Case Number(s): 04-O-10876
In the Matter of: Richard M. Seff, Bar # 150440, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Charles A. Murray, Bar # 146069
Counsel for Respondent: Phillip Feldman, Bar # 40792
Submitted to: Program Judge State Bar Court Clerk’s Office Los Angeles
Filed: February 1, 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 December 4, 1990.
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 11 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:
IN THE MATTER OF: RICHARD M. SEFF, #150440
CASE NUMBER(S): 04-0-10876
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(6), was June 1, 2005.
STIPULATION AS TO FACTS AND CONCLUSIONS OF LAW:
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct, or has otherwise committed acts of misconduct warranting discipline:
Case No. 04-O-10876
FACTS:
In September 2000 Natasha Washington retained Respondent to handle a personal injury matter.
On February 5,2001, Respondent signed a medical lien with the County of Los Angeles regarding Washington’s personal injury matter. Washington’s outstanding medical bill was $44,942. The lien was not signed by Washington.
Washington’s personal injury matter was settled on October 9, 2001 for a present cash value of $150,000.
With Washington’s agreement, Respondent agreed to use $46,500 of the settlement money to purchase an annuity for Washington from Traveler’s Insurance Company which pays Washington $319 per month. The annuity contract was signed on October 30, 2001.
On October 25, 2001, $103,500 was deposited into Respondent’s client trust account at Bank of America - account no. 16640-04552 ("Respondent’s CTA").
On October. 25, 2001, Respondent took his fees and costs by writing himself check no. 1079 from Respondent’s CTA, payable to Respondent, in the sum of $56,500. This left a balance of $47,000 of Washington’s settlement funds in Respondent’s CTA. Check no. 1079 was paid out of Respondent’s CTA on October 31, 2001.
On October 25, 2001, Respondent wrote check no 1080 from Respondent’s CTA, payable to Washington in the sum of $5,000. Check no. 1080 was paid out of Respondent’s CTA on November 1, 2001.
On November 19, 2001, Respondent wrote a letter to the County of Los Angeles proposing a compromise offer on Washington’s outstanding medical bill to $11,235 - a sum that was 25% of the $44,942 which was due on the medical lien.
On November 23, 2001, the balance in Respondent’s CTA was $41,133.38.
On November 28, 2001, the balance in Respondent’s CTA was $38,733.38.
On November 29, 2001, the balance in Respondent’s CTA was $33,986.55.
On December 5, 2001, the County of Los Angeles sent a letter to Respondent requesting payment of Washington’s medical bill in the full amount of $44,942.
On December 10, 2001, the balance in Respondent’s CTA was $33,736.55.
On December 19, 2001, Respondent wrote check no 1092 from Respondent’s CTA payable to Washington in the sum of $2,000. Check no. 1092 was paid out of Respondent’s CTA on December 21, 2001.
On December 21, 2001, the balance in Respondent’s CTA was $31,736.55. As of December 21, 2001, there should have been a minimum of at least $40,000 held in Respondent’s CTA on behalf of Washington.
On March 7, 2002, Respondent wrote check no. 735 from his Bank of America account no. 21474-01530 ("Respondent’s business account") payable to Washington in the sum of $1,000. In the memo section of this check it stated: "third advance".
On April 11, 2002, Respondent wrote check no. 1102 from Respondent’s CTA payable to Washington in the sum of $3,000. In the memo section of this check it stated: "Not to be deposited until I [Respondent] give verbal approval." This check was paid on April 19, 2002.
On April 12, 2002, the balance in Respondent’s CTA was $34,731.35.
On April 17, 2002, Washington signed a statement prepared by Respondent which stated that Respondent provided her with a verbal and documented explanation of settlement proceeds; that Washington was satisfied with the settlement and disbursement of proceeds; and that Washington had received her full share of the Settlement proceeds through cash disbursements and a structured annuity. The declaration prepared by Respondent was sent to Washington with the above-described CTA check no. 1102 in the sum of $3,000 and instructions that Washington was to keep this check on hold until she returned the declaration signed.
On April 19, 2002, the balance in Respondent’s CTA was $31,731.35. The balance held in Respondent’s CTA on behalf of Washington on April 19, 2002, should have been at least $37,000.
On October 17, 2002, Washington signed a declaration regarding monies received and withheld by Respondent to pay medical liens which were to be disbursed to Washington over a three (3) month period. Washington declared that she accepted a settlement of her personal injury claim as follows: $5,000 cash at settlement; $46,5000 present day cash value annuity with monthly lifetime income; and that Respondent paid an additional amount of $6,000 over a period of time subsequent to the settlement. The declaration stated that Washington was told that the County of Los Angeles has not yet attempted to collect on the lien against Respondent, but has attempted to collect medical bills from Washington. Washington declared that Respondent and her had agreed Respondent will pay Washington four (4) payments and in amounts agreeable to her and that after receiving those payments she would have no further claims against Respondent for the portion of the proceeds that were set aside for payment of medical expenses.
On October 1, 2002, Respondent wrote check no. 1113 from Respondent’s CTA payable to Washington in the sum of $2,000. This check was paid on October 3, 2002.
On October 3, 2002, Respondent’s CTA balance was $17,668.85.
On October 4, 2002, Respondent’s CTA balance was $13,154.56.
On October 4, 2002, the County of Los Angeles sent a letter to Washington regarding the outstanding balance of $44,942 owed by Washington for its medical lien and demanding a response within five (5) days of the matter would be transferred to general debt collections to pursue as a self-pay account (rather than a medical lien).
On October 7, 2002, Respondent’s CTA balance was $12,891.06.
On October 15, 2002, on behalf of Washington, Respondent wrote check no. 1118 from Respondent’s CTA payable to Law Office of Cary Medill in the sum of $4,000. This check was paid on October 16, 2002.
On October 16, 2002, the balance in Respondent’s CTA was $8,891.06. On October 16, 2002, the balance of funds held in Respondent’s CTA on behalf of Washington should have been at least $31,000.
On October 25, 2002, the balance in Respondent’s CTA was $5,558.06.
On November 1, 2002, a deposit in the sum of $12,500 was made to Respondent’s CTA.
On November 6, 2002, Respondent wrote check no. 1122 from Respondent’s CTA payable to Washington and Law Office of Cary Medill in the sum of $12,500. The check was paid on November 6, 2002.
On November 6, 2002, the balance in Respondent’s CTA was $3,538.06. On November 6, 2002, the balance of funds held in Respondent’s CTA on behalf of Washington should have been at least $18,500.
On November 15, 2002, Respondent wrote check no. 1123 from Respondent’s CTA payable to Washington and Law Office of Cary Medill in the sum of $4,000. The check was paid on November 18, 2002.
On November 18, 2002, the balance in Respondent’s CTA was $38.06. On November 18, 2002, the balance of funds held in Respondent’s CTA on behalf of Washington should have been at least $14,500.
On November 29, 2002, the balance in Respondent’s CTA was $2,971.06.
On December 4, 2002, Respondent wrote check no. 1125 from Respondent’s CTA payable to Washington or John Savage in the sum of $2,500. This check was paid on December 5, 2002.
On December 5, 2002, the balance in Respondent’s CTA was $471.06. On December 5, 2002, the balance of funds held in Respondent’s CTA on behalf of Washington should have been at least $12,000.
On December 13, 2002, the balance in Respondent’s CTA was $3,371.71.
On December 20, 2002, the balance in Respondent’s CTA was $1,371.71.
From December 23, 2002 to June 20, 2003, Respondent made payments totaling the sum of $10,900 on behalf of Washington to the Law Office of Cary Medill and/or John Savage from Respondent’s business account and one TransAm wire transfer. All of these payments were for "Client distribution" (client being Washington) and the payee was either Law Office of Cary Medill, or John Savage.
On October 23, 2003, Respondent wrote check no. 1140 from Respondent’s CTA payable to Dr. Stephen M. Field on behalf of Washington in the sum of $1,151. This was the outstanding balance of a bill for a medical lien that Respondent signed with this doctor on behalf of Washington, The $1,151 paid from Respondent’s CTA to satisfy this medical lien could not be attributed to funds held in Respondent’s CTA on behalf of Washington.
From October 25, 2001, when Respondent deposited Washington’s remaining settlement proceeds of $47,000 ($150,000 settlement less the $46,500 paid for the annuity and less the $56,500 Respondent paid himself for fees and costs) and through October 23, 2003, the balance in Respondent’s CTA fell below the minimum amount he was required to hold for Washington on numerous occasions, including but not limited to the following:
DATE: 11/23/2001; CTA BALANCE ($):41,133.38; OWED TO WASHINGTON ($) 42,000;
DATE: 11/28/2001; CTA BALANCE ($):38,733.38; OWED TO WASHINGTON ($)42,000;
DATE: 11/29/2001; CTA BALANCE ($):33,986.55; OWED TO WASHINGTON ($)42,000;
DATE: 12/10/2001; CTA BALANCE ($): 33,736.55; OWED TO WASHINGTON ($) 42,000;
DATE: 12/21/2001; CTA BALANCE ($):31,736.55; OWED TO WASHINGTON ($) 40,000;
DATE: 04/12/2002; CTA BALANCE ($); 34,731.35; OWED TO WASHINGTON ($) 40,000;
DATE: 04/19/2002; CTA BALANCE ($): 31,731.35; OWED TO WASHINGTON ($) 37,000;
DATE: 10/03/2002; CTA BALANCE ($): 17,668.85; OWED TO WASHINGTON ($) 35,000;
DATE: 10/04/2002; CTA BALANCE ($): 13,154.56; OWED TO WASHINGTON ($) 35,000;
DATE: 10/07/2002; CTA BALANCE ($): 12,981.06; OWED TO WASHINGTON ($) 35,000;
DATE: 10/16/2002; CTA BALANCE ($); 8,891.06 ; OWED TO WASHINGTON ($) 31,000;
DATE: 11/06/2002; CTA BALANCE ($); 3,538.06; OWED TO WASHINGTON ($) 18,500;
DATE: 11/18/2002; CTA BALANCE ($); 38.06; OWED TO WASHINGTON ($) 14,500
From November 19, 2001 through termination of his representation of Washington, the medical bill from the County of Los Angeles on behalf of Washington in the amount of $44,942 was not paid.
Respondent either dishonestly or with gross negligence kept Washington’s settlement proceeds for two (2) years.
CONCLUSIONS OF LAW:
Violation of Rules of Profession al Conduct, rule 3-110(A)
Failure to Perform with Competence
By failing to maintain the minimum required balance in Respondent’s CTA corresponding to his client’s settlement funds held for medical liens; by signing medical liens on behalf of his client without the client’s approval; by not paying all of his client’s outstanding medical liens from Respondent’s CTA funds held on behalf of his client to pay medical liens; and by writing checks from his general account to his CTA to reimburse funds misappropriated from funds he was obligated to hold in trust on behalf of his client, Respondent intentionally or recklessly failed to perform services with competence in wilful violation of Rules of Professional Conduct, rule 3-110(A).
Violation of Rules of Professional Conduct, rule 4-100(A)
Failure to Maintain Client Funds in Trust Account
By failing to maintain the minimum required balance of his client’s settlement funds in Respondent’s CTA on behalf of his client, Respondent wilfully failed to maintain client funds in a trust account in violation of Rules of Professional Conduct, rule 4-100(A).
Violation of Rules of Professional Conduct, rule 4-100(B)(4)
Failure to Pay Client Funds Promptly
By disbursing to the client of her settlement monies over a two year time period (to wit: October 25, 2001 to October 23, 2003); and by making client sign a false statement that the client acknowledged that Respondent paid all medical liens - knowing that the client had not received her full share of her settlement proceeds and that there were medical liens outstanding and unpaid - Respondent wilfully failed to pay promptly to the client funds in Respondent’s possession which the client was entitled to receive - in wilful violation of Rules of Professional Conduct, rule 4-100(B)(4).
Violation of Rules of Professional Conduct, rule 3-300
Acquiring an Interest Adverse to Client
Respondent knowingly acquired a pecuniary interest adverse to his client without complying with the following requirements of Rules of Professional Conduct, rule 3-300 that: the transaction and its terms were fair and reasonable to the client; the transactions and its terms were fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; the client was advised in writing that the client may seek the advice of an independent lawyer of client’s choice; the client was given a reasonable opportunity to seek that advice; and, the client consented in writing to the terms for the transaction - in wilful violation of Rules of Professional Conduct, rule 3-300.
Violation of Business and Professions Code, section 6106
Moral Turpitude
By taking two years to disburse his client her settlement funds; by making his client sign a false statement prepared by Respondent; by not paying all of his client’s medical liens; by using his business account to pay his client funds which Respondent failed to hold in trust; and, by using funds from his CTA not on deposit on behalf of his client to pay a medical lien on behalf of the client - Respondent committed acts involving moral turpitude, dishonesty or corruption, in wilful violation of Business and Professions Code, section 6106.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-10876
In the Matter of: Richard M. Seff
SIGNATURE OF THE PARTIES
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitations 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 Program. Respondent understands that he/she must abide by all terms and conditions of Respondent’s Program Contract.
If the Respondent is not accepted into the Program or does not sign the 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 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.
Date: 6-22-05
Signed By Respondent: Richard M. Seff
Date: 6-23-05
Signed by Respondent’s Counsel: Philip Feldman
Date: 6/20/05
Signed by Deputy Trial Counsel: Charles A. Murray
Case Number(s): 04-O-10876
In the Matter of: Richard M. Seff #150440
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 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 Honn
Date: 9/1/05
[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 September 14, 2005, I deposited a true copy of the following document(s):
STATEMENT OF ALTERNATIVE DISPOSITIONS AND ORDERS;
CONTRACT AND WAIVER FOR PARTICIPATION IN THE STATE BAR COURT’S ALTERNATIVE DISCIPLINE PROGRAM;
STIPULATION RE FACTS AND CONCLUSIONS OF LAW;
ORDER
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:
PHILLIP FELDMAN
ATTORNEY AT LAW
15250 VENTURA BLVD #610
SHERMAN OAKS, CA 91403
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Charles Murray, Enforcement, Los Angeles, Supervising Attorney Office of Probation, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 14, 2005.
Signed by:
Milagro R. Salmeron
Case Administrator
State Bar Court
[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 March 20, 2008, I deposited a true copy of the following document(s):
DECISION AND ORDER FILING AND SEALING CERTAIN DOCUMENTS and STIPULATION RE FACTS AND CONCLUSIONS OF LAW
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:
RICHARD M SEFF ESQ
LAW OFC RICHARD M SEFF
4165 E THOUSAND OAKS BLVD STE 160
WESTLAKE VILLAGE, CA 91362
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Monique T. Miller, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 20, 2008.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court