Case Number(s): 05-O-03580
In the Matter of: Alan Wesley Curtis, Bar # 56827, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Suzan J. Anderson, Bar # 160559
Counsel for Respondent: James R. DiFrank, Bar # 105591
Submitted to: settlement judge State Bar Court Clerk’s Office Los Angeles
<<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 20, 1973.
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 18 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 284, Rules of Procedure.
checked. costs to be paid in equal amounts prior to February 1 for the following two (2) billing cycles following the effective date of the Supreme Court Order. (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.
Respondent was on probation from his second prior when most of the misconduct herein occurred.
Please see attachment, page 12.
Case Number(s): 05-O-03580
In the Matter of: Alan Wesley Curtis
<<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 days/ 18 months/ years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than 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.)
<<not>> 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 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.
Case Number(s): 05-O-03580
In the Matter of: Alan Wesley Curtis
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 .
<<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.
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 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.
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.
IN THE MATTER OF: ALAN WESLEY CURTIS
CASE NUMBER(S): 05-0-03580
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he/she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
CASE NUMBER 05-0-03580
GENERAL BACKGROUND
1. At all times mentioned herein, Respondent maintained a client trust account at Washington Mutual Bank, Account Number 879-006443-5 ("Respondent’s CTA").
COUNT ONE
FACTS
2. During the period of March 2005 through June 2005, Respondent left personal funds in Respondent’s CTA for the payment of office and/or personal expenses as needed.
3. During the same time period, Respondent repeatedly made personal deposits into Respondent’s CTA.
4. During the same time period, Respondent repeatedly issued checks drawn upon Respondent’s CTA to pay his office and/or personal expenses as follows:
CHECK NUMBER: 2494; CHECK AMOUNT: $ 2,500; DATE PRESENTED: 3/3/05; PAYEE; Tiffany Curtis (Respondent’s daughter)
CHECK NUMBER: 2500; CHECK AMOUNT: $18,792.72; DATE PRESENTED: 6/3/05; PAYEE; Tiffany Curtis (Respondent’s daughter);
CHECK NUMBER: 2501; CHECK AMOUNT: $18,792.72; DATE PRESENTED: 6/3/05; PAYEE; Cash (cashier’s check – Sonny Ball)
CHECK NUMBER: 2504; CHECK AMOUNT: $10,500; DATE PRESENTED: 6/17/05; PAYEE; Tiffany Curtis (Respondent’s daughter)
CHECK NUMBER: 2505; CHECK AMOUNT: $624.70; DATE PRESENTED: 6/24/05; PAYEE; Orange County Superior Court (filing fee for personal lawsuit)
CONCLUSIONS OF LAW
By leaving personal funds in and/or depositing personal funds into Respondent’s CTA for withdrawal as needed to pay office and/or personal expenses, and by issuing checks as needed for personal and/or office expenses, Respondent improperly used Respondent’s CTA as a personal account and commingled funds belonging to Respondent in a client trust account in wilful violation of Rules of Professional Conduct, rule 4-100(A). The State Bar does not have any evidence to suggest that this was an ongoing problem for any longer than the time period mentioned herein.
COUNT TWO
FACTS
5. The stipulated facts of paragraphs 1 through 4 are incorporated by reference.
6. In June 2005, Respondent issued a check number 2505 in the amount of $624.70 which was drawn upon Respondent’s CTA. On June 24, 2005, Washington Mutual returned the check for insufficient funds as the balance in Respondent’s CTA was only $499.94.
7. On July 1, 2005, check 2505 drawn upon Respondent’s CTA was again presented for payment. Washington Mutual again returned the check for insufficient funds as the balance in Respondent’s CTA was only $500.27.
8. Respondent issued the check set forth above when he knew or in the absence of gross negligence should have known that there were insufficient funds in Respondent’s CTA to pay it. As the check was returned twice, Respondent made no effort to ensure there were sufficient funds in Respondent’s CTA after Respondent issued the check.
CONCLUSIONS OF LAW
By issuing a check drawn upon Respondent’s CTA when he knew or should have known that there were insufficient funds in the account to pay it and failing to ensure that there were sufficient funds in the account to pay the check, Respondent committed acts involving moral turpitude, dishonesty and/or corruption in wilful violation of Business and Professions Code section 6106.
COUNT THREE
FACTS
9. The stipulated facts of paragraphs 1 through 8 are incorporated by reference.
CONCLUSIONS OF LAW
By repeatedly utilizing Respondent’s CTA as a personal and/or business account, Respondent committed acts involving moral turpitude, dishonesty and/or corruption in wilful violation of Business and Professions Code section 6106.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was May 26, 2006.
AGGRAVATING CIRCUMSTANCES.
PRIOR DISCIPLINE.
State Bar Court Case Number: 95-0-14886, et al.
Effective Date: July 22, 1999
Violations: Rules of Professional Conduct, rule 4-100(A)
Business and Professions Code section 6068(k)
Degree: Two years stayed, two years probation including 60 days actual suspension
State Bar Court Case Number: 00-0-11563, et al.
Effective Date: March 26, 2005
Violations: Business and Professions Code sections 6068(a), 6125, 6126
Degree: Three years stayed, three years probation including 120 days actual suspension
MITIGATING CIRCUMSTANCES.
ADDITIONAL MITIGATING CIRCUMSTANCES.
Respondent became ill in the early spring of 2003, initially feeling lethargic and tired. In June 2003, his daughter had to take him to the emergency room, where it was discovered that he was suffering from uric acid poisoning, resulting in kidney failure. A shunt was inserted to flush out the kidneys and he was given a series of medications to regulate his body chemistry and morphine for the horrific pain. Once sent home, he was prescribed hydrocodone (generic for Vicodin) which was not conducive to his ability to practice law.
Subsequently, an MRI was performed to determine whether Respondent’s kidneys had been permanently damaged. It was discovered that his spleen was grossly enlarged, an initial indicator symptom of leukemia. After a series of additional tests, it was determined that Respondent had a serious bone marrow deficiency that required consultation with an oncologist. Respondent was then diagnosed as having chronic mylogenous leukemia. His bone marrow had stopped producing red blood cells, his spleen had taken over that job and as a byproduct his body has an excess of uric acid at all times. Respondent is required to take the drug Allopurinal to counteract the toxicity on a daily basis.
In the fall of 2003, it was determined that the shunt could be safely removed. But in January of 2004, Respondent’s kidneys failed again and Respondent was rushed to the emergency room and administered pain killing drags. This second kidney failure had been a gradual decline since the shunt had been removed, Respondent had felt depressed, discouraged, lethargic and mentally exhausted, but did not know the cause until he ended up in the hospital again.
From June 2003 through January 2006, the mineral content of Respondent’s blood began to change as a result of the disease, the medication and the treatment. Particularly his iron content was nearly completely depleted. Failure of the brain to receive sufficient iron causes memory loss and confusion. Respondent believed he was performing up to standards, but he was merely showing up to his office and pushing papers around.
In January 2006, Respondent’s daughter insisted he be tested for Alzheimer’s disease and this was when the iron deficiency was detected. No Alzheimer’s disease was found and massive doses of iron were prescribed. The results of the massive doses of iron were dramatic, Respondent has regained mental clarity and sufficient strength to competently practice law again.
During the period of June 2003 through February 2006, Respondent was performing the minimum of tasks in his law practice and was not following good practice in maintaining client trust account reconciliation resulting in an NSF check and the use of the trust account as a personal and/or business account. Respondent has implemented better bookkeeping practices, including monthly reconciliation and a system of checks and balances to manage the client trust account as to the required standards.
AUTHORITIES IN SUPPORT OF STIPULATED DISCIPLINE
STANDARDS
Standard 1.3 states that the primary purposes of discipline of a member 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.
Standard 1.6 states that the appropriate sanction for an act of misconduct shall be that set forth in the following standards for the particular act of misconduct found or acknowledged. Standard 1.6(b)(ii) goes on to state that the appropriate sanction shall be the sanction imposed unless: Mitigating circumstances are found to surround the particular act or misconduct found or acknowledged and the net effect of those mitigating circumstances, by themselves and in balance with any aggravating circumstances found, demonstrates that the purposes of imposing sanctions set forth in Standard 1.3 will be properly fulfilled if a lesser degree of sanction is imposed. In that case, a lesser degree of sanction than the appropriate sanction shall be imposed or recommended.
Standard 1.7(b) states that is a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of two prior impositions of discipline, the degree of discipline in the current proceeding shall be disbarment unless the most compelling mitigating circumstances predominate.
Standard 2.3 states that the culpability of member of an act of moral turpitude shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law.
Standard 2.2(b) states that culpability of a member of commingling entrusted funds with personal property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances.
CASE LAW
In the Matter of Doran (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 871. Respondent’s misconduct, which involved the misuse of his client trust accounts for a period of three years, the failure to perform services competently in one matter, and extremely serious violations of his obligation of fidelity to clients (involving abandonment of a client and, in an uncharged incident, of arguing against the interest of his client in seeking to be relieved as attorney of record) warrants a discipline recommendation of 18 months stayed suspension, three years probation, and six months actual suspension. In aggravation, the Court found other uncharged misconduct, that Respondent’s regular use of his CTA to conduct his personal business affairs over a period approaching three years, combined with his lack of attention to the requirements of maintaining a trust account and his issuance of 28 NSF checks from that account established a pattern of misconduct and that Respondent committed multiple acts of misconduct. In mitigation, the Court only found candor to the State Bar.
In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615. Where Respondent repeatedly used his trust account as a personal account for over one year, twice failed to return unearned advanced costs promptly on request, and failed to perform services competently in one matter, the gravest aspect of the misconduct was that relating to respondent’s violation of the rule governing trust accounts and client funds, and this misconduct warranted at least a three-month actual suspension. Where such misconduct was aggravated by prior discipline for neglect of four client matters, and aggravating circumstances predominated over mitigating circumstances, it was appropriate to recommend a three-year stayed suspension, six months actual suspension, and five years monitored probation for the protection of the public.
In the Matter of Whitehead (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 354. The Court recommended a five-year suspension stayed on conditions including a 45-day actual suspension. The Court found the attorney culpable of commingling of trust and personal funds in one count, repeated failure to perform services competently in another count, failure to communicate with his client in a third count and failure to cooperate with the State Bar in a fourth count. Respondent had a prior private reproval but presented extensive mitigation which had led the hearing referee to recommend low actual suspension.
In the Matter of Bleeker (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 113. Respondent was found culpable of commingling, misappropriation and moral turpitude in using his client trust account as an operating account. The discipline imposed was two years stayed suspension, two years probation and sixty-day actual suspension. The Court found that where Respondent had no prior or subsequent discipline; respondent was not venal; Respondent’s misconduct was an aberration occurring over a short period of time and contributed to by respondent’s poor business judgment at a time when he was under financial pressures; respondent accepted responsibility for his misconduct, taking objective steps to avoid further misconduct; and other mitigating factors existed, it was appropriate to recommend lesser sanction than minimum actual suspension indicated by applicable standards.
Distinguishment of Settlement
Based upon Respondent’s compelling mitigation since 2003, this case is being settled pursuant to standard 1.6(b)(ii) and for a lesser degree of sanction than the other standards above because the net effect of Respondent’s mitigating circumstances demonstrates that the purposes of imposing sanctions set forth in Standard 1.3 will be properly fulfilled with a lesser degree of sanction being imposed.
With respect to the case law, Doran, a six month actual suspension did not have any priors, but the misuse of the client trust account went on for over three years and resulted in 28 NSF checks. Additionally, there was more severe misconduct present than in Respondent’s matter.
Koehler, also a six month actual suspension did have the prior as Respondent does. The misuse of the client trust account went on for over one year and there the Court found that the aggravation predominated over the mitigation, clearly opposite from Respondent’s mitigation and aggravation.
Whitehead did have a prior, had more extensive misconduct than Respondent, but due to his mitigation had only a 45 day suspension imposed.
Bleeker is very similar to Respondent’s matter with respect to the mitigation and the misconduct which occurred. The mitigation presented and the lack of priors led the Court to impose a lesser sanction than recommended by the Standards, merely sixty days actual suspension. The sanction recommended for Respondent’s case fits within the parameters case law and Standard 1.3(b)(ii) and as such is inconsistent with the recommendations of the Standards as a whole.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-03580
In the Matter of: Alan Wesley Curtis
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: Alan Wesley Curtis
Date: June 15, 2006
Respondent’s Counsel: James R. DiFrank
Date: 6/20/2006
Deputy Trial Counsel: Suzan J. Anderson
Date: 6/22/06
Case Number(s): 05-O-03580
In the Matter of: Alan Wesley Curtis
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.
This Stipulation is modified as follows:
Page 4, paragraph D.(2) Probation:
Probation to run concurrently with the probation ordered in Supreme Court Order S129833 until conclusion of the probation of Order S129833 and *thereafter will continue on probation until the two years of probation in the instant case 05-0-03580 is completed.
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: Robert M. Talcott
Date: 7/20/06
[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 Los Angeles, on July 21, 2006, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL SUSPENSION
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:
JAMES RICHARD DIFRANK
12227 PHILADELPHIA ST
WHITTIER, CA 90601-3931
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUZAN J. ANDERSON, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles , California, on July 21, 2006.
Signed by:
Tammy R. Cleaver
Case Administrator
State Bar Court