State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 12-O-10256, 12-O-12009
In the Matter of: Robert Roman , Bar # 93369, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Timothy G. Byer, Bar #172472,
Counsel for Respondent: James I. Ham, Bar #100849,
Submitted to: Settlement Judge.
Filed: March 6, 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 October 31, 1980.
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 15 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.
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.
checked. (4) Harm: Respondent's misconduct harmed significantly a client, the public or the administration of justice. See Attachment, page 12, "Additional Facts Re Aggravating Circumstances
<<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.
checked. (7) Multiple/Pattern of Misconduct: Respondent's current misconduct evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct. See Attachment, page 13, "Additional Facts Re Aggravating Circumstances"
<<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.
<<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.
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. See Attachment, page 13, "Additional Facts Re Mitigating Circumstances"
<<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:
No Prior Record of Discipline: See Attachment, page 13, "Additional Facts Re Mitigating Circumstances"
D. Discipline:
checked. (1) Stayed Suspension:
checked. (a) Respondent must be suspended from the practice of law for a period of 2 years.
<<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 3 years, 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 60 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.
checked. (10) The following conditions are attached hereto and incorporated:
<<not>> checked. Substance Abuse Conditions.
<<not>> checked. Law Office Management Conditions.
checked. Medical Conditions.
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 language (if any):.
MEDICAL CONDITIONS
Case Number(s): 12-O-10256, 12-O-12009
In the Matter of: Robert Roman
<<not>> checked. a. Unless Respondent has been terminated from the Lawyer Assistance Program (“LAP”) prior to respondent’s successful completion of the LAP, respondent must comply with all provisions and conditions of respondent’s Participation Agreement with the LAP and must provide an appropriate waiver authorizing the LAP to provide the Office of Probation and this court with information regarding the terms and conditions of respondent’s participation in the LAP and respondent’s compliance or non-compliance with LAP requirements. Revocation of the written waiver for release of LAP information is a violation of this condition. However, if respondent has successfully completed the LAP, respondent need not comply with this condition.
checked. b. Respondent must obtain psychiatric or psychological help/treatment from a duly licensed psychiatrist, psychologist, or clinical social worker at respondent’s own expense a minimum of 1 times per month and must furnish evidence to the Office of Probation that respondent is so complying with each quarterly report. Help/treatment should commence immediately, and in any event, no later than thirty (30) days after the effective date of the discipline in this matter. Treatment must continue for days or months or years or, the period of probation or until a motion to modify this condition is granted and that ruling becomes final.
If the treating psychiatrist, psychologist, or clinical social worker determines that there has been a substantial change in respondent’s condition, respondent or Office of the Chief Trial Counsel may file a motion for modification of this condition with the Hearing Department of the State Bar Court, pursuant to rule 5.300 of the Rules of Procedure of the State Bar. The motion must be supported by a written statement from the psychiatrist, psychologist, or clinical social worker, by affidavit or under penalty of perjury, in support of the proposed modification.
checked. c. Upon the request of the Office of Probation, respondent must provide the Office of Probation with medical waivers and access to all of respondent’s medical records. Revocation of any medical waiver is a violation of this condition. Any medical records obtained by the Office of Probation are confidential and no information concerning them or their contents will be given to anyone except members of the Office of Probation, Office of the Chief Trial Counsel, and the State Bar Court, who are directly involved with maintaining, enforcing or adjudicating this condition.
Other:
FINANCIAL CONDITIONS
Case Number(s): 12-O-10256, 12-O-12009
In the Matter of: Robert Roman
a. Restitution
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: Carolyn Armendarez
Principal Amount: $1,588
Interest Accrues From: February 19, 2009
2. Payee: Carolyn Armendarez
Principal Amount: $ 976
Interest Accrues From: April 1, 2009
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 .
b. Installment Restitution Payments
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) Carolyn Armendarez
Minimum Payment Amount $ 855
Payment Frequency with first billing cycle following date of the Supreme Court order
2. Payee/CSF (as applicable) Carolyn Armendarez
Minimum Payment Amount $ 855
Payment Frequency with second billing cycle following date of the Supreme Court order
3. Payee/CSF (as applicable) Carolyn Armendarez
Minimum Payment Amount $ 854
Payment Frequency with third billing cycle following date of the Supreme Court order
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.
c. Client Funds Certificate
<<not>> 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.
d. Client Trust Accounting School
<<not>> 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.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: Robert Roman, State Bar No. 93369
STATE BAR COURT CASE NUMBER: 12-O-10256,12-O-12009
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-O-10256 (Complainant: Carolyn Armendarez)
FACTS:
1. On June 16, 2006, Carolyn Armendarez employed Respondent to represent her in a personal injury matter.
2. On June 4, 2008, Respondent filed a complaint on Armendarez’s behalf in Los Angeles Superior Court, entitled Carolyn Armendarez v. G. W. Miller, et al., Case No. BC 383 233 ("Armendarez Matter").
3. On December 23, 2008, Respondent called Armendarez at work and informed her that she was to appear that day for an Independent Medical Examination ("IME") previously scheduled by Respondent and defense counsel. Armendarez, who had not previously been provided notice of the date set for her IME, told Respondent she was unable to leave work on such short notice, and requested that Respondent seek to reschedule the IME. Respondent told her he would do so. Respondent did not contact Armendarez again.
4. On February 19, 2009, the court in the Armendarez Matter granted the motion by G. W. Miller, a defendant, for an order compelling attendance by Armendarez at an IME, and awarded sanctions against Armendarez in the sum of $1,588. Respondent did not inform Armendarez of the order compelling her IME attendance nor of the sanctions imposed.
5. On March 4, 2009, defendant Miller in the Armendarez Matter filed a motion, to be heard on April 1, 2009, seeking a dismissal of the action and for monetary sanctions against Armendarez for failing to obey a court order requiring that she submit to an independent medical examination, or in the alternative, for evidentiary sanctions prohibiting Armendarez from testifying at trial. Miller served a copy of the motion on Respondent via mail, and Respondent received it. The motion included notice of the trial date in the matter, as did numerous other pleadings in the case also previously received by Respondent.
6. On April 1, 2009, the court conducted the hearing on Miller’s dismissal motion. Respondent did not appear. The court denied the motion seeking dismissal, but granted the motion for evidentiary sanctions and imposed monetary sanctions against Armendarez in the sum of $976. Miller was ordered to give notice of the ruling to Respondent. Miller mailed Respondent notice of the ruling, and Respondent received it.
7. Respondent did not inform Armendarez of the evidentiary sanction or the monetary sanctions imposed on her.
8. On April 6, 2009, Respondent failed to appear for the trial of the Armendarez Matter and the court dismissed it for Respondent’s failure to prosecute. Miller was ordered to give notice of the dismissal to Respondent; he did so, and Respondent received it.
9. Respondent did not give notice to Armendarez that her matter had been dismissed.
10. Respondent did not file a motion with the court seeking to vacate the dismissal of the Armendarez Matter on the grounds of his "inadvertence, mistake, or excusable neglect" within six months following the dismissal.
11. Respondent withdrew from Armendarez’s representation, without notice to Armendarez, and thereby effectively terminated his employment. At the time Respondent effectively terminated his employment by withdrawing from representation without notice to Armendarez, Respondent took no steps to avoid reasonably foreseeable prejudice to her.
12. On June 9, 2010, Armendarez went to Respondent’s office, at which time Respondent informed Armendarez that her matter had been dismissed.
13. On February 17, 2012, and again on March 8, 2012, a State Bar investigator wrote to Respondent and requested that Respondent provide a written response to allegations of misconduct made against Respondent by Carolyn Armendarez, in State Bar investigation No. 12-O-10256. The letters, both of which Respondent received, requested that Respondent provide his written response no later than by March 2, 2012, and March 16, 2012, respectively. Respondent provided no response, written or otherwise, to either letter.
CONCLUSIONS OF LAW:
14. By not appearing at the April 1, 2009 heating of defendant’s motion for dismissal, by not appearing for trial of the matter, and by not moving to vacate the dismissal on the grounds of his "inadvertence, mistake, or excusable neglect" within six months following the dismissal, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in willful violation of Rules of Professional Conduct, rule 3-110(A).
15. By not giving Armendarez advance notice of her original IME date; by not informing Armendarez of the court’s order compelling her attendance at her IME and sanctioning her $1,588; by not informing Armendarez of the court’s order imposing evidentiary sanctions against her and sanctioning her $976; and by not timely informing Armendarez that the court had dismissed her matter, Respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services, in willful violation of Business and Professions Code, section 6068(m).
16. By not giving Armendarez advance notice of her original IME date; by not informing Armendarez of the court’s order compelling her attendance at her IME and sanctioning her $1,588; by not informing Armendarez of the court’s order imposing evidentiary sanctions against her and sanctioning her $976; by not appearing at the April 1, 2009 hearing of defendant’s motion for dismissal, by not appearing for trial of the matter; by not timely informing Armendarez that the court had dismissed her matter; and by not moving to vacate the dismissal on the grounds of his "inadvertence, mistake, or excusable neglect" within six months following the dismissal, Respondent withdrew from Armendarez’s representation without notice to Armendarez and without taking steps to avoid reasonably foreseeable prejudice to her, and failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client, in willful violation of Rules of Professional Conduct, rule 3-700(A)(2).
17. By not providing a response to the State Bar investigator’s requests therefor, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent, in willful violation of Business and Professions Code, section 6068(i).
Case No. 12-O-12009 (Complainant: Donald C. Randolph)
FACTS:
18. On August 16, 2011, and again on September 21,2011, Donald C. Randolph, Esq., on behalf Rene Torres (a former client of Respondent’s), wrote letters to Respondent, which Respondent received, requesting that Respondent promptly make available the file materials in Respondent’s possession concerning Respondent’s representation of Mr. Tortes.
19. Respondent did not make Mr. Torres’s file materials available to Mr. Randolph, or respond to either of Mr. Randolph’s letters in any way.
20. On April 10, 2012, a State Bar investigator wrote to Respondent and requested that Respondent provide a written response to allegations of misconduct made against Respondent by Donald C. Randolph, Esq., in State Bar investigation No. 12-0-12009. The letter, which Respondent received, requested that Respondent provide his written response no later than by April 20, 2012. Respondent provided no response, written or otherwise, to the letter.
CONCLUSIONS OF LAW:
21. By not making Mr. Torres’s file materials available to Mr. Randolph, in response to Mr. Randolph’s letters requesting he do so, Respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property, in willful violation of Rules of Professional Conduct, rule 3-700(D)(1).
22. By not providing a response to the State Bar investigator’s request therefor, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent, in willful violation of Business & Professions Code, section 6068(i).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Harm: By abandoning Armendarez’s matter and allowing it to be dismissed, and by failing thereafter to take corrective action to seek the vacating of the dismissal, Armendarez lost her action and was required to hire a new lawyer to bring an action against Respondent to seek a remedy, and was harmed thereby.
Multiple/Pattern of Misconduct: By violating Rules of Professional conduct, rules 3-110(A), 3-700(A)(2) and 3-700(D)(1), and Business and Professions Code sections 6068(i) and 6068(m), Respondent committed multiple acts of misconduct.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Emotional/Physical Difficulties: Respondent has provided evidence that, during the period in which Respondent committed the misconduct in the Armendarez and Tortes matters, Respondent was suffering depression which caused him to be unable to face his client obligations or even to open his mail. Respondent has obtained medical treatment and is making progress toward recovery.
No Prior Disciplinary Record: Although the misconduct is serious, Respondent has no record of prior discipline in the 32 years since his admission. (In the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn. 13.)
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. (ln 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 2.6 provides that culpability of a member of a violation of Business and Professions Code section 6068 "shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3."
Given Respondent’s lengthy period of practice without prior discipline and the impact his emotional condition had on all the various acts of misconduct in these cases, for purposes of public protection the primary consideration should be that Respondent’s emotional condition continues to improve and that he remains engaged with his professional duties. Under the circumstances presented here, 60 days of actual suspension and compliance with the medical and financial conditions adequately protects the public.
The discipline agreed to herein is consistent with the level of discipline imposed in similar cases. (See, e.g. Harris v. State Bar (1990) 51 Cal.3d 1082, 275 Cal. Rptr. 428 [abandonment of a single client aggravated by client harm and mitigated by 17 years in practice without discipline led to three years’ stayed suspension, three years’ probation and 90 days of actual suspension].)
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was February 5, 2013.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of February 5, 2013, the prosecution costs in this matter are $6,074. 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, State Bar Client Trust Accounting School, and/or any other educational course(s) to be ordered as a condition of reproval or suspension. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-10256, 12-O-12009
In the Matter of: Robert Roman
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: Robert Roman
Date: 2/1/13
Respondent’s Counsel: James I. Ham
Date: 2/4/13
Deputy Trial Counsel: Timothy O. Byer
Date: 2/5/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-O-10256, 12-O-12009
In the Matter of: Robert Roman
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.
On page 8 of the stipulation under the heading Financial Conditions the following modifications are recommended:
1. Under the heading, "a. Restitution," insert the name "Carolyn Armendarez" in the column of the chart which bears the heading "Payee," so that the chart shows that Carolyn Armendarez is the payee who will be paid $976 with interest accruing from April 1, 2009.
2. Under the heading, "b. Installment Restitution Payments," insert an "x" in the box that appears next to the sentence that states, "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."
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: 3/5/13
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 March 6, 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:
JAMES I. HAM
PANSKY MARKLE HAM LLP
1010 SYCAMORE AVE UNIT 308
SOUTH PASADENA, CA 91030
<<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:
Timothy G. Byer, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 6, 2013.
Signed by:
Paul Barona
Case Administrator
State Bar Court