Case Number(s): 12-O-14765
In the Matter of: ALEXIS GALINDO, Bar # 136643, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Mia R. Ellis, Bar #228235,
Counsel for Respondent: Alexis Galindo, Bar #136643,
Submitted to: Settlement Judge.
Filed: August 1, 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 December 7, 1988.
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 13 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. 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.
<<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.
Attachment language (if any):.
LAW OFFICE MANAGEMENT CONDITIONS
Case Number(s): 12-O-14765
In the Matter of: ALEXIS GALINDO
checked. a. Within 30 days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
<<not>> checked. b. Within days/ months/ years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Other: As a further condition of probation, once the law office management/organization plan required by section
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: ALEXIS GALINDO, State Bar No. 136643
STATE BAR COURT CASE NUMBER: 12-O-14765
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-14765 (Complainants: Rudi and June Barkey)
FACTS:
1. On August 11, 2009, Rudi and June Barkey (the "Barkeys") were involved in a car accident. The Barkeys were driving a car belonging to Helen Smith ("Smith"), who was insured by Safeco. The Barkeys were also on the Safeco policy. The other driver was insured by 21 St. Century Insurance.
2. On August 12, 2009, the Barkeys retained Respondent to represent them in a personal injury action arising from the August 11, 2009 car accident. Respondent notified Safeco of his representation.
3. The Barkeys treated at Hess Chiropractic and Rehabilitation ("Hess"). Respondent signed the medical lien in favor of Hess.
4. In August 2009 and September 2009, Safeco made property damage payments to Mr. Barkey and to his auto repair shop.
5. On December 21, 2009, Respondent sent 21st Century a written settlement demand for the Barkeys’ personal injury claim. The medical bills from Hess for the Barkeys totaled $6,710.
6. On May 5, 2010, the insurance companies submitted the matter to inter-insurance binding arbitration as to the property damage only. The arbitrator found 100% in favor of 21st Century. Based on the arbitrator’s findings, on May 6, 2010, Safeco paid 21st Century for their insured’s property damages.
7. The Barkeys’ personal injury claim was not resolved by the arbitration award.
8. On May 6, 2010, Safeco sent Smith a letter that 21st Century won 100% in arbitration. The Barkeys received a copy of Safeco’s May 6, 2010 letter from Smith.
9. The Barkeys went to Respondent’s office to give him a copy of the May 6, 2010, letter and to discuss it and the case. Respondent was not present. They left a copy of the letter and message with the receptionist requesting that Respondent call them regarding the letter and their case. Respondent received the letter and message but did not respond.
10. The Barkeys contacted Respondent’s office every three months between 2009 and 2010 regarding the status of their case. They left messages requesting Respondent to contact them regarding the status of their case. Respondent received the messages but did not respond.
11. On February 21, 2011, Safeco issued a check for $4,010 to Mr. Barkey and Respondent for med-pay. Respondent received the check. On or about February 26, 2011, Safeco issued a check for $2,460 to Respondent and Mrs. Barkey for med-pay. Respondent received the check. Respondent failed to notify the Barkeys that he received med-pay checks on their behalf.
12. On February 28, 2011, Respondent deposited the Barkeys’ med-pay checks into his client trust account at First Bank, account number xxxxxx6300. However, Respondent failed to pay or otherwise resolve the Barkeys’ medical bills with Hess.
13. From February 2011 to April 2012, Hess called Respondent and left messages regarding settlement of the medical lien. Respondent received the messages but did not respond. Hess sent the bill to collections.
14. On August 11, 2011, the statute of limitations to file a lawsuit on behalf of the Barkeys expired. Respondent did not file a personal injury lawsuit on behalf of the Barkeys prior to the expiration of the status of limitations, nor did he advise the Barkeys about the statute of limitations to file their lawsuit. Respondent failed to notify the Barkeys that he had failed to file a lawsuit prior to the expiration of the statute of limitations.
15. In June 2012, the Barkeys received collection notices from AMS Collections, who was representing Hess regarding its unpaid medical bills.
16. On June 27, 2012, Respondent paid Hess $5,400 to settle the Hess lien. Respondent gave the balance of the med-pay funds to the Barkeys’ new attorney.
CONCLUSIONS OF LAW:
17. By failing to inform the Barkeys of the statute of limitations and failing to file a lawsuit on their behalf to preserve the statute, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
18. By failing to notify the Barkeys of receipt of the med-pay checks from Safeco, Respondent failed to notify a client promptly of the receipt of the client’s funds in willful violation of the Rules of Professional Conduct, rule 4-100(B)(1).
19. By failing to timely pay the Hess medical liens on behalf of the Barkeys, Respondent, failed to pay promptly, as requested by a client, any funds in Respondent’s possession which the client is entitled to receive in willful violation of the Rules of Professional Conduct, rule 4-100(B)(4).
20. By failing to respond to the Barkeys’ messages requesting information regarding the status of their case, Respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code section 6068(m).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Harm: The current misconduct caused significant harm to the Barkeys because Respondent did not advise them of the statute of limitations to file a personal injury lawsuit against the other driver and they lost their right to pursue the claim. (Standard 1.2(b)(iv).)
Multiple Acts of Misconduct: Respondent’s misconduct involved four acts of misconduct in one client matter. (Standard 1.2(b)(ii).)
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
No Prior Discipline: Respondent was admitted to the State Bar on December 7, 1988 and has no prior record of discipline. While Respondent’s misconduct here is serious, Respondent’s lack of a prior record of discipline in over twenty years of practice before the misconduct began is entitled to significant weight in mitigation. (ln the Matter of Bleeker (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 113, 127.
Family Problems: At the time of the misconduct, Respondent was providing care for his mother who suffered a stroke on November 18, 2009, while visiting Respondent from Florida. She was hospitalized and Respondent traveled to the hospital daily for visits and to help her with physical therapy. She was discharged to Respondent’s care in February 2010. Respondent spent the first three months assisting her in her rehabilitation. By summer 2010, Respondent’s mother was walking on her own. On July 18, 2010, Respondent’s mother fell and fractured her right hip. She had surgery and began physical therapy. Respondent was again traveling to the hospital daily for visits and to help with physical therapy at a rehabilitation facility. Respondent’s mother was discharged on September 18, 2010 to Respondent’s home. Respondent helped her three times a week with physical therapy. By early 2011, she began physical therapy on her own. In July 2011, Respondent’s mother fell again and fractured her left hip. She had surgery to her left hip and Respondent was again traveling to the hospital daily for visits and to help with physical therapy at a rehabilitation facility. She was subsequently discharged to Respondent on August 14, 2011. On November 28, 2011, Respondent’s kitchen caught fire. He and his family, including his mother, were displaced to a hotel until June 15, 2012. From November 28, 2011, to June 15, 2012, Respondent spent many hours away from his law office overseeing repair of his home. His mother returned home to Florida on July 7, 2012. Since Respondent was away from his law office he failed to competently oversee and communicate with the Barkeys regarding their case. (In re Arnoff(1978) 22 Cal.3d 740, 747[domestic and health difficulties may be considered in mitigation of discipline for misconduct]; In the Matter of Kaplan (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 547 [limited mitigation for marital and family problems in absence of expert testimony establishing nexus to misconduct].)
Good Character: Respondent has provided seven character letters from people attesting to his integrity, honesty and professionalism. Five of the character references are from attorneys. (Feinstein v. State Bar (1952) 39 Cal. 2d 541, 547 [favorable character testimony from attorneys is entitled to considerable weight].) All of the character references noted that they were aware of the Barkey’s complaint and the full extent of the misconduct and it did not change their opinion as to Respondent’s character. Further, Respondent provided a letter from a client for which Respondent provided pro bono services as well as thank you letters from clients and colleagues. (Standard 1.2(e)(vi).)
Additional Mitigating Circumstances:
Prefiling Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of Chief Trial Counsel early in the proceedings, thereby recognizing his wrongdoing and saving State Bar Court time and resources. (Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079 [where mitigation credit was given for entering into a stipulation as to facts and culpability].)
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 five 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 2.2(b), which applies to Respondent’ s violations of rules 4-100(B)(1 ) and 4-100(B)(4).
Standard 2.2 (b) provides that culpability of a member of commingling of entrusted funds or property with personal property or the commission of another violation of rule 4-100, Rules of Professional Conduct, none of which offenses result in the wilful misappropriation of entrusted funds or property shall result in at least a three-month actual suspension from the practice of law, irrespective of mitigating circumstances.
Although standard 2.2(b) applies to Respondent’s failure to notify his clients of receipt of the med-pay checks and failure to pay the Hess lien promptly, deviation from the standards may be appropriate where there exists well founded doubts as to the propriety of applying them in a particular case (Silverton, supra, 36 Cal. 4th at 92, also see Sternlieb v. State Bar (1990) 52 Cal.3d 317 [30 days actual suspension for trust account violations].) Here, Respondent’s misconduct does not involve dishonest conduct related to a trust account violation rather, the gravamen of Respondent’s misconduct is his failure, for over a period of about one year, to communicate with the Barkeys and respond to their inquiries, and to perform related to the personal injury claim.
Standard 2.4 (b) provides that culpability of a member of willfully failing to perform services in an individual matter or culpability of a member of willfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client. Respondent’s failure to communicate and perform caused the Barkeys significant harm as the statute of limitations has lapsed. Further, the current misconduct evidences multiple acts of misconduct. However, in mitigation, Respondent has no prior record of discipline in over twenty years of practice and there is no evidence of misappropriation in the facts presented. Further, Respondent has provided evidence that at the time of his misconduct he was having family problems due to his mother’s health that kept him away from the office. Respondent has also provided character references, and has recognized his wrongdoing by entering into a prefiling stipulation. This is all significant mitigation. An actual suspension of 30 days will protect the public, courts and the legal profession; maintain high professional standards by attorneys, and preserve public confidence in the legal profession. (Standard 1.3.)
Bach v. State Bar (1991) 52 Cal. 3d 1201, also supports the stipulated discipline. In August 1984, the client retained Bach to obtain a dissolution of her marriage, paying him $ 3,000 in advance; Bach thereafter failed to communicate with the client for months at a time despite repeated telephone calls and office visits; never obtained the dissolution; and purported to withdraw from the dissolution proceeding in March of 1987 without the consent of either Bach or the superior court and without returning the unearned portion of the fees advanced. Bach received thirty days actual suspension.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of July 10, 2013, the prosecution costs in this matter are $2,925. 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 Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-14765
In the Matter of: ALEXIS GALINDO
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: ALEXIS GALINDO
Date: 7/18/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: MIA ELLIS
Date: 7/22/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-O-14765
In the Matter of: ALEXIS GALINDO
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: Donald F. Miles
Date: 8/1/13
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 August 1, 2013, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING ACTUAL SUSPENSION
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:
ALEXIS GALINDO
CURD GALINDO & SMITH LLP
301 E OCEAN BLVD STE. 1700
LONG BEACH, CA 90802
<<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:
MIA ELLIS, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 1, 2013.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court