Case Number(s): 12-O-12463-DFM, 12-O-17788 (inv.)
In the Matter of: Mark Abram Posner, Bar # 94714, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kim Kasreliovich, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1378
Bar # 261766,
Counsel for Respondent: Lorraine I. Anderson, 2728 W 176th St
Torrance, CA 90504
(310) 515-1586
Bar # 10040,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted December 16, 1980.
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 13 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: three (3) billing cycles following the effective date of the Supreme Court order. (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.
Case Number(s): 12-O-12463-DMF; 12-O-17788 (inv.)
In the Matter of: Mark Abram Posner
a. Restitution
<<not>> 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:
Principal Amount:
Interest Accrues From:
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
<<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.
<<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.
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.
IN THE MATTER OF: Mark Abram Posner, State Bar No. 94714
STATE BAR COURT CASE NUMBER: 12-O-12463-DFM, 12-O-17788(inv.)
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-12463 (State Bar Investigation)
FACTS:
1. At all times mentioned herein, Respondent maintained a client trust account at U.S. Bank, account number 15349218XXXX1 ("CTA"). [Footnote 1: The full Client Trust Account number has been omitted due to privacy concerns.]
2. Respondent used his CTA account to deposit earned fees.
3. Between July 1,2011 and April 30, 2012, Respondent issued 12 checks to himself and his wife drawn on earned fees that Respondent had deposited into his CTA.
4. On April 5, 2012, the State Bar opened an investigation based on a Notice of Insufficient funds sent by U.S. Bank.
5. On April 9, 2012, a State Bar investigator mailed a letter to Respondent, at his membership records address, requesting that he provide a written response to the allegations by April 23, 2012. Respondent received the April 9, 2012 letter and failed to respond.
6. On April 24, 2012, a State Bar investigator mailed a second letter to Respondent, at his membership records address, requesting that he provide a written response by May 8, 2012. Respondent received the April 24, 2012 letter and failed to respond.
CONCLUSIONS OF LAW:
7. By depositing personal funds in Respondent’s CTA, Respondent commingled funds belonging to Respondent in a Client Trust Account in willful violation of the Rules of Professional Conduct, rule 4-100(A).
8. By failing to provide a written response to either of the two letters as requested, Respondent willfully failed to cooperate and participate in a disciplinary investigation pending against Respondent in violation of Business and Professions code section 6068(i).
Case No. 12-O-17788 (State Bar Investigation)
FACTS:
9. Respondent was the attorney of record for The Chosen Few Motorcycle Club in Los Angeles Superior Court case no. BC465364, People v. Chosen Few Motorcycle Club.
10. As of July 3, 2012, Respondent was administratively suspended from the practice of law for failure to pay his membership dues.
11. On August 23, 2012, while still suspended, Respondent represented to the judge, as well as opposing counsel, in People v. Chosen Few Motorcycle Club that he would be working on a settlement agreement in the case.
12. Around the same time, in reliance on Respondent’s representation, opposing counsel sent him a draft of the settlement agreement for Respondent to review.
CONCLUSIONS OF LAW:
13. By holding himself out as entitled to practice law to the court and opposing counsel in the case People v. Chosen Few Motorcycle Club, when he was not an active member of the State Bar of California in willful violation of Business and Professions Code sections 6125 and 6126, Respondent failed to support the Constitution and laws of this state in violation of Business and Professions Code section 6068(a).
ADDITIONAL FACTS RE AGGRAVATION.
Multiple/Pattern of Misconduct: Respondent engaged in multiple acts of misconduct by writing 12 checks to himself and/or his wife over a nine month period constituting a violation of the Rules of Professional Conduct, rule 4-100(A). Furthermore, Respondent is culpable of two additional acts of misconduct for failing to respond to a State Bar Investigation, in violation of Business and Professions Code section 60680) and engaging in the unauthorized practice of law, in violation of Business and Profession Code section 60680(a). (Standard 1.2(b)(ii).)
ADDITIONAL MITIGATING CIRCUMSTANCES.
No Prior Discipline: At the time of the misconduct Respondent had been in practice for 31 years without discipline for which Respondent is entitled to significant mitigation. (See Hawes v. State Bar (1990) 51 Cal.3d 587, 596.) Even with serious misconduct, Respondent is still entitled to mitigation, despite the language of the standard. (See In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49; In the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn.12.)
Entering into a Stipulation: In case no. 12-O-17788, Respondent has entered into a stipulation before a Notice of Disciplinary Charges has been filed thereby saving the time and resources of the State Bar Court, and is receiving slight mitigation for doing so. (In the matter of Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr 151,156; In the Matter of Johnson (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 190; see also Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079.) Respondent’s cooperation in entering into a stipulation in ease no. 12-O-17788, an investigative matter, is tempered by his failure to respond to the prior investigation in ease no. 12-O-12463.
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipline" pursuant to a set of written principles to "better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to standards are to this source).) The primary purposes of disciplinary proceedings and of the sanctions imposed are "the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession." (ln re Morse (1995) 11 Cal.4th 184, 205; std 1.3.)
Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible in determining level of discipline. (In re Silverton (2005) 36 Cal.4 81, 92, quoting In Pre Brown (1995) 12 Cal.4t~ 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 Nancy (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 three 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 of the Rules of Professional Conduct, rule 4-100(A).
Standard 2.2(b) provides that that culpability of a member of a violation of rule 4-100 of the 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 suspension from the practice of law, irrespective of mitigation. None of the commingling in the present case resulted in willful misappropriation of client funds.
Respondent committed multiple violations by engaging in commingling and the unauthorized practice of law and failing to respond to a State Bar investigation. Under Standard 2.2(b) a three month actual suspension is the minimum level of discipline prescribed for culpability of trust account violations, regardless of mitigation. However, Respondent has 31 years in practice without a single disciplinary matter. Respondent’s many years in practice, which is afforded substantial weight in mitigation, despite his multiple acts of misconduct, justifies the minimum level of discipline required by the standard while still achieving the purposes of attorney discipline.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was December 14, 2012.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No.: 12-O-12463, Count: ONE, Alleged Violation: 6106
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of December 14, 2012, the prosecution costs in this matter are $$6,944. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
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-12463; 12-O-17788 (inv.)
In the Matter of: Mark Abram Posner, State Bar No.: 94714
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: Mark A. Posner
Date: December 18, 2012
Respondent’s Counsel: Lorraine I. Anderson
Date: December 18, 2012
Deputy Trial Counsel: Kim Kasreliovich
Date: December 18, 2012
Case Number(s): 12-O-12463; 12-O-17788 (inv.)
In the Matter of: Mark Abram Posner, State Bar No.: 94714
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: Donald F. Miles
Date: January 2, 2013
[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 January 7, 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:
LORRAINE IRIS ANDERSON
2728 W 176TH ST
TORRANCE, CA 90504
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Kimberly G. Kasreliovich, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 7, 2013.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court