Case Number(s): 03-O-04706-DFM
In the Matter of: James Dewolfe Allen, Bar # 54004, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kevin B. Taylor,
Supervising Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1000
Bar # 146853
Counsel for Respondent: Donald A. English,
550 West C Street, Suite 1800
San Diego, CA 92101
(619) 338-6610
Bar # 115569
Submitted to: Settlement Judge
Filed: November 14, 2011 State Bar Court Clerk’s Office Los Angeles
<<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 January 5, 1966.
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 (public reproval).
checked. Case ineligible for costs (private reproval).
<<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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
<<not>> checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
See page 8 of this stipulation.
Case Number(s): 03-O-04706-DFM
In the Matter of: James Dewolfe Allen
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
The terms of pleading nolo contendere are set forth in the Business and Professions Code and the Rules of Procedures of the State Bar. The applicable provisions are set forth below:
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a notice of disciplinary charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere will be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court will find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based.
Rules of Procedure of the State Bar, rule 5.56. Stipulations to Facts, Conclusions of Law, and Disposition
“(A) Contents. A proposed stipulation to facts, conclusions of law, and disposition must comprise:
[¶] . . . [¶]
(5) a statement that the member either:
(a) admits the truth of the facts comprising the stipulation and admits culpability for misconduct; or
(b) pleads nolo contendere to those facts and misconduct;
[¶] . . . [¶]
(B) Plea of Nolo Contendere. If the member pleads nolo contendere, the stipulation must also show that the member understands that the plea is treated as an admission of the stipulated facts and an admission of culpability.”
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 5.56 of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent: James Dewolfe Allen
Date: 11-9-11
IN THE MATTER OF: James Dewolfe Allen
STATE BAR COURT CASE NUMBER: 03-O-04706-DFM
James Dewolfe Allen ("Respondent") pleads nolo contendere to the following facts and violations. Respondent completely understands that the plea for nolo contendere shall be considered the same as an admission of the stipulated facts and of his culpability of the statutes and/or Rules of Professional Conduct specified herein.
FACTS
1. On or about October 30, 1997, Shirley Rogozienski filed a petition for dissolution in the San Diego Superior Court ("Superior Court") titled In re the Marriage of Shirley L. Rogozienski and Frank E. Rogozienski, Case No. D440154 ("In re Rogozienski").
2. On or about July 29, 1998, Shirley Rogozienski and Frank Rogozienski stipulated to Respondent serving as a temporary judge for all purposes in In re Rogozienski pursuant to Rule 244 of the California Rules of Court.
3. On or about August 4, 1998, the Superior Court approved and ordered Respondent to serve as the temporary judge in In re Rogozienski. On or about August 4, 1998, Respondent signed the oath to serve as the temporary judge in In re Rogozienski. Respondent served as temporary judge in In re Rogozienski until March 27, 2003.
4. As temporary judge, Respondent issued decisions that affected the characterization and distribution of the property interests of the Rogozienskis in In re Rogozienski.
5. In December 2001, lead counsel for Shirley Rogozienski in In re Rogozienski ("Shirley’s counsel") owned two one-half time share interests in Warner Springs Ranch. Warner Springs Ranch was a time share resort property that permitted owners to use the recreational facilities at the ranch, including but not limited to golf, tennis, horseback riding, and hiking. A one-half ownership interest permitted owners to use the facilities during odd numbered or even number months. A full ownership interest permitted owners to use the facilities year round.
6. In December 2001, Shirley’s counsel no longer used the recreational facilities at Warner Springs Ranch and wished to divest himself of the time share interests in order to avoid paying further monthly maintenance fees. Respondent’s friend was interested in obtaining a time share interest at Warner Springs Ranch and wanted to accept the time share interests which Shirley’s counsel was willing
to transfer.
7. However, after agreeing to accept the time share interests of Shirley’s counsel, Respondent’s friend determined that he did not want to pay the monthly maintenance fee on two one-half time share interests. Therefore, Respondent’s friend proposed to Respondent that Respondent’s friend transfer a one-half interest time share in Warner Springs Ranch to Respondent.
8. In February 2002, Shirley’s counsel transferred his two one-half time share interests at Warner Springs Ranch to a friend of Respondent’s. At that time, Respondent’s friend assumed the monthly maintenance fees for both one-half interests.
9. In March 2002, Respondent’s friend transferred one of the two one-half interests in the time share he had received from Shirley’s counsel to Respondent. At that time, Respondent assumed the monthly maintenance fees for the one-half interest he received.
10. In March 2002, when Respondent received his one-half interest in the Warner Springs Ranch time share, he knew that his friend had received it from Shirley’s counsel. At that time, Shirley’s counsel continued to appear before Respondent who was still the temporary judge in In re Rogozienski.
11. The transfers of the time share interests were not made in an attempt to influence Respondent in his capacity as the temporary judge in In re Rogozienski. Additionally, Respondent reasonably believed and continues to believe that the transfer was not made in an attempt to influence him in In re Rogozienski. Finally, Respondent contends that the transfer did not influence any decision he made or action he took as the temporary judge in In re Rogozienski.
12. Respondent’s receipt of the subject time share interest was information which he was required to disclose, in writing or on the record, to the parties in In re Rogozienski about the time he received the interest. However, Respondent did not disclose to the parties in In re Rogozienski, in writing or any other manner, about the time he received the time share interest, of the fact that he had received the interest.
13. In March 2003, in response to an inquiry of one of the parties in In re Rogozienski, Respondent made a written disclosure of his receipt of the subject time share interest.
CONCLUSIONS OF LAW
14. By failing to disclose to the parties in In re Rogozienski of the fact that he had received the subject time share interest, about the time he received the interest, Respondent failed to comply with rule 244 of the California Rules of Court and canon 6D(2)(f) of the Code of Judicial Ethics in willful violation of rule 1-710 of the Rules of Professional Conduct.
DISMISSALS
The parties respectfully request that the Court, in the interest of justice, dismiss Counts One, Two and Four of the First Amended Notice of Disciplinary Charges filed in this matter. Those Counts allege that Respondent violated rules 1-710 and 1-120 of the Rules of Professional Conduct.
ADDITIONAL FACTORS IN MITIGATION
Candor/Cooperation
Respondent promptly responded to an inquiry from one of the parties in In re Rogozienski, made disclosures in writing, and voluntarily withdrew as temporary judge. Respondent displayed honesty and cooperation with the State Bar in this proceeding.
Remorse
Respondent is remorseful for the conduct addressed in herein and has acknowledged the wrongfulness of same.
Good Faith
Respondent acted in good faith and with no intent to violate any rules, statutes, or canons of the Code of Judicial Ethics. Respondent agreed to serve as the private temporary judge in the Rogozienski dissolution action at the parties’ express request in order to assist them in resolving their marital dissolution matter based upon his experience and skills as a family law specialist and his excellent reputation in the legal community. Throughout Respondent’s 45 year career as an attorney, he has made
substantial contributions to the legal community. Respondent believed that his agreement to serve as a private judge in the Rogozienski dissolution action was consistent with honoring his commitment to assist the overburdened family law bench, as well as support his fellow colleagues in the family law bar who requested that he serve as temporary judge on behalf of their respective clients.
Respondent did not disclose the two property transfers at the time they occurred because of his belief that they were two separate transactions between different parties, and Respondent was not aware of any duty to make the disclosure under those circumstances. In addition, Respondent believed that the property transfers did not constitute a gift, that Respondent’s friend was not his agent in the transfers and there was consideration for the transfers. The two property transfer transactions were not concealed and were memorialized in separate deeds that were publically recorded at the San Diego County Recorders’ Office.
Good Character
Respondent has an impeccable professional record in his over 45 years practicing law and has made numerous contributions to the legal community. Respondent has served on various committees of the State Bar of California, including the Disciplinary Committee; the Carson Committee on Legal Specialization; the Family Law Advisory Commission; and the Executive Committee, Section on Family Law. Throughout his career, Respondent has also served on various committees of the San Diego County Bar Association, including the Committee on Legal Ethics and Unlawful Practice; the
Arbitration Committee; the Committee and Section on Law Office Economics and Management; and the Executive Committee, Certified Family Law Specialists. Respondent is a Fellow of the American Academy of Matrimonial Lawyers and has been a member of the board of directors of the Southern California Chapter of the Academy.
Respondent has also been active in contributing to the continuing education of the family law bench and bar. Throughout his career, Respondent has lectured on various topics related to family law for various professional organizations, including the San Diego Trial Lawyers Association; California Continuing Education of the Bar; San Diego Certified Family Law Specialists; and San Diego County Bar Association/Matthew Bender. Since 1985 to the present, Respondent has been an editorial consultant
for California Family Law Monthly (Matthew Bender). Respondent has also been a Co-Editor of the San Diego County Bar Association’s Certified Family Law Specialists’ Marital Settlement Agreement, a practical guide for drafting marital settlement agreements which is widely used among San Diego County family law specialists. The proceeds from the sale of the materials are donated to the San Diego County Bar Association Family Law Specialists.
For the past 30 years, although Respondent has a full time law practice specializing in family law in San Diego, Respondent has volunteered his services as a pro tem judge and pro tem settlement judge of the San Diego Superior Court, Family Law Division on a pro bono basis. Respondent was acknowledged for his distinguished pro bono service to the overburdened San Diego Superior Court Family Law Division by being awarded the San Diego Family Judge’s Service Award, which is also known as the Judge Norbert Ehrenfreund "Norby" Award in 1996.
In addition to serving on various legal committees and organizations, Respondent has also volunteered his time in several community and philanthropic organizations. For over 20 years, Respondent has served on the board of directors of Kids’ Turn. Kids’ Turn is an organization that promotes, supports, and secures the well being of children who are experiencing the challenges of family separation and provides programs of intervention and prevention to assist families in successfully transitioning after major family upheavals such as divorce, separation, and legal actions. Respondent is a founder and past Chairman of the San Diego Forum and Young Friends of San Diego Symphony. Respondent has also served on the board of directors of the San Diego Symphony Orchestra Association. Respondent is the past President and Secretary of the San Diego Chapter of Amherst College Alumni Association.
A wide range of references in the legal and non-legal community have provided numerous sworn declarations attesting to his extraordinary good character. These include declarations by distinguished retired family law judges, top family law practitioners who have served in leadership positions with Respondent in family law and charitable organizations, former and current clients, and preeminent leaders in the business, legal, and non-profit communities who have known Respondent for as long as 50 years. Each of these declarants unequivocally attest to Respondent’s integrity, honesty, and exemplary character, and are aware of the nature and extent of the allegations against Respondent in these proceedings.
DISCUSSION RE RECOMMENDED DISCIPLINE
Standard 2.10 of the Standards for Attorney Sanctions for Professional Misconduct provides as follows:
Culpability of a member of a violation of any provision of the Business and Professions Code not specified in these standards or of a willful violation of any Rule 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, with due regard to the purposes of imposing discipline set forth in standard 1.3.
Standard 2.10 applies to violations of rule 1-710 of the Rules of Professional Conduct.
In this matter, Respondent did not act in bad faith, but rather failed to appreciate his obligation to disclose information to the parties in In re Rogozienski at about the time he received the subject time share interest which a reasonable person may have considered relevant to a question of disqualification. Given, Respondent’s otherwise exemplary 45 years of practice as a member of the State Bar of California, his acknowledgement of wrongdoing and remorse over same and the fact that it is unlikely that he will repeat his misconduct in the future, the parties submit that this reproval with public disclosure is sufficient to address the misconduct and protect the public.
Additionally, decisions published by the Commission on Judicial Performance suggest that Respondent’s misconduct, if committed by a full time judge, may warrant a private admonishment. For example, a private admonishment was imposed upon a judge who failed to disclose on the record various relationships with attorneys appearing before the judge, including a financial relationship involving the ownership real estate. (Commission on Judicial Performance Ann. Rept, (2008) Private Admonishment 7, p. 26)
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND
STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges and First Amended Notice of Disciplinary Charges filed in this matter and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of a further amended Notice of Disciplinary Charges. Finally, the parties waive the right to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
PENDING PROCEEDINGS
The disclosure date referred to, on page 2, paragraph A(7), was November 9, 2011.
Case Number(s): 03-O-04706-DFM
In the Matter of: James Dewolfe Allen
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: James Dewolfe Allen
Date: 11-9-11
Respondent’s Counsel: Donald A. English
Date: November 9, 2011
Deputy Trial Counsel: Kevin B. Taylor
Date: 11/9/11
Case Number(s): 03-O-04706-DFM
In the Matter of: James Dewolfe Allen
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
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. (See rule 5.58 (E) & (F), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 11-10-11
Case Number(s): 03-O-04706-DFM
In the Matter of: James Dewolfe Allen
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: James Dewolfe Allen
Date: 11-9-11
Respondent’s Counsel: Donald A. English
Date: November 9, 2011
Deputy Trial Counsel: Kevin B. Taylor
Date: 11/9/11