Case Number(s): 13-O-10689
In the Matter of: BARBARA EDELSTEIN IRVING, Bar # 108412, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kelsey J. Blevings, Bar # 271271 ,
Counsel for Respondent: Barbara Edelstein Irving, Bar #108412,
Submitted to: Settlement Judge.
Filed: November 22, 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 3, 1983.
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 12 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: BARBARA EDELSTEIN IRVING, State Bar No. 108412
STATE BAR COURT CASE NUMBER: 13-O-10689
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes.
Case No. 13-O-10689 (State Bar Investigation)
FACTS:
1. In June 2012, a client ("Client no. 1") employed Respondent to represent him and his family business in a breach of contract case.
2. Client no. 1’s spouse ("Client no. 2"), was a potential witness in the breach of contract case.
3. Respondent represented Client no. 2 in a separate case unrelated to the breach of contract case.
4. On November 29, 2012, Respondent caused to be filed a motion to withdraw as attorney of record for Client no. 1 and his family business in the breach of contract case. Respondent attached to the motion her own four-page declaration in support of the motion.
5. Respondents’ declaration began:
In order to avail the clients of their privilege of "confidentiality" I will focus this declaration on the problems from my end of the case, as an attorney who has been trying to be both helpful and ethical.
6. Respondent’s declaration contained confidential communications between Respondent and Client no. 1 and Client no. 2. For example, Respondent stated:
Since the time I began doing legal work for them, in July 2012, wife [Client no. 2] has objected to, or ignored, many of my requests from them to provide information, documents, copies of various materials and records, usually ignoring such requests or telling husband to inform me that she does not want to provide materials in response to my requests.
7. Respondent’s declaration contained information that was potentially detrimental to the interests of Client no. 1 in the breach of contract case. For example, Respondent stated:
Towards the second week in November, 2012, [Client no. 1 and Client no. 2] first raised a new area of information which led me to what should have been the most important or second most important factor in this case .... [¶]...I have hesitated to inquire as to why they delayed in providing me with this information, lest they do an about-face and deny ever having given me this late bit of information.
8. Respondent’s declaration contained information that was potentially detrimental to the interests of Client no. 1 and Client no. 2 in other cases in which Respondent represented Client no. 1 and Client no. 2. For example, Respondent stated:
A few weeks later, wife [Client no. 2] denied that she had contacted the other attorney without informing me beforehand, swearing up and down that she had told me of her intentions BEFORE contacting this other attorney. At this point, I would not be comfortable calling wife as a witness in the case with [Plaintiffs], or in any other case for that matter.
(Emphasis in original.)
9. Respondent’s declaration contained personal observations regarding problems with one or more of her client’s actual or potential witnesses in the breach of contact case. For example, Respondent stated:
Most recently (last week) I stated that I needed to speak with the several outside witnesses we had previously identified as being essential to this case. Wife told husband to inform me that she did not want me to speak with the witnesses because any of them "might repeat anything I said to them (witnesses) to the plaintiffs in this case." This seems to apply to two of the witnesses I would need to call. The third witness identified, a person in their mid to late 40’s, seems to have serious problems with memory and recall; giving me totally different and conflicting information on different occasions.
(Emphasis in original.)
10. Respondent’s declaration disparaged Client no. 1 and Client no. 2. For example, Respondent stated:
At this point in time, I can only describe my reaction to the whole mess as total frustration as to having had my time wasted for four months without having accomplished what I should have been able to do to further the status of this case, as well as the time spent badgering the clients to bring the long-standing balance of fees owed to me for work I have already done, but received on a fraction thereof.
11. Respondent’s declaration contained information that was designed to portray Client no. 2 in a negative light and which had no bearing on the breach of contract case. For example, Respondent recounted a situation in which she purportedly upset Client no. 1’s and Client no. 2’s 12-year-old daughter by using the word "consequences" during a telephone conversation. Respondent strongly denied ever using the word "consequences" and instead suggested that Client no. 2 had manipulated her daughter into fabricating the story in order to make Respondent feel uncomfortable.
12. Respondent obtained the information set forth in her declaration as a direct and proximate result of the attorney-client relationship that had existed between Respondent and Client no. 1.
13. At no time did Client no. 1 or Client no. 2 authorize Respondent to disclose any of the information contained in her declaration.
14. On January 17, 2013, in an effort to ameliorate the prejudice caused to Client no. 1 and his business, the court issued an order striking Respondent’s motion in its entirety and barfing the use of Respondent’s declaration by the plaintiff in the breach of contract matter.
15. The communications, observations, and personal opinions set forth in Respondent’s declaration were designed to insult and embarrass Client no. 1 and Client no. 2, had no relevance to the breach of contract case, and went far beyond anything necessary to reasonably establish a breakdown of the attorney-client relationship.
CONCLUSIONS OF LAW:
16. By disclosing in her declaration confidential information she obtained as a result of her attorney-client relationship with Client no. 1 and Client no. 2 without authorization to do so, Respondent failed to maintain inviolate the confidences, and at every peril to herself to preserve the secrets, of her client willful violation of Business and Professions Code section 6068(e).
17. By disclosing in her declaration communications, observations, personal opinions that were designed to insult and embarrass Client no. 1 and Client no. 2, which had no relevance to the breach of contract case, and which went far beyond anything necessary to reasonably establish a breakdown of the attorney-client relationship, Respondent advanced facts prejudicial to the honor or reputation of a party or witness, without being required by the justice of the cause with which she was charged, in willful violation of Business and Professions Code section 6068(0.
AGGRAVATING CIRCUMSTANCES.
Bad Faith (Std. 1.2(b)(iii)): Respondent’s breach of her client’s confidences was self-serving. She intended to create problems for her client either by way of some kind of retaliation or to ensure a complete and irreparable breakdown in the attorney-client relationship which she believed would necessitate the granting of her motion to withdraw in the breach of contract matter.
Harm (Std. 1.2(b)(iv)): Client no. 2 suffered unnecessary public embarrassment from the many maligning statements contained in the declaration which were irrelevant to any issues pending before the court. Further, notwithstanding the court’s efforts to ameliorate the prejudice to Client no. 1 in the breach of contract matter, Respondent disclosed confidential information which may have been detrimental to her client’s interests in other legal matters.
MITIGATING CIRCUMSTANCES.
No Prior Discipline: Although her misconduct is serious, Respondent has maintained a discipline-free record of practice since she was admitted to the State Bar of California in 1983. (See In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49 [where mitigative credit was given for long period of discipline-free practice despite serious misconduct].)
Pro Bono Service: Since 2008, Respondent has served as a volunteer Judge Advocate General ("JAG") officer in the United States Volunteers Joint Services Command. Additionally, from 1992 to 1999 Respondent volunteered as judge pro tem one day per month for the Los Angeles County Municipal Court. (See Rose v. State Bar (1989) 49 Cal.3d 646, 667 [significant contributions to the legal profession in the form of pro bono service are a mitigating circumstance].)
Prefiling Stipulation: Respondent has voluntarily entered into this stipulation and should receive mitigative credit for her early admission of culpability and consent to the imposition of discipline. (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." (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. (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, 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.)
The sanctions applicable to Respondent’s professional misconduct are found in standard 2.6. Under standard 2.6, culpability of an attorney of a violation of Business and Professions Code sections 6068 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.
Here, Respondent breached her duty to maintain inviolate the confidences of her client and deliberately sought to besmirch the honor and reputation of her client’s spouse, who was both a witness in the pending litigation and a client in an unrelated matter. The gravity of Respondent’s misconduct cannot be overstated. The duty to maintain client confidences is the most strongly worded duty binding on an attorney (Bus. and Prof. Code, section 6068(e)) and is a bedrock principle of the legal profession. (See In re Boone (Cir. Ct., N.D. Cal. 1897) 83 F. 944, 953 [the relationship between an attorney and client being, in the highest degree, a confidential one, the attorney is bound to the strictest secrecy and the most scrupulous good faith].) In aggravation, Respondent acted in bad faith by disclosing her client’s confidences to further her personal aim of obtaining the court’s permission to withdraw from the representation. More importantly, Respondent harmed her client by publicly maligning him and revealing confidential information that could be used against him and members of his immediate family legal matters unrelated to the breach of contract case.
In mitigation, Respondent’s 30 years of discipline-free practice merits significant weight. For the past five years, Respondent has demonstrated a commitment to the legal profession through pro bono service by serving as a volunteer JAG officer in the United States Volunteers Joint Services Command. Previously, Respondent served as a volunteer judge pro tem one day per month for the Los Angeles County Municipal Court. Additionally, Respondent has made an early admission to culpability by voluntarily entering into this stipulation. However, these mitigating circumstances are not sufficiently compelling to warrant a deviation from standard 2.6. Given the seriousness breach of Respondent’s ethical duties, a sanction in the intermediate range of the standard is appropriate.
In consideration of the foregoing, a two-year suspension (stayed) and two years of probation, subject to the conditions herein, including a 90-day actual suspension, is appropriate under the standards and will serve the purpose of attorney discipline as set forth in standard 1.3.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 21, 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): 13-O-10689
In the Matter of: BARBARA EDELSTEIN IRVING
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: BARBARA EDELSTEIN IRVING
Date: 11/5/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: KELSEY J. BLEVINGS
Date: 11/8/13
ACTUAL SUSPENSION ORDER
Case Number(s): 13-O-10689
In the Matter of: BARBARA EDELSTEIN IRVING
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: 11/22/13
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 22, 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:
BARBARA EDELSTEIN IRVING
LAW OFC BARBARA E IRVING
PO BOX 1155
SIERRA MADRE, CA 91025 - 1155
<<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:
KELSEY BLEVINGS, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 22, 2013.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court