State Bar Court of California

Hearing Department

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

REPROVAL

Case Number(s): 12-O-16684

In the Matter of: Thomas Ratanavaraha, Bar # 195785, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Christine Souhrada, Bar #228256,

Counsel for Respondent: Samuel C. Bellicini, Bar #152191,

Submitted to:  .

Filed: December 3, 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 June 2, 1998.

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 9 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.

checked. (4)            Harm:  Respondent's misconduct harmed significantly a client, the public or the administration of justice. See attachment at page 8.

<<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.

<<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: Prefiling stipulation. See attachment at page 8. No prior record of discipline. See attachment at page 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 .

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 THOMAS RATANAVARAHA, State Bar No. 195785

STATE BAR COURT CASE NUMBER: 12-O-16684

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-16684 (Complainant: Santos)

FACTS:

1. On April 16, 2010, Ana Mercedes Santos (“Santos”) visited Respondent’s office in response to an advertisement on Spanish language television for Respondent’s home loan modification services. Santos visited Respondent’s office for the purpose of obtaining a home loan modification.

2. During the visit on April 16, 2010, a member of Respondent’s staff represented to Santos that Respondent would attempt to obtain a loan modification for her, and Santos employed Respondent to attempt to obtain a loan modification for her.

3. On April 24, 2010, Santos returned to Respondent’s office and paid Respondent $1,900 as an advanced fee for Respondent’s legal services  in Santos’s home loan modification matter.

4. On April 16, 2010 and again on April 24, 2010, Santos executed fee agreements with Respondent, each of which granted Respondent "a lien on any and all claims or causes of action that are the subject of the representation under this Agreement,"

5. Respondent did not fully perform each and every service he had contracted to perform or represented that he would perform for Santos, prior to demanding, charging, collecting or receiving any of the advanced attorney fees.

6. Respondent has recently refunded the advanced fees paid by Santos.

CONCLUSIONS OF LAW:

7. By negotiating arranging, or offering to perform a mortgage loan modification for a fee paid by a borrower, and demanding, charging, collecting and receiving fees from Santos prior to fully performing each and every service he had contracted to perform or represented that he would perform in violation of subsection (a)(1) of Section 2944.7 of the Civil Code, Respondent willfully violated Business and Professions Code section 6106.3.

8. By obtaining liens in his mortgage loan modification fee agreements with Santos, Respondent took a lien on any type of real or personal property, or other security to secure the payment of compensation in willful ,violation of Business and Professions Code section 6106.3 through Civil Code section 2944.7(a)(2).

AGGRAVATING CIRCUMSTANCES.

Harm (Std. 1.2(b)(iv)): Santos suffered harm in that she suffered the loss of her money during the period Respondent sought to obtain for her a loan modification. Respondent client’s financial desperation was compounded by the fact that he did not provide a refund for three years. (In the Matter of Taylor (Review Dept. 2013) 5 Cal. State Bar Ct. Rptr 221, 235)

MITIGATING CIRCUMSTANCES

No Prior Discipline: Although the present misconduct is serious, Respondent, who was admitted to practice law in 1998, has no prior record of discipline. Respondent is entitled to mitigation for his years of discipline-free practice. (In the Matter of Riordan (Review Dept. 2007) 5 Cal, State Bar Ct. Rptr. 41, 39 {attorney’s practice of law for more than 17 years considered to be mitigating circumstance].)

Prefiling Stipulation: Respondent has entered into this stipulation resolving this matter herein before disciplinary charges had to be filed against him. (Silva-Vidor  v. State Bar 1989) 49 Cal.3d 1071, 1079 [where mitigative 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  announced by the Supreme Court." (Rules Prof. 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 a "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 257,1267, 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. (ln re Naney (1990) 51 Cal.3d 186, 1900 Any discipline recommendation different from that set forth the applicable standards should clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)

Standard 2.10 applies to this matter and provides that violations of the Rules of Professional Conduct and the State Bar Act not specifically specified in the Standards, including violations of section 6106.3, shall result in reproval or suspension depending on the gravity of the misconduct or harm to the victim, with due regard to the purposes of imposing discipline. Although Respondent’s misconduct deprived Santos of the use of her money for three years, Respondent has recently provided a full refund of the illegal fees that he received from Santos. Although this is not mitigation (Doyle v. State Bar (1982) 32 Cal.3d 12, 24 [restitution made only under the pressure of a forthcoming disciplinary investigation entitled to no weight as a mitigating circumstance]), by providing such refund, Respondent has brought an end the harm Santos suffered due to being wrongfully deprived of the use of her funds, and has negated any need for restitution as a term of discipline. In mitigation, Respondent no prior record of discipline. In further mitigation, Respondent has agreed to enter into this Stipulation prior to the filing of a notice of disciplinary charges and has thereby saved the State Bar Court time and resources. Taking into account the gravity of the misconduct, the harm to Santos, and the aggravating and mitigating circumstances, a public reproval is appropriate and serves the purposes of attorney discipline.

COST OF DISCIPLINARY PROCEEDINGS.

Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 24, 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. (Rules Proc. of State Bar, rule 3201.)

SIGNATURE OF THE PARTIES

Case Number(s): 12-O-16684

In the Matter of: Thomas Ratanavaraha

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: Thomas Ratanavaraha

Date: 11/18/13

Respondent’s Counsel: Samuel C. Bellicini

Date: 11/21/13

Deputy Trial Counsel: Christine Souhrada

Date: 11/22/13

REPROVAL ORDER

Case Number(s): 12-O-16684

In the Matter of: Thomas Ratanavaraha

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.

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 may 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: Lucy Armendariz

Date: 12/3/13

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 3, 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:

 SAMUEL C. BELLICINI

FISHKIN & SLATTER, LLP

1575 TREAT BLVD, STE. 215

WALNUT CREEK, CA 94598

<<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:

 CHRISTINE A. SOUHRADA, Enforcement, Los Angeles

I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on December 3, 2013.

Signed by:

Mazie Yip

Case Administrator

State Bar Court