Case Number(s): 12-O-10271
In the Matter of: Jerry A. LaCues, Bar # 77088, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erin McKeown Joyce, Acting Senior Trial Counsel
State Bar of California
1149 South Hill Street
Los Angeles, CA 90015-2299
Telephone: (213) 765-1356
Facsimile: (213) 765-1319
Bar # 149946,
Counsel for Respondent: In Pro Per Respondent
Jerry A. LaCues
3110 Chino Avenue
Suite 230
Chino Hills, CA 91709
(909) 627-3535
Bar # 77088
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
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 December 21, 1977.
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: two (2) billing cycles immediately following the effective date of the Supreme Court Order in this matter. (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: Jerry A. LaCues, State Bar No. 77088
STATE BAR COURT CASE NUMBER: 12-O-10271
PENDING PROCEEDINGS:
The disclosure date referred to on page two, paragraph A.(7), was May 8, 2012.
Respondent admits that the following facts are true and that he is culpable of violations of the specified Rules of Professional Conduct.
Case No. 12-O-10271
FACTS
1. In late summer 2010, Chris Bowen and his wife Kim Calabrano hired Respondent for a construction defect matter.
2. In December 2010, Respondent settled the construction defect matter for $15,000.
3. Between the time they hired Respondent and the settlement of the construction defect matter, Bowen and Calabrano entered dissolution proceedings.
4. Both clients agreed to settle the construction defect matter for $15,000. They both agreed to receive $5,000 of the $10,000 settlement owed to the clients. The attorney fees were $5,000.
5. Respondent paid out $5,000 of the settlement to Calabrano once the settlement was received and deposited into Respondent’s Client Trust Account.
6. After the matter settled with both clients’ authority, a dispute arose between Bowen and Calabrano as to the payout of the remaining $5,000. The clients communicated the dispute to Respondent. Calabrano claimed Bowen owed her part of the $5,000 which was originally to be paid to Bowen based on orders in the dissolution proceedings. The dispute delayed the payout of the remaining settlement funds for several months.
8. After several months the clients notified Respondent that they agreed to the distribution of the remaining $5,000 to Bowen.
9. Despite receiving the notice that the clients now agreed about the distribution, Respondent delayed the final payout for several months due to the press of business in his office.
10. When the clients contacted Respondent about the distribution several months later, Respondent paid out the funds to Bowen. Respondent paid Bowen $10,000, disclaiming his attorney fees of $5,000 to atone for the delay in paying out the remaining settlement funds.
CONCLUSIONS OF LAW
By failing distribute the disputed portion of the construction defect settlement funds as soon as the clients notified Respondent that they had settled their dispute over the payout of the funds, Respondent failed to pay promptly, as requested by a client, any funds in Respondent’s possession which the client is entitled to receive in wilful violation of Rule of Professional Conduct 4-100(B)(4).
MITIGATING CIRCUMSTANCES
Remorse
Respondent delayed in paying out the remaining funds once the clients had settled their dispute over the payout of the funds. Once the clients contacted him again, Respondent paid out the remaining funds to the clients and acknowledged the delay was attributable to press of business in his office. In order to demonstrate his remorse, Respondent disclaimed his attorney fees of $5,000 to atone for his delay in paying out the funds.
Additional Mitigating Circumstances
Respondent met with the State Bar, cooperated in the investigation, and entered this Stipulation fully resolving this matter. Respondent’s stipulation to the facts, his culpability, and discipline is a mitigating circumstance. (See, In the Matter of Spaith (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 511,521).
AUTHORITIES SUPPORTING DISCIPLINE
STANDARDS FOR ATTORNEY SANCTIONS
To determine the appropriate level of discipline, the standards provide guidance. Drociak v. State Bar(1991) 52 Cal.3d 1085; In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119. A disciplinary recommendation must be consistent with the discipline in similar proceedings. See Snyder v. State Bar (1990) 49 Cal.3d 1302. Also, the recommended discipline must rest upon a balanced consideration of relevant factors. In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119.
Pursuant to Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct 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.
Pursuant to Standard 1.2 of the Standards for Attorney Sanctions for Professional Misconduct:
(b) "Aggravating circumstance" is an event or factor established clearly and convincingly by the State Bar as having surrounded a member’s professional misconduct and which demonstrates that a greater degree of sanction than set forth in these standards for the particular act of professional misconduct found or acknowledged is needed to adequately protect the public, courts and legal profession.
Circumstances which shall be considered aggravating are:
(i) the existence of prior record of discipline and the nature and extent of that record;...
Pursuant to Standard 1.6(b) of the Standards for Attorney Sanctions for Professional Misconduct,
The appropriate sanction shall be the sanction imposed unless (i) Aggravating circumstances are found to surround the particular act of misconduct found or acknowledged and the net effect of those aggravating circumstances, by themselves and in balance with any mitigating circumstances found, demonstrates that a greater degree of sanction is required to fulfill the purposes of imposing sanctions set forth in standard 1.3. In that case, a greater degree of discipline than the appropriate sanction shall be imposed or recommended.
Pursuant to Standard 2.2(b) of the Standards for Attorney Sanctions for Professional Misconduct:
Culpability of a member of commingling of entrusted funds or property with personal property or the commission of another violation of rule 4-100, Rules of Professional Conduct, none of which offenses result in the wilful misappropriation of entrusted funds or property shall result in at least a three month actual suspension, from the practice of law, irrespective of mitigating circumstances.
In this matter, Respondent failed to promptly pay out settlement proceeds to one of two clients, after the clients resolved their dispute as to the payout of those funds. Despite Standard 2.2(b), a minor trust account violation does not require the imposition of ninety days actual suspension. In the Matter of Respondent E (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 732 (where the attorney committed a minor trust account violation, made voluntary restitution and presented character evidence, imposition of a private reproval was appropriate). Here, Respondent spontaneously made voluntary restitution and disclaimed his own fees to compensate the clients for the delay in paying out their funds.
In In the Matter of Lazarus (Review Dept. 1991) 1 Cal State Bar Ct. Rptr. 387, the court imposed a two month stayed suspension where the attorney unreasonably delayed notifying the client of receipt of client funds; see also, In the Matter of Bleecker (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 113 (court imposed no actual suspension for trust account violation which did not constitute misappropriation). In this matter, the delay in paying out funds stemmed from a failing to respond to requests from the clients once they resolved their dispute. The delay was the result of a performance failure rather than a classic trust violation.
While Respondent has recent prior discipline, the misconduct here in unreasonably delaying payment to the Bowens occurred during the same time period as the misconduct involved in Respondent’s prior discipline, which resulted in a thirty (30) day actual suspension. The prior discipline also involved a trust account violation - Rule of Professional Conduct 4-100(A). Accordingly, the prior discipline should not be given significant aggravating weight. In the Matter of Freydl (Review Dept. 2001) 4 Cal. Bar Ct. Rptr. 349.
If this matter had been considered at the time the prior discipline of thirty day actual suspension was imposed, the level of the discipline would have resulted in no more than a ninety day actual suspension. The stipulated discipline of a thirty (30) day actual suspension is sufficient to protect the interests of the public and the profession in this matter (when considered in the context of the previously imposed thirty (30) day actual suspension).
Despite this discipline being Respondent’s third imposition of discipline, Standard 1.7(b) should not be applied to require Respondent’s disbarment in this third disciplinary proceeding. In the Matter of Meyer (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 697; In the Matter of Rose (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 192. As set forth above, the misconduct in this matter was contemporaneous with the misconduct in the second discipline, and less serious. Where the misconduct in multiple disciplines took place at the same time, they should be considered as one matter for the purposes of imposition of discipline. In the Matter of Friedman (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 527.
The stipulated discipline of thirty (30) days additional actual suspension is the appropriate level of discipline for the acknowledged violation of Rule of Professional Conduct 4-100(B)(4).
FURTHER AGREEMENTS OF THE PARTIES
The factual statements contained in this Stipulation constitute admissions of fact and may not be withdrawn by either party, except with court approval.
COSTS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him that as of May 8, 2012, the estimated costs in this matter are $ 2,797. Respondent further acknowledges that, should this Stipulation be rejected or should relief from the Stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
Case Number(s): 11-O-10271
In the Matter of: Jerry A. LaCues
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: Jerry A. LaCues
Date: May 31, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Erin McKeown Joyce
Date: May 31, 2012
Case Number(s): 11-O-10271
In the Matter of: Jerry A. LaCues
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.
<<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: June 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 June 21, 2012, 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:
JERRY A LACUES
LAW OFC JRRY A LACUES
3110 CHINO AVE #230
CHINO HILLS, CA 91709
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERIN M, JOYCE, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on June 21, 2012.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court
[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 June 29, 2012, 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:
JERRY A LACUES
LAW OFC JRRY A LACUES
3110 CHINO AVE #230
CHINO HILLS, CA 91709
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERIN M, JOYCE, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on June 29, 2012.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court