Case Number(s): 05-0-00678 - DFM; 05-0-01895; Investigation Case Nos. 8-O-12106; 08-0-13752
In the Matter of: Leroy Bishop Austin, Bar # 175497, A Member of the State Bar of California, (Respondent)
Counsel For The State Bar: Eli D. Morgenstern, Bar # 190560
Counsel for Respondent: James I. Ham, Bar # 100849
Submitted to: Settlement Judge State Bar Court Clerk’s Office
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 December 31, 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.
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 23 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: (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.
Although the current misconduct cannot be deemed “not serious,” Respondent has been a member of the State Bar since December 31, 1994 and has no prior record of discipline.
IN THE MATTER OF: LEROY BISHOP AUSTIN
CASE NUMBERS: 05-0-00678 and 05-O-01895 Investigation Case Nos. 08-O- 12106 and 08-0-13752
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and Rules of Professional Conduct.
Case No. 05-0-00678
Facts
1. On August 22, 2001, Sharon Arnwine ("Arnwine") employed Respondent to represent her in a dissolution matter. In or about August 2001, Arnwine paid Respondent $2,000 in advanced attorney’s fees. Thereafter, Arnwine did not pay Respondent any additional legal fees.
2. On September 5, 2001, Respondent filed a Petition for Dissolution on behalf of Arnwine entitled Sharon F. Arnwine v. Marshall L. Arnwine Los Angeles Superior Court, case No. BD354094 (the "dissolution action"). Respondent served Marshall L. Arnwine ("Marshall") with a copy of the petition. Arnwine instructed Respondent that she wished, if possible, to resolve the dissolution proceeding through negotiation and settlement rather than through litigation. Respondent did not file any other documents with the court in the dissolution action until January 29, 2003.
3. On October 23, 2001, Respondent met with Arnwine and Marshall regarding settling the dissolution action.
4. On October 29, 2001, Arnwine wrote Respondent providing him with her counterproposal to a settlement offer made by Marshall at the October 23, 2001 meeting. On October 29, 2001, Arnwine sent her settlement offer to Respondent by facsimile. Respondent received the October 29, 2001 facsimile. Although settlement proposals were exchanged between Arnwine and Marshal at that time, they did not reach agreement on settlement terms.
5. On February 13, 2002, Respondent served Marshall with form interrogatories. On March 5, 2002, Respondent served Marshall with a demand for production of documents.
6. On March 11, 2003, the court in the dissolution action issued a notice stating that the Trial Setting Conference (TSC) was scheduled for May 9, 2003. Respondent received notice of the TSC.
7. On March 26, 2003, Respondent wrote Marshall with a settlement offer in the dissolution action.
8. On May 9, 2003, the court held the TSC in the dissolution action. Attorney Tasha L. Baloney ("Baloney") appeared on behalf of Respondent. During the May 9, 2003 hearing, the court stated that counsel would need to file a motion to compel discovery if counsel wanted the motion heard by the court. The court stated that if the proper motion was filed with court, the court would likely grant it and award sanctions. The TSC was continued to August 27, 2003.
9. On May 9, 2003, Baloney prepared a memorandum for Respondent reporting on the results of the May 9, 2003, hearing, including the court’s statement regarding the motion to compel. Respondent received the May 9, 2003 memorandum from Baloney.
10. In or about August 2003, Marshall employed attorney Robert Randall ("Randall") to represent him in the dissolution action.
11. On November 19, 2003, Respondent and Randall appeared at the TSC in the dissolution action. The court continued the matter to December 3, 2003.
12. On November 20, 2003, Randall wrote Respondent regarding the discovery, custody, and support issues pending in the dissolution action. Randall properly mailed the letter. Respondent received the letter but did not respond in writing.
13. On August 18, 2004, Respondent and Arnwine met to discuss the dissolution action. Arnwine understood Respondent to have told her at the meeting that a hearing was scheduled for August 24, 2004, in the dissolution action. In fact, a hearing was not scheduled for August 24, 2004.
14. On August 24, 2004, Arnwine appeared in court and learned that her matter was not on calendar and that Respondent was not at the court.
15. On August 25, 2004, Arnwine wrote Respondent regarding what she perceived as delays in her dissolution action. In her August 25, 2004 letter, Arnwine told Respondent that she was in court on August 24, 2004, and her matter was not on the court’s calendar. In the letter, Arnwine insisted that her matter move forward. Respondent received the August 25, 2004 letter but did not respond to that letter in writing.
16. For the next month, Arnwine called Respondent’s office daily leaving messages inquiring about the status of her case. Respondent did not respond to Arnwine’s messages.
17. As of September 2004, Arnwine had been unable to contact Respondent. As a result, on. September 10, 2004, Kiyo D. Oden ("Oden"), Arnwine’s nephew and an attorney, wrote Respondent regarding Arnwine’s inability to contact Respondent. In the September 10, 2004 letter, Oden stated that Arnwine was unaware of the status of her matter and asked Respondent to contact her immediately to discuss the status of the dissolution action. In the September 10, 2004 letter, Oden told Respondent that if Respondent could not give Arnwine’s case the time and attention it required, then he should advise her of this so that she could retain new counsel. Respondent received Oden’s letter but did not respond to it.
18. On September 22, 2004, Arnwine was able to contact Respondent regarding the dissolution action. During the September 22, 2004 conversation, Respondent told her that he could attempt to at least get Arnwine divorced and work towards settling any remaining issues at a later time.
19. In or about October 2004, Arnwine employed a new attorney to handle her dissolution action.
20. On October 21, 2004, Arnwine wrote Respondent terminating his services in the dissolution action as of October 11, 2004. In the October 21, 2004 letter, Arnwine requested her file, a billing statement, and any balance remaining on the retainer. Respondent received the letter but failed to respond.
21. On October 25, 2004, the new attorney substituted into the dissolution action.
22. On April 21, 2005, the parties in the dissolution action filed a settlement agreement.
Conclusions of Law
By not responding to Arnwine’s August 25, 2004, letter and Oden’s September 10, 2004 letter, and by not responding to Arnwine’s telephone calls during August and September 2004, and by not responding to Arnwine’s request for a billing statement in the October 21, 2004 letter terminating his services, Respondent failed to respond to reasonable status inquiries of a client in wilful violation of Business and Professions Code section 6068(m).
Case No. 05-0-01895
Facts
1. On .May 15, 2000, Sandra Guadalupe Rodriguez ("Rodriguez") was hit by an automobile. Rodriguez was four years old at the time of the accident. Rodriguez’s mother, Sandra Acosta ("Acosta"), claimed to have witnessed her daughter’s accident.
2. In or about June 2000, Acosta employed Respondent to handle the personal injury matter on behalf of Rodriguez and Acosta’s potential claim for infliction of emotional distress.
3. On July 13, 2000, Respondent wrote Mercury Insurance Company stating that he was representing both Rodriguez and Acosta in their respective matters. Mercury Insurance was the carrier for Pascual Ramirez, the driver who hit Sandra Guadalupe Rodriguez.
4. On July 28, 2000, Rondalyn Spurlock ("Spurlock"), a claims examiner for Mercury Insurance, wrote Respondent acknowledging receipt of his letter of representation.
5. On August 18, 2000, Spurlock spoke to Respondent’s employee, Florence, who scheduled a time for Acosta to provide a statement to Mercury Insurance. The parties subsequently agreed that the interview would take place on September 20, 2000.
6. On or about September 20, 2000, Mercury Insurance interviewed Acosta about her daughter’s personal injury matter. Acosta stated that she did not witness the automobile hitting her daughter, but did see her thrown into the air from the impact.
7. On or about May 14, 2001, Respondent filed a civil complaint alleging negligent infliction of emotional distress on behalf of Acosta entitled Sandra Rodriguez v. Pascual Neri Ramirez, Los Angeles Superior Court, case No. 01K09033 (the "personal injury action").
8: At no time has Respondent filed a complaint on behalf of Rodriguez in connection with her personal injury claim. Rodriguez is still a minor, and the statute of limitations is tolled until Rodriguez reaches majority.
9. On June 12, 2001, counsel filed a response in the personal injury action on behalf of defendant Pascual Ramirez.
10. On July 26, 2001, defense counsel properly served Respondent with interrogatories and a demand for production, inspection, and copying of documents. Respondent received the discovery requests but did not inform Acosta that she had been served with discovery requests.
11. As of November 2, 2001, Respondent had not responded to the discovery served by the defendant on July 26, 2001, and had not contacted defense counsel regarding an extension. Therefore, on November 2, 2001, defense counsel wrote Respondent regarding the discovery. In the November 2, 2001 letter, defense counsel unilaterally granted Respondent a ten-day extension to comply with the discovery requests. Respondent had not requested this extension. Respondent received the November 2, 2001 letter but failed to respond.
12. By November 2, 2001, Respondent had concluded that, in his legal judgment, Acosta did not have a viable cause of action for infliction of emotional distress because she had not actually witnessed the accident. Respondent therefore decided that he would not prepare answers to the outstanding discovery. Respondent did not advise Acosta that he had determined that she did not have a viable cause of action, that she had been served with discovery requests, and that he did not intend to prepare answers to the discovery.
13. On November 8, 2001, the court held an OSC in the personal injury action. Respondent did not appear at the November 8, 2001 OSC, and the court continued the OSC to December l 1, 2001. In addition, the court ordered a trial setting memorandum be filed by the parties by December 6, 2001. Respondent received the court’s November 8, 2001 minute order. The Court did not sanction Respondent for his failure to appear at the November 8, 2001 OSC.
14. On November 21, 2001, Respondent filed the trial setting memorandum in the personal injury action. However, the plaintiff’s address in the memorandum did not match the address previously submitted to the court on behalf of Acosta. Therefore, on December 3, 2001, the court in the personal injury action asked Respondent to submit a new trial setting memorandum. Respondent received the court’s December 3, 2001 notice.
15. On or about December 11, 2001, Respondent appeared at the OSC in the personal injury action. The court took the OSC off calendar.
16. As of January 14, 2002, Respondent had not filed a new memorandum to set the case for trial. Therefore, on or about January 14, 2002, the court set an OSC for October 2, 2002, regarding Respondent’s failure to file the memorandum. Respondent received the court’s notice.
17. On or about February 8, 2002, defense counsel in the personal injury action filed a motion to compel responses to the inspection demand and filed a motion to compel responses to the interrogatories. The hearing regarding the motions to compel was scheduled for March 7, 2002. Respondent received the motions to compel. Respondent did not file a response to the motions.
18. On March 7, 2002, the court held a hearing regarding the motions to compel filed by the defendant in the personal injury action. Respondent did not appear at the March 7, 2002 hearing. On March 7, 2002, the court granted the motions to compel and ordered Acosta to pay sanctions in the amount of $523.
19. On March 8, 2002, defense counsel filed a Notice of Ruling regarding the March 7, 2002 hearing setting forth the court’s rulings and sanctions order. Respondent received the March 8, 2002 Notice of Ruling.
20. Respondent did not inform Acosta of the Court’s March 7, 2002 rulings.
21. On April 19, 2002, defense counsel filed a motion for terminating sanctions based on plaintiff’s failure to comply with the court’s discovery order. The hearing regarding defendant’s motion for terminating sanctions was scheduled for May 16, 2002. Respondent received the motion but did not file an opposition.
22. On May 16, 2002, the court in the personal injury action held a hearing on the defendant’s motion for terminating sanctions and granted the motion, dismissing the personal injury action. Respondent did not appear at the May 16, 2002 hearing.
23. On May 17, 2002, defense counsel filed and served on Respondent a Notice of Ruling regarding the May 16, 2002 hearing setting forth the court’s rulings. Respondent received the May 17, 2002 notice of ruling. Acosta was not informed that her case had been dismissed.
24. On April 28, 2005 and May 19, 2005, the State Bar contacted Respondent in writing regarding allegations of misconduct being investigated by the State Bar related to Acosta’s complaint. In the State Bar’s letters, Respondent was asked about the services he performed on behalf of Acosta.
25. On August 1, 2005, Respondent wrote the State Bar regarding Acosta’s matter. In his August 1, 2005 letter to the State Bar, Respondent admitted that he had filed a complaint for negligent infliction of emotional distress on behalf of Acosta. Respondent also stated that "we dismissed that complaint when we realized that there was no viable cause of action." In fact, the complaint in Acosta’s action had been dismissed by the court due to Respondent’s failure to comply with discovery.
Conclusions of Law
By failing to oppose the motion to compel discovery and the motion for terminating sanctions, Respondent repeatedly failed to perform legal services with competence in wilful violation of rule 3-110(A) of the Rules of Professional Conduct.
By failing to inform Acosta that she had been served with discovery, by failing to inform Acosta that motions to compel had been filed in the personal injury, action, by failing to inform Acosta that the court had ordered her to comply with discovery, by failing to inform Acosta that she had been ordered to pay $523 in sanctions, and by failing to inform Acosta that the personal injury action had been dismissed by the court, Respondent failed to keep a client reasonably informed of a significant development in a matter in which Respondent had agreed to provide legal services in wilful violation of Business and Professions Code section 6068(m).
By failing to provide accurate information to the State Bar’s written inquiries concerning the Acosta matter, Respondent failed to cooperate in a State Bar investigation in wilful violation of Business and Professions Code section 6068(i).
Case No. 08-0-12106
Facts
1. On June 30, 2006, Eloise Lee ("Lee") employed Respondent to represent her in a breach of contract matter involving a construction company that she had hired to build two homes and to remodel a third home in Desert Hot Springs. On that date, Lee paid Respondent $5,000 in advanced attorneys fees. On July 18, 2006, Lee paid Respondent an additional $2,500 in advanced attorneys fees. In total, Lee paid Respondent $7,500 in advanced fees.
2. In or about July 2006, Respondent prepared a draft complaint on behalf of Lee. Thereafter, Respondent reviewed the complaint with Lee during a meeting at his office. During the meeting, Lee made several minor changes to the complaints, such as changing dates and the names of people or companies referenced in the complaint.
3. In November or December 2006, Respondent and Lee met in Desert Hot Springs and examined her properties.
4. For the remainder of 2006, Lee spoke with Respondent a several times on the telephone.
5. Thereafter, Lee was unable to speak or meet with Respondent until March 17, 2008, despite her visits to his office and telephone messages that she had left with Respondent’s receptionist.
6. On March 17, 2008, Lee spoke with Respondent on the telephone. During the conversation, she asked whether Respondent had filed and served the complaint. She also requested a copy of one of the contracts that was at issue in her complaint against the construction company. Respondent indicated that he did not know the status of the complaint and that he would advise her of the status when he had determined the answer.
7. On March 18, 2008, Respondent sent Lee a copy of the contract via facsimile that she had requested a day earlier. Thereafter, Respondent stopped communicating with Lee in any manner.
8. By ceasing all communications with Lee after March 18, 2008, Respondent constructively withdrew from his employment with Lee.
9. Respondent did not inform Lee of his intent to withdraw from representation or take any other steps to avoid reasonably foreseeable prejudice to her.
10. On December 3, 2008, after Lee had filed a State Bar complaint against him, Respondent reimbursed Lee the entire $7,500 in advanced fees that she had paid to him.
Conclusions of Law
By not informing Lee of his intent to withdraw from employment, Respondent improperly withdrew from employment of a client in wilful violation of rule 3-700(A)(2) of the Rules of Professional Conduct.
Case No. 08-0-13752
Facts
1. On August 18, 2006, Aide Hernandez ("Hernandez") employed Respondent to represent her in connection with her dissolution, child custody, visitation, support, and related proceedings through judgment. On the same date, Hernandez paid Respondent $2,500 in advanced attorneys fees.
2. On August 21, 2006, Respondent filed a response on behalf of Hernandez in the dissolution matter entitled Gonzalez v. Gonzalez, Los Angeles County Superior Court, Case No. BD 450161 (the "dissolution matter").
3. On September 11, 2006, Respondent served form interrogatories on Petitioner’s counsel. On September 20, 2006, Respondent served a demand for production of documents on Petitioner’s counsel.
4. On or about December 18, 2006, Petitioner’s counsel served responses to both discovery requests on Respondent. Thereafter, Respondent reviewed and analyzed the discovery responses and discussed their content with Hernandez.
5. In or about January 2008, Hernandez terminated her employment of Respondent and hired a different counsel to represent her in the dissolution matter.
6. On January 31, 2008, Hernandez’s new counsel wrote Respondent a letter requesting a billing statement detailing all of the services that Respondent had performed on Hernandez’s behalf. Respondent received the letter; however, he did not respond to it.
7. On March 4, 2008, Hernandez’s new counsel wrote Respondent a second letter requesting a billing statement. Respondent received the letter; however, he did not respond to it.
Conclusions of Law
By not responding to Hernandez’s counsel’s letter requesting that he provide a billing statement, Respondent failed to respond to the reasonable status inquiries of a client in wilful violation of Business and Professions Code section 6068(m).
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. 05-0-00678; Count ONE; Alleged Violation Rule 3-110, Rules of Professional Conduct;
Case No. 05-0-00678; Count THREE; Alleged Violation Rule 4-100(B)(3), Rules of Professional Conduct;
Case No. 05-0-00678; Count FOUR; Alleged Violation Business and Professions Code section 6068(m);
Case No. 05-O-01895; Count SEVEN; Alleged Violation Business and Professions Code section 6106
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY.
The parties waive any Variance between the Notice of Disciplinary Charges filed on July 16, 2008, and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was December 16, 2008.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of December 16, 2008, the estimated prosecution costs in this matter are $4,153. The costs are to be paid in equal amounts prior to February 1 for the following three billing cycles following the effective date of the Supreme Court Order.
If Respondent fails to pay any installment within the time provided herein or as may be modified by the State Bar Court pursuant to section 6086.10, subdivision (c), the remaining balance of the costs is due and payable immediately and enforceable both as provided in Business and Professions Code section 6140.7 and as a money judgment unless relief has been granted under the Rules of Procedure of the State Bar of California. (Rules Proc. of State Bar, rule 286.)
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.4(b) of the Standards For Attorney Sanctions For Professional Misconduct, Title IV of the Rules of Procedure ("Standards") provides that culpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.6(a) states that culpability of a member of a wilful violation of Business and Professions Code section 6068(m) shall result in suspension or disbarment depending on 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.
The appropriate level of discipline for a violation of rule 3-700(A)(2) is not specified by the Standards. Under Standard 2.10, the appropriate level of discipline for a violation of a rule not specified in the Standards is a reproval or suspension, according to the gravity of the offense or the harm, if any, to the victim, with due regard for the purposes of imposing discipline set forth in Standard 1.3.
In this matter, Respondent’s clients were not irreparably harmed by his wilful failure to perform or communicate. As such, the imposition of a 30 days suspension in this matter remains consistent with the purposes for imposing discipline as set forth in Standard 1.3.
AGGRAVATING CIRCUMSTANCES.
Respondent’s failure to cooperate in the State Bar investigation of Case No. 05-O-01895 is an aggravated violation of Business and Professions Code section 6068(i). During his representation of Acosta, Respondent determined that Acosta did not have a viable cause of action in the personal injury action. However, in his August 1, 2005 letter, Respondent relied upon information provided to him by his staff that the case had been dismissed and did not advise the State Bar that the court had dismissed the case. Respondent did not take satisfactory measures to verify the information provided to him by his staff. But, Respondent did not intend to deceive the State Bar.
Nonetheless, the effect of the August 1, 2005 letter was to delay, rather than to assist, the State Bar’s investigation.
MITIGATING CIRCUMSTANCES.
Although the instant misconduct cannot be deemed "not serious", Respondent has been a member of the State Bar since December 31, 1994, and has no prior record of discipline.
CASE LAW.
In Van Sloten v. State Bar (1989) 48 Cal.3d 921, the attorney represented a client in a marital dissolution case, worked on the matter for the first five months, submitted a proposed settlement agreement to the opposing side; and thereafter, failed to communicate with his client, take action on .the matter, or withdraw. The Supreme Court determined that the misconduct warranted a six-month stayed suspension.
In Stuart v. State Bar (1985) 40 Cal.3d 838, the attorney failed to answer interrogatories which caused his client’s personal injury matter to be dismissed. The attorney also was found to have lost his client’s file and inadequately communicated with the client. The attorney had a prior private reproval. The Supreme Court ordered that the attorney be actually suspended for 30 days as part of a one-year probation.
In In the Matter of Kennon (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr, 267, the attorney failed to perform and communicate in two client matters, and refund unearned fees in one of the matters. The Review Department recommended a 30-day actual suspension.
Case Number(s): 05-0-00678 - DFM; 05-O-01895; Investigation Case Nos. 08-O-12106; 08-O-13752
In the Matter of: Leroy B. Austin A Member of the State Bar
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.
<<not>> 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): 05-0-00678 - DFM; 05-O-01895; Investigation Case Nos. 08-O-12106; 08-O-13752
In the Matter of: Leroy B. Austin A Member of the State Bar
<<not>> checked. a. Within 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.
checked. b. Within /6 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 6 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): 05-0-00678 - DFM; 05-O-01895; Investigation Case Nos. 08-O-12106; 08-O-13752
In the Matter of: Leroy B. Austin
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: Leroy B. Austin
Date: 12-16-08
Respondent’s Counsel: James I. Ham
Date: 12/23/08
Deputy Trial Counsel: Eli D. Morgenstern
Date: 12/23/08
Case Number(s): 05-0-00678 - DFM; 05-O-01895; Investigation Case Nos. 08-O-12106; 08-O-13752
In the Matter of: Leroy B. Austin
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
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.
1. Remove the "X" at paragraph A(8). (See discussion of costs at page 16.)
2. Remove the "X" at paragraph B(8). (See discussion of aggravation on page 17.)
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 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 12/24/08
[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 December 31, 2008, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL SUSPENSION
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:
ELLEN ANNE PANSKY
PANSKY & MARKLE
1010 SYCAMORE AVE #101
SOUTH PASADENA, CA 91030
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ELI MORGENSTERN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 31, 2008.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court