Case Number(s): 12-O-13219
In the Matter of: Frank Aurelio Yokoyama, Bar # 169912, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Ashod Mooradian, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1004
Bar # 194283,
Counsel for Respondent: In Pro Per Respondent
Frank Aurelio Yokoyama
11835 E. South Street
Cerritos, CA 90703
(562) 860-2571
Bar# 169912
Submitted to: Assigned 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 February 24, 1994.
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 10 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: Two 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.
IN THE MATTER OF: FRANK AURELIO YOKOYAMA, State Bar No. 169912
STATE BAR COURT CASE NUMBER: 12-O-13219
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-13219 (State Bar Investigation)
FACTS:
1. In order to remain as an active member of the State Bar, Respondent was required to complete 25 hours of minimum continuing legal education ("MCLE") during the period of February 1, 2008, through January 31, 2011 (the "compliance period").
2. On February 1, 2011, Respondent reported to the State Bar that he was in compliance with the MCLE requirements, and, in particular, that he had completed his MCLE during the compliance period.
3. In fact, Respondent had not completed any MCLE courses within the compliance period.
4. When Respondent reported to the State Bar that he was in compliance with the MCLE requirements, Respondent knew or was grossly negligent in not knowing that he had not completed the MCLE during the compliance period as required.
5. Respondent took additional MCLE courses necessary to come into compliance after being contacted by Membership Services regarding an audit of MCLE compliance. Respondent timely complied with the audit.
CONCLUSION OF LAW:
6. By reporting to the State Bar that he was in compliance with the MCLE requirements when he knew or was grossly negligent in not knowing that he was not in compliance with the MCLE requirements, Respondent intentionally or by gross negligence committed an act involving moral turpitude, dishonesty and corruption in wilful violation of Business and Professions Code, section 6106.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Respondent had practiced law for nearly 17 years without a prior record of discipline when the misconduct herein occurred. Respondent is entitled to some mitigating credit for no prior discipline even where the underlying conduct is found to be serious or significant. (ln the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn.13.; In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49.)
In addition, Respondent cooperated in the investigation of this case and is further cooperating by entering into this Stipulation to resolve this matter before the filing of disciplinary charges. See In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41.
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.)
Standard 2.3 provides that "Culpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client, or another person ... shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law."
Whether made through gross negligence or intentional dishonesty, Respondent’s false statement regarding his MCLE compliance is serious and constitutes an act of dishonesty directly relating to the practice of law.
Although there is no California case addressing an attorney’s misrepresentation concerning MCLE compliance, we can look to other states for guidance. In the Matter of Diggs (S.C. 2001) 544 S.E.2d 628, details the importance of continuing legal education and of attorneys’ honesty in reporting their MCLE compliance.
"Truthful representations on CLE compliance reports are essential to the successful operation of the South Carolina CLE program. Our CLE program operates on an honor system. The Commission does not check the accuracy of every attorney’s CLE compliance report .... In order for the CLE program to be successful, and provide the public with competent, educated attorneys, South Carolina attorneys must complete the required number of CLE hours." (Id. at 631-632.)
These policy reasons for requiring attorneys to take continuing legal education apply to California.
Respondent’s misconduct is analogous to Drociak v. State Bar, (Cal. 1991) 52 Cal. 3d 1085. In Drociak, the attorney used his client’s presigned verification to respond to discovery without first consulting with his client to ensure the veracity of assertions of fact in the discovery responses in violation of Business and Professions Code sections 6106 and 6068(d), and former rule 7-105(1). The attorney, who had no prior record of discipline in 25 years of practice, received a 30-day actual suspension. In imposing the 30-day actual suspension, the Supreme Court specifically cited to Standard 2.3, noting that "The Standards for Attorney Sanctions for Professional Misconduct ... make violation of section 6106 punishable by disbarment or actual suspension" and further noted that "[p]etitioner’s prior ’clean’ record is commendable, but it does not render the recommended 30-day actual suspension inappropriate." (Id. at 1090-1091.)
See also: Bach v. State Bar, 43 Cal. 3d 848 (Cal. 1987) [attorney, who had previously been publically reproved and who made false statements to a court about events that had occurred at a hearing before another judge and about receiving a court order, received an actual suspension of 60 days after the Supreme Court found the behavior involved moral turpitude.]
Although Respondent’s misconduct does not involve a misrepresentation to a court, it is clearly behavior that undermines the public’s confidence in the legal profession. Reporting of CLE compliance is on the honor-system. The State Bar relies on an attorney’s word when reporting compliance. When an attorney takes advantage of an honor-system to lie, it undermines the public’s confidence in the legal profession. Thus, although Respondent did not lie to a court, his misconduct is still serious and warrants actual suspension.
Standard 2.3 clearly applies to the present case. However, since there is no harm to a client, since the matter involves only a single act of misconduct, and in light of Respondent’s 17 years of practice without prior misconduct, a level of discipline at the low-end range of discipline, pursuant to standard 2.3, is consistent with the purposes of attorney sanctions. As the present case is most analogous to Drociak, in that Respondent made a misrepresentation in order to circumvent requirements imposed for important policy reasons, an equal level of discipline is appropriate. Thus 30 days’ actual suspension is appropriate in this matter.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was November 8, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 8, 2012, the prosecution costs in this matter are $2,865.00. 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.
EXCLUSION FROM MCLE CREDIT.
Respondent will not receive MCLE credit for the completion of State Bar Ethics School taken in compliance with the conditions of probation herein. (Rules of Procedure of the State Bar of California, rule 3201 .)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-13219
In the Matter of: Frank Aurelio Yokoyama
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: Frank Aurelio Yokoyama
Date: December 7, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Ashod Mooradian
Date: December 10, 2012
Case Number(s): 12-O-13219
In the Matter of: Frank Aurelio Yokoyama
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 2 – Section A. (8) – Insert After First Sentence – “(2014 and 2015)”
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: Richard A. Platel
Date: January 7, 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 8, 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:
FRANK A. YOKOYAMA
11835 SOUTH ST
CERRITOS, CA 90703
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Ashod Mooradian, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 8, 2013.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court