Case Number(s): 12-O-11240
In the Matter of: Luis E. Vasquez, Bar # 162798, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Hugh G. Radigan, Deputy Trial Counsel
1149 South I-]Jll Street - p~J~
Los Angeles, California 90015
213-765-1206
Bar # 94251
Counsel for Respondent: Luis E. Vasquez
1820 E. Garry Avwnue, Suite 107
Santa Ana, California 92705
Bar # 162798
Submitted to: Assigned Judge State Bar Court Clerk’s Office Los Angeles
<<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 December 14, 1992.
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. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
In the Matter of: Luis E. Vasquez
Case Number: 12-O-11240
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-11240 (Complainant: Ben Castro dba Ben Castro Masonry, Inc.)
FACTS:
1. On August 10, 2010, Ben Castro, DBA Ben Castro Masonry, Inc. (hereinafter "Castro"), retained Respondent to represent him with respect to an Internal Revenue Service (hereinafter "IRS") audit of his business for the years 2007, 2008, and 2009. Castro had been referred to Respondent by his accountant, Carlos Guzman, who delivered 4 to 5 boxes of financial records pertinent to Castro’s business, to Respondent to facilitate responding to the audit.
2. On September 23, 2010, Respondent executed a power of attorney evidencing his retention by Castro, and transmitted the power of attorney to the assigned IRS agent involved with the audit.
3. On March 4, 2011, an initial meeting was held between Respondent, Castro and the IRS, to discuss the audit. A second meeting to discuss the audit was conducted on June 21, 2011, attended by Respondent and the assigned IRS agent. At that time, several boxes of Castro’s financial records, but not all of the boxes originally delivered to Respondent containing Castro’s financial information, were given to the IRS by Respondent.
4. On April 5, 2011, Castro retained Respondent for a second matter, specifically to negotiate and potentially reduce the amount of a judgment secured against him by Amgard Insurance in the amount of $24,157.82. (hereinafter "Amgard judgment").
5. On May 13, 2011, Respondent was informed of proposed new terms and conditions to satisfy the Amgard judgment, by Amgard’s attorney, Giovani Noriaga. The new terms proposed contemplated reducing the principal amount of judgment to $18,000.00, an immediate payment of $2,000.00, and monthly payments of $1,333.33 for one year.
6. On July 7, 2011, the IRS faxed a letter to Respondent requesting additional itemized documentation with a due date of July 21, 2011 for compliance. The IRS sent a copy of the letter to Castro.
7. Upon receipt of this letter, Castro repeatedly contacted Respondent’s office requesting a status update and left several voice messages for Respondent to respond. On multiple occasions, Castro went to Respondent’s office to discuss the matter, but Respondent was not there. Castro contacted the IRS to advise that Respondent was non-responsive to his requests for status update, then at which time the IRS advised him that the IRS had closed the matter due to Respondent’s failure to timely comply with the document production request. The requested documentation was contained within those boxes of financial materials originally delivered to Respondent when he was retained.
8. On April 5, 2011, Castro retained Respondent to negotiate and potentially reduce the amount of a judgment secured against him by Amgard Insurance in the amount of $24,157.82. (hereinafter "Amgard judgment").
9. On May 13, 2011, Respondent was informed of proposed new terms and conditions to satisfy the Amgard judgment, by Amgard’s attorney, Giovani Noriaga. The new terms proposed contemplated reducing the principal amount of judgment to $18,000.00, an immediate payment of $2,000.00, and monthly payments of $1,333.33 for one year.
10. Respondent failed to communicate the proposed terms to Castro and thereafter failed to respond to Castro’s requests for status updates concerning this matter, requiring Castro to retain replacement counsel to address the outstanding judgment, the existence of which jeopardized his business license.
CONCLUSIONS OF LAW:
11. By failing to appear on behalf of Castro and produce the available business records to facilitate the business audit, and by not responding to the IRS’s document production request and failing to respond to Castro’s inquiries regarding the pending audit, and by failing to accomplish the negotiation of the Amgard judgment, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
12. By not communicating to Castro the proposed terms to satisfy the Amgard judgment, and failing to respond to Castro’s repeated requests for a status update regarding the outstanding judgment, Respondent willfully failed to respond to client inquiries in a matter in which Respondent had agreed to provide legal services, in willful violation of Business and Professions Code section 6068(m).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline, Standard 1.2(b)(1): In State Bar Court Case No. 10-O-02914, the Court imposed a public reproval effective March 18, 2011., for Respondent’s failure to perform, failure to release promptly client papers and materials, failure to refund an unearned fee, failure to respond to client inquiries and failure to cooperate with the State Bar in a pending disciplinary investigation, arising out of Respondent’s representation of a client within a bankruptcy proceeding.
Harm, Standard 1.2(b)(4): Respondent’s failure to properly schedule a meeting with the IRS to conclude the audit of his client and produce those documents within his custody and possession responsive to the audit inquiry, resulted in a $100,000 penalty assessment against the client’s business. (ln the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631, where attorney’s loss of client’s cause of action constituted significant harm.) Similarly, Respondent’s failure to properly communicate to the client revised terms and conditions relevant to the existent judgment against the client’ s business, placed the client’ s business license in jeopardy and required the retention of replacement counsel to respond to the complaint Respondent allowed to go into default at additional cost and expense to the client.
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. (ln re Silverton (2005) 36 Cal. 4th 81, 92, quoting In re Brown (1995) 12 Cal. 4"’ 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.)
Respondent admits to committing 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.
The most severe sanction applicable to Respondent’s misconduct is found in standard 2.6(a), which applies to Respondent’s violation of Business and Professions Code section 6068(m).
Standard 2.6(a) provides that culpability of a member of a violation of Business and Professions Code section 6068(m) shall result in disbarment or suspension depending upon the gravity of the offense or the harm, if any, to the victim. Respondent’s misconduct in failing to meaningfully participate in scheduling the requested meeting with the IRS and producing those responsive documents within his possession and custody resulted in a significant penalty assessment against his client in the amount of $100,000. This result consequently increases the magnitude of the misconduct herein. Likewise, respondent’s failure to communicate revised terms and conditions to the client regarding the existent judgment against the business placed the business license of the client in jeopardy and resulted in the need to retain replacement counsel to set aside a default and successfully conclude the negotiation process at additional cost and expense to the client. This harm additionally increases the magnitude of the complained of conduct.
Standard 1.7(a) mandates that discipline in the pending matter be greater than the public reproval Respondent received in his prior discipline that was not remote in time to the instant matter and was serious in nature.
The stipulated disposition is consistent with case law. In Bach v. State Bar (1991) 52 Cal. 3rd 1201, a 30 day actual suspension was imposed upon an attorney in a single client matter who had failed to perform legal services competently, improperly withdrew from representation, failed to refund unearned fees, and failed to cooperate in the State Bar investigation. In mitigation, Bach had no prior record of discipline after 20 years of practice. In aggravation, the attorney denied responsibility for the delay, cost, anxiety, and inconvenience imposed upon the client by virtue of respondent’s misconduct and refused to participate in mandatory fee arbitration.
In Layton v. State Bar (1991) 50 Cal 3rd 1889, a 30 day actual suspension was imposed where an attorney failed to use reasonable diligence to accomplish the purposes for which he was employed, failed to perform legal services competently, and violated his duties as an attorney. Layton, in mitigation, had no prior discipline history in thirty years of practice and the current misconduct did not evidence a pattern of misconduct. There were no aggravating factors.
A greater level of discipline than that imposed in Layton and Bach is merited in the instant matter due to the aggravating factors present, including Respondent’s prior discipline record and the harm caused to the client in these two matters. Application of the standards to the facts herein and consideration of the relevant decisional law supports a 90 day actual suspension, 1 year stayed suspension and 2 years probation for the misconduct herein. The recommended discipline is adequate to protect the public, the court, and the legal profession.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was November 28, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 28, 2012, the prosecution costs in this matter are approximately $6,944. 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): 12-O-11240
In the Matter of: Luis E. Vasquez
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: Luis E. Vasquez
Date: 11-29-12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Hugh G. Radigan
Date: November 30 12
Case Number(s): 12-O-11240
In the Matter of: Luis E. Vasquez
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.
Page 3 – Under Heading “Additional Aggravating Circumstances” add “See Attachment pages 8 and 9
Page 4 – Section C (13) – Place Checkmark in Box
Page 7 – “Facts” Delete Paragraphs 4 and 5.
Page 9 – “Authorities Supporting Discipline – 3rd Paragraph; Delete 1st sentence; Add Respondent admits to committing three acts of Professional Misconduct: Two Violations of Rule 3-110 (A) and one violation of Section 6068 (m).
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. Platel
Date: 12-06-2012
[Rule 62(b), Rules Proc.; 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 December 21, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
in a sealed envelope for collection and mailing on that date as follows:
checked by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:
LUIS E. VASQUEZ
1820 E GARRY AVE STE 108
SANTA ANA, CA 92705
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Hugh Gerard Radigan, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California on December 21, 2012
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court