Case Number(s): 04-O-15901-PEM; 04-0-15902; 05-0-00710; 05-0-05355
In the Matter of: Ava D. Landers, Bar # 171859, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Cydney Batchelor, Bar # 114637
Counsel for Respondent: Bar #
Submitted to: Program Judge State Bar Court Clerkís Office San Francisco
Filed: January 6, 2010
† <<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 November 22, 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. 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 12 pages.
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 ßß6086.10 & 6140.7 and will pay timely any disciplinary costs imposed in this proceeding.
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† See attached
Additional aggravating circumstances: †
Additional mitigating circumstances:
IN THE MATTER OF: Ava D. Landers, State Bar No. 171859
STATE BAR COURT CASE NUMBER:† 04-O-15901; 04-0-15902; 05-0-00710; 05-0-05355
FACTS AND CONCLUSIONS OF LAW.
Case Number 04-0-15901 (Theresa Gilliland):
Facts: On April 12, 2004, Theresa Gilliland ("Ms. GillilandĒ) first met with respondent and her paralegal, Gina Landers, in connection with a bankruptcy petition. Ms. Gilliland wished to file a bankruptcy petition that required prompt attention because her ex-husband had just filed for bankruptcy, seeking to unilaterally discharge two large auto loans for which he had agreed to be responsible in the coupleís Marital Settlement Agreement and Judgment. Ms. Gilliland sought to avoid collection action by her ex-husbandís creditors, and to protect her own assets, which included real property and her residence. Ms. Gilliland paid respondent $959.00 in advanced fees, including $209.00 for an advanced filing fee. Respondent failed to deposit the advanced costs into a client trust account. Respondent informed Ms. Gilliland that the process would take only a few months. Upon respondentís request, Ms. Gilliland provided respondent with original documents which she was informed would be returned with a copy of the fee agreement. From April 12, 2004 to July 27, 2004, respondent failed to file a bankruptcy petition on behalf of Gilliland. From April 12, 2004, to June 22, 2004, Ms. Gilliland left several telephone messages for respondent requesting art update as to status of her bankruptcy petition. However, respondent failed to respond to Gillilandís telephone calls.
In a letter sent by facsimile to Ms. Gilliland on June 23, 2004, respondent acknowledged her failure to return Ms. Gillilandís telephone calls, and requested that Gilliland provide additional information by facsimile. Respondent further represented that upon receipt of the information, respondent or her paralegal would enter the additional information into the petition and send it out for immediate filing. On June 25, 2004, Ms. Gilliland provided the requested information in Respondentís June 23, 2004 letter to respondent by facsimile and asked respondent to call lf any further clarification was needed. Ms. Gilliland did not hear from Respondent again from June 25, 2004 to August 29, 2004.
On July 27, 2004, the bankruptcy court issued a discharge in Gillilandís ex-husbandís Chapter 7 bankruptcy. Gilliland lost her opportunity to have the bankruptcy court consider both petitions seeking to discharge many of the same debts, and became individually liable to the to the community debts that her husband had discharged. Shortly thereafter, the creditors began calling Gilliland. Gilliland began calling and leaving messages for Respondent, however, she received no response from Respondent until on or about August 30, 2004. On August 30, 2004, Respondent sent Gilliland a letter enclosing a draft of the Chapter 7 bankruptcy petition via facsimile. In her August 30, 2004 letter, Respondent requested two additional items in order to file the petition, including Gillilandís total income for 2002 and a copy of the current appraisal of her residence after the 2003 refinancing. Respondent advised Gilliland that the information could be inserted into the petition after Gilliland signed the petition, but before the petition was filed with the court.
Following August 30, 2004, Ms. Gilliland was unable to reach respondent directly. All subsequent telephone conversations between Ms. Gilliland and the office were with the respondentís administrative assistant - Tori Trujillo ("Ms. Trujillo"). On August 31, 2004, Ms. Gilliland returned the signed Chapter 7 bankruptcy petition with the requested documents, advising that the 2003 appraisal for her Audi II was actually $1000.00 less than the 2002 appraisal. Ms. Gilliland stated that she would contact the title company to obtain a copy of the 2003 appraisal and send it on to respondent.
From August 31, 2004 through October 2004, Ms. Gilliland again attempted to reach respondent by telephone but her messages were unreturned. On November 16, 2004, Ms. Gilliland received a telephone call from Ms. Trujillo advising her that she needed to return the Chapter 7 petition with her original signatures to the office so that her petition could be filed with the Court. On the same day, Ms. Gilliland sent a letter by facsimile to respondent demanding to know why it had taken respondent three months to inform her that the office was waiting for her to return the original documents despite her numerous telephone requests seeking to determine what else was needed. Thereafter, Ms. Gilliland received a telephone call from "Mona" at respondentís office informing her that a courier will be sent to retrieve the signed documents. However, by November 21, 2004, respondent had not dispatched a courier to retrieve the signed petition from Gilliland.
Finally, on November 22, 2004, Ms. Gilliland mailed the documents back to respondent. Between November 22, 2004 and December 6, 2004, Ms. Gilliland left several telephone messages for respondent regarding the status of her petition. Respondent did not return Ms. Gillilandís telephone calls. On December 7, 2004, Ms. Gilliland sent a letter via facsimile to respondent to determine whether the petition had been filed. To date, respondent did not respond to the December 7, 2004 letter.
On December 22, 2004, Ms. Gilliland terminated Respondentís representation and hired another attorney to represent her. On December 22, 2004, the new attorney called respondentís office and spoke with Ms. Trujillo, who said the petition had been filed several days ago. However, the file stamped copy of the petition reflects that it was actually filed on December 22, 2004, the day of the call. On December 22, 2004, the new attorney also requested a refund of $750 ($959.00 minus $209 filing fee) to Ms. Gilliland. In January 2005, after the intervention of the State Bar, respondent refunded $750.00 to Ms. Gilliland.
Conclusions of Law: By repeatedly failing to file Ms. Gillilandís bankruptcy petition for eight months when she knew time was of the essence, and by recklessly failing to properly supervise her administrative staff, respondent recklessly failed to perform legal services competently, in violation of Rule of Professional Conduct 3-110(A). By willfully failing to reply to Ms. Gillilandís telephone status inquiries on numerous occasions, respondent failed to respond promptly to reasonable status inquiries of a client, in violation of Business and Professions Code section 6068(m). By wilfully failing to deposit the $209.00 paid for advanced costs into a client trust account, respondent failed to deposit client funds in a trust account, in violation of Rule of Professional Conduct 4-100(A).
Case Number 04-O-IS902 (Shahbaz Sharif):
Facts: On June 15, 2004, respondent met with Shahbaz Sharif ("Mr. Sharifí) to discuss obtaining an annulment petition in Sharif s ongoing marital dissolution matter. On July 29, 2004, Mr. Sharif met with respondent again and signed a fee agreement and paid $750.00 in advanced fees against a total fee of $1500.00. Mr. Sharif substituted out his previous attorney, by signing a substitution designating respondent as his new attorney of record. On August 4, 2004, the former attorney mailed his signed substitution of counsel form to respondent. However, respondent never filed the substitution of attorney with the court.
On early August 2004, respondent provided Mr. Sharif with a blank Income, Expense and Property Declaration form. On August I 0, 2004, Mr. Sharif signed and mailed his Income and Expense Declaration ("IED") to Respondent. However, respondent never filed the completed IED with the court. On September 15, 2004, Mr. Sharif paid respondent the remaining $750.00 of advanced attorney fees, and provided court documents related to the annulment.† Thereafter, Mr. Sharif waited for respondent to provide the forthcoming court date. However, from September 15, 2004 through January 12, 2005, respondent did not communicate with Mr. Sharif. In fact, respondent provided no services of any value to Mr. Sharif at any time. On January 13, 2005, Mr. Sharif mailed a letter to respondent terminating her representation and requesting a full refund. On January 24, 2005, after the intervention of the State Bar, respondent refunded the full $1500.00 to Mr. Sharif and returned his client file.
Conclusions of Law: By repeatedly failing to file the substitution of counsel and by failing to file the IED on behalf of Sharif, respondent recklessly failed to perform legal services with competence, in violation of Rule of Professional Conduct 3-110(A). By willfully failing to communicate with Mr. Sharif for four months, respondent failed to communicate adequately with his client, in violation of Business and Professions Code section 6068(m).
Case Number 05-000710 (Jenny Miller Woitz):
Facts: In September 2003, Jenny Miller Woltz ("Ms. Woltz") employed respondent to represent her in a modification of child support matter, and paid her $1500.00 in advanced attorney fees as a flat fee. At the time she was employed, respondent was aware that there was a court hearing set for October 21, 2003. On October 7, 2003, respondent filed the substitution of attorney. A few days later, respondent agreed to the request ofí opposing counsel, to continue the hearing scheduled for October 21, 2003. However, respondent and opposing counsel agreed to conduct their meet and confer on October 21, 2003. At the meet and confer, respondent and opposing counsel agreed that opposing counsel would prepare a judgment for submission to the court and that respondent would not seek attorneys fees.
From October 21, 2003 to March 24, 2004, Ms. Woltz repeatedly left telephone messages to inquire about the status of the judgment. Respondent did not reply to any of those messages. On March 25, 2004, Ms. Woltz went to respondentís office in person in order to request the status of the judgment. Respondent informed Ms. Woltz that opposing counsel had not typed the formal agreement and that respondentís office would do so for no additional charge. On June 10, 2004, respondent sent opposing counsel a letter enclosing the redrafted judgment. On June 25, 2004, opposing counsel told respondent on the telephone that an additional disclosure declaration needed to be executed and filed with the judgment. Between July 2004 to October 2004, opposing counsel left several messages for respondent about the declaration; respondent failed to return the calls. On August 2, 2004, Ms. Woltz sent a letter to respondent inquiring about the status of her case; respondent failed to reply. Finally, in December 2004, Ms. Woitz called the Superior Court and confirmed that the judgment had not yet been field. Respondent never filed the judgment, nor did she refund any of the unearned attorney fees to Ms. Woltz, nor did she account to her for the advanced fees.
Conclusions of Law: By repeatedly failing to prepare the re-draft of the judgment in a timely manner, failing to provide the declaration to opposing counsel, and failing to communicate with opposing counsel to resolve the case, respondent repeatedly and recklessly failed to perform legal services with competence, in violation of violation of Rule of Professional Conduct 3-110(A). By willfully failing to reply to the telephone repeated inquiries of Ms. Woltz regarding the status of her case, respondent failed to respond promptly to reasonable status inquiries of a client, in violation of Business and Professions Code section 6068(m).
Case No. 05-05355 (Christine Haldeman)
Facts: in September 2003, respondent was employed by Christine Haldeman to represent her in a guardianship case regarding Ms. Haldemanís daughter. Respondent provided legal services to Ms. Haldeman on several different motions. At the conclusion of one of the motions, Ms. Haldeman requested respondent to have the matter added back on the calendar for another motion. Respondent, and respondentís staff, informed Ms. Haldeman that she could not represent her any further. However, respondent failed to withdraw as counsel of record from the case. In addition, respondent failed to return the client file to Ms. Haldeman promptly upon her request, until after the intervention of the State Bar.
Conclusions of Law: By willfully failing to withdraw properly from the guardianship court case, respondent withdrew from representation without taking reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, in violation of Rule of Professional Conduct 3-700(A)(2). By willfully failing to return the client file promptly to Ms. Haldeman upon her request, respondent failed lo promptly release to the client, at the request of the client, all client papers, in violation of Rule of Professional Conduct 3-700(D)(1).
The disclosure date referred to, on page one, paragraph A.(6), was April 6, 2006.
Facts Supporting Aggravating Circumstances:
Multiple Acts of Misconduct: The misconduct stipulated to herein involved multiple acts of misconduct to multiple clients.
Significant Harm: Respondentís failure to file Ms. Gillilandís bankruptcy matter in a timely matter resulted in her client being hounded by creditors and becoming personally responsible for numerous debts which might have been discharged if the petition had been filed in a timely manner. Respondentís inaction in the Woltz matter has resulted in Ms. Woltz matter not being resolved.
Facts Supporting Mitigating Circumstances.
Candor and cooperation, Respondent has been completely candid and cooperative with the State Bar during its investigation and resolution of these cases.
Marital and emotional difficulties: During the time of the misconduct, respondentís marriage was disintegrating, and she separated from her husband twice, and then divorced.
Financial difficulties: As a result of her marital problems, respondent suffered extreme financial problems during the period of the misconduct, including payment of extensive attorney fees, assumption of large community debt, and refinancing of her home.
Additional Mitigating Circumstances.
No prior discipline: Although the stipulated misconduct is serious, it is worth noting that Respondent had had no prior record of discipline since being admitted in 1994.
Refund of attorney fees: Although she did not do so until after the intervention of the State Bar, Respondent voluntarily refunded all advanced attorney fees to Ms. Gilliland and Mr. Sharif. In addition, as a further demonstration of her remorse, respondent has agreed to refund all advanced attorney fees to Ms. Woltz.
Participation in Lawyerís Assistance Program. On November 21, 2005, respondent contacted the State Bar Lawyer Assistance Program ("LAP") and completed the intake process. On December 5, 2005, respondent signed a pre-enrollment assessment agreement with LAP. Respondent is in the process of being evaluated for acceptance into LAP on a long term basis.
Respondent waives any objection to immediate payment by the State Bar Client Sectary Fund upon a claim or claims for the principal amounts of restitution set forth below:
In accordance with the timetable set forth in the State Bar Court alternative discipline program contract to be executed between the State Bar Court and Respondent on the captioned case, Respondent must make restitution as follows:
Jenny Miller Woltz, or the Client Security Fund if it has paid on her behalf, in the principal amount of $1500.00, plus interest at the rate of 10% per annum from September 13, 2003, until paid in full and furnish satisfactory evidence of restitution to the State Bar Court.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-15901-PEM, et al.
In the Matter of: Ava D. Landers
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 Respondentís 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 Respondentís 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 Statement Re: Discipline shall be Imposed or recommended to the Supreme Court.
Respondent: Ava D. Landers
Deputy Trial Counsel: Cydney Batchelor
Case Number(s): 04-O-15901-PEM, et al.
In the Matter of: Ava D. Landers
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 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; or 3) Respondent is not accepted for participation in the Program or does not sign the Program Contract. (See rule 135(b) and 802(d), Rules of Procedure.)
Judge of the State Bar Court: Joann M. Remke