Case Number(s): 12-O-13324, 12-O-17030
In the Matter of: James Lynn Bauchert, Bar # 170174, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Agustin Hernandez, Deputy Trial Counsel
1149 S. Hill St.
Los Angeles, CA 90015
(213)765-1713
Bar # 161625
Counsel for Respondent: In Pro Per Respondent
James Lynn Bauchert
22421 Barton Rd., #156
Grand Terrace, CA 92313
(909) 799-9592
Bar # 170174
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: January 16, 2013.
<<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 June 2, 1994.
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 added to membership fee for calendar year following effective date of discipline.
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: . (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.
Case Number(s): 12-O-13324; 12-O-17030
In the Matter of: James Lynn Bauchert
a. Restitution
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: Mariela Miotto and Dr. Eduardo D. Lam (jointly)
Principal Amount: $5,000
Interest Accrues From: August 1, 2012
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than six (6) months after the effective date of discipline.
<<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.
<<not>> 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 Respondent and/or 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.
<<not>> 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: James Lynn Bauchert, State Bar No. 170174
STATE BAR COURT CASE NUMBER: 12-O-13324; 12-O-17030
FACTS AND CONCLUSIONS OF LAW.
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.
Case No. 12-O-13324 (Complainant: Wilhelmina Tosh)
FACTS:
CONCLUSIONS OF LAW:
Case No. 12-O-17030 (Complainant: Mariela Miotto)
FACTS:
CONCLUSIONS OF LAW:
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Harm: Respondent received $3,000 in advanced fees from Tosh and $5,000 in advanced fees from Lam and Miotto. After receiving such payments, Respondent performed no legal services of value for Tosh, or Lam and Miotto. Though Respondent has refunded Tosh in full, the refund was tardy and only made after Tosh filed a complaint with the State Bar. To date, Respondent has not refunded Lam and Miotto. Respondent’s misconduct has caused significant harm to his clients, which constitutes an aggravating circumstance. (See Standard 1.2(b)(iv).)
Multiple Acts of Wrongdoing: Respondent’s current misconduct evidences multiple acts of wrongdoing, as described above, which have resulted in seven distinct violations of the Rules of Professional Conduct and Business and Professions Code in two client matters, constituting an aggravating circumstance. (See Standard 1.2(b)(ii); In the Matter of Valinoti (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 498, 555.)
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
No Prior Record of Discipline: Although Respondent’s current misconduct is serious, at the time of the misconduct, Respondent had more than 18 years of practice without discipline, which is entitled to substantial mitigation. (See In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49 [attorney with seventeen years of discipline-free practice entitled to mitigation despite serious misconduct].)
Acknowledgment of Wrongdoing: In discussions with the State Bar, Respondent admired that his conduct was wrong and has accepted fault. Respondent has also refunded and made amends with Tosh. Respondent’s acknowledgment of wrongdoing entitles him to some mitigation. (See Standard 1.2(e)(vii); In the Matter of Spaith (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 511,519.)
Physical Disability: Respondent has been receiving medical treatment for his uncontrolled diabetes since December 2011. At the beginning of 2012, Respondent had severe uncontrolled diabetes, with average sugar levels over 300. Respondent’s uncontrolled diabetes caused extreme lethargy, an inability to concentrate, dehydration, fatigue and confusion. Respondent’s uncontrolled diabetes contributed to the misconduct. (See Standard 1.2(e)(iv).)
Cooperation with State Bar: Additionally, Respondent has cooperated with the State Bar by entering into a stipulated settlement for the matter described herein at an early stage without the need of a trial to resolve this matter. (Silva-Vidor v. State Bar (1989) 49 Ca.3d 1071, 1079 [mitigative credit given where attorney admired facts and culpability in order to simplify the disciplinary proceedings].)
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipline" pursuant to a set of written principles to "better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to standards are to this source).) The primary purposes of disciplinary proceedings and of the sanctions imposed 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 re Morse (1995) 11 Cal.4th 184, 205; std 1.3.)
Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible" in determining level of discipline. (In re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal.4th 205, 220 and In re Young (1989) 49 Cal.3d 257, 267, fn. 11.) Adherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (In re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
Respondent admits to committing seven acts of professional misconduct. Standard 1.6 (a) requires that where a Respondent acknowledges two or more acts of misconduct, and different sanctions are prescribed by the standards that apply to those acts, the sanction imposed shall be the more or most severe prescribed in the applicable standards.
The most severe sanction applicable to Respondent’s misconduct is found in standard 2.10 which provides that culpability of a member in violation of any provision of the Business and Professions Code or any Rule of Professional Conduct not otherwise 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. The appropriate sanction for a violation of Rules of Professional Conduct, rule 3-700(D)(2) is not otherwise specified. Therefore, standard 2.10 applies to Respondent’s failure to promptly refund unearned fees in two client matters, in violation of Rules of Professional Conduct, rule 3-700(D)(2). Since Tosh, and Miotto and Lam, were financially harmed by Respondent’s failure to promptly refund unearned fees to them, neither public nor private reproval would be sufficient discipline in this case.
In Bach v. State Bar (1991) 52 Cal.3d 1201, the court found that the attorney was culpable of failing to perform, failing to refund unearned fees, and failing to cooperate with a State Bar investigation. In particular, the attorney was retained and paid $3,000 in advanced fees to file a dissolution petition. For two and a half years, the attorney failed to communicate with his client, perform any work for his client, or refund unearned fees to his client. The court determined that a 30-day actual suspension was an appropriate level of discipline, finding in mitigation Bach’s lack of prior record of discipline for twenty years, but finding in aggravation the attorney’s "feckless suggestion" to the court that additional mitigating factors existed and his "lack of insight into the deficiencies of his professional behavior." (ld. at 1208.)
While Respondent’s misconduct here concerned a failure to refund a greater amount of unearned fees than in Bach, the extent of Respondent’s misconduct is less. He has been more cooperative and responsive than Bach was in so far as Respondent has cooperated with the State Bar by agreeing to stipulate to the discipline at an early stage in the disciplinary proceedings, he has already refunded one client in full and, unlike Bach, Respondent has shown remorse and acknowledged his wrongdoing. Additionally, Respondent’s misconduct here took place over the course of one year, which is much shorter than the two and a half years of misconduct in Bach. Moreover, Respondent’s mitigating factors are much stronger here because not only does Respondent have a discipline-free record for over 18 years, like Bach, but he also had a physical disability which entities him to even stronger mitigation. Unlike in Bach, where the mitigation was equal to or outweighed by the aggravation, here Respondent’s mitigation clearly outweighs any aggravation. Therefore, the instant discipline for Respondent’s misconduct should be less severe than in Bach.
Accordingly, a one (1) year stayed suspension and one (1) year probation with conditions, including no actual suspension, is an appropriate level of discipline for Respondent’s misconduct described herein.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was on December 17, 2012.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School or any other educational courses to be ordered as a condition of suspension (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-13324; 12-O-17030
In the Matter of: James Lynn Bauchert
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: James Lynn Bauchert
Date: December 26, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Agustin Hernandez
Date: December 26, 2012
Case Number(s): 12-O-13324; 12-O-17030
In the Matter of: James Lynn Bauchert
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.
On page 10, numbered paragraph 8 under the heading “Conclusions Of Law”, change “$2,500” to “$3,000”.
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: George E. Scott, Judge Pro Tem
Date: January 11, 2013
[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 16, 2013, 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:
JAMES LYNN BAUCHERT
22421 BARTON RD., #156
GRAND TERRACE, CA 92313
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
AGUSTIN HERNANDEZ, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 16, 2013.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court