Case Number(s): 12-N-17280
In the Matter of: JACK ISRAEL ADLER, Bar # 97380, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: R. Kevin Bucher, Bar #132003,
Counsel for Respondent: David M. Philips, Bar #45761,
Submitted to: Assigned Judge.
Filed: August 1, 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.
1. Respondent is a member of the State Bar of California, admitted May 29, 1981.
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 10 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: 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.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: JACK ISRAEL ADLER, State Bar No. 97380
STATE BAR COURT CASE NUMBER: 12-N-17280
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified California Rules of Court.
Case No. 12-N-17280 (State Bar Investigation)
FACTS:
1. On July 19, 2012, the California Supreme Court filed Order No. S202054 ("the Order"). The Order included a requirement that Respondent comply with Rule 9.20, California Rules of Court, by performing the acts specified in subdivisions (a) and (c) within 30 and 40 days, respectively, after the effective date of the 9.20 Order.
2. On July 19, 2012, the Clerk of the Supreme Court of the State of California properly served upon Respondent a copy of the order. Respondent received the order.
3. The Supreme Court Order became effective on August 18, 2012. Respondent was ordered to comply with subdivision (a) and (b) of rule 9.20 of the California Rules of Court no later than September 17, 2012, and was ordered to comply with subdivision (c) of Rule 9.20 by filing a Rule 9.20 compliance declaration no later than September 27, 2012.
4. Respondent timely complied with the acts specified in subdivisions (a); however, Respondent filed his Rule 9.20 compliance declaration late on November 26, 2012.
CONCLUSIONS OF LAW:
5. By not timely filing a declaration of compliance with Rule 9.20 in conformity with the requirements of Rule 9.20(c), Respondent failed to comply with the provisions of Supreme Court Order No. S202054. By the foregoing conduct, Respondent willfully violated rule 9.20, California Rules of Court.
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): Respondent has been a member of the State Bar since May 29, 1981, and has a prior record of discipline. Effective August 18, 2012, the California Supreme Court ordered that Respondent be suspended from the practice of law for one year, stayed, and ordered that he be placed on probation for two years subject to certain conditions including a 90-day actual suspension. In Case Number 11-O-15383, Respondent, while on administrative suspension, made 77 court appearances as a special appearance attorney between September 1, 2010 and July 4, 2011, thereby committing an act or acts of moral turpitude and dishonesty in violation of Business and Professions Code 6106.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Pretrial Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of Chief Trial Counsel prior to trial, thereby saving State Bar Court time and resources. (See Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079 [where mitigative credit was given for entering into a stipulation as to facts and culpability].)
Physical Difficulties: During the period immediately following the effective date of the Order, Respondent was having serious physical difficulties, as attested to by his treating physician. Respondent suffered from Chronic Pulmonary Obstructive Disease (COPD), a lung disease that made it very difficult for Respondent to breathe, required long periods of recuperation and caused extreme debilitation, and which affected his ability to perform daily activities, including the acts specified in Rule 9.20 of the California Rules of Court, which explains in part, but does not excuse his failure to timely file a Rule 9.20 compliance declaration. Respondent now manages his condition with the use of an oxygen tank. (See, e.g., Porter v. State Bar (1990) 52 Cal.3d 518; Shapiro v State Bar (1990) 51 Cal.3d 251 [ mitigation when physical difficulties contributed to attorney misconduct].)
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." (ln 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, supra, 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.)
There is no standard specifically applicable to a violations of Rule 9.20 of the California Rules of Court; however, Rule 9.20(d) provides that a suspended member’s willful failure to comply with the provisions of Rule 9.20 of the California Rules of Court is cause for disbarment or suspension and for revocation of any pending probation.
Standard 1.7(a), provides if a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one prior imposition of discipline, the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding subject, to exceptions not applicable here.
The California Supreme Court deems Rule 9.20 violations a serious ethical breach for which disbarment is generally considered the appropriate discipline. (See Bercovich v. State Bar (1990) 50 Cal. 3d 116, 131.) However, the Court has deviated from disbarment when appropriate. (See Shapiro v State Bar, supra, 51 Cal.3d 251.
Respondent’s prior record of discipline is a significant aggravating factor and there is no reason to deviate from Standard 1.7(a). But Respondent’s mitigation is significant. Respondent was experiencing extreme physical difficulties due to his COPD condition (a condition which he now manages with the use of an oxygen tank), which affected his daily activities during the period immediately following the effective date of the Order. Further, the Supreme Court has determined that when an attorney timely complies with subdivision (a) of Rule 9.20, as Respondent did, it is an important fact tempering an attorney’s failure to file a timely compliance declaration (See Shapiro v State Bar, supra, 51 Cal.3d 251, 260.) Respondent’s agreement to enter into this stipulation prior to trial also warrants mitigation.
In consideration of the aggravating and mitigating circumstances surrounding Respondent’s misconduct, a discipline consisting of a one-year suspension, stayed, and two years of probation, with conditions including a six-month actual suspension serves the purposes of attorney discipline.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him that as of July 23, 2013, the prosecution costs in this matter are $6,944.00. 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-N-17280
In the Matter of: JACK ISRAEL ADLER
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: Jack Israel Adler
Date: 7/31/13
Respondent’s Counsel: David M Philips
Date: 7/31/13
Deputy Trial Counsel: R. Kevin Bucher
Date: 7/31/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-N- 17280
In the Matter of: JACK ISRAEL ADLER
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: Donald F. Miles
Date: 8/1/13
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 Los Angeles, on August 1, 2013, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING ACTUAL SUSPENSION
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:
DAVID MATTHEW PHILIPS
3853 BROCKTON AVE
RIVERSIDE, CA 92501
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
KEVIN BUCHER, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 1, 2013.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court