Case Number(s): 08-J-11461
In the Matter of: Kevin John Mirch Bar # 106973, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Hugh G. Radigan, Deputy Trial counsel
1149 South Hill Street
Los Angeles, California 90015
213-765-1206
Bar #94251
Counsel for Respondent: Marie C. Mirch, 701 B Street # 1310
San Diego, California 92101
619-501-6220/6329
Bar #200883
Submitted to: Settlement Judge
<<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 6, 1982.
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. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: two billing cycles following the effective date of the Supreme Court order.. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
checked. (4) Harm: Respondent's misconduct harmed significantly a client, the public or the administration of justice. Respondent’s bad faith as exhibited by the pursuit of frivolous and unfounded theories of recovery against parties not only caused significant harm to the involved clients but to the public and the administration of justice as well.
checked. (3) Candor/Cooperation: Respondent displayed spontaneous candor and cooperation with the victims of his/her misconduct and to the State Bar during disciplinary investigation and proceedings. Since the filing of these charges, Respondent has displayed spontaneous candor and cooperation to the State
Bar.
IN THE MATTER OF: Kevin J. Mirch
CASE NUMBER(S): 08-J-11461
AGREEMENTS AND WAIVERS PURSUANT TO BUSINESS AND PROFESSIONS CODE SECTION 6049.1.
1, Respondent’s culpability determined in the disciplinary proceeding in the state of Nevada would warrant the imposition of discipline in the State of California under the laws or rules in effect in this State at the time the misconduct was committed; and
2. The proceeding in the above jurisdiction provided respondent with fundamental constitutional protection.
FACTS AND CONCLUSIONS OF LAW.
Respondent acknowledges that he has read the provisions of Business and Professions Code section 6085.5 and rule 5.56 of the Rules of Procedure of the State Bar. Respondent pleads plead nolo contendere to the charges set forth in this stipulation and completely understands that this plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Case No. 08-J-11461 (Discipline in Other Jurisdiction)
PROCEDURAL BACKGROUND IN OTHER JURISDICTION:
1. At all relevant times to the stipulated facts herein, Respondent was a member of the
State Bar of California and Nevada.
2. Respondent caused to be filed a complaint on June 15, 2004, styled Mirch v.
McDonald Carano & Wilson, LLP, et al., case no. CV02-05644, which contained a first amended complaint which was in most material respects found frivolous.
3. The following allegations made in the First Amended Complaint in Mirch, et al. v.
McDonald Carano & Wilson LLP, et al were made without factual or legal foundation and are frivolous:
FACTS:
3. These Defendants [McDonald Carano & Wilson, LLP and Leigh Goddard, Esq.] have
devised a scheme to prevent Mr. Mirch from disclosing to the Franks’ Creditors monies that they are due. These Defendants’ scheme involves Bankruptcy Fraud. (3:7-9)1
1 Citations are to pages and lines of the First Amended Complaint in Mirch, et al. v. McDonald Carano & Wilson, LLP, et al.
11. During the course of the most recently filed federal action Mr. Mirch disclosed the
bankruptcy fraud to Leigh Goddard. Ms. Goddard threatened Mr. Mirch with reprisal including suing him for malpractice if a disclosure was made to the Bankruptcy Court. (4:18-21)
12. Ms. Goddard made it very clear that Mr. Mirch would not be successful in the federal
litigation because her firm had the ability to obtain favorable judgments in the Federal Court. (4:22-24)
14. During the course of the litigation, Ms. Goddard has destroyed or failed to provide
documents which prove the bankruptcy fraud perpetrated by the Franks upon their creditors and has destroyed and/or failed to provide documents which proved that Mr. Mirch was entitled to a fee exceeding $1,000,000 (5:4-7)
15. During the course of this litigation, Ms. Goddard and/or her agents have contacted other of Mr. Mirch’s clients and instructed them not to pay amounts due to his finn in an attempt to interfere with his business. (5:8-10)
17. Defendants intentionally interfere (sic) with Plaintiff’s business in order to gain an unfair advantage in another litigation. The interference included interfering with the contractual obligation of Mr. and Mrs. Frank and their related entitites to pay to Mr. Mirch over $1,000,000. Defendants also participated in a scheme to cause Ms. Denise Reed to renounce her contract with Mr. Mirch. Defendants participated with Ms. Reeds’ counsel and other counsel in the Reno area to deprive Mr. Mirch of his fee (5:15-21)
20. Defendants’ conduct substantially interfered with the ongoing business of Plaintiffs and was intentional. It was intentionally done in order to stop Mr. Mirch from disclosing bankruptcy fraud to the United States Bankruptcy Court. (5:26-6:2)
28. Defendants intentionally conspired with the Franks to commit bankruptcy fraud and to interfere with Mr. Mirch’s business relationships with his clients. (6:25-7:1)
30. Defendants committed the following overt acts in order to accomplish the above
conspiracy. Ms. Goddard threatened reprisal against Mr. Mirch. The reprisals included suing Mr. Mirch for malpractice even though he had obtained a multimillion dollar judgment; which is in evidence at pages 00057-00066 of Exhibit 1.
contacting Mr. Mirch’s clients and informing them not to pay on their contingent fee contracts; destroyed and/or hidden documents which prove Mr. Mirch is entitled to in excess of $1,000,000.00; and using her firm’s political influence to affect Mr. Mirch’s legal career (7:511)
31. Defendants participated with Ms. Reeds’ counsel and other counsel in the Reno area to deprive Mr. Mirch of his fee. (7:12-13)
33. Defendants’ conduct was intentional and illegal. Mr. Mirch has refused to participate in the bankruptcy fraud engineered by Ms. Goddard and her firm and as a result has been maligned with his clients and in the legal community, It was intentionally done in order to stop Mr. Mirch from disclosing bankruptcy fraud to the United States Bankruptcy Court. (7:16-20)
40. Defendants intentionally conspired with the Franks to commit bankruptcy fraud and to interfere with Mr. Mirch’s business relationships with his clients. (8:15-17)
42. Ms. Goddard threatened reprisal against Mr. Mirch. The reprisals included suing Mr.
Mirch for malpractice even though he had obtained a multi-million dollar judgment; contacting Mr. Mirch’s clients and informing them not to pay on their contingent fee contracts; destroyed and/or hidden documents which prove Mr. Mirch is entitled to in excess of $1,000,000.00; and using her firm’s political influence to affect Mr. Mirch’s legal career. (8:21-26)
43. Defendant’s participated with Ms. Reeds’ counsel and other counsel in the Reno area to deprive Mr. Mirch of his fee. (9:1-2)
46. Defendants’ conduct was intentional and illegal. Mr. Mirch has refused to participate in the bankruptcy fraud engineered by Ms. Goddard and her firm and as a result has been maligned with his clients and in the legal community. It was intentionally done in order to stop Mr. Mirch from disclosing bankruptcy fraud to the United States Bankruptcy Court. (9:7-11)
4. The alleged conversation between Leigh Goddard ("Goddard") and Dr. Frank that
occurred in Mr. Mirch’s office during a break in a deposition in which Goddard told Dr. Frank to get rid of or destroy the written fee agreement between Dr. Frank and respondent did not occur.
5. McDonald Carano & Wilson, LLP ("MCW") and Goddard did not devise a
scheme to prevent respondent from disclosing to the Franks’ creditors monies that they are due. MCW and Goddard did not engage in bankruptcy fraud.
6. Goddard did not threaten respondent with reprisal including suing him for
malpractice if a disclosure of alleged bankruptcy fraud was made to the bankruptcy court by respondent.
7. Goddard did not say that respondent would not be successful in the federal
litigation because MCW had the ability to obtain favorable judgments in federal court.
8. Goddard did not destroy or fail to provide documents which proved the alleged
bankruptcy fraud or documents which prove that respondent was entitled to a fee exceeding $1,000,000.00.
9. Neither Goddard nor anyone acting as her agent contacted any of respondent’s
clients and instructed them not to pay amounts due to respondent’s firm in an attempt to interfere with respondent’s business.
10. MCW and Goddard did not intentionally interfere with respondent’s business in
order to gain unfair advantage in other litigation, did not interfere with the contractual obligation of the Franks and their related entities to pay a fee to Mr. Mirch of over $1,000,000.00 and did not participate in a scheme to cause Ms. Denise Reed to renounce her contract with respondent or otherwise participate with Ms. Reed’s counsel and other counsel in the Reno Area to deprive respondent of his fee. To the contrary, the panel finds that the case of Mirch, et al v. McDonald Carano & Wilson, LLP, et al, was initiated by respondent in order to gain an unfair advantage by disrupting the representation of Dr. Frank by MCW and Goddard.
11. MCW and Goddard did not conspire with the Franks to commit bankruptcy fraud or
to interfere with respondent’s business relationships with his clients.
12. Assuming, arguendo, that Dr. Frank committed bankruptcy fraud such was not
"engineered" by Goddard or MCW.
13. Goddard did not threaten reprisal against respondent.
14. Respondent had no attorney-client relationship with any of the Doe Plaintiffs named in the First Amended Complaint in the case of Mirch, et al. v. McDonald Carano & Wilson, LLP, et al. and had no legal or factual basis upon which to seek damages on their behalf.
15. The American Bar Association’s Annotated Model Rules of Professional conduct,
Fifth Edition, June 2003, states in its discussion of rule 3.12: "Although motives do not determine whether a claim is frivolous, such claims are often occasioned by an intent to harass, embarrass, or otherwise injure or inconvenience a party, or by some
other improper motive." Respondent intended to harass, embarrass and otherwise injure and inconvenience MCW and Goddard in their representation of Dr. Frank in the underlying federal action.
16. Respondent is a seasoned and experienced litigator who knew full well what he was doing and the effect it would have on MCW and Goddard, but did it anyway.
17. Respondent refused to accept responsibility for anything that was done in connection with the underlying litigation including his delivery of a so-called courtesy copy of the First Amended Complaint to Goddard just before she was scheduled to take the deposition of respondent’s wife, respondent’s failure and refusal to accept the offer of Bruce Laxalt, Esq., counsel for MCW and Goddard to accept service of the First Amended Complaint on behalf of his clients and the almost 120 day delay in serving the First Amended Complaint which respondent blamed on someone else in his office who was allegedly responsible for seeing that such mundane matters were attended to.
18. Respondent attempted to justify the Third Cause of Action in the First Amended
Complaint, which states that it is a "Whistle Blower" cause of action by arguing that it is an anti-SLAPP claim brought under the provisions of NRS 41.635 to 41.670 but the Third Cause of Action is no such thing.
CONCLUSIONS OF LAW:
19. Respondent’s conduct in the other jurisdiction as set forth
above would warrant the imposition of discipline in California as violation(s) of the following:
2 Respondent was charged with violating SCR 170. While this proceeding was pending SCR 170 was replaced by Rule 3.1 of the Nevada Rules Professional Conduct. SCR 170 and NRPC 3.1 are identical.
20. By bringing an action and asserting a position in litigation without probable cause for the purpose of harassing or maliciously injuring any person, Respondent intentionally, recklessly, or repeatedly sought a prohibited objective of employment by pursuing the subject litigation in willful violation of Rules of Professional Conduct, rule 3-200.
21. By maintaining the subject litigation Respondent failed to maintain an action or proceeding that was not just or legal in willful violation of Business and Professions Code section 6068(c).
22. By maintaining the subject litigation Respondent failed to employ only those means as are consistent with the truth and mislead the court by artifice or false statement of fact or law in willful violation of Business and Professions Code section 6068(d).
23. By maintaining the subject litigation Respondent continued an action from a corrupt motive
of passion or interest in willful violation of Business and Professions Code section 6068(g).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was April 25, 2010.
AUTHORITIES SUPPORTING DISCIPLINE.
Nevada Supreme Court Rule 170 in force and effect at the time of Respondent’s acts of misconduct provided in pertinent part:
"A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law ..."
By virtue of the violation of the above-referred rule, the Respondent’s conduct equivalently runs afoul of rule 3-200 of the Rules of Professional Conduct and Business and Professions Code sections 6068 (c), (d) and (g).
Standard 1.6(a) provides that, "The appropriate sanction for an act of professional misconduct shall be that set forth in the following standards for the particular act of misconduct found or acknowledged. If two or more acts of professional misconduct are found or acknowledged in a single disciplinary proceeding, and different sanctions are prescribed by these standards for said acts, the sanction imposed shall be the more or most severe of the different applicable sanctions."
Standard 1.6(b)(i) provides that where aggravating circumstances surround the particular misconduct it may very well enhance the degree of sanction/discipline to be assessed.
Standard 1.7(a) provides that where the member has a record of one prior discipline, the degree of discipline in the current proceeding shall be greater than that imposed in the prior proceeding, unless the prior discipline was remote in time and the offense minimal in severity, such that imposing greater discipline would be manifestly unjust.
Standard 2.4(b) provides for a reproval or suspension where culpability is found for a willfully failing to perform services in an individual matter not demonstrating a pattern of misconduct demonstrating abandonment of the causes in which he was retained.
Standard 2.6 provides for disbarment or suspension depending upon the gravity of the offense and harm to the victim, where culpability is found, for a violation of section 6068 of the Business and Professions Code.
Standard 2.10 provides for reproval or suspension depending upon the gravity of the harm or offense for violation of rule 3-200 of the Rules of Professional Conduct.
Additional guidance is to be found in In the Matter of Scott 4 Cal. State Bar Court Rptr. 446 (2002), wherein the Respondent was suspended for filing and pursuing a series of frivolous lawsuits with ill motive. Moreover, in In the Matter of Varakin (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 179, 190, it was noted that Respondent’s total lack of repentance was a significant factor in determining that disbarment was appropriate where the danger was very real based upon his track record, that Respondent would fail to comply with probationary terms should a lesser discipline be imposed. The Standards should be followed whenever possible. In re Silverton (2005) 36 Cal. 4th 81, 92. In imposing discipline, the court should consider the appropriate discipline in light of the standards, but in so doing the court may consider any ground that may form a basis for an exception to application of the standards. In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980. Inasmuch as the standards are not mandatory, they may be deviated from when there is a compelling, well-defined reason to do so. Bates v. State Bar (1990) 51 Cal. 3~d 1056, 1061.
In consideration of the facts and circumstances surrounding Respondent’s misconduct, and the aggravating and mitigating circumstances present, the parties submit that the intent and goals of the Standards are met in this matter with the imposition of a six month actual suspension, two year stayed suspension and two year probation.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of April 25, 2011, the prosecution costs in this matter are approximately $4,163.00. 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): 08-J-11461
In the Matter of: Kevin John Mirch
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
The terms of pleading nolo contendere are set forth in the Business and Professions Code and the Rules of Procedures of the State Bar. The applicable provisions are set forth below:
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a notice of disciplinary charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere will be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court will find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based.
Rules of Procedure of the State Bar, rule 5.56. Stipulations to Facts, Conclusions of Law, and Disposition
“(A) Contents. A proposed stipulation to facts, conclusions of law, and disposition must comprise:
[¶] . . . [¶]
(5) a statement that the member either:
(a) admits the truth of the facts comprising the stipulation and admits culpability for misconduct; or
(b) pleads nolo contendere to those facts and misconduct;
[¶] . . . [¶]
(B) Plea of Nolo Contendere. If the member pleads nolo contendere, the stipulation must also show that the member understands that the plea is treated as an admission of the stipulated facts and an admission of culpability.”
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 5.56 of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by: Kevin Mirch
Respondent: Kevin Mirch
Date: May 2, 2011
Case Number(s): 08-J-11461
In the Matter of: Kevin John Mirch and and Hugh G. Radigan
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: Kevin John Mirch and Marie C. Mirch and
Respondent: Kevin John Mirch
Date: May 2, 2011
Respondent’s Counsel: Marie C. Mirch
Date: May 2, 2011
Deputy Trial Counsel: Hugh G. Radigan
Date: May 3, 2011
Case Number(s): 08-J-11461
In the Matter of: Kevin John Mirch
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.)
Signed by: Richard A. Honn
Judge of the State Bar Court
Date: May 10, 2011
[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 San Francisco, on May 16, 2011, 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:
MARIE C. MIRCH
MIRCH LAW
701 B ST STE 1310
SAN DIEGO, CA 92101
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
HUGH RADIGAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on May 16, 2011.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court