Case Number(s): 03-0-04895, 03-0-04896, 04-0-10354, 04-0-10870, 04-0-13199, 05-O-00053, State Bar Investigations 06-0-14242, 06-O-14243
In the Matter of: Kenneth A. Satin, Bar # 56068, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Joseph R. Carlucci, Bar # 172309
Counsel for Respondent: Arthur L. Margolis, Bar # 57703
Submitted to: settlement judge 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 June 29, 1973.
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 21 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. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 284, Rules of Procedure.
<<not>> checked. costs to be paid in equal amounts prior to February 1 for the following membership years: . (hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
See Attachment
IN THE MATTER OF: KENNETH A. SATIN (State Bar no. 56068)
CASE NUMBER(S): 03-0-04895, 03-0-04896, 04-0-10354, 04-0-10870, 04-0-13199, 05-O-00053, 06-0-14242, 06-O-14243
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he/she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
THE "McCANN" MATTER - Case no. 03-0-04895
FACTS
On April 24, 2003, Jeremiah McCann ("McCann") employed Respondent, doing business as The Accident Attorneys, to represent him in a claim for personal injuries sustained as a result of a dog bite ("dog bite claim"). Respondent agreed to represent McCann on a contingency fee basis of 36.5% if the matter settled prior to filing a lawsuit, and 44% if it settled after filing a lawsuit.
In June 2003, Respondent sent a letter to the dog owner’s home owner’s insurance carrier, Kemper Auto and Home ("Kemper"), informing item that he represented McCann in the dog bite claim.
On June 5; 2003, Respondent sent a letter to the dog owner indicating that he represented McCann in the dog bite claim.
On July 22, 2003 McCann called Respondent and terminated his employment.
On July 24, 2003, McCann settled the dog bite claim on his own directly with Kemper for $65,103.03. Respondent asserted a lien for his attorney fees and costs incurred during his representation of McCann.
Because Respondent asserted a lien for attorneys fees and costs and Kemper required that Respondent’s name appear on McCann’s settlement check, on or about July 30, 2003, McCann sent Respondent a letter via facsimile stating the reasons why he terminated Respondent and asked Respondent for an accounting of his attorney fees and costs. Respondent received the letter.
On July 31, 2003, Respondent sent McCann a letter via facsimile informing McCann that he did not have a final accounting for his fees and costs prepared yet. Respondent told McCann that his fees and costs would not exceed $5,000, and that he would agree to have Kemper release $60,103.03 directly to McCann if McCann would provide Respondent with a cashier’s check for $5,000 or have Kemper send Respondent a check directly for $5,000. Respondent stated that he would hold the entire $5,000 in trust pending a final accounting and resolution of the fee dispute. Respondent also stated that his fees and costs were not $5,000, but that $5,000 was more than
adequate and that he would refund the difference to McCann when he prepared a final accounting. Respondent also stated that if, after he provided a final accounting, McCann still disputed the charges, they would go to arbitration.
On August 22, 2003, Kemper sent Respondent a check in the amount of $5,000 made payable to the "TRUST ACCOUNT OF THE ACCIDENT ATTORNEYS, ATTORNEY OF RECORD FOR JEREMIAH T. MC CAAN." This check was for the disputed fees that Respondent was required, and agreed, to hold in trust pending a resolution of the fee dispute ("check for disputed fees").
Respondent instructed one of his employees to deposit the check for disputed fees into his client trust account. However, Respondent’s employee failed to deposit the check into Respondent’s client trust account. Instead, on September 10, 2003, Respondent’s employee caused the check to be cashed and the $5,000 was used to pay for Respondent’s office expenses.
In late November 2003, Respondent discovered that his employee had failed to deposit the $5,000 check into his client trust account. On December 11, 2003, Respondent and McCann settled the fee dispute. Pursuant to their settlement agreement, Respondent kept $1,800 as attorneys fees and he refunded $3,200 to McCann. Respondent paid McCann the $3,200 from his personal funds in two installments of $1,600 on January 13, 2004 and February 18, 2004.
LEGAL CONCLUSION
By failing to deposit the $5,000 check for disputed fees into his client trust account, Respondent failed to deposit funds received for the benefit of a client in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import in wilful violation of Rules of Professional Conduct, rule 4-100(A).
THE "SHERMAN" MATTER - Case no. 03-0-04896
FACTS
On September 2, 2001, Barbara Sherman ("Sherman") employed Respondent to represent her in a medical malpractice claim. Respondent agreed to represent Sherman on a contingency fee basis.
At the time Sherman employed Respondent, he required her to sign a substitution of attorney form, allowing him to substitute out of Sherman’s case without further or sufficient notice to Sherman. At that time, Respondent did not disclose the legal significance of the pre-signed substitution form. Furthermore, Sherman did not understand the significance of her signature on the substitution form. Sherman did not understand that, among other things, the pre-signed substitution form enabled Respondent to withdraw from her case without her consent or without giving her prior notice of the fact that he intended to do so, and that she had thereby essentially waived her right and opportunity to object to Respondent’s withdrawal.
On October 3, 2002, Respondent filed a complaint in Los Angeles County Superior Court entitled Sherman v. St. Mary’s Medical Center, Shyam Dahiya, Antelope Valley Hospital, and Chickkiah Padmanabhan., case no. NC033007 ("malpractice action").
On May 16, 2003, and June 10, 2003, Respondent was served with two separate motions for summary judgment filed by defendants Antelope Valley Hospital and Chickkiah Padmanabhan, M.D. ("Padmanabhan"), respectively.
On July 25, 2003, Respondent sent Sherman a letter informing her that he was withdrawing from representation and that he was going to file the substitution of attorney that she had signed when she first employed Respondent. In this letter, Respondent also informed Sherman that she was now representing herself and that she needed to file oppositions to the pending motions for summary judgment by August 19, 2003, and August 21, 2003. In this letter, Respondent also informed Sherman of the pending hearings on the motions for summary judgment scheduled for September 2, 2003, and September 4, 2003, as well as the trial date of December 1, 2003.
On August 5, 2003, Respondent filed the pre-signed substitution of attorney with the court. Pursuant to the substitution of attorney, Sherman then represented herself in pro per.
At the time Respondent filed the substitution of attorney, there were pending hearings on the motions for summary judgment scheduled for September 2, 2003, and September 4, 2003, and a trial on December 1, 2003. Sherman’s written oppositions to the motions for summary judgment were to be filed with the court by August 19, 2003, and August 21, 2003.
On August 15, 2003, and August 26, 2003, Sherman dismissed defendants Padmanabhan and Antelope Valley Hospital, respectively. Thereafter, Sherman dismissed the remaining defendants in the malpractice action.
LEGAL CONCLUSION
By having Sherman sign a substitution of attorney at the time that she employed him and not explaining its legal significance; and by filing the substitution of attorney when there were hearings on the motions for summary judgment pending, Respondent intentionally, recklessly or repeatedly failed to perform legal services with competence in violation of Rules of Professional Conduct, rule 3-110(A).
THE "BERRY" MATTER - Case no. 04-0-10354
FACTS
On May 21, 1998, Teresa Berry ("Berry") employed Respondent on behalf of her minor son Scott Bubier ("Bubier") to represent him in a claim for personal injuries. Respondent agreed to represent Bubier on a contingency fee basis of 25%.
On April 22, 1999, Respondent filed a complaint in San Bernardino County Superior Court entitled Bubier v. Pacific High School San Bernardino Unified School District, Craig Siever, Arthur Perez, Michael Temple, Rebecca Perez and Gabe Perez, case no. SCVSS56641. Thereafter, Berry was appointed by the court to be Bubier’s guardian ad litem. Bubier was born on March 22, 1983, and reached the age of majority on March 22, 2001.
On June 27, 2001, Respondent obtained a default judgment for $32,395.57 against defendants Dave Perez (erroneously sued as Gabe Perez), Rebecca Perez and Arthur Perez("Perezes").
Respondent did not inform Berry or Bubier of the judgment against the Perezes until December 23, 2002.
LEGAL CONCLUSION
By not informing Berry or Bubier that he had obtained a judgment against the Perezes in June 2001 until September 13, 2002, Respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services in wilful violation of Business and Professions Code, section 6068(m).
THE "CHILDS" MATTER - Case no. 04-0-13199
FACTS
On June 23, 2003, James Childs ("Childs") employed Respondent to represent him in a medical malpractice claim. Respondent agreed to represent Childs on a contingency fee basis of 36.5% if the matter settled prior to filing a lawsuit, and 44% if it settled after filing a lawsuit.
At the time Childs employed Respondent, he required him to sign a substitution of attorney form, allowing him to substitute out of Childs’s case without further or sufficient notice to Childs. At that time, Respondent did not disclose the legal significance of the pre-signed substitution form. Furthermore, Childs did not understand the significance of his signature on the substitution form. Childs did not understand that, among other things, the pre-signed substitution form enabled Respondent to withdraw from his case without his consent or without giving him prior notice of the fact that he intended to do so, and that he had thereby essentially waived her right and opportunity to object to Respondent’s withdrawal.
On October 9, 2003, Respondent filed a complaint in San Bernardino County Superior Court entitled Childs v. Community Hospital of San Bernardino, Jain Bharti, M.D., and Eskander Ashraf, M.D., case no. SCVSS108692 ("malpractice case").
On April 8, 2004, Respondent sent Childs a letter informing Childs that in order to continue with his lawsuit it was necessary to hire a medical expert, which Childs would have to pay for with his own money. In the letter, Respondent advised Childs to decide if he wanted to spend the money for an expert. Respondent further informed Childs that if he did not hear from Childs that he would assume "the worst" and withdraw from Childs representation through the court.
On April 23, 2004, Respondent was served with a motion for summary judgment filed by defendant Ashraf I. Eskander, M.D. ("Eskander").
On May 20, 2004, Respondent sent Childs a letter informing him that he was withdrawing from representation and that he was going to file the substitution of attorney that he had signed when he first employed Respondent. In this letter, Respondent also informed Childs that he was now representing himself and that he needed to file an opposition to the pending motion for summary judgment by June 29, 2004. In this letter, Respondent also informed Childs of the pending hearing on the motion for summary judgment scheduled for July 13, 2004, as well as the trial date of January 10, 2005 and provided Childs with a draft of a form motion for an order to continue the motion for summary judgment.
On May 27, 2004, Respondent filed the pre-signed substitution of attorney with the court. Pursuant to the substitution of attorney, Childs then represented himself in pro per.
At the time Respondent filed the substitution of attorney, there was a pending hearing on the motion for summary judgment scheduled for July 13, 2004. Childs’ written opposition to the motion for summary judgment was to be filed with the court by June 29, 2004.
On July 13, 2004, the court granted Eskander’s motion for summary judgment and dismissed Childs’ complaint against him. Thereafter, defendant Community Hospital of San Bernardino also filed a motion for summary judgment which was granted, and the malpractice case was dismissed.
LEGAL CONCLUSION
By having Childs sign a substitution of attorney at the time that he employed him and not explaining its legal significance; and by filing the substitution of attorney when there was a heating on the motion for summary judgment pending, Respondent intentionally, recklessly or repeatedly failed to perform legal services with competence in violation of Rules of Professional Conduct, rule 3-110(A).
STATE BAR INVESTIGATIONS - Case nos. 06-0-14242 & 06-0-14243
FACTS
Prior to February 2006, Respondent and his staff failed to record on specific client ledgers the payment of Respondent’s fees and costs from Respondent’s client trust account at U.S. Bank, account no. 1-534-9094-9979 ("CTA").
Because Respondent and his staff had failed to record on those client ledgers that fees and costs had been paid to Respondent, at the end of February 2006 when Respondent and his staff reconciled his client ledgers, Respondent withdrew additional client funds from his CTA for fees and costs on cases where he had already taken same. This second withdrawal of fees and costs caused Respondent’s CTA to fall to a negative balance between March 20 and March 31, 2006.
As a result of Respondent’s failure to maintain complete and accurate records of client funds and the ensuing negative CTA balance, on the following dates, the following checks in the following amounts were paid from Respondent’s CTA against insufficient funds:
DATE: 3/20/06; CHECK NO: 4584; AMOUNT: $1,351.70;
DATE: 3/24/06; CHECK NO: 4590; AMOUNT: $1,510.60;
DATE: 3/24/06; CHECK NO: 4572; AMOUNT: $138.00;
DATE: 3/28/06; CHECK NO: 4543; AMOUNT: $1,800.00;
DATE: 3/31/06; CHECK NO: 4569; AMOUNT: $3,400.00;
LEGAL CONCLUSION
By failing to maintain complete and accurate records of all client funds or other properties coming into Respondent’s possession, Respondent wilfully violated Rules of Professional Conduct, rule 4-100(B)(3).
PENDING PROCEEDINGS.
The disclosure date referred to on page one, paragraph A.(7), was October 3, 2006.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. 03-0-04895; Count 1; Alleged Violation R.P.C. 3-110(A);
Case no. 03-0-04895; Count 3; Alleged Violation R.P.C. 4-100(B)(3);
Case no. 03-0-04895; Count 4; Alleged Violation B&P Code, section 6106;
Case no. 03-0-04895; Count 5; Alleged Violation R.P.C. 3-700(D)(2);
Case no. 03-0-04896; Count 7; Alleged Violation R.P.C. 3-700(A)(2);
Case no. 04-0-10354; Count 8; Alleged Violation R.P.C. 4-100(B)(4);
Case no. 04-0-10354; Count 9; Alleged Violation R.P.C. 3-110(A);
Case no. 04-0-10354; Count 11; Alleged Violation R.P.C. 3-110(A);
Case no. 04-0-10870; Count 12; Alleged Violation R.P.C. 3-110(A);
Case no. 04-0-10870; Count 13; Alleged Violation R.P.C. 3-700(A)(2);
Case no. 04-0-13199; Count 15; Alleged Violation R.P.C. 3-700(A)(2);
Case no. 05-0-00053; Count 16; Alleged Violation R.P.C. 3-110(A);
Case no. 05-0-00053; Count 17; Alleged Violation R.P.C. 3-700(A)(2);
Case no. 05-0-00053; Count 18; Alleged Violation B&P Code, section 6068(m)
AUTHORITIES SUPPORTING DISCIPLINE.
Standards for Attorney Sanctions for Professional Misconduct
1) Standard 1.2(b) - which provides the circumstances which shall be considered as aggravation:
Standard 1.2(b)(i) - the existence of a prior record of discipline;
Standard 1.2(b)(ii) - that the current misconduct found or acknowledged by Respondent evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct; and
Standard 1.2(b)(iv) - that the member’s misconduct harmed significantly a client, the public or the administration of justice;
2) Standard 1.6(a) - If two or more acts of professional misconduct are found or acknowledged in a single disciplinary proceeding, and different sanctions are prescribed by these standards for said acts, the sanction imposed shall be the more or most severe of the different applicable sanctions.
3) Standard 1.7(a) – If a member...has a record of one prior discipline..., the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior discipline imposed was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust.
4) Standard 2.2(b) - Culpability of a member of commingling of entrusted funds or property with personal property or the commission of another violation of rule 4-100, Rules of Professional Conduct,...shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances.
5) Standard 2.4(b) - Culpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
AGGRAVATING CIRCUMSTANCES.
1) Prior Discipline - Standard 1.2(b)(i)
In 1997, Respondent received a private reproval with public disclosure for solicitation and advertising violations of rule 1-400, Rules of Professional Conduct.
2) Multiple Acts of Wrongdoing - Standard 1.2(b)(ii)
Respondent’s misconduct herein occurred over the course of several years and involved five acts of misconduct.
3) Significant Harm to Client, the Public, or the Administration of Justice
Respondent’s misconduct regarding the use of pre-signed substitutions of attorney harmed and prejudiced his clients’ fights to object to his withdrawal as attorney and were in contravention of the Code of Civil Procedure rules regarding substitutions and withdrawals of attorney.
MITIGATING CIRCUMSTANCES.
1) Objective Steps Demonstrating Remorse and Recognition of Wrongdoing Standard 1.2(e)(vii)
Respondent is the co-author of a practice book for attorneys entitled Insurance Settlements, published by James Publishing Company. Subsequent to his misconduct, Respondent authored a new chapter for the forthcoming edition of the book titled "Settlement Ethics" that deals with, among other things, aspects of the misconduct that form the bases for this disciplinary matter.
2) Additional Mitigating Circumstances
Respondent has engaged in community service and pro bono activities, including serving on the Board of Directors of the Orange County Trauma Society, the American Trauma 2000 Council, the California Acupuncture Association, and as a planning commissioner for the City of Sonoma, CA. Respondent has also served as a Judge Pro-Tempore for the County of Los Angeles.
Respondent has taught law through the California State University system and to medical providers at seminars. Respondent was a Master Instructor of the California Association of Realtors and was designated an instructor with the California Dept. of Real Estate Respondent was an Advisory Panel member of the Select Committee on Real Estate at Rio Hondo College and has also been a faculty member at Orange Coast College.
Respondent has also hosted several radio programs regarding the law, including "It’s the Law," "The Law Review," "Impact," and "Drive Time With Ken Satin.,’ He also hosted a television series sponsored by the Orange County Trial Lawyers Association, California State University at Fullerton and Western State College of Law.
ADDITIONAL FACTS AND CIRCUMSTANCES
Respondent has reduced the size of his practice from more than 150 litigation files during the period of his misconduct to approximately 25 litigation files, and is continuing to reduce his practice further. He has also replaced members of his staff who did not perform adequately.
SIGNATURE OF THE PARTIES
Case Number(s): 03-0-04895, 03-0-04896, 04-0-10354, 04-0-10870, 04-0-13199, 05-0-00053, State Bar Investigations: 06-0-14242, 06-0-14243
In the Matter of: Kenneth A. Satin Member # 56068
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: Kenneth A. Satin
Date: 10/13/06
Respondent’s Counsel: Arthur L. Margolis
Date: 10/19/06
Deputy Trial Counsel: Joseph R. Carlucci
Date: 10/20/06
Case Number(s): 03-0-04895, 03-0-04896, 04-0-10354, 04-0-10870, 04-0-13199, 05-0-00053, State Bar Investigations: 06-0-14242, 06-0-14243
In the Matter of: Kenneth A. Satin Member # 56068
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: 10-23-06
[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 October 24, 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 , California, addressed as follows:
ARTHUR LEWIS MARGOLIS
MARGOLIS & MARGOLIS LLP
2000 RIVERSIDE DR
LOS ANGELES, CA 90039
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 October 24, 2006.
Signed by:
Milagro del R. Salmeron
Case Administrator
State Bar Court