Case Number(s): 13-O-11012
In the Matter of: GASPAR ROBERTO GARCIA, II, Bar # 215762, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Robert A. Henderson, Bar # 173205,
Counsel for Respondent: Gaspar R. Garcia, II, Bar # 215762,
Submitted to: Settlement Judge.
Filed: December 20, 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 3, 2001.
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):
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.
<<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.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: GASPAR ROBERTO GARCIA, II, State Bar No. 215762
STATE BAR COURT CASE NUMBER: 13-O-11012
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-11012 (Complainant: Karen Patche)
FACTS:
1. On June 29, 2009, Karen Patche ("Patche") employed Respondent for representation in a legal matter against her employer, California Department of General Services ("CDGS") and James Martin ("Martin"). Thereafter, Respondent substituted into Sacramento Superior Court case no. 06AS03408, Patche v. California Dept. of General Services et al. on behalf of Patche.
2. On December 16, 2010, the court granted Respondent’s motion for leave to file a Third Amended Complaint ("TAC"). The minute order specified that the TAC be filed no later than December 27, 2010.
3. On December 27, 2010, Respondent filed the TAC. The TAC was deficient because Respondent failed to name Martin as a defendant and failed to comply with other filing requirements specifically identified by the court in previous minute orders.
4. On January 11, 2011, CDGS filed its "Motion to Strike Third Amended Complaint." Respondent received, but did not file an opposition to the CDGS motion.
5. On January 11, 2011, Respondent filed a motion, which sought permission to file a Fourth Amended Complaint. The motion was not properly served as it did not provide sufficient time to respond. On or about January 28, 2011, the court dropped the motion for lack of jurisdiction.
6. On February 9, 2011, the court granted CDGS’s motion to strike the TAC.
7. On April 26, 2011, CDGS filed a Motion to Dismiss the case. Respondent received the motion, but failed to file an opposition.
8. On May 19, 2011, Martin filed a motion to dismiss Martin from the case. Respondent received the motion, but failed to file an opposition.
9. On June 2, 2011, the court granted CDGS’s unopposed motion to dismiss the TAC, with prejudice, thereby ending the case.
10. On June 24, 2011, the court granted Martin’s unopposed motion to dismiss Martin from the case.
11. On July 7, 2011, the court filed its "Order Granting Defendant James Martin’s Motion to Dismiss and Entry of Judgment in His Favor."
12. On July 11, 2011, Judgment was entered by the court against Patche and in favor of CDGS.
13. Respondent never informed Patche that: 1) the TAC had been stricken; 2) the case was dismissed; 3) Martin was dismissed from the case; 4)judgment had been entered in favor of CDGS; and 5) judgment had been entered in favor of Martin.
14. On February 12, 2013, the State Bar opened an investigation, case no. 13-O-11012, concerning Respondent’s representation of Karen Patche ("Patche matter").
15. On March 13, 2013, and June 12, 2013, a State Bar investigator sent letters to Respondent regarding the Patche matter. The investigator’s letters requested that Respondent respond in writing to specified allegations of misconduct being investigated by the State Bar in the Patche matter. Respondent received, but did not respond to the investigator’s letter or otherwise communicate with the investigator.
CONCLUSIONS OF LAW:
16. By filing a deficient TAC, by failing to properly seek permission to file a Fourth Amended Complaint and by failing to oppose the motion to dismiss the TAC by CDGS and the motion to dismiss Martin from the case, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
17. By failing to inform Patche that her TAC had been stricken, that the case had been dismissed, that Martin had been dismissed from the case and that judgment had been entered in favor of CDGS and Martin, 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).
18. By not providing a written response to the allegations in the Patche matter or otherwise cooperating in the investigation of the Patche matter, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent in willful violation of Business and Professions Code section 60680).
AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): Respondent has a prior record of discipline which stemmed from his conduct in a single client matter. From September 2010 through June of 2012, Respondent ceased performing and ceased communicating with his client. In addition, Respondent charged an unconscionable fee, misrepresented the status of the matter to his client, made an unauthorized charge on his client’s credit card, failed to release the client file and failed to cooperate in the disciplinary investigation.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent engaged in three acts of misconduct in his representation of Patche. These multiple acts of misconduct constitute an aggravating factor. (See In the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 498, 555.)
Harm (Std. 1.2(b)(iv): Respondent’s failure to perform competently, resulted in Patche’s case being dismissed, which significantly harmed Patche, even though the value of the matter was uncertain. (See In the Matter of Bach, (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631, 646.)
MITIGATING CIRCUMSTANCES.
Pre-trial Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of the Chief Trial Counsel, prior to trial, thereby saving the office and State Bar Court time and resources. (See Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079; In the Matter of Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 151,156; In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 993-994 [where mitigative credit was given for entering into a stipulation as to facts and culpability].) The weight of the mitigation is tempered by the fact that Respondent failed to participate during the 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." (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. (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.)
Respondent admits to committing three acts of professional misconduct. 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 is found in Standard 2.6(a), which applies to Respondent’s violation of Business and Professions Code, section 6068(i), for failing to cooperate in the disciplinary investigation. Standard 2.6(a) states that if a member is culpable of a violation of Business and Professions Code section 6068, the discipline shall be "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.”
To determine the proper level of discipline, we examine the gravity of the offense and the gravity of the harm suffered. Here, the gravity of the offense is serious and caused harm to Respondent’s client. Respondent failed to perform, failed to keep his client informed of significant events and failed to cooperate in the disciplinary investigation. Respondent’s failure to perform resulted in his client’s matter being dismissed and judgment being entered in favor of the defendants. Although the underlying claim had an undetermined value, the loss of that claim by the client is significant.
Standard 1.7(a) suggests an increased level of discipline when there is one prior record of discipline. However, when the conduct in the prior and current disciplinary matters overlap, the analysis found in In the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602 is applicable. In Sklar, the Review Department held that the impact of a prior disciplinary matter was diminished because it occurred during the same time as the misconduct in the case at issue. Accordingly, the Review Department considered the "totality of the findings in the two eases to determine what the discipline would have been had all the charged misconduct in this period been brought as one ease." (Id. at p. 618.)
In this matter, as in Sklar, the misconduct falls in the same time frame and is of the same type of misconduct as the prior record of discipline. Therefore, as in Sklar, when determining the level of discipline to impose, we look at the totality of the circumstances, with less consideration given to the prior discipline.
Respondent’s prior discipline stemmed from a single client matter, but involved: a failure to perform competently which resulted in the dismissal of his client’s appeal, a failure to inform his client of the dismissal, a failure to respond to his client’s requests for a status update, a misrepresentation to his client that Respondent could reverse the dismissal, a failure to promptly return the client’s file, an unconscionable fee charged to the client, an unauthorized credit card charge of $204.95 on the client’s credit card, and a failure to cooperate in the disciplinary investigation. Here, Respondent failed to perform in a single client matter, which resulted in another client losing a cause of action. Respondent also failed to inform the client of significant events and failed to cooperate in the disciplinary investigation. The totality of findings in both cases demonstrates that Respondent’s misconduct is serious and repetitive. Plus, the gravity of the harm is great, since Respondent’s misconduct resulted in both clients losing their cause of action. In aggravation, Respondent harmed his clients and committed multiple acts of misconduct. Respondent is only entitled to limited mitigation for entering into this stipulation since he failed to cooperate in both disciplinary investigations. Although disbarment is not warranted under the standard, based on the serious nature of Respondent’s misconduct, a long actual suspension is appropriate. A two-year actual suspension with a requirement that Respondent prove his rehabilitation before he is relieved from actual suspension will serve the purposes of attorney discipline.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of December 6, 2013, the prosecution costs in this matter are $3,419. 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-11012
In the Matter of: GASPAR ROBERTO GARCIA, II
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: GASPAR ROBERTO GARCIA, II
Date: 12/13/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Robert A. Henderson
Date: 12/17/13
ACTUAL SUSPENSION ORDER
Case Number(s): 13-O-11012
In the Matter of: GASPAR ROBERTO GARCIA, II
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.
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: Lucy Armendariz
Date: 12/20/13
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 San Francisco, on December 20, 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 San Francisco, California, addressed as follows:
GASPAR R. GARCIA II
GARCIA AND ASSOCIATES
7 PARK VISTA CIR
SACRAMENTO, CA 95831
<<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:
ROBERT A. HENDERSON, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on December 20, 2013.
Signed by:
Mazie Yip
Case Administrator
State Bar Court