Case Number(s): 13-O-11836; 13-O-16674
In the Matter of: MARK BRYSON REPLOGLE, Bar # 151200, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Sue Hong, Bar # 285852,
Counsel for Respondent: Mark Bryson Replogle, Bar # 151200,
Submitted to: Assigned Judge.
Filed: December 19, 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 12, 1990.
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 (3) 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-11836; 13-O-16674
In the Matter of: MARK BRYSON REPLOGLE
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: JACQUELYN MCCANTS
Principal Amount: $3,200.00
Interest Accrues From: January 20, 2012
2. Payee: NATHAN HUSS
Principal Amount: $1,747.50
Interest Accrues From: April 6, 2012
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 .
Respondent will remain actually suspended until restitution is paid in full.
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
<<not>> 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: MARK BRYSON REPLOGLE, State Bar No. 151200
STATE BAR COURT CASE NUMBER: 13-O-11836; 13-O-16674
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-11836 (Complainant Jacquelyn McCants)
FACTS:
1. Respondent is a licensed California attorney and is not admitted to practice in South Carolina.
2. South Carolina requires a person to be an active member of the South Carolina Bar in order to practice law or offer legal services in that state. (South Carolina Rules of Professional Conduct, rule 5.5).
3. In January 2012, Jacquelyn Vaughn McCants received a solicitation by mail from the Forest Law Group ("FLG"), Respondent’s law firm, offering to assist in a mortgage reduction.
4. Ms. McCants responded to the mailer and spoke with Scott Bowen, a representative of FLG, who informed her that FLG could represent and assist her with obtaining a mortgage loan modification, and that Respondent’s law office would charge her a fee of $3,495.00 for those loan modification services.
5. On January 17, 2012, Ms. McCants hired Respondent for loan modification services related to her home in South Carolina.
6. On January 20, 2012, Ms. McCants paid the $3,495.00 retainer fee.
7. On July 6, 2012, Respondent submitted a loan modification request to Ms. McCants’s mortgage lender/servicer, Bank of America, but Bank of America denied the mortgage loan modification request on July 30, 2012.
8. In November 2012, after securing a lower mortgage rate from another source, Ms. McCants terminated Respondent’s services and requested a full refund.
9. On February 7, 2013, Ms. McCants received a partial refund of $295.00.
CONCLUSIONS OF LAW:
10. By agreeing to represent and assist Jacquelyn Vaughn McCants with respect to obtaining a loan modification for her home in South Carolina, when to do so was in violation of the regulations of the profession in South Carolina, namely South Carolina Rules of Professional Conduct, rule 5.5, Respondent unlawfully practiced law in South Carolina in willful violation of Rules of Professional Conduct, rule 1-300(B).
11. By entering into an agreement, charging and collecting a fee of $3,495 from Jacquelyn Vaughn McCants to unlawful perform legal services because Respondent was not licensed to practice law in South Carolina, Respondent charged an illegal fee, in willful violation Rules of Professional Conduct, rule 4-200(A).
Case No. 13-O-16674 (Complainant: Nathan Huss)
FACTS:
12. Respondent is a California licensed attorney and is not admitted to practice in Minnesota.
13. Minnesota requires a person to be an active member of the Minnesota Bar in order to practice law or offer legal services in that state. (Minnesota Rules of Professional Conduct, rule 5.5).
14. In February 2012, Nathan Huss received a written solicitation from the Forest Law Group ¯ ("FLG’), Respondent’s law firm, offering to assist in a mortgage reduction.
15. Mr. Huss responded to the mailer and spoke with Sandy Majano, a representative of FLG, who informed him that FLG could represent and assist him with obtaining a mortgage loan modification, and that Respondent’s law office would charge him a fee of $3,495.00 for those loan modification services.
16. On March 31, 2012, Mr. Huss hired Respondent for loan modification services related to his home in Minnesota, and in April 2012, Mr. Huss paid the $3,495.00 retainer fee to FLG.
17. By April 2012, Respondent submitted a loan modification request to Mr. Huss’s mortgage lender/servicer, US Bank, but US Bank denied the mortgage loan modification request on December 26, 2012.
18. In April 2013, Mr. Huss contacted the Minnesota Attorney General’s Office to request assistance in obtaining a retired.
19. In June 2013, Mr. Huss received a partial refund of $1,747.5.
20. By agreeing to represent and assist Nathan Huss with respect to obtaining a loan modification for client’s home in Minnesota, when to do so was in violation of the regulations of the profession in Minnesota, namely Minnesota Rules of Professional Conduct, rule 5.5, Respondent practiced law in Minnesota in willful violation of Rules of Professional Conduct, rule 1-300(B).
21. By entering into an agreement, charging and collecting a fee of $3,495 from Nathan Huss to perform unlawful legal services because Respondent was not licensed to practice law in Minnesota, Respondent charged an illegal fee, in willful violation Rules of Professional Conduct, rule 4-200(A).
AGGRAVATING CIRCUMSTANCES.
Harm (Std. 1.2(b)(iv)): Respondent’s clients, Ms. McCants and Mr. Huss, were harmed because they were deprived of their money for over a year, and have not yet received a full refund. Multiple Acts of Misconduct (Std. 12,(b)(h’)): Respondent engaged in the unauthorized practice of law in two client matters and charged and collected two illegal fees. Therefore, Respondent engaged in multiple acts of misconduct
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
No Prior Discipline (Std. 1.2(e)(i)): Although Resp0ndent’s misconduct is deemed serious, he is entitled to mitigation for having practiced law for approximately 22 years without discipline. (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49.)
Prefiling Stipulation: Respondent has entered into a Stipulation with the State Bar prior to the filing of the Notice of Disciplinary Charges, thereby saving the State Bar Court time and resources. (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. (ln re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should dearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
Standard 2.10 states a member’s culpability of violation of any provision of the Business and Professions Code not specified in these Standards or of a willful violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the offense or harm to the victim with due regard to the purposes of imposing discipline. Here, in two client matters, Respondent violated Rules of Professional Conduct rule 1-300(B) by practicing law without a license in South Carolina and Minnesota, and rule 4-200(A) by collecting an illegal fee. These sections of the Rules of Professional Conduct are not otherwise specified in the Standards and thus Standard 2.10 applies.
In these matters, the harm to the clients is that they were deprived of their money. However, Respondent has refunded $295 to Ms. McCants, and $1,747.50 to Mr. Huss, thereby lessening the harm to them. Additionally, the legal profession and public’s confidence arc harmed when an attorney practices law in a jurisdiction in which he or she is not licensed.
The purpose of Standard 1.3 is 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 are well served by a significant period of actual suspension. An appropriate level of discipline is 30 days of actual suspension, and until $4,947.50 of restitution paid in full, with one year of stayed suspension, and 2 years of probation.
This level of discipline is also consistent with ease law. The respondent in In the Matter of Wells (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 896, engaged in the unauthorized practice of law in another jurisdiction in two cases and over several years .charged an illegal and unconscionable fee, failed to return unearned fees, failed to maintain funds in trust, and engaged in moral turpitude for misrepresenting her entitlement to practice law. Additionally, there was significant mitigation and aggravation present and Respondent had one prior discipline. Respondent received six months actual suspension and until restitution is paid in full.
In the present case, unlike in Wells, Respondent’s misconduct of engaging in the unauthorized practice of law, and collection of an illegal fee spanned the course of less one year in two client matters. Further, Respondent differs from Wells because he does not have a prior discipline and did not engage in moral turpitude. As such, 30 days of actual suspension, and until $4,947.50 of restitution paid in full, with one year of stayed suspension, and 2 years of probation satisfies the purposes of imposing discipline.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 23, 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 and/or any other educational course(s) to be ordered as a condition of reproval or suspension]. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 13-O-11836; 13-O-16674
In the Matter of: MARK BRYSON REPLOGLE
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: MARK BRYSON REPLOGLE
Date: 11/25/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Sue Hong
Date:12/5/13
ACTUAL SUSPENSION ORDER
Case Number(s): 13-O-11836; 13-O.16674
In the Matter of: MARK BRYSON REPLOGLE
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.
<<not>> checked. All Hearing dates are vacated.
On page 5 of the stipulation: Delete the "x" from the box to the right of the number "(10)" and also Delete the "x" from the box next to the words "Financial Conditions
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: Donald F. Miles
Date: 12/19/13
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 December 19, 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:
MARK B. REPLOGLE
PO BOX 7958
APACHE JUNCTION, AZ 85178
<<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:
SUE HONG, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles , California, on December 19, 2013.
Signed by:
Rose M. Luthi
Case Administrator
State Bar Court