Case Number(s): 05-O-01220
In the Matter of: Neal Ronald Safran, Bar # 72491, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Janet Hunt, Bar # 97635,
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
<<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 22, 1976.
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. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: Costs to be paid in equal amounts prior to February 1st for the following two (2) billing cycles following the effective date of the California Supreme Court order. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.)
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
IN THE MATTER OF: Neal Ronald Safran, State Bar No. 72491
STATE BAR COURT CASE NUMBER: 05-O-01220
PARTIES ARE BOUND BY THE STIPULATED FACTS:
The parties intend to be and are hereby bound by the stipulated facts contained in this stipulation. This stipulation as to facts and the facts so stipulated shall independently survive even if the conclusions of law and/or stipulated disposition set forth herein are rejected or changed in any manner whatsoever by the Heating Department, or the Review Department of the State Bar Court, or by the California Supreme Court.
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 March 26, 2007 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, The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
STIPULATION AS TO FACTS AND CONCLUSIONS OF LAW
Facts
1. On January 7, 2003, Bo Bo Tran ("Tran") and Thien Van Dang ("Dang") were involved in an automobile collision with a Los Angeles County Metropolitan Transportation Authority (MTA) bus.
2. On January 10, 2003, Tran & Dang (collectively referred to as "clients") hired Respondent to represent each of them in their personal injury matters.
3. On February 13, 2003, Respondent executed a medical lien in favor of Alliance Health Group ("medical provider") on behalf of Tran.
4. On March 30, 2003, Respondent executed a medical lien in favor of Alliance Health Group ("medical provider") on behalf of Dang.
5. On April 1, 2003, Respondent sent a letter to the clients’ insurance carrier, State Fama Insurance Company. In the letter, Respondent informed State Farm that he had been hired to represent the clients, and he requested information regarding their insurance coverages, including medical payment, collision, liability, and uninsured motorist.
6. On July 22, 2003, State Farm issued two check payments ("med-pay checks") under the medical payment coverage of the clients’ insurance policy. The first check was check no. 1 23 354849 J, in the amount of $3,885, payable jointly to "Law Office of Neal Safran & Thien Vaaa Dang"; the second check was check no. 1 23 354846 J, in the amount of $5000, payable jointly to "Law Office of Neal Safran & Bo Bo Trail."
7. On July 22, 2003, State Farm sent the reed-pay checks to Respondent. Respondent received the checks. Respondent did not notify Tran or Dang of his receipt of the med-pay checks.
8. On July 25, 2003, Respondent deposited each of the med-pay checks into his client trust account, Bank of America Account no. 16645-08802 ("Respondent’s CTA").
9. On September 10, 2003, a lawsuit entitled, State Farm Mutual Automobile Company vs. Los Angeles County Metropolitan Transit Authority, Superior Court case no. 03K15988 ("lawsuit"), was filed by State Farm through its own attorneys. Respondent knew about the filing of the lawsuit. Respondent did not inform the clients about the filing of the lawsuit.
10. On October 27, 2003, a cross-complaint entitled, MTA vs. Tran and Dang, was filed by MTA through its own attorney. Respondent knew about the filing of the cross-complaint. Respondent did not inform the clients about the filing of the cross-complaint.
11. In or about February 2004, the law firm of Knapp, Petersen & Clarke was hired by State Farm to represent Dang and Tran as cross-defendants in the cross-action MTA vs. Tran and Dang, pursuant to the terms of their insurance policy.
12. On or about February 25, 2004, Stephen Pasarow, Esq. ("Pasarow"), of Knapp, Petersen & Clarke sent a letter to the clients notifying them of his representation of the clients in the cross-action, and asked them to schedule an appointment to meet with him.
13. When the clients received the February 25, 2004 letter from Pasarow, they telephoned respondent and asked what they should do; Respondent, through a staff employee, told the clients not to respond to the letter.
14. On November 8, 2004, Dang telephoned State Farm and spoke with a claim representative. Dang asked the claim representative for a list of payments that State Farm had issued up to that date. During the telephone conversation, Dang learned for the first time that State Farm had issued the med-pay checks. The claim representative informed Dang that the checks were sent to Respondent on or about July 22, 2003.
15. On November 8, 2004, the claim representative for State Farm sent a letter to Dang. Between approximately January 2003 and July 2003, State Farm had paid the following:
a. $4,856.11, paid under the collision coverage, and issued to Mak’s Auto Body, Thien Van Dang and Bo Bo Tran;
b. $475, paid under the rental coverage, and issued to Dollar Rent-A-Car;
c. $3885, paid under the medical payment coverage, and issued jointly to Respondent and Thien Van Dang.
d. $5000, paid under the medical payment coverage, mad issued jointly to Respondent and Bo Bo Tran.
16. On December 3, 2004, Dang called Respondent’s office, and spoke with Respondent’s staff employee, about the list of payments that State Farm had sent. Respondent’s employee replied by explaining that the list of payments were only estimates of potential insurance payments. Dang then told Respondent’s employee that he was in possession of copies of the med-pay checks, with Dang’s and Tran’s purported endorsements on the back of the checks. Respondent’s employee then informed Dang that the proceeds of the reed-pay checks had been deposited and were being maintained in a client trust account. The employee also said he would send Dang and Tran their share of the payments if they each signed an affidavit agreeing to dismiss their cases.
17. On December 7, 2004, Dang and Tran each signed, at Respondent’s or Respondent’s employee’s direction, a release authorizing Respondent to settle their claims with State Farm.
18. On December 7, 2004, Tran received $1666 from Respondent; and, Dang received $1295 from Respondent.
19. In or about August 2005, the lawsuit and the first cross-complaint were settled.
20. In or about December 2004, Respondent was informed that the lawsuit and the first cross-complaint had been settled, and that all cases had been or were being dismissed.
21. On or about January 26, 2005, the lawsuit and the first cross-complaint were each dismissed.
22. As of February 2005, Respondent had not disbursed any of the medical payments to the medical provider.
23. On February 15, 2005, a complaint analyst of the State Bar Intake Unit sent a letter to Respondent asking about the status of the clients’ personal injury claims and asking whether he had released the file to the clients.
24. On March 3, 2005, Respondent replied to Intake’s letter of February 15, 2005, stating that his office received the medical payments which were deposited in my trust account." In the letter, Respondent further stated that the "payment of one third of the medical payments was paid" to the clients, but he gave no information about the status of the remaining funds.
25. In April 2005, Respondent obtained an agreement from the medical provider to wait for payment of the subject liens "until such time as a pending State Bar inquiry has been resolved."
26. On April 15, 2005, an investigator of the State Bar Investigations Unit sent a letter to Respondent asking for an explanation why none of the medical payments were disbursed until December 2004. In the letter, the investigator also asked Respondent for supporting documents, including certain bank records showing that the funds were being properly maintained in a client trust account, and proof of payment to the medical provider.
27. On May 23, 2005, Respondent replied to the investigator’s letter of April 15, 2005, and provided copies of certain bank records but he did not respond to the specific inquiry about payment to the medical provider, and he did not provide proof of payment to the medical provider.
28. On March 8, 2006, the State Bar investigator sent another letter to Respondent inquiring about the status of the client’s funds, and specifically asking whether the medical provider had been paid. Respondent received the letter. Respondent did not respond to the letter, and he did not otherwise provide the status of the client funds intended to pay the medical provider.
29. On March 27, 2006, the State Bar investigator sent a third letter to Respondent inquiring about the status of the client funds and specifically asking whether the medical provider had been paid. Respondent received the letter. Respondent did not respond to the letter, and he did not otherwise provide the status of the client funds intended to pay the medical provider.
30. In February 2007, Respondent obtained an agreement with the medical provider to accept reduced amounts to satisfy the subject medical liens, as follows: $1,295 to satisfy the lien against Dang’s recovery; $1,666.66 to satisfy the lien against Tran’s recovery.
31. In February 2007, Respondent disbursed to the medical provider approximately $1666.66 in satisfaction of the lien against Tran’s recovery, and approximately $1295 in satisfaction of the lien against Dang’s recovery. The client funds used to pay the medical provider remained in Respondent’s client trust account at all times until February 2007 when Respondent finally disbursed these funds.
32. By withholding the entire sum of the med-pay checks which he had received on behalf of Tran and Dang, from approximately July 2003 until December 2004 (about 16 months); and by continuing to withhold the portion of the med-pay checks expressly intended for the medical provider until approximately February 2007, (totaling about 3 ½ years), despite requests from the clients and reminders from the State Bar, Respondent failed to promptly pay or deliver, as requested by the client, any finds, securities, or other properties in the possession of the member which the clients are entitled to receive.
33. Respondent failed to notify Tran or Dang of his receipt of the med-pay checks.
34. Between approximately May 2003 and November 2004, Respondent or Respondent’s staff employee, repeatedly informed the clients that there was no progress in their personal injury claims and explained that it takes approximately two years for such matters to conclude.
Conclusions Of Law
35. Respondent willfully violated Rules of Professional Conduct, rule 4-100(B)(4), by withholding the entire sum of the reed-pay checks which he had received on behalf of Tran and Dang, from approximately July 2003 until December 2004 (about 16 months); and by continuing to withhold the portion of the reed-pay checks expressly intended for the medical provider until approximately February 2007 (totaling about 3 1/2 years), despite requests from the clients and reminders from the State Bar and Respondent.
36. Respondent willfully violated Rules of Professional Conduct, rule 4-100(B)(1), by failing to notify Tran or Dang of his receipt of the reed-pay checks.
37. Respondent willfully violated Business and Professions Code, section 6068(m), by informing Tran and Dang that there had been no progress in either of their personal injury claims, between approximately May 2003 and November 2004, by not informing them about the filing of the lawsuit, and by not informing them about the filing of the cross-actions.
RESTRICTIONS WHILE ON ACTUAL SUSPENSION
38. During the period of actual suspension, respondent shall not:
39. Respondent shall declare under penalty of perjury that he or she has complied with this provision in any quarterly report required to be filed with the Probation Unit, pertaining to periods in which Respondent was actually suspended from the practice of law.
MITIGATING CIRCUMSTANCES
No Prior Record of Discipline
Although the misconduct herein is serious, Respondent has no prior record of discipline since being admitted to the practice of law on December 22, 1976 and is entitled to significant mitigation. (Hawes v. State Bar (1990) 51. Cal.3d 587, 596.)
AUTHORITIES SUPPORTING DISCIPLINE
Standards For Attorney Sanctions For Professional Misconduct
Standard 2.4(b) states, "[c]ulpability 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 2.2(b) provides that "[c]ulpability 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 Conduct, none of which offenses result in the willful 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."
Case Law
In In the Matter of Aguiluz (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 41, the respondent poorly mishandled a simple personal injury matter and failed to reasonably supervise his staff. The hearing judge found that Aguiluz continued to represent his clients when an actual conflict of interest arose without seeking required written client consent to the continued representation and repeatedly failed to competently handle the underlying lawsuit, which resulted in a dismissal. (Ibid.) After one of his clients died, Aguiluz failed to advise the surviving client that the case had been dismissed and unilaterally withdrew from employment of this client without giving notice or providing consent. (Ibid.) Furthermore, Aguiluz failed to promptly notify representatives of his since-deceased client of the receipt of trust funds on that client’s behalf. (Ibid.) The Review Department adopted the hearing judge’s findings, with minor corrections, and conclusions and recommended that Aguiluz be actually suspended for ninety days. (Ibid.)
ESTIMATE OF COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of September 11, 2007, the estimated prosecution costs in this matter are approximately $3654.00. 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.
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 6068.10, 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.)
Case Number(s): 05-O-01220
In the Matter of: Neal Ronald Safran
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.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-01220
In the Matter of: Neal Ronald Safran, State Bar No.: 72491
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: Neal Ronald Safran
Date: October 11, 2007
Respondent’s Counsel: Janet S. Hunt
Date: October 15, 2007
Deputy Trial Counsel: Joy Chantarasompoth
Date: October 15, 2007
Case Number(s): 05-O-01220
In the Matter of: Neal Ronald Safran, State Bar No.: 72491
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.
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: Donald F. Miles
Date: November 8, 2007
[Rules Proc. of State Bar; Rule 5.27(B); 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 November 13, 2007, 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:
NEAL RONALD SAFRAN
710 E. GARVEY AVE STE A
MONTEREY PARK, CA 91755
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
JANET HUNT, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on November 13, 2007.
Signed by:
Laine Sibler
Case Administrator
State Bar Court