Case Number(s): 12-O-13031
In the Matter of: Allyson Erwin De Guzman Bautista, Bar # 202023, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Diane J. Meyers, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 900 ! 5
(213) 765-1496
Bar # 146643
Counsel for Respondent: Arthur Margolis, 2000 Riverside Drive
Los Angeles, CA 90039-3758
(323) 953-8996
Bar # 57703
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
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 June 15, 1999.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 11 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
<<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: Costs are to be paid in equal amounts for the two 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.
See Attachment at pp. 8-9.
(a) To satisfy the condition of Ethics School, Respondent may attend a session of Ethics School between the date that Respondent executes this Stipulation and the effective date of the discipline herein. In that event, Respondent must provide to the Office of Probation satisfactory proof of his attendance at Ethics School and passage of the test given at the end of that session with his first quarterly report due under this Stipulation.
(b) To satisfy the requirement of the MPRE, Respondent may take the MPRE between the date that Respondent executes this Stipulation and the effective date of the discipline herein. In that event, Respondent must provide proof of passage of the MPRE to the Office of Probation with his first quarterly report due under this Stipulation.
IN THE MATTER OF: Allyson Erwin De Guzman Bautista
CASE NUMBER(S): 12-O-13031
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- i 3031 (Complainant: Maria Salgado Garcia)
FACTS:
1. In November 2007, Maria Salgado Garcia ("Garcia") employed Respondent to represent her in a personal injury claim arising from an incident that occurred on November 6, 2007. In November 2007, Garcia entered into a written contingency fee agreement with Respondent for the representation.
2. In July 2008, Respondent settled the claim for $15,000. Garcia received medical treatment from Stephen Najera, D.C. ("Najera") related to the claim. Najera claimed $4,567.68 for the treatment rendered to Garcia.
3. In or about August 2008, Respondent received the $15,000 settlement draft for the claim, dated August 27, 2008, and deposited the draft into his client trust account at Union Bank of California, account number xxxx3208 (the "’CTA").
4. In September 2008, Respondent issued the following checks totaling $15,000 from the CTA:
Date of Check 09-03-08; Payee A. Erwin Bautista; Amount $ 8,467.68;
Date of Check 09-10-08; Payee Maria Garcia; Amount $ 5.032.32;
Date of Check 09-10-08; Payee Dr. Stephen Najera; Amount $ 1.500.00
5. Since Respondent’s admission to the State Bar in June 1999, his primary areas of practice have been immigration, family law, and bankruptcy and he has charged clients on an hourly fee basis. In or around 2007, Respondent began accepting personal injury, cases and employed a paralegal with experience in that area to assist him. At the time of the distribution of the settlement funds, Respondent relied upon his paralegal to provide an accounting of the settlement funds to Garcia based on his office procedures at the time. However, no accounting had been provided to Garcia. Consequently, Garcia was not informed that Dr. Najera’s bill had been reduced from $4,567.68 to $1,500 or that Respondent was paid $8.467.68.
6. After Garcia received $5,032.32 from Respondent in or about September 2008. Respondent did not receive any complaint from Garcia regarding the amount of the settlement received or about her not receiving an accounting of the settlement funds until approximately three years later when Respondent received correspondence from Garcia in August 2011. In the correspondence, Garcia for the first time complained about the amount of Dr. Najera’s bill, contended that Dr. Najera should have received only $1,000. and claimed that she was entitled to another $4.000.
7. Respondent provided an accounting to Garcia in September 201 I. which showed that Dr. Najera was paid $1,500 and that Respondent was paid $5,000 as fees and $3,467.68 as "administrative costs.’: However, Respondent did not provide Garcia with an itemized accounting of the "’administrative cost."
8. Under the terms of Respondent’s tee agreement with Garcia, he was entitled to only $5,000 as fees plus "litigation costs and expenses," including but not limited to the cost of investigation and court reporter and filing fees. From the $3,467.68 withheld as "administrative costs," Respondent claimed $500 in out-of-pocket expenses for postage, paper, and telephone and transportation costs. Respondent paid himself the remaining $2.967.68 withheld as "administrative costs" for such services as interviewing the client, communicating with the client, visiting and photographing the scene of the incident, reviewing medical records, and preparing a demand package. Due to his inexperience in handling case on a contingency fee basis and based on Iris reliance on information received from his paralegal. Respondent had intended to charge $5,000 as a contingency fee and $3,467.68 as "administrative costs." Respondent acknowledges that his reliance on his paralegal was unreasonable and that his fee agreement with Garcia did not authorize him to charge $2,967.68 as "’administrative costs." Respondent acknowledges that by charging and collecting $2,967.68 as "administrative costs" and charging and collecting $5,000 as a contingency fee, Respondent was effectively double-billing Garcia for the same services.
9. In January 2012, Garcia complained to the State Bar about Respondent. On July 9, 2012, Respondent returned $2,967.32, plus interest in the amount of $1.186.93 (10% interest per year from September 10. 2008 to September 10, 2012 or $296.73 per year), to Garcia.
CONCLUSIONS OF LAW:
1. By withholding $2,967.68 for hourly fees from the $15,000 settlement, when Respondent withheld $5,000 from Garcia as a contingency fee for the same legal services. Respondent charged and collected an unconscionable fee, in wilful violation of Rules of Professional Conduct. role 4-200(A).
2. By not providing Garcia with a full accounting of the $ 15.000 settlement, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession, in wilful violation of Rules of Professional Conduct, rule 4-100(B)(3).
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Candor/Cooperation: Respondent was candid and cooperative during the State Bar’s investigation and proceedings.
Good Character: Respondent provided numerous letters regarding Respondent’s good character from attorneys, clergymen, his clients, a former employee, and other members of the general public, although they did not state that they were aware of the full extent of his misconduct. Respondent has been actively involved in community service for many years. Respondent has performed volunteer work for the American Immigration Lawyer Association. Respondent has been a member of the Bankruptcy Section of the North County Bar Association since 1999 and served as its Chairman. The Association provides continuing education to its members. Respondent has performed countless hours of volunteer work for tile Association. including volunteering at the North County Superior Court for Law Week and Youth and Court Day Program activities. Respondent trained student interns for California Western School of Law. Respondent provided pro bono legal services to the Widows: Sons Foundation, Inc. from April 2010 to April 2012; and handled three jury trials pro bono in conservatorship matters for Short Foundation Legal Center, Inc. within the last three to five years.
Additional Mitigating Circumstances: Respondent was admitted to the State Bar on June 15, 1999 and has no prior record of discipline. At the time of Respondent’s misconduct, he was not experienced in handling and supervising a personal injury practice. Respondent does not offer his lack of experience as an excuse for his misconduct., but to explain that his conduct was not venal. Respondent ceased his practice of having someone else provide accountings to clients in contingency fee matters. Respondent demonstrated recognition of wrongdoing by entering into this stipulation, thereby saving the resources of the State Bar.
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) 1 i 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 h 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 two acts of professional misconduct. Standard 1.6 (a) requires that where a Respondent acknowledges two or more acts of misconduct, and different sanctions are prescribed by the standards that apply to those acts, the sanction imposed shall be the more or most severe prescribed in fine applicable standards.
The most severe sanction applicable to Respondent’s misconduct is found in standard 2.7, which applies to the violation of Rules of Professional Conduct, rule 4-200(A). Standard 2.7 provides that a violation of rule 4-200(A) shall result in at least a six-month actual suspension from the practice of law, irrespective of mitigating circumstances. Here, the amount of the unconscionable fee charged and collected is about $3.000 and Respondent has completed restitution of this amount to Garcia with interest. Considering the mitigating factors involved, including Respondent’s cooperation with the State Bar and his showing of good character, the minimum sanction of a six-month actual suspension is appropriate. There are no aggravating factors and the net effect of the mitigating factors present demonstrates that the purpose of imposing sanctions as set forth in standard 1.3 will be fulfilled if the minimum sanction under standard 2.7 is imposed. (Standard 1.6(b)(ii).)
The parties have been unable to find a comparable case involving an unconscionable fee. However, this recommendation is consistent with the discipline imposed by the Supreme Court in Bates v. State Bar (1990) 51 Cal.3d 1056, which involved a unilateral application of entrusted funds for reimbursement of costs. Bates admitted that he misappropriated $700.60 from a $2,000 medical payment received from his client’s insurance company. Bates failed to pay the client’s portion of the $2,000 to the client. Bates contended that he used a portion of the funds to reimburse himself for costs incurred on behalf of the client, but he had insufficient records to support his contention. The hearing referee concluded that regardless of whether the funds represented reimbursement of costs, Bates had misappropriated the funds because he had no authorization from the client to reimburse himself for costs. Alter the client terminated Bates’s employment, another attorney settled the client’s injury claim and Bates claimed entitlement to a share of the settlement funds. Bates then misrepresented to the client’s successor attorney that the $2,000 was still in his client trust account pending resolution of the fee dispute. The primary mitigating factor present was that Bates suffered from alcoholism at the time of his misappropriation of funds, but showed that his addiction was permanently under control. Bates’s 14 years of discipline-free practice and good character were other mitigating factors. Bates received a six-month actual suspension and a three-year stayed suspension.
Like Bates. Respondent here unilaterally charged a portion of the settlement funds as imbursement of ’administrative costs," and Respondent has no prior discipline and presented evidence of his good character. However, Respondent’s misconduct stemmed from his overcharging for services rendered as "administrative costs" due to his reliance on information from his paralegal and stemmed from his not providing an accounting to his client due to his reliance on his paralegal. Unlike Bates, Respondent’s misconduct did not involve any misrepresentation or moral turpitude.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2. paragraph A(7), was September 26, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of July 9, 2012. the prosecution costs in this matter are $2,865. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
Case Number(s): 12-O-13031
In the Matter of: Allyson Erwin De Guzman Bautista
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: A. Erwin Bautista
Date: Oct 1, 2012
Respondent’s Counsel: Arthur L. Margolis
Date: Oct 4, 2012
Deputy Trial Counsel: Diane J. Meyers
Date: 10/10/12
Case Number(s): 12-O-13031
In the Matter of: Allyson Erwin De Guzman Bautista
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
Page 3: the box for paragraph B. (7) [Multiple/Pattern of Misconduct] is deemed checked and the check in box for B.(8) is deemed removed.
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: 10/29/12
[Rule 62(b), Rules Proc.; Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on October 30, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL SUSPENSION
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:
ARTHUR LEWIS MARGOLIS
MARGOLIS & MARGOLIS LLP
2000 RIVERSIDE DR
LOS ANGELES, CA 90039
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DIANE MEYERS, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California on October 30, 2012
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court