Case Number(s): 12-O-14749
In the Matter of: ROGER ALLEN MOORE, Bar # 146375, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Tammy M. Albertsen, Bar # 154248,
Counsel for Respondent: Roger Allen Moore, Bar # 146375,
Submitted to: Settlement Judge.
Filed: November 19, 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.
1. Respondent is a member of the State Bar of California, admitted June 13, 1990.
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 11 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: Costs are to be paid in equal amounts over the three billing cycles 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.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: ROGER ALLEN MOORE, State Bar No. 146375
STATE BAR COURT CASE NUMBER: 12-O-14749
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-14749 (Complainant: Mary Libecki)
FACTS.
1. On May 15, 2008, Mary Libecki hired Respondent to prosecute a personal injury/slip and fall lawsuit based on an accident that occurred on January 13, 2008. Respondent did not immediately file the lawsuit.
2. Based on lax office procedures, Respondent did not file the complaint until after the statute of limitations had expired. Respondent eventually dismissed the lawsuit (with each side to bear its own costs) after defense counsel informed Respondent that the lawsuit had no merit.
3. Prior to December 2012, the State Bar opened a case against Respondent based on a complaint made by Mary Libecki ("the Libecki matter"). During the course of discussions with the State Bar, Respondent stated that he had legal malpractice insurance coverage at the time he represented Libecki. At the time he made the statement, Respondent erroneously believed he had malpractice coverage in effect.
4. In truth and in fact, Respondent’s legal malpractice coverage had lapsed during the time he represented Mary Libecki. Respondent was grossly negligent when he made these statements without first verifying the truth of the statements. The statements were false and Respondent made these statements with reckless disregard for the truth.
5. On December 11, 2012, Respondent entered into an Agreement in Lieu of Discipline ("ALD") with the State Bar in the Libecki matter. Respondent was required to comply with certain conditions attached to the ALD, including as follows:
Respondent has represented that he has, at all relevant times, maintained malpractice insurance coverage. Within 10 days of the date this agreement is entered, Respondent will send a letter to Mary Libecki by certified mail, return receipt requested, notifying her of the insurance policy number and carrier. In his first quarterly report, Respondent must provide proof both of his malpractice coverage and his notification to Libecki to the Office of Probation.
6. On December 27, 2012, Respondent sent Libecki a letter informing her that that his malpractice insurance was not in effect during the period covering his representation of her. Respondent sent this letter after the deadline, set forth in the ALD.
7. On February 15, 2013, a State Bar investigator sent Respondent a letter of inquiry requesting a written response, together with specified information, to the allegation that Respondent made a misrepresentation to the State Bar concerning his possession of legal malpractice insurance. Respondent received the investigation letter shortly after it was sent, but did not respond to it.
CONCLUSIONS OF LAW.
8. By failing to promptly file the lawsuit and failing to file the lawsuit prior to the expiration of the statute of limitations, Respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence, in willful violation of Rules of Professional Conduct, rule 3-110(A).
9. By failing to send a letter to Mary Libecki by certified mail, return receipt requested, notifying her of the insurance policy number and carrier within 10 days of the date the ALD was entered, Respondent failed to keep all agreements made in lieu of disciplinary prosecution with the agency charged with attorney discipline, in willful violation of Business and Professions Code, section 60680).
10. By reporting to the State Bar that he had been covered by legal malpractice insurance when Respondent should have known that his coverage had lapsed and, therefore, the statement of coverage was false, Respondent was grossly negligent and committed an act involving moral turpitude, dishonesty and corruption in willful violation of Business and Professions Code, section 6106.
11. By failing to respond to the letter of inquiry and failing to otherwise cooperate and participate in the State Bar’s investigation of the misrepresentation allegation, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent, in willful violation of Business and Professions Code section 6068(i).
ADDITIONAL FACTS RE: AGGRAVATING CIRCUMSTANCES.
Harm (Std. 1.2(b) (iv)): Respondent’s failure to file Libecki’s lawsuit within the statute of limitations caused Libecki significant harm because she lost her right to pursue her personal injury claim. (In The Matter of Dahlz (Review Dept. 2001) 4 Cal. State Bar Ct. Rptr. 269, 283; citing In the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631,642, 646 [client’s loss of her cause of action constitutes significant harm to the client].)
Multiple Acts of Misconduct (Std. 1.2(b) (ii)): Respondent’s four separate acts represent multiple acts of misconduct.
ADDITIONAL FACTS RE: MITIGATING CIRCUMSTANCES.
No Prior Record of Discipline: Although Respondent’s misconduct is serious, he has no prior record of discipline in 20 years of practice prior to the first act of misconduct herein and is entitled to mitigation. (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 2013); In the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn. 13.)
Pretrial Stipulation: Respondent is entitled to mitigation for entering into this stipulated settlement without the need of a trial to resolve this matter. (Silva-Zidor ~. State Bar (1989) 49 Cal.3d 1071, 1079 [where mitigative credit was given for entering into a stipulation as to facts and culpability].) However, mitigation is tempered by Respondent’s failure to cooperate and participate in the State Bar’s investigation.
Remedial Steps:
Respondent took the following remedial steps after committing misconduct:
Respondent offered to mediate the malpractice claim and to abide by the mediator’s decision. To date, however, Libecki has not availed herself of the offer.
Respondent acknowledges that disorganization of his law office contributed to the misconduct at issue herein. Therefore, in March 2013, Respondent hired Ellen Michaels to assist Respondent in the complete reorganization of his law office and files. Ms. Michaels has over 20 years of experience and expertise in business management and ownership. Ms. Michaels created a calendaring system that is accessible by and notifies multiple office personnel to insure coverage for all calendared matters. The calendaring system applies to court appearances, filing deadlines, client meetings and all other matters within the office that have a deadline. Ms. Michaels also reviewed each of Respondent’s client files to determine current status, any pending deadlines, properly insertion of file documents, payments due to service providers or clients and any other issues that may have been present for any given file. Ms. Michaels analyzed the banking methods used by the office and updated all recordkeeping and software to avoid any improper client trust account handling. Ms. Michaels oversaw and advised regarding Respondent’s new file acceptances to ensure that Respondent’s caseload is amenable to the taking on of new matters to prevent Respondent’s being overloaded by work he may not be able to finish in a timely manner. Ms. Michaels is now on Respondent’s permanent staff. As such, MS. Michaels has instituted weekly meetings with Respondent to go over the status of each file and pending office issues and will continue to do so going forward. In addition, Ms. Michaels and Respondent will now keep each file and office matter current going forward.
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. (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 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.
The most severe sanction applicable to Respondent’s misconduct is found in standard 2.3, which provides that "culpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client or another person or of concealment of a material fact to a court, client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law."
Here, Respondent failed to file Libecki’s lawsuit within the statute of limitations, resulting in the loss of her claim. Respondent then was grossly negligent in representing that he had malpractice insurance and failed to keep all agreements in lieu of discipline. Finally, Respondent failed to cooperate in the State Bar’s investigation in this matter.
In aggravation, Respondent committed multiple acts of misconduct and caused significant harm to his client, depriving her of the opportunity to litigate her claim.
Respondent is entitled to significant weight in mitigation for ten years of practice without discipline. Respondent is also entitled to mitigation for entering into this stipulation. However, the weight is tempered by Respondent’s failure to cooperate in the investigation. In addition, Respondent did offer mediation to Libecki to resolve the malpractice issue. Furthermore, he has taken steps to reorganize all aspects of his law practice to avoid repeating the misconduct at issue herein.
In light of Respondent’s misconduct, the applicable standard, and the aggravating and mitigating circumstances, discipline including a 30-day actual suspension is necessary in order to accomplish the purposes of attorney discipline as delineated in Standard 1.3.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of September 24, 2013, the prosecution costs in this matter are $5,418. 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 and/or any other educational course(s) to be ordered as a condition of reproval or suspension. (Rules Prec. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-14749
In the Matter of: ROGER ALLEN MOORE
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: ROGER ALLEN MOORE
Date: 11/6/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Tammy M. Albertsen
Date: 11/7/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-O-14749
In the Matter of: ROGER ALLEN MOORE
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
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: Pat McElroy
Date: 11/19/13
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 San Francisco, on November 19, 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 San Francisco, California, addressed as follows:
ROGER A. MOORE
LAW OFC ROGER A MOORE
2291 W MARCH LN STE. A102
STOCKTON, CA 95207
<<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:
TAMMY A. ALBERTSEN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on November 19, 2013.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court