Case Number(s): 12-O-13235
In the Matter of: Richard Lawrence Antognini, Bar # 75711, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Robert A. Henderson, Deputy Trial Counsel
180 Howard Street
San Francisco, CA 94105
(415) 538-2385
Bar # 173205,
Counsel for Respondent: In Pro Per Respondent
Richard Lawrence Antognini
819 1 Street
Lincoln, CA 95648
(916) 645-7278
Bar# 75711
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
Filed: November 20, 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.
1. Respondent is a member of the State Bar of California, admitted December 21, 1977.
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 9 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 added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. Case ineligible for costs (private reproval).
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: . (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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
IN THE MATTER OF: Richard Lawrence Antognini, State Bar No. 75711
STATE BAR COURT CASE NUMBER: 12-O-13235
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-13235 (Complainant: Sampath DeSilva)
FACTS:
1. In 2006, respondent represented Sampath DeSilva ("DeSilva") in DeSilva v. Rivas, case no. CV-06-1831.
2. DeSilva paid respondent a total of $10,000 in advanced fees in case no. CV-06-1831.
3. In April 2008, DeSilva terminated respondent’s legal services. At the time respondent’s services were terminated, respondent had earned $5,600.07 of the $10,000 paid as advanced fees. At the time respondent’s services were terminated there remained $4,649.23 in unearned advanced fees.
4. In April 2008, and continuing thereafter, DeSilva made multiple demands for a refund of the unearned advanced fees. Respondent was aware of DeSilva’s demands, but failed to provide a refund of the unearned fees.
5. In July 2012, respondent began making monthly payments of $285 to DeSilva for the unearned advanced fees. Respondent made four monthly payments of $285 for a total of $1,140. On October 18, 2012, respondent paid DeSilva $4,318.12 which represented the remaining unearned fees, plus interest. Respondent refunded a total of $5,458.12.
CONCLUSIONS OF LAW:
6. By failing to refund the unearned advanced fees until October 2012, respondent failed to promptly refund an unearned fee in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Harm: Respondent’s failure to refund the advanced fee promptly to DeSilva, caused significant harm to DeSilva. The harm suffered included the loss of the use of the funds from April 2008, until they were fully refunded.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
No Prior Discipline: Respondent has practiced law since December 1977, with no prior record of discipline. His lengthy period of practice coupled with misconduct which is not deemed serious is entitled to significant mitigation. (See Hawes v. State Bar (1990) 51 Cal.3d 587, 596.)
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 Nancy (1990) 51 Cai.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.)
In the present matter the applicable Standard is 2.10, which requires discipline ranging from reproval to suspension for a violation of any rule not the subject of another Standard. Discipline, according to the Standard, is to vary depending on the gravity of the offense or the harm, if any, to the victim. Here, the rule violated is 3-700(D)(2), which is not covered by any other Standard. Therefore the analysis for the level of discipline is dependent on the "gravity of the offense" and the "harm" to the victim.
Although the gravity of the offense is not severe, the harm to DeSilva was significant as he lost the use of $4,649.23 for over four years. However, by refunding the money with interest, respondent has somewhat mitigated the harm suffered by DeSilva. Based on the foregoing and respondent’s lack of prior discipline, the level of discipline in this matter should be on the lower side of what is required by Standard 2.10.
In the Matter of Hanson (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 703, is instructive. In Hanson, the Review Department found that Hanson failed to refund $769 for over a year, as well as failed to take reasonable steps to avoid prejudice to his client upon withdrawal from employment. Hanson in aggravation had a prior private reproval. The Review Department imposed a public reproval for the violations of 3-700(A)(2) and 3-700(D)(2).
The misconduct of respondent is similar to that of Hanson, although the length of time between when the refund was owed and made is lengthier. On balance a public reproval is in conformity with the standard and gives proper mitigation credit for the length of time in practice with no prior record of discipline.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was October 24, 2012
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 9,2012, the prosecution costs in this matter are $2,797.00. 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
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School. (Rules Proc. of State Bar, rule 3201.)
Case Number(s): 12-O-13235
In the Matter of: Richard Lawrence Antognini
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: Richard Lawrence Antognini
Date: October 30, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Robert A. Henderson
Date: November 2, 2012
Case Number(s): 12-O-13235
In the Matter of: Richard Lawrence Antognini
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department 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.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Pat McElroy
Date: November 20, 2012
[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 November 20, 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:
RICHARD LAWRENCE ANTOGNINI
LAW OFFICE OF RICHARD L. ANTOGNINI
819 I ST
LINCOLN, CA 95648
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Robert Henderson, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on November 20, 2012.
Signed by:
George Hue
Case Administrator
State Bar Court