Case Number(s): 05-O-00744
In the Matter of: Gabriela Alvarez, Bar # 132052, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Maria J. Oropeza, Bar # 182660
Counsel for Respondent: Bar #
Submitted to: Assigned Judge State Bar Court Clerk’s Office San Francisco
Filed: September 6, 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.
1. Respondent is a member of the State Bar of California, admitted December 11, 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 15 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. costs added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. case ineligible for costs (private reproval).
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 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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
Case Number(s): 05-O-00744
In the Matter of: Gabriela Alvarez A Member of the State Bar
a. Restitution
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: Heather Liao
Principal Amount: $8,000.00
Interest Accrues From: January 27, 2005
Respondent waives any objection she may have, with respect to the Client Security Fund paying out the sum of $8,000.00 plus 10% interest per annum from January 27, 2005.
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
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) Client Security Fund. The parties anticipate that the client security fund will make payment to Heather Liao, as such respondent will reimburse the client security fund for the payment made to Heather Liao.
Minimum Payment Amount at least $100.00
Payment Frequency Monthly
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.
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.
<<not>> 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.
IN THE MATTER OF: Gabriela Alvarez
CASE NUMBER(S): 05-0-00744 ET AL.
FACTS AND CONCLUSIONS OF LAW.
Statement of Facts: Count One (Case No. 05-O-00744)
1. Gabriela Alvarez ("respondent") was admitted to the practice of law in the State of California on December 11, 1987, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California.
2. Respondent wilfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, or repeatedly failing to perform legal services with competence, as follows:
3. In May 2004 respondent was hired by Heather Liao ("Liao") and Vitogen, and its corporate officers in a civil suit. Respondent received $2,000.00 in advanced attorney’s fees. Respondent filed an answer to the complaint and also filed a cross-complaint on behalf of Liao and Vitogen.
4. On June 10, 2004, respondent was served with Request for Admissions and interrogatories for defendant Martin Dirks. Respondent did not file responses to the Request for Admissions.
5. On August 17, 2004, respondent was served with a motion to compel responses to interrogatories and requests for admissions. The plaintiffs also requested sanctions to be imposed. Respondent did not file a response to the motion to compel.
6. On August 26, 2004, respondent attended the scheduled case management conference.
7. On September 13, 2004, the motion to compel responses to interrogatories and sanctions filed by the plaintiffs was submitted to the court without argument and without either party entering an appearance.
8. On September 13, 2004, the court granted the plaintiffs motion on discovery issues, and required that Liao, Dirks, and Vitogen file responses to interrogatories and requests for admissions, as well as producing the requested documents. Respondent was served with the court’s order and received.
9. On September 30, 2004, respondent was served with the First Set of Interrogatories for Heather Liao. Respondent did not file responses to the Interrogatories.
10. On October 4, 2004, the entered its September 13, 2004 order and granted the plaintiffs sanctions against the defendants in the sum of $969.80.
11. On November 12, 2004, respondent was served with a Motion to Compel defendant Martin Dirks appearance at a scheduled deposition. Respondent did not file a response to the motion to Compel.
12. On November 18, 2004, respondent was served with Motions for Summary Adjudication/Judgment for Heather Liao, Martin Dirks, and Vitogen. Respondent did not file a response to any of the motions for summary judgment.
13. On December 1, 2005, respondent’s services were terminated by Liao and Vitogen.
14. On December 7, 2004, respondent was served with a motion to have matters in requests for admissions to be deemed admitted and sanctions imposed. Respondent did not file a response to the motion nor did she provide her clients and subsequent counsel with a copy of the motion.
15. On December 9, 2004, the court held a hearing on the motion to compel Martin Dirks appearance at a scheduled deposition. The Court imposed sanctions in the amount of $836.00 on the defendants, but decided to have another hearing to determine whether the sanctions would be imposed on defendants or defendant’s attorney (respondent.)
16. On December 13, 2004, the Court granted an ex-parte application to have Michael Faberstein substituted in for respondent.
17. On December 16, 2004, the Court held a hearing with respect to the sanctions it issued on December 9, 2004. The Court ordered respondent to pay the sum of $836.30 in sanctions to opposing counsel. Respondent did not attend the hearing.
18. On January 10, 2005, the Court held a hearing regarding the motion to have matters deemed admitted and sanctions imposed. Faberstein filed a response and explained that the requests for admissions was not responded to by respondent and that the defendant’s were unaware o f the discovery propounded. The motion to have matters deemed admitted was denied, and the court imposed on respondent sanctions in the sum of $696.30.
19. On January 21, 2005, the Court held a hearing on a motion for permission to withdraw and to file amended responses to the requests for admissions filed on behalf of Vitogen and Heather Liao. The Court also addressed the previously filed motions for summary judgment filed by the plaintiffs and served on respondent. The Court held off ruling on the motions for summary judgment conditioned on the defendants paying the plaintiffs the sum of $8,000.00 for having to file the motions, and for having to file a response to the motion to withdraw. The Court re-opened discovery to allow the defendant’s to file responses to the interrogatories, requests for admissions and production of documents.
20. On February 14, 2005, the Court denied all of plaintiff’s motions for summary judgment.
Conclusions of Law: Count One (Case No. 05-0-00744)
21. By failing to respond to any of the propounded discovery, failing to file responses to the motions for summary judgment, respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, a wilful violation of Rule 3-110(A) of the Rules of Professional Conduct.
Statement of Facts: Count Two (Case No. 05-0-00744)
22. Respondent wilfully violated Business and Professions Code, section 6068(m), by failing to respond promptly to reasonable status inquiries of a client, by failing to keep a client reasonably informed of significant developments in a matter in which respondent had agreed to provide legal services, as follows:
23. The allegations contained in count one of this stipulation are herein incorporated by reference as if set forth in full.
24. At no time between June 10, 2004 and November 18, 2004, did respondent inform Liao or Vitogen of any of the discovery propounded by the plaintiffs, or that the plaintiffs had filed motions for summary judgment. Respondent did not inform Liao or Vitogen that she had failed to respond to the discovery and failed to file responses to the summary judgment motions.
25. Between August 26, 2004 through September 2004, Liao placed numerous telephone calls to respondent, requesting the status of the civil suit.
26. On each occasion referenced in paragraph 24, Liao was able to reach respondent’s answering machine and left messages for respondent. Respondent did not return any of Liao’s messages.
27. In October 2004, respondent spoke with Liao and prepared Liao for her deposition and attended the deposition.
28. After October 21, 2004, Liao placed numerous telephone calls to respondent seeking a status update on the civil suit. On each occasion Liao was able to leave a message on respondent’s answering machine. Liao wanted to review the discovery to be propounded by Liao and Vitogen. Respondent did not return Liao’s calls.
Conclusions of Law: Count Two (Case No. 05-0-00744)
29. By failing to inform Liao and Vitogen of the discovery requests and the motions for summary judgment, and by failing to return Liao’s phone calls during after August 26, 2004 through September 2004, and after October 21, 2004, respondent failed to respond promptly to reasonable status inquiries of a client, and failed to keep a client reasonably informed of significant developments in a matter in which respondent had agreed to provide legal services, a wilful violation of Business and Professions Code section 6068(m).
Statement of Facts: Count Three (Case No. 05-0-00744)
30. Respondent wilfully violated Rules of Professional Conduct, rule 3-700(A)(2), by failing, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client, as follows:
31. The allegations contained in counts one and two of this stipulation are herein incorporated by reference as if set forth in full.
32. After attending Liao’s deposition on October 21, 2004, respondent ceased to perform any significant legal services on Liao’s and Vitogen’s behalf.
33. At no time did respondent inform Liao or Vitogen that she was intending to terminate the attorney-client relationship.
Conclusions of Law: Count Three (Case No. 05-O-00744)
34. By failing to perform any significant legal services on Liao’s and Vitogen’s behalf after October 21, 2004, respondent failed upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to her client.
Respondent admits that the aforementioned facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was July 19, 2006.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of July 19, 2006, the estimated prosecution costs in this matter are approximately $2068.90. 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.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.4(h) states 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 states culpability of a member of a violation of any of the following provisions of the Business and Professions Code shall result in disbarment or suspension depending on the gravity of the offense or harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3: (a) sections 6067 and 6068.
In In Re Ronald Robert Silverton (2005) Supreme Court Order S 123042, the Supreme Court stated that the standards are entitled to great weight and that the State Bar Court should follow the guidance of the Standards for Attorney Sanctions whenever possible (Supra. Slip opinion pg. 14).
Decisions of the Supreme Court and the Review Department involving abandonment of a client’s case with no prior record of attorney’s misconduct have typically resulted in discipline ranging from no actual suspension to 90 days of actual suspension. In the Matter of Nunez (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 196, 206.)
AGGRAVATING CIRCUMSTANCES.
Harm: Respondent’s conduct harmed her client.
MITIGATING CIRCUMSTANCES.
No Prior Discipline: Respondent was admitted into practice in 1987 and has no disciplinary history.
Candor/Cooperation: Respondent displayed spontaneous candor and cooperation with the State Bar during the disciplinary investigation.
Family Problems: During the time of the misconduct, respondent was taking care of her ill mother which required full time care.
Postal Service issues: Respondent did not receive all of the discovery requests propounded by the plaintiff’s in the matter. Respondent had a rural mailbox located on the highway. Postal Carriers would not deliver mail to respondent’s mailbox if there was an obstruction in their way. Postal Carriers, were using postal vehicles to deliver the mail and did not leave the vehicles for deliveries. Respondent became aware of the issue when she received a phone call from opposing counsel’s assistant indicating that the discovery responses were overdue. She did not lodge a formal complaint with the post master, but she did speak with her local post office and made them aware of the issue.
STATE BAR ETHICS SCHOOL.
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
FINANCIAL CONDITIONS, RESTITUTION.
Respondent waives any objection to payment by the State Bar Client Security Fund upon a claim for the principal amount of restitution set forth herein.
Respondent must make restitution to Heather Liao or the Client Security Fund if it has paid, in the principal amount of $8,000 plus interest at the rate of 10% per annum from January 27, 2005 and furnish satisfactory evidence of restitution to the Probation Unit. Respondent shall include in each quarterly report required herein satisfactory evidence of all restitution payments made by her during that reporting period. Respondent will make payments to the Client Security Fund in the sum of at least $100.00 on a monthly basis until the principal and interest is paid in full. Respondent understands that if she pays only $100.00 a month that the sum may not be enough to satisfy the principal and the interest and that she may have a balloon payment due at the end of her probation term.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-00744
In the Matter of: Gabriela Alvarez
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: Gabriela Alvarez
Date: July 27, 2006
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Maria J. Oropeza
Date: 8/7/06
Case Number(s): 05-O-00744
In the Matter of: Gabriela Alvarez
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
checked. All court dates in the Hearing Department 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 125(b), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Joann M. Remke
Date: 9/6/06
[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 San Francisco, on September 6, 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 San Francisco, California, addressed as follows:
LAW OFC GABRIELA A ALVAREZ
14670 HWY 9
BOULDER CREEK, CA 95006 - 9763
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MARIA OROPEZA, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on September 6, 2006.
Signed by:
Laine Silber
Case Administrator
State Bar Court