State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER
APPROVING
ACTUAL SUSPENSION
Case Number(s): 12-O-12091; 12-O-16312; 13-H-15082
In the Matter of: JOSEPH SCLAFANI, Bar # 134026, A Member
of the State Bar of California, (Respondent).
Counsel For The State Bar: William Todd, Bar # 259194,
Counsel for Respondent: Joseph Sclafani, Bar # 134026,
Submitted to: to: Settlement Judge.
Filed: October 18, 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 June 14,
1988.
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 16 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):
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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: the three 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.
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checked. Costs are waived in part as set forth in a separate attachment
entitled "Partial Waiver of Costs".
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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)]
<<not>> checked. (a) State Bar Court case # of prior case 10-O-06776
<<not>> checked. (b) Date prior discipline effective April
24, 2013.
<<not>> checked. (c) Rules of Professional Conduct/ State
Bar Act violations: Rules of Professional Conduct rule 3-110(A) (failure to
perform) and 3-700(D)(2) (failure to refund unearned fees). Please see
"Attachment to Stipulation," page 12.
<<not>> checked. (d) Degree of prior discipline Private
reproval
<<not>> checked. (e) If Respondent has two or more incidents
of prior discipline, use space provided below. .
<<not>> checked. (2) Dishonesty: Respondent's misconduct
was surrounded by or followed by bad faith, dishonesty, concealment,
overreaching or other violations of the State Bar Act or Rules of Professional
Conduct.
<<not>> checked. (3) Trust Violation: Trust funds or
property were involved and Respondent refused or was unable to account to the
client or person who was the object of the misconduct for improper conduct
toward said funds or property.
checked. (4) Harm: Respondent's misconduct harmed significantly a
client, the public or the administration of justice. Please see
"Attachment to Stipulation," page 13.
<<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. Please see "Attachment to Stipulation," page 13.
<<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.
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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.
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checked. (2) No Harm: Respondent did not harm the client or person who was
the object of the misconduct.
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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.
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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.
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checked. (5) Restitution: Respondent paid $ on in restitution to without
the threat or force of disciplinary, civil or criminal proceedings.
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checked. (6) Delay: These disciplinary proceedings were excessively
delayed. The delay is not attributable to Respondent and the delay prejudiced
him/her.
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checked. (7) Good Faith: Respondent acted in good faith.
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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.
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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.
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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.
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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.
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checked. (12) Rehabilitation: Considerable time has passed since the acts of
professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
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checked. (13) No mitigating circumstances are involved.
Additional mitigating
circumstances: Please see "Pre-Trial
Stipulation" in "Attachment to stipulation," page 13.
D. Discipline:
checked. (1) Stayed Suspension:
checked. (a) Respondent must be suspended from the practice of law for a
period of two years .
<<not>> checked. i. and until Respondent shows proof satisfactory
to the State Bar Court of rehabilitation and present fitness to practice and
present learning and ability in the law pursuant to standard 1.4(c)(ii)
Standards for Attorney Sanctions for Professional Misconduct.
<<not>> checked. ii. and until Respondent pays restitution as
set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following:
.
checked. (b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on probation for a
period of three years , which will commence upon the effective date of the
Supreme Court order in this matter. (See rule 9.18, California Rules of Court.)
checked. (3) Actual Suspension:
checked. (a) Respondent must be actually suspended from the practice of law
in the State of California for a period of six months.
<<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
checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following:
.
E. Additional Conditions of Probation:
checked.
(1) If Respondent is actually suspended for two years or more,
he/she must remain actually suspended until he/she proves to the State Bar
Court his/her rehabilitation, fitness to practice, and learning and ability in
the general law, pursuant to standard 1.4(c)(ii), Standards for Attorney
Sanctions for Professional Misconduct.
checked.
(2) During the probation period, Respondent must comply with
the provisions of the State Bar Act and Rules of Professional Conduct.
checked.
(3) Within ten (10) days of any change, Respondent must report
to the Membership Records Office of the State Bar and to the Office of
Probation of the State Bar of California ("Office of Probation"), all
changes of information, including current office address and telephone number,
or other address for State Bar purposes, as prescribed by section 6002.1 of the
Business and Professions Code.
checked.
(4) Within thirty (30) days from the effective date of
discipline, Respondent must contact the Office of Probation and schedule a
meeting with Respondent's assigned probation deputy to discuss these terms and
conditions of probation. Upon the direction of the Office of Probation,
Respondent must meet with the probation deputy either in-person or by
telephone. During the period of probation, Respondent must promptly meet with
the probation deputy as directed and upon request.
checked.
(5) Respondent must submit written quarterly reports to the Office
of Probation on each January 10, April
10, July 10, and October 10 of the period of
probation. Under penalty of perjury, Respondent must state whether Respondent
has complied with the State Bar Act, the Rules of Professional Conduct, and all
conditions of probation during the preceding calendar quarter. Respondent must
also state whether there are any proceedings pending against him or her in the
State Bar Court and if so, the case number and current status of that
proceeding. If the first report would cover less than 30 days, that report must
be submitted on the next quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same
information, is due no earlier than twenty (20) days before the last day of the
period of probation and no later than the last day of probation.
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checked. (6) Respondent must be assigned a probation monitor. Respondent must
promptly review the terms and conditions of probation with the probation
monitor to establish a manner and schedule of compliance. During the period of
probation, Respondent must furnish to the monitor such reports as may be
requested, in addition to the quarterly reports required to be submitted to the
Office of Probation. Respondent must cooperate fully with the probation
monitor.
checked.
(7) Subject to assertion of applicable privileges, Respondent
must answer fully, promptly and truthfully any inquiries of the Office of
Probation and any probation monitor assigned under these conditions which are
directed to Respondent personally or in writing relating to whether Respondent
is complying or has complied with the probation conditions.
checked.
(8) Within one (1) year of the effective date of the
discipline herein, Respondent must provide to the Office of Probation
satisfactory proof of attendance at a session of the Ethics School, and passage
of the test given at the end of that session.
<<not>> checked. No Ethics School recommended. Reason: .
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checked. (9) Respondent must comply with all conditions of probation imposed
in the underlying criminal matter and must so declare under penalty of perjury
in conjunction with any quarterly report to be filed with the Office of
Probation.
checked.
(10) The following conditions are attached hereto and
incorporated:
<<not>> checked. Substance Abuse Conditions.
<<not>> checked. Law Office Management Conditions.
<<not>> checked. Medical Conditions.
checked. Financial Conditions.
F. Other Conditions Negotiated by the Parties:
checked. (1) Multistate Professional Responsibility
Examination: Respondent must provide proof of passage of the Multistate
Professional Responsibility Examination ("MPRE"), administered by the
National Conference of Bar Examiners, to the Office of Probation during the period
of actual suspension or within one year, whichever period is longer. Failure
to pass the MPRE results in actual suspension without further hearing until
passage. But see rule 9.10(b), California Rules of Court, and rule 5.162(A)
& (E), Rules of Procedure.
<<not>> checked. No MPRE recommended. Reason: .
checked. (2) Rule 9.20, California Rules of Court:
Respondent must comply with the requirements of rule 9.20, California Rules of
Court, and perform the acts specified in subdivisions (a) and (c) of that rule
within 30 and 40 calendar days, respectively, after the effective date of the
Supreme Court's Order in this matter.
<<not>> checked. (3) Conditional Rule 9.20, California
Rules of Court: If Respondent remains actually suspended for 90 days or more,
he/she must comply with the requirements of rule 9.20, California Rules of
Court, and perform the acts specified in subdivisions (a) and (c) of that rule
within 120 and 130 calendar days, respectively, after the effective date of the
Supreme Court's Order in this matter.
<<not>> checked. (4) Credit for Interim Suspension
[conviction referral cases only]: Respondent will be credited for the period
of his/her interim suspension toward the stipulated period of actual
suspension. Date of commencement of interim suspension: .
checked. (5) Other
Conditions: Conditions: FEE ARBITRATION CONDITIONS OF PROBATION
A. Respondent’s Duty to Initiate and Participate in Fee
Arbitration
As
a condition of probation, Respondent must initiate fee arbitration within
thirty (30) days from the effective date of this matter, including making any
payment(s) and filing fees required by the organization conducting the fee
arbitration to start the process. The fee arbitration will be for the $6,200 in
fees that Desiree and Eric Naujock paid Respondent in October and November of
2011. Respondent must not request more fees than have already been paid by, or
on behalf of, Desiree and Eric Naujock.
Respondent
must provide the Office of Probation with a copy of the conformed filing within
six months from the effective date of this matter. 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
As
a condition of probation, 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
Desiree and Eric Naujock
The
Fee Arbitration Conditions can also be satisfied by Respondent’s full payment
of $6,200 in fees that Desiree and Eric Naujock paid Respondent in October and
November 2011, plus interest of 10% per annum from November 26, 2011 within six
months from the effective date of this matter. Satisfactory proof of payment
must be received by the Office of Probation within seven months from the
effective date of this matter.
If
the Client Security Fund ("CSF") has reimbursed Desiree and Eric
Naujock 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 Desiree and Eric Naujock. 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 Desiree and Eric Naujock 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 $6,200 paid to Respondent by Desiree and Eric
Naujock plus 10% interest from November 26, 2011.
Attachment language (if any):.
FINANCIAL CONDITIONS
Case Number(s): 12-O-12091,
et al.
In the Matter of: JOSEPH SCLAFANI
a. Restitution
checked. Respondent must pay restitution
(including the principal amount, plus interest of 10% per annum) to the
payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one
or more of the payee(s) for all or any portion of the principal amount(s) listed
below, Respondent must also pay restitution to CSF in the amount(s) paid, plus
applicable interest and costs.
1. Payee: Eric and Desiree Naujock
Principal
Amount: $410
Interest
Accrues From: November 26, 2011
2. Payee: Hajime Shimizu
Principal Amount:
$1,500
Interest
Accrues From: June 7, 2012
3. Payee: Darlene Gomez
Principal
Amount: $2,500
Interest
Accrues From: July 13, 2012
4. Payee:
Principal
Amount:
Interest
Accrues From:
checked. Respondent must pay above-referenced
restitution and provide satisfactory proof of payment to the Office of
Probation not later than Pursuant to the actual suspension provision on page 4,
Respondent will remain suspended until he pays restitution in full.
b. Installment Restitution Payments
<<not>> checked. Respondent must pay
the above-referenced restitution on the payment schedule set forth below.
Respondent must provide satisfactory proof of payment to the Office of
Probation with each quarterly probation report, or as otherwise directed by the
Office of Probation. No later than 30 days prior to the expiration of the
period of probation (or period of reproval), Respondent must make any necessary
final payment(s) in order to complete the payment of restitution, including
interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment
Amount
Payment
Frequency
2. Payee/CSF (as applicable)
Minimum Payment
Amount
Payment
Frequency
3. Payee/CSF (as applicable)
Minimum Payment
Amount
Payment
Frequency
4. Payee/CSF (as applicable)
Minimum Payment
Amount
Payment
Frequency
<<not>> checked. If Respondent fails
to pay any installment as described above, or as may be modified by the State
Bar Court, the remaining balance is due and payable immediately.
c. Client Funds Certificate
<<not>> checked.
1. If Respondent
possesses client funds at any time during the period covered by a required
quarterly report, Respondent must file with each required report a certificate
from Respondent and/or a certified public accountant or other financial
professional approved by the Office of Probation, certifying that:
a. Respondent has
maintained a bank account in a bank authorized to do business in the State of
California, at a branch located within the State of California, and that such
account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has
kept and maintained the following:
i. A written
ledger for each client on whose behalf funds are held that sets forth:
1. the name of such
client;
2. the date, amount
and source of all funds received on behalf of such client;
3. the date,
amount, payee and purpose of each disbursement made on behalf of such client;
and,
4. the current
balance for such client.
ii. a written
journal for each client trust fund account that sets forth:
1. the name of such
account;
2. the date, amount
and client affected by each debit and credit; and,
3. the current
balance in such account.
iii. all bank
statements and cancelled checks for each client trust account; and,
iv. each monthly
reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any
differences between the monthly total balances reflected in (i), (ii), and
(iii), above, the reasons for the differences.
c. Respondent has
maintained a written journal of securities or other properties held for clients
that specifies:
i. each item of
security and property held;
ii. the person on
whose behalf the security or property is held;
iii. the date of
receipt of the security or property;
iv. the date of
distribution of the security or property; and,
v. the person to
whom the security or property was distributed.
2. If Respondent
does not possess any client funds, property or securities during the entire
period covered by a report, Respondent must so state under penalty of perjury
in the report filed with the Office of Probation for that reporting period. In
this circumstance, Respondent need not file the accountant’s certificate
described above.
3. The requirements
of this condition are in addition to those set forth in rule 4-100, Rules of
Professional Conduct.
d. Client Trust Accounting School
checked. Within one (1) year of
the effective date of the discipline herein, Respondent must supply to the
Office of Probation satisfactory proof of attendance at a session of the Ethics
School Client Trust Accounting School, within the same period of time, and
passage of the test given at the end of that session.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND
DISPOSITION
IN THE MATTER OF: JOSEPH SCLAFANI, State Bar No.
134026
STATE BAR COURT CASE NUMBER: 12-O-12091,12-O-16312,13-H-15082
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 Rules
of Professional Conduct.
Case No. 12-O-12091 (Complainants: Desiree and
Eric Naujock)
FACTS:
1. On October 23, 2011, Erik and Desiree Naujock
(collectively, the "Naujocks") employed Respondent to file a civil
complaint against their mortgage lender, and by November 26, 2011 the Naujocks
paid Respondent $6,200 in advanced attorney fees. The Naujocks also issued a
check to Respondent in the sum of $410, which was designated for court filing
fees. Respondent never met with the Naujocks after his initial meeting with
them on October 23, 2011.
2. Between October 24, 2011 and February 6, 2012,
the Naujocks telephoned Respondent at his office telephone number and each time
left messages on Respondent’s voicemail asking to schedule a meeting to discuss
the status of their case. The Naujocks also sent e-mail and text messages to Respondent.
Respondent received the voicemail, e-mail, and text messages, but did not
respond to most of them. When he did respond, Respondent did not arrange a
meeting with the Naujocks and never provided them with a substantive response
to their inquiries about their case.
3. On February 6, 2012, the Naujocks terminated
Respondent’s services in a letter sent to him by U.S. Mail. They also demanded
an accounting and a refund of the advanced attorney fees and costs that they
paid to him.
4. Respondent never filed a civil complaint on
behalf of the Naujocks’ against their mortgage lender. Respondent never
provided the Naujocks with an accounting of the advanced attorney fees and
costs that they paid to him, instead claiming that all fees had been earned.
Respondent never provided the Naujocks with a refund of any portion of the $410
in advanced court costs, even though Respondent never incurred any court filing
fees on the Naujocks’ behalf while he represented them.
CONCLUSIONS OF LAW:
5. By failing to file a complaint against the
Naujocks’ lender, Respondent intentionally, recklessly, or repeatedly failed to
perform legal services with competence in willful violation of Rules of
Professional Conduct, rule 3-110(A).
6. By failing to substantively respond to the Naujocks’
status inquiries, Respondent failed to respond promptly to reasonable status
inquiries of a client in a matter in which Respondent had agreed to provide
legal services in willful violation of Business and Professions Code, section
6068(m).
7. By failing to provide the Naujocks with an
accounting of the advanced fees and costs that they paid to him, Respondent
failed to render appropriate accounts to a client regarding all funds coming
into Respondent’s possession in willful violation of Rules of Professional
Conduct, rule 4-100(B)(3).
8. By failing to return the $410 that the
Naujocks paid to him for court filing fees, Respondent failed to pay promptly,
as requested by a client, any funds in Respondent’s possession which the client
is entitled to receive in willful violation of Rules of Professional Conduct,
rule 4-100(B)(4).
Case No. 12-O-16312 (Complainant: Darlene Gomez)
FACTS:
9. On July 13, 2012, Darlene Gomez employed
Respondent to represent her adult son, Daniel Gomez, in a criminal matter. Darlene
Gomez paid Respondent $2,500 in advanced attorney fees and advised Respondent
that the next court appearance in her son’s matter was set for August 15, 2012.
10. On August 15, 2012, Respondent failed to
appear at Daniel Gomez’s hearing. In the week after the hearing, Darlene Gomez
telephoned Respondent and left messages for him. Respondent received the
messages but did not respond to them, and he never communicated with Darlene
Gomez after July 13, 2012. Also, Respondent never communicated with Daniel Gomez.
11. Respondent failed to obtain Daniel Gomez’s
written consent to Respondent’s acceptance of compensation from Darlene Gomez.
Respondent did not perform any services of value on behalf of Daniel Gomez, yet
he also failed to provide Darlene Gomez with a refund of any portion of the
unearned, advanced attorney fees she paid to Respondent for his representation
of Daniel Gomez. Darlene Gomez was forced to hire another attorney to defend
her son at additional cost without the benefit of a refund from Respondent.
12. On August 23, 2012, Darlene Gomez made a
complaint against Respondent with the State Bar. On September 20, 2012 and
October 5, 2012, a State Bar investigator sent letters to Respondent requesting
a written response to the allegations of misconduct raised by Darlene Gomez’s
complaint by October 4, 2012 and October 18, 2012, respectively. Respondent
received the letters. Respondent failed to respond to the investigator’s
letters or otherwise cooperate in the disciplinary investigation arising from
Respondent’s misconduct in the Darlene Gomez matter.
CONCLUSIONS OF LAW:
13. By failing to secure Daniel Gomez’s written
consent to Respondent’s acceptance of compensation from Darlene Gomez on Daniel
Gomez’s behalf, Respondent accepted compensation for representing a client from
one other than the client without obtaining the client’s informed written
consent in willful violation of Rules of Professional Conduct, rule 3-310(F).
14. By failing to refund the unearned, advanced
attorney fees that Darlene Gomez paid to him for his representation of Daniel
Gomez, Respondent failed to refund promptly any part of a fee paid in advance
that has not been earned in willful violation of Rules of Professional Conduct,
rule 3-700(D)(2).
15. By failing to respond to the investigator’s
letters, Respondent failed to cooperate and participate in a disciplinary
investigation pending against him in willful violation of Business and
Professions Code, section 6068(i).
Case No. 13-H-15082 (State Bar Investigation)
FACTS:
16. Effective April 24, 2012, the State Bar Court
privately reproved Respondent pursuant to a stipulation between Respondent and
the State Bar in case no. 10-O-06776, and required him to comply with
conditions attached to the reproval for a period of one year.
17. One of the conditions of the reproval
required that Respondent submit quarterly reports to the Office of Probation
for each January 10, April 10, July 10 and October 10 during the reproval
period. Respondent also was required to submit a final report on April 24,
2013, the expiration of the reproval period. Another condition of the reproval
required that Respondent pay $1,500 in restitution, plus interest, to former
client Hajime Shimizu ("Shimizu"). A further condition of the
reproval required Respondent attend State Bar Ethics School and pass the exam
given at the end of the session by April 24, 2013. Respondent was also required
to pass the Multistate Professional Responsibility Examination
("MPRE") by April 24, 2013.
18. Respondent failed to submit the quarterly
reports due on October 10, 2012, January 10, 2013, and April 10, 2013, and he
failed to submit the final report due on April 24, 2013. Respondent also failed
to pay the full amount of restitution owed to Shimizu, failed to attend State
Bar Ethics School and failed to take and pass the MPRE.
19. In June 2012, Respondent made one payment to
Shimizu in the amount of $382, an amount sufficient to satisfy interest accrued
to that date. Respondent has made no other attempts to satisfy the restitution requirement.
CONCLUSIONS OF LAW:
20. By failing to submit quarterly reports on
October 10, 2012, January 10, 2013 and April 10, 2013, failing to submit a
final report on April 24, 2013, failing to satisfy the restitution requirement,
failing to attend State Bar Ethics School and pass the exam at the end of the
session and failing to take and pass the MPRE, Respondent failed to comply with
reproval conditions in willful violation of Rules of Professional Conduct, rule
1-110.
AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)):
Respondent has a prior record of discipline. Effective April 24, 2012,
Respondent was privately reproved for misconduct committed in 2012 involving a
single client and consisting of violations of rule 3-110(A) of the Rules of
Professional Conduct (failure to perform), and rule 3-700(D)(2) (failure to
refund unearned fees). Respondent’s prior record of discipline is an
aggravating circumstance. (In the Matter of Downey (Review Dept. 2009) 5 Cal.
State Bar Ct. Rptr. 151, 156.)
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): In
two client matters, Respondent has committed multiple violations of the Rules
of Professional Conduct and the State Bar Act, including failing to: (1)
perform on behalf of a client; (2) return unearned fees and client funds to a
client; (3) obtain the written consent of his client to accept compensation
from a third party; (4) communicate adequately with his client. In addition,
Respondent failed to comply with multiple conditions attached to a private
reproval. The commission of multiple acts of misconduct is an aggravating
circumstance. (In the Matter of Conner (Review Dept. 2008) 5 Cal. State Bar Ct.
Rptr. 93, 105.
Harm (Std. 1.2(b)(iv)): By failing to return the
unearned attorney fees that he owes to Darlene Gomez and Hajime Shimizu,
Respondent has caused financial harm to each of them. Harm to a client is an
aggravating circumstance. (See In the Matter of Casey (Review Dept. 2008) 5
Cal. State Bar Ct. Rptr. 117; Std. 1.2(b)(iv).)
MITIGATING CIRCUMSTANCES.
Pretrial Stipulation: Respondent has agreed to
enter into a pre-trial stipulation, and thus is entitled to some mitigation.
(See Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079 [where mitigative
credit was given for entering into a stipulation as to facts and culpability].)
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 multiple 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 2.2(b) which applies to
Respondent’ s violation(s) of Rules of Professional Conduct 4-100. Standard
2.2(b) provides that 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
willful 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.
Here, in the Naujock matter, Respondent failed to
provide the Naujocks with an accounting of the advanced fees and costs that
they paid him and failed to return the unused advanced costs that they paid to
him in violation of rule 4-100(B)(3) and rule 4-100(B)(4), respectively. In
addition, Respondent failed to perform competently on behalf of the Naujocks
and frequently failed to respond to their inquiries. In the Gomez matter,
Respondent failed to obtain his client’s written consent before receiving funds
from a third party, failed to refund unearned fees and failed to cooperate in
the subsequent disciplinary investigation arising from this misconduct.
Respondent also failed to comply with multiple conditions attached to a prior
private reproval, including a failure to pay restitution to Shimizu, a former
client. The multiplicity of Respondent’s violations, as described above, is a
significant aggravating factor, as is the financial harm Respondent’s
misconduct caused Gomez and Shimizu. Finally, Respondent’s recent private
reproval is a significant aggravating factor.
Respondent’s misconduct is mitigated by his
willingness to enter into a pre-trial stipulation and his acknowledgement of
the misconduct that he committed, thereby saving the State Bar Court both the
time and expense of trial. However, the weight to be given to this mitigating
circumstance is tempered by Respondent’s failure to participate in the
disciplinary investigation of the Gomez matter. On balance, these mitigating
circumstances are not sufficiently compelling to warrant a deviation from standard
2.2(b), especially in light of the significant aggravating circumstances that
are also present.
In light of Respondent’s misconduct, standard
2.2(b), and the aggravating and mitigating circumstances, a discipline
consisting of a two-year suspension, stayed, a three-year probation and a
six-month actual suspension is appropriate and satisfies the purposes of
attorney discipline as described in standard 1.3.
Case law supports this level of discipline as
well. In Matthew v. State Bar (1989) 49 Cal.3d 784, an attorney with no prior
discipline in a brief period of practice received a 60-day actual suspension
for his failure to perform in three matters and a failure to refund unearned
fees in two matters. In Conroy v. State Bar (1990) 51 Cal.3d 799, the attorney
received a 60-day actual suspension for falling to complete a professional
responsibility exam as required by a reproval condition. Respondent’s
misconduct in this matter includes conduct similar to the misconduct in the
Matthew and Conroy cases, yet is additionally aggravated by multiple reproval
condition failures and the fact that Respondent committed the misconduct in the
Gomez matter during the reproval period. Therefore, a six-month actual
suspension, as agreed to herein, is consistent with both the standards and case
law.
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-12091 Four Rules
of Professional Conduct rule 3-700(D)(2)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the
Chief Trial Counsel has informed him that as of September 20, 2013, the
prosecution costs in this matter are $5,308. The costs are to be paid in equal
amounts prior to February 1 for the following three billing cycles following
the effective date of the discipline herein. 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 or State
Bar Client Trust Accounting School. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-12091, et al.
In the Matter of: JOSEPH SCLAFANI
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: JOSEPH SCLAFANI
Date: 9/25/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: William Todd
Date: 9/25/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-O-12091, et al.
In the Matter of: JOSEPH SCLAFANI
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: George E. Scott
Date: October 11, 2013
CERTIFICATE OF SERVICE
[Rules Proc. of State Bar; Rule 5.27(B); Code
Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court
of California. I am over the age of eighteen and not a party to the within
proceeding. Pursuant to standard court practice, in the City and County of Los
Angeles, on October 18, 2013, I deposited a true copy of the following
document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
AND
ORDER APPROVING
in a sealed envelope for collection and mailing
on that date as follows:
checked. by first-class mail, with postage
thereon fully prepaid, through the United States Postal Service at Los Angeles,
California, addressed as follows:
JOSEPH SCLAFANI
LAW OFFICES JOSEPH SCLAFANI
12981 PERRIS BLVD STE. 113
MORENO VALLEY, CA 92553
<<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:
William S. Todd, Enforcement, Los Angeles
I hereby certify that the foregoing is true and
correct. Executed in Los Angeles, California, on October 18, 2013.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court