State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
STAYED SUSPENSION; NO ACTUAL
SUSPENSION
Case Number(s): 03-O-03162-RAH, 03-O-05037-RAH
In the Matter of: Michael A. Lotta, Bar # 94301, A Member
of the State Bar of California, (Respondent).
Counsel For The State Bar: Joseph R. Carlucci, Bar # 172304
Counsel for Respondent: David A. Clare, Bar # 44971
Submitted to: Settlement Judge – State Bar Court Clerk’s
Office Los Angeles.
Filed: November 18, 2005.
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
16, 1980.
2.
The parties agree to be bound by the factual stipulations contained
herein even if conclusions of law or disposition are rejected or changed by the
Supreme Court.
3.
All investigations or proceedings listed by case number in the caption
of this stipulation are entirely resolved by this stipulation and are deemed
consolidated. Dismissed charge(s)/count(s) are listed under
"Dismissals." The stipulation consists of 12 pages, not including
the order.
4.
A statement of acts or omissions acknowledged by Respondent as cause or
causes for discipline is included under "Facts."
5.
Conclusions of law, drawn from and specifically referring to the facts
are also included under "Conclusions of Law".
6.
The parties must include supporting authority for the recommended level
of discipline under the heading "Supporting Authority."
7.
No more than 30 days prior to the filing of this stipulation, Respondent
has been advised in writing of any pending investigation/proceeding not
resolved by this stipulation, except for criminal investigations.
8.
Payment of Disciplinary Costs-Respondent acknowledges the provisions of
Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
<<not>>
checked. Costs are added to membership fee for calendar year following effective
date of discipline.
checked. Costs
are to be paid in equal amounts prior to February 1 for the following
membership years: 2007, 2008. (Hardship, special circumstances or other good
cause per rule 282, Rules of Procedure.)
<<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.
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 [see standard 1.2(f)].
checked. (a) State Bar
Court case # of prior case 00-O-15609 et al.
checked. (b) Date prior
discipline effective December 4, 2004
checked. (c) Rules of
Professional Conduct/ State Bar Act violations: RPC Rules 3-110(A), 3-510,
3-700(A)(1), 3-700(D)(1), 4-100(B)(1), 4-100(B)(4) Business and Professions
Code 6068(m), 6106
checked. (d) Degree of
prior discipline 60 Days Actual Suspension, Two Years Stayed Suspension and
Three Years Probation
<<not>> checked. (e) If
Respondent has two or more incidents of prior discipline, use space provided
below or a separate attachment entitled “Prior Discipline”. .
<<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.
<<not>> 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.
<<not>> 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.
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) 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. (10) 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. (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:
D. Discipline:
checked. (1) Stayed Suspension:
checked.
(a) Respondent must be suspended from the practice of law for a
period of Six (6) months.
<<not>>
checked. i. and until Respondent shows proof satisfactory to the State Bar
Court of rehabilitation and present fitness to practice and present learning
and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney
Sanctions for Professional Misconduct.
<<not>>
checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
<<not>>
checked. iii. and until Respondent does the following: .
The
above-referenced suspension is stayed.
<<not>> checked. (2) Probation:
Respondent must be placed on probation for a period of one (1) year, which will
commence upon the effective date of the Supreme Court order in this matter.
(See rule 953, California Rules of Court.)
E. Additional Conditions of Probation:
checked. (1) During the probation
period, Respondent must comply with the provisions of the State Bar Act and
Rules of Professional Conduct.
checked. (2) Within ten (10) days
of any change, Respondent must report to the Membership Records Office of the
State Bar and to the Office of Probation of the State Bar of California
("Office of Probation"), all changes of information, including
current office address and telephone number, or other address for State Bar
purposes, as prescribed by section 6002.1 of the Business and Professions Code.
checked. (3) Within thirty (30)
days from the effective date of discipline, Respondent must contact the Office
of Probation and schedule a meeting with Respondent's assigned probation deputy
to discuss these terms and conditions of probation. Upon the direction of the
Office of Probation, Respondent must meet with the probation deputy either
in-person or by telephone. During the period of probation, Respondent must
promptly meet with the probation deputy as directed and upon request.
checked. (4) Respondent must
submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10
of the period of probation. Under penalty
of perjury, Respondent must state whether Respondent has complied with the
State Bar Act, the Rules of Professional Conduct, and all conditions of
probation during the preceding calendar quarter. Respondent must also state
whether there are any proceedings pending against him or her in the State Bar
Court and if so, the case number and current status of that proceeding. If the
first report would cover less than 30 days, that report must be submitted on
the next quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same
information, is due no earlier than twenty (20) days before the last day of the
period of probation and no later than the last day of probation.
<<not>> checked. (5) Respondent
must be assigned a probation monitor. Respondent must promptly review the terms
and conditions of probation with the probation monitor to establish a manner
and schedule of compliance. During the period of probation, Respondent must
furnish to the monitor such reports as may be requested, in addition to the
quarterly reports required to be submitted to the Office of Probation.
Respondent must cooperate fully with the probation monitor.
checked. (6) Subject to assertion
of applicable privileges, Respondent must answer fully, promptly and truthfully
any inquiries of the Office of Probation and any probation monitor assigned
under these conditions which are directed to Respondent personally or in
writing relating to whether Respondent is complying or has complied with the
probation conditions.
checked. (7) Within one (1) year
of the effective date of the discipline herein, Respondent must provide to the
Office of Probation satisfactory proof of attendance at a session of the Ethics
School, and passage of the test given at the end of that session.
<<not>> checked. No Ethics
School recommended. Reason: .
<<not>> checked. (8) Respondent
must comply with all conditions of probation imposed in the underlying criminal
matter and must so declare under penalty of perjury in conjunction with any
quarterly report to be filed with the Office of Probation.
<<not>> checked. (9) The
following conditions are attached hereto and incorporated:
<<not>>
checked. Substance Abuse Conditions.
<<not>>
checked. Law Office Management Conditions.
<<not>>
checked. Medical Conditions.
<<not>>
checked. Financial Conditions.
F. Other Conditions Negotiated by the Parties:
<<not>> checked. (1) Multistate
Professional Responsibility Examination: Respondent must provide proof of
passage of the Multistate Professional Responsibility Examination ("MPRE"),
administered by the National Conference of Bar Examiners, to the Office of
Probation within one year. Failure to pass the MPRE results in actual
suspension without further hearing until passage. But see rule 9.10(b),
California Rules of Court, and rule 5.162(A) & (E), Rules of Procedure.
checked. No MPRE
recommended. Reason: Respondent ordered to take and pass MPRE as condition of
probation in Supreme Court case No. S127210 entered on November 4, 2004
<<not>> checked. (2) Other
Conditions: .
Attachment language (if any): .
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION
IN THE MATTER OF: Michael A.
Lotta, State Bar No. 94301
STATE BAR COURT CASE NUMBER: 03-O-03162-RAH,
03-O-05037-RAH
FACTS AND
CONCLUSIONS OF LAW.
Respondent
Michael A. Lotta ("Lotta") admits that the following facts are true
and that he is culpable of a violation of Rules of Professional Conduct, rule
4-100(B)(4).
FACTS
On February
25, 2000, Barbara J. Lilly ("Lilly") employed Respondent to represent
her in two personal injury matters, the first of which arose from a rear-end
collision on February 19, 2000 and the other which arose from a rear-end
collision on February 21, 2000.
Lilly
received medical treatment and incurred medical expenses from two health care providers,
David Dauer, D.C. ("Dauer’) and Krynen Chiropractic ("Krynen"),
for the injuries she sustained in the two accidents.
Lilly made a
claim for and received medical payment coverage through her automobile liability
policy with Mercury Insurance Company ("Mercury"). Lilly also sought
and received additional payment for her medical expenses through her health
insurance policy with Aetna U.S. Healthcare ("Aetna"). Both
companies’ payments to were subject to reimbursement through liens asserted on
Lilly’s personal injury cases.
Respondent
timely filed separate personal injury lawsuits on behalf of Lilly concerning the
two accidents. The first filed lawsuit went to trial and resulted in a defense
verdict. In September 2002, Respondent settled the second lawsuit with Lilly’s
consent for $11,000. Respondent received an $11,000 settlement check from 21st
Century Insurance Company made payable to Lilly and Respondent. On November 8,
2002, Respondent deposited Lilly’s settlement check into his client trust
account at Farmers and Merchant Bank, account no. 08-048738 ("CTA").
Respondent
informed Lilly that this costs and attorney’s fees totaled $7,569.69. Respondent
also informed Lilly that three medical liens on the settlement totaled more
than $14,000, which exceeded $3,430.31, the remaining amount of settlement
funds once Respondent’s fees and costs were subtracted.
Though
Respondent negotiated with Mercury a reduction of its lien from $5,000 to $1,822,
he did not disburse any of Lilly’s funds to Mercury. Respondent was unable to negotiate
a reduction with the two remaining lienholders, the Rawlings Company
("Rawlings"), which held the Aetna’s lien in the amount of $7,436.97,
and Dauer, whose lien amounted to $1,982.81.
On June 16,
2003 and July 3, 2003, Lilly sent letters to Respondent informing him that she
was receiving past due notices from Dauer regarding his lien, and that Mercury
had advised her that it was turning its lien over to its legal department for
collection. In each letter, Lilly requested that Respondent negotiate
reductions in, or otherwise resolve, the liens and pay the lienholders from
Lilly’s funds held in Respondent’s CTA.
On August 19,
2004, after Lilly had complained to the State Bar regarding Respondent’s failure
to disburse her settlement funds to her medical providers, Respondent filed
an
interpleader action for the judicial division of Lilly’s settlement funds among
Lilly, Mercury, Rawlings, Dauer and Kryner.
Between
November 8, 2002 and August 19, 2004, Respondent did not take any meaningful
steps to negotiate reductions with Lilly’s lienholders or otherwise disburse
any of Lilly’s funds held in Respondent’s CTA.
CONCLUSIONS
OF LAW
By failing to
take any meaningful steps to disburse Lilly’s settlement funds held in his CTA
from November 8, 2002 and August 19, 2004, as requested by Lilly, Respondent
failed to promptly pay client funds as requested by his client in willful
violation of Rules of Professional Conduct, rule 4-100(B)(4).
PENDING
PROCEEDINGS.
The
disclosure date referred to, on page one, paragraph A.(7), was July 7, 2005. A
second disclosure letter was sent to Respondent on September 19, 2005. A third
disclosure letter was sent to Respondent on October 28, 2005.
DISMISSALS.
The parties respectfully
request the Court to dismiss the following alleged violations in the interest of
justice:
Case No.: 03-O-03162,
Count: One, Alleged Violation: Rules of Professional Conduct, rule 3-110(A)
Case No.: 03-O-05037,
Count: Three, Alleged Violation: Rules of Professional Conduct, rule 4-100(B)(4)
Case No.: 05-O-05037,
Count: Four, Alleged Violation: Rules of Professional Conduct, role 3-700(D)(1)
AUTHORITIES
SUPPORTING DISCIPLINE.
Standard
1.2(b)(i), Standards for Attorney Sanctions for Professional Misconduct.
Standard
2.2(b), Standards for Attorney Sanctions for Professional Misconduct.
In the Matter
of Lazarus (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 387.
SIGNATURE OF THE PARTIES
Case Number(s): 03-O-03162; 03-O-05037
In the Matter of: Michael A. Lotta
By their
signatures below, the parties and their counsel, as applicable, signify their
agreement with each of the recitation and each of the terms and conditions of
this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: Michael
A. Lotta
Date: November
8, 2005
Respondent’s
Counsel: David A. Clake
Date: November
4, 2005
Deputy Trial
Counsel: Joseph R. Carlucci
Date: November
9, 2005
STAYED SUSPENSION ORDER
Case Number(s): 03-O-03162; 03-O-05037-RAH
In the Matter of: Michael A. Lotta
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: Robert M. Talcott
Date: November
14, 2005
CERTIFICATE OF SERVICE
[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 18, 2005, 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:
DAVID ALAN CLARE
ATTORNEY AT LAW
4675 MACARTHUR CT #1250
NEWPORT BEACH, CA 92660
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
Joseph Carlucci, Enforcement, Los
Angeles
I hereby
certify that the foregoing is true and correct. Executed in Los Angeles,
California, on November 18, 2005.
Signed by:
Milagro del
R. Salmeron
Case
Administrator
State Bar
Court