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