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-18814 and 12-O-12217
In the Matter of: Alana Gershfeld
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: Alana Gershfeld
Date: July 23, 2012
Respondent’s Counsel: Richard A. Moss
Date: July 23, 2012
Deputy Trial Counsel: Kimberly G. Anderson
Date: July 23, 2012
Case Number(s): 11-O-18814 and 12-O-12217
In the Matter of: Alana Gershfeld
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.
1. On page 11 of the stipulation, under the subdivision titled "Additional Mitigating Circumstance," the following text is INSERTED at the end:
Even though respondent’s misconduct must be considered serious, her 11 years of misconduct-free practice is a significant mitigating circumstance. (Std. 1.2(e)(i); In the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn. 13 [noting that the Supreme Court has repeatedly applied standard 1.2(e)(i) in cases involving serious misconduct and citing Rodgers v. State Bar (1989) 48 Cal.3d 300, 317; Cooper v. State Bar (1987) 43 Cal.3d 1016, 1029].)
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: August 6, 2012
[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 August 6, 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:
RICHARD ALAN MOSS ESQ
255 S MARENGO AVE
PASADENA, CA 91101-2719
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Kimberly G. Anderson, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 6, 2012.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court