Case Number(s): 12-O-13577
In the Matter of: Mark Alan Rogers, Bar # 186442, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Ross Viselman, 1149 South Hill Street
Los Angeles, California 90015
(213) 765-1295
Bar # 204979,
Counsel for Respondent: In Pro Per Respondent
Mark Alan Rogers
225 South Lake Avenue, Suite 300
Pasadena, California 91101
(626) 432-5421
Bar#186442
Submitted to: Settlement 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 December 10, 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 12 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 (2) billing cycles immediately following the effective date of the Supreme Court 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 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-13577
In the Matter of: Mark Alan Rogers
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: Francis Drye
Principal Amount: $1,500
Interest Accrues From: June 22, 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 .
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): Francis Drye
Minimum Payment Amount: $40-
Payment Frequency; Quaterly
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
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: Mark Alan Rogers, State Bar No. 186442
STATE BAR COURT CASE NUMBER: 12-O-13577
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-13577 (Complainant: Francis Drye)
FACTS:
1. In 2007, Francis Drye ("Drye") employed Respondent to represent her in the administration of Drye’s estate. Prior to Drye employing Respondent, Respondent had assisted Drye’s family in administering the estate of Drye’s mother.
2. On June 22, 2009, while Respondent was representing Drye in the administration of her estate, Respondent approached Drye and asked to borrow $ 10,000.
3. On June 22, 2009, Drye loaned $10,000 to Respondent pursuant to a promissory note which provided for repayment of the principal mount plus 10 percent interest "in a single, lump sum" by June 22, 2010.
4. Prior to accepting the loan, Respondent did not advise Drye in writing that she could seek the advice of an independent lawyer of Drye’s choice. Prior to accepting the loan, Respondent did not allow Drye an opportunity to seek independent legal advice. Respondent never obtained Drye’s written consent to the terms of the loan.
5. The terms of the loan did not requh’e Respondent to provide any security to Drye to ensure repayment of the loan, mad Respondent did not provide any security to Drye.
6. During the period from about March 2011 through December 2012, Respondent paid a total of $8,500 to Drye in repayment of the loan. Respondent has not paid the balance of the loan.
CONCLUSIONS OF LAW:
7. By taking a loan from Drye without providing any security to ensure repayment, Respondent entered into a transaction with a client under terms that were unfair and unreasonable to the client in violation of Rules of Professional Conduct, rule 3-300(A).
8. By taking a loan from Drye without advising her that she may seek the advice of independent counsel, by failing to give her a reasonable opportunity to seek independent counsel, and by failing to obtain her informed written consent to the terms, Respondent improperly entered into a business transaction with his client in violation of Rules of Professional Conduct, rule 3-300(B).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Harm: Respondent’s misconduct harmed his client significantly. Respondent borrowed $10,000 from his client, who trusted him by virtue of their attorney-client relationship. Although Respondent has made payments on the loan, he still has not paid the loan in full. (Std. 1.2(b)(iv).)
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
No Prior Discipline: Although Respondent’s misconduct is serious, he has no prior discipline over 13 years of practice. (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr 41, 49.)
Candor/Cooperation: Respondent was candid and cooperative during the investigation of this case and is further cooperating by entering into this Stipulation to resolve this matter before the filing of disciplinary charges. (In the Matter of Riordan (Review Dept. 2007) 5 Cat. State Bar Ct. Rptr 4l, 50.)
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 CaI.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 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 2.8 provides that a violation of Rule of Professional Conduct 3-300 "shall result in suspension unless the extent of the member’s misconduct and the harm to the client are minimal, in which case, the degree of discipline shall be reproval."
The Supreme Court has previously dealt with a circumstances in which an attorney entered into a loan transaction with a client without obtaining informed written consent. (See Hunniecutt v. State Bar (1988) 44 Cal.3d 362, 367-69). As with the client in Hunniecutt, Respondent’s client loaned money to Respondent because she "trusted" him in handling her personal affairs. Also, as in Hunniecutt, the loan was unsecured, which is "an indication of unfairness." (M. at 373.). In addition to the 3-300 violation, the Hunniecutt Court found the attorney culpable in two cases of client abandonment, and noted mitigation based on years in practice without discipline, and the attorney’s marital difficulties. Based on the two client abandonment cases and the 3-300 violation, the Supreme Court imposed three years stayed suspension, and three years probation with 90 days’ actual suspension plus restitution.
This case involves a single client/single transaction without the additional client abandonment matters in Hunniecutt. Respondent is entitled to mitigation due to a lack of prior discipline and his candor and cooperation. Although Respondent’s misconduct is serious, it does not rise to the level of misconduct exhibited in Hunniecut. For these reasons, discipline of two years of stayed suspension and two years of probation with 60 days of actual suspension is supported.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was December 20, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of December 18, 2012, the prosecution costs in this matter are $2,797. 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-13577
In the Matter of: Mark Alan Rogers
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: Mark Alan Rogers
Date: December 26, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Ross E. Viselman
Date: December 26, 2012
Case Number(s): 12-O-13577
In the Matter of: Mark Alan Rogers
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: Richard A. Platel
Date: January 3, 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 15, 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:
MARK A. ROGERS
225 S LAKE AVE #300
PASADENA, CA 91101
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Ross E. Viselman, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 15, 2013.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court