State Bar Court of California
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER
SUSPENSION; NO ACTUAL SUSPENSION
Case Number(s): 12-O-13461
In the Matter of: RICHARD D. ACKERMAN, Bar # 171900, A Member
of the State Bar of California, (Respondent).
Counsel For The State Bar: Lee Ann Kern, Bar #156623
Counsel for Respondent: Richard D. Ackerman, Bar #171900
Submitted to: Assigned Judge
Filed: May 2, 2013.
<<not>> checked. PREVIOUS STIPULATION
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.
A. Parties' Acknowledgments:
Respondent is a member of the State Bar of California, admitted November
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
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
A statement of acts or omissions acknowledged by Respondent as cause or
causes for discipline is included under "Facts."
Conclusions of law, drawn from and specifically referring to the facts
are also included under "Conclusions of Law".
The parties must include supporting authority for the recommended level
of discipline under the heading "Supporting Authority."
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.
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.
are to be paid in equal amounts prior to February 1 for the following
membership years: The three billing cycles immediately following the effective
date of the Supreme Court’s 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
checked. Costs are waived in part as set forth in a separate attachment
entitled "Partial Waiver of Costs".
checked. Costs are entirely waived.
B. Aggravating Circumstances [for definition, see Standards for
Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts
supporting aggravating circumstances are required.
<<not>> checked. (1) Prior
record of discipline [see standard 1.2(f)].
<<not>> checked. (a) State Bar Court case # of prior case .
<<not>> checked. (b) Date prior discipline effective
<<not>> checked. (c) Rules of Professional Conduct/ State
Bar Act violations:
<<not>> checked. (d) Degree of prior discipline
<<not>> checked. (e) If Respondent has two or more
incidents of prior discipline, use space provided below or a separate
attachment entitled “Prior Discipline. .
<<not>> checked. (2) Dishonesty:
Respondent's misconduct was surrounded by or followed by bad faith, dishonesty,
concealment, overreaching or other violations of the State Bar Act or Rules of
<<not>> checked. (3) Trust
Violation: Trust funds or property were involved and Respondent refused or was
unable to account to the client or person who was the object of the misconduct
for improper conduct toward said funds or property.
checked. (4) Harm: Respondent's
misconduct harmed significantly a client, the public or the administration of
justice. See Attachment to Stipulation, at p. 8.
<<not>> checked. (5) Indifference:
Respondent demonstrated indifference toward rectification of or atonement for
the consequences of his or her misconduct.
<<not>> checked. (6) Lack of
Cooperation: Respondent displayed a lack of candor and cooperation to victims
of his/her misconduct or to the State Bar during disciplinary investigation or
<<not>> checked. (7) Multiple/Pattern
of Misconduct: Respondent's current misconduct evidences multiple acts of
wrongdoing or demonstrates a pattern of misconduct.
<<not>> checked. (8) No
aggravating circumstances are involved.
Additional aggravating circumstances: .
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
<<not>> checked. (1) No Prior
Discipline: Respondent has no prior record of discipline over many years of
practice coupled with present misconduct which is not deemed serious.
<<not>> checked. (2) No Harm:
Respondent did not harm the client or person who was the object of the
<<not>> checked. (3) Candor/Cooperation:
Respondent displayed spontaneous candor and cooperation with the victims of
his/her misconduct and to the State Bar during disciplinary investigation and
<<not>> checked. (4) Remorse:
Respondent promptly took objective steps spontaneously demonstrating remorse
and recognition of the wrongdoing, which steps were designed to timely atone
for any consequences of his/her misconduct.
<<not>> checked. (5) Restitution:
Respondent paid $ on in restitution to without the threat or force of
disciplinary, civil or criminal proceedings.
<<not>> checked. (6) Delay:
These disciplinary proceedings were excessively delayed. The delay is not
attributable to Respondent and the delay prejudiced him/her.
<<not>> checked. (7) Good
Faith: Respondent acted in good faith.
<<not>> checked. (8) Emotional/Physical
Difficulties: At the time of the stipulated act or acts of professional
misconduct Respondent suffered extreme emotional difficulties or physical
disabilities which expert testimony would establish was directly responsible
for the misconduct. The difficulties or disabilities were not the product of
any illegal conduct by the member, such as illegal drug or substance abuse, and
Respondent no longer suffers from such difficulties or disabilities.
<<not>> checked. (9) Severe
Financial Stress: At the time of the misconduct, Respondent suffered from
severe financial stress which resulted from circumstances not reasonably
foreseeable or which were beyond his/her control and which were directly
responsible for the misconduct.
<<not>> checked. (10) Family
Problems: At the time of the misconduct, Respondent suffered extreme
difficulties in his/her personal life which were other than emotional or
physical in nature.
<<not>> checked. (11) Good
Character: Respondent's good character is attested to by a wide range of
references in the legal and general communities who are aware of the full extent
of his/her misconduct.
<<not>> checked. (12) Rehabilitation:
Considerable time has passed since the acts of professional misconduct occurred
followed by convincing proof of subsequent rehabilitation.
<<not>> checked. (13) No
mitigating circumstances are involved.
Additional mitigating circumstances:
See Attachment to Stipulation, at p. 8.
checked. (1) Stayed Suspension:
checked. (a) Respondent must be suspended from the
practice of law for a period of one year.
<<not>> checked. i. and until Respondent shows proof satisfactory
to the State Bar Court of rehabilitation and present fitness to practice and
present learning and ability in the law pursuant to standard 1.4(c)(ii)
Standards for Attorney Sanctions for Professional Misconduct.
<<not>> checked. ii. and until Respondent pays restitution as
set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following:
<<not>> checked. (b) The above-referenced suspension is
checked. (2) Probation: Respondent
must be placed on probation for a period of two years, which will commence upon
the effective date of the Supreme Court order in this matter. (See rule 9.18,
California Rules of Court.)
E. Additional Conditions of Probation:
checked. (1) During the probation
period, Respondent must comply with the provisions of the State Bar Act and
Rules of Professional Conduct.
checked. (2) Within ten (10) days
of any change, Respondent must report to the Membership Records Office of the
State Bar and to the Office of Probation of the State Bar of California
("Office of Probation"), all changes of information, including
current office address and telephone number, or other address for State Bar
purposes, as prescribed by section 6002.1 of the Business and Professions Code.
checked. (3) Within thirty (30)
days from the effective date of discipline, Respondent must contact the Office
of Probation and schedule a meeting with Respondent's assigned probation deputy
to discuss these terms and conditions of probation. Upon the direction of the
Office of Probation, Respondent must meet with the probation deputy either
in-person or by telephone. During the period of probation, Respondent must
promptly meet with the probation deputy as directed and upon request.
checked. (4) Respondent must
submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10
of the period of probation. Under penalty
of perjury, Respondent must state whether Respondent has complied with the State
Bar Act, the Rules of Professional Conduct, and all conditions of probation
during the preceding calendar quarter. Respondent must also state whether there
are any proceedings pending against him or her in the State Bar Court and if
so, the case number and current status of that proceeding. If the first report
would cover less than 30 days, that report must be submitted on the next
quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same information,
is due no earlier than twenty (20) days before the last day of the period of
probation and no later than the last day of probation.
<<not>> checked. (5) Respondent
must be assigned a probation monitor. Respondent must promptly review the terms
and conditions of probation with the probation monitor to establish a manner
and schedule of compliance. During the period of probation, Respondent must
furnish to the monitor such reports as may be requested, in addition to the
quarterly reports required to be submitted to the Office of Probation.
Respondent must cooperate fully with the probation monitor.
checked. (6) Subject to assertion
of applicable privileges, Respondent must answer fully, promptly and truthfully
any inquiries of the Office of Probation and any probation monitor assigned
under these conditions which are directed to Respondent personally or in
writing relating to whether Respondent is complying or has complied with the
checked. (7) Within one (1) year
of the effective date of the discipline herein, Respondent must provide to the
Office of Probation satisfactory proof of attendance at a session of the Ethics
School, and passage of the test given at the end of that session.
<<not>> checked. No Ethics School recommended. Reason: .
<<not>> checked. (8) Respondent
must comply with all conditions of probation imposed in the underlying criminal
matter and must so declare under penalty of perjury in conjunction with any
quarterly report to be filed with the Office of Probation.
<<not>> checked. (9) The
following conditions are attached hereto and incorporated:
checked. Substance Abuse Conditions.
checked. Law Office Management Conditions.
checked. Medical Conditions.
checked. Financial Conditions.
F. Other Conditions Negotiated by the Parties:
checked. (1) Multistate
Professional Responsibility Examination: Respondent must provide proof of
passage of the Multistate Professional Responsibility Examination
("MPRE"), administered by the National Conference of Bar Examiners,
to the Office of Probation within one year. Failure to pass the MPRE results
in actual suspension without further hearing until passage. But see rule
9.10(b), California Rules of Court, and rule 5.162(A) & (E), Rules of Procedure.
<<not>> checked. No MPRE recommended. Reason: .
<<not>> checked. (2) Other
Attachment language (if any): .
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: Richard D. Ackerman, State Bar No. 171900
STATE BAR COURT CASE NUMBER: 12-O-13461
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-13461 (Complainant: Gary Beaudrie)
1. In June 2007, Gary Beaudrie ("Beaudrie") hired Respondent to
represent him in a construction defect matter in the Riverside County Superior
Court in which Beaudrie was the plaintiff ("the civil matter").
Beaudrie paid Respondent $7,000 in advanced fees and agreed to pay Respondent a
contingency fee of 10% of any recovery in the case.
2. In April 2011, a court trial was held in the civil matter. On October
18, 2011, the court entered judgment against Beaudrie. Thereafter, Beaudrie had
180 days to file and serve a notice of appeal of the judgment in the civil
3. On December 8, 2011, Respondent met with Beaudrie and Beaudrie paid
Respondent $200 in advance fees to appeal the civil matter. On that date,
Respondent and Beaudrie went to the courthouse to obtain documents from the
4. On December 19, 2011, Respondent informed Beaudrie that Respondent would
file the appeal after January 1, 2012.
5. On January 5, 2012, Respondent caused an email to be sent to
Respondent’s clients, including Beaudrie. In the email, Respondent stated that
he had had an acute illness the prior six weeks and that his disabilities
affected his practice. Respondent apologized for the delays in the cases and
invited his clients to contact him to discuss their respective cases.
Respondent did not inform Beaudrie that he was unable to handle the appeal.
6. On January 11, 2012, January 18, 2012, February 5, 2012, and February
24, 2012, Beaudrie sent emails to Respondent in which he asked Respondent to
contact Beaudrie to discuss the status of his appeal. Respondent received the
emails, but did not communicate with Beaudrie.
7. Respondent had until on or about April 15, 2012 to file and serve a
notice of appeal in the civil matter. Respondent failed to appeal the civil
matter and the time within which Beaudrie could have done so has expired.
8. On May 21, 2012, Respondent and Beaudrie met briefly to discuss
Beaudrie’s appeal. On that date, Respondent agreed to meet again with Beaudrie
on May 24, 2012, but Respondent later cancelled that appointment. From late May
2012 to the present, Respondent has failed to communicate with Beaudrie about
9. At no time did Respondent advise Beaudrie that the time within which
Beaudrie could have appealed the civil matter has expired.
CONCLUSIONS OF LAW:
10. By failing to provide Beaudrie with the status of his appeal and by
failing to inform him the time within which Beaudrie could have appealed the
civil matter has expired, Respondent failed to respond promptly to reasonable
status inquiries of a client in a matter in which Respondent had agreed to
provide legal services and failed to inform his client of significant
developments, in willful violation of Business and Professions Code section
11. By failing to timely appeal the civil 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).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Harm (Std. 1.2(b)(iv)): Respondent failed to appeal the civil matter and
the time within which Beaudrie could have appealed the matter has expired. (ln
the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631
[attorney’s loss of client’s cause of action constituted significant harm].)
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Additional Mitigating Circumstances:
No Prior Discipline: Respondent has no prior record of discipline in just
over 18 years of practice. Although the misconduct in the instant matter is
serious, the Supreme Court has nonetheless considered the absence of a prior
record of discipline in mitigation. (See Edwards vs. State Bar (1990) 52 Cal.3d
28, 31-32, 36, 39, where mitigative credit was given for almost 12 years of
discipline-free practice despite intentional misappropriation and commingling).]
Cooperation: Respondent stipulated to facts, conclusions of law, and
disposition in order to resolve his disciplinary proceedings as efficiently as
possible. (Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079 [mitigative
credit given to the attorney for admitting facts and culpability in order to
simplify the disciplinary proceedings against her].)
Character References: Nine friends, 21 former and current clients
(including four pro bono clients), and a priest wrote letters on behalf of
Respondent attesting to his good character. Two of those people, who were
clients, were familiar with the extent of Respondent’s misconduct. (In the
Matter of Oheb (Review Dept. 2006) 4 Cal. State Bar. Ct. Rptr. 920, 939
[Mitigating credit given, but reduced where good character witnesses possess
inadequate knowledge of misconduct],)
Civic and Pro Bono Activities: Respondent served as past President and
Board Member of the Mount San Jacinto College Foundation from 2008-2010;
Director at Large for the Riverside County Bar Association in 2010; Mandatory
Continuing Legal Education Chair for the Riverside County Bar Association from
2009 to the present; Board of Directors for the Riverside County Bar
Association from 2010 to 2011; Board Member and Volunteer for the Public
Service Law Corporation from 2006 to the present; and, Judge Pro Tem for the
Riverside County Superior Court from 2004 to 2009. In 2009, Respondent received
the Wiley W. Manuel Certificate for Pro Bono Services from the State Bar of
California. In 2007, Respondent received the John R. Parker Award from the
Pacific Justice Institute for his work with civil rights. (Porter v. State Bar
(1990) 52 Cal.3d 518, 529 [Attorney’s participation in civic service and pro
bono activities may be evidence of mitigation].)
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, (ln 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.)
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 the applicable standards. Standards 2.4(b) and 2.6 are the standards that
govern the misconduct in this matter. The most severe sanction prescribed by
the applicable standards is standard 2.6, which applies to Respondent’s
violation of Business and Professions Code section 6068(m) and provides for
disbarment or suspension. Since subdivision (m) was not added to Business and
Professions Code section 6068 until one year after the effective date of the
Standards for Attorney Sanctions, a failure to communicate originally fell
under standard 2.4, which applies to offenses involving the willful failure to
communicate and perform and provides for a range of reproval or suspension. As
such, standard 2.4(b) is the standard applicable to all charges of misconduct
in the instant matter. That standard provides for a sanction in the range of
reproval or suspension depending upon the extent of the misconduct and the
degree of harm to the client.
Respondent’s misconduct in the single client matter resulted in harm to the
client. Although Respondent’s misconduct is aggravated by the harm, it is
mitigated by his 18 years of discipline-free practice, his willingness to enter
into this stipulation, his civic and pro bono activities, and his limited good
character references. Application of the standards to the facts of this case
demonstrates that discipline of one year stayed suspension is the appropriate
sanction for Respondent’s misconduct.
The recommended disposition is consistent with the range of discipline
shown by case law. (King vs. State Bar (1990) 52 Cal.3d 307 [Three months
actual suspension and four years’ stayed suspension imposed when an attorney,
in two matters, failed to perform legal services in a competent manner, failed
to return client files, and violated his oath and duties]; Van Sloten v. State
Bar (1989) 48 Cal.3d 921 [Six months stayed suspension and one year probation
imposed when an attorney, in a single client matter, failed to perform legal
services with competence which did not result in serious consequences to the
The recommended discipline of one year stayed suspension two years’
probation is adequate to protect the public, the courts, and the legal
The disclosure date referred to on page 2, paragraph A(7), was March 15,
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has
informed respondent that as of March 15, 2013, 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.
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.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-13461
In the Matter of: Richard D. Ackerman
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.
Respondent: Richard D. Ackerman
Deputy Trial Counsel: Lee Ann Kern
STAYED SUSPENSION ORDER
Case Number(s): 12-O-13461
In the Matter of: Richard D. Ackerman
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.)
Judge of the State Bar Court: George E. Scott, Judge Pro Tem
CERTIFICATE OF SERVICE
[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 May 2, 2013,
I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
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
RICHARD D. ACKERMAN
LAW OFFICES OF R.D. ACKERMAN
4129 MAIN STREET
RIVERSIDE, CA 92501
<<not>> checked. by certified mail, No. , with return receipt
requested, through the United States Postal Service at , California, addressed
<<not>> checked. by overnight mail at , California, addressed
<<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:
LEE ANN KERN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los
Angeles, California, on May 2, 2013.
State Bar Court