Case Number(s): 09-O-10099; 10-O-06926
In the Matter of: Michael R. Goodheart, Bar # 50616, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Elina Kreditor, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
Bar # 250641,
Counsel for Respondent: In Pro Per Respondent
Michael R. Goodheart
22736 Vanowen Street, Suite 303
West Hills, CA 91307
Bar#50616
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 January 5, 1972.
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 12 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 membership cycles following the effective date of discipline. (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.
IN THE MATTER OF: MICHAEL R. GOODHEART, State Bar No. 50616
STATE BAR COURT CASE NUMBER: 09-O-10099; 10-O-06926
FACTS AND CONCLUSIONS OF LAW
Michael R. Goodheart ("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.
I. Facts
1. On June 18, 2008, Respondent entered into a stipulation regarding facts, conclusions of law, and disposition in State Bar court case nos. 05-O-02414; 05-O-04329; and 06-O-10457, including a stipulation that Respondent would comply with probation conditions.
2. On October 7, 2008, the California Supreme Court filed its order in Supreme Court case no. S165777 approving the stipulation reached in State Bar Court case nos. 05-O-02414; 05-O-04329. The Supreme Court ordered that Respondent be suspended from the practice of law for one year, that execution of the suspension be stayed, and that Respondent be placed on probation for one year with conditions, including that he be actually suspended for thirty days ("the Order"). On or about October 7, 2008, the clerk of the California Supreme Court served a copy of the Order on Respondent by mail. Respondent received a copy of the Order. The Order was effective November 6, 2008.
3. On October 30, 2008, the State Bar Department of Probation advised Respondent in writing that the Supreme Court issued its order on October 7, 2008, suspending him from the practice of law, and that the order was effective November 6, 2008. The letter further advised Respondent to contact the Office of Probation by December 6, 2008.
4. On November 12, 2008, Respondent served opposing counsel, Adam Rossman ("Rossman"), in Los Angeles Superior Court Case Number YC057796, entitled Jeff Facon v. Elizabeth Hershenson, with Plaintiff’s Points and Authorities in Opposition to Demurrer and Motion to Strike. Respondent listed himself as "Attorney for Plaintiff" in this pleading. This pleading was filed with the Superior Court on November 17, 2008.
5. On November 18, 2008, Respondent appeared with his client, Jeff Facon ("Facon"), for Facon’s deposition at Rossman’s law offices. Before beginning the substantive portion of the deposition, Rossman confronted Respondent, on the deposition record, regarding Respondent’s suspension from the practice of law. Respondent stated, on the deposition record, that he was not yet suspended from the practice of law and that he was not scheduled to meet with a representative of the State Bar until early December. Rossman showed Respondent a printout from the State Bar website indicating that Respondent was suspended, Respondent then called the State Bar and discovered that the period of his suspension had already commenced. Respondent rescheduled his client’s deposition for a date after the conclusion of his suspension and left Rossman’s law offices.
6. As a condition of the probation recommended by the State Bar Court and ordered by the Supreme Court in case no. S165777, Respondent was ordered to comply with numerous conditions of Probation, including the following:
a. submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10 and October 10 of the period of probation, certifying under penalty of perjury whether Respondent had complied with the State Bar Act, the Rules of Professional Conduct, and all conditions of probation during the preceding calendar quarter, and to file a final report containing the same information no earlier than twenty days prior to the expiration of the probation period and no later than the last day of probation.
b. Within sixty (60) days of the effective date of discipline, Respondent must develop a law office management/organization plan ("Law Office Management Plan"), which must be approved by the Office of Probation.
c. 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 Respondent and/or a certified public accountant or other financial professional ("the CPA Report").
d. 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.
7. Respondent did not timely file the Quarterly Reports, due by April 10, 2009, January 10, 2010, April 10, 2010 and July 10, 2010 and thus did not timely inform the Office of Probation on such Quarterly Reports that he does not possess any client funds, property or securities during the period covered by the reports. On August 31, 2010, Respondent was advised by the Deputy Trial Counsel assigned to this matter that he failed to file the aforementioned reports. On or about August 31, 2010 Respondent filed the missing reports.
8. Respondent did not timely file the Law Office Management Plan due by January 5, 2009. The Law Office Management Plan was filed by Respondent on January 11, 2009.
II. Conclusions of Law
By submitting pleadings on Facon’s behalf and attempting to represent him during his deposition, Respondent continued to engage in the practice of law while he was not entitled to practice law and thus violated Business and Professions Code sections 6125 and 6126. By violating sections 6125 and 6126, Respondent willfully failed to support the laws of this state in violation of Business and Professions Code, section 6068(a).
By failing to (i) timely file the Quarterly Reports due by April 10, 2009, January 10, 2010, April 10, 2010 and July 10, 2010 and thus failing to timely inform the Office of Probation that Respondent did not possess any client funds, property or securities during the period covered by the reports; and (2) timely file the Law Office Management Plan, Respondent willfully failed to comply with all conditions attached to any disciplinary probation in violation of Business and Professions Code, section 6068(k).
PENDING PROCEEDINGS
The disclosure date referred to, on page 2, paragraph A(7), of the instant Stipulation, was October 18, 2010.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 18, 2010, the costs in this matter are $1983.00. 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.
MITIGATING CIRCUMSTANCES
Upon being advised that his suspension had already commenced at the Facon deposition, Respondent immediately terminated the deposition.
No client harm resulted from Respondent’s misconduct in this matter. The deposition in question was initially rescheduled but ultimately did not take place because the case settled.
Respondent cooperated with the State Bar upon being contacted regarding his failure to timely submit probation reports and his unauthorized practice of law. Respondent expressed remorse regarding his misconduct and promptly rectified the misconduct with respect to the reports. Respondent further cooperated with the State Bar by entering into the instant stipulation.
Finally, Respondent has submitted three references to attest to his good moral character. Two of the references were submitted by attorneys and one by a former client. Each of the individuals providing such references stated, in sum, that they are aware that Respondent was disciplined by the State Bar, that he subsequently appeared at a deposition while suspended, and that they believe the Respondent to be an honest and capable practitioner who misunderstood the date his suspension was to commence.
AUTHORITIES SUPPORTING DISCIPLINE
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 2.6(a) of the Standards provides that violations of section 6068 shall result in disbarment or suspension depending upon the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline.
Standard 1.7(a) provides that where a member has previously been found culpable of any misconduct, the degree of discipline imposed shall be greater than that imposed in the prior proceeding. Thus, the Standards dictate that Respondent’s discipline in this matter exceed the discipline imposed in his prior matter, specifically, one year stayed suspension, three years probation, and 30 days actual suspension.
However, although the standards are guidelines (Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090; In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615,628) and afforded great weight (ln re Silverton (2005) 36 Cal.4th 81, 91-92), they are not applied in a talismanic fashion (In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 994). The appropriate discipline is determined in light of all relevant facts, including mitigating and aggravating circumstances. (Gary v. State Bar (1988) 44 Cal.3d 820, 828.)
Here, the nature of Respondent’s misconduct, as well as the mitigating evidence involved, justify a deviation from Standard 1.7(a). Moreover, although the actual discipline in the instant matter remains 30 days actual, as in Respondent’s previous matter, the amount of his stayed suspension is increased to two years stayed. See In the Matter of Burckhardt (1991) 1 Cal. State Bar Ct. Rptr. 343,351 (noting that although Standard 1.7(a) is inapplicable due to the contemporaneous nature of the offenses at issue, an additional year of probation coupled with the requirement that Respondent demonstrate rehabilitation before returning to the practice of law satisfies the requirements of Standard 1.7(a)).
The unauthorized practice of law while suspended "has resulted in a range of discipline from suspension to disbarment, depending on the circumstances of the misconduct, including the nature of any companion charges and the existence and gravity of prior disciplinary proceedings." In the Matter of Taylor (1991) 1 Cal. State Bar Ct. Rptr. 563; see also In the Matter of Hove, 2006 Calif. Op. LEXIS 7, *47 (the level of discipline in cases involving the unauthorized practice of law ranges from 30 days to six months actual suspension).
In In the Matter of Mason (1997) 3 Cal. State Bar Ct. Rptr. 639, Respondent made a court appearance six days after the effective date of his 75 day suspension. He also signed and served his trial brief in the matter approximately three days after the effective date of the suspension. During the court appearance, Respondent did not advise the court or opposing counsel of his suspension and agreed to a continuance of the trial date for approximately 90 days. Respondent testified that he appeared on the matter because he assumed his counsel obtained an extension of 30 to 45 days of the effective date of his suspension. The court did not find Respondent’s testimony credible because an extension of 30 to 45 days would still mean that he agreed to continue the trial date to a date when he would be in the midst of his 75 day suspension. The court found that Respondent’s misconduct was willful, in that he either knew he was suspended and appeared in court during the suspension, or he believed he had obtained an extension of the commencement of his suspension and failed to advise the court that he would be suspended on the continued trial date. In aggravation, the court considered Respondent’s prior record of discipline involving commingling, failure to promptly pay out client funds and provide an accounting, and failure to cooperate with a State Bar investigation. In further aggravation, the court considered that the court appearance coupled with the filing and serving of the trial brief constituted multiple acts of wrongdoing. In mitigation, the court considered Respondent’s pro bono work. The court imposed discipline consisting of 90 days actual suspension, 15 days greater than the actual suspension imposed in Respondent’s underlying matter.
In In the Matter of Trousil (1990) 1 Cal. State Bar Ct. Rptr. 229, Respondent, while suspended for nonpayment of dues, represented a client in a bankruptcy matter and appeared in bankruptcy court on his behalf. In aggravation, the court considered Respondent’s three prior cases of disciplinary misconduct. In mitigation, the court considered the fact the Respondent’s misconduct did not cause any harm to the client, that Respondent cooperated with the State Bar, that Respondent has been diagnosed as a manic depressive, a condition which has been brought under control since the misconduct at issue, and that there were no instances of misconduct by the Respondent in the five years since the events at issue in the case. The court suspended Respondent from the practice of law for two years, stayed, and placed him on two years suspension with conditions, including a 30 day actual suspension.
In In the Matter of Chasteen (1985) 40 Cal. 3d 586, Respondent was suspended for failure to pay membership dues yet continued to engage in the practice of law for over a year following his suspension. During that time period, Respondent committed acts of misconduct in three client matters. Respondent was found culpable of the unauthorized practice of law, failure to perform competently, commingling and failing to return client fees, and misleading his clients regarding the progress of their cases. Respondent had been disciplined in the past for writing 48 checks against insufficient funds and depositing his own funds in a client trust account. The court also considered evidence of Respondent’s alcohol abuse problem and his subsequent participation in a treatment program. The Supreme Court ultimately concluded that a 60 day actual suspension "adequately takes into account the seriousness of the misconduct and the evidence presented in mitigation." 40 Cal. 3d at 593. Respondent was suspended for five years, stayed, placed on five years of probation, with conditions, including the condition that he be actually suspended for 60 days and until he paid restitution to one of his former clients.
The nature of Respondent’s misconduct, the accompanying mitigating factors, and comparable case law suggest that discipline consisting of a two year stayed suspension, three years probation with conditions, including a 30 day actual suspension, is appropriate in this matter.
Case Number(s): 09-O-10099; 10-O-06926
In the Matter of: Michael R. Goodheart
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: Michael R. Goodheart
Date: October 19, 2010
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Elina Kreditor
Date: October 20, 2010
Case Number(s): 09-O-10099; 10-O-06926
In the Matter of: Michael R. Goodheart
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 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. Honn
Date: November 3, 2010
[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 November 4, 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:
MICHAEL ROGER GOODHEART ESQ.
GOODHEART & GOODHEART
22736 VANOWN ST
WEST HILLS, CA 91307
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Elina Kreditor, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 4, 2010.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court