Case Number(s): 06-O-11120
In the Matter of: Jack Neil Swickard, A Member of the State Bar of California, (Respondent), Bar # 146853
Counsel For The State Bar: Charles T. Calix Bar # 146853
Counsel for Respondent: Bar #
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 August 15, 1988.
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):
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.
<<not>>checked. costs to be paid in equal amounts prior to February 1 for the following membership years: (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’s wife, Michele, was diagnosed with Liver Disease in 1999. The disease progressed and she was prescribed Pegasyst (Pegolated Interferon) in June 2002. This medication was supposed to treat her Hepatitis C Disease, but unfortunately, it did not work. Michele suffered her first Hepatic coma in November 2003, and was treated at Hoag hospital. She suffered seven more Hepatic comas between February 2004 and July 2004. In fall 2004, Michele was taken in a Hepatic coma from Hoag hospital to the Cedars Sinai Liver Transplant unit with a life expectancy of less than three months. She received a transplant within three days, and was discharged from Cedars Sinai just after Thanksgiving 2004.
A few days before Christmas 2004, Michele was diagnosed with a non-functioning transplanted liver and was recommended to undergo a liver and kidney transplant. At that time, Michele weighed 78 pounds. Michele was placed in Hospice care on January 11, 2005, and died on January 17, 2005.
Respondent discovered that his mother had advanced Alzheimer’s in late January 2005. He had to place his mother in an Alzheimer’s clinic in late 2005. She resided at the Alzheimer’s clinic between late 2005 and her death in February 2010. The confluence of Michele’s illness and subsequent death, compounded with the diagnosis of his mother’s illness immediately thereafter, created tremendous stress and difficulty for Respondent, and caused him to have to rely on his staff to a greater extent than normal.
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 State Bar’s Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
Within twenty-four (24) months from the effective date of discipline in this matter, Respondent must make restitution to RosaLee Saikley or the Client Security Fund ("CSF") if it has paid, in the principal amount of $75,000 plus interest at the rate of 10% per annum from January 1, 2007 in eight (8) quarterly installments. Each installment payment shall be paid on or before January 1, April 1, July 1, and October I of each year until paid in full. Each installment payment shall be $9,375 in principal ($75,000 + 8 = $9,375) plus 10% interest on that amount from January 1, 2007. Respondent shall include, in each quarterly report required herein, satisfactory evidence of the restitution payment made by him during that reporting period to the Office of Probation.
Respondent agrees that he will not seek to discharge the restitution in bankruptcy or in the State Bar Court. Respondent may apply to the State Bar Court to extend the period of time to pay the restitution, but agrees that the period of time that he will be on probation will be extended to last twelve (12) months after he completes restitution. (The $75,000 debt to RosaLee Saikley was listed on the bankruptcy that Respondent filed in 2009.)
Should Respondent fail to make any installment payment, he will be suspended until such time as he resumes making installment payments pursuant to D(1)(a)ii.
Respondent waives any objection to payment by the CSF upon a claim for the principal amount of restitution set forth herein.
IN THE MATTER OF: Jack Neil Swickard,
CASE NUMBERS: 06-O-11120
Jack Neil Swickard ("Respondent") pleads nolo contendere to the following facts and violations. Respondent completely understands that the plea for nolo contendere shall be considered the same as an admission of the stipulated facts and of his or her culpability of the statutes and/or Rules of Professional Conduct specified herein.
FACTS RE CASE NUMBER
1. On or about January 10, 2003, Charles Patrick Saikley ("Saikley") was arrested for drug related offenses in Costa Mesa, California. On or about January 17, 2003, an information concerning the arrest was filed by the District Attorney in the Orange County Superior Court, titled People v. Charles Patrick Saikley, Case No. 03HF0079 ("People v. Saikley").
2. Between on or about January 17, 2003 and on or about February 6, 2004, Saikley was represented by the Public Defender in People v. Saikley.
3. On or about February 6, 2004, Saikley and his father, Charles Saikley, Sr., met with Respondent and Respondent’s office manager, John Varasteh ("Varasteh"), to discuss People v. Saikley. Saikley employed Respondent to represent him in People v. Saikley. When Respondent was hired, the trial date was less than one week away. Charles Saikley, St., had been diagnosed with a terminal illness, and one of the Saikley’s goals was for Saikley to be able to spend as much time as possible with his father. When Respondent was hired, the trial date was less than one week away.
4. On or about June 24, 2004, June 1, 2005, and July 26, 2005, Saikley was arrested on three subsequent occasions for drug related offenses. On or about July 20, 2004, July 21, 2005, and July 28, 2005, criminal charges were filed regarding those offenses. Respondent agreed to represent Saikley in all three matters.
5. Charles Saikley made payments to Respondent for advanced legal fees or costs concerning Saikley, including but not limited to: $14,000 on or about February 6, 2004; $1,000 on or about February 9, 2004; $10,000 on or about March 22, 2004; $17,500 on or about June 30, 2004; $25,000 on or about October 7, 2004; and $10,000 on or about December 10, 2004, totaling approximately $77,500. Respondent received the $77,500 from Charles Saikley and appeared on behalf of Saikley in all four criminal matters.
6. Respondent never obtained Saikley’s written consent to accept payments from Charles Saikley or Saikley’s mother, RosaLee Saikley.
7. On or about June 2, 2005, Varasteh met with Saikley’s mother, RosaLee Saikley, and requested $3,500 for bail money concerning a recent arrest of Saikley and $11,500 for legal fees, psychiatric examinations, and psychiatric reports. RosaLee Saikley gave personal checks for $10,000 and $5,000 to Varasteh. Varasteh received the checks for $10,000 and $5,000 on behalf of Respondent.
8. During the meeting on or about June 2, 2005, RosaLee Saikley requested that Respondent provide her with a copy of the retainer agreement for People v. Saikley and an accounting of the time spent by Respondent. Varasteh agreed to provide a copy of the retainer agreement for People v. Saikley and an accounting.
9. Respondent did not provide a copy of the retainer agreement for People v. Saikley or the accounting, because he was unaware that the documents had been requested.
10. On or about June 2, 2005, Respondent deposited the $10,000 and $5,000 into his office checking account, account no. ****-** 1749 ("General Office Account"), at Wells Fargo Bank which was not designated as a client trust account. On or about June 2, 2005, Respondent issued check no. 2405 payable to Acme Bail Bonds concerning Saikley in the sum $3,150 and drawn upon the General Office Account.
11. On or about June 17, 2005, Charles Saikley died. Saikley was not incarcerated and was able to spend time with his father, Charles Saikley, Sr., as a result of Respondent’s representation.
12. On or about July 11, 2005, Saikley, RosaLee Saikley, and one of RosaLee Saikley’s daughters met with Varasteh at the Spencer Recovery Center in Laguna Beach, California, to check Saikley into the treatment facility that Respondent recommended. RosaLee Saikley gave Varasteh a personal check for $60,000 to pay for the cost of Saikley’s treatment at the center. RosaLee Saikley told Varasteh that the check was for the cost of Saikley’s treatment at the center and the memo section of the check stated, "Rehab Program." Varasteh received the check for $60,000 on behalf of Respondent.
13. On or about July 11, 2005, Respondent issued check no. 2458 payable to Spencer Recovery in the sum of $30,000 concerning Saikley and drawn upon the General Office Account. On or about July 12, 2005, Respondent deposited the $60,000 into the General Office Account.
14. On or about July 26, 2005, and August 6, 8, 9, and 10, 2005, Varasteh called RosaLee Saikley. During their conversations, RosaLee Saikley requested, among other things, that Respondent provide copies of the retainer agreement for People v. Saikley and an accounting. Varasteh agreed to provide the retainer agreement and accounting. Varasteh failed to advise Respondent that RosaLee Saikley had requested such documents.
15. Respondent did not provide a copy of the retainer agreement for People v. Saikley or the accounting.
16. On or about August 11, 2005, Varasteh went to the home of RosaLee Saikley to meet with her and her son-in-law, Alex Chada, to discuss the status of the Saikley matters. During their meeting, RosaLee Saikley requested that Respondent provide a copy of the retainer agreement for People v. Saikley and an accounting. Varasteh agreed to provide the retainer agreement and accounting. Varasteh failed to advise Respondent that RosaLee Saikley had requested such documents.
17. Respondent did not provide a copy of the retainer agreement for People v. Saikley or the accounting at that time, because he was unable that the documents had been requested.
18. On or about August 17 and 19, 2005, Varasteh called RosaLee Saikley to discuss the status of the Saikley matters. During their conversations, RosaLee Saikley requested that Respondent provide a copy of the retainer agreement for People v. Saikley be faxed to her son, Darrin Saikley, M.D., and an accounting. Varasteh agreed to provide the retainer agreement and accounting. Varasteh failed to advise Respondent that RosaLee Saikley had requested such documents.
19. On or about August 19, 2005, a copy of a "Retainer Agreement - Felony" was faxed to Darrin Saikley, M.D.
20. On or about August 24, 2005, RosaLee Saikley terminated Respondent’s representation of Saikley.
21. On or about September 16, 2005, RosaLee Saikley mailed a certified letter to Respondent that requested an accounting and a refund of all unearned funds. Respondent received the letter.
22. On or about September 20, 2005, one of Respondent’s employees called twice and left two messages for RosaLee Saikley on her telephone’s voice message system. The messages were that Respondent was on vacation, but would provide the requested accounting upon return. RosaLee received the messages.
23. On or about September 28, 2005, one of Respondent’s employees called and left a message for RosaLee Saikley on, her telephone’s voice message system. The message was that Respondent would provide the requested accounting on or about October 4, 2005. RosaLee received the message.
24. On or about September 29, 2005, RosaLee Saikley’s son-in-law Alex Chada called Respondent’s office, identified himself as one of RosaLee Saikley’s son-in-laws, and requested an accounting of the money paid by Charles and RosaLee Saikley on behalf of Saikley. Respondent received the message.
25. On or about September 30, 2005, Respondent mailed a letter to RosaLee Saikley that stated, in part, that Respondent would provide an accounting of the money paid by Charles and RosaLee Saikley on behalf of Saikley, but that it would take several months to prepare. RosaLee Saikley received the letter.
26. Respondent did not provide the accounting of the time spent to Saikley or RosaLee Saikley. In response to the State Bar investigation, Respondent provided proof of the extensive work he performed on behalf Saikley, including but not limited to making numerous court appearances in the four separate serious felony cases in which Respondent represented Saikley.
27. Thereafter, Respondent took the position that he had earned all of the advance attorney fees that Charles and RosaLee Saikley had paid, and moreover, had earned all of the advance attorney fees.
28. RosaLee Saikley filed a lawsuit against Respondent, which was settled by the parties by Respondent agreeing to refund $75,000 in unearned advance attorney fees to RosaLee Saikley. Respondent paid $12,000 before declaring bankruptcy and becoming legally obligated to list the $75,000 debt.
CONCLUSIONS OF LAW
29. By failing to deposit at least $3,150 of the $15,000 and the $60,000 that were for costs associated with the representation of Saikley into a client trust account, Respondent willfully failed to deposit funds received for the benefit of a client in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import in violation of rule 4-100(A) of the Rules of Professional Conduct ("rule").
30. By failing to provide the accounting of the money paid by Charles and RosaLee Saikley on behalf of Saikley despite numerous requests to do so, Respondent willfully failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession in violation of rule 4100(B)(3).
31. By failing to refund $75,000 in unearned advance attorney fees, Respondent willfully failed to pay promptly, as requested by a client, any funds in Respondent’s possession which the client is entitled to receive in violation of rule 4-100(B)(4).
32. By failing to obtain Saikley’s informed written consent to accept payment from Charles and RosaLee Saikley, Respondent willfully accepted compensation for representing a client from one other than the client without complying with the requirement that he obtained the client’s informed written consent in violation of rule 3-310(F).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A(7), was February 22, 2010.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of February 22, 2010, the prosecution costs in this matter are approximately $2,812. 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.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.3 of the "Standards for Attorney Sanctions for Professional Misconduct" ("Standard") provides guidance as to the imposition of discipline and interpretation of specific Standards. It states that the primary purpose of discipline is the protection of the public, the courts and the legal profession.
Standard 2.2(b) addresses offenses involving violations of rule 4-100, and provides for at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances.
Standard 2.10 provides that culpability of a wilful 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 the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
In the case of In re Silverton (2005) 36 Cal.4th 81, 92, the Supreme Court discussed the fact that the Standards are entitled to great weight and the State Bar and State Bar Court should following their guidance wherever possible.
In In re Morse (1995) 11 Cal.4th 184, 206, the Supreme Court stated the purpose of disciplinary proceedings 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 In the Matter of Ward (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 47, a respondent was grossly negligent, but not dishonest, in handling a significant sum of client trust funds in one matter and in failing to communicate with a client in another matter was suspended for 90 days accompanying a three year probation and one year stayed suspension.
In In the Matter of Fonte (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 751, a respondent who failed to provide an appropriate accounting and failed to obtain written client consent of conflicts with two clients was suspended for 60 days accompanying a two year probation and one year stayed suspension.
Given the client trust violations and failure to refund, the parties agree that a 90 day actual suspension is appropriate to protect the public, courts and profession when balanced against the mitigation for 21 years in practice without prior discipline and the emotional difficulties that Respondent was experiencing due to his wife’s terminal illness and death.
SIGNATURE OF THE PARTIES
Case Number(s): 06-O-11120
In the Matter of: Jack Neil Swickard
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: Jack Neil Swickard
Date: February 23, 2010
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Charles T. Calix
Date: February 23, 2010
Case Number(s): 06-O-11120
In the Matter of: Jack Neil Swickard
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.
<<not>> 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 135 (b), 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: Richard A. Platel
Date: 03-08-10
[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 March 9, 2010, 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:
JACK N. SWICKARD
LAW OFFICE OF JACK NEIL SWICKARD
1550 BAYSIDE DR
CORONA DEL MAR, CA 92625
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
CHARLES CALIX, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California on March 9, 2010.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court