Case Number(s): 12-O-13068, 12-O-16258
In the Matter of: Benjamin Diego Hellewell Bar #263188 A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Suzan J. Anderson, Senior Trial Counsel
1149 S. Hill Street
Los Angeles, California 90015
(415) 538-2209
Bar #160559
Counsel for Respondent: In Pro Per Respondent
Benjamin Diego Hellewell
P.O, Box 31382
Palm Beach Gardens, Florida 33420
(702) 301-7780
Bar # 263188
Submitted to: Assigned Judge, State Bar Court Clerk’s Office Los Angeles
Filed: January 4, 2013
checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted June 1, 2009.
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):
checked. Costs are awarded to the State Bar.
<<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.
9.
ORDER OF INACTIVE ENROLLMENT:
The parties are aware that if this stipulation is approved, the judge will
issue an order of inactive enrollment under Business and Professions Code
section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule
5.111(D)(1).
Case Number(s): 12-O-13068; 12-O-16258
In the Matter of: BENJAMIN DIEGO HELLEWELL
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: Jason Ronnenstrand
Principal Amount: $1,000
Interest Accrues From: May 13, 2010
2. Payee: Karen Book
Principal Amount: $2,400
Interest Accrues From: April 23, 2010
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.
<<not>> 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: BENJAMIN DIEGO HELLEWELL
CASE NUMBER(S): 12-O-13068,12-O-16258
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. 12-0-13068 (Complainant: Jason Ronnestrand)
FACTS:
1. In May 2010, Wisconsin resident Jason Ronnestrand ("Ronnestrand") employed Respondent to provide him with legal services in connection with negotiating and obtaining a home mortgage loan modification for his residence located in Wisconsin. On May 13, 2012, Ronnestrand paid Respondent $1,000 in advanced attorney fees.
2. Wisconsin SCR Ch. 120:5.5(b) states in pertinent part, "A lawyer who is not admitted to practice in this jurisdiction shall not... (2) hold out to the public or otherwise represent that the lawyer is admitted to the practice of law in this jurisdiction."
3. Respondent is not now, nor ever has been, admitted to practice law in the state of Wisconsin.
4. Respondent entered into an agreement for, charged, and collected fees for legal services from Ronnestrand, in a jurisdiction in which he is not admitted to practice law.
CONCLUSIONS OF LAW:
5. By accepting employment with Ronnestrand and holding himself out as entitled to practice law in Wisconsin in order to perform legal services in connection with negotiating and obtaining a mortgage loan modification, Respondent held himself out as entitled to practice law in the state of Wisconsin, a jurisdiction where he is not admitted and thereby willfully violated the regulations of the profession in that jurisdiction in violation of rule 1-300(B) of the Rules of Professional Conduct.
6. By entering into an agreement for, charging, and collecting $1,000 in legal fees from Ronnestrand, when he was not licensed to practice in Wisconsin, Respondent entered into an agreement for, charged, or collected an illegal fee in willful violation of rule 4-200(A) of the Rules of Professional Conduct.
Case No. 12-O-16258 (Complainant: Karen Book)
FACTS:
7. On March 16, 2010, Georgia resident Karen Book ("Book") employed Respondent to provide her with legal services in connection with negotiating and obtaining a home mortgage loan modification for her residence located in Georgia. On March 16, 2010, Book paid Respondent $700 in advanced attorney fees. On March 26, 2010, Book paid Respondent an additional $500 in advanced attorney fees. On April 9, 2010, Book paid Respondent an additional $800 in advanced attorney fees. On April 23, 2010, Book paid Respondent an additional $400 in advanced attorney fees. 8. Georgia Rule of Professional Conduct 5.5 states in pertinent part: "(b) A Domestic Lawyer shall not... (2) hold out to the public or otherwise represent that the Domestic Lawyer is admitted to practice law in this jurisdiction."
9. Respondent is not now, nor ever has been, admitted to practice law in the state of Georgia.
10. Respondent entered into an agreement for, charged, and collected fees for legal services from Book, in a jurisdiction in which he was not admitted to practice law.
CONCLUSIONS OF LAW:
11. By accepting employment with Book and holding himself out as entitled to practice law in Georgia in order to perform legal services in connection with negotiating and obtaining a mortgage loan modification, Respondent held himself out as entitled to practice law in the state of Georgia, a jurisdiction where he is not admitted and thereby willfully violated the regulations of the profession in that jurisdiction in violation of rule 1-300(B) of the Rules of Professional Conduct.
12. By entering into an agreement for, charging, and collecting $2,400 in legal fees from Book, when he was not licensed to practice in Georgia, Respondent entered into an agreement for, charged, or collected an illegal fee in willful violation of rule 4-200(A) of the Rules of Professional Conduct.
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Harm: Respondent’s clients were seriously harmed by the above described misconduct. Both Ronnenstrand and Book hired Respondent to assist them with their home loan modifications because they were financially distressed. Thus, the loss of the use of the money they paid in fees to Respondent for work Respondent did not accomplish due to his not being admitted in the states of Wisconsin and Georgia caused significant harm to the clients.
Pattern of Misconduct: Here there is a pattern of misconduct. The instant case involves
two out-of-state matters involving the unauthorized practice of law and accepting illegal fees. Respondent’s prior involved similar misconduct in 20 matters, of which 13 were also out-of-state clients. Respondent’s prior and present misconduct spanned over a year. A pattern of misconduct is egregious aggravation. (ln the Matter of Falinoti (Review Dept. 2002) 4 Cal State Bar Ct. Rptr, 498, 566). It is reserved for serious misconduct over a prolonged period of time. (Young v. State Bar (1990) 50 Cal.3d 1204, 1216-1217). Ten months of repetitive fraudulent billing submitted to an insurance company was found to constitute a pattern of misconduct. (In the Matter of Berg (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 725, 737). Four
abandonments were found to be a pattern. (Lester v. State Bar (1976) 17 Cal.3d 547, 552). A pattern requires a common thread. (ln the Matter of Wyrick (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 83, 93). In these cases we have 55 counts of serious misconduct involving 22 clients over a 12-month period. As established by case law, a pattern of misconduct.
Indifference: Respondent has not been able to refund any of the fees paid by the above-mentioned clients which Respondent wrongfully obtained. (See In the Matter of Wells (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 896, 913 [failure to refund the fees and costs an attorney wrongfully collected demonstrates indifference toward rectification of or atonement for the consequences of his or her misconduct].)
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Pre-trial Stipulation: Respondent has entered into a pre-trial stipulation (as he did in his prior case number 11-O-12505) thereby saving the time and resources of the State Bar Court, and is receiving some 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. 200) 4 Cal. State Bar Ct. Rptr. 179, 190; see also Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079.)
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.4th 81, 92, quoting In re Brown (1995) 12 Cal.4u’ 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. (ln 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 four acts of professional misconduct, in addition to the fifty-one in his prior, case number 11-O-12505. 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 2.10, which applies to Respondent’s violation(s) of rules 1-300(B) and 4-200(A) of the Rules of Professional Conduct.
Standard 2.10 provides that culpability of a member of a willful violation of any Rule of Professional Conduct not specified in the standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
The severity and magnitude of Respondent’s misconduct, coupled with the lack of any substantial mitigation and the presence of such significant aggravation take this matter beyond that called for in the standard to disbarment.
In the current proceeding and Respondent’s prior discipline, Respondent failed to perform, failed to refund uneamed fees, improperly withdrew from representation of his clients, collected advance fees for loan modification, committed UPL by being employed by out-of-state clients and collected illegal fees from those out-of-state clients. 55 counts of misconduct involving 22 clients are extensive misdeeds which were commonplace to Respondent’s law practice. Respondent’s misconduct harmed all of the clients as detailed above and that harm has yet to be rectified.
There are three Supreme Court disbarment cases involving "pattem-type" misconduct, where the respondent had no prior discipline and intentionally dishonest acts were not part of the misconduct that are applicable to this matter: (1) In re Billings (1990) - 15 client matters; (2) Walker v. State Bar (1989) 49 Cal.3d 1107 - abandonment of entire law practice; (3) Combs v. State Bar (1989) 49 Cal.3d 679 - 13 client matters.
Respondent’s pattem of misconduct as detailed in both the instant case and his prior discipline lead Respondent’s disbarment. Respondent’s misconduct is the same pattern throughout all 22 client matters. Respondent continued to accept clients and their funds when they were financially distressed that he could not obtain loan modifications for. The pattern of accepting fees for work that was not performed is very egregious. The magnitude and severity of Respondent’s offenses, together with the weaknesses in mitigation demonstrate that disbarment in appropriate in this matter. Respondent has failed to rectify the harm he has caused the clients in this matter and has not begun to rectify the seriousness of his misconduct. Accordingly, the only way to protect the public, the courts and the legal profession; to maintain high professional standards; and to preserve public confidence in the legal profession is to recommend Respondent’s disbarment and require a reinstatement proceeding.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was November 29, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of September 24, 2012, the estimated prosecution costs in this matter are $3,689.00. 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.
Case Number(s): 12-O-13068; 12-O-16258
In the Matter of: BENJAMIN DIEGO HELLEWELL
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: BENJAMIN DIEGO HELLEWELL
Date: 12/18/12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: SUZAN J. ANDERSON
Date: 12/19/12
Case Number(s): 12-O-13068; 12-O-16258
In the Matter of: BENJAMIN DIEGO HELLEWELL
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
<<not>>checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>>checked. All Hearing dates are vacated.
On page 2 of the stipulation, at paragraph B.(1)(a), "11-O-12505" is deleted, and in its place is inserted "10-0-05890, etc.". On page 2 of the stipulation, at paragraph B.(1)(b), "2112" is deleted, and in its place is inserted "2012". On page 2 of the stipulation, at paragraph B.(1)(d), "and until compliance with the requirements of standard 1.4(c)(ii)" is inserted after "two years’ actual suspension". On page 8 of the stipulation, at numbered paragraph 1, line 3, "May 13, 2012" is deleted, and in its place is inserted "May 13, 2010". On page 8 of the stipulation, at numbered paragraph 5, line 5, "willful" is inserted before "violation". On page 9 of the stipulation, at numbered paragraph 11, line 5, "willful" is inserted before "violation". On page 10 of the stipulation, Pre-trial Stipulation, line 2, "11-O-12505" is deleted, and in its place is inserted "10-O-05890, etc., including case number 11-O- 12505". On page 10 of the stipulation, under the heading "Authorities Supporting Discipline," paragraph 3, line 2, "11-O-12505" is deleted, and in its place is inserted "10-O-05890, etc.".
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.)
Respondent BENJAMIN DIEGO HELLEWELL is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herein, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Judge of the State Bar Court Donald F. Miles
Date: 1-2-13
[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 4, 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:
BENJAMIN D. HELLEWELL
PO BOX 31382
PALM BEACH GARDENS, FL 33420
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUZAN ANDERSON, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 4, 2013.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court