Case Number(s): 12-H-13870-RAH
In the Matter of: Abel Hernandez, Bar # 159902, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Meredith A. McKittrick, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
Bar # 234484,
Counsel for Respondent: In Pro Per Respondent
4614 Hawthorn Woods
San Antonio, TX 78249
Bar # 159902
Submitted to: Assigned 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 October 14, 1992.
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 equal amounts prior to February 1 or the following three 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.
IN THE MATTER OF: Abel Hernandez, State Bar No. 159902
STATE BAR COURT CASE NUMBER: 12-H-13870-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. 12-H-13870-RAH
1. On November 22, 2011, Respondent entered into a Stipulation Re Facts, Conclusions of Law and Disposition and Order Approving Private Reproval ("Stipulation") with the Office of the Chief Trial Counsel of the State Bar of California in case number 10-O-10687. In the Stipulation Respondent agreed to comply with certain conditions of reproval.
2. On November 30, 2011, the State Bar court filed an Order approving the Stipulation ("Reproval Order"). Respondent was served with and received a copy of the Reproval Order. The Reproval Order became effective on December 26, 2011.
3. Pursuant to the Reproval Order, Respondent was ordered to comply with the following conditions of reproval, among others:
a. Within thirty (30) days from the effective date of the discipline, to contact the Office of Probation and schedule a meeting with Respondent’s assigned probation deputy to discuss the terms and conditions of probation.
b. Submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10 of the condition period attached to the reproval stating under penalty of perjury whether Respondent has complied with the State Bar Act, the Rules of Professional Conduct, and all conditions of reproval during the preceding quarter.
4. Respondent failed, by January 25, 2012, to contact the Office of Probation and schedule a meeting with Respondent’s assigned probation deputy to discuss the terms and conditions of probation.
5. Respondent failed to file his quarterly report due April 10, 2012, with the Office of Probation.
6. Respondent failed to file his quarterly report due July 10, 2012, with the Office of Probation.
7. Respondent failed to file his quarterly report due October 10, 2012, with the Office of Probation.
CONCLUSIONS OF LAW:
8. By failing to contact the Office of Probation and schedule a meeting with his assigned probation deputy to discuss the terms and conditions of probation by January 25, 2012, and by failing to file his quarterly reports due April 10, 2012, July 10, 2012, and October 10, 2012, with the Office of Probation, Respondent failed to comply with conditions attached to his private reproval in willful violation of rule 1-110 of the Rules of Professional Conduct.
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline: On November 21,2011, Respondent entered into a stipulation in case number 10-O-10687. Effective December 26, 2011, Respondent received a private reproval with public disclosure with conditions for a term of one year. In March of 2010, Pastor Andres Vasquez ("Vasquez") asked his administrative assistant, Virginia Tellers ("Tellers"), to search the internet for an expert to help Vasquez start his new church, New Living Way. On March 15, 2010, Tellers contacted Respondent regarding Vasquez’s request. Respondent quoted Tellers a fee of $1,997.00 with an additional fee of $750.00 plus $35.00 for his services in regard to Vasquez’s request. On March 16, 2010, Vasquez contacted Respondent and was also quoted a fee of $1,997.00 for his services in regard to Vasquez’s request. On March 17, 2010, Vasquez sent Respondent a $1,997.00 check for his legal services. On March 23, 2010, Respondent negotiated the check from Vasquez. Thereafter, Respondent provided no legal services to Vasquez. Between April 1 and July 20, 2010, Vasquez and Tellers repeatedly telephoned and e-mailed Respondent, Respondent received these messages but did not reply. Respondent stipulated to one violation of rule 3-110(A) of the Rules of Professional Conduct (failure to perform with competence) and one violation of Business and Professions Code section 6068(m) (failure to communicate with his clients).
Indifference: Respondent has not, since the origination of this matter, contacted the Office of Probation to schedule a meeting with his assigned probation deputy to discuss the terms and conditions of his probation, nor has he filed the quarterly reports that were due April 10, 2012, July 10, 2012, and October 10, 2012. Respondent’s failure to rectify these failures in his compliance with the conditions attached to his private reproval evidence his indifference toward rectification of or atonement for the consequences of his misconduct under standard 1.2(b)(v). (In the Matter of Meyer (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 697, 702.)
Multiple/Pattern of Misconduct: Respondent’s misconduct consists of his failure to contact the Office of Probation to schedule a meeting with his assigned probation deputy to discuss the terms and conditions of his probation by January 25, 2012, and his failure to timely file the quarterly reports that were due April 10, 2012, July 10, 2012, and October 10, 2012. As such, Respondent has engaged in four acts of misconduct under standard 1.2(b)(ii).
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 Nancy (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 2.9 provides that a finding of culpability for a willful violation of rule 1-110 of Rules of Professional Conduct "shall result in suspension."
Standard 1.7(a) further provides, in instances where a member has one prior imposition of discipline, the degree of discipline to be imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior discipline was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust.
In Conroy v. State Bar (1990) 51 Cal. 3d 799, the California Supreme Court ordered a one year stayed suspension, one year probation, and a 60 day actual suspension as a result of Conroy’s violation of the reproval condition requiring him to take and pass the Professional Responsibility Exam ("PRE") within one year of the effective date of his reproval. The Supreme Court recognized the value of Conroy’s belated completion of the PRE requirement but found "this single extenuating factor substantially outweighed by numerous aggravating circumstances." (Id. at p. 805.) In aggravation, the Court recognized Conroy’s prior record of discipline, through his failure to participate in the proceedings his "failure ’to appreciate the seriousness of the charges in the instant proceeding or to comprehend the importance of participating in the disciplinary proceedings’", and through his implication that the current violation was a technical violation his "lack of understanding of the gravity of his earlier misdeeds and the import of the State Bar’s regulatory functions." (Id. at. p. 805-806.)
By failing to contact the Office of Probation in order to schedule the required initial meeting with his assigned probation deputy, and then failing to submit his quarterly reports due April 10, 2012, July 10, 2012, and October 10, 2012, Respondent failed to comply with the conditions of his reproval and thus willfully violated rule 1-110 of the Rules of Professional Conduct. As such, some measure of suspension is required under standard 2.9. In Conroy, for his failure to comply with a single condition of his reproval, with which he belatedly complied, and in light of the aggravating circumstances present, a 60 day actual suspension was imposed. Here, Respondent has totally abandoned his responsibilities under his reproval to date, a far more extensive violation that in Conroy. In addition, Respondent has not belatedly brought himself into compliance with the conditions of his reproval. Respondent has one prior imposition of discipline, and other factors in aggravation apply. Further, under standard 1 ;7(a) Respondent’s level of discipline in the current matter must increase from the private reproval previously imposed. Therefore, a two year stayed period of suspension, a two year period of disciplinary probation, and a 90 day actual suspension in appropriate in this matter.
The disclosure date referred to, on page 2, paragraph A(7), was November 13, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 13, 2012, the prosecution costs in this matter are $6,597.00. 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.
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): 12-H-13870-RAH
In the Matter of: Abel Hernandez
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.
Respondent: Abel Hernandez
Date: November 14, 2012
Deputy Trial Counsel: Meredith A. McKittrick
Date: November 4, 2012
Case Number(s): 12-H-13870-RAH
In the Matter of: Abel Hernandez
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 DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
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.)
Judge of the State Bar Court: Richard A. Honn
Date: December 21, 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 January 2, 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:
ABEL HERNANDEZ ESQ
4614 HAWTHORN WOODS
SAN ANTONIO, TX 78249
ABEL HERNANDEZ ESQ
326 LONE STAR BLVD.
SAN ANTONIO, TX 78204
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Meredith A. McKittrick, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 2, 2013.
Julieta E. Gonzales
State Bar Court