State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 12-N-10129
In the Matter of: Mark L. Webb, Bar # 67959, A Member of the
State Bar of California, (Respondent).
Counsel For The State Bar: Donald R. Steedman, 180 Howard
Street, 7th Floor, San Francisco, CA 94105, Bar # 104927
Counsel for Respondent: Philip S. Ward, Hassard Bonnington
LLP, Two Embarcadero Center, Suite 1800, San Francisco, CA 94111, Bar # 51768
Submitted to: Settlement Judge – State Bar Court Clerk’s
Office San Francisco .
Filed: April 4, 2012 .
<<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 18, 1975.
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. 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.
<<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.
B.
Aggravating Circumstances [for definition, see
Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)].
Facts supporting aggravating circumstances are required.
checked. (1) Prior record of discipline [see standard 1.2(f)]
checked.
(a)
State Bar Court case # of prior case 10-O-6542.
checked.
(b)
Date prior discipline effective November 18, 2011.
checked.
(c)
Rules of Professional Conduct/ State Bar Act violations: Bus. & Prof. Code
sections 6068(b), 6068(c), 6068(g) and 6106.
checked.
(d)
Degree of prior discipline Four years suspension, stayed, on conditions
including one year of actual suspension.
checked.
(e)
If Respondent has two or more incidents of prior discipline, use space provided
below.
Case number 96-0-860. Private reproval
effective October 11, 2000 for violations of Rules of Professional Conduct
4-100(A), 4-100(B)(I) and 4-I00(B)(4).
Case number 06-0-13454. One year stayed
suspension, no actual suspension, effective October 16, 2008, for violations of
Business and Professions Code section 6068(a) and Rule of Professional Conduct
3-110(A).
<<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:
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.
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. Respondent has fully cooperated in
this matter and admitted his faults.
<<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. As an expression of remorse, respondent has agreed to pay
restitution in advance of the date required by his prior disciplinary matter.
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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:
Respondent
has agreed to complete restitution as ordered in the prior disciplinary
proceeding and has agreed to pay such restitution earlier than required by his
prior disciplinary order. That restitution has been completed.
D.
Discipline:
<<not>> checked. (1) Stayed Suspension:
<<not>>
checked. (a) Respondent must be suspended from the practice of law for a period
of .
<<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: .
<<not>>
checked. (b) The above-referenced suspension is stayed.
<<not>> checked. (2) Probation: Respondent must be
placed on probation for a period of , 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 nine months.
<<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.
<<not>>
checked. (2) During the probation period, Respondent must comply
with the provisions of the State Bar Act and Rules of Professional Conduct.
<<not>>
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.
<<not>>
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.
<<not>>
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.
<<not>>
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.
<<not>>
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.
No Ethics School recommended. Reason: see below.
<<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:
<<not>> 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: see
below.
<<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: Note:
Respondent is already serving a five-year probation in case number 100-06542,
with all appropriate conditions of probation. Therefore, the parties omitted
the usual probation conditions from this stipulation (see In the Matter of
Friedman (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 527 (imposing
additional suspension without additional probation conditions).
Attachment language (if any):.
DISCLOSURE
OF PENDING INVESTIGATIONS
The
disclosure mentioned in paragraph A.7 of this stipulation was made by letter
dated February 14, 2012.
STATEMENT
OF FACTS AND CONCLUSIONS OF LAW
1.
Respondent violated Business and Professions Code section 6103 by wilfully
disobeying and violating an order of the court requiring .respondent to do or
forbear an act connected with or in the course of respondent’s profession which
respondent ought in good faith to do or forbear, specifically, an order
requiring respondent to comply with Rule 9.20 of the California Rules of Court,
as follows:
2.
Respondent also violated rule 9.20(c), California Rules of Court, as follows:
3. On or
about October 19, 2011, the California Supreme Court filed a disciplinary order
in State Bar Court 10-O-6542 (Supreme Court Case Number S195349). A true and
correct copy of the order is attached hereto as Exhibit "1," and is
incorporated by this reference.
4. The
disciplinary order provided in relevant part as follows: "Mark Lopert Webb
must comply with California Rules of Court, rule 9.20, 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 this order. Failure to do so
may result in disbarment or suspension."
5. The
order became effective thirty days after it was filed (California Rules of
Court, rule 9.18(a)), i.e., on or about November 18, 2011, and at all times
subsequent has remained in full force and effect.
6. Notice
of the rule 9.20 order was properly served upon respondent in the manner
prescribed by California Rule of Court 9.18(b) at the address respondent
maintained with the State Bar in accordance with Business and Professions Code
section 6002.1, subdivision (a). Respondent indicates that he did not receive
timely notice of the order because he had moved away from his mailing address
without informing the State Bar’s Office of Membership Records.
7. The
deadline for compliance with Rule 9.20(c) expired on or before December 28,
2011.
8.
Respondent failed to timely submit the compliance declaration required by rule
9.20(c).
9. Upon receiving
notice that the State Bar intended to file these disciplinary charges, and no
later than January 30, 2012, respondent retained counsel and filed with the
State Bar his rule 9.20 compliance declaration and his first due quarterly
probation report and contacted the Office of Probation. In his declaration,
respondent reported that he had no clients at the time of his suspension order
was filed, had no active matters, possessed no client files and retained no
unearned fees.
AUTHORITY SUPPORTING
DISCIPLINE
Disbarment
has been imposed for some violations of rule 9.20 (Bercovich v. State Bar
(1990) 50 Cal.3d 115, 131). However, lesser discipline is sometimes imposed
(see In the Matter of Friedman, supra, and cases there cited). The State Bar
has agreed to this lower level of discipline in light of respondent’s
willingness to comply with his disciplinary sanction, agree to this early
resolution of charges, and his early payment of the restitution owed in the
prior disciplinary case.
(State Bar Court No. 10-0-06542)
S195349
IN THE SUPREME COURT OF CALIFORNIA
En Banc
In re MARK LOPERT WEBB on Discipline
The court
orders that Mark Lopert Webb, State Bar Number 67959, is suspended from the
practice of law in California for four years, execution of that period of
suspension is stayed, and he is placed on probation for five years subject to
the following conditions:
1. Mark
Lopert Webb is suspended from the practice of law for a minimum of the first
year of probation, and he will remain suspended until the following
requirements are satisfied:
i. He
makes restitution to Julie A. Follansbee in the amount of $24,964.66 plus 10
percent interest per year from June 15, 2011 (or reimburses the Client Security
Fund, to the extent of any payment
from the
fund to Julie A. Follansbee, in accordance with Business and Professions Code
section 6140.5) and furnishes satisfactory proof to the State Bar’s Office of
Probation in Los Angeles; and
ii. If he
remains suspended for two years or more as a result of not satisfying the
preceding condition, he must also provide proof to the State Bar Court of his
rehabilitation, fitness to practice and learning and ability in the general law
before his suspension will be terminated. (Rules Proc. of State Bar, tit. IV,
Stds. for Atty. Sanctions for Prof. Misconduct, std. 1.4(c)(ii).)
2. Mark
Lopert Webb must also comply with the other conditions of probation recommended
by the Hearing Department of the State Bar Court in its Order Approving
Stipulation filed on June 9, 2011.
3. At the
expiration of the period of probation, if Mark Lopert Webb has complied with
all conditions of probation, the four-year period of stayed ¯ suspension will
be satisfied and ion will be terminated.
Mark Lopert
Webb must also take and pass the Multistate Professional Responsibility
Examination within one year after the effective date of this order, or during
the period of his suspension, whichever is longer and provide satisfactory
proof of such passage to the State Bar’s Office of Probation in Los Angeles
within the same period. Failure to do so may result in suspension. (Cal. Rules
of Court, rule 9.10(b).)
Mark
Lopert Webb must also comply with California Rules of Court, rule 9.20, 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 this order.
Failure to do so may result in disbarment or suspension.
Costs are
awarded to the State Bar in accordance with Business and Professions Code
section 6086.10 and are enforceable both as provided in Business and
Professions Code section 6140.7 and as a money judgment.
CANTIL-SAKAUYE
Chief
Justice
I,
Frederick K. Ohirich, Clerk of the Supreme Court of the Stale of California. do
hereby certify. that the preceding is a true .copy of an order of this Court as
shown by the records of my office .
Witness my
hand and the seal of the court this day of October 19, 2011, By Deputy Clerk.
SIGNATURE OF THE PARTIES
Case Number(s): 12-N-10129
In the Matter of: Mark L. Webb
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:
Mark L. Webb
Date:
February 24, 2012
Respondent’s
Counsel: Philip S. Ward
Date:
February 24, 2012
Deputy Trial
Counsel: Donald R. Steedman
Date: March
9, 2012
ACTUAL SUSPENSION ORDER
Case Number(s): 12-N-10129
In the Matter of: Mark L. Wenn, State Bar No.: 67959
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.
checked.
All Hearing dates are vacated.
On page 2, B.
(1) Prior record of discipline, the complete degree of prior discipline is:
(d) In case
No. 10-0-06542 - Four years’ stayed suspension, five years’ probation and one
year’s actual suspension and until he makes restitution; and
(e) In case
No. 06-0-13454 - One-year stayed suspension and two-year probation with no
actual suspension.
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: Lucky Armendariz
Date: April 4,
2012
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 San
Francisco, on April 4, 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 San
Francisco, California, addressed as follows:
PHILIP STEPHEN WARD
HASSARD BONNINGTON
2 EMBARCADERO CTR FL 18
SAN FRANCISCO, CA 94111
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
DONALD R. STEEDMAN, Enforcement, San
Francisco
I hereby
certify that the foregoing is true and correct. Executed in San Francisco, California,
on April 4, 2012.
Signed by:
Mazie Yip
Case
Administrator
State Bar
Court