State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER
APPROVING
STAYED
SUSPENSION; NO ACTUAL SUSPENSION
Case Number(s): 12-O-14751
In the Matter of: BARRY L. VANSICKLE, Bar # 98645, A Member
of the State Bar of California, (Respondent).
Counsel For The State Bar: Tammy M. Albertsen, Bar # 145755
Counsel for Respondent: Barry L. VanSickle, Bar # 98645
Submitted to: Settlement Judge.
Filed: December 20, 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 July 10,
1981 .
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):
checked. Costs
are added to membership fee for calendar year following effective date of
discipline.
<<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.
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.
checked. (4) Harm: Respondent's
misconduct harmed significantly a client, the public or the administration of
justice. See Attachment to Stipulation, at p. 10.
<<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.
checked. (7) Multiple/Pattern of
Misconduct: Respondent's current misconduct evidences multiple acts of
wrongdoing or demonstrates a pattern of misconduct. See Attachment to Stipulation,
at p. 10.
<<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
misconduct.
<<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
proceedings.
<<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. 10.
D. Discipline:
checked. (1) Stayed Suspension:
checked. (a) Respondent must be suspended from the
practice of law for a period of one (1) 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
stayed.
checked. (2) Probation: Respondent
must be placed on probation for a period of two (2) 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
probation conditions.
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.
checked. (9) The following
conditions are attached hereto and incorporated:
<<not>>
checked. Substance Abuse Conditions.
<<not>>
checked. Law Office Management Conditions.
<<not>>
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
Conditions: .
Attachment language (if any): .
FINANCIAL CONDITIONS
Case Number(s): 12-O-14751
In the Matter of: BARRY L. VANSICKLE
a. Restitution
<<not>> 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: Tiziano Lugli and Jamie Sorrentini
Principal Amount: $6500
Interest Accrues From: July 29, 2010
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
checked. Respondent must pay above-referenced restitution and provide
satisfactory proof of payment to the Office of Probation not later than 3
months from the effective date of discipline.
b. Installment Restitution Payments
<<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.
c. Client Funds Certificate
<<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.
d. Client Trust Accounting School
<<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.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: BARRY VANSICKLE, State Bar No. 98645
STATE BAR COURT CASE NUMBER: 12-O-14751
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-14751 (Complainant: Tiziano Lugli and Jamie Sorrentini
FACTS:
1. On July 27, 2010, Tiziano Lugli ("Lugli") and Jamie Sorrentini
("Sorrentini") hired respondent to file a lawsuit against the Church
of Scientology and related entities. The parties signed a retainer agreement
and paid respondent $6,500 as advanced attorney fees.
2. Thereafter, respondent failed to file a lawsuit against the Church of
Scientology.
3. Respondent provided no services of value to Lugli and Sorrentini.
Respondent did not earn any portion of the $6,500 paid.
4. On October 11, 2010, Lugli, on behalf of Sorrentini as well, sent
respondent a letter via email terminating respondent’s employment and
requesting a refund of the $6500. Respondent received the e-mail shortly after
it was sent.
5. On October 21, 2010, respondent sent Lugli and Sorrentini an e-mail
message acknowledging receipt of the e-mail message terminating him. Respondent
told Lugli and Sorrentini that he would refund the $6500.
6. Thereafter, respondent failed to refund any portion of the $6500 to
Lugli and Sorrentini.
CONCLUSIONS OF LAW:
7. By not filing a lawsuit against the Church of Scientology on Lugli and
Sorrentini’s behalf, and not performing any legal services of value for Lugli
and Sorrentini, respondent repeatedly failed to perform legal services with
competence in willful violation of Rules of Professional Conduct, rule
3-110(A).
8. By not refunding any portion of the $6500 he was paid by Lugli and
Sorrentini, respondent failed to refund promptly any part of a fee paid in
advance that has not been earned.
ADDITIONAL FACTS RE: AGGRAVATING CIRCUMSTANCES.
Multiple Acts: Respondent failed to perform legal services competently and
failed to return unearned fees. (Standard 1.2(b) (iii)).
Harm: The clients have been deprived of their $6500 since July 2010.
(Standard 1.2Co) (iv)).
ADDITIONAL FACTS RE: MITIGATING CIRCUMSTANCES
No Prior Discipline: Though Respondent has no prior discipline in 31 years
of practice, the serious nature of his misconduct limits the weight of this
fact in mitigation. (See In the Matter of Riordan (Review Dept. 2007) 5 Cal.
State Bar Ct. Rptr. 41.)
Pre-filing Stipulation: Respondent is entitled to mitigation for entering
into a full stipulation with the Office of the Chief Trial Counsel prior to
trial, thereby saving State Bar Court time and resources. (See In the matter of
Downey (Review Dept. 2009) 5 Cal State Bar Ct. Rptr. 151).
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 ’~he 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 arc 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 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.
The most severe sanction applicable to Respondent’s misconduct is found in
Standard 2.4 (b) which applies to Respondent’s violation of role 3-110(A) of
the Rules of Professional Conduct.
Standard 2.4(b) provides that culpability of a member of wilfully failing
to perform services in an individual matter shall result in reproval or
suspension depending upon the extent of the misconduct and the degree of harm
to the client.
Respondent committed two acts of misconduct in a single client matter.
Additionally, his misconduct harmed his client. Therefore, a significant
discipline is warranted here. However, respondent practiced law for 29 years
without discipline and stipulated to culpability and discipline here. These
factors indicated that respondent will respond positively during his probation
and comply with ethical standards in the future. Therefore, a period of actual
suspension is not necessary to protect the public.
The one year stayed suspension is also supported by California Supreme
Court case law. In Bach v. State Bar ( 1991) 52 Cal.3d, the respondent was
actually suspended for thirty days for failing to perform legal services
competently for a single client, failing to communicate with his client,
withdrawing from representation without client consent or court approval,
failing to return unearned fees, and failing to cooperate in the State Bar
investigation. Bach had been in practice for 26 years without any prior
discipline. Bach’s refusal to accept any responsibility for the harm caused to
the client was an aggravating factor.
Respondent here committed two acts of misconduct as opposed to Bach’s five,
and was in practice longer than Bach (29 years as opposed to 26 years) prior to
any misconduct. Because respondent committed fewer acts of misconduct,
stipulated to his misconduct, and has fewer factors in aggravation,
respondent’s misconduct warrants a lower level of discipline than the 30 day
actual suspension imposed on Bach.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has
informed respondent that as of November 19, 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. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-14751
In the Matter of: BARRY L. VANSICKLE
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: BARRY L. VANSICKLE
Date: 11/26/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Tammy M. Albertsen
Date:12/10/13
STAYED SUSPENSION ORDER
Case Number(s): 12-O-14751
In the Matter of: BARRY L. VANSICKLE
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.
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: Lucy Armendariz
Date: 12/20/13
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 December
20, 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:
BARRY L. VANSICKLE
PO BOX 61
BELVEDERE, CA 94920
BARRY L. VANSICKLE
1187 WEST RYAN AVENUE
ROSEVILLE, MN 55113
<<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 ALBERTSEN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San
Francisco, California, on December 20, 2013.
Signed by:
Mazie Yip
Case Administrator
State Bar Court