Case Number(s): 12-O-18032
In the Matter of: WILLIAM FRANK VOGEL, Bar # 119421, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Lee Ann Kern, Bar # 156623,
Counsel for Respondent: William Frank Vogel, Bar # 119421,
Submitted to: Settlement Judge.
Filed: November 14, 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 10, 1985.
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 10 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: The three billing cycles immediately following the effective date of the Supreme Court’s order in this matter. (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: WILLIAM FRANK VOGEL, State Bar No. 119421
STATE BAR COURT CASE NUMBER: 12-O-18032
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-18032 (Complainant: Oscar Garcia Flores)
FACTS:
1. In October 2011, Oscar Garcia Flores ("Flores") was involved in an automobile accident in which he was cited. In late October 2011, Flores went to Valley Legal Services seeking representation for the traffic matter and met with the office administrator, Arthur Splopuk ("Splopuk"). Splopuk informed Flores that Respondent would represent Flores for a fee of $500. Flores paid Splopuk $500 and Respondent undertook representation of Flores.
2. Flores’s arraignment and plea was scheduled for January 11, 2012. On January 11, 2012, Respondent appeared in court on Flores’s behalf. Flores was not at the hearing and was not required to be present. The court continued the arraignment and plea to January 20, 2012. Respondent received oral notice of the continued hearing. Respondent did not inform Flores of the continued hearing date.
3. In mid-January 2012, Respondent informed Splopuk that Flores’s hearing was continued to January 20, 2012. In mid-January 2012, Flores called Splopuk and asked him what had occurred at the January 11, 2012 hearing. Splopuk informed Flores that his legal matter had been resolved.
4. On January 20, 2012, Respondent did not appear at the hearing on behalf of Flores and a bench warrant was issued for Flores’ arrest. In July 2012, Flores was arrested at his place of employment for failing to appear at the January 20, 2012 hearing. Flores was released on bail on the same day as his arrest. In September 2012, Flores resolved the traffic matter on his own.
CONCLUSIONS OF LAW:
5. By failing to appear at Flores’s arraignment and plea hearing on January 20, 2012, or otherwise represent Flores in his traffic case, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, willful violation of rule 3-110(A), Rules of Professional Conduct.
6. By failing to inform Flores of his January 20, 2012 court date which resulted in Flores’s failure to appear and subsequent arrest, Respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services, in willful violation of Business and Professions Code section 6068(m).
AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): In Case No. 12-O-12809, Respondent stipulated to 30-days actual suspension, one year stayed suspension, and two years’ probation for violating Business and Professions Code sections 6103 (failing to obey court orders) and 6068(o)(3) (failing to report in writing to the State Bar the imposition of non-discovery sanctions in excess of $1,000). The discipline was effective July 6, 2013.
Harm (Std. 1.2(b)(iv)): Respondent’s failure to attend the January 20, 2012 hearing and his failure to inform Flores of the hearing so that Flores could attend, resulted in Flores’s arrest.
MITIGATING CIRCUMSTANCES.
Prefiling Stipulation: Respondent stipulated to facts, conclusions of law, and disposition in order to resolve his disciplinary proceedings as efficiently as possible. (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." (ln 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.)
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. Standards 2.4(b) and 2.6 are the standards that govern the misconduct in this matter. The most severe sanction prescribed by the applicable standards is Standard 2.6, which applies to Respondent’s violation of Business and Professions Code section 6068(m). That standard provides that culpability of a member of a violation of that Business and Professions Code section shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
Notwithstanding, Business and Professions Code section 6068(m) was enacted effective January 1, 1987, one year after the adoption of standard 2.6. Prior to the enactment of Business and Professions Code section 6068(m), a violation of the attorney’s duty to communicate fell under Standard 2.4 which applies to offenses involving willful failure to communicate and perform services. Under the circumstances, it is appropriate to deviate from standard 2.6 and apply standard 2.4(b). Standard 2.4(b) provides for a sanction in the range of reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Respondent’s misconduct is limited to one client matter. Respondent’s failure to perform and communicate harmed the client because it resulted in the client’s arrest. In addition, Respondent has a prior record of discipline. Standard 1.7 (a) mandates that discipline in the instant matter be greater than the 30-days actual suspension Respondent received in his prior discipline because Respondent’s prior discipline was serious and not remote in time. In the prior, Respondent was culpable of violating multiple court orders and failing to report to the State Bar the imposition of $4,500 in sanctions. The misconduct in the prior occurred between November 2011 and April 2012. Here, Respondent failed to perform and failed to communicate with a client in January 2012. Since the prior and current misconduct occurred during the same time period, the weight of the prior record of discipline is diminished as an aggravating factor. (ln the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602.) The sole mitigating factor in the current matter is Respondent’s cooperation in entering into the instant stipulation. In his prior disciplinary matter, Respondent had compelling mitigation of 27 years in practice with no prior discipline.
It is appropriate to analyze the level of discipline in the instant matter based on the totality of the prior and current misconduct and what discipline would have been appropriate had all misconduct been considered together. (Id., at p. 619.) All misconduct considered, including the standards and the mitigating and aggravating circumstances, actual suspension is warranted. Although the actual suspension must be greater than the 30 days Respondent received in his prior discipline, a short period of suspension is still appropriate since the harm in the current matter did not compromise the client’s case.
A sanction of 60 days actual suspension is adequate to deter future misconduct and protect the public. In addition, it is within the range of discipline supported by case law where, as here, there is no deceit to the client and no prior discipline of a similar nature. (Layton v. State Bar (1991) 50 Cal.3d 889 (30 day actual suspension for abandonment of a single trust/estate matter with no prior discipline in 30 years); (King vs. State Bar (1990) 52 Cal.3d 307 [90 days actual suspension and four years’ stayed suspension imposed when an attorney, in two matters, failed to perform legal services in a competent manner, failed to return client files, and violated his oath and duties].)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 11, 2013, the prosecution costs in this matter are $3,858. 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-18032
In the Matter of: William Frank Vogel
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: William Frank Vogel
Date: 10/24/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Lee Ann Kern
Date: 10/24/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-O-18032
In the Matter of: William Frank Vogel
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
On page 4 of the Stipulation, at paragraph D.(1)(b), an "X" is inserted in the box.
<<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
Date: 11/13/13
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 November 14, 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:
WILLIAM FRANK VOGEL
LAW OFFICE OF WILLIAM F VOGEL
14540 VICTORY BLVD STE. 206
VAN NUYS, CA 91411
<<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:
Lee A. Kern, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 14, 2013.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court