Case Number(s): 12-O-15784
In the Matter of: NATHAN V. HOFFMAN, Bar # 135155, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kimberly G. Anderson, Bar # 150359,
Counsel for Respondent: Theodore A. Cohen, Bar # 28637,
Submitted to: Settlement Judge.
Filed: October 22, 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 July 5, 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 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. 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):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: NATHAN V. HOFFMAN, State Bar No. 135155
STATE BAR COURT CASE NUMBER: 12-O-15784
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-15784-RAP (State Bar Investigation)
FACTS:
1. At all times alleged herein, Respondent was the attorney of record for the defendant in a breach of contract case filed in Los Angeles County Superior Court.
2. On September 13, 2011, Respondent filed an answer in the breach of contract ease on behalf of the defendant.
3. On January 31, 2012, the court conducted an initial status conference in the breach of contract case. The court referred the case to mediation and ordered that mediation was to be completed by May 3, 2012, that a post-mediation status conference had been set for May 4, 2012 and that the trial had been set for August 6, 2012. Respondent received notice of the court’s January 31, 2012 orders.
4. On April 9, 2012, the court in the breach of contract case issued an order advancing the post-mediation status conference that had been set for May 4, 2012 to May 3, 2012. Respondent received notice of the court’s April 9, 2012 order.
5. Respondent failed to comply with the court’s January 31, 2012 order by failing to cooperate with counsel for the plaintiff in completing mediation in the breach of contract case by May 3, 2012.
6. Respondent effectively withdrew from representing the defendant on February 3, 2012 without filing a proper substitution of attorney or a motion to withdraw seeking permission to be relieved as counsel of record.
7. Respondent and the defendant both failed to appear for the post-mediation status conference in the breach of contract case on May 3, 2012. Respondent failed to comply with the court’s April 9, 2012 order by failing to attend the post-mediation status conference in the breach of contract ease on May 3, 2012.
8. On May 3, 2012, the court in the breach of contract case set an order to show cause hearing for July 9, 2012 ordering Respondent and the defendant to appear and show cause why they should not be sanctioned for failing to cooperate in completing the mediation by May 3, 2012 and why they should not be sanctioned for failing to appear at the May 3, 2012 post-mediation status conference. Respondent received notice of the order.
9. On July 9, 2012, Respondent and the defendant both failed to appear for the order to show cause hearing in the breach of contract case. The court imposed $1,500 in sanctions jointly and severally against Respondent and the defendant due to their failure to cooperate in completing the mediation by May 3, 2012, and the court imposed an additional $1,500 in sanctions jointly and severally against Respondent and the defendant due to their failure to appear at the May 3, 2012 post-mediation status conference. The court ordered Respondent and the defendant to pay both of the sanctions by August 9, 2012. The court ordered Respondent to report the sanctions to the State Bar. The court also ordered Respondent and the defendant to appear and show cause on August 6, 2012 as to why defendant’s answer to the complaint should not be stricken. Respondent received notice of the court’s July 9 orders.
10. Neither the defendant nor Respondent appeared for the order to show cause hearing in the breach of contract case on August 6, 2012.
11. On August 6, 2012, the court struck the defendant’s answer and entered default against her in the breach of contract case.
12. Neither the defendant nor Respondent paid the sanctions by August 9, 2012. Nor did Respondent report the sanctions to the State Bar as ordered by the court.
13. Respondent did not report the $3,000 in monetary sanctions ordered against him by the court in the breach of contract case within 30 days of his receipt of notice of the court’s July 9, 2012 order or at any other time.
14. On November 12, 2012, only after having been informed that the court had reported him to the State Bar for an investigation, Respondent paid $1,500 of the sanctions ordered by the court on July 9, 2012.
15. On August 1, 2013, after the State Bar filed its Notice of Disciplinary Charges in this matter, Respondent paid the $1,500 balance of the $3,000 in sanctions ordered by the court on July 9, 2012.
CONCLUSIONS OF LAW:
16. By failing to comply with the court’s January 31, 2012 order requiring him to cooperate in completing a mediation by May 3, 2012, by failing to comply with the court’s April 9, 2012 order to appear for a post-mediation status conference on May 3, 2012, by failing to comply with the court’s May 3, 2012 order to appear at the July 9, 2012 order to show cause hearing, by failing to comply with the court’s July 9, 2012 orders to pay $3,000 to the Los Angeles Superior Court by August 9, 2012, by failing to comply with the court’s July 9, 2012 order to appear at the August 6, 2012 order to show cause hearing, and by failing to comply with the court’s July 9, 2012 order to report the $3,000 in sanctions to the State Bar, Respondent willfully disobeyed or violated orders of the court requiring him to do or forbear an act connected with or in the course of Respondent’s profession which he ought in good faith to do or forbear in willful violation of Business and Professions Code section 6103.
17. By effectively withdrawing from representing the defendant on February 3, 2012 without filing a proper substitution of attorney or a motion to withdraw seeking permission to be relieved as counsel of record, Respondent withdrew from employment in a proceeding before a tribunal without its permission in willful violation of rule 3-700(A)(I) of the Rules of Professional Conduct.
18. By failing to report the $3,000 in monetary sanctions ordered against him by the court in the breach of contract case within 30 days of his receipt of notice of the court’s July 9, 2012 order or at any other time, Respondent failed to report to the agency charged with attorney discipline, in writing, within 30 days of the time Respondent had knowledge of the imposition of any judicial sanctions against Respondent in willful violation of Business and Professions Code section 6068(o)(3).
AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): Respondent has a prior record of discipline in State Bar Court case numbers 91-O-01624 et. al. (Supreme Court Case No. S039475), which became effective August 6, 1994. The misconduct in that case occurred in 1990 and 1991 and involved four clients and involved violations of rules 3-I 10(A), 4-100(A) and 4-10003)(4) of the Rules of Professional Conduct due to Respondent’s failure to perform competent legal services, failure to maintain entrusted funds and failure to promptly pay out entrusted funds on behalf of his clients. Respondent received a one year stayed suspension and three years’ probation.
Harm (Std. 1.2(b)(iv)): Respondent’s multiple violations of court orders and improper withdrawal significantly harmed the administration of justice because it wasted the court’s resources.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent violated three court orders, failed to properly withdraw from the breach of contract case, and failed to report the imposition of judicial sanctions to the State Bar, which amounted to five acts of professional misconduct in this matter.
MITIGATING CIRCUMSTANCES.
Pretrial Stipulation: Respondent is entitled to some mitigation for entering into this stipulation prior to trial, thereby saving the State Bar and the State Bar Court resources in having to litigate this case. (Silva-Vidor v. State Bar (1989) 49 Cal.3d 107 I, 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 three separate violations of the Rules of Professional Conduct and the State Bar Act. 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 2.6, which applies to Respondent’s violations of Business and Professions Code sections 6103 and 6068(0)(3). Standard 2.6 provides that violations of Business and Professions Code sections 6103 and 6068(o)(3), "shall result in disbarment or suspension depending on the gravity of the offense or harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3."
The gravity of Respondent’s misconduct was serious and protracted, and continued from February 3, 2012 through August 1, 2013. Respondent’s misconduct began on February 3, 2012, when he improperly withdrew from Baker’s case without filing a substitution of attorney or a motion to withdraw seeking permission from the court to be removed as counsel. Respondent then failed to comply with multiple court orders between February 3, 2012 and on or about August 6, 2012. Respondent failed to report the sanctions to the State Bar within 30 days of his receipt of notice of the sanctions order and Respondent failed to bring himself into compliance with the court’s sanctions order until August 1, 2013.
In aggravation, Respondent’s misconduct involved multiple acts of misconduct and significant harm to the administration of justice. Respondent also has a prior record of discipline.
Standard 1.7(a) states:
If a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one prior imposition of discipline...the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior discipline was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust.
Progressive discipline is warranted even though Respondent’s prior misconduct occurred twenty years prior to the misconduct in this case. Respondent’s prior misconduct was serious because it involved client trust account violations and failure to perform competently in four client matters.
Taking into account the gravity of the offense, the purposes of standard 1.3, the three aggravating factors and the mitigation credit for entering into a full and complete pretrial stipulation acknowledging his misconduct, two years’ suspension stayed and two years’ probation with conditions, including a 30-day actual suspension, is the appropriate discipline to protect the courts, the public and the legal profession, and to maintain high professional standards, and preserve public confidence in the legal profession.
Case law also supports a 30-day actual suspension. In Van Sloten v. State Bar (1989) 48 Cal.3d 921, an attorney with no prior record of discipline represented a client in a marital dissolution case, worked on the matter for approximately five months, submitted a proposed settlement agreement to the opposing side, and then failed to communicate with his client, take any action on the matter or move to withdraw. The inattention lasted for approximately one year. The client ultimately hired new counsel who completed the dissolution matter. The attorney claimed he had only agreed to represent the client in the matter if the client’s spouse was cooperative. When the client’s spouse became uncooperative by refusing to return the proposed settlement agreement, the attorney refused to take any further action and made no attempts to withdraw from the case. The Court found in aggravation that the attorney lacked appreciation of insight for his misconduct. The Court concluded that a single act of failing to perform without serious harm to the client warranted a six-month stayed suspension, one year of probation and no actual suspension. More discipline is warranted in the instant matter since the court was harmed and since Respondent has a prior record of discipline.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. Count Alleged Violation
12-O-15784 Four Business and Professions Code section 6106
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of September 27, 2013, the prosecution costs in this matter are approximately $2,403.10. 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 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-15784
In the Matter of: Nathan V. Hoffman
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: Nathan V. Hoffman
Date: 10/7/13
Respondent’s Counsel: Theodore Cohen
Date: 10/7/13
Deputy Trial Counsel: Kimberly G. Anderson
Date: 10/9/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-O-15784
In the Matter of: NATHAN V. HOFFMAN
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 10/17/13
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 October 22, 2013, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:
THEODORE A COHEN
LAW OFFICES OF THEODORE A COHEN
3550 WILSHIRE BLVD STE. 1280
LOS ANGELES, CA 90010
<<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:
KIMBERLY ANDERSON, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 22, 2013.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court