Case Number(s): 13-O-10282
In the Matter of: ROGER WILLIAM SHPALL, Bar # 47142, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: R. Kevin Bucher, Bar #132003,
Counsel for Respondent: R. William Shpall, Bar #47142,
Submitted to: Settlement Judge.
Filed: October 15, 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 26, 1970.
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 13 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):.
FINANCIAL CONDITIONS
Case Number(s): 13-O-10282
In the Matter of: Roger William Shpall
a. Restitution
<<not>> checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee:
Principal Amount:
Interest Accrues From:
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
b. Installment Restitution Payments
<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. 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.
c. Client Funds Certificate
<<not>> checked.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3. The requirements of this condition are in addition to those set forth in rule 4-100, Rules of Professional Conduct.
d. Client Trust Accounting School
checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: ROGER WILLIAM SHPALL, State Bar No. 47142
STATE BAR COURT CASE NUMBER: 13-O-10282
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. 13-O-10282 (Complainant: Jose M. Navarrete)
FACTS:
1. On August 17, 2008, Jose M. Navarrete employed Respondent to represent him in a personal injury case. Respondent and Navarrete agreed that Respondent would be compensated by a contingency fee of 33% if the case settled before trial.
2. In July 2009, Respondent settled Navarrete’s case before trial. At the time of settlement, Respondent advised Navarrete that he would send him an itemized statement of all fees, costs and medical expenses deducted from the settlement proceeds. Respondent did not provide an accounting.
3. Respondent withheld a portion of the settlement funds for the payment of a medical lien held by Congress Medical Associates (CMA). All other settlement funds were appropriately dispersed.
4. On November 6, 2012, Navarrete received a bill in the amount of $2,542.00 from CMA, which Navarrete believed had been paid from the funds that Respondent had withheld, and which Respondent should have paid from the funds withheld.
5. Navarrete telephoned Respondent on numerous occasions during the month of November 2012. Each time, he left a voice message asking Respondent to call him back to discuss the CMA bill. Respondent received the messages. Respondent did not return any of Navarrete’s calls, and he did not otherwise respond to Navarrete’s inquiries about the CMA bill. Also in November 2012, Navarrete travelled to Respondent’s office to meet with him to discuss the bill but Respondent was unavailable. Since November 2012, Navarrete has not been able to communicate with Respondent about the CMA bill.
6. On January 11, 2013, the State Bar opened an investigation of case no. 13-O-10282 pursuant to a complaint made by Navarrete.
7. On February 25, 2013, and on March 11, 2013, a State Bar investigator mailed letters to Respondent at his State Bar membership records address. Each letter requested that Respondent respond in writing to specified allegations of misconduct being investigated by the State Bar with regard to Navarrete’s complaint. On March 22, 2013, Respondent sent a letter to the State Bar investigator acknowledging receipt of the investigator’s letters, but he did not provide any substantive response to the allegations, as requested.
8. Between April 3, 2013 and May 7, 2013, the State Bar investigator telephoned Respondent on six occasions. On each occasion, the investigator left a voice mail message requesting that Respondent call back to discuss the allegations of Navarrete’s complaint. Respondent received the messages. Respondent did not return any of the investigator’s telephone calls, and he did not otherwise respond to the State Bar investigator’s requests.
9. At no time did Respondent provide any substantive response to the allegations of Navarrete’s complaint, as requested by the State Bar investigator.
10. On August 29, 2013, after disciplinary procedures had commenced but before the filing of charges, Respondent paid the CMA bill in full.
CONCLUSIONS OF LAW:
11. By not providing any accounting of settlement proceeds to Navarrete, either at the time of settlement in 2009 or at the time the bill was received from CMA in 2012, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession, in willful violation of Rules of Professional Conduct, rule 4-100(B)(3).
12. By not timely paying the CMA lien from settlement proceeds, and by not otherwise dispersing to Navarrete, or on behalf of Navarrete, any portion of the settlement proceeds reserved for payment of CMA’s bill, Respondent failed to pay promptly, as requested by a client, any funds in Respondent’s possession which the client was entitled to receive, in willful violation of Rules of Professional Conduct, rule 4-100(B)(4).
13. By failing to respond to Navarrete’s inquiries regarding the disbursement of settlement proceeds, including inquiries regarding payment of the CMA lien, Respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services, in willful violation of Business and Professions Code 6068(m).
14. By not providing a written, substantive response to the State Bar investigator’s letters, and by not otherwise communicating with a State Bar investigator about the substance of Navarrete’s complaint, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent, in willful violation of Business and Professions Code 6068(i).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Harm (Std. 1.2(b)(iv)): Respondent’s failure to promptly pay the CMA lien from the settlement funds significantly harmed his client. (See Kelly v. State Bar (1991) 53 Cal.3d 509, 519-520 [in absence of additional facts, attorney’s failure to promptly pay client funds constitutes genuine monetary injury, albeit not particularly severe or grievous].)
Multiple Acts of Misconduct (1.2(b)(ii): Respondent has committed multiple acts of misconduct by failing to provide an accounting, failing to timely pay a medical lien, failing to respond to client inquiries and failing to cooperate with a State Bar investigation. (See In the Matter of Valinoti (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 631,646-647.)
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES
No Prior Discipline: Although Respondent’s misconduct is serious, he has no prior discipline over 39 years of practice. (See Edwards v. State Bar (1990) 52 Cal.3d 28, 39 [mitigative credit given for almost 12 years of discipline-free practice despite serious trust fund violations].)
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].) However, the mitigation is tempered by Respondent’s failure to cooperate in the State Bar investigation.
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 admits to committing four acts of professional misconduct during his representation of Navarrete. 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 2.2(b), which applies to Respondent’s violations of Rules of Professional Conduct, rule 4-100(B)(3) [failure to account for settlement funds] and rule 4-100(B)(4) [failure to pay lienholder].
Standard 2.2(b) provides "[c]ulpability of a member of commingling of entrusted funds or property with personal property or the commission of another violation of rule 4-100, Rules of Professional Conduct, none of which offenses result in the willful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances."
Respondent’s multiple acts of misconduct and failure to promptly pay the CMA bill from the settlement funds genuinely harmed his client. While Respondent has recently resolved the outstanding medical bill, this is a serious factor in aggravation. However, Respondent’s 39 years of discipline-free practice is an important factor in mitigation. The fact that Respondent agreed to enter into this stipulation is also a mitigating factor, albeit one that is tempered by Respondent’s failure to cooperate in the State Bar investigation.
When the nature of Respondent’s misconduct and the aggravating and mitigating circumstances are considered, a discipline including a two year stayed suspension, two years of probation with rehabilitative conditions set forth herein, with an actual suspension from the practice of law for the first 90 days, serves the purposes attorney discipline in protecting the public, the courts and the legal profession, as set forth in Standard 1.3. This discipline is also consistent with Standard 2.2(b).
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of July 24, 2013, the prosecution costs in this matter are $2,925.00. 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.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School and State Bar Client Trust Accounting School. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 13-O-10282
In the Matter of: Roger William Shpall
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: Roger William Shpall,,
Date:
Respondent’s Counsel:
Date: 9/20/13
Deputy Trial Counsel: R. Kevin Bucher
Date: 9/26/13
ACTUAL SUSPENSION ORDER
Case Number(s): 13-O-10282
In the Matter of: Roger William Shpall
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
Date: 10/15/13
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 15, 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:
ROGER WILLIAM SHPALL
468 N CAMDEN DR. #200
BEVERLY HILLS, CA 90210
<<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 BUCHER, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 15, 2013.
Signed by:
Rose M. Luthi
Case Administrator
State Bar Court