Case Number(s): 12-O-17976
In the Matter of: VICTOR DIAZ MIRELES, Bar # 249298, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: R. Kevin Bucher, Bar #132003,
Counsel for Respondent: Victor Diaz Mireles, Bar #249298,
Submitted to: Settlement Judge.
Filed: July 10, 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 June 1, 2007.
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 11 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. 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.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: three billing cycles following the effective date of the Supreme Court order. (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: VICTOR DIAZ MIRELES, State Bar No. 249298
STATE BAR COURT CASE NUMBER: 12-O-17976
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-17976 (State Bar Investigation)
FACTS:
1. By order entered on November 2, 2011, and effective December 2, 2011, based on a stipulation between Respondent and the State Bar of California, the Supreme Court of California suspended Respondent from the practice of law for 15 months, and placed him on a disciplinary probation with terms and conditions in effect for two years. The Supreme Court served the order on the date it was entered and Respondent received a copy of the order.
2. On December 1, 2011, a probation deputy in the State Bar’s Office of Probation sent a letter to Respondent, reminding him of the terms of his disciplinary probation. On December 15, 2011, Respondent met with the probation deputy, who again explained to him the terms of his disciplinary probation.
3. The Supreme Court order required that Respondent comply with the terms and conditions of his probation, including:
a) Respondent was required to submit to the State Bar’s Office of Probation a report for each calendar quarter during the probationary period, not later than ten days following the end of the calendar quarter, i.e., by each January 10, April 10, July 10, and October 10 of the probationary period;
b) Respondent was required to provide to the Office of Probation within one year of the effective date of the discipline, satisfactory proof of attendance at a session of the State Bar’s Ethics School, and passage of the test given at the end of that session;
c) Respondent was required to provide to the Office of Probation within one year of the effective date of the discipline, satisfactory proof of attendance at a session of the State Bar’s Client Trust Accounting School, and passage of the test given at the end of that session;
d) Respondent was required to comply with all provisions and conditions of Respondent’s Participation Agreement with the Lawyer Assistance Program ("LAP") unless Respondent terminated from LAP prior to his successful completion of the program, including requesting LAP to provide quarterly reports to the office of probation;
e) Respondent was required to obtain psychiatric or psychological treatment from a duly licensed psychiatrist, psychologist, or clinical social worker not less than two times per month, and to furnish proof of compliance with each quarterly probation report.
4. Respondent submitted his first quarterly probation report on May 14, 2012, over one month late. Respondent submitted his second quarterly report on July 12, 2012, two days late, and his third quarterly report on October 12, 2012, two days late.
5. Respondent did not provide to the Office of Probation, within one year of the effective date of the discipline, satisfactory proof of attendance at a session of the State Bar’s Ethics School, and passage of the test given at the end of that session. He did, however, attend Ethics School on March 21, 2013, over three months late.
6. Respondent did not provide to the Office of Probation, within one year of the effective date of the discipline, satisfactory proof of attendance at a session of the State Bar’s Client Trust Accounting School, and passage of the test given at the end of that session. He did, however, attend Client Trust Accounting School on March 22, 2013, over three months late.
7. LAP reported to the Office of Probation that Respondent did not comply with all provisions and conditions of Respondent’s Participation Agreement with the Lawyer Assistance Program ("LAP") Due to privacy concerns, LAP did not specify the nature of the failure to comply in their reports to the Office of Probation.
8. In order to fulfill the LAP conditions of his probation, Respondent was required to request that LAP submit quarterly reports to the Office of Probation. Respondent requested the reports due April 10, 2012, July 10, 2012 and October 12, 2012 late, and therefore LAP did not provide the first two reports to the Office of Probation until August 2, 2012, and the third report on October 10, 2012.
9. Respondent did obtain psychiatric or psychological treatment from a duly licensed psychiatrist, psychologist, or clinical social worker two times per month, but did not furnish proof of the treatments with any quarterly probation report that he submitted. His psychological and psychiatric providers did, however, provide periodic reports indicating Respondent was receiving treatment.
CONCLUSIONS OF LAW:
10. By failing to timely submit his first three required quarterly probation reports, by failing to timely complete Ethics School and Client Trust Accounting School, by failing to comply with LAP conditions, by failing to timely request that LAP submit reports to the Office of Probation on a quarterly basis, and by failing to furnish proof of psychological and psychiatric treatment with each quarterly probation report, Respondent failed to comply with all conditions attached to his disciplinary probation, in willful violation of Business and Professions Code, section 6068(k).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): Respondent has a prior record of discipline in three separate client matters for misconduct occurring between September 2008 and August 2009, involving failures to perform with competence, failure to refund unearned advanced fees, and failure to deposit funds into a client trust account. He received a two-year stayed suspension, two years of probation, and actual suspension of 15 months and until a showing of proof of rehabilitation and present fitness to practice and present learning and ability in the law pursuant to standard 1.4(c)(ii)., effective December 2, 2011.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): In the present matter Respondent has violated multiple conditions of his probation.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Pre-filing stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of Chief Trial Counsel prior to the filing of charges, thereby saving State Bar Court time and resources. (See 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 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. (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 repeatedly violated the terms and conditions of his disciplinary probation. Standard 2.6 provides that culpability of a member of a violation Business and Professions Code 6068(k) 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. In the present case, given Respondent’s repeated and multiple acts of misconduct, his prior discipline including actual and stayed suspension, and lack of substantial mitigation, actual suspension for the present misconduct is appropriate.
Standard 1.7(a), provides 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 that imposing greater discipline in the current proceeding would be manifestly unjust.
The stipulated level of discipline is consistent with standards 2.6 and 1.7(a). In the present case, Respondent has violated multiple terms of his probation. He has failed to comply with LAP, and he has failed to comply with the terms of his probation regarding psychological and psychiatric treatment designed specifically for the purposes of rehabilitation. His prior actual suspension could have expired as early as March 2, 2013, but he remains suspended until he can prove his fitness to practice law pursuant to Standard 1.4(c)(ii).
The recommended discipline of three years’ stayed suspension, with three years of probation and two years’ actual suspension, is appropriate to the gravity of the offense and is adequate to protect the public, the courts and the legal profession.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of March 22, 2013, the prosecution costs in this matter are $2,865.00. 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.
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-17976
In the Matter of: VICTOR DIAZ MIRELES
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: VICTOR DIAZ MIRELES
Date: 6/15/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: R. Kevin Bucher
Date: 6/24/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-O-17976
In the Matter of: VICTOR DIAZ MIRELES
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: George E. Scott, Judge Pro Tem
Date: 7/9/13
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 July 10, 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:
VICTOR D. MIRELES
10842 LAMENTIN CT.
SAN DIEGO, CA 92124
<<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:
Ronald K. Bucher, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on July 10, 2013.
Signed by:
Julie Gonzales
Case Administrator
State Bar Court