State
Bar Court of California
Hearing
Department
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
STAYED SUSPENSION; NO ACTUAL SUSPENSION
Case Number(s): 05-H-04910
In the Matter of: David T. Marh, Bar # 206917 A Member of
the State Bar of California, (Respondent).
Counsel For The State Bar: Christine Souhrada, Bar # 228256
Counsel for Respondent: Susan L. Margolis, Bar # 104629
Submitted to: settlement judge State Bar Court Clerk’s
Office Los Angeles
Filed: May 15, 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.
A. Parties' Acknowledgments:
1. Respondent is a member of the State Bar of California,
admitted June 1, 2000.
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 10 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):
a <<not>>
checked. costs added to membership fee for calendar year following effective
date of discipline.
b checked. costs
to be paid in equal amounts prior to February 1 for the following membership
years: 2007, 2008 (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.
B. Aggravating Circumstances [for definition, see Standards for
Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts
supporting aggravating circumstances are required.
checked. (1) Prior record of
discipline [see standard 1.2(f)].
checked. (a) State Bar Court case
# of prior case 02-O-10470
checked. (b) Date prior
discipline effective 12/16/03
checked. (c) Rules of
Professional Conduct/ State Bar Act violations: 3-110 (A), 4-100 (B) (1), 4-100
(A)
checked. (d) Degree of prior discipline
Public Reproval
<<not>> checked. (e) If
Respondent has two or more incidents of prior discipline, use space provided
below or a separate attachment entitled “Prior Discipline”. .
<<not>> checked. (2) Dishonesty:
Respondent's misconduct was surrounded by or followed by bad faith, dishonesty,
concealment, overreaching or other violations of the State Bar Act or Rules of
Professional Conduct.
<<not>> checked. (3) Trust
Violation: Trust funds or property were involved and Respondent refused or was
unable to account to the client or person who was the object of the misconduct
for improper conduct toward said funds or property.
<<not>> checked. (4) Harm:
Respondent's misconduct harmed significantly a client, the public or the
administration of justice.
<<not>> checked. (5) Indifference:
Respondent demonstrated indifference toward rectification of or atonement for
the consequences of his or her misconduct.
<<not>> checked. (6) Lack of
Cooperation: Respondent displayed a lack of candor and cooperation to victims
of his/her misconduct or to the State Bar during disciplinary investigation or
proceedings.
<<not>> checked. (7) Multiple/Pattern
of Misconduct: Respondent's current misconduct evidences multiple acts of
wrongdoing or demonstrates a pattern of misconduct.
<<not>>checked. (8) No
aggravating circumstances are involved.
Additional aggravating circumstances:
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
<<not>> checked. (1) No Prior
Discipline: Respondent has no prior record of discipline over many years of
practice coupled with present misconduct which is not deemed serious.
<<not>> checked. (2) No Harm:
Respondent did not harm the client or person who was the object of the misconduct.
<<not>>checked. (3) Candor/Cooperation:
Respondent displayed spontaneous candor and cooperation to the State Bar during
disciplinary investigation and proceedings. Respondent cooperated fully
throughout this matter.
<<not>> checked. (4) Remorse:
Respondent promptly took objective steps spontaneously demonstrating remorse
and recognition of the wrongdoing, which steps were designed to timely atone
for any consequences of his/her misconduct.
<<not>> checked. (5) Restitution:
Respondent paid $ on in restitution to without the threat or force of
disciplinary, civil or criminal proceedings.
<<not>> checked. (6) Delay:
These disciplinary proceedings were excessively delayed. The delay is not
attributable to Respondent and the delay prejudiced him/her.
<<not>> checked. (7) Good
Faith: Respondent acted in good faith.
<<not>>checked. (8) Emotional/Physical
Difficulties: At the time of the stipulated act or acts of professional
misconduct Respondent suffered extreme emotional difficulties or physical
disabilities which expert testimony would establish was directly responsible
for the misconduct. The difficulties or disabilities were not the product of
any illegal conduct by the member, such as illegal drug or substance abuse, and
Respondent no longer suffers from such difficulties or disabilities.
<<not>>checked. (9) Family
Problems: At the time of the misconduct, Respondent suffered extreme
difficulties in his/her personal life which were other than emotional or
physical in nature.
<<not>> checked. (10) Severe
Financial Stress: At the time of the misconduct, Respondent suffered from
severe financial stress which resulted from circumstances not reasonably
foreseeable or which were beyond his/her control and which were directly
responsible for the misconduct.
<<not>> checked. (11) Good
Character: Respondent's good character is attested to by a wide range of
references in the legal and general communities who are aware of the full extent
of his/her misconduct.
<<not>> checked. (12) Rehabilitation:
Considerable time has passed since the acts of professional misconduct occurred
followed by convincing proof of subsequent rehabilitation.
<<not checked>> (13) No
mitigating circumstances are involved.
Additional mitigating circumstances:
D. Discipline:
checked. (1) Stayed Suspension:
checked
(a) Respondent must be suspended from the practice of law for a period of 1
year
<<not>>checked.
i. and until Respondent shows proof satisfactory to the State Bar Court of
rehabilitation and present fitness to practice and present learning and ability
in the law pursuant to standard 1.4(c)(ii) Standards for Attorney Sanctions for
Professional Misconduct.
<<not>>
checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
<<not>>
checked. iii. and until Respondent does the following: .
checked.
(b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent
must be placed on probation for a period of 2 years, which will commence upon
the effective date of the Supreme Court order herein. (See rule 953,
California Rules of Court.)
E. Additional Conditions of Probation:
checked. (1) During the probation
period, Respondent must comply with the provisions of the State Bar Act and
Rules of Professional Conduct.
checked. (2) Within ten (10) days
of any change, Respondent must report to the Membership Records Office of the
State Bar and to the Office of Probation of the State Bar of California
("Office of Probation"), all changes of information, including
current office address and telephone number, or other address for State Bar
purposes, as prescribed by section 6002.1 of the Business and Professions Code.
checked. (3) Within thirty (30)
days from the effective date of discipline, Respondent must contact the Office
of Probation and schedule a meeting with Respondent's assigned probation deputy
to discuss these terms and conditions of probation. Upon the direction of the
Office of Probation, Respondent must meet with the probation deputy either
in-person or by telephone. During the period of probation, Respondent must
promptly meet with the probation deputy as directed and upon request.
checked. (4) Respondent must
submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10
of the period of probation. Under penalty
of perjury, Respondent must state whether Respondent has complied with the
State Bar Act, the Rules of Professional Conduct, and all conditions of
probation during the preceding calendar quarter. Respondent must also state
whether there are any proceedings pending against him or her in the State Bar
Court and if so, the case number and current status of that proceeding. If the
first report would cover less than 30 days, that report must be submitted on
the next quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same
information, is due no earlier than twenty (20) days before the last day of the
period of probation and no later than the last day of probation.
<<not>> checked. (5) Respondent
must be assigned a probation monitor. Respondent must promptly review the terms
and conditions of probation with the probation monitor to establish a manner
and schedule of compliance. During the period of probation, Respondent must
furnish to the monitor such reports as may be requested, in addition to the
quarterly reports required to be submitted to the Office of Probation.
Respondent must cooperate fully with the probation monitor.
checked. (6) Subject to assertion
of applicable privileges, Respondent must answer fully, promptly and truthfully
any inquiries of the Office of Probation and any probation monitor assigned
under these conditions which are directed to Respondent personally or in
writing relating to whether Respondent is complying or has complied with the
probation conditions.
<<not>>checked. (7) Within one
(1) year of the effective date of the discipline herein, Respondent must
provide to the Office of Probation satisfactory proof of attendance at a
session of the Ethics School, and passage of the test given at the end of that
session.
checked. No Ethics School recommended.
Reason: attended ethics school within the last 2 years (on May 13, 2004).
<<not>> checked. (8) Respondent
must comply with all conditions of probation imposed in the underlying criminal
matter and must so declare under penalty of perjury in conjunction with any
quarterly report to be filed with the Office of Probation.
checked. (9) The following
conditions are attached hereto and incorporated:
<<not>>
checked. Substance Abuse Conditions.
checked. Law
Office Management Conditions.
<<not>>
checked. Medical Conditions.
checked. Financial
Conditions.
F. Other Conditions Negotiated by the Parties:
checked. (1) Multistate
Professional Responsibility Examination: Respondent must provide proof of
passage of the Multistate Professional Responsibility Examination
("MPRE"), administered by the National Conference of Bar Examiners,
to the Office of Probation within one year. Failure to pass the MPRE results
in actual suspension without further hearing until passage. But see rule 951 (b),
California Rules of Court, and rule 321 (a)(1) & (c), Rules of Procedure.
** See page 8, section IV.
<<not>>
checked. No MPRE recommended. Reason:
<<not>>checked. (2) Other
Conditions:
Attachment to
Stipulation Re Facts, Conclusions of Law and Disposition
in the Matter
of David T. Marh
Case no.
05-H-04910
I. Facts
1. On
November 13, 2003, Respondent entered into and executed a Stipulation as to
Facts and Disposition ("Stipulation") with the State Bar of
California in case no. 020-10470.
2. On
November 25, 2003, the State Bar Court filed an Order approving the stipulation
and imposing upon Respondent a public reproval with conditions ("the
Order"). The Order was served upon Respondent.
3. The Order
became effective December 16, 2003.
4. Pursuant
to the Order, Respondent was required to comply with certain terms and
conditions attached to the reproval including the following:
a. Respondent
was required to timely file quarterly reports.
b. If
Respondent possessed client funds at any time during the period covered by the
quarterly report, he was required to file a certificate from Respondent and or
a certified public accountant and or other financial professional attesting to his
proper maintenance and handling of client trust funds.
c. Respondent
was required to take and pass the MPRE.
d. Respondent
was required to complete six hours of MCLE instruction and submit proof of
completion to the probation department within two years of the effective date
of the discipline.
5. Respondent
subsequently filed seven of his quarterly reports late as follows:
a. Quarterly
Report due October 10, 2005, filed on October 19, 2005
b. Quarterly
Report due July 10, 2005, filed on August 16, 2005
c. Quarterly
Report due April 10, 2005, filed on April 22, 2005
d. Quarterly
Report due January 10, 2005, filed on February 2, 2005
e. Quarterly
Report due October 10, 2004, filed on November 1, 2004
f. Quarterly
Report due July 10, 2004, filed on July 16, 2004
g. Quarterly
Report due April 10, 2004, filed on June 3, 2004
6. Respondent
failed to file his client trust funds reports due in July and October of 2004,
until February of 2005.
7. Proof of
completion of six hours of MCLE courses were due to probation by December 16,
2005; however, respondent did not file the proof of completion until March 21,
2006.
8.
Respondent’s final report due was due December 16, 2005, but was not filed
until December 19, 2005.
9.
Respondent’s final client trust funds report was due December 16, 2005, but was
not filed until March 20, 2006.
10.
Respondent has not passed the MPRE to date, despite several attempts to do so.
II.
Conclusions of Law
11. By
failing to comply with the conditions of his reproval as set forth above,
Respondent willfully violated California Rules of Professional Conduct, Rule
1-110.
III.
Supporting Authority
12. Standard
2.9 states "Culpability of a member of a willful violation of rule 1110,
Rules of Professional Conduct, shall result in suspension."
IV. Addendum
to Multistate Professional Responsibility Examination Requirement
13. Proof of
passage of the MPRE within the six-month period prior to the effective date of
the Supreme Court’s order in this matter shall satisfy this condition.
V. Mitigation
14.
Respondent cooperated with the State Bar in their investigation and in coming
to a stipulation.
VI. Estimate
of Costs of Disciplinary Proceedings
15.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed
Respondent that as of April 24, 2006, the estimated prosecution costs in this
matter are approximately $1,636. Respondent acknowledges that this figure is an
estimate only. 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.
SIGNATURE OF THE PARTIES
Case Number(s): 05-H-04910
In the Matter of: David T. Marh
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: David
T. Marh
Date: 5/3/06
Respondent’s
Counsel: Susan L. Margolis
Date: 5/3/06
Deputy Trial
Counsel: Christine Souhrada
Date: 5/8/06
ORDER
Case Number(s): 05-H-04910
In the Matter of: David T. Marh
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: Richard A. Platel
Date: 05-12-06
CERTIFICATE
OF SERVICE
[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 May 15, 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 Los Angeles, California, addressed as follows:
SUSAN L
MARGOLIS
MARGOLIS
& MARGOLIS LLP
2000
RIVERSIDE DR
LOS ANGELES
CA 90039
checked.
by interoffice mail through a facility regularly maintained by the State Bar of
California addressed as follows:
CHRISTINE
SOUHRADA, Enforcement, Los Angeles
I hereby
certify that the foregoing is true and correct. Executed in Los Angeles, California,
on May 15, 2006.
Signed by:
Johnnie Lee
Smith
Case
Administrator
State Bar
Court