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-12233-PEM

In the Matter of: James A. Nations Bar #229219 a Member of the State Bar of California, (Respondent).

Counsel for the State Bar: Heather E. Abelson Deputy Trial Counsel

180 Howard Street

San Francisco, CA 94105-1639

(415) 538-2357

Bar #243691

Counsel for Respondent: In Pro Per Respondent

James A. Nations

1070 Marina Village Parkway, #201

Alameda, CA 94501

(510) 301-4004

Bar # 229219

Submitted to: Settlement Judge, State Bar Court Clerk’s Office San Francisco

Filed: September 5, 2012

<<not>> checked. PREVIOUS STIPULATION REJECTED

Note:  All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.

A.  Parties' Acknowledgments:

1. Respondent is a member of the State Bar of California, admitted December 12, 2003.

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 12 pages, not including the order.

4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."

5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".

6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."

7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.

8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):

<<not>> checked. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.

checked Costs are to be paid in equal amounts prior to February 1 for the following membership years: over the next 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.

<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".

<<not>> checked. Costs are entirely waived.

B. Aggravating Circumstances [for definition, see Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts supporting aggravating circumstances are required.

<<not>> checked. (1) Prior record of discipline [see standard 1.2(f)]

<<not>> checked. (a)          State Bar Court case # of prior case

<<not>> checked. (b)          Date prior discipline effective

<<not>> checked. (c)           Rules of Professional Conduct/ State Bar Act violations:

<<not>> checked. (d)          Degree of prior discipline  

<<not>> checked. (e)          If Respondent has two or more incidents of prior discipline, use space provided                     below.

<<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.

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. 

<<not>> checked. (7) Multiple/Pattern of Misconduct:  Respondent's current misconduct evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct.

<<not>> checked. (8) No aggravating circumstances are involved.
Additional aggravating circumstances:

C.  Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating circumstances are required.

not>> checked. (1)         No Prior Discipline:  Respondent has no prior record of discipline over many years of practice coupled with present misconduct which is not deemed serious.

not>> checked. (2)         No Harm:  Respondent did not harm the client or person who was the object of the misconduct. 

not>> checked. (3)         Candor/Cooperation:  Respondent displayed spontaneous candor and cooperation with the victims of his/her misconduct and to the State Bar during disciplinary investigation and proceedings.

not>> checked. (4)         Remorse:  Respondent promptly took objective steps spontaneously demonstrating remorse and recognition of the wrongdoing, which steps were designed to timely atone for any consequences of his/her misconduct.

not>> checked. (5)         Restitution:  Respondent paid $   on   in restitution to   without the threat or force of disciplinary, civil or criminal proceedings.

not>> checked. (6)         Delay:  These disciplinary proceedings were excessively delayed.  The delay is not attributable to Respondent and the delay prejudiced him/her.

not>> checked. (7)         Good Faith:  Respondent acted in good faith.

not>> checked. (8)         Emotional/Physical Difficulties:  At the time of the stipulated act or acts of professional misconduct Respondent suffered extreme emotional difficulties or physical disabilities which expert testimony would establish was directly responsible for the misconduct.  The difficulties or disabilities were not the product of any illegal conduct by the member, such as illegal drug or substance abuse, and Respondent no longer suffers from such difficulties or disabilities.

<<not>> checked. (9)    Severe Financial Stress:  At the time of the misconduct, Respondent suffered from severe financial stress which resulted from circumstances not reasonably foreseeable or which were beyond his/her control and which were directly responsible for the misconduct.

<<not>> checked. (10) Family Problems:  At the time of the misconduct, Respondent suffered extreme difficulties in his/her personal life which were other than emotional or physical in nature.

<<not>> checked. (11) Good Character:  Respondent's good character is attested to by a wide range of references in the legal and general communities who are aware of the full extent of his/her misconduct.

<<not>> checked. (12) Rehabilitation:  Considerable time has passed since the acts of professional misconduct occurred followed by convincing proof of subsequent rehabilitation.

<<not>> checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances: No prior disciplinary history, but respondent’s misconduct is deemed serious. See "Mitigating Circumstances" in the attachment.

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: .

checked. (b) The above-referenced suspension is stayed.

checked. (2) Probation:  Respondent must be placed on probation for a period of one (1) year, which will commence upon the effective date of the Supreme Court order in this matter.  (See rule 9.18, California Rules of Court.)

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 3 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.

<<not>> 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:

<<not>> 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:

<<not>> checked. (5)         Other Conditions:

ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

IN THE MATTER OF: James A. Nations

CASE NUMBER(S): 12-0-12233

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-12233 (Complainant: Paul Jones)

FACTS:

1. On September 13,2011, Paul Jones ("Jones") employed respondent to represent him in a bankruptcy matter.

2. On September 13,2011, Jones paid respondent $2,000.00 in advance as attorney fees.

3. Respondent failed to take any action in the bankruptcy case that benefited Jones and failed to file a petition for bankruptcy on behalf of Jones. Respondent performed no services of value on behalf of Jones in the bankruptcy matter.

4. On November 28, 2011, Jones sent respondent a letter terminating his employment, and requesting a refund of the $2,000.00 advanced fee. Respondent received this letter shortly thereafter, but failed to respond.

5. On November 30, 2011, Jones sent respondent a text message requesting that respondent refund the $2,000.00. Respondent promptly received this text message, but failed to respond.

6. On December 6, 2011, Jones contacted respondent by telephone and asked for a refund of the $2,000.00. Respondent refused to refund the $2,000.00.

7. To date, respondent has not refunded any portion of the $2,000.00 in unearned fees to Jones, or provided an accounting to Jones for the advanced fees.

8. On January 23, 2012, Jones filed a complaint against respondent with the State Bar ("Jones Complaint").

9. On March 6, 2012, a State Bar Complaint Analyst sent respondent a letter requesting a written response to the allegations in the Jones Complaint. Respondent received this letter shortly after it was sent, but failed to respond.

10. On March 28, 2012 and May 2, 2012, a State Bar investigator sent letters to respondent requesting a written response to the allegations in the Jones Complaint. Respondent received both of these letters shortly after they were mailed, but failed to respond to them and failed to otherwise cooperate with, and failed to participate in, the State Bar investigation.

CONCLUSIONS OF LAW:

11. By failing to take any action in the bankruptcy case that benefited Jones, and by failing to file a petition for bankruptcy on behalf of Jones, respondent intentionally, recklessly, or repeatedly failed to perform legal service with competence in wilful violation of Rules of Professional Conduct, role 3-110(A).

12. By failing to make any refund to Jones of $2,000.00 in unearned fees, respondent failed to refund promptly any part of a fee paid in advance that has not been earned in violation of Rules of Professional Conduct, rule 3-700(D)(2).

13. By failing to provide" "one an accounting as to the $2,000.00 iv. Advanced fees, respondent failed to render appropriate accounts to a client regarding all funds coming into respondent’s possession in violation of Rules of Professional Conduct, rule 4-100(B)(3).

14. By failing to respond to the State Bar letters of March 6, March 28, and May 2, 2012, about the Jones Complaint, and failing to otherwise cooperate with the State Bar’s investigation of the instant matter, 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.

Harm: Respondent’s failure to refund unearned fees constitutes significant harm to Jones. (See e.g., In the Matter of Dixon (Review Dep’t 1999) 4 Cal. State Bar Rptr. 23, 45.)

Indifference: Respondent’s refusal to refund the $2,000.00 advanced fee to Jones demonstrates indifference. (See e.g., In the Matter of Hunter (Review Dep’t 1994) 3 Cal. State Bar Rptr. 63, 75.)

ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.

No Prior Discipline: Although respondent was admitted to the State Bar in December 2003, and has no prior record of discipline, respondent is entitled to minimal mitigation because his misconduct is deemed serious.

AUTHORITIES SUPPORTING DISCIPLINE.

The court looks first to the Standards when setting discipline; the Standards are to be given great weight and followed wherever possible. In re Silverton (2005) 36 Cal.4th 81, 91-92; In the Matter of Sullivan (Review Dep’t 2010) 5 Cal. State Bar Ct. Rptr. 189, 195. Where there are two or more acts of misconduct in a single proceeding, and different sanctions apply, the sanction imposed shall be the more or most severe of the different applicable sanctions. (Stnd. 1.6(a).)

Here, the applicable Standards are Standard 2.20a), 2.6(a), and 2.10. The most severe sanction is Standard 2.6(a) which requires that a violation of Business and Professions Code section 6068 "shall result in disbarment or suspension depending on the gravity of the offense or harm, if any, to the victim, with due regard to the purpose of imposing discipline set forth in standard 1.3."

In this matter, respondent failed to cooperate in the State Bar investigation, failed to perform, failed to refund uneamed fees and failed to account for the advanced fees paid by his client. The misconduct is aggravated by the significant harm to Jones, and respondent’s refusal to refund the $2,000.00. Respondent’s misconduct is mitigated by his lack of a prior record of discipline. However, because respondent’s conduct is deemed serious, the mitigation afforded to respondent is minimal.

Given the fact Respondent’s misconduct is aggravated by two circumstances and respondent is entitled to little mitigation, a three-month actual suspension with an "and until" restitution condition is consistent with Standard 2.6 and appropriate taking into consideration the facts and circumstances of the case.

PENDING PROCEEDINGS.

The disclosure date referred to, on page 2, paragraph A(7), was August 13, 2012.

COSTS OF DISCIPLINARY PROCEEDINGS.

Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of August 13, 2012, the prosecution costs in this matter are $3,349.00. 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.

SIGNATURE OF THE PARTIES

Case Number(s): 12-O-12233

In the Matter of: James A. Nations

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: James A. Nations

Date: 8-20-12

Respondent’s Counsel:

Date:

Deputy Trial Counsel: Heather E. Abelson

Date: 8-22-12

ACTUAL SUSPENSION ORDER

Case Number(s): 12-O-12233

In the Matter of: James A. Nations

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.

<<not>> checked The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.

checked. All Hearing dates are vacated.

1) At p. 10, section re "Additional Facts re Mitigating Circumstances": Delete the paragraph following this heading and instead insert:

"Case law permits a long record of practice without discipline to be treated as mitigation notwithstanding the seriousness of the present misconduct. (In the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn. 13.)";

2) At p. 11, 1st full paragraph: (a) Add standard 2.4(b) as a standard to be considered; and (b) Delete sentence re standard 2.6 as the most severe sanction and add instead:

"The most severe sanction is suggested by standard 2.2(b): at least three months’ actual suspension regardless of mitigating circumstances for commingling entrusted funds or property with personal property or committing another violation of rule 4-100, none of which result in the wilful misappropriation of entrusted funds or property."

The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)

Signed by:

Judge of the State Bar Court: Lucy Armendariz

Date: September 4, 2012

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, 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 San Francisco, California, addressed as follows:

                                                JAMES A. NATIONS

                                                LAW OFFICES OF NATIONS & LOCKHART

                                                1070 MARINA VILLAGE PKWY, STE 201

                                                ALAMEDA, CA 94501

checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

                                                HEATHER ABELSON, Enforcement, San Francisco

I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on September 5, 2012.

Signed by:

Mazie Yip

Case Administrator

State Bar Court