Case Number(s): 03-O-01251-RMT; 03-O-02108-RMT
In the Matter of: Robert Shayne Figgins, Bar # 157941, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Brooke A. Schafer, Bar # 194824
Counsel for Respondent: JoAnne Earls Robbins, Bar # 82352
Submitted to: Program Judge State Bar Court Clerk’s Office Los Angeles
Filed: October 21, 2008
<<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 May 20, 1992
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. However, except as otherwise provided in rule 804.5(c) of the Rules of Procedure, if Respondent is not accepted into the Alternative Discipline Program, this stipulation will be rejected and will not be binding on the Respondent or the State Bar.
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, except for Probation Revocation proceedings. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 15 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. 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.
7. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7 and will pay timely any disciplinary costs imposed in this proceeding.
8.
Additional aggravating circumstances: .
Additional mitigating circumstances:
SIGNATURE OF THE PARTIES
Case Number(s): 03-O-01251-RMT, ET AL.
In the Matter of: Robert Shayne Figgins
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 and Conclusions of Law.
Respondent enters into this stipulation as a condition of his/her participation in the Pilot Program, Respondent understands that he/she must abide by all terms and conditions of Respondent’s Pilot Program Contract.
If the Respondent is not accepted into the Pilot Program or does not sign the Pilot Program contract, this Stipulation will be rejected and will not be binding on Respondent or the State Bar.
If the Respondent is accepted into the Pilot Program, upon Respondent’s successful completion of or termination from the Program, this Stipulation will be filed and the specified level of discipline for successful completion of or termination from the Program as set forth in the State Bar Court’s Statement Re: Discipline shall be imposed or recommended to the Supreme Court.
Signed by:
Respondent: Robert Shayne Figgins
Date: 08/04/05
Respondent’s Counsel: JoAnne Earls Robbins
Date: August 4, 2005
Deputy Trial Counsel: Brooke A. Schafer
Date: August 4, 2005
Case Number(s): 03-O-01251-RMT, ET AL.
In the Matter of: Robert Shayne Figgins
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 stipulation as to facts and conclusions of law is APPROVED.
<<not>> checked. The stipulated facts and conclusions of law is APPROVED AS MODIFIED as set forth below.
<<not>> checked. All court dates in the Hearing Department 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; or 3) Respondent is not accepted for participation in the Program or does not sign the Program Contract. (See rule 135(b) and 802(b), Rules of Procedure.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 11/10/05
STIPULATED FACTS and CONCLUSIONS OF LAW
STATE BAR COURT PILOT PROGRAM
IN THE MATTER OF: ROBERT SHAYNE FIGGINS Bar no. 157941
CASE NUMBERS: 03-0-1251-RMT; 03-O-2108-RMT
The parties hereby stipulate that the following facts and conclusions of law are true.
JURISDICTION
Respondent was admitted to the practice of law in the State of California on May 20, 1992, and has been a member of the State Bar at all times relevant hereto.
FACTS AND CONCLUSIONS OF LAW
Case no. 03-O-1251 (c/w Laura Christa)
Background
1. In March 1999 the law firm of Stephan Oringher Richman & Theodora ("Stephan Oringher") began to represent AutoNation, Inc. ("AutoNation") in lawsuits filed against AutoNation (and its subsidiaries) in California. Respondent was an attorney employed by Stephan Oringher to represent AutoNation in a number of those actions at all time pertinent hereto, except as expressly specified below.
I. The Baker matter
2. In June 2000 Respondent represented AutoNation in an action in Alameda County Small Claims Court entitled Baker v. AutoNation. Respondent was employed to set aside a default judgment taken against AutoNation.
3. Respondent filed a motion to set aside the default judgment, and the hearing to vacate the default judgment was set for August 7, 2000. Respondent informed AutoNation of the hearing date. On August 4, 2000, however, Respondent requested the clerk of court in the Baker case to take the motion to vacate off calendar. Respondent failed to notify AutoNation or the law firm that he was taking the motion to vacate off calendar, and never requested permission from his client to take the motion to vacate off calendar. Respondent did, however, inform the plaintiffs that he had requested the hearing be taken off calendar.
4. On August 30, 2000, Respondent wrote to general counsel for AutoNation, falsely stating that the court had denied the motion to set aside the default judgment. He did not tell him that the motion had been taken off calendar. Moreover, Respondent billed AutoNation for appearing at the hearing on the motion to vacate - a hearing that never took place.
Conclusions of law - the Baker matter
-By failing to perform legal services of any value in the Baker matter and by taking the motion to vacate the default judgment off calendar without notifying his client, Respondent intentionally failed to perform legal services with competence in wilful violation of Rule of Professional Conduct, rule 3-110(A).
II. The Corbett matter
5. In January 2001 Respondent represented Bank of America and AutoNation in a lawsuit filed in Alameda Superior Court entitled Corbett v. Bank of America and Hayward Dodge (the "Corbett matter"). Hayward Dodge was a subsidiary of AutoNation.
6. In December 2001 the court ordered Hayward Dodge to file an answer to Corbett’s second amended complaint within fifteen days. Respondent knew of the court’s order but failed to file an answer within fifteen days.
7. Corbett served written discovery on Hayward Dodge and Bank of America by properly serving Respondent. Instead of responding to the discovery or sending it to his clients for responses, Respondent sought an extension in which to respond. Corbett extended the time to respond to February 8, 2001. However, Respondent failed to submit the discovery responses by that date.
8. Respondent’s failure to respond ultimately resulted in a waiver of all objections to the interrogatories and document requests, many of which would have otherwise been objectionable due to privileges. Respondent failed to inform AutoNation about the service of discovery or the resulting waivers of objections for not answering.
9. In a February 2001 billing statement Respondent represented to AutoNation that he had prepared objections to the discovery, which were never served.
10. Depositions of AutoNation employees were properly scheduled for April 6, 2001. Respondent failed to appear on April 6, 2001, for his client’s depositions, thereby waiving further objections in connection with the deposition and production of documents to be produced at the deposition. Respondent never informed his client, AutoNation, about his failure to appear at the deposition.
11. Respondent never disclosed to AutoNation his failure to respond to discovery, the resulting waivers of objections to discovery, his failure to appear at the deposition or his failure to timely file an answer to the second amended complaint.
Conclusions of Law - the Corbett matter
-By not responding to discovery, by not disclosing to his clients the resulting waivers of objections, by not appearing at the deposition, and by failing to timely file an answer to the second amended complaint, Respondent intentionally failed to perform services with competence, in wilful violation of Rules of Professional Conduct, rule 3-110(A).
-By concealing from, and misrepresenting to, AutoNation the status of the Corbett matter, Respondent committed acts of moral turpitude in wilful violation of Business and Professions Code section 6106.
III. The Daykin matter
12. In February 2001 Respondent represented Manhattan Ford (a subsidiary of AutoNation), in a lawsuit entitled Daykin v. Manhattan Ford.
13. Respondent failed to appear for a status conference on February 7, 2000 in the Daykin action. Consequently, the court ordered Respondent to appear at an order to show cause (OSC) hearing re: sanctions, scheduled for February 29, 2000. Respondent had proper notice of this February 29, 2000, OSC hearing.
14. In his billing statement to AutoNation, Respondent did not make reference to the status conference on February 7, 2000. Instead, Respondent misrepresented the February 29, 2000, OSC hearing regarding sanctions as a trial setting conference.
15. The next status conference was set for August 8, 2000. Respondent did not appear, but opposing counsel Ralph Larsen represented to the court that the parties had settled the case. Respondent did not inform AutoNation that the case had been settled, nor did he have authority to settle the case on his own.
16. On September 8, 2000, the court presided over an OSC hearing as to why sanctions or dismissal of the entire action should not be imposed. Respondent did not appear at the hearing, even though he had received proper notice. Nevertheless, Respondent represented to AutoNation that he had appeared at a status conference on September 8, 2000, and he billed for that alleged appearance. He did not disclose to AutoNation that the hearing was in fact an OSC re: sanctions. Respondent also failed to appear at an October 6, 2000, court hearing, resulting in the case being dismissed.
Conclusions of law - Daykin matter
-By repeatedly failing to appear at court ordered hearings and by not informing his client that the case had settled, Respondent repeatedly failed to perform legal services with competence in wilful violation of Rule of Professional Conduct 3-110(A).
-By concealing and misrepresenting to AutoNation the status of the Daykin action in order to charge for work that he did not do, and by settling the case without authority, Respondent committed an act involving moral turpitude, dishonesty or corruption in wilful violation of Business and Professions Code section 6106.
IV. The Giraldo matter
17. Respondent represented AutoNation in a case filed in the Los Angeles Superior Court entitled Giraldo v. AutoNation ("the Giraldo action"). This case involved the purchase of a 1994 Chevrolet Corvette in February of 1998 by Giraldo, in which Giraldo alleged numerous defects that AutoNation failed to fix after several attempts.
18. Subsequently, at the court’s urging, the parties agreed to submit to binding arbitration.
19. The decision of the arbitrator was filed on February 22, 2001. Giraldo prevailed. At the arbitration hearing, Respondent did not call any witnesses to defend his client, even though on his witness list dated September 7, 2000, he listed five witnesses, three of whom were percipient witnesses and two of whom were custodian of records witnesses. Moreover, prior to the arbitration, Respondent explained to AutoNation that there were material questions of fact to be adjudicated and that Respondent he intended to call five witnesses. However, Respondent never conferred with AutoNation concerning the arbitration hearing after early September 2000, and he never informed AutoNation that he had decided not to call any witnesses. As there were material questions of fact to be decided, it was gross negligence not to call any witnesses on AutoNation’s behalf, or to fail to get client approval for not doing so.
Conclusion of law - Giraldo matter
-By failing to call witnesses at the arbitration and by failing to notify his client or to seek their approval beforehand not to call any witnesses despite there being material questions of fact in issue, Respondent recklessly failed to perform legal services with competence in wilful violation of Rule of Professional Conduct 3-110(A).
V. The Labib matter
20. Respondent represented AutoNation in a case filed in the Orange County Small Claims Court entitled Labib v. AutoNation, ("the Labib action").
21. On November 20, 2000, Respondent wrote to AutoNation to explain that a motion to vacate a judgment against AutoNation had to be filed by November 22, 2000. Nevertheless, Respondent did not file the motion to set aside the judgment until November 27, 2000, after the November 22, 2000, deadline.
22. After Respondent filed the untimely motion to vacate, Respondent sent a letter to AutoNation on December 22, 2000 reporting that he had appeared at a hearing on the motion to vacate a judgment, but that the motion was denied by the court. In fact, however, there never was any such hearing in the Labib action.
Conclusions of law - Labib matter
-By concealing information from AutoNation with regard to Respondent’s failure to file the motion to vacate judgment on time, and by actively misrepresenting to his client that the motion had been denied after a hearing, and by misrepresenting that there had been a hearing when in fact there had not, Respondent committed acts involving moral turpitude, in wilful violation of Business and Professions Code section 6106.
VI. The Ortiz matter
23. Respondent represented AutoNation and its subsidiary Magic Ford in a case filed in the Los Angeles Municipal Court entitled Ortiz v. Magic Ford ("the Ortiz action"). Magic Ford had been served with discovery requests, which Respondent did nothing to answer. He failed to appear at a motion to compel responses scheduled for July 24, 2001, which resulted in sanctions of $485.00 and an order to respond to discovery without objections. Respondent did nothing to satisfy that order - at no time did he respond to the discovery, pay the sanctions or notify his client of the discovery order or imposition of sanctions.
24. In November 2001 AutoNation secured new counsel to take over the matter from the Stephan Oringher law firm and from Respondent. Respondent informed AutoNation’s new counsel, Elizabeth Kolar, that there was "nothing going on" in the Ortiz action and that he anticipated the court dismissing the suit soon for failure to prosecute.
25. Only after Respondent transferred the file to Ms. Kolar did she discovery from the file that Respondent had not appeared at a July 24, 2001, motion to compel responses to discovery and that the court imposed $485.00 in sanctions and an order for Respondent to respond to discovery without objections. In addition, Respondent failed to inform Elizabeth Kolar that a second motion to compel responses was filed on December 4, 2001, which requested terminating sanctions. Elizabeth Kolar learned of this second motion during a telephone conversation with Ortiz’s counsel.
26. At no time did Respondent inform Magic Ford that discovery had been propounded or that he had not complied, or that there had been a motion to compel filed.
27. Respondent’s repeated failure to respond to discovery, failure to attend the hearing on the motion to compel, and the imposition of sanctions, were never reported by Respondent to AutoNation or to Magic Ford.
Conclusions of law - Ortiz matter
-By failing to inform his client about plaintiffs discovery requests, by failing to arrange for completion of those discovery requests, by failing to appear at a hearing regarding discovery sanctions, by failing to inform his client that sanctions had been imposed for failure to comply with discovery and by failing to assist subsequent counsel by providing needed information so that additional harm to the client would be avoided, Respondent intentionally failed to perform legal services with competence, in wilful violation of Rules of Professional Conduct, rule 3-110(A).
VII. The Robelo matter
31. Respondent represented AutoNation in a case filed in the County of Alameda Superior Court entitled Robelo v. Hayward Nissan ("the Robelo action"). Hayward Nissan was a subsidiary of AutoNation.
32. On January 28, 2000, Respondent wrote to plaintiff’s attorney, Eugene Franklin, to request an extension until February 17, 2000, to respond to the discovery plaintiff had propounded. Respondent had failed to respond to discovery by its original January 4, 2000, due date, but did not seek an extension until after the this date had passed.
33. On March 15, 2000, Franklin informed Respondent that his office had not received Hayward Nissan’s responses to discovery despite the extension to February 17, 2000. Plaintiff moved to compel responses to the discovery but Respondent managed to get an additional extension until May 30, 2000.
34. On June 8, 2000, Mr. Franklin wrote to Respondent again stating his understanding that Respondent’s client would provide further responses to Luis Robelo’s request for discovery by the end of May of 2000, but that his office had not yet received the responses to the discovery.
35. On June 12, 2000, Respondent wrote to Franklin apologizing for failing to provide responses to discovery by the due date and stated the answers would be provided by June 26, 2000. Respondent failed to provide responses by June 26, 2000.
36. On July 6, 2000, Franklin wrote to Respondent stating that he had not received the promised responses. On July 25, 2000, Franklin wrote to Respondent to confirm the telephone conference wherein Franklin agreed to extend the time for Respondent to respond to discovery until August 7, 2000. Respondent again failed to respond to discovery by August 7, 2000.
37. On August 23, 2000, Franklin wrote to Respondent stating that he intended to move forward with a motion to compel further responses. On September 26, 2000, the court granted sanctions in the amount of $523.00 against Respondent and required Respondent to comply with the order compelling responses by August 10, 2000. This motion was unopposed by Respondent and Respondent still failed to submit responses to discovery.
38. At no time did Respondent inform his client of the discovery that plaintiff had propounded, nor did he inform his client about the motions to compel or the resulting sanctions order.
39. In September 2002 the amount of improper legal fees billed by Respondent in these matters was determined by the relevant parties to be approximately $117,000.00. Stephan Oringher has reimbursed AutoNation for that amount.
Conclusions of law - Robelo matter
-By repeatedly failing to ensure that his client knew of the discovery requests so that they could provide answers by the original due date, by waiting until after the original due date to seek the first extension of time, by repeatedly failing to provide responses to discovery by the extended due dates, and by failing to keep his client informed as to the motions to compel and resulting sanctions, Respondent intentionally failed to perform legal services with competence, in wilful violation of Rules of Professional Conduct, rule 3-110(A).
Case no. 03-0-2108 (c/w Melissa Immel)
40. The facts and conclusions of case no. 03-O-1251, set forth above, are incorporated herein.
41. On January 1, 2002, the law firm of Stephan Oringher was retained by International Paper to represent it in a personal injury matter entitled Richardson v. International Paper. The law firm assigned Respondent to the case. When Respondent left Stephan Oringher in June 2002 he took the case with him with International Paper’s consent.
42. From December 2002 to March 2003, legal counsel for International Paper, John Hartje, left numerous telephone and e-mail messages for Respondent asking for status updates on the case. Additionally, Hartje sent numerous letters to Respondent asking the same thing. Although Respondent received all of these letters and messages he failed to respond to any of them.
43. In March 2003, after having received no communication from Respondent for several months, International Paper notified Respondent that he was being fired and that its new attorney was Melissa Immel. In its letter to Respondent, International Paper requested that Respondent cooperate with Immel by forwarding the case file to her. Respondent failed to respond in any way.
44. On April 2, 2003, Immel sent Respondent a certified letter asking that he forward the client file to her and that he sign an enclosed substitution of attorney form. Respondent received the letter but failed to respond in any way. On April 10, 2003, Immel followed up her letter by telephoning Respondent, asking when she would be receiving the executed substitution form and the file. Respondent e-mailed a response the same day, telling Immel he would be forwarding the requesting material the next day. However, Respondent failed to forward the file or to execute the substitution of attorney.
45. Between April 15 and May 12, 2003, Immel left numerous messages and wrote several letters and e-mails to Respondent asking that he cooperate by turning over the client file and executing a substitution of attorney, especially since the July 2003 trial date was approaching. Respondent received these messages but failed to respond. Additionally, Respondent never notified International Paper or Immel of the July 2003 trial date, even though it had been set during his period of representation. Immel found out about the trial date on her own.
46. In late May 2003 the court allowed Immel to undertake representation of International Paper in the ongoing Richardson litigation without a signed substitution of attorney. Respondent never signed a substitution of attorney, and he did not turn over the client file to Immel until he was contacted by the State Bar and asked to do so.
Conclusions of law - case no. 03-O-2108
-By failing to communicate with International Paper despite their repeated attempts for status updates, by failing to cooperate in the substitution of attorneys by executing a substitution of attorney, by failing to notify his client that trial was set for July 2003, and by effectively abandoning International Paper after December 1, 2002, without informing his client or the court of his intent to withdraw from the case, Respondent intentionally failed to perform legal services with competence, in wilful violation of Rules of Professional Conduct, rule 3-110(A).
-By failing to promptly release the client file, Respondent wilfully failed, upon termination of employment, to release promptly to a client, at the request of the client, all the client papers, in wilful violation of Rules of Professional Conduct, rule 3-700(D)(1).
ADDITIONAL CONDITION OF ADP PARTICIPATION
-Should Respondent’s former employer Stephan Oringher (or its insurer) obtain a judgment against Respondent during the participation period related to reimbursement for legal fees it disgorged to Auto Nation, a condition of Respondent’s ADP compliance shall be that he make a good faith effort to comply with any such civil judgment during the participation period.
-Respondent shall provide personal financial information, including without limitation copies of state and federal tax returns and appropriate declarations, that the State Bar (including State Bar Court, Office of Probation, or CSF) deems necessary to determine a good faith compliance with this section.
DISMISSALS
The parties respectfully request that the court dismiss the following charges in the interests of justice:
Case no. 03-O-1251
Count Two: failure to inform client of significant development
Count Five: failure to inform client of significant development
Count Eight: failure to inform client of significant development
Count Eleven: failure to inform client of significant development
Count Twelve: failure to perform with competence
Count Thirteen: failure to inform client of significant development
Count Fourteen: moral turpitude
Count Fifteen: failure to perform with competence
Count Sixteen: failure to inform client of significant development
Count Nineteen: failure to inform client of significant development
Count Twenty-One: failure to inform client of significant development
Case no. 03-O-2108
Count Two: failure to respond to client inquiries and failure to inform client of significant development
Count Four: improper withdrawal from representation
PENDING PROCEEDINGS
The written disclosure referred to on page 1, section A(6), was provided in writing dated May 13, 2005.
[Rule 62(b), Rules Proc.; 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 10, 2005, I deposited a true copy of the following document(s):
STATEMENT OF ALTERNATIVE DISPOSITION AND ORDERS;
STIPULATION RE FACTS AND CONCLUSIONS OF LAW;
ORDER;
CONTRACT AND WAIVER FOR PARTICIPANT IN THE STATE BAR COURT’S ALTERNATIVE DISCIPLINE PROGRAM
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:
JOANNE EARLS ROBBINS
KARPMAN & ASSOCIATES
9200 SUNSET BLVD PH #7
LOS ANGELES, CA 90069
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Brooke Schafer, Enforcement, Los Angeles
Terrie Goldade, Supervising Attorney Office of Probation, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 10, 2005.
Signed by:
Milagro del R. Salmeron
Case Administrator
State Bar Court