Case Number(s): 12-O-13322-DFM
In the Matter of: Mitchell Berenson, Bar #183166, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Katherine Kinsey, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
213-765-1503Bar #183740
Counsel for Respondent: In Pro Per Respondent
Mitchell Berenson
12525 Havelock Avenue
Los Angeles, CA 90066
Bar # 183
Submitted to: Assigned Judge State Bar Court Clerk’s Office Los Angeles.
Filed: October 18, 2012
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, 1996.
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. Costs are added to membership fee for calendar year following effective date of discipline.
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.
Case Number(s): 12-O-13322-DFM
In the Matter of: Mitchell Berenson
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: Bjoern Kommerell
Principal Amount: $1,500
Interest Accrues From: May 17, 2010
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.
<<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: Mitchell Berenson
CASE NUMBER(S): 12-O-13322
FACTS AND CONCLUSIONS OF LAW:
Respondent, Mitchell Berenson, admits that the following facts are tree and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct. Case No. 12-O-13322 (Complainant: Bioern Kommerell)
FACTS:
1. On May 1.7, 2010, Bjoem Kommerell ("Kommerell’)employed Respondent to obtain US citizenship on his behalf while also ensuring Kommerell could maintain his German citizenship ("immigration matter"). On or about May 17, 2010, Kommerell paid Respondent $1,500 in advanced legal fees for the immigration matter.
2. On January 21,2011, Kommerell sent an email to Respondent informing him that
Kommerell wanted to proceed with his application for US citizenship. Respondent received the email,
3. On February 22, 2011, Respondent sent an email to Kommerell containing a two-prong test related to Kommerell retaining his German citizenship and asked Kommerell to .address them. Later that day, Kommerell responded to Respondent’s email with the requested information.
4. On March 4, 2011, Kommerell sent an email to Respondent inquiring about his immigration matter. Respondent received the email but did not respond.
5. On March 8, 2011, Kommerell emailed Respondent regarding his failure to respond to his earlier email and told Respondent he wanted his matter completed as soon as possible. Respondent received the email but did not respond.
6. On March 10, 2011, Kommerell sent Respondent another email asking when they would be able to discuss his immigration matter and stated that he counted on Respondent’s integrity and professionalism to complete the matter soon. Respondent received the March 10, 2011 email but did not promptly respond.
7. On March 28, 2011, Respondent sent an email to Kommerell stating that he had a German client with a similar issue, and they were going to get that matter approved before addressing Kommerell’s matter. In addition, on or about March 28, 2011, Respondent forwarded an email to Kommerell regarding what documents the German Consulate would need with an application to retain German citizenship. From on or about March 28, 2011 through on or about May 9, 2011, Kommerell waited to hear from Respondent.
8. On May 9, 2011, Kommerell emailed Respondent stating that he was going to Germany in two weeks and wanted to speak to Respondent before he left. Respondent received the email but did not respond.
9. On May 17, 2011, Kommerell emailed Respondent stating that he was leaving for Germany that Friday and asked if there was any documentation or preparation he should do regarding his immigration matter while he was in Germany. Respondent received the May 17, 2011 email but did not respond.
10. On June 8, 2011, Kommerell emailed Respondent asking why Respondent had not responded to Kommerell. In the email, Kommerell told Respondent he was in Germany and awaited Respondent’s advice in order to prepare his immigration matter.
11. On June 9, 2011, Respondent emailed Kommerell once again stating that he was working on-citizenship retention for another German client, and once it was resolved, he would know how to manage Kommerell’s ease. However, in the June 9, 2011 emall, Respondent did not address the questions raised by Kommerell in his earlier emails.
12. From on or about June 9, 2011 through in or about December 2011, Kommerell waited to hear from Respondent regarding his immigration matter.
13. On December 22, 2011, Kommerell sent Respondent an email complaining that no work had been done. In the email, Kommerell stated that he had made attempts to contact Respondent, and Respondent had not called him throughout 2011. Kommerell told Respondent that he either needed to complete the immigration matter as agreed or refund the $1,500 in legal fees. Respondent received the December 22, 2011 email but did not respond.
14. On January 25, 2012, attorney Premjit Panicker emailed Respondent on Kommerell’s behalf. In the email, Panicker outlined Respondent’s failure to perform and failure to communicate with Kommerell and requested a refund of the $1,500 in legal fees on Kommerell’s behalf. Respondent received the email but did not respond.
15. Respondent did not submit an application on Kommerell’s behalf and otherwise failed to pursue Kommerell’s immigration matter.
16. Respondent provided no services of value to Kommerell. Respondent did not earn any of the $1,500 paid by Kommerell and has not refunded any of the fees.
17. According to Kommerell, his immigration was not significantly affected by Respondent’ s failure to perform because his green card does not expire until 2016. However, Kommerell was denied the use of the $1,500 in advanced fees paid to Respondent in May 2010.
18. On May 3, 2012, the State Bar opened an investigation, case no. 12-O-13322, pursuant to a complaint made against Respondent by Bjoem Kommerell ("Kommerell matter").
19. On May 9, 2012, a State Bar investigator mailed a letter to Respondent at his membership records address regarding the Kommerell matter. The May 9, 2012 letter requested that Respondent respond in writing by May 23, 2012 to specific allegations of misconduct being investigated by the State Bar in the Kommerell matter. Respondent received the May 9, 2012 letter but did not respond.
20. On May 10, 2012, the State Bar investigator sent an email to Respondent at the email address provided by Respondent to the State Bar and to Kommerell. In the May 10, 2012 email, the State Bar investigator outlined the allegations in the Kommerell matter and attached a copy of the May 9, 2012 letter. The State Bar investigator provided his telephone number and told Respondent he would like to
speak to him regarding the Kommerell matter. Respondent received the May 10, 2012 email with the attached letter but did not respond.
21. As of May 24, 2012, Respondent had not provided a response to the investigator’s May 9, 2012 letter or May 10, 2012 email. Therefore, on or about May 24, 2012, the State Bar investigator mailed a letter to Respondent’s home address regarding the Kommerell matter. The May 24, 2012 letter requested that Respondent respond in writing by June 7, 2012 to specific allegations of misconduct being investigated by the State Bar in the Kommerell matter. Respondent received the May 24, 2012
letter but did not respond.
22. On May 24, 2012, the State Bar investigator was able to obtain the personal email address for Respondent and sent an email to Respondent’s personal email address asking Respondent to contact the investigator regarding the Kommerell matter. The State Bar investigator provided his telephone number and attached a copy of the May 24, 2012 letter. Respondent received the May 24, 2012 email with the attached letter but did not respond.
23. On June 1, 2012, a State Bar investigator spoke to Respondent in person regarding the Kommerell matter. During the June 1, 2012 conversation, Respondent acknowledged receiving the State Bar letters regarding the Kommerell matter and told the investigator that he did plan on providing a response. During the June 1, 2012, conversation, the State Bar investigator, once again, provided Respondent with copies of the May 9, 2012 and May 24, 2012 letters regarding the Kommerell matter.
24. At no time did Respondent provide a written response to the allegations in the Kommerell matter.
CONCLUSIONS OF LAW:
25. By failing to perform on Kommerell’s immigration matter, Respondent intentionally,
recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
26. By failing to respond to Kommerell’s inquiries regarding his immigration matter, Respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code, section 6068(m).
27. By not refunding any of the $1,500 in advanced legal fee to Kommerell, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct ride 3-700(D)(2).
28. By not providing a written response to the allegations in the Kommerell matter or otherwise cooperating in the investigation of the Kommerell matter, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent in willful violation of Business and Professions Code, section 60680).
AGGRAVATING CIRCUMSTANCES.
Multiple Acts: Respondent’s four acts of misconduct in one client matter evidences multiple acts of misconduct.
ADDITIONAL AGGRAVATING CIRCUMSTANCES:
Harm: Respondent failure to refund unearned fees to his client caused harm to his client. (See Matthew v. State Bar (1989) 49 Cal.3d 784, 791 [Finding respondent’s failure to return unearned fees caused clients financial and other harm and is an aggravating factor.])
ADDITIONAL MITIGATING CIRCUMSTANCES:
Stipulation: While Respondent did not cooperate in the investigation of this matter, Respondent is entitled to some mitigation in agreeing to enter into a stipulation to facts and conclusions of law prior to trial. (ln the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rprt. 41, 50; In the Matter of Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 15 l, 156.)
No Prior Discipline: Respondent was admitted to the practice of law on June 11, 1996 and has no prior record of discipline. Respondent’s sixteen years of discipline free practice is a significant mitigating factor. (Hawes v. State Bar (1990) 51 Cal.3d 587, 596.)
DISCUSSION OF 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 the level of discipline. (ln 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, fla. 11.) Adherence to the standards in the great majority of eases 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, f5.) Respondent admits to committing four 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.
In the present matter, the more serious charges fall under Standard 2.6 (a), which calls for disbarment or suspension depending upon the gravity of the offense and the degree of harm to the client. The applicable violations under Standard 2.6 are Business and Professions Code sections 60680) and 6068(m). Respondent’s failure to perform and his failure to respond to Kommerell’s repeated inquires regarding his ease delayed the underlying immigration matter. However, the delay did not cause significant harm to the client since Kommerell’s green card does not expire until 2016, and he did not view his matter as urgent In addition, Respondent’s failure to refund the $1,500 in advanced fees despite Kommerell’s requests caused some harm to Kommerell in that he was deprived the use of his " funds. While Respondent’s agreement to enter into a stipulation resolving this matter is a mitigating factor, it is offset to some degree by his failure to cooperate with the State Bar investigation. However, considering the nature of the misconduct, the lack of significant harm to the client and Respondent’s sixteen years of practice without any prior discipline, this matter does not require a period of actual suspension.
In Van Sloten v. State Bar (1989) 48 Cal.3d 921, the Court found that a respondent committed three acts of misconduct in a client matter in that he failed to perform, failed to communicate and abandoned his client’s dissolution matter. Specifically, the Court found that respondent failed to respond to the client’s repeated telephone calls, failed to complete the client’s dissolution matter and altogether ceased working on the matter without taking steps to properly withdraw from the case. The client subsequently hired new counsel to complete the dissolution. The respondent in Van Sloten had no prior record of discipline, but had been practicing for less than six years at the time of the misconduct. In light of the lack of significant harm to the client in Van Sloten, the Supreme Court ordered respondent suspended six months, stayed and that he be placed one-year probation. In the present matter, Respondent engaged in four acts of misconduct in one client matter and has no prior record discipline over sixteen years of practice. However, in addition to failing to perform and failing to communicate with his client, Respondent also failed to refund unearned fees, causing some harm to the client. On balance and considering the Standards, the aggravating and mitigating circumstances, one-year stayed suspension serves the purposes of attorney discipline in the present matter.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was September 11, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
The Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of July 20, 2012, the prosecution estimated costs in this matter are $3,689. 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 proceeding.
Case Number(s): 12-O-13322-DFM
In the Matter of: Mitchell Berenson
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: Mitchell Berenson
Date: 10-4-12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Katherine Kinsey
Date: 10-4-12
Case Number(s): 12-O-13322
In the Matter of: Mitchell Berenson
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: October 15, 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 Los Angeles on October 18, 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 Los Angeles, California, addressed as follows:
MITCHELL BERENSON
LAW OFFICES OF MITCH BERENSON
12525 HAVELOCK AVE
LOS ANGELES, CA 90066
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
KATHERINE KINSEY, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 18, 2012.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court