Case Number(s): 06-O-10675;06-O-13771
In the Matter of: Andrew E. Rubin, Bar # 62587, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: William Todd, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
213-765-1491
Bar # 259194
Counsel for Respondent: In Pro Per Respondent
Andrew E. Rubin
P.O. Box 15776
Sarasota, FL 34277
Bar # 62587
Submitted to: Assigned Judge at State Bar Court Clerk’s Office Los Angeles
Filed: January 13, 2012
<<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 18, 1974.
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 14 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. Costs are awarded to the State Bar.
<<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.
9. ORDER OF INACTIVE ENROLLMENT: The parties are aware that if this stipulation is approved, the judge will issue an order of inactive enrollment under Business and Professions Code section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule 5.111(D)(1).
state Bar Court Case# of prior case: 07-H-3022.
Date prior discipline effective:
October 31,2008
Rules of Professional Conduct/State Bar Act violations: RPC, rule 1-110. Degree of prior discipline: Two (2) years suspension, execution stayed and that Respondent be actually suspended for ninety(90) days and until the State Bar Court grants a motion to terminate actual suspension pursuant to Rules of Procedure, rule 205. If Respondent is actually suspended for two years or more, Respondent must remain actually suspended until Respondent provides proof to the satisfaction of the State Bar Court of his rehabilitation, fitness to practice and learning and ability in the general law pursuant to standard 1.4(c)(ii) of the Standards for Attorney Sanctions for Professional Misconduct.
See also Stipulation Attachment, page 10, section “C”, paragraph 1.
Additional aggravating circumstances:
None.
Additional mitigating circumstances:
Charitable and Pro Bono Activities: For several years, Respondent has been actively involved in numerous charitable organizations, including several legal services organizations, including but not limited to, the Didi Hirsch Community Mental Health Center, Mental Health America, Mental Health Advocacy Services and Mental Health Association of California. In addition, Respondent has performed pro bono services for several years at a legal clinic. Further, Respondent has authored several legal texts and lectured. Finally, Respondent was counsel of record in numerous published appellate opinions.
IN THE MATTER OF: ANDREW E. RUBIN
CASE NUMBER(S): 06-O-10675; 06-O-13771
A. WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES
AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges ("NDC") filed on October 14, 2008 and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
B. FACTS AND CONCLUSIONS OF LAW
ANDREW E. RUBIN ("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.
1. Respondent was admitted to the practice of law in the State of California on
December 18, 1974, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California.
Case No. 06-0-10675 (Complainant: Edwin Barbosa)
Facts:
2. On November 14, 2002, Edwin Barbosa hired Respondent to represent his son, Brian Barbosa ("Barbosa") to file a petition for a Writ of Habeas Corpus in United States District Court regarding the case of People v. Brian Barbosa, Los Angeles Superior Court Case No. YA039305. Respondent executed a retainer agreement with Edwin Barbosa on that date. The retainer agreement stated that Respondent would not begin work on Barbosa’s matter until he was paid $4,000 in advanced attorney fees.
3. On January 8, 2003, Edwin Barbosa paid respondent $4,000.
4. On February 18, 2003, the statute of limitations in which to file a petition for
Writ of Habeas Corpus on behalf of Barbosa expired. Respondent knew or was grossly negligent in not knowing the statute of limitations expired on February 18, 2003. Respondent did not file the petition on, or prior to, this date.
5. On April 1, 2003, Respondent filed a petition for Writ of Habeas Corpus on behalf of Barbosa with the United States District Court for the Central District of California. The petition was filed forty-two days after the statute of limitations had expired.
6. On May 21, 2003, the Attorney General on behalf of Sylvia Garcia, Warden of
Calipatria State Prison, filed a Return contending that the petition for Writ of Habeas Corpus was time-barred by 28 U.S.C. §2244(d).
7. On June 30, 2003, United States Magistrate Judge Stephen J. Hillman submitted a report and Recommendation to United States District Court Judge Alicemarie H. Stotler. Judge Hillman found the petition to be time-barred and recommended dismissal with prejudice.
8. On July 24, 2003, Judge Stotler adopted the report and recommendation of Judge Hill.man and ordered that the petition for Writ of Habeas Corpus be dismissed with prejudice since such petition was time-barred when filed.
9. Respondent did not provide any legal services of value to Barbosa.
10. Respondent’s employment terminated once the petition became time-barred
without having filed the petition.
11. Respondent did not earn any portion of the fees paid by Edwin Barbosa.
12. Respondent failed to refund the $4,000 fee advanced by Edwin Barbosa upon termination. Ultimately, Mr. Barbosa received a refund of $5,000 on or about January 15, 2009, more than 6 years after a similar sum was originally paid to Respondent by Edwin Barbosa.
13. At no time prior to the expiration of the applicable statute of limitations did
Respondent inform Barbosa that his petition for Writ of Habeas Corpus had become time-barred. Additionally, Respondent did not promptly inform Barbosa that he filed the petition after the statute of limitation had expired or that that petition was denied and his case dismissed.
Case No. 06-0-13771 (Complainant: Michael Payan)
14. On June 29, 2004, Michael Payan ("Payan") hired Respondent to review and evaluate Payan’s file regarding his criminal conviction, pending appeals, and petition for Writ of Habeas Corpus that Payan had filed in pro per, and to evaluate the viability of any further Writs of Habeas Corpus.
15. On June 29, 2004, Payan’s mother paid Respondent $2,000.00 as an advanced attorney fee for the evaluation. Respondent completed the work specified in paragraph 15 above and earned the $2,000 he was paid on June 29, 2004.
16. On September 17, 2004, Payan’s mother paid Respondent an additional $8,000 for which Respondent agreed to do the following for Payan: file a Blakely Writ of Habeas Corpus petition in state court and to pursue it to the California Supreme Court on appeal if necessary; and file a Writ of Habeas Corpus petition at the federal district court level.
17. On April 4, 2005, Respondent filed a Blakely Writ of Habeas Corpus petition on behalf of Payan in Riverside County Superior Court.
18. On April 8, 2005, The Superior Court of Riverside County denied Respondent’s Blakely petition for lack of merit.
19. Respondent failed to file and appeal the Blakely petition.
20. Respondent failed to file a Writ of Habeas Corpus petition at the federal district level.
21. After filing the Blakely petition, Respondent failed to do any further work of value for Payan.
22. On June 22, 2005, Respondent advised Payan in a letter mailed and received by Payan at the prison facility where he was housed, that the District Court had denied a pending Writ of Habeas Corpus petition that Payan had filed pro se. Respondent advised Payan that the next step would be to ask for a Certificate of Appealability ("COA") to the Ninth Circuit which Respondent stated was his (Respondent’s) responsibility.
23. After Respondent’s June 22, 2005 letter to Payan, Respondent failed to make any further contact with Payan or Payan’s family.
24. Respondent failed to request a COA from the Ninth Circuit.
25. At no time did Respondent inform Payan that the Blakely petition filed by
Respondent on April 4, 2005 was denied by the Superior Court of Riverside on April 8, 2005.
26. From June 2005 through June 26, 2006, Payan’s mother called Respondent and left messages with his office approximately two times per week. Respondent received the messages but did not contact Payan’s mother in return.
27. On June 26, 2006, Payan wrote to Respondent regarding Payan and his family’s numerous unanswered attempts to contact Respondent, Respondent’s failure to inform Payan of the rejection of the Blakely petition by the Superior Court, which Payan learned from source other than the Respondent, Respondent’s failure to pursue an appeal from that rejection, and Payan’s request for a return of unearned fees. Respondent received Payan’s letter but did not contact him in return.
28. Respondent contends that in 1983, his Mother, formerly a heavy smoker, was diagnosed with emphysema. Respondent also contends that in March 2006, Respondent’s Mother was placed under hospice care by her doctor which indicated that she had less than six months to live. However, Respondent’s Mother lived at home with Respondent’s father, not in a hospice facility.
29. Respondent further contends that he, as the only child, was close to his mother and both wanted to see her as much as possible before she died, and wanted to help his Father with her care.
30. Respondent further contends that after his Mother was turned over to hospice care, he traveled to Sarasota, Florida, where his parents lived, at first monthly and then for approximately four days out of every three weeks until his mother’s death on November 10, 2006.
31. On August 9, 2006, the State Bar opened an investigation, case number 06-013771, pursuant to a complaint filed by Michael Payan ("the Payan matter’).
32. On August 21, 2006, a State Bar Investigator wrote to Respondent regarding the Payan matter. The investigator’s letter was placed in a sealed envelope addressed to respondent at his State Bar of California membership records address. The letter was mailed by first class mail, postage prepaid, by depositing for collection by the United States Postal Service in the ordinary course of business on the date of the letter. The United States Postal Service did not return the investigator’s letter as undeliverable or for any other reason. Respondent received the letter.
33. The investigator’s August 21, 2006 letter requested that Respondent respond in writing to specified allegations of misconduct being investigated by the State Bar in the Payan complaint. The investigator requested that Respondent respond by September 5, 2006.
34. On September 8, 2006, a State Bar Investigator wrote to Respondent regarding the Payan matter. The investigator’s letter was placed in a sealed envelope addressed to respondent at his State Bar of California membership records address. The letter was mailed by first class mail, postage prepaid, by depositing for collection by the United States Postal Service in the ordinary course of business on the date of the letter. The United States Postal Service did not return the investigator’s letter as undeliverable or for any other reason. Respondent received the letter.
35. The investigator’s September 8, 2006 letter requested that Respondent respond in writing to specified allegations of misconduct being investigated by the State Bar in the Payan complaint. The investigator requested that Respondent respond by September 21, 2006.
36. At no time did Respondent provide a written response to the specified allegations of misconduct or otherwise communicate with the investigator in response to the August 21, 2006 and September 8, 2006 letters.
Conclusions of Law
37. By failing to file the petition for Writ of Habeas Corpus on behalf of Barbosa
within the statute of limitations, Respondent intentionally, recklessly or repeatedly failed to perform legal services with competence in wilful violation of Rules of Professional Conduct, rule 3-110(A).
38. By failing to refund the $4,000 fee advanced by Edwin Barbosa, which
Respondent had not earned, Respondent wilfully failed to refund unearned fees upon
termination of employment in wilful violation of Rules of Professional Conduct, rule 3700(D)(2).
39. By failing to promptly inform Barbosa of the fact that the petition for Writ of
Habeas Corpus had become time-barred, he filed the petition after the statute of limitation had expired and that that petition was denied and his case dismissed. Respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services in wilful violation of Business and Professions Code, section 6068(m).
40. By failing to file an appeal of the Blakely petition in Payan’s case, failing to file the Writ of Habeas Corpus petition at the federal District Court Level, and failing to request a COA, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in wilful violation of Rules of Professional Conduct, rule 3-110(A).
41. By failing to inform Payan and his family and by failing to respond to Payan’s letter, Respondent failed to respond to a client’s reasonable inquiries, in wilful violation of Business and Professions Code, section 6068(m).
42. By failing to return phone calls to Payan and his family and by failing to respond to Payan’s letter, Respondent failed to respond to a client’s reasonable inquiries, in willful violation of Business and Professions Code, section 6068(m).
43. By not providing a written response to the investigator’s letters regarding the
allegations in the Payan matter or otherwise cooperating in the investigation of the Payan complaint, Respondent failed to cooperate in a disciplinary investigation, in wilful violation of Business and Professions Code, section 6068(i).
C. FACTS SUPPORTING AGGRAVATION
2. Respondent’s misconduct significantly harmed his clients, the public and the
administration of justice including the abandonment of the appeals of two incarcerated clients and in one case the failure to file an appeal before the expiration of the applicable statute of limitations.
3. Respondent’s misconduct evidences multiple acts of wrongdoing including
multiple failures to perform with competence, several failures to communicate status and significant developments and a failure to cooperate with a State Bar investigation.
D. FACTS SUPPORTING MITIGATION.
Respondent has exhibited candor and significant cooperation with the State Bar of
California." Respondent cooperated in that he has stipulated to facts, conclusions of law and disposition.
E. AUTHORITIES SUPPORTING DISCIPLINE.
Applicable Standards:
Standard 1.3 provides that the primary purposes of attorney discipline are, "the protection of the public, the courts and the legal profession; the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession.
Standard 1.6(a) provides that if two or more acts of misconduct are found in the same proceeding, the sanction imposed shall be the more or most severe of the different applicable sanctions. Standard 1.6Co) provides that a greater or lesser degree of discipline than the appropriate sanction prescribed by these standards shall be imposed or recommended, depending on the net effect of the aggravating and mitigating circumstances, if any.
Standard 1.7(b) provides if"...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 as defined by Standard 1.2(0, the degree of discipline in the current proceeding shall be disbarment unless the most compelling mitigating circumstances clearly predominate.
Standard 2.4(b), in relevant part, provides that culpability of a member of willfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.6 provides that culpability of a member of a violation of any of the following provisions of the Business and Professions Code 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:...a) Sections 6067 and 6068; (b) Sections 6103 through 6105; ....
Standard 2.10 provides that the culpability of a member for violation of any provision of the Business and Professions Code or any Rule of Professional Conduct not specified in the Standards shall result in reproval or suspension, according to the gravity of the offense or harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in Standard 1.3.
Standard 2.6 provides for the most serous sanction, suspension or disbarment. However, since Respondent has two prior records of discipline, an analysis of the application of Standard 1.7(b) is also appropriate.
In sum, given the nature and scope of Respondent’s misconduct, including substantial aggravation evidence and limited mitigation, the State Bar contends that the appropriate level of discipline under the Standards is disbarment.
Aggravating & Mitigating Circumstances:
Standard 1.2(b) provides for a greater degree of sanction set forth in the standards where aggravating circumstances exist.
As discussed above, in this matter there are three aggravating circumstances. First, pursuant to Standard 1.2(b)(i), Respondent has two prior records of discipline that are not remote in time and that involve serious misconduct. Second, pursuant to Standard 1.2(b)(iv), Respondent’s misconduct significantly harmed his clients, the public and the administration of justice. Third, pursuant to Standard 1.2(b)(ii), Respondent’s misconduct evidences multiple acts of wrongdoing.
Standard 1.2(e) provides for a more lenient degree of sanction than set forth in the standards where mitigating circumstances exist.
As discussed above, in this matter there are two mitigating circumstances. Pursuant to Standard 1.2(e)(v), Respondent has exhibited candor and significant cooperation with the State Bar of California. An additional mitigating circumstance was Respondent’s Charitable and Pro Bono Activities which are detailed above.
Caselaw:
In Matter of Thomson, the Review Department recommended disbarment where the attorney’s current offenses echoed his prior record of discipline in that the misconduct demonstrated, among other things, a continued disregard of court orders.
In Matter of Hunter, the Review Department did not find that the attorney’s past and present offenses constituted a pattern of misconduct, but the court was greatly concerned with the recurrence of misconduct, noting that the attorney committed misconduct in 1985, 1987, 1988, 1991 and 1992. The Review Department recommended disbarment because the risk of future misconduct was great.
F. PENDING PROCEEDINGS.
The disclosure date referred to on page two, paragraph A. (7) was November 28, 2011.
G. COSTS.
Respondent acknowledges that the Office of Chief Trial Counsel has informed him that as of November 28, 2011, the estimated prosecution costs in this matter are approximately $5,917.33. Respondent acknowledges that this figure is an estimate only. 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.
Case Number(s): 06-O-10675
In the Matter of: Andrew E. Rubin
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: Andrew E. Rubin, William Todd
Respondent: Andrew E. Rubin
Date: 12-15-2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: William Todd
Date: 12-19-2011
Case Number(s): 06-O-10675
In the Matter of: Andrew E. Rubin
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.)
Respondent Andrew E. Rubin is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herin, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 1/11/12
[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 January 24, 2012, 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:
ANDREW ELLIS RUBIN
PO BOX 15776
SARASOTA, FL 34277
by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
William Todd, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 13, 2012.
Signed by:
Cristina Potter
Case Administrator
State Bar Court