Case Number(s): 04-O-14105; 05-0-4173; 05-0-5002
In the Matter of: Phuc Dinh Do, Bar # , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Allen Blumenthal, Bar # 110243
Counsel for Respondent: Jonathan Arons, Bar # 111257
Submitted to: State Bar Court Clerk’s Office San Francisco
Filed: September 27, 2006
<<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 April 3, 1995.
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 16 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. costs added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. case ineligible for costs (private reproval).
checked. costs to be paid in equal amounts for the following membership years: 2007 & 2008. (hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
Respondent agrees that within 3(] days of the effective date of this reproval, he will employ at his own expense Rita De Angelis a law office management consultant, to review and evaluate his law office management and office procedures, including any conflicts check procedure and calendaring system. Respondent agrees that within 60 days of the effective date of this reproval, he will obtain a law practice management plan from Ms. De Angelis. Respondent further agrees that within 90 days of the effective date of the reproval, Respondent will Implement the law office management plan and procedures recommended by Ms. De Angelis. Respondent agrees that he will comply with the law office management plan recommended by Ms. De Angelis and will swear under penalty of perjury in his quarterly probation reports that he has complied with the law office management plan, Respondent understands that failure to comply with this plan or be truthful In his quarterly reports may subject him to further discipline.
Attachment language (if any):
Respondent agrees that if any of the complaining clients or their representatives seeks mandatory fee arbitration regarding Respondent’s fees, Respondent will agree to do so and comply with any award resulting from the arbitration.
IN THE MATTER OF: Phuc Dinh Do
04-0-14105; 05-O-4173; 05-0-5002.
CASE NUMBER(S):
STATE BAR INVESTIGATIONS
!. Case No. 04-O-14105 (Acosta & Polanco matter)
A. FACTS
In June 2002, Maria Elena Polanco and Sergio Acosta hired Respondent’s law firm, the Law Offices of Phuc Dinh Do, to negotiate and act as a mediator between them in preparing their pre-nuptial agreement. Ms. Polanco and Mr. Acosta were scheduled to be married on July 17, 2002. Respondent’s firm was also to draft the prenuptial agreement between Ms. Polanco and Mr. Acosta.
By June 21, 2002, Respondent’s law firm negotiated and mediated the terms of the prenuptial agreement. Respondent’s law firm also drafted the pre-nuptial agreement, which included a provision acknowledging that the Law Offices of Phuc Dinh Do acted as the parties’ mediator.
The pre-nuptial agreement provided for certain property to remain as Mr. Acosta’s sole and separate property, including a home and Mr. Acosta’s "earnings and income from all sources whatsoever after the date for marriage." On June 21, 2002, both Ms. Polanco and Mr. Acosta signed the pre-nuptial agreement and had it notarized.
On July 17, 2002, Ms. Polanco and Mr. Acosta married.
In January 2004, Mr. Acosta met with Respondent regarding filing a dissolution of marriage action against Ms. Polanco. On January 12, 2004, Mr. Acosta hired Respondent to file and represent him in dissolution of marriage proceeding against Ms. Polanco. Mr. Acosta paid Respondent $2,000 as an advance on Respondent’s fee. On January 16, 2004, Respondent filed the petition for dissolution of marriage.
At no time prior to entering into the January 2004 fee agreement, or at any time thereafter, did Respondent provide written disclosure of the conflict to either Ms. Polanco or Mr. Acosta. At no time did Respondent obtain the informed written consent of either Ms. Polanco or Mr. Acosta for Respondent to represent Mr. Acosta in this matter, even though his firm had been the mediator and preparer of their prenuptial agreement and even though it concerned the same matter as the mediation. As the mediator of the pro-nuptial agreement, Respondent’s law firm obtained confidential information from both parties and was subject to a duty of loyalty to both parties.
Respondent asserts that he was not aware that his law firm had mediated or prepared the pre-nuptial agreement and, therefore, was not aware of the conflict of interest in representing Mr. Acosta in his dissolution of marriage matter Respondent asserts that he has no records of this pre-nuptial matter and that an associate handled the mediation and pre-nuptial matter without his knowledge, or retaining a record of the matter for the law firm. Respondent acknowledges that it was his responsibility to know that the firm had previously acted as the mediator for Ms. Polanco and Mr. Acosta; that it was his responsibility to have records and a conflicts check procedure; and that it was his responsibility to supervise his staff and the work in the office.
On February 5, 2004, both Ms. Polanco and Mr. Acosta died before the dissolution of marriage was completed,
B. CONCLUSIONS OF LAW
By accepting employment as Mr. Acosta’ attorney in the dissolution of marriage matter and failing to obtain Ms. Polanco and Mr., Acosta’s informed written consent to Respondents’ representation of Mr. Acosta in the dissolution of marriage matter, Respondent accepted employment adverse to a former client without informed written consent in a matter in which respondent’s law firm had obtained confidential information material to the employment, in violation of rule 3-310(E) of the Rules of Professional Conduct.
By failing to properly supervise his staff and office and by failing to have procedures to ensure that he knew of the pre-nuptial matter and there was a record of the firm’s previous representation as a mediator for Ms. Polanco’s and Mr. Acosta’s pre-nuptial agreement, Respondent failed to perform competently, in violation of rule 3-110(a) of the Rules of Professional Conduct. Likewise, by allowing the firm to accept employment as Mr. Acosta’s attorney in the dissolution of marriage matter without complying with the conflict rules and by failing to have proper conflict check procedures in his office, Respondent failed to perform competently, in violation of rule 3-110(a) of the Rules of Professional Conduct.
2. Case No. 05-O-4173 (Huan Tran matter)
A. FACTS
On April 2, 2002, Hung Ho, the uncle and legal guardian of Huan Tran, a 16 year old student from Vietnam, hired Respondent to convert Mr. Tran’s status with the Immigration and Naturalization Service (INS) so that he could remain in the United States. Mr. Ho paid Respondent $500 as an advance on the fees to be paid in this matter. Respondent was to be paid $1,000 if he obtained the changed status; otherwise he was to be paid $500.00. On June 10, 2002, Respondent filed an Application to Extend/Change Non-lmmigration Status to the INS on behalf of Mr. Tran
On July 20, 2002, the INS sent Respondent by U.S. mail address at his law office address a request for further information and documentation. It gave Respondent until October 12, 2002 to submit the additional documentation. Respondent received this request.
On August 7, 2002, Respondent submitted to the INS same of the documentation requested, but failed to submit all of the documentation requested, namely documentation proving that Mr. Tran intended to return to Vietnam.
On October 22, 2002, the INS sent Respondent and Mr. Tran a notice of decision denying Mr. Tran’s request for a status change because the "service has not received the evidence requested and required by regulation to establish the applicant’s eligibility for the benefit sought." Respondent received this notice. Mr. Tran claims he had moved and did not receive the notice when sent. He later learned of the denial. Respondent did not communicate with Mr. Tran or his family regarding the denial or ascertain what action, if any, should be taken in regards to Mr. Tran.
In or about May 2003, Mr. Tran and his family learned of the denial. On May 12, 2003, Mr. Ho came to Respondent’s office to seek reconsideration of the denial. Respondent’s law firm prepared a motion for reconsideration, even though the time for reconsideration had already expired.
On May 12, 2003, the motion for reconsideration was sent to the INS claiming that the lateness of the motion was due to Respondent’s law office and not to Mr. Tran. It claimed that after Mr. Tran contacted the law firm by letter regarding the denial, Respondent’s temporary secretary placed the letter in the file and placed the file in the closed files cabinet. It was only in May 2003, when the law firm did an audit of its records, that the law firm discovered the INS’ decision. The May 12, 2003 motion for reconsideration was purportedly signed by Respondent, but Respondent asserts that he did not sign or approve it. Instead, he claims that another lawyer in the office instructed his secretary to sign his name. Respondent asserts that it was common practice for the secretary to sign his name to documents,
On July 1, 2003, Respondent’s law firm sent a letter to the Consulate General of the United States asserting that he was asking the INS to reopen Mr. Tran’s matter due to the firm’s failure to respond to the October 22, 2002 letter of the INS denying Mr. Tran a change in his status, The July 1, 2003 letter was purportedly signed by Respondent, but Respondent asserts that he did not sign it. Instead, Respondent claims that someone in the office instructed his secretary to sign his name.
On June 30, 2004, the motion to reopen or reconsider Mr. Tan’s application was denied because any motion to reopen must be filed within 30 days of the original decision. The motion for reconsideration or reopening the matter was filed long after the 30 days had expired.
B. CONCLUSIONS OF LAW
By failing to provide the required documentation to the INS and by failing to file the request for reconsideration in a timely manner, Respondent failed to perform competently, in violation of rule 3-110(a) of the Rules of Professional Conduct. Likewise, by failing to supervise his staff regarding the Tran matter, by allowing his secretary to sign his name to documents, by failing to supervise his staff in their sending a letter under his name which respondent claims he did not approve, Respondent failed to perform competently, in violation of rule 3-110(a) of the Rules of Professional Conduct.
3. Case No. 05-O-5002 (Thuy Pham & Ken Nguyen matter)
A. FACTS
On April 9, 2005, Thuy Pham & Ken Nguyen hired Respondent to represent them in regards to a demand by Walt Fries for unpaid rent arising from a commercial lease they previously entered into with Mr. Fries, the owner of the property. Sometime after entering into the lease, Ms. Pham and Mr. Nguyen subleased the properly to Tuan Pham, who subsequently abandoned the premises without paying the rent. Respondent was paid $1,000 to negotiate a settlement and resolution of the matter.
On April I 1, 2005, Respondent sent a letter to attorney Jack Benoun, Mr. Fries’ attorney, requesting that Mr., Benoun direct all future correspondence to Respondent’s attention. It also informed Mr. Benoun that the paralegals involved should Respondent not be available were Shelia Nguyen and Morris Kemper. Subsequently. Respondent failed to perform the services for which he was hired, including negotiating a settlement/resolution of this matter.
On May 6, 2005, Mr. Benoun wrote Respondent demanding $10,887.98 from Respondent’s clients for unpaid rent. Mr. Benoun wrote that if he heard nothing further from Respondent he would initiate legal action against Respondent’s clients. Respondent received this letter.
Subsequently, Respondent failed to respond to Mr. Benoun or perform the services for which he was hired. He failed to make an offer of settlement to Mr. Benoun.
On June 1, 2005, Mr. Benoun again wrote Respondent demanding $10,887.98 from Respondent’s clients. Mr. Benoun wrote that if he heard nothing further from Respondent he would initiate legal action against Respondent’s clients. Respondent received this letter.
Subsequently, Respondent failed to respond to Mr. Benoun or perform the services for which he was hired. He failed to make an offer of settlement.
On June 25, 2005, Respondent wrote Mr. Benoun that he had contacted his clients and he expected a settlement offer after the fourth of July weekend. He never obtained Mr. Bounan’s approval to wait until after the fourth of July weekend to make a settlement offer. Subsequent to July 25, 2005, Respondent failed to communicate with Mr. Benoun, make a settlement offer, or perform further services.
On June 29, 2005, Mr. Benoun filed a lawsuit against Respondent’s clients, entitled Walt Fries v. Ken Nguyen, Thuy Pham & Tuan Pham, Alameda Superior Court Case No. FG 05220454. On July 13, 2005, it was served on Ken Nguyen. On August 15, 2005, it was served on Thuy Pham.
On August 19, 2005, Respondent wrote a letter to Mr. Benoun finally making an offer to settle the matter for $6,000 and requesting an extension of time to file an answer in this matter. He never obtained Mr. Benoun’s acceptance of the settlement offer or an extension of time to file the answer. He never telephoned or otherwise communicated with Mr. Benoun to ensure that he had obtained an extension of time to file the answer in this matter.
On August 30, 2005, Mr. Benoun filed a request for entry of default in this matter. On September 9, 2005, Thuy Pham & Ken Nguyen hired attorney John F. Bradley, Jr. to represent them in place of Respondent. Subsequently, Mr. Bradley negotiated a settlement of the matter.
B. CONCLUSIONS OF LAW
By failing to perform the services for which he was hired, which included negotiating a settlement/resolution of the clients’ matter or at least making a timely offer to resolve it, and by failing to file an answer in a timely manner, Respondent failed to perform competently, in violation of rule 3-110(a) of the Rules of Professional Conduct.
By failing to refund the unearned fees in this matter, even though Respondent did not perform services of value to the clients, Respondent failed to refund unearned fees, in violation of role 3-700(D)(2) of the Rules of Professional Conduct.
SUPPORTING AUTHORITY
Standard 2.4 (b) states: Culpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.10 states: Culpability of a member of a violation of any provision of the Business & Professions Code not specified in these standards or era wilful violation of any Rule of Professional Conduct shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing a discipline set forth in standard 1.3.
Case law for misconduct similar to Respondent’s misconduct has resulted in reprovals to periods of actual suspension. (See Stuart v. State Bar (1985) 40 Cal.3d 838 [30 day actual suspension for one failure to perform]; Van Sloten v. State Bar (1989) 48 Cal.3d 921 [six month suspension, stayed for one failure to perform]; Gadda v. State Bar [six month actual suspension for failure to perform in four separate matters]; Layton v. State Bar (1990) 50 Cal.3d 889 [30 days actual suspension for failing to perform in a probate matter]; In the Matter of Respondent G (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 175 [private reproval for one instance of failure to perform]
While the number of failures to perform/supervise the office and other misconduct present here would usually result in a period of actual suspension, the State Bar believes that in this case the public will be protected by a public reproval with the additional protection created by Respondent agreeing as a condition of his discipline to have Rita De Angelis, a law office management expert, review Respondent’s office procedures and by Respondent implementing her recommendations and procedures. Those procedures shall include, but not be limited, to creating conflicts check procedures and a calendaring system.
This review of Respondent’s office procedures and policies and Respondent’s agreement to implement Ms. De Angelis’ recommendations should prevent future misconduct similar to the ones that occurred in the three matters in this stipulation. According to Respondent, the misconduct in these matters was the result of a failure to have proper office procedures and proper supervision of his office and staff. By having Ms. De Angelis review his office procedures and policies and by Respondent agreeing to implement the new procedures and policies which she recommends to supervise his staff; the problems should be eliminated. Respondent understands that should he commit similar misconduct in the future it will be a significant aggravating factor that he has already been disciplined once and that Ms. De Angelis’ procedures and recommendations did not succeed in preventing misconduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was August 18, 2006.
Case Number(s): 04-O-14105; 05-O-04173; 05-0-05002
In the Matter of: Phuc Dinh Do A Member of the State Bar
<<not>> checked. a. Within days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
checked. b. Within six (6) months of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than 6 hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for two year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-14105; 05-O-04173; 05-0-05002
In the Matter of: Phuc Dinh Do
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: Phuc Dinh Do
Date: 8/23/2006
Respondent’s Counsel: Jonathan Arons
Date: August 25, 2006
Deputy Trial Counsel: Allen Blumenthal
Date: August 28, 2006
Case Number(s): 04-O-14105; 05-O-04173; 05-0-05002
In the Matter of: Phuc Dinh Do
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 REPROVAL IMPOSED.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department are vacated.
1. On page 1, section (A)(3)--15 must be inserted in the blank space before the word pages.
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 125(b), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Pat McElroy
Date: Sept. 27, 2006
[Rule 62(b), Rules Proc.; 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 , 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 , California, addressed as follows:
JONATHAN IRWIN ARONS
LAW OFC JONATHAN I ARONS
101 HOWARD ST #310
SAN FRANCISCO, CA 94105
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ALLEN BLUMENTHAL, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on September 27, 2006.
Signed by:
Laine Silber
Case Administrator
State Bar Court