State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER
APPROVING
REPROVAL
Case Number(s): 12-O-17941
In the Matter of: JOHN FRANCIS SHELLABARGER, Bar # 132805,
A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Lara Bairamian, Bar #253056,
Counsel for Respondent: John Francis Shellabarger, Bar #132805,
Submitted to: Assigned Judge.
Filed: January 10, 2014.
<<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 December
11, 1987.
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):
<<not>> checked. Costs are
added to membership fee for calendar year following effective date of
discipline (public reproval).
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.
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.
<<not>> 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.
<<not>> checked. (4) Harm:
Respondent's misconduct harmed significantly a client, the public or the
administration of justice.
<<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.
checked. (8) No aggravating
circumstances are involved.
Additional aggravating circumstances: .
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
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 at page 7.
D. Discipline:
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).
checked. (b)Approved by the Court after initiation of the State Bar Court
proceedings (public disclosure).
or
<<not>> 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: JOHN FRANCIS
SHELLABARGER, State Bar No. 132805
STATE BAR COURT CASE NUMBER: 12-O-17941
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-17941-.(State Bar
Investigation)
FACTS:
1. Beginning in December 2009, Respondent
represented the defendant in a civil case in the United States District Court
(the "civil case").
2. On June 18, 2010, the parties in the
civil case reached a settlement agreement.
3. On July 9, 2010, by order of United
States District Court, the pretrial conference in the civil case was scheduled
for August 30, 2010. Respondent received notice of the pretrial conference.
4. On August 30, 2010, Respondent did not
appear for the pretrial conference in the civil case. The Court issued an order
to show cause why Respondent should not be sanctioned for willfully failing to
make an appearance at the August 30, 2010 pretrial conference
("OSC"). Respondent was ordered to file a written response to the OSC
with the Court no later than September 10, 2010. Respondent received notice of
the OSC.
5. On September 10, 2010, Respondent filed
a response to the OSC, wherein he stated that his failure to appear at the
pretrial conference was due to an undiagnosed medical condition.
6. On October 5, 2010, the Court scheduled
a status conference regarding proposed sanctions and proposed order regarding
judgment in the civil case for October 12, 2010.
7. On October 12, 2010, Respondent and
plaintiffs’ counsel appeared at the status conference. The Court took the matter
of the proposed sanctions and proposed order regarding judgment under
submission.
8. On November 22, 2010, counsel for
plaintiffs filed an Application for Monetary Sanctions against Respondent with
the Court in the civil case citing, in part, that counsel for plaintiffs
incurred fees and costs in the amount of $ 3,888 attendant to the August 30,
2010 pretrial conference.
9. On December 2, 2010, the Court filed an
order regarding monetary sanctions ("sanction order"), pursuant to
Federal Rules of Civil Procedure, rule 16(f), awarding plaintiffs monetary
sanctions in the amount of $3,888 against Respondent. The Court ordered
Respondent to pay the sanctions to plaintiffs’ counsel no later than January 1,
2011. Respondent received the sanction order.
10. Respondent failed to pay the sanctions
in the amount of $3,888 imposed by the sanction order by January 1, 2011.
11. On October 25, 2013, after the
initiation of the State Bar disciplinary matter, Respondent paid the sanctions
in the amount of $3,888.
CONCLUSIONS OF LAW:
12. By failing to timely comply with the
sanction order, Respondent wilfully disobeyed or violated an order 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.
ADDITIONAL FACTS RE MITIGATING
CIRCUMSTANCES.
No Prior Discipline (Std. 1.2(e)(i)):
Respondent was admitted to the practice of law in December 1987 and has no
prior record of discipline in twenty-six years of practice. (In the Matter of
Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41.)
Pretrial Stipulation: Respondent is
entitled to mitigation for entering into a full stipulation with the Office of
Chief Trial Counsel prior to trial, thereby avoiding the necessity of a trial
and saving the 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. (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. (ln 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.)
The sanction applicable to Respondent’s
misconduct is found in standard 2.6, which provides that a violation of
Business and Professions Code, section 6103 "shall result in disbarment or
suspension depending on the gravity of the offense or the harm, if any, to the
victim."
In this case, Respondent’s misconduct
occurred in a single matter in which Respondent failed to timely pay sanctions
ordered by the Court. Although Respondent’s misconduct did cause the Court
administrative inconvenience, Respondent’s misconduct did not harm his client
or cause any significant harm to the plaintiffs in the civil matter and was not
otherwise serious. Albeit untimely, Respondent has paid the sanction order.
Standard 1.6(b)(2) provides that the
appropriate sanction shall be the sanction imposed unless mitigating
circumstances are found to surround the particular act of misconduct found or
acknowledged and the net effect of those mitigating circumstances, by
themselves and in balance with any aggravating circumstances found,
demonstrates that the purposes of imposing sanctions set forth in standard 1.3
will be properly fulfilled if a lesser degree of sanction is imposed. In that
case, a lesser degree of sanction than the appropriate sanction shall be
imposed or recommended. Respondent’s misconduct is mitigated by his lack of
prior discipline in over twenty-three years of practice at the time of the
misconduct. As a result, Respondent is entitled to significant weight in
mitigation. (Hawes v. State Bar (1990) 51 Cal.3d 587, 596.) In addition,
Respondent’s misconduct is mitigated by Respondent’s willingness to enter into
a full stipulation with the Office of Chief Trial Counsel prior to trial. There
are no aggravating circumstances present in this matter. Thus, with due regard
to the purposes of imposing discipline, a deviation from the standards is
appropriate.
A private reproval with public disclosure
will adequately protect the public, the court and the legal profession, as well
as maintain high professional standards by attorneys and preserve public
confidence in the legal profession.
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-17941,
In the Matter of: JOHN FRANCIS
SHELLABARGER
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: JOHN FRANCIS SHELLABARGER
Date: 12/9/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Lara Bairamian
Date: 12/12/13
REPROVAL ORDER
Case Number(s): 12-O-17941
In the Matter of: JOHN FRANCIS
SHELLABARGER
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.
<<not>> 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: Donald F.
Miles
Date: 1/10/14
DECLARATION OF SERVICE
by
U.S. FIRST-CLASS MAIL/U.S. CERTIFIED
MAIL/OVERNIGHT DELIVERY/FACSIMILE-ELECTRONIC TRANSMISSION
CASE NUMBER(s): 12-O-17941
l, the undersigned, am over the age of
eighteen (18) years and not a party to the within action, whose business
address and place of employment is the State Bar of California, , declare that:
• on the date shown below, I caused to
be served a true copy of the within document described as follows:
checked. By U.S. First.Class Mail: (CCP §§
1013 and 1013(a))
<<not>> checked. By U.S.
Certified Mail: (CCP §§ 1013 and 1013(a))
• in accordance with the practice of the
State Bar of California for collection and processing of mail, I deposited or
placed for collection and mailing in the City and County of Los Angeles.
<< not>> checked. By Overnight
Delivery: (CCP §§ 1013(c) and 1013(d))
• I am readily familiar with the State
Bar of California’s practice for collection and processing of correspondence
for overnight delivery by the United Parcel Service (’UPS’).
<< not>> checked. By Fax
Transmission: (CCP §§ 1013(e) and 1013(0)
• Based on agreement of the parties to
accept service by fax transmission, I taxed the documents to the persons at the
fax numbers listed herein below. No error was reported by the fax machine that
I used. The original record of the fax transmission is retained on file and available
upon request.
<< not>> checked. By
Electronic Service: (CCP § 1010.6)
• Based on a court order or an agreement
of the parties to accept service by electronic transmission, I caused the
documents to be sent to the person (s) at the electronic addresses listed
herein below. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission
was unsuccessful.
checked. (for U.S. First- Class Mail) in a
sealed envelope placed for collection and mailing at Los Angeles, addressed to:
(see below)
<<not>> checked. (for
Certified Mail) in a sealed envelope placed for collection and mailing as
certified mail, return receipt requested, Article No.: at Los Angeles,
addressed to: (see below)
<<not>> checked. (for
Overnight Delivery) together with a copy of this declaration, in an envelope,
or package designated by UPS, Tracking No.: addressed to: (see below)
Person Served: John Francis Shellabarger
Business-Residential Address: 928 Garden
Street #3, Santa Barbara, CA 93101
Fax Number:
Electronic Address:
Courtesy Copy to:
<< not>> checked. via
inter-office mail regularly processed and maintained by the State Bar of
California addressed to:
I am readily familiar with the State Bar
of California’s practice for collection and processing of correspondence for
mailing with the United States Postal Service, and overnight delivery by the
United Parcel Service (’UPS’). In the ordinary course of the State Bar of
California’s practice, correspondence collected and processed by the State Bar
of California would be deposited with the United States Postal Service that
same day, and for overnight delivery, deposited with delivery fees paid or
provided for, with UPS that same day.
I am aware that on motion of the party
served, service is presumed invalid if postal cancellation date or postage
meter date on the envelope or package is more than one day after date of
deposit for mailing contained in the affidavit.
I declare under penalty of perjury, under
the laws of the State of California, that the foregoing is true and correct.
Executed at , California, on the date shown below.
DATED: December 16, 2013
SIGNED BY: Charles C. Bagai
Declarant
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 January 10, 2014, 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:
JOHN F. SHELLABARGER
LAW OFC JOHN SHELLABARGER
928 GARDEN ST #3
SANTA BARBARA, CA 93101-7400
<<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:
LARA BAIRAMIAN, Enforcement, Los Angeles
I hereby certify that the foregoing is
true and correct. Executed in Los Angeles, California, on January 10, 2014.
Signed by:
Rose M. Luthi
Case Administrator
State Bar Court