State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER
APPROVING
STAYED
SUSPENSION; NO ACTUAL SUSPENSION
Case Number(s): 12-O-10570-PEM
In the Matter of: HENRY DORAME NUNEZ, Bar # 63412, A Member
of the State Bar of California, (Respondent).
Counsel For The State Bar: Heather E. Abelson, Bar #243691
Counsel for Respondent: Daniel Lee Harralson, Bar #109322
Submitted to: Settlement Judge.
Filed: April 22, 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 December
30, 1974.
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):
checked. Costs
are added to membership fee for calendar year following effective date of
discipline.
<<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.
<<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 or a separate
attachment entitled “Prior Discipline. .
<<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 "Facts Supporting Aggravating Circumstances" in the
attachment hereto.
<<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 "Facts Supporting
Aggravating Circumstances" in the attachment hereto.
<<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.
<<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: See
"Additional Facts Re Mitigating Circumstances" in the attachment
hereto
D. Discipline:
checked. (1) Stayed Suspension:
checked. (a) Respondent must be suspended from the
practice of law for a period of one (1) year.
<<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.
checked. (2) Probation: Respondent
must be placed on probation for a period of one (1) year, which will commence
upon the effective date of the Supreme Court order in this matter. (See rule 9.18,
California Rules of Court.)
E. Additional Conditions of Probation:
checked. (1) During the probation
period, Respondent must comply with the provisions of the State Bar Act and
Rules of Professional Conduct.
checked. (2) 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. (3) 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. (4) 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. (5) 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. (6) 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. (7) 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. (8) 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. (9) 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:
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 within one year. 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) Other
Conditions: .
Attachment language (if any): .
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: HENRY DORAME NUNEZ, State Bar No. 63412
STATE BAR COURT CASE NUMBER: 12-O-10570-PEM
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.
FACTS:
Case No. 12 -O-10570-PEM (Complainant: Thomas H. Armstrong, Esq.)
1. Prior to September 26, 2006, respondent was hired by James Salven
("Salven") to represent Salven in his capacity as a Chapter 7
Bankruptcy Trustee in the matter, In Re DDJ, lnc., U.S. Bankruptcy Count,
Eastern District of California, Fresno Division, Case No. 05-10001-A-7F
("bankruptcy matter"). Respondent was hired as "special
counsel" to pursue various claims on behalf of the bankruptcy estate.
2. On September 26, 2006, respondent filed an application to be appointed
special counsel in the bankruptcy matter. On October 4, 2006, the court in the
bankruptcy matter issued an order authorizing Salven to employ respondent as a
special counsel.
3. Prior to December 1, 2009, respondent became counsel of record on behalf
of Salven and DDJ, Inc., in the matter, Salven v. Hagobian, Fresno County
Superior Court Case No. 08CECG03585DSB ("Hagobian matter"). This
representation was part of respondent’s employment as special counsel to pursue
various claims on behalf of Salven and the estate in the bankruptcy matter.
4. On December 1, 2009, the defendants propounded discovery on respondent
in the Hagobian matter. Respondent received the discovery requests, but failed
to adequately respond, failed to timely notify Salven about the discovery
requests and failed to timely provide the discovery requests to Salven.
5. From November 16, 2009 through December 7, 2010, the court in the
Hagobian matter issued orders sanctioning Salven, for a total of $6,025 in
sanctions, based on respondent’s failure to timely and adequately respond to
discovery. Respondent received each of the court’s sanction orders and paid the
sanctions, but failed to inform Salven about the sanctions.
6. On December 7, 2010, the court issued an order imposing evidentiary
sanctions against Salven for respondent’s failure to adequately respond to
discovery. Soon thereafter, respondent received the court’s December 7, 2010
order.
7. Respondent did not timely inform Salven that respondent received
discovery in the Hagobian matter.
8. At no time during his representation of Salven did respondent inform
Salven that respondent failed to timely and adequately respond to discovery in
the Hagobian matter.
9. At no time during his representation of Salven did respondent inform
Salven that sanctions in the amount of $6,025 were imposed against Salven for
respondent’s failure to timely and adequately respond to discovery in the
Hagobian matter.
CONCLUSIONS .OF LAW:
10. By failing to timely provide the discovery requests to his client in
the Hagobian matter, and by failing to timely and adequately respond to
discovery in the Hagobian matter, which resulted in his client being monetarily
sanctioned and having evidentiary sanctions imposed against him, respondent
intentionally, recklessly, or repeatedly failed to perform legal services with
competence, in wilful violation of Rules of Professional Conduct, rule
3-110(A).
11. By failing to timely inform Salven about the receipt of discovery
requests, by failing to inform Salven that respondent failed to adequately and
timely respond to discovery and by failing to inform Salven that sanctions had
been imposed against Salven based on respondent’s failure to timely and
adequately respond to discovery in the Hagobian 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 wilful violation of
Business and Professions Code, section 6068(m).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Harm (Std. 1.2(b)(iv)): Respondent substantially harmed Salven and the
bankruptcy estate by causing evidentiary sanctions to be ordered against
Salven. Respondent substantially harmed the administration of justice by
failing to timely and adequately respond to discovery requests, causing
multiple motions to compel to be filed against Salven. This substantial harm
constitutes an aggravating factor pursuant to this Standard.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent violated rule
3-110(A) and Business and Professions Code section 6068(m). These multiple acts
of misconduct constitute an aggravating factor pursuant to this Standard.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
No Prior Discipline: Although respondent’s misconduct is serious, he is
entitled to substantial. mitigation for having practiced law for more than 39
years without discipline. In the Matter of Riordan (Review Dept. 2007) 5 Cal.
State Bar Ct. Rptr. 41, 49.
Pre-trial 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. In the Matter of Downey
(Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 151,156; In the Matter of Van
Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 993-994.
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide a
"process of fixing discipline" pursuant to a set of written
principles to "better discharge the purposes of attorney discipline as
announced by the Supreme Court." Rules Proc. of State Bar, tit. IV, Stds.
for Atty. Sanctions for Prof. Misconduct, Introduction (all further references
to standards are to this source). The primary purposes of disciplinary proceedings
and of the sanctions imposed are "the protection of the public, the courts
and the legal profession; the maintenance of high professional standards by
attorneys and the preservation of public confidence in the legal
profession." In re Morse (1995) 11 Cal.4th 184, 205; std. 1.3.
Although not binding, the standards are entitled to "great
weight" and should, be followed "whenever possible" in
determining level of discipline. In re Silverton (2005) 36 Cal.4th 81, 92,
quoting In re Brown (1995) 12 Cal.4th 205, 220 and In re Young (1989) 49 Cal,
3d 257, 267, fn. 11. Adherence to the standards in the great majority of cases
serves the valuable purpose of eliminating disparity and assuring consistency,
that is, the imposition of similar attorney discipline for instances of similar
attorney misconduct. In re Naney (I 990) 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.
Here, respondent committed two acts of professional misconduct. Standard
1.6 (a) requires that where a respondent acknowledges two or more acts of
misconduct, and different sanctions are prescribed by the standards that apply
to those acts, the sanction imposed shall be the more or most severe prescribed
in the applicable standards. Here, the most severe sanction is standard 2.6(a)
which requires that a violation of Business and Professions Code section 6068
"shall result in disbarment or suspension depending on the gravity of the
offense or harm, if any, to the victim, with due regard to the purpose of
imposing discipline set forth in standard 1.3." Based on the standard, the
minimum level of appropriate discipline is suspension.
Under standard. 1.3, the gravity of respondent’s conduct does not warrant
disbarment or actual suspension. Respondent committed two acts of misconduct in
a single action relating to a failure to adequately and timely respond to
discovery requests. Respondent’s misconduct is aggravated by multiple acts of
misconduct and harm. Respondent is entitled to substantial mitigation for
39-years of discipline-free practice and for entering into a pretrial
stipulation with the State Bar. Balancing the misconduct with the mitigation
and aggravation, a one-year stayed suspension is appropriate.
California Supreme Court precedent further supports a one-year stayed
suspension in this matter. In Bach v. State Bar (1991) 52 Cal.3d 1201, the
California Supreme Court ordered respondent Bach actually suspended from the
practice of law for thirty days, for failing to perform legal services
competently for a single client, failing to communicate with his client,
withdrawing from representation without client consent or court approval, failing
to refund unearned fees, and failing to cooperate in the State Bar’s
investigation, ld. at 1205. The Court noted that respondent had 26 years of
prior practice with no discipline. Id. at 1204, 1208. The Court also found that
respondent’s refusal to accept any responsibility for the harm caused to his
client, was an aggravating factor, ld. at 1209.
Here, respondent’s misconduct is similar to, yet less egregious than, the
misconduct at issue in Bach. Respondent committed two acts of misconduct, as
opposed to respondent Bach who committed five acts of misconduct. Respondent,
like respondent Bach, is entitled to mitigation credit for no prior record of
discipline. Respondent is entitled to additional mitigation for entering into a
pretrial stipulation with the State Bar. Respondent’s misconduct is subject to
two aggravating circumstances, as opposed to respondent Bach whose misconduct
was subject to one aggravating circumstance.
Because respondent committed fewer acts of misconduct, is entitled to more
mitigation credit but is also subject to more aggravating circumstances,
respondent’s misconduct warrants a lower level of discipline than the 30-day
actual suspension imposed on respondent Bach.
A one-year stayed suspension is consistent with the Standards and applicable
caselaw, and is appropriate taking into consideration the facts and
circumstances of this case.
PENDING PROCEEDINGS.
The disclosure date referred to on page 2, paragraph A(7), was April 8,
2013.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has
informed respondent that as of April 8, 2013, the prosecution costs in this
matter are $6,177.54. 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-O-10570-PEM
In the Matter of: HENRY DORAME NUNEZ
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: Henry Dorame Nunez
Date: 4/9/13
Respondent’s Counsel: Daniel Lee Harralson
Date: 4/9/13
Deputy Trial Counsel: Heather E. Abelson
Date: 4/11/13
STAYED SUSPENSION ORDER
Case Number(s): 12-O-10570-PEM
In the Matter of: HENRY DORAME NUNEZ
Finding the stipulation to be fair to the parties and that it adequately
protects the public, IT IS ORDERED that the requested dismissal of
counts/charges, if any, is GRANTED without prejudice, and:
checked. The stipulated facts and disposition are APPROVED and the
DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are
APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to
the Supreme Court.
checked. All Hearing dates are vacated.
The parties are bound by the stipulation as approved unless: 1) a motion to
withdraw or modify the stipulation, filed within 15 days after service of this
order, is granted; or 2) this court modifies or further modifies the approved
stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective
date of this disposition is the effective date of the Supreme Court order
herein, normally 30 days after the file date. (See rule 9.18(a), California
Rules of Court.)
Signed by:
Judge of the State Bar Court: Lucy Armendariz
Date: 4/22/13
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 San Francisco, on April 22,
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 San Francisco, California, addressed as
follows:
DANIEL LEE HARRALSON
THE DANIEL HARRALSON LAW FIRM APC
PO BOX 26688
FRESNO, CA 93729 - 6688
<<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:
Heather Abelson, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San
Francisco, California, on April 22, 2013.
Signed by:
George Hue
Case Administrator
State Bar Court