Case Number(s): 04-O-15351
In the Matter of: Mark C. Ellis, Bar # 170295, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Shari Sveningson, Bar # 195298
Counsel for Respondent: Bar #
Submitted to: assigned judge State Bar Court Clerk’s Office San Francisco
Filed: July 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 June 7, 1994.
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 13 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 added to membership fee for calendar year following effective date of discipline.
checked. costs to be paid in equal amounts prior to February 1 for the following membership years: for the next two (2) billing cycles following the effective date of the Supreme Court Order (hardship, special circumstances or other good cause per rule 282, 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.
Facts and Conclusions
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.
FACTS
1. On or about March 30, 2002, Insa Sutherland ("Sutherland") employed Respondent to represent her minor son and daughter in two separate matters. Sutherland employed Respondent to represent her son, Jason LeBleu, in a juvenile delinquency case pending in Placer County Superior Court, Juvenile Division, case number 52-001382. Sutherland also employed Respondent to represent her in an ongoing, child support and custody matter concerning her daughter Brigid, including getting the case transferred from Louisiana to California.
2. Sutherland paid Respondent $1,700.00 as advanced fees. Respondent told Sutherland he would bill at a rate of $170.00 per hour.
3. Respondent requested that Sutherland provide all documents pertinent to the cases and Sutherland complied with Respondent’s request.
4. On or about July 2, 2002, Sutherland also asked Respondent to review a prenuptial agreement and advise her regarding its validity. She provided Respondent with a copy of the proposed prenuptial agreement.
5. On May 6, 2002, Respondent wrote to Sutherland’s former attorney, Grant Pegg ("Pegg"), informing him that he had been retained by Sutherland and requesting a complete copy of the file and information relating to both the delinquency and child support matter so that he could file a substitution of attorney. Eventually, Sutherland obtained the documents from both Jason’s and Brigid’s cases from Pegg and gave them to Respondent.
6. After sending the May 6, 2002 letter to Pegg, Respondent took no action on the Brigid matter.
7. On May 7, 2002, Sutherland spoke with Respondent by telephone to discuss Jason’s case. In that conversation, Sutherland told Respondent to put Brigid’s matter on the “back burner" to concentrate on Jason’s case.
8. Respondent attended four hearings in Jason’s case which was eventually resolved by a referral to probation on July 9, 2002.
9. On May 14, 2002, Sutherland sent Respondent a copy of a letter she had sent to her Louisiana attorney. In the letter, Sutherland informed Marlene Samuel, the Louisiana attorney, that Respondent was her new attorney and would contact her regarding Brigid’s ease soon.
10. On August 27, 2002, Sutherland called Respondent on his cellular phone to determine the status of the Brigid matter, leaving a message for him to return her call. Respondent failed to return the call.
11. Between September 6 and 23, 2002, Sutherland called Respondent on his cellular or office phone to determine the status of the Brigid matter, leaving messages for him to return her calls. Respondent failed to return her calls.
12. On November 2 and 21, 2002, Sutherland called Respondent on his cellular phone to determine the status of the Brigid matter, leaving messages for him to return her calls. Respondent failed to return her calls.
13. On November 22 and December 19, 2002, Sutherland sent letters via facsimile to Respondent to determine the status of the Brigid matter. Respondent failed to respond to the letters.
14. On February 15, 2003, Sutherland sent a letter to Respondent certified mall, return receipt requested, to determine the status of the Brigid matter. Respondent received the letter and failed to respond to it.
15. In the September 23, 2002, letter Sutherland requested that Respondent return her prenuptial agreement as she no longer needed his advice on it.
16. On March 11, 2003, Sutherland sent Respondent a letter via certified mail terminating his services and requesting that he return all documents pertaining to the delinquency matter, the child support matter and the prenuptial agreement.
17. On March 20, 2003, Respondent wrote to Sutherland acknowledging receipt of her March 11, 2003 letter. In the letter Respondent stated that he would be sending an invoice and all relevant file documents under separate cover. Thereafter, Respondent failed to return the documents or provide an accounting.
18. Sutherland sent letters to Respondent on April 13 and 28, and May 13 and 23, 2003 requesting her file documents and an accounting. Respondent failed to return the documents or provide an accounting.
19. On July 16, 2003, Respondent sent Sutherland a letter and returned the file documents from Jason’s case. In the letter, Respondent told Sutherland that documents from her other files would follow.
20. On November 20, 2003, Sutherland sent a letter to Respondent requesting her remaining file documents and an accounting.
21. On May 26, 2006, Respondent mailed a the remaining file documents and an accounting of his fees to Sutherland.
CONCLUSIONS OF LAW
By not taking steps to pursue Brigid’s case including not transferring the case from Louisiana to California, Respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence in wilful violation of Rules of Professional Conduct, rule 3-110(A).
By not responding to Sutherland’s numerous phone calls and letters requesting the status of the Brigid case, Respondent failed to respond promptly to reasonable status inquiries of a client in wilful violation of Business and Professions Code section 6068(m).
By not promptly returning the file regarding the Brigid matter and not returning the prenuptial agreement despite numerous requests by Sutherland, Respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property in wilful violation of Rules of Professional Conduct, rule 3-700(D)(1).
By not promptly providing an accounting to Sutherland, Respondent failed to render appropriate accounts to a client regarding all funds of the client coming into Respondent’s possession in wilful violation of Rules of Professional Conduct, rule 4-100(B)(3).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was by letter dated May 26, 2006.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of May 26, 2006, the estimated prosecution costs in this matter are approximately $3,654. 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 2.2(b), 2.4(b) and 2.6(a) of the Standards for Attorney Sanctions for Professional Misconduct, Title IV of the Rules of Procedure of the State Bar of California.
Standard 2.2(b) provides for a three month actual suspension irrespective of mitigating circumstances for a member’s violation of role 4-100 when the violation does not involve misappropriation of client funds or property.
A deviation from this standard is appropriate here because case law supports it and because Respondent did ultimately provide his client with an accounting of the fees she had paid him. Respondent’s delay in providing the accounting was partly caused by the fact the client had moved and Respondent was not aware of the new address.
Standard 2.4(b) provides for reproval or suspension when a member fails to perform services in an individual matter or fails to communicate.
Standard 2.6(a) provides for suspension or disbarment for a violation of Business and Professions Code section 6068.
Van Sloten v. State Bar, 48 Cal. 3d 921:
Van Sloten failed to perform by failing to use diligence in procuring a client’s marital dissolution, by not properly withdrawing from the case and failing to communicate with the client. The court concluded that the misconduct which was aggravated by his failure to appreciate the discipline process (he failed to appear at the R.D. Hearing proceedings) warranted 6 mo stayed suspension, one year probation, no actual suspension.
In the Matter of Aguiluz, (1992) 2 Cal State Bar Ct Rptr. 32
Aguiluz was found culpable of abandoning his client, failing to communicate and failing to return the client’s file. Aguiluz received one year stayed suspension and 2 years probation.
AGGRAVATING CIRCUMSTANCES
Respondent’s failure to perform caused a significant delay in his client’s child custody and child support matter.
MITIGATING CIRCUMSTANCES.
During the time of the misconduct Respondent suffered from depression. Respondent has since been diagnosed with Major Depression and Alcohol Dependence. Respondent is currently being treated by a psychiatrist and is attending Alcoholics Anonymous meetings regularly.
Respondent had attempted to provide Sutherland with the remaining file documents and an accounting of his fees by mail in November 2005, but Sutherland had moved and the mailing was returned to Respondent as "unable to forward." Respondent obtained Sutherland’s current address in May 2006 and promptly mailed the remaining file documents and the accounting to Sutherland.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-15351
In the Matter of: Mark C. Ellis
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: Mark C. Ellis
Date: 6-20-06
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Shari Sveningson
Date: 6/23/06
Case Number(s): 04-O-15351
In the Matter of: Mark C. Ellis
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 DISCIPLINE RECOMMENDED to the Supreme Court.
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.
On page 2, section A(8) instead of Superior Court order it must read Supreme Court order.
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: Pat McElroy
Date: July 25, 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 July 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:
MARK CHRISTOPHER ELLIS
PO BOX 30212
SAN BERNARDINO, CA 92413
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SHARI SVENINGSON, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on July 26, 2006.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court