State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND
DISPOSITION AND ORDER APPROVING DISBARMENT; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
DISBARMENT
Case Number(s): 12-O-14296; 12-O-14333; 12-O-14608; 12-O-14766; 12-O-15728;
12-O-16028; 12-O-15269; 12-O-15842; 12-O-15892; 12-O-17052; 12-O-17120
In the Matter of: Andrew Henry Lund, Bar # 130209, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Katherine Kinsey, Bar #183740,
Counsel for Respondent: Andrew Henry Lund, Bar #130209,
Submitted to: Assigned Judge.
Filed: February 21, 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.
A. Parties' Acknowledgments:
1. Respondent is a member of the State Bar of California, admitted December 11, 1987.
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 18 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).
B. Aggravating Circumstances [for definition, see Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts supporting aggravating circumstances are required.
checked. (1) Prior record of discipline
checked. (a) State Bar Court case # of prior case 97-O-10043.
checked. (b) Date prior discipline effective May 16, 1998.
checked. (c) Rules of Professional Conduct/ State Bar Act violations: 4-100(A)
checked. (d) Degree of prior discipline Private Reproval, with public disclosure. Two-years’ probation with conditions
checked. (e) If Respondent has two or more incidents of prior discipline, use space provided below.
Second prior record of discipline: Case Nos. S091385 (00-H-11931; 99-O-11990 (Cons.)) Effective December 8, 2000. Degree of second prior discipline: One-year stayed, suspension, two years’ probation with conditions, including 90-days actual suspension. Violations: BPC 6103, 6068(b); RPC 1-110, 3-110(A).
Third prior record of discipline: Case Nos. S183886 (00-O-15512; 01-O-02014; 01-O-02150; 01-O-15157; 03-O-00315; 03-O-03200; 05-O-04462 (Cons.)) Effective September 24, 2010. Degree of third prior discipline: Four-year stayed suspension, three-years’ probation with conditions, including 160-days actual suspension. Violations: BPC 6068(m), 6103; RPC 3-110(A), 3-700(A)(2), 3- 700(D)(2):, 3-700(D).
<<not>> checked. (2) Dishonesty: Respondent's misconduct was surrounded by or followed by bad faith, dishonesty, concealment, overreaching or other violations of the State Bar Act or Rules of Professional Conduct.
<<not>> checked. (3) Trust Violation: Trust funds or property were involved and Respondent refused or was unable to account to the client or person who was the object of the misconduct for improper conduct toward said funds or property.
checked. (4) Harm: Respondent's misconduct harmed significantly a client, the public or the administration of justice.
<<not>> checked. (5) Indifference: Respondent demonstrated indifference toward rectification of or atonement for the consequences of his or her misconduct.
<<not>> checked. (6) Lack of Cooperation: Respondent displayed a lack of candor and cooperation to victims of his/her misconduct or to the State Bar during disciplinary investigation or proceedings.
checked. (7) Multiple/Pattern of Misconduct: Respondent's current misconduct evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct.
<<not>> checked. (8) No aggravating circumstances are involved.
Additional aggravating circumstances: .
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating circumstances are required.
<<not>> checked. (1) No Prior Discipline: Respondent has no prior record of discipline over many years of practice coupled with present misconduct which is not deemed serious.
<<not>> checked. (2) No Harm: Respondent did not harm the client or person who was the object of the misconduct.
<<not>> 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.
<<not>> checked. (4) Remorse: Respondent promptly took objective steps spontaneously demonstrating remorse and recognition of the wrongdoing, which steps were designed to timely atone for any consequences of his/her misconduct.
<<not>> checked. (5) Restitution: Respondent paid $ on in restitution to without the threat or force of disciplinary, civil or criminal proceedings.
<<not>> checked. (6) Delay: These disciplinary proceedings were excessively delayed. The delay is not attributable to Respondent and the delay prejudiced him/her.
<<not>> checked. (7) Good Faith: Respondent acted in good faith.
<<not>> checked. (8) Emotional/Physical Difficulties: At the time of the stipulated act or acts of professional misconduct Respondent suffered extreme emotional difficulties or physical disabilities which expert testimony would establish was directly responsible for the misconduct. The difficulties or disabilities were not the product of any illegal conduct by the member, such as illegal drug or substance abuse, and Respondent no longer suffers from such difficulties or disabilities.
<<not>> checked. (9) Severe Financial Stress: At the time of the misconduct, Respondent suffered from severe financial stress which resulted from circumstances not reasonably foreseeable or which were beyond his/her control and which were directly responsible for the misconduct.
<<not>> checked. (10) Family Problems: At the time of the misconduct, Respondent suffered extreme difficulties in his/her personal life which were other than emotional or physical in nature.
<<not>> checked. (11) Good Character: Respondent's good character is attested to by a wide range of references in the legal and general communities who are aware of the full extent of his/her misconduct.
<<not>> checked. (12) Rehabilitation: Considerable time has passed since the acts of professional misconduct occurred followed by convincing proof of subsequent rehabilitation.
<<not>> checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances: See Attached Page 16.
D. Discipline: Disbarment.
E. Additional Requirements:
(1) Rule 9.20, California Rules of Court: Respondent must comply with the requirements of rule 9.20, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.
checked. (2) Restitution: Respondent must make restitution to See Attached Page 17. in the amount of $ See Attached Page 17 plus 10 percent interest per year from See Attached Page 17 . If the Client Security Fund has reimbursed See Attached Page 17 for all or any portion of the principal amount, respondent must pay restitution to CSF of the amount paid plus applicable interest and costs in accordance with Business and Professions Code section 6140.5. Respondent must pay the above restitution and furnish satisfactory proof of payment to the State Bar's Office of Probation in Los Angeles no later than N/A days from the effective date of the Supreme Court order in this case..
<<not>> checked. (3) Other: .
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: Andrew Henry Lund, State Bar No. 130209
STATE BAR COURT CASE NUMBERS: 12-O-14296; 12-O-14333; 12-O-14608; 12-O-14766; 12-O-15728;
12-O-16028; 12-O-15269; 12-O-15842; 12-O-15892; 12-O-17052; 12-O-17120
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-14296 (Complainant: James Richards)
FACTS:
1. On September 12, 2011, James Richards ("Richards") hired Respondent to represent him in a marital dissolution action and paid Respondent a total of $5,000 in advanced attorney fees.
2. On September 26, 2011, Richards contacted Respondent’s law office by phone and asked Respondent’s paralegal, Tiffany, to delay the filing of his family law action. In October 2011, Richards contacted Respondent’s law office by telephone stating that he had reconciled with his wife and no longer needed Respondent’s legal services. Richards requested a refund of the advanced attorney fees paid to Respondent. Respondent’s office staff received the request and told Richards the refund would take 90 days.
3. In January 2012, Richards contacted Respondent’s law office by telephone multiple times to request an update on the status of his refund. On January 10, 2012, Aaron Rabin of Respondent’s law office contacted Richards and told Richards to send Rabin an email requesting the refund again. On January 10, 2012, Richards sent Respondent’s law office the email re-requesting a refund attorney fees paid to Respondent.
4. In March 2012, Richards contacted Respondent’s law office by phone multiple times requesting a refund. Respondent’s office staff told Richards that he would receive a refund of the advanced fees on March 9, 2012. Richards did not receive a refund of the advanced fees.
5. On or about May 17, 2012, Richards received a letter from Lawrence LaRocca, an attorney assisting Respondent with aspects of his law practice. The May 17, 2012 letter stated that Respondent’s office was closed and notified clients as to when they could pick up their file from Respondent’s office.
6. On May 22, 2012, Richards received another letter from LaRocca informing Richards that Respondent owed him a refund of $4,702.50. Included in the May 22, 2010 letter was a billing statement from Respondent’s office showing a balance due to Richards in the amount of $4,702.50.
7. Respondent did not refund any portion of the $4,702.50 in unearned fees paid by Richards.
CONCLUSIONS OF LAW:
8. By failing to refund $4,702.50 in unearned attorney fees to Richards, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 12-O-14333 (’Complainant: Houston Logsdon)
FACTS:
9. On March 8, 2012, Houston M. Logsdon II ("Logsdon") hired Respondent to represent him in a pending family law case entitled Logsdon v. Logsdon, San Bernardino County Superior Court Case No. FAMRS 1100987 ("family law action"). In March 2012, Logsdon paid Respondent a total of $5,000 in advanced attorney fees. On March 19, 2012, Respondent substituted in as counsel for Logsdon in his family law action.
10. On April 10, 2012, Logsdon went to Respondent’s office and learned from Respondent’s office staff that Respondent would not be representing Logsdon in the family law action and that attorney Lawrence LaRocca ("LaRocca") would be representing Logsdon instead. LaRocca was not Respondent’s employee.
11. On May 16, 2012, LaRocca sent Logsdon a text message confirming that Respondent had closed his law practice. On May 17, 2012, Respondent’s paralegal emailed Logsdon informing him that Respondent’s office was closed. Respondent had not informed Logsdon that he would be closing his practice. By ceasing his representation of Logsdon in the family law action without notice to Logsdon, Respondent constructively terminated his employment with Logsdon.
12. Logsdon subsequently employed LaRocca to represent him in the family law action. On or about May 29, 2012, LaRocca substituted in as counsel of record in Logsdon’s family law action.
13. On October 29, 2012, Respondent provided the State Bar with a pre-bill worksheet from his law firm, which stated that Respondent had earned $911.50 of the $5,000 in advanced attorney fees for work done in Logsdon’s family law action, leaving a balance of $4,088.50 owed to Logsdon. Respondent has not refunded the $4,088.50 in unearned attorney fees to Logsdon.
CONCLUSIONS OF LAW:
14. By not giving Logsdon any prior notice that he was terminating his employment with Logsdon, Respondent failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client in willful violation of Rules of Professional Conduct, rule 3-700(A)(2).
15. By failing to refund $4,088.50 in unearned attorney fees paid by Logsdon, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 12-O-14608 (Complainant: Leon Tellez)
FACTS:
16. On March 14, 2012, Leon Tellez ("Tellez") hired Respondent to represent him in a pending family law case entitled Tellez v. Tellez, San Bernardino County Superior Court case number FAMVS 10000283 ("family law action"). As of April 24, 2012, Tellez had paid Respondent $4,000 in attorney fees.
17. On March 16, 2012, Respondent substituted in as counsel for Tellez in the family law action. On March 16, 2012, attorney Ella Chatterjie specially appeared on Respondent’s behalf in the family law action. Thereafter, Respondent did not provide any legal services on Tellez’s behalf in the family law action.
18. On April 24, 2012, Respondent’s wife represented to Tellez that Respondent was out of the office and would be returning to the office in a few weeks.
19. On May 7, 2012, Tellez went to Respondent’s office and met with attorney Lawrence LaRocca, who told Tellez that Respondent had closed his law practice. By ceasing his representation of Tellez in the family law action and closing his law office without prior notice to Tellez, Respondent constructively terminated his employment with Tellez.
20. On October 29, 2012, Respondent provided the State Bar with a pre-bill worksheet from his law firm, which stated that Respondent had earned $256.00 of the $4,000 in advanced attorney fees for work done in Tellez’s family law action, leaving a balance of $3,744 owed to Tellez. Respondent has not refunded the $3,744 in unearned attorney fees to Tellez.
CONCLUSIONS OF LAW:
21. By not giving Tellez notice that he was terminating his employment with Tellez, Respondent failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client in willful violation of Rules of Professional Conduct, rule 3-700(A)(2).
22. By failing to refund $3,744 in unearned attorney fees paid to Tellez, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 12-O-14766 (Complainant: Carlos Velarde)
FACTS:
23. On December 16, 2011, Carlos Velarde ("Velarde") hired Respondent to file a petition to modify custody and visitation in a pending family law matter entitled Velarde v. Velarde, San Bernardino Superior Court Case No. FAMRS 1002910 ("family law action"). On December 16, 2011, Velarde paid Respondent $3,500 in advanced attorney fees.
24. On January 3, 2012, Respondent filed an Order to Show Cause ("OSC") Re: Modification of Child Support and Visitation in Velarde’s family law action.
25. On January 3, 2012, the court referred Velarde and the responding party to family court services for child custody counseling. Thereafter, family court services scheduled mediation in the family law action for February 16, 2012. Respondent received notice of the mediation.
26. On February 14, 2012, Velarde went to Respondent’s to prepare for the mediation. However, the legal assistant who met with Velarde was unfamiliar with Velarde’s family law action, and Respondent did not prepare Velarde for the mediation.
27. Thereafter, Velarde made an appointment to meet with Respondent on February 24, 2012 to discuss Velarde’s family law action. On February 24, 2012, Respondent did not appear for his appointment with Velarde. On February 24, 2012, Velarde terminated Respondent’s services, and on March 1, 2012, Respondent was substituted out as counsel of record in the family law action.
28. On March 8, 2012, Respondent sent Velarde a letter and a billing statement which stated that Respondent had earned $961.50 of the $3,500 in advanced attorney fees and therefore a balance of $2,538.50 was owed to Velarde. On April 27, 2012, Velarde received a check for $1,000 from Respondent’s office as a partial refund of unearned fees. Respondent has failed to refund the remaining $1,538.50 in unearned attorney fees paid by Velarde.
CONCLUSIONS OF LAW:
29. By failing to refund the $1,538.50 in unearned attorney fees paid to Velarde, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 12-O-15728 (Complainant: Stephen Stillings )
FACTS:
30. On December 28, 2011, Stephen Stillings ("Stillings") hired Respondent to file a petition to modify child custody, support and visitation in a pending family law matter entitled Stillings v. Stillings, San Bernardino Superior Court Case No. FAMS S805346 ("family law action"). By March 5, 2012, Stillings paid Respondent a total of $3,500 in advanced attorney fees.
31. On January 9, 2012, Respondent filed an Order to Show Cause ("OSC") Re: Modification of Child Custody and Visitation in Stillings’s family law action.
32. Between January 2012 and May 2012, Stillings contacted Respondent’s office several times to obtain status updates regarding his family law action and an upcoming OSC hearing. Each time Stillings contacted Respondent’s office, he was unable obtain the status on his case.
33. On April 19, 2012, the court held a hearing regarding the OSC. Respondent made a telephonic appearance. The parties stipulated to continue the hearing. Respondent had knowledge of the continued hearing. On April 14, 2012, Respondent’s office notified Stillings of the June 7, 2012 hearing regarding the OSC.
34. On May 18, 2012, Stillings phoned Respondent’s office to discuss a supplemental response with Respondent’s paralegal, Brittany. Brittany told Stillings to call back on May 21, 2012.
35. On May 21, 2012, Stillings phoned Respondent’s office and spoke with attorney Lawrence LaRocca, who told Stillings that Respondent had closed his practice.
36. On June 7, 2012, Respondent did not appear at the continued OSC hearing in Stillings’s family law action. Respondent did not provide any further legal services to Stillings.
37. By failing to appear at the June 7, 2012 hearing in the family law action and by ceasing his representation of Stillings in the family law action without notice to Stillings, Respondent constructively terminated his employment with Stillings. Respondent did not inform Stillings of his intent to withdraw from representation or take any other steps to avoid reasonably foreseeable prejudice to Stillings.
38. On October 29, 2012, Respondent provided the State Bar with a pre-bill worksheet from his law firm, which stated that Respondent had earned $356.50 of the advanced attorney fees in Stillings’s family law action, leaving $3,143.50 in unearned fees owed to Stillings. Respondent has not refunded the $3,143.50 in unearned advanced fees paid by Stillings.
CONCLUSIONS OF LAW:
39. By abandoning Stillings family law action and by failing to give Stillings notice that he was terminating his employment with Stillings, Respondent failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client in willful violation of Rules of Professional Conduct, rule 3-700(A)(2).
40. By failing to refund the $3,143.50 in unearned advanced fees paid to Stillings, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 12-0-16028 (Complainant: Ava Meesiri)
FACTS:
41. On July 8, 2011, Ava Meesiri ("Meesiri") hired Respondent to represent her in a pending family law action entitled Cervantes v. Meesiri, Riverside County Superior Court Case No. RID1100850 ("family law action"). On July 8, 2011, Meesiri paid Respondent $5,000 in advanced attorney fees.
42. On July 18, 2011, Respondent filed an Order to Show Cause ("OSC") Re Spousal Support and Attorney Fees and Costs in Meesiri’s family law action. On July 19, 2011, Respondent filed a Motion to Set Aside Judgment in Meesiri’s family law action. The court set the hearing regarding the OSC and the motion to set aside for August 25, 2011. Respondent received notice of the August 25, 2011 hearing.
43. On August 25, 2011, Respondent appeared at the OSC hearing, and the court continued the OSC hearing to October 25, 2011. Respondent had knowledge of the continuance. On October 25, 2011, the court continued the OSC and motion hearing to November 28, 2011. Respondent had knowledge of the continuance.
44. On November 28, 2011, Respondent failed to appear at the OSC and motion hearing. Meesiri called Respondent’s cellphone regarding Respondent’s failure to appear, but Respondent did not respond. Meesiri called Respondent’s office regarding Respondent’s failure to appear and was told that attorney Lawrence LaRocca would be specially appearing on Respondent’s behalf. On November 28, 2011, LaRocca specially appeared on behalf of Respondent at the OSC and motion hearing.
45. On November 28, 2011, Meesiri went to Respondent’s office, terminated his services and requested the release of her client file, an accounting and a refund of unearned attorney’s fees.
46. By May 2012, Respondent had closed his law practice and did not release Meesiri’s client file to Meesiri.
47. On October 29, 2012, Respondent provided the State Bar with a pre-bill worksheet from his law firm, which stated that Respondent had billable fees of $2,369.17 for work done on Meesiri’s family law action leaving a remaining balance of $2,630.83 owed to Meesiri. To date, Respondent has failed to provide Meesiri an accounting of the $5,000 in attorney fees, has not refunded the $2,630.83 in unearned advanced fees to Meesiri and has not released her file.
CONCLUSIONS OF LAW:
48. By failing to release Meesiri’s client file despite Meesiri’s request to do so, Respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property in willful violation of Rules of Professional Conduct, rule 3-700(D)(1).
49. By failing to provide Meesiri. with an accounting of the $5,000, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession in willful violation or Rules of Professional Conduct, rule 4-100(B)(3).
50. By failing to refund $2,630.83 in unearned advanced fees paid by Meesiri, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 12-O-15269 (Complainant: Donald Pound)
FACTS:
51. On March 1, 2012, Donald Pound ("Pound") hired Respondent to represent him in connection with child custody and visitation issues in a pending family law action entitled Pound v. Ortega, Riverside County Superior Court Case No. RID227335 ("family law action").
52. On March 5, 2012, Pound paid Respondent $2,500 in advanced attorney fees. After on or about March 5, 2012, Pound had no further contact with Respondent.
53. On March 14, 2012, Respondent filed a substitution of attorney, substituting in as counsel for Pound in his family law action.
54. On March 26, 2012, the court held a hearing regarding a temporary restraining order issued against Pound in the family law action. Attorney Lawrence LaRocca ("LaRocca") made a special appearance for Respondent at the heating. The next hearing in the family law matter was set for May 18, 2012.
55. Thereafter, Respondent failed to provide any legal services to Pound in his family law action. Between March 26, 2012 and early May 2012, Pound telephoned Respondent’s office and left messages with Respondent’s office staff seeking the status of his matter, but Respondent did not respond to Pound’s telephone calls.
56. On May 15, 2012, LaRocca telephoned Pound and informed him that Respondent had closed his law practice. Respondent did not give Pound any notice that he was terminating his representation. By ceasing his representation of Pound in his family law action without notice to Pound, Respondent constructively terminated his employment with Pound.
57. On October 29, 2012, Respondent provided the State Bar with a pre-bill worksheet from his law firm, which stated that Respondent had billable fees of $907.50 for work done on Pound’s family law action, leaving a remaining balance of $1,592.50 in unearned attorney fees owed to Pound. Respondent has not refunded the $1,592.50 in unearned attorney fees to Pound.
CONCLUSIONS OF LAW:
58. By ceasing communication with Pound, by ceasing representation of Pound in his family law action and by not giving Pound notice that he was terminating his representation of Pound, Respondent failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client in willful violation of Rules of Professional Conduct, rule 3-700(A)(2).
59. By failing to refund the $1,592.50 in unearned advanced fees paid to Pound, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 12-O- 15842 (Complainant: Israel DeLeon)
FACTS:
60, On March 14, 2012, Israel DeLeon ("DeLeon") hired Respondent to represent him in connection with a child support matter and a bench warrant in a pending family law action entitled DeLeon v. DeLeon, Riverside County Superior Court Case No. IND084641 ("family law action").
61. On March 14, 2012, DeLeon paid Respondent $3,500 in advanced attorney fees. Thereafter, Respondent failed to provide any legal services to DeLeon in his family law action. Respondent did not earn any of the $3,500 in attorney fees.
62. In May 2012, attorney Lawrence LaRocca wrote DeLeon and informed him that Respondent had closed his law practice. Respondent did not provide DeLeon with any notice that he was terminating his representation.
63. On October 29, 2012, Respondent provided the State Bar with a pre-bill worksheet from his law firm, which showed that no services had been provided to DeLeon in his family law action. Respondent has not refunded any of the $3,500 in unearned advanced attorney fees to DeLeon.
CONCLUSIONS OF LAW:
64. By abandoning DeLeon while his family law action was pending and by failing to give DeLeon notice that he was terminating his employment with DeLeon, Respondent failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client in willful violation of Rules of Professional Conduct, rule 3-700(A)(2).
65. By failing to refund $3,500 in unearned advanced fees paid to DeLeon, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 12-O-15892 (Complainant: Mario Villa)
FACTS:
66. On May 3, 2012, Mario Villa ("Villa") hired Respondent to represent him in a pending family law action entitled Villa v. Chavira, Riverside County Superior Court Case No. RID239428 ("family law action"). On May 3, 2012, Villa paid Respondent $2,500 in advanced attorney fees. Thereafter, Respondent failed to provide any legal services to Villa.
67. In May 2012, Respondent closed his law office. On June 19, 2012, attorney Lawrence LaRocca wrote a letter to Villa informing him that LaRocca was not part of Respondent’s law firm but did review Villa’s file and confirmed that no work had been done on Villa’s case. Respondent did not earn any of the $2,500 in attorney fees.
CONCLUSIONS OF LAW:
68. By failing to refund $2,500 in unearned advanced fees paid to Villa, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 12-O-17052 (Complainant: Carl Hughes)
FACTS:
69. On March 13, 2012, Carl Hughes ("Hughes") hired Respondent to represent him in connection with child custody and visitation matters in a pending family law case entitled Hughes v. Hughes, Riverside Superior Court Case No. SWD011617 ("family law action"). On March 14, 2012, Hughes paid Respondent $3,500 in advanced fees.
70. At the time Hughes retained Respondent, Hughes informed Respondent that a hearing was set for April 2, 2012 in the family law action regarding an Order to Show Cause ("OSC") re: modification of child custody and visitation filed by Hughes’s ex-wife. Hughes informed Respondent that time was of the essence in his family law action.
71. On March 28, 2012, Respondent’s paralegal, Irene Amato ("Amato"), contacted Hughes and informed him that Respondent would not appear at the April 2, 2012 OSC hearing. On April 2, 2012, Amato told Hughes that he should continue the OSC hearing. Hughes declined to continue the OSC hearing.
72. On April 2, 2012, the court held the hearing regarding the OSC re: modification of child custody and visitation. Lawrence LaRocca made a special appearance for Respondent at the OSC hearing.
73. On April 16, 2012, Hughes sent Respondent a letter terminating his services and requesting a refund of the $3,500 in attorney fees and an accounting. Respondent received the April 16, 2012 letter.
74. On April 27, 2012, Respondent sent Hughes a letter enclosing a substitution of attorney and a billing statement. Respondent’s letter contained an invoice stating that Respondent owed Hughes a refund of $1,725 in unearned advanced fees. However, Respondent charged Hughes $200 in attorney’s fees for closing the client file. Respondent has not refunded the $1,925 in unearned advanced fees paid by Hughes.
CONCLUSIONS OF LAW
75. By failing to refund $1,925 in unearned advanced fees paid by Hughes, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 12-O-17120 (Complainant: Michael Butler)
FACTS:
76. On November 7, 2011, Michael Butler ("Butler") hired Respondent to represent him in connection with child support arrearages in a pending family law case entitled Butler v. Butler, Riverside Superior Court Case No. FAM57924 ("family law action"). On November 7, 2011, Butler paid Respondent $3,500 in advanced attorney fees.
77. Between November 17, 2011 and December 8, 2011, Respondent was ineligible to practice law.
78. On November 18, 2011, Respondent filed, or caused to be filed, a substitution of attorney form, purportedly containing the signature of Lawrence LaRocca ("LaRocca"), substituting in LaRocca in place of Respondent as the attorney of record in the family law action. LaRocca did not sign the substitution of attorney form consenting to the substitution and did not authorize anyone to sign his name to the document.
79. On November 18,2011, Respondent filed, or caused to be filed, a Response to Governmental Notice of Motion or Order to Show Cause, along with supporting documentation, in Butler’s family law action, under LaRocca’s name without LaRocca’s knowledge or consent.
80. On March 23, 2012, Respondent filed a substitution of attorney form substituting himself back in as counsel for Butler in the family law action.
81. On April 6, 2012, Respondent filed an Order to Show Cause ("OSC") Re: Terminate or Reduce Arrears Payment to Zero in Butler’s family law action. The court set a hearing on the OSC for May 8, 2012. Respondent had knowledge of the May 8, 2012 OSC hearing.
82. On May 8, 2012, the court held a hearing on the OSC in Butler’s family law action. LaRocca made a special appearance for Respondent at the OSC hearing.
83. Thereafter, Respondent ceased to provide any legal services for Butler in his family law action. In May 2012, Respondent closed his law office and abandoned Butler’s family law action without any notice to Butler. By ceasing his representation of Butler in the family law action without notice to Butler, Respondent constructively terminated his employment with Butler.
84. Pursuant to an October 30, 2012 billing statement from Respondent’s office, Respondent earned $885 in attorney fees in Butler’s family law action, leaving $2,615 in unearned fees owed to Butler. To date, Respondent has not refunded the remaining $2,615 in unearned advanced fees to Butler.
CONCLUSIONS:
85. By abandoning Butler’s family law action and by failing to give Butler notice that he was terminating his employment with Butler, Respondent failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client in willful violation of Rules of Professional Conduct, rule 3-700(A)(2).
86. By failing to refund $2,615 in unearned advanced fees paid by Butler, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
87. By filing the substitution of attorney with the court in the family law action, when he knew LaRocca had not signed the substitution, Respondent sought to mislead the judge or judicial officer by an artifice or false statement of fact or law in willful violation of Business and Professions Code section 6068(d).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline: As noted above, Respondent’s has three prior records of discipline. In the first prior record of discipline, Respondent stipulated to commingling client funds and failing to properly maintain client funds in his trust account. In the second prior record of discipline, Respondent stipulated to violating the terms of his probation as well as failing to perform, failing to obey a court order and failing to maintain the respect due to a court in a client matter. In Respondent’s third and most recent prior record of discipline, Respondent stipulated to failing to perform and failing to refund unearned fees in four client matters as well as abandoning two clients.
Harm: Respondent failure to refund unearned fees caused harm to his clients. Respondent abruptly shut down his office while his clients had pending matters before the court, causing them to retain new counsel at additional expense or represent themselves in their legal actions.
Multiple/Pattern of Misconduct: Respondent’s misconduct involves eleven client matters and includes multiple violations of the Business and Professions Code and the Rules of Professional Conduct, demonstrating multiple acts of misconduct.
ADDITIONAL MITIGATING CIRCUMSTANCES.
Candor/Cooperation: During the investigation of these matters, Respondent provided the State Bar with billing statements that helped to establish clients were owed refunds and the amount of those refunds. In addition, Respondent is entitled to some mitigation for admitting to the facts and circumstances in these matters saving the State Bar time and resources. (ln the Matter of Connor (Review Dept. 2008) 5 Cal. State Bar. Ct. Rptr. 93, 107, concluding an attorney is entitled to some mitigation for cooperating in entering into stipulations of fact.)
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." (ln 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. (ln 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. (ln 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.)
Pursuant to Standard 1.7(b), disbarment is required in this matter. Standard 1.7(b) states that if a member is found culpable of 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. Respondent has three prior records of discipline, and there are no compelling mitigating circumstances that clearly predominate.
In In the Matter of Sullivan (Review Dept. 2010) 5 Cal. State Bar Ct. Rptr. 189, the Review Department found that disbarment was warranted based on a respondent’s four disciplinary matters over two decades in addition to his lack of compelling mitigation. The present matter is Respondent’s fourth disciplinary case in fifteen years and there is also a lack of compelling mitigation. Moreover, the misconduct in this matter as well as the misconduct in Respondent’s prior discipline demonstrate a common thread of failure to perform, failure to refund unearned fees and abandonment violations. Respondent should receive some mitigation for providing the State Bar with billing statements evidencing the amount of the unearned fees owed to clients and for entering into a stipulation.
However, based on Respondent’s three prior records of discipline and the extent of the misconduct in the present matters, disbarment is the appropriate level of discipline and meets the purpose of Standard 1.3 of protecting the public, the courts and the legal profession.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was January 28, 2013.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of January 23, 2013, the prosecution costs in this matter are $12,210. 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.
FURTHER RESTITUTION
Payee Principal Amount Interest Accrues From
James Richards $4,702.50 October 1 , 2011
Houston M. Logsdon II $4,088.50 April 10, 2012
Leon Tellez $3,744 May, 7, 2012
Carlos Velarde $1,538.50 February 24, 2012
Stephen Stillings $3,143.50 May 21, 2012
Ava Meesiri $2,630.83 November 28, 2011
Donald Pound $1,592.50 May 15, 2012
Israel DeLeon $3,500 March 14, 2012
Mario Villa $2,500 May 3, 2012
Carl Hughes $1,925 April 16, 2012
Michael Butler $2,615 May 15, 2012
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-14296; 12-O-14333; 12-O-14608; 12-O-14766;
12-O-15728; 12-O-16028; 12-O-15269; 12-O-15842; 12-O-15892; 12-O-17052;
12-O-17120
In the Matter of: Andrew Henry Lund
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: Andrew H. Lund
Date: 1/29/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Katherine Kinsey
Date: 2/6/13
DISBARMENT ORDER
Case Number(s): 12-O-14296; 12-O-14333; 12-O-14608; 12-O-14766; 12-O-15728;
12-O-16028; 12-O-15269; 12-O-15842; 12-O-15892; 12-O-17052; 12-O-17120
In the Matter of: Andrew Henry Lund
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 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 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 herein, 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. Platel
Date: 2/20/13
CERTIFICATE OF SERVICE
[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 February 21, 2013, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
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 H. LUND
LUND LAW FIRM
808 S LINCOLN AVE # 106
BEAVER DAM, WI 53916
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Katherine D. Kinsey, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 21, 2013.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court