Case Number(s): 05-O-02012
In the Matter of: Mauricio E. Hernandez, Bar # 123368, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Melanie J. Lawrence, Bar # 230102
Counsel for Respondent: Michael E. Wine, Bar # 58657
Submitted to: settlement 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 June 10, 1986.
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 13 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: 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.
IN THE MATTER OF: MAURICIO ERNESTO HERNANDEZ
CASE NUMBER(S): 05-0-02012
A.) 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/or Rules of Professional Conduct.
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 9, 2006, 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.
Facts:
1. On August 13, 2002, Rose Gutierrez employed Respondent, an associate at the law firm of Eric D. Paris ("Paris"), to represent her on a contingency fee basis for a personal injury claim arising from a false arrest incident at Wal-Mart Stores, Inc. ("Wal-Mart") on July 8, 2002.
2. On July 7, 2003, Respondent filed an action in the Riverside County Superior Court on behalf of Gutierrez, entitled Gutierrez v. Wal-Mart Stores, Inc., case no. RIC396147 ("Gutierrez matter").
3. On May 12, 2004, Respondent agreed with Claims Management, Inc., ("Claims Management"), Wal-Mart’s claims negotiator, to settle Gutierrez’s case for $5,000. Respondent received the settlement check from Claims Management. Respondent did not inform Gutierrez that he had received her settlement check.
4. Wal-Mart’s, settlement check made out to payees Eric D. Paris and Gutierrez was received by Respondent on or about June 15, 2004. The check was deposited into Paris’ client trust account on or about June 18, 2004.
5. On September 23, 2004, Gutierrez placed a telephone call to Respondent’s office and left a message for Respondent to return her call inquiring about the status of the Gutierrez matter. Respondent did not reply to this inquiry.
6. On October 29, 2004, Gutierrez placed two telephone calls to Respondent’s office and left a message for Respondent to return her call inquiring about the status of her matter. Respondent did not respond to the inquiries.
7. On November 30, 2004, Gutierrez placed two telephone calls to Respondents’ office for Respondent to return her call inquiring about the status of her matter. Respondent did not reply to the inquiries.
8. On February 24, 2005, Gutierrez wrote a letter to Respondent, which she sent registered mail, return receipt requested, inquiring as to the status of her case. Respondent did not reply to the Gutierrez letter.
9. As a result of not receiving a reply to her February 24, 2005, letter, Gutierrez filed a State Bar complaint against Respondent on March 30, 2005.
10. On May 5, 2005, Respondent mailed a "Case Settlement Breakdown Sheet" and an "acknowledgment and approval of all disbursements" for the Gutierrez matter, to Gutierrez for her approval.
11. On August 10, 2005, Gutierrez signed the "acknowledgment and approval of all disbursements" form. On August 17, 2005, Gutierrez returned the approval form to Respondent.
12. On August 18, 2005, Respondent sent Gutierrez her share of the Wal-Mart settlement in the Gutierrez matter, $1089.74.
13. The State Bar of California sent Respondent a correspondence dated September 22, 2003, notifying Respondent he was not in compliance with the MCLE Rules and Regulations ("the Rules"), and that pursuant to section 13.1 of the Rules, Respondent was enrolled on "not entitled" status effective Sept. 16, 2003. As of September 16, 2003, Respondent was not entitled to practice law in California. Respondent received the correspondence.
14. Respondent’s not entitled status was in effect from September 16, 2003, until January 26, 2004. Respondent was not entitled to practice law in California during that time period.
15. From August 6, 2002, until on or about August 18, 2005, Respondent was the attorney of record for Rosa Gutierrez in the case of Gutierrez v. Wal-Mart Stores, lnc., case no. RIC396147, Superior Court of the State of California, County of Riverside.
16. On October 24, 2003, Respondent sent Gutierrez legal correspondence relating to a deposition in the Gutierrez matter. Said correspondence was in the form of a facsimile on Respondents’ legal letterhead. Said correspondence instructed Gutierrez to "Please arrive 15 to 30 minutes earlier to the deposition site."
17. On November 3, 2003, Respondent sent Gutierrez legal correspondence regarding the Gutierrez matter. Said correspondence was in the form of a letter on Respondent’s legal letterhead signed by Respondent. Said correspondence included three verification forms. Said correspondence instructed Gutierrez to: "Please sign each form where indicated, and return to our office no later than November 10, 2003. Also, please forward a copy of your California Driver’s License/Identification Card with the signed Verifications."
18. On November 17, 2003, Respondent sent Gutierrez legal correspondence regarding the Gutierrez matter. Said correspondence was in the form of a letter on Respondent’s legal letterhead signed by Respondent. Said correspondence advised Gutierrez: "Please be informed that the defense counsel has set your deposition as follows." In said correspondence Respondent also instructed Gutierrez to: "Please make arrangements to arrive at the above location by 12:00 p.m. in order to meet with me prior to the deposition. Your attendance is imperative also please bring photo identification."
19. Respondent remained attorney of record in the Gutierrez matter throughout his period of not entitled status from September 16, 2003, until January 26, 2004.
20. At no time from September 16, 2003 to January 26, 2004, did Respondent inform Gutierrez of Respondent’s not entitled status.
Legal Conclusion:
By failing to inform his client of the receipt of her settlement funds from June 2004 to May 2005, Respondent failed to promptly notify his client of the receipt of her settlement funds, in violation of Rules of Professional Conduct, rule 4-100(B)(1). By not sending Gutierrez an "acknowledgment and approval of all disbursements" form after her telephone and written inquiries until May 5, 2005, so that she could receive her funds, Respondent failed to deliver promptly funds in his possession which his client was entitled to receive, in violation of Rules of Professional Conduct, rule 4-100(B)(4). By failing to respond to Gutierrez’s telephonic and written requests for information regarding the status of her case between September 2004 and May 2005, Respondent failed to respond promptly to reasonable status inquiries of a client, in violation of Business and Professions Code, section 6068(m). By sending legal correspondence to Gutierrez on October 24, 2003, November 3, 2003 and November 17, 2003, and by remaining as attorney of record in the Gutierrez matter during his period of not entitled status, Respondent willfully violated Business and Professions Code, section 6068(a), by holding himself out as practicing or entitled to practice law or otherwise practicing law when he was not an active member of the State Bar in violation of Business and Professions Code, sections 6125 and 6126.
B. SUPPORTING AUTHORITIES
Standard 2.2(b) provides that discipline for a violation of role 4-100, Rules of Professional Conduct, where there is no willful misappropriation of entrusted funds or property, shall result in at least a three month actual suspension, irrespective of mitigating circumstances.
Standard 2.4(b) provides that the discipline for willfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or Culpability of a member of willfully 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 applies to violations of Business and Professions Code, section 6068. It provides for disbarment or suspension 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.
Standard 1.6(a) states that where two or more acts of professional misconduct are charged and different sanctions are prescribed by the standards for the acts, the sanction imposed shall be the more or most severe of the different applicable sanctions.
In Guzetta v. State Bar (1987) 43 Cal.3d 962, an attorney with no prior record of discipline received six months actual suspension for multiple violations related to two client matters, including violations of rule 8-101(A) and (B) (Rule 8-101 is now rule 4-100.) in one matter and rule 6101(2) in another matter. (Rule 6-101(2) is now rule 3-110.) The facts were compounded by the attorney’s misrepresentation to the client regarding the status of the client’s case.
In the Matter of Lazarus (1991) 1 Cal. State Bar Ct. Rptr. 387, an attorney who failed to notify his client in a timely manner of receipt of a medical payment draft and failed to render appropriate accounts, in violation of former rules 8-101 (B)(1) and 8101(B)(3), was suspended for two months, execution stayed with one year probation and various conditions. In aggravation, the attorney had a contractual lien for fees but had withdrawn before completion of the case, rendering the actual amount he was entitled to, uncertain at the time he unilaterally determined his fee and withdrew trust funds to satisfy the amount. In mitigation, the attorney had been a member of the bar for over ten years with no record of discipline and no monetary harm occurred as a result of the attorney’s conduct.
C. AGGRAVATION / MITIGATION
Respondent’s misconduct, including failing to notify Gutierrez of the Wal-Mart settlement funds, failing to deliver to Gutierrez the balance of settlement funds she received on her behalf, failing to deliver promptly funds in his possession which his client was entitled to receive, failing to respond to telephonic and written requests for status information in the Gutierrez matter, and holding himself out as practicing law when he was not an active member of the State Bar, evidences multiple acts of wrongdoing.
In mitigation, Respondent’s son suffered a serious medical condition requiring surgery and his hospitalization from October to November 2004. Respondent’s failure to respond to Gutierrez’s inquiries during this time was attributable to respondent’s serious family stress. Additionally, Respondent has been a licensed attorney for twenty years with no prior history of disciplinary action.
D. DISMISSALS
The parties move the Court to dismiss Count One [Violation of Rule 3-110(A), Failure to Perform with Competence] and Count Five [Violation of Business and Professions Code §6106, Moral Turpitude: Misrepresentation to Client.]
E. COST ESTIMATE
The cost assessment for the use of State Bar resources in the instant case is estimated at $3,654.00.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-02012
In the Matter of: Mauricio E. Hernandez Member #: 123368
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: Mauricio E. Hernandez
Date: 7/24/06
Respondent’s Counsel: Michael E. Wine
Date: 7/24/06
Deputy Trial Counsel: Melanie J. Lawrence
Date: 7/25/06
Case Number(s): 05-O-02012
In the Matter of: Mauricio E. Hernandez Member #: 123368
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 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 953(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Robert M. Talcott
Date: 7/26/06
[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 July 26, 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:
MICHAEL E WINE ESQ
301 N LAKE AVE STE 800
PASADENA, CA 91101-5113
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Melanie J. Lawrence, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on July 26, 2006.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court