State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

REPROVAL

Case Number(s): 12-O-14049

In the Matter of: ANDREW IRWIN ROTH, Bar # 49151, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Lee Ann Kern, Bar #156623,

Counsel for Respondent: Susan Margolis, Bar #104629,

Submitted to: Settlement Judge.

Filed: September 27, 2013.

  <<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.

A. Parties' Acknowledgments:

1. Respondent is a member of the State Bar of California, admitted May 11, 1971.

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):

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.

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 Professional Conduct. 

<<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.

<<not>> checked. (4) Harm:  Respondent's misconduct harmed significantly a client, the public or the administration of justice.

<<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 proceedings. 

<<not>> checked. (7) Multiple/Pattern of Misconduct:  Respondent's current misconduct evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct.

checked. (8)            No aggravating circumstances are involved.

Additional aggravating circumstances: .

C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating circumstances are required.

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. See Stipulation Attachment at p. 8.

checked. (2)            No Harm:  Respondent did not harm the client or person who was the object of the misconduct.  See Stipulation Attachment at p. 8.

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 proceedings.  See Stipulation Attachment at p. 8.

<<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 Stipulation Attachment at p. 8.

D. Discipline:

<<not>> checked. (1)  Private reproval (check applicable conditions, if any, below):

<<not>> checked. (a) Approved by the Court prior to initiation of the State Bar Court proceedings (no public disclosure).

<<not>> checked. (b)Approved by the Court after initiation of the State Bar Court proceedings (public disclosure).

or

checked. (2)                Public reproval (Check applicable conditions, if any below)

E. Additional Conditions of Reproval:

checked. (1)            Respondent must comply with the conditions attached to the reproval for a period of one year.

checked. (2)            During the condition period attached to the reproval, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

checked. (3)            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. (4)            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. (5)            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 the condition period.

<<not>> checked. (6) 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 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 monitor.

checked. (7)            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 conditions attached to the reproval.

checked. (8)            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 State Bar Ethics School, and passage of the test given at the end of that session.
<<not>> checked. No Ethics School recommended.  Reason: .

<<not>> checked. (9) 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.

checked. (10) 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 of the effective date of the reproval.
<<not>> checked. No MPRE recommended.  Reason: .

<<not>> checked. (11) The following conditions are attached hereto and incorporated:

<<not>> checked. Substance Abuse Conditions.

<<not>> checked. Law Office Management Conditions.

<<not>> checked. Medical Conditions.

<<not>> checked. Financial Conditions.

F. Other Conditions Negotiated by the Parties:

Attachment language (if any):.

ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

IN THE MATTER OF: ANDREW IRWIN ROTH, State Bar No. 49151

STATE BAR COURT CASE NUMBER: 12-O-14049

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. 12-0-14049 (Complainant: Manuel "Don" Avila and Diane Avila)

FACTS:

1. In or about June 2009, Respondent was a shareholder with the law firm of Reid and Hellyer ("the firm"). At or about that time, Manuel Donald Avila and Diane Avila (collectively "the Avilas") consulted with Respondent regarding their intention to pursue a lawsuit against American Medical Response ("AMR"), an ambulance service, regarding injuries Diane Avila sustained on July 23, 2007.

2. Respondent believed that the one-year MICRA statute of limitations relating to health care providers probably applied to the Avilas’ case and that the statute of limitations had already expired in July 2008. However, since he was not entirely certain whether the statute had run, Respondent agreed to file a civil complaint to preserve the case in the event a two-year statute of limitations applied to their case. Respondent also intended to arrange for some preliminary investigation into the matter involving AMR.

3. On or about June 23, 2009, the Avilas paid the firm $400 in costs. That day, Respondent filed a civil lawsuit on behalf of the Avilas in the Riverside County Superior Court entitled Avila vs. American Medical Response, case no. RIC529570, in which he set forth causes of action for general negligence and breach of contract. Respondent signed the civil lawsuit as counsel for the Avilas.

4. Respondent’s intent was to assist the Avilas by preserving whatever causes of action might still be available, and to have the Avilas hire other counsel who would be willing to take over the case. Respondent did not intend to continue with the case but, instead, substitute out in place of other counsel because he was concerned about issues of causation, the expense of hiring medical experts on the issue of causation, and the fact that it was not the type of case that he or his law firm normally handled.

5. Respondent did not serve the Summons and Complaint on AMR. In the two years following the filing of the civil action, Respondent attempted to find an attorney who would represent the Avilas in the matter and believed the Avilas were also looking for an attorney to take over their case. Respondent did not adequately inform the Avilas of the probable consequences that would occur if the Summons and Complaint were not served in their case.

6. On or about September 21, 2009, the court set a Case Management Conference ("CMC") C") and issued an Order to Show Cause ("OSC") for December 21, 2009, as to why sanctions in the amount of $150 should not be imposed for failing to file the proof of service of the Summons and Complaint. On or about December 21, 2009, Respondent appeared at the CMC/OSC and the court continued the hearing to April 1, 2010.

7. On or about April 1, 2010, Respondent did not appear at the CMC/OSC. On that date, the court imposed sanctions on the Avilas and Respondent in the amount of $150 for failure to file the proof of service of the Summons. The court continued the OSC to October 1, 2010, as to why sanctions in the amount of $500 should not be ordered for failing to file the proof of service. The court also set an additional OSC for that date as to why sanctions in the amount of $250 should not be ordered for Respondent’s failure to appear at the CMC/OSC. Respondent timely paid the $150 sanction that had been ordered on April 1, 2010. Respondent did not inform the Avilas of the sanction order.

8. On or about October 1, 2010, Respondent appeared at the OSC. The OSC was continued and scheduled to be heard at a November 17, 2010 CMC. On or about November 17, 2010, Respondent appeared at the CMC/OSC and the matters were continued to February 16, 2011. On or about February 16, 2011, Respondent appeared at the CMC/OSC and the matter was continued to May 23, 2011. On or about May 23,2011, Respondent appeared at the CMC/OSC. No sanctions were imposed for Respondent’s failure to attend the CMC or the failure to file the proof of service of the summons. On that date, the court set an OSC for July 25, 2011, as to the failure to prosecute the civil matter.

9. On or about July 11, 2011, the Avilas received a letter from the firm correctly informing the Avilas that Respondent was no longer employed with the firm of Reid and Hillyer. The letter further stated that Respondent had gone into private practice and he had taken their case with him.

10. On or about July 25, 2011, Respondent failed to appear at the OSC. At the hearing, the court dismissed the entire civil matter without prejudice for failure to prosecute because the Summons and Complaint had not been served. Respondent did not promptly inform the Avilas that their civil matter had been dismissed.

11. The one-year MICRA statute of limitations relating to health care providers applied to the Avilas’ case. As such, the statute of limitations as to the causes of action in the civil matter had already expired in July 2008, a year prior to the date on which the Avilas hired Respondent.

CONCLUSIONS OF LAW:

12. By failing to fully advise the Avilas of the lack of viability of their case against AMR, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).

13. By failing to inform the Avilas of the $150 sanction order and by failing to promptly inform them that their case had been dismissed, Respondent willfully violated Business and Professions Code section 6068(m).

ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.

No Prior Discipline (Std. 1.2(e)(i)): Respondent has no prior record of discipline in 42 years of practice.

No Harm (Std. 1.2(e)(iii)): The Avilas did not lose their cause of action as a result of Respondent’s misconduct because the statute of limitations had expired in the Avilas’ civil action prior to the date on which they hired Respondent.

Additional Mitigating Circumstances:

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].)

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. (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.)

Respondent admits to two violations of professional misconduct arising out of the handling of a single client matter. 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). That standard provides that culpability of a member of a violation of that Business and Professions Code section shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.

Notwithstanding, Business and Professions Code section 6068(m) was enacted effective January 1, 1987, one year after the adoption of standard 2.6. Prior to the enactment of Business and Professions Code section 6068(m), a violation of the attorney’s duty to communicate fell under Standard 2.4 which applies to offenses involving willful failure to communicate and perform services. Under the circumstances, it is appropriate to deviate from standard 2.6 and apply standard 2.4(b). Standard 2.4(b) 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 is limited to one client matter over a period of approximately two years. Although Respondent failed to handle the Avilas’ matter properly, his misconduct did not cause the loss of their cause of action, which was barred by the statute of limitations prior to his employment. Respondent’s misconduct is further mitigated by his 42 years of discipline-free practice and his willingness to enter into a stipulation as to facts, conclusions of law, and disposition in order to resolve his disciplinary proceedings as efficiently as possible. There are no factors in aggravation.

The recommended discipline is consistent with case law. In Van Sloten v. State Bar (1989) 48 Cal.3d 921, six months stayed suspension and one year probation was 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 client. In mitigation, Van Sloten had no prior discipline in the five years after he was admitted to practice and the date of the misconduct. In addition, the Court determined that he had an honest, but mistaken belief in his innocence. In aggravation, he failed to appreciate the seriousness of the charges against him when he failed to appear before the Review Department.

A lesser sanction than that imposed in Van Sloten is appropriate given Respondent’s compelling mitigation and the absence of aggravating circumstances surrounding his misconduct. The recommended discipline of a public reproval is adequate to protect the public, the courts, and the legal profession.

COSTS OF DISCIPLINARY PROCEEDINGS.

Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of September 10, 2013, the prosecution costs in this matter are $3,419. 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-14049

In the Matter of: Andrew Irwin Roth

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: Andrew Irwin Roth

Date: 9/10/13

Respondent’s Counsel: Susan Margolis

Date: 9/11/13

Deputy Trial Counsel: Lee Ann Kern

Date: 9/11/13

REPROVAL ORDER

Case Number(s): 12-O-14049

In the Matter of: Andrew Irwin Roth

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: Richard A. Honn

Date: 9/23/13

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 September 27, 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 , California, addressed as follows:

 SUSAN LYNN MARGOLIS

MARGOLIS & MARGOLIS LLP

2000 RIVERSIDE DR.

LOS ANGELES, CA 90039

<<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:

 LEE KERN, Enforcement, Los Angeles

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 27, 2013.

Signed by:

Rose M. Luthi

Case Administrator

State Bar Court