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-11559, 12-O-11998, 12-O-16427
In the Matter of: DONALD MAH, Bar # 158045, A Member of the
State Bar of California, (Respondent).
Counsel For The State Bar: Sherrie B. McLetchie, Bar #85447
Counsel for Respondent: William S. Reustle, Bar #83707
Submitted to: Settlement Judge.
Filed: September 5, 2013.
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 June 8,
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 14 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.
checked. (1) Prior record of
discipline [see standard 1.2(f)].
checked. (a) State Bar Court case # of prior case 97-C-13952
(See “Additional Facts Re Aggravating Circumstances", page 9).
checked. (b) Date prior discipline effective 2/20/98
checked. (c) Rules of Professional Conduct/ State Bar Act
violations: Bus. & Prof. Code sec. 6068[a) by violation of Penal Code sec.
242 (battery).
checked. (d) Degree of prior discipline: private reproval
(public disclosure)with a one-year period of compliance with conditions
including attendance at Ethics School and the terms of his criminal probation.
<<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.
<<not>> checked. (4) Harm:
Respondent's misconduct harmed significantly a client, the public or the
administration of justice.
<<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", page 9.
<<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.
checked. (13) No mitigating circumstances
are involved.
Additional mitigating circumstances:
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 two (2) years, 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: .
checked. (2) Other Conditions:
See "Fee Arbitration Conditions of
Probation" beginning on page 11.
Attachment language (if any):
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: DONALD MAH, State Bar No. 158045
STATE BAR COURT CASE NUMBER: 12-O-11559, 12-O-11998, 12-O-16427
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-11559 (Complainant: Mauricio Hercules)
FACTS:
1. On July 15, 2008, Mauricio Hercules ("Hercules") employed
Respondent to create three trusts for Hercules and his family, create a limited
liability company ("LLC") for Hercules’s sole proprietorship
business, New Bosworth Market, prepare a lease agreement for the LLC that was
to be formed, update corporate records for a corporation owned by Hercules and
his wife, prepare corporate tax returns for 2006 and 2007, and prepare a
personal tax return for Hercules for 2007.
2. Hercules provided Respondent with corporate records and other documents Respondent
requested to perform the legal services for Hercules.
3. On July 16, 2008, Hercules paid Respondent $23,500 as advanced fees.
4. Thereafter, Respondent did not create a LLC, update corporate records,
prepare corporate returns for 2006 and 2007, or prepare a 2007 personal tax
return for Hercules.
5. Respondent prepared a lease agreement for Hercules, but because the LLC
was never created by Respondent, the stated parties to the lease were not in
compliance with Hercules’ instructions.
6. Prior to October 6, 2011, Hercules terminated Respondent’s services.
7. On October 6, 2011, Hercules met with Respondent and requested that
Respondent return Hercules’s corporate records.
8. In late December 2011, Hercules’ new attorney first requested that
Respondent provide him with Hercules’ corporate records. Not until April 4,
2012, did Respondent provided Hercules’ entire file to the new attorney.
9. Respondent did not complete the work he had agreed to perform for
Hercules, Respondent did not refund any of the $23,500 advanced fees paid by
Hercules.
CONCLUSIONS OF LAW:
10. By not creating an LLC, not updating the corporate records, not
preparing the corporate tax returns for 2006 and 2007, and not preparing a
personal tax return for Hercules, and preparing a lease agreement not in
compliance with the instructions of his client, Respondent recklessly failed to
perform legal services with competence in willful violation of Rules of
Professional Conduct, rule 3-110(A).
11. By not returning Hercules’s client papers to Hercules for six months
after Respondent was terminated and after Hercules requested the return of his
corporate records, Respondent failed to release promptly, upon termination of
employment, to the client, at the request of the client, all client papers and
property in wilful violation of Rules of Professional Conduct, rule
3-700(D)(1).
12. By not refunding any part the $23,500 advance fee paid by Hercules,
Respondent failed to refund promptly part of a fee paid in advance that had not
been earned in wilful violation of Rules of Professional Conduct, rule
3-700(D)(2).
Case No. 12-O-11998 (Complainant: Rick Medina)
FACTS:
13. On January 23, 2012, Rick Medina ("Medina") hired Respondent
to represent him in a marital dissolution matter that had been filed in 2006.
Respondent had Medina sign a substitution of attorney substituting Respondent
in place of Medina’s former attorney.
14. Medina paid Respondent $3,000 as advanced fees for the marital
dissolution matter, and provided Respondent with documents relating to the
dissolution matter as requested by Respondent.
15. Thereafter, Respondent took no steps to represent Medina in the marital
dissolution, including not filing the substitution of attorney which both
Respondent and Medina executed. Respondent did not earn any of the $3,000 paid
to him.
16. Between approximately May 1, 2012, and August 2, 2012, Medina called
Respondent on numerous occasions to determine the status of his case, leaving
messages for Respondent to return his calls. Respondent received the messages,
but did not return Medina’s calls.
17. By letter dated August 2, 2012, Medina terminated Respondent as his
attorney, requested a refund of the $3,000 paid to Respondent, and requested
that Respondent return his file materials. Respondent received the August 2,
2012 letter shortly after it was sent, but did not refund unearned fees or
return Medina’s file.
18. On August 27, 2012, Medina filed a complaint against Respondent with
the State Bar. By letter dated September 28, 2012, a State Bar investigator
summarized Medina’s complaint and requested that Respondent provide a written
response to Medina’s allegations. Respondent received the September 28, 2012
letter shortly after it was sent, but never responded in writing to the letter.
19. It was not until August 2, 2013 that Respondent returned the $3,000
paid by Medina and Medina’s file.
CONCLUSIONS OF LAW:
20. By not taking any steps to represent Medina in the marital dissolution,
Respondent recklessly failed to perform legal services with competence in
wilful violation of Rules of Professional Conduct, rule 3-110(A).
21. By not refunding any portion of the $3,000 in unearned fees until
August 2, 2013, Respondent failed to refund promptly any part of a fee paid in
advance that has not been earned in wilful violation of Rules of Professional
Conduct, rule 3-700(D)(2).
22. By not returning Medina’s file documents until August 2, 2013,
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
wilful violation of Rules of Professional Conduct, rule 3-700(D)(1).
23. By not providing a written response to the investigator’s letter
regarding Medina’s complaint, Respondent failed to cooperate and participate in
a disciplinary investigation pending against Respondent in violation of
Business and Professions code, section 6068(i).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): Respondent has one prior
record of discipline. Effective February 20, 1998, Respondent was privately
reproved (public disclosure) with a one-year period of compliance with
conditions including attendance at State Bar Ethics School and compliance with
the terms of his criminal probation, for violation of Business and Professions
Code section 6068(a) by violation of Penal Code section 242 (battery).
Respondent was convicted by plea of nolo contendere to a misdemeanor violation
of Penal Code section 242 which occurred in 1996. Respondent did not commit the
battery in the course of his practice of law.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent violated Rules of
Professional Conduct 3-110(A), 3-700(D)(1), and 3-700(D)(2) in two unrelated
client matters. In addition, Respondent violated Business and Professions Code
section 60680) in connection with the investigation of one of the client
complaints. Respondent’s multiple acts Of misconduct constitute an aggravating
factor pursuant to Standard 1.2(b)(ii).
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 (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 seven acts of professional misconduct (two
violations each of Rules of Professional Conduct 3-110(A), 3-700(D)(1), and
3-700(D)(2), and one violation of Business and Professions Code section
6068(i)). 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(i).
Standard 2.6(a) for a violation of Business and Professions Code section
6068 provides that culpability "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 .... " Here, Respondent committed multiple violations in two client
matters and he failed to cooperate in the State Bar’s investigation. Such
misconduct is serious and mandates a higher level of discipline, especially in
light of Respondent’s prior private reproval. In mitigation, Respondent has
recently refunded Medina’s advanced fees of $3,000, returned Medina’s papers,
and initiated fee arbitration proceedings with Hercules over the disputed
$23,500 advance fee paid for work which was not completely performed.
Therefore, the harm to the victims of Respondent’ s misconduct has been addressed.
Standard 1.7(a) provides that if a member has a record of one prior
imposition of discipline, "[T]he degree of discipline imposed in the
current proceeding shall be greater than that imposed in the prior proceeding
unless the prior discipline was so remote in time to the current proceeding and
the offense for which it was imposed was so minimal in severity that imposing
greater discipline in the current proceeding would be manifestly unjust."
Respondent’s prior discipline, a private reproval, was imposed as a result
of Respondent being convicted of violating Penal Code section 242 (battery).
Although Respondent’s misconduct was remote in time, and unrelated to the
practice of law, it was not minimal in severity. Consequently, under standard
1.7(a), it is appropriate to impose.in this case to impose the greater
discipline of a stayed suspension.
In the Matter of Brockway (Review Dept. 2006) 4 State Bar Ct. Rptr. 944, is
instructive. In Brockway, the attorney failed to perform and refund unearned
fees in four client matters. He also committed acts of moral turpitude by
overreaching and had a prior record of discipline for misappropriation and
acquiring an adverse interest against a client. The attorney received an actual
suspension of two years and until he provided proof satisfactory to the State
Bar Court of his rehabilitation.
Respondent’s misconduct is less egregious than in Brockway since it was
limited to two clients and did not include moral turpitude. Furthermore,
Respondent’s prior discipline was a private reproval resulting from misconduct
unrelated to the practice of law.
Balancing all of the appropriate factors, a one-year stayed suspension with
two years’ probation is consistent with the Standards and case law, and
achieves the purposes of discipline as expressed in standard 1.3.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged
violations in the interest of justice:
Case No. Count Alleged
Violation
12-O-16427 Four Rule
3-110(A)
12-O-16427 Five Rule
3-700(D)(2)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has
informed Respondent that as of August 5, 2013, the prosecution costs in this
matter are $8,010.43. 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.
FEE ARBITRATION CONDITIONS OF PROBATION:
A. Respondent’s Duty to Participate in Fee Arbitration
Respondent has initiated fee arbitration. The fee arbitration is for the
$23,500 in fees that Mauricio Hercules paid Respondent on July 16, 2008.
Respondent must not request more fees than have already been paid by, or on
behalf of, Mauricio Hercules.
Respondent must immediately provide the Office of Probation with any
information requested regarding the fee arbitration to verify Respondent’s
compliance.
Respondent must fully and promptly participate in the fee arbitration as
directed by the organization conducting the fee arbitration. Respondent will
not be permitted to raise the statute of limitations as a defense to the fee
arbitration. Respondent understands and agrees that the Office of Probation may
contact the entity conducting the fee arbitration for information. Respondent
must accept binding arbitration on the arbitration request form. If the
arbitration proceeds as non-binding, however, Respondent must abide by the
arbitration award and forego the right to file an action seeking a trial de novo
in court to vacate the award.
B. Disputed Funds Must be Held in Trust by Respondent
Respondent must keep the disputed funds in a separate interest-bearing
trust account (not an IOLTA). If Respondent has removed the disputed funds from
trust, Respondent must open a separate interest bearing trust account and
deposit the disputed funds into such account within fifteen (15) days from the
effective, date of discipline. Respondent must provide evidence, e.g. a copy of
Respondent’ s bank statement showing that the disputed funds have been placed
in trust within thirty (30) days from the effective date of this matter, and a
statement under penalty of perjury that the funds have remained in trust with
each of Respondent’s quarterly and final reports.
C. Respondent’s Duty to Comply with the Arbitration Award
Within fifteen (15) days after issuance of any arbitration award or
judgment or agreement reflected in a stipulated award issued pursuant to a fee
arbitration matter, Respondent must provide a copy of said award, judgment or
stipulated award to the Office of Probation.
Respondent must abide by any award, judgment or stipulated award of any
such fee arbitrator and agrees to provide proof thereof to the Office of
Probation within thirty (30) days after compliance with any such award,
judgment or stipulated award. If the award, judgment or stipulated award does
not set forth a deadline for any payment, Respondent is to make full payment
within thirty (30) days of the issuance of any such award, judgment or
stipulated award. Respondent must provide proof thereof to the Office of
Probation within thirty (30) days after payment.
To the extent that Respondent has paid any fee arbitration award, judgment
or stipulated award prior to the effective date of this matter, Respondent will
be given credit for such payment(s) provided satisfactory proof of such
payment(s) is or has been provided to the Office of Probation.
D. Fee Arbitration Conditions can be Satisfied by Respondent’s Full Payment
to Mauricio Hercules
The Fee Arbitration Conditions can also be satisfied by Respondent’s full
payment of $23,500 in fees that Mauricio Hercules paid Respondent on July 16,
2008, plus interest of 10% per annum from within thirty (30) days from the
effective date of this matter. Satisfactory proof of payment must be received
by the Office of Probation within forty-five (45) days from the effective date
of this matter.
If the Client Security Fund ("CSF") has reimbursed Mauricio
Hercules for all or any portion of the principal amount(s), Respondent must
also pay restitution to CSF in the amount(s) paid, plus applicable interest and
costs. To the extent the CSF has paid only principal amounts, Respondent will
still be liable for interest payments to Mauricio Hercules. Any restitution to
the CSF is enforceable as provided in Business and Professions Code section
6140.5, subdivisions (c) and (d). Respondent must pay all restitution to
Mauricio Hercules before making payment to CSF. Satisfactory proof of
payment(s) to CSF must be received by the Office of Probation within thirty
(30) days of any payment.
E. Effect of Respondent’s Failure to Comply with Fee Arbitration Conditions
Respondent understands that failure to strictly comply with these
conditions regarding fee arbitration may result in this Court imposing
additional discipline (with attendant costs) and conditions upon Respondent,
including ordering Respondent to pay back the full amount of $23,500 paid to
Respondent by Mauricio Hercules plus 10% interest from July 16, 2008.
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-11559, 12-O-11998, 12-O-16427
In the Matter of: DONALD MAH
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: DONALD MAH
Date: 8/6/13
Respondent’s Counsel: William S. Reustle
Date: 8/6/13
Deputy Trial Counsel: Sherrie B. McLetchie
Date: 8/6/13
STAYED SUSPENSION ORDER
Case Number(s): 12-O-11559, 12-O-11998, 12-O-16427
In the Matter of: DONALD MAH
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, the following paragraph number 9.5 is
inserted after paragraph 9:
9.5 Even though respondent did not complete all of the work he agreed to
perform for Hercules, respondent did perform significant services. Respondent
completed three complicated trusts for Hercules and his family. Thus, at least
a significant portion of the charged rule 3 700(D)(2) violation in the Hercules
matter is in the nature of a fee dispute. As the review department aptly noted
in In the Matter bf Respondent H (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr.
234, 237, "a disciplinary proceeding is seldom the proper forum for
attorney fee disputes." A fee arbitration provision is set forth post.
At the bottom of page 10 and the top of page 11 of the stipulation, the
paragraph that begins "In the Matter of Brockway (Review Dept. 2006) 4
Cal. State Bar Ct. Rptr. 944, is instructive," is DELETED in its entirety;
and the following three paragraphs are INSERTED in its place:
In the Matter of Hanson (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 703
is instructive on the issue of discipline in the present case. Hanson
represents a typical case revealing culpability of failure to return promptly
unearned fees (Rules Prof. Conduct, rule 3 700(D)(2)) and also in the same
client matter of failing to avoid prejudice to his client after discharge
(Rules Prof. Conduct, rule 3 700(A)(2)). The attorney in Hanson was publicly
reproved and required to complete the State Bar’s ethics school because he did
not refund an unearned advanced fee for about 15 months after his employment
was terminated and after the State Bar became involved. The were no mitigating
circumstances in Hanson. In aggravation, the attorney had a prior private
reproval.
In Hanson, the review department reviewed a number of other cases involving
generally similar types of misconduct and found the discipline in those cases
ranging between private reproval and stayed suspension. (In the Matter of
Hanson, supra, 2 Cal. State Bar Ct. Rptr. at p. 713.)
Hulland v. State Bar (1972) 8 Cal.3d 440, a case involving discipline
solely for an offense involving attorney fees, is also worth noting. In
Hulland, the attorney was publicly reproved because, after the attorney failed
to perform the legal services for which he was retained, the attorney attempted
to collect a fee he did not earn by using a confession of judgment. (Id. at p.
448.)
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: Pat McElroy
Date: 9/5/13
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 San Francisco, on September
5, 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:
WILLIAM STEER REUSTLE
609 JEFFERSON ST STE. G-1
FAIRFIELD, CA 94533
<<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:
SHERRIE B. McLETCHIE, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San
Francisco, California, on September 5, 2013.
Signed by:
Bernadette Molina
Case Administrator
State Bar Court