State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

ACTUAL SUSPENSION

 

Case Number(s): 05-J-04474

In the Matter of: Charles Hernan Carreon, Bar # 127139, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Erin McKeown Joyce, Bar # 149946

Counsel for Respondent: Peter R. Jarvis, Bar # 219751

Submitted to: assigned judge State Bar Court Clerk’s Office Los Angeles

Filed: April 10, 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 January 14, 1987.

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 20 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 two (2) billing cycles following the effective date of the Supreme Court Order.  (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.

B.       Aggravating Circumstances [for definition, see Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts supporting aggravating circumstances are required.

<<not>> checked. (1) Prior record of discipline [see standard 1.2(f)]

<<not>> checked. (a)          State Bar Court case # of prior case .
<<not>> checked. (b)          Date prior discipline effective .
<<not>> checked. (c)           Rules of Professional Conduct/ State Bar Act violations:
<<not>> checked. (d)          Degree of prior discipline  
<<not>> checked. (e)          If Respondent has two or more incidents of prior discipline, use space provided below. .

<<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.

 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 with the victims of his/her misconduct and to the State Bar during disciplinary investigation and proceedings. 

<<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)    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. (10) 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. (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: 

 

Respondent has no prior imposition of discipline in California or Oregon in over 15 years of practice.

 

D. Discipline:

checked. (1)           Stayed Suspension:

 checked. (a) Respondent must be suspended from the practice of law for a period of two (2) years
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 , which will commence upon the effective date of the Supreme Court order in this matter.  (See rule 953, Calif. Rules of Ct.)

checked. (3) Actual Suspension:

 checked. (a) Respondent must be actually suspended from the practice of law in the State of California for a period of sixty (60) days.
<<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:

 

E. Additional Conditions of Probation:

<<not>> checked. (1) If Respondent is actually suspended for two years or more, he/she must remain actually suspended until  he/she proves to the State Bar Court his/her rehabilitation, fitness to practice, and learning and ability in the general law, pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct.

 checked. (2)                During the probation period, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

 checked. (3)                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. (4)                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. (5)                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. (6) 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. (7)                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.

 checked. (8)                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.

<<not checked>> No Ethics School recommended.  Reason:

<<not>> checked. (9) 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.

<<not>> checked. (10)        The following conditions are attached hereto and incorporated:

<<not>> checked. Substance Abuse Conditions.
<<not>> checked. Law Office Management Conditions.
<<not>> checked. Medical Conditions.
<<not>> 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 during the period of actual suspension or within one year, whichever period is longer.  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.


<<not>> checked. No MPRE recommended.  Reason:

<<not>> checked. (2)         Rule 955, California Rules of Court:  Respondent must comply with the requirements of rule 955, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.

<<not>> checked. (3)         Conditional Rule 955, California Rules of Court:  If Respondent remains actually suspended for 90 days or more, he/she must comply with the requirements of rule 955, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 120 and 130 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.

<<not>> checked. (4)         Credit for Interim Suspension [conviction referral cases only]:  Respondent will be credited for the period of his/her interim suspension toward the stipulated period of actual suspension. Date of commencement of interim suspension:

<<not>> checked. (5)         Other Conditions:

 

 


ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

 

IN THE MATTER OF: CHARLES HERNAN CARREON

 

CASE NUMBER: 05-J-04474

 

FACTS AND CONCLUSIONS OF LAW.

 

1. Respondent was admitted to the practice of law in California on January 14, 1987, was a member at all times pertinent to these charges and is currently a member of the State Bar of California.

 

2. Respondent was admitted to practice law in Oregon on September 27, 1993, was a member at all times pertinent to these charges and is currently a member of the Oregon State Bar.

 

3. On January 19, 2005, a Formal Complaint was filed against Respondent pursuant to the authorization of the Oregon State Professional Responsibility Board ("SPRB"), alleging violation of DR 3-101(13) [unlawful practice of law] and DR 9-101(A) [failure to deposit or maintain client funds in trust].

 

4. On October 4, 2005, the Supreme Coma of the State of Oregon issued an order imposing a sixty day actual suspension on Respondent for violation of DR-3-101(B) and DR 9101(A). This disciplinary order was based on a stipulation entered into between the SPRB and Respondent on September 23, 2005. True and correct copies of the October 4, 2005 disciplinary order and September 23, 2005 stipulation are collectively attached hereto as Exhibit 1.

 

5. The facts and circumstances underlying the Formal Complaint brought by the SPRB are as follows:

 

6. In October 2001, Respondent was hired by Sweet Entertainment Group and Sweet Productions, Inc. (collectively "SEG"), a U.S. corporation, on a non-exclusive basis to function as house counsel for its. U.S. legal matters and business operations in Vancouver, British Columbia, Canada.

 

7. Respondent is not, and at all time mentioned herein was not, an attorney duly admitted or licensed to practice law in the province of British Columbia or the country of Canada.

 

8. Under British Columbia Law Society Rule ("BC Rules") 2-18, a lawyer wishing to practice only foreign law in British Columbia, Canada, must complete an application, submit it with a fee to the Executive Director and obtain a permit to act as a practitioner of foreign law in British Columbia. Respondent did not apply for or obtain admission as a practitioner of foreign law under BC Rule 2-18.

 

9. From Pall 2001 through Spring 2002, Respondent acted as house counsel for SEG and engaged in the practice of law in British Columbia, Canada, a violation of BC Rules.

 

10. As counsel for SEG, Respondent hem in trust settlement proceeds for the benefit

of SEG received in connection with a litigation matter.

 

11. On October 11, 2002, without consulting SEG or obtaining SEG’s express consent, Respondent used $1,400.00 of the settlement proceeds to pay a money judgment that had been obtained for a residential lease he signed in connection with Respondent’s employment in Canada. At the time, Respondent knew or in the absence of gross negligence, should have known that SEG disputed whether Respondent was entitled to payment for the lease as a reimbursable expense.

 

12. The Oregon October 4, 2005 disciplinary order found a violation of the duty to maintain client funds in trust as the result of Respondent’s payment of the lease judgment. There was no finding of misappropriation, due to Respondent’s good faith belief that he had the authority to pay the lease judgment incurred as the result of his employment with SEG with the SEG settlement funds.

 

CONCLUSIONS OF LAW

 

By practicing law in a jurisdiction where to do so was in violation of regulations of the profession in that jurisdiction, Respondent violated DR 3-101(B) of Oregon’s Code of Professional Responsibility. DR 3-101(B) provides:

 

A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

 

This misconduct also constituted a violation of California Rule of Professional Conduct 1-300(B).

 

By failing to maintain client funds in an attorney trust account, Respondent violated DR 9-101(A) of Oregon’s Code of Professional Responsibility. This misconduct also constituted a violation of California Rule of Professional Conduct 1-300(B).

 

AUTHORITIES SUPPORTING DISCIPLINE.

 

STANDARDS FOR ATTORNEY SANCTIONS

 

Pursuant to Standard 1.3 of the Standards for Professional Misconduct:

 

The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the protection of public confidence in the legal profession.

 

Pursuant to Standard 2.10 of the Standards for Professional Misconduct:

 

Culpability of a member of a violation of any provision of the Business and Professions Code not specified in these standards or of a wilful violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.

 

Pursuant to Standard 2.2(b) of the Standards for Professional Misconduct:

 

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 Misconduct, none of which offenses result in the wilful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances.

 

Rule 4-100(A) provides that:

 

All funds received or held for the benefit of clients by a member or law firm, including advances for costs and expenses, shall be deposited into one or more identifiable bank accounts labeled "Trust Account," "Client’s Funds Account," or words of similar import, maintained in the State of California.

 

Where there is a dispute as to ownership or control of such client funds, Respondent cannot unilaterally make a determination as to the allocation of such funds. McKnight v. State Bar (1991) 53 Cal.3d 1025 (Misconduct including failure to deposit into client trust account all of client’s funds received from corporate dissolution, use of such funds without the client’s knowledge or consent, and failure to repay funds as agreed warrants five year suspension, including one year actual suspension and seven year probation, including restitution order); Most v. State Bar (1967) (Attorney may not unilaterally determine his own fee and withdraw funds held in trust for client, without knowledge or consent of client).

 

In this case, the Oregon October 4, 2005 disciplinary order provided that Respondent’s payment of the lease judgment as a business expense chargeable to SEG was in good faith - and did not constitute wilful misappropriation. Based on the facts and circumstances of this reciprocal discipline ease, the preferred suspension is appropriate.

 

The October 4, 2005 disciplinary order in the State of Oregon imposed a sixty day actual suspension, which in view of Standards 1.3 and 2.10 is sufficient to protect the public and the profession in California. Accordingly the stipulation discipline is warranted.

 

AGREEMENTS AND WAIVERS PURSUANT TO BUSINESS AND PROFESSIONS CODE SECTION 6049.1.

 

Respondent acknowledges that he has been disciplined in the State of Oregon for acts that would warrant discipline he by the State Bar of California under the laws or rules binding upon members of the State Bar at the time he committed misconduct in Oregon. Respondent acknowledges that his conduct in Oregon, if charged by the State Bar of California, would have resulted in a finding of culpability for violation of Rules of Professional Conduct rule 1-3000 B) [unauthorized practice of law in another jurisdiction] and rule 4-100(A)[failure to maintain client funds in account].

 

Respondent acknowledges that the proceeding in Oregon provided respondent with fundamental constitutional protection.

 

PENDING PROCEEDINGS.

 

The disclosure date referred to, on page one, paragraph A.(7), was February 1, 2006.

 


SIGNATURE OF THE PARTIES

Case Number(s): 05-J-04474

In the Matter of: Charles Hernan Carreon

 

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: Charles Hernan Carreon

Date: 3/8/2006

 

Respondent’s Counsel: Peter R. Jarvis

Date: 3/10/06

 

Deputy Trial Counsel: Erin M. Joyce

Date: 3-16-06

 


ORDER

Case Number(s): 05-J-004474

 

In the Matter of: Charles Hernan Carreon

 

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 5.58 (E) & (F), 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 9.18(a), California Rules of Court.)

 

Signed by:

Judge of the State Bar Court:  Richard A. Honn

Date: 4/6/06

 

 


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 April 10, 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:

 

PETER R JARVIS ESQ

HINSHAW & CULBERTSON LLP

1000 SW BROADWAY #1950

PORTLAND, OR 97205

 

checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

 

Erin M. Joyce, Enforcement, Los Angeles

 

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on April 10, 2006.

 

Signed by:

Julieta E. Gonzales

Case Administrator

State Bar Court