Case Number(s): 04-O-15150
In the Matter of: Jaynelle K. Bell, Bar # 154264, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Manuel Jimenez, Bar # 218234,
Counsel for Respondent: Jerome Fishkin, Bar # 47798,
Submitted to: State Bar Court Clerk’s Office San Francisco.
Filed: January 26, 2006.
<<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 16, 1991.
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).
<<not>> checked. Case ineligible for costs (private reproval).
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: 2007, 2008, 2009. (Hardship, special circumstances or other good cause per rule 284, 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.
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.
<<not>> 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.
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.
Respondent must attend the Trust Account Management School offered through the State Bar of California.
IN THE MATTER OF: Jaynelle K. Bell, State Bar No. 154264
STATE BAR COURT CASE NUMBER: 04-O-15150
FACTS AND CONCLUSIONS OF LAW.
Respondent represented Tracy Palmer in a civil suit. On or about April 22, 2004, HealthCare Security Services of California issued check number 010874 made payable to Tracy Palmer and Jaynelle Bell, Jaynelle Bell and Associates, in the sum of $23,500.00. On or about April 26, 2004, respondent deposited check number 010874 into her smart business checking account held at Mechanics Bank, bank account number 39657329. This account is not a client trust account.
Respondent represented Tanya Kemp in a civil matter. On or about April 7, 2004, Kemp’s case settled as a result of a mediation hearing. On or about April 15, 2004, Carl Warren and Company issued check number 10508 in the amount of $100,000.00 to Tanya Kemp and respondent. On or about April 26, 2004, respondent deposited check number 10508 in to her smart business checking account held at Mechanics Bank, bank account number 39657329. This account is not a client trust account.
By failing to deposit funds received for the benefit of her clients in a bank account labeled "Trust Account," "Client’s Trust Account" or words of similar import, respondent wilfully violated rule 4-100(A) of the California Rules of Prnfessional Conduct.
PENDING PROCEEDINGS.
As of November 30, 2005, Respondent has no pending investigations/proceedings not resolved by this stipulation necessitating disclosure as required, on page one, paragraph A.(7).
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 30, 2005, the estimated prosecution costs in this matter are approximately $2,296.00. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
AUTHORITIES SUPPORTING DISCIPLINE.
Standards
In determining the appropriate level of discipline, the court should look to the Standards for Professional Misconduct. In In re Morse (1995) 11 Cal.4th 184, 206, the California Supreme Court stated:
"To determine the appropriate level of discipline ... we... must first look to the standards for guidance. ’These guidelines are not binding on us, but they promote the consistent and uniform application of disciplinary measures. Hence we have said that ’we will not reject a recommendation arising from application of the standards unless we have grave doubts as to the propriety of the recommended discipline.(Citation Omitted.)’"
Standard 2.2, Offenses Involving Entrusted Funds or Property, reads in relevant part: 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, none of which offenses result in the wilful misappropriation of entrusted funds or property shall result in an least a three month actual suspension from the practice of law, irrespective of mitigating circumstances.
Case Law
The Court should look at case authority in determining the appropriate level of discipline to determine whether the discipline is consistent or disproportional to prior decisions on the same set of facts. (In re Morse, supra, 11 Cal.4th at pp. 207-208; Snyder v. State Bar (1990) 49 Cal.3d 1302, 1310-1311.) Similar cases can indicate appropriate discipline. Id.
Matter of Sampson (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 119, held in part, that attorneys must put all funds received for benefit of clients in a trust account. In the event of dispute over amount owed to medical lienholder, attorney cannot withdraw funds from the trust account and put them in a general account.
Matter of Mapps (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 1, held in part, that an attorney’s failure to deposit into his trust account settlement funds received for the benefit of a client is a direct violation of the Rules of Professional Conduct governing client trust funds.
Kelley v. State Bar (1991) 53 Cal.3d 509: Respondent, with no prior discipline, received $2000 from his client for payment of a settlement of a civil matter. Respondent deposited the funds into a general account instead of a trust account and then mistakenly wrote a check for the settlement from his trust account, which subsequently bounced. Respondent then payed the settlement from his general account, with another check that bounced. Respondent then paid the settlement a few weeks later. In a second matter, the Respondent failed to put the proceeds from the sale of a client plain in in his trust account, and misappropriated $750, which he subsequently returned.The court suspended the attorney for three years, stayed, three years probation, and 120 actual suspension after finding that the respondent had no prior record of discipline in 13 years, that the NSF checks probably resulted from the fact that the respondent was in the process of changing bank branches, his secretary of six years had recently left, and his general account was levied by the IRS. Furthermore, the court concluded that the misappropriation was not accompanied by deceit and was probably the result of negligent banking practices and a misunderstanding of the respondent’s duties.
Matter of K (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 335, respondent with no prior discipline was privately reproved for failing to keep the disputed portion of a Iegal fee in trust until resolution of the dispute
MITIGATING CIRCUMSTANCES.
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
No Prior Discipline (Standard 1.2(e)(i)). Respondent was admitted to practice on December 16, 1991, and has no prior discipline record.
Good Faith (Standard 1.2(e)(ii)). Respondent’s conduct, though a technical violation, acted in good faith.
No Harm (Standard 1.2(iii)). Respondent only held Palmer’s funds and Kemp’s funds in the bank account. She disbursed Palmer’s funds forthwith. She distributed Kemp’s funds as soon as a lien claim was resolved. There was no harm to any client, the public, or the administration of justice.
STATE BAR ETHICS SCHOOL.
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
STATE BAR TRUST ACCOUNT MANAGEMENT SCHOOL.
Because respondent has agreed to attend State Bar Trust Account Management School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION EXCLUSION.
It is recommended that respondent not be required to take the Multistate Professional Responsibility Examination because it is not required in this case for the protection of the public or is it in the interests of the Respondent. See Matter of Respondent G (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 181
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.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-15150
In the Matter of: Jaynelle K. Bell
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: Jaynelle K. Bell
Date: January 4, 2006
Respondent’s Counsel: Jerome Fishkin
Date: January 6, 2006
Deputy Trial Counsel: Manuel Jimenez
Date: January 12, 2006
Case Number(s): 04-O-15150
In the Matter of: Jaynelle K. Bell, State Baar No. 154264
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:
<<not>> checked. The stipulated facts and disposition are APPROVED AND THE REPROVAL IMPOSED.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department are vacated.
1. On page 6, section E(I l)--the x in the box in front of Law Office Management Conditions is deleted.
2. On page 6, section F --Respondent must attend Ethics School Client Trust Accounting School offered through the State Bar instead of Trust Account Management School.
3. On page 10, the first first paragraph- the words State Bar Trust Account Management School are deleted and in its place are inserted the words Ethics School Client Trust Accounting School.
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.) 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: Pat McElroy
Date: January 26, 2006
[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 San Francisco, on January 26, 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 San Francisco, California, addressed as follows:
JEROME FISHKIN
369 PINE ST #627
SAN FRANCISCO, CA 94104
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MANUEL JIMENEZ, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on January 26, 2006.
Signed by:
Laine Silber
Case Administrator
State Bar Court