Case Number(s): 02-O-14891
In the Matter of: Marc S. Feldman, Bar # 108293, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Lee Ann Kern, Bar # 156623
Counsel for Respondent: Raymond Dion, Bar # 138206
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: March 3, 2006.
<<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 3, 1983.
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):
checked. Costs 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.
IN THE MATTER OF: Marc S. Feldman, State Bar No. 108293
STATE BAR COURT CASE NUMBER: 02-O-14891
Respondent admits that the following facts are true and that he is culpable of violations of the specified statute(s) and Rule(s) of Professional Conduct.
FACTS AND CONCLUSIONS OF LAW.
COUNT ONE: Rules of Professional Conduct, rule 3-210 [Advising the Violation of Law]
1. On or about February 22, 1999, Respondent’s home in Sherman Oaks was burglarized. Cash, a ring, a leather jacket, and four paintings had been stolen.
2. On or about February 23, 1999, Respondent made a claim under his Allstate Insurance Company ("Allstate") policy for all of the stolen items, except the diamond as it was insured by another carrier. On or about February 25, 1999, Allstate sent a letter to Respondent and his estranged wife, Lauren, who were co-insureds under the policy, requesting that they submit proof of their loss to support their claim. Neither Respondent nor Lauren retained any receipts for the stolen items and therefore no documents were submitted to Allstate to substantiate the value of the loss.
3. On or about March 10, 1999, Respondent spoke with Lauren over the telephone and during their conversation, Lauren informed Respondent that: (1) Allstate called her, but she had not yet returned their call; (2) she recalled where she had purchased the paintings that had been stolen and the approximate amounts she had paid for them; and, (3) she was going to tell Allstate that the value of the pictures was $2,000 unless Respondent advised her otherwise.
4. During their March 10, 1999, conversation, Respondent told Lauren that: (1) he did not want Lauren to tell Allstate that the value of the stolen paintings was $2,000; (2) Lauren should tell Allstate that she did not remember what she had paid for the paintings; and (3) Lauren should just be "really vague" when talking with Allstate.
5. On or about March 15, 1999, Allstate took Respondent’s taped recorded statement in which he confirmed that he did not personally purchase the stolen items, did not know their value, and had no supporting documentation or photographs of the stolen items. Respondent informed Allstate that Lauren had purchased the paintings and that Allstate should speak with her about their value.
6. On or about June 1, 1999, Respondent submitted to an Examination Under Oath ("EUO") taken by Allstate’s coverage counsel. Respondent confirmed that he did not have any documentation for the stolen items, that he did not know their value, and that the estimated $24,900 value he placed on the items was a "guess."
7. On or about August 19, 1999, Lauren submitted to an EUO taken by Allstate’s coverage counsel. Lauren testified that she purchased all five of the stolen paintings and that their value was $1,000 each for the two larger paintings and that the value of the smaller paintings was between $50 - $500 each. Lauren also testified that she personally purchased the two jackets and that one was worth $150 and the other was worth $75.
8. On or about August 30, 1999, Allstate denied Respondent’s claim.
9. LEGAL CONCLUSION: By telling Lauren: (1) that he did not want her to inform Allstate that the value of the stolen paintings was $2,000, (2) to inform Allstate that she did not recall where she purchased the paintings, and (3) that she should just be "really vague" when conversing with Allstate, Respondent advised Lauren to present misleading information in support of their insurance claim and thereby advised the violation of a law, in wilful violation of rule 3-210, Rules of Professional Conduct.
COUNT TWO: Business and Professions Code, section 6068(o)(3) [Failure to Report Judicial Sanctions]
10. The allegations of paragraphs 1 through 8 are incorporated by reference.
11. In or about July 2000, Respondent filed a lawsuit in the Los Angeles Superior Court against Allstate and its adjuster for Breach of the Implied Covenant of Good Faith and Fair Dealing and Declaratory Relief ("the Allstate lawsuit"). The Allstate lawsuit was then removed to the United States District Court, Central District of California. Both Respondent and Allstate moved for summary judgment. The District Court granted Allstate’s motion for summary judgment on the issue of breach of the implied covenant of good faith and fair dealing and declaratory relief.
12. On or about July 13, 2001, Respondent filed a motion for reconsideration of the court’s ruling on Allstate’s motion for summary judgment. On or about August 21, 2001, Allstate filed a motion for Rule 11 sanctions on the basis that Respondent’s motion for reconsideration was neither grounded in fact nor warranted by existing law.
13. On or about December 13, 2001, the District court granted Allstate’s motion for Rule 11 Sanctions and imposed sanctions against Respondent and his counsel in the amount of $2,990 to be paid to Allstate. Respondent paid the sanctions to Allstate.
14. Respondent did not report to the State Bar that sanctions had been imposed on him.
15. LEGAL CONCLUSION: By failing to report to the State Bar, in writing, within 30 days of the time Respondent had knowledge of the imposition of Rule 11 sanctions in the amount of $2,990, Respondent wilfully violated Business and Professions Code, section 6068(0)(3).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was February 21, 2006.
MITIGATING CIRCUMSTANCES, continued from page 3.
Family Problems
On September 20, 1997, Respondent separated from his now ex-wife, Lauren. Their separation was extremely contentious and involved a bitter custody dispute that lasted from 1997 through 2003, as well as Lauren’s report to law enforcement that Respondent had committed spousal rape (in 1997) and had molested their daughters (in late 1998). As a result of the allegations, Respondent’s children were temporarily placed in a foster home by the Department of Children and Family Services. No charges were filed against Respondent, Respondent vehemently denies Lauren’s allegations, and after the children were released from foster care, Respondent received sole custody of the children. At the time of the misconduct, Respondent was negotiating with Lauren as to custody fights. Presently, Respondent and Lauren share joint custody of the children.
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards
The Supreme court gives the Standards "great weight," and Will reject a recommendation consistent with the Standards only where the Court entertains "grave doubts" as to its propriety. (In re Naney (1990) 51 Cal.3d 186, 190; In re Silverton (2005) 36 Cal. 4t~ 81, 91-92.) Although the Standards are not mandatory, it is well established that the Standards may be deviated from only when there is a compelling, well-defined reason to do so. See Aronin v. State Bar (1990) 52 Cal.3d 276, 291; Bates v. State Bar (1990) 51 Cal.3d 1056, 1060, fn. 2.
Standard 2.6 - Culpability of a member of a violation of Business and Professions Code section 6068 shall result in disbarment or suspension depending on the gravity of the offense or harm, if any, to the victim.
Standard 2.10 - Culpability of a member of a violation of a wilful violation of any Rules of
Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim.
Case Law
In In the Matter of Fandey (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 767, Fandey received 18 months stayed suspension, 18 months probation, and six months actual suspension for aiding his client’s flight from California so that his client could avoid complying with a child support order, in violation of Business and Professions Code, sections 6068(c) and 6106, as well as rule 7101 (now rule 3-210), Rules of Professional Conduct.
The Review Department found that Fandey’s knowledge of the child support order, of his client’s violation of the order by stopping payments prior to the move, and of his client’s express purpose in moving, coupled with affirmative help he provided the client in moving, demonstrated that Fandey acted in conscious disregard of his obligation to uphold the law. As such, the Review Department found that Fandey’s misconduct involved moral turpitude in violation of section 6106.
Respondent is not culpable of moral turpitude in the instant matter. Although the Respondent advised his estranged spouse, Lauren, to inform Allstate that she did not remember what she had paid for the paintings and to be vague when speaking with Allstate, Respondent ultimately referred Allstate to Lauren as the one with superior knowledge of the value of the stolen items. Furthermore, and because there were no receipts for the stolen items, Respondent submitted the Sworn Proof of Loss to carder with a notation that the value of the stolen items was an "estimate" and when testifying in his Examination Under Oath, he stated that the estimated value he placed on the items was a "guess."
In light of Respondent’s 22-years in practice without prior discipline, his family difficulties, and the fact that his misconduct was less serious than that found in Fandey, the recommended discipline of two years stayed suspension and three years probation is just and reasonable and serves the purposes of the disciplinary process.
SIGNATURE OF THE PARTIES
Case Number(s): 02-O-14891
In the Matter of: Marc S. Feldman
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: Marc S. Feldman
Date: February 16, 2006
Respondent’s Counsel: Raymond Dion
Date: February 21, 2006
Deputy Trial Counsel: Lee Ann Kern
Date: February 24, 2006
Case Number(s): 02-O-14891
In the Matter of: Marc S. Feldman
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any, is GRANTED without prejudice, and:
checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 135(b), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 953(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Platel
Date: March 3, 2006
[Rule 62(b); 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 March 3, 2006, 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:
RAYMOND DION
KOLETSKY MANCINI ET AL
3460 WILSHIRE BLVD 8FL
LOS ANGELES, CA 90010-2228
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 3, 2006.
Signed by:
Angela Owens-Carpenter
Case Administrator
State Bar Court