Case Number(s): 04-O-15478
In the Matter of: Phil Martin, Bar # 55100, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Robin B. Brune, Bar # 149481
Counsel for Respondent: Paul Vapnek, Bar # 36576
Submitted to: settlement judge State Bar Court Clerk’s Office San Francisco
<<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 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):
<<not>> 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.
checked. costs 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 waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
IN THE MATTER OF: J. Philip Martin
CASE NUMBER(S): 04-O-15478, et al.
FACTS AND CONCLUSIONS OF LAW.
Case No. 04-0-15478
At all times mentioned herein, Respondent maintained a client trust account at the Bank of America, account number 16646-03007 ("Trust Account"). Between in or around June through in or around September 2004, Respondent issued four checks and three electronic debits from the Trust Account against insufficient funds, in an aggregate amount of approximately $4,000.00. Approximately $1,600 of the shortfall was due to the fact that one of respondent’s credit card holders debited the trust account without prior notification to respondent. (Respondent claims that the credit card issuer did not have authority to debit his attorney-client trust account. The State Bar notes that commingling is prohibited to protect client funds from the attorney’s creditors, and prevent problems of this nature. (See Arm v. State Bar (1990) 50 Cal.3d 763; Vaughn v. State Bar (1792) 6 Cal.3d 847.)
On or about April 1, 2003, the Trust Account balance was $127.83. From on or about April 1, 2003 to on or about May 12, 2003, no other deposits were made to the Trust Account. On or about May 12, 2003, Respondent issued check number 130 in the amount of $770.00 to a client, Giovanni Ford ("Ford") as a refund of a client’s advanced fee. There were insufficient funds in respondent’s attorney-client trust account to cover this check. In addition, repayment should not have come from respondent’s attorney-client trust account because the Ford advanced fee was not deposited into the attorney-client trust account.
On or about August 22, 2003, Respondent paid Behmke Reporting & Video in the amount of $639.27 by Trust Account check number 180. The source of funds to pay Behmke Reporting was from funds other than those deposited on behalf of the client matter that involved Behmke Reporting.
During 2003, Respondent represented Rong Sheng Song ("Song") in a personal injury matter. Respondent and Song agreed that Respondent would be compensated by a contingency fee of 33 1/3 percent. In or around December 2003, Respondent received $1,500.00 as advanced costs from Song. Respondent did not deposit $1,500.00 in his Trust Account.
During the period between in or about April 2003 and August 2004, Respondent repeatedly used his Trust Account for personal purposes by issuing over ninety checks (aggregate amount, approximately $130,000) to satisfy his personal, non-client obligations, as follows:
Date 05-07-03; Check No. 128; Amount $3,500.00; Payee Cash;
Date 05-19-03; Check No. 131; Amount $3,500.00; Payee Cash;
Date 05-24-03; Check No. 134; Amount $2,000.00; Payee Cash;
Date 05-21-03; Check No. N/A; Amount $1,000.00; Payee Teller Transfer to Personal Account;
Date 05-02-03; Check No. 126; Amount $2,441.50; Payee Colin Dunn Construction (Construction for house remodel.);
Date 05-06-03; Check No. 127; Amount $2,500.00; Payee Michael Rabichev (Architect for house remodel);
Date 05-07-03; Check No. 2733; Amount $1,900.00; Payee MBNA Consumer Services;
Date 05-22-03; Check No. 133; Amount $314.18; Payee Preferred Legal Services;
Date 06-02-03; Check No. 135; Amount $ 500; Payee Tara Kaady (Repayment of loan.);
Date 06-03-03; Check No. 137; Amount $90.44; Payee California Water Service;
Date 06-04-03; Check No. 136; Amount $1,025.89; Payee USAA (Insurance Premium);
Date 06-04-03; Check No. 138; Amount $321.71; Payee PG&E;
Date 06-06-03; Check No. 129; Amount $325.00; Payee North Point Appraisal;
Date 06-19-03; Check No. 139; Amount $50.00; Payee Cash;
Date 07-15-03; Check No. 146; Amount $1,000.00; Payee Colin Dunn Construction;
Date 07-18-03; Check No. 151; Amount $1,000.00; Payee Colin Dunn Construction;
Date 07-18-03; Check No. 152; Amount $1,100.00; Payee Scott Wilkholm (Carpenter for house remodel);
Date 07-18-03; Check No. 153; Amount $572.00; Payee Tyrone Jamito (Carpenter for house remodel);
Date 07-18-03; Check No. 154; Amount $968.00; Payee Phil Bowman (Carpenter for house remodel);
Date 07-28-03; Check No. 160; Amount $1,000.00; Payee Colin Dunn Construction;
Date 07-28-03; Check No. 163; Amount $968.00; Payee Phil Bowman;
Date 07-29-03; Check No. 161; Amount $1,088.65; Payee Scott Wilkholm;
Date 07-28-03; Check No. 166; Amount $200.00; Payee Cash;
Date 07-31-03; Check No. 170; Amount $50.00; Payee Cash;
Date 08-05-03; Check No. 172; Amount $700.00; Payee Scott Wilkholm;
Date 08-08-03; Check No. 174; Amount $500.00; Payee Tyrone Jamito;
Date 08-08-03; Check No. 162; Amount $455.00; Payee Tyrone Jamito;
Date 08-11-03; Check No. 176; Amount $103.33; Payee PG&E (Home utilities payment);
Date 08-18-03; Check No. 183; Amount $836.00; Payee Phil Bowman;
Date 08-19-03; Check No. 184; Amount $442.00; Payee Tyrone Jamito;
Date 08-25-03; Check No. 185; Amount $5,000.00; Payee Michael Rabichev;
Date 08-25-03; Check No. 186; Amount $500.00; Payee Phil Bowman;
Date 08-26-03; Check No. 187; Amount $1,000.00; Payee Scott Wilkholm;
Date 09-15-03; Check No. 188; Amount $1,000.00; Payee Colin Dunn Construction;
Date 09-19-03; Check No. 197; Amount $330.00; Payee Cash;
Date 09-26-03; Check No. 201; Amount $450.00; Payee Cash;
Date 09-29-03; Check No. 202; Amount $125.00; Payee Cash;
Date 10-17-03; Check No. 213; Amount $650.00; Payee Cash;
Date 03-22-04; Check No. 219; Amount $200.00; Payee Tara Kaady;
Date 05-07-04; Check No. 228; Amount $120.00; Payee California Water Service;
Date 05-07-04; Check No. 229; Amount $19.00; Payee DMV;
Date 05-18-04; Check No. 235; Amount $100.00; Payee Cash;
Date 05-18-04; Check No. 240; Amount $1,300.00; Payee Cash;
Date 05-19-04; Check No. 238; Amount $189.04; Payee Beronio Lumber;
Date 05-19-04; Check No. 243; Amount $491.08; Payee Excel Plumbing Supply;
Date 05-19-04; Check No. 244; Amount $100.00; Payee Cash;
Date 05-20-04; Check No. 242; Amount $324.63; Payee Beronio Lumber;
Date 05-21-04; Check No. 245; Amount $700.00; Payee Dan Keene (Home painter);
Date 05-24-04; Check No. 247; Amount $1,000.00; Payee Grgich Electric;
Date 05-24-04; Check No. 250; Amount $1,000.00; Payee Cash;
Date 05-25-04; Check No. 248; Amount $750.00; Payee Calegar Plumbing;
Date 05-26-04; Check No. 253; Amount $150.00; Payee Cash;
Date 05-27-04; Check No. 252; Amount $25.06; Payee Beronio Lumber;
Date 05-28-04; Check No. 241; Amount $750.00; Payee Leiro Electric;
Date 05-28-04; Check No. 257; Amount $500.00; Payee Dan Keene;
Date 06-01-04; Check No. Electronic; Amount $291.83; Payee USAA;
Date 06-09-04; Check No. 261; Amount $500.00; Payee Dan Keene;
Date 06-09-04; Check No. 263; Amount $97.11; Payee Central Builders’ Supply;
Date 06-09-04; Check No. 266; Amount $13.02; Payee Central Builders’ Supply;
Date 06-09-04; Check No. 270; Amount $250.00; Payee Cash;
Date 06-10-04; Check No. 232; Amount $215.00; Payee Peter Fazio (Construction Lender);
Date 06-11-04; Check No. 267; Amount $85.61; Payee Central Builders’ Supply;
Date 06-10-04; Check No. 273; Amount $400.00; Payee Cash;
Date 06-14-04; Check No. 278; Amount $150.00; Payee Cash;
Date 06-15-04; Check No. 275; Amount $500.00; Payee Dan Keene;
Date 06-15-04; Check No. 287; Amount $100.00; Payee Cash;
Date 06-16-04; Check No. 280; Amount $48.88; Payee Central Builders’ Supply;
Date 06-16-04; Check No. 289; Amount $500.00; Payee Cash;
Date 06-18-04; Check No. 293; Amount $200.00; Payee Cash;
Date 06-21-04; Check No. 294; Amount $1,500.00; Payee Cash;
Date 06-23-04; Check No. 283; Amount $1,000.00; Payee Golden State Flooring;
Date 06-23-04; Check No. 298; Amount $75.00; Payee Cash;
Date 06-25-04; Check No. 284; Amount $1,451.25; Payee Peter Fazio;
Date 06-25-04; Check No. 285; Amount $215.00; Payee Peter Fazio;
Date 06-25-04; Check No. 623; Amount $100.00; Payee Cash;
Date 06-28-04; Check No. 299; Amount $75.00; Payee Cash;
Date 06-28-04; Check No. 300; Amount $150.00; Payee Cash;
Date 07-07-04; Check No. 302; Amount $167.74; Payee Divisadero Lock & Hardware;
Date 07-08-04; Check No. 315; Amount $6,700.00; Payee Down Town Tile;
Date 07-08-04; Check No. 317; Amount $2,800.00; Payee Cash;
Date 07-12-04; Check No. 314; Amount $1,500.00; Payee GGI Stone/Global Granite;
Date 07-12-04; Check No. 320; Amount $1,550.00; Payee Cash;
Date 07-14-04; Check No. 324; Amount $300.00; Payee Cash;
Date 08-03-04; Check No. 347; Amount $30.00; Payee City Cabinets;
Date 08-09-04; Check No. 350; Amount $965.00; Payee DMV;
Date 08-17-04; Check No. 353; Amount $250.00; Payee North Point Appraisal;
Date 08-19-04; Check No. 358; Amount $1,790.00; Payee Peter Fazio;
Date 08-20-04; Check No. 356; Amount $5,000.00; Payee Grgich Electric;
Date 08-20-04; Check No. 359; Amount $500.00; Payee Discount Builders;
Date 08-20-04; Check No. 370; Amount $1,500.00; Payee GGI Stone/Global Granite;
Date 08-23-04; Check No. 373; Amount $550.00; Payee Dan Keene;
Date 08-24-04; Check No. 369; Amount $2,000.00; Payee Bay Area Garage Door;
Date 08-25-04; Check No. 355; Amount $3,853.66; Payee Wells Fargo Home Mortgage;
Date 08-26-04; Check No. 374; Amount $1,225.05; Payee Household Mortgage Service;
Date 08-30-04; Check No. 376; Amount $400.00; Payee Cash;
Date 08-30-04; Check No. 377; Amount $450.00; Payee Cash;
Date 08-31-04; Check No. 375; Amount $41,500.00; Payee Leiro Electric;
In addition, Respondent repeatedly deposited personal funds into his Trust Account, as follows:
Date of Deposit 07-08-03; Amount $30,000.00; Payor Respondent;
Date of Deposit 09-19-03; Amount $500.00; Payor Donna Martin;
Date of Deposit 05-17-04; Amount $300.00; Payor Donna Martin;
Date of Deposit 06-07-04; Amount $500.00; Payor Donna Martin;
Date of Deposit 07-02-04; Amount $750.00; Payor Donna Martin;
Date of Deposit 07-02-04; Amount $1,000.00; Payor Donna Martin
Conclusions of Law.
1. By issuing NSF checks from his trust account, Respondent failed to maintain client funds in trust, in wilful violation of Rules of Professional Conduct, role 4-100(A).
2. By refunding Ford at least $770.00 from the Trust Account, from funds other than those deposited on behalf of Ford, and by paying Bemke Reporting from funds other than those deposited on behalf of the client matter that involved Betake Reporting, Respondent failed to maintain client funds in trust, in wilful violation of Rules of Professional Conduct, role 4-100(A).
3. By failing to deposit the $1,500.00 in his Trust Account in the Song matter, Respondent wilfully failed to deposit funds received for the benefit of a client in trust, in wilful violation of Rules of Professional Conduct, rule 4-I 00(A).
4. Respondent wilfully violated Rules of Professional Conduct, rule 4-100(A), by commingling personal funds in a client trust account by issuing cheeks to pay personal expenses and depositing personal funds into the Trust Account.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was February 24, 2006.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. 04-O-15478; Violation 4-100(A)(2); Count Two;
Case No. 04-0- i 5478; Violation B&P 6106; Count Four;
Case No. 04-0-15478; Violation 4-100(A); Count Five;
Case No. 04-0-15478; Violation 6106; Count Six
The parties waive any variance between the basis for this stipulation and the Notice of Disciplinary Charges.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of February 24, 2006, the estimated prosecution costs in this matter are approximately $ 3,654.00. 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.
Palomo v. State Bar (1984) 36 Cal.3d 785
Vaugh v. State Bar (1972) 6 Cal.3d 847
Fitzsimmons v. State Bar (1983) 34 Cal.3d 327
AGGRAVATING CIRCUMSTANCES.
Standard 1.2 (b)(ii) - multiple acts of wrongdoing
FACTS SUPPORTING AGGRAVATING CIRCUMSTANCES.
Respondent’s commingling covered a one-year period and included over ninety transactions, indicating multiple acts of wrongdoing. He also had multiple NSF transactions.
MITIGATING CIRCUMSTANCES.
Standard 1.2(e)(iii)
Standard 1.2(e)(v)
Standard 1.2(e)(vi)
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
No client has complained about Respondent’s conduct in handling of client funds. In fact, numerous clients, whose funds were involved in these transactions, have written letters on Respondent’s behalf.
Respondent has been candid and cooperative in stipulating to these matters.
Respondent has provided character references from 4 clients, 1 retired judge of the California Court of Appeal, 1 attorney, and 1 friend/member of his community attesting to volunteer activities.
ADDITIONAL MITIGATING CIRCUMSTANCES.
Respondent was undergoing a renovation/remodel of his home. The project went way over budget. Respondent’s stress and financial mismanagement contributed to his misconduct in this matter.
If Respondent were called to testify, he would testify that at least approximately $1,600.00 of the NSF transactions was due to a bank error.
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.
Case Number(s): 04-O-15478
In the Matter of: Phil Martin
a. Restitution
<<not>> checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee:
Principal Amount:
Interest Accrues From:
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. 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.
checked.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3.
The requirements
of this condition are in addition to those set forth in rule 4-100, Rules of
Professional Conduct.
checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
Case Number(s): 04-O-15478
In the Matter of: Phil Martin
checked. a. Within 90 days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
<<not>> checked. b. Within days/ months/ years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-15478
In the Matter of: Phil Martin
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: Phil Martin
Date: 6/1/06
Respondent’s Counsel: Paul Vapnek
Date: June 1, 2006
Deputy Trial Counsel: Robin B. Brune
Date: 6/2/06
Case Number(s): 04-O-15478
In the Matter of: Phil Martin
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:
Date:
[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 June 14, 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:
PAUL W. VAPNEK
TOWNSEND & TOWNSEND & CREW
2 EMBARCADERO CTR 8FL
SAN FRANCISCO, CA 94111 -3834
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ROBIN BRUNE, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on June 14, 2006.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court