Case Number(s): 05-0-02792, 05-0-03492, 06-0-10705, Investigations 05-O-03838
In the Matter of: Michael J. Guglielmino, Bar # 104484, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Robert A. Henderson, Bar # 173205
Counsel for Respondent: Bar #
Submitted to: settlement judge State Bar Court Clerk’s Office San Francisco
Filed: October 27, 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 3, 1982.
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 18 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.
checked. costs to be paid in equal amounts prior to February 1 for the following membership years: 2007, 2008 & 2009 (hardship, special circumstances or other good cause per rule 282, 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.
Law Office Management Class -- conditions attached
Client Trust Accounting School -- conditions attached
Financial Conditions attached
No Overdraft Protection on CTA
No ATM Card with CTA
Sanctions in LaQuey Satisfied
IN THE MATTER OF: Michael J. Guglielmino
CASE NUMBER(S): 05.0-02792; 05-0-03492; 06-0-10705; 05-O-03838
FACTS AND CONCLUSIONS OF LAW.
Case No. 05-0-02792 (Sabino) - Count One (A)
Facts
In January 2004, Emmanuel Sabino ("Sabino") employed respondent to defend him in a criminal matter. Sabino had $3,500 wired to respondent for respondent’s representation. Respondent made court appearances and in February 2004 successfully negotiated a plea agreement. Subsequent to the plea agreement Sabino requested an accounting. Respondent did not provide an accounting to Sabino.
Conclusions of Law
By wilfully failing to provide Sabino a written accounting of the $3,500, respondent violated rule 4-100(B)(3), California Rules of Professional Conduct.
Case No. 05-0-03492 (LaQuey) - Count Two (A)-(D)
Facts
In September 2002, Theresa LaQuey ("LaQuey") employed respondent to represent her in a personal injury action. On December 31, 2002, respondent filed Theresa Soder-LaQuey v. Russell Roberts, San Francisco Superior Court case no. CGC-02-416265. Although respondent remained attorney of record until September 12, 2005, he took no further action whatsoever on LaQuey’s matter. Respondent received the court’s orders between December 31, 2002 and September 12, 2005. Respondent failed to appear and was sanctioned on: April 8, 2003; March 24, 2004; January 26, 2005; and July 27, 2005. In addition between December 31, 2002 and September 12, 2005, respondent was ordered by the court to respond to various matters in the LaQuey matter, all of which he failed to do. Respondent also failed to pay the ordered sanctions.
From September 16, 2003 through November 3, 2003, respondent was suspended from the practice of law for failure to pay membership fees. Respondent did not inform LaQuey that he was suspended from the practice of law. Respondent did not advise LaQuey that he had failed to appear, been sanctioned or failed to comply with the various other court orders.
During the period of respondent’s representation of LaQuey she had trouble communicating with him. Eventually LaQuey obtained successor counsel. Successor counsel requested the file from respondent, which respondent failed to release.
Conclusions of Law
COUNT TWO (A)
Respondent wilfully failed to take any action on LaQuey’s matter from December 31, 2002 through September 12, 2005, thereby intentionally, recklessly and repeatedly failing to perform legal services with competence in violation of rule 3-110(A), California Rules of Professional Conduct.
COUNT TWO (B)
Respondent wilfully disobeyed the court’s Orders to Show Cause and failed to pay the resulting sanctions, thereby violating Business and Professions Code section 6103.
COUNT TWO (C)
Respondent never told LaQuey of the court orders or sanctions, nor did he tell her about his suspension from the practice of law, thereby he failed to keep a client reasonably informed of significant developments in a matter in which he agreed to provide legal services in violation of Business and Professions Code section 6068(m).
COUNT TWO (D)
Respondent, by failing upon termination of employment to promptly release. LaQuey’s file to successor counsel after being requested to do so, wilfully violated rule 3-70003)(1), California Rules of Professional Conduct.
Case No. 06-0-10705 (Fuller) - Count Three (A)-(D)
Facts
In October 2005, Virginia Fuller ("Fuller") employed respondent to render a second opinion on a marital settlement agreement ("MSA"). Fuller paid respondent $2,000 for his services. Respondent agreed to provide Fuller a written report, within two weeks, on his analysis of the MSA. Between October 2005 and December 31, 2005, respondent did not provide Fuller with his written analysis of the MSA, nor did he provide any service of benefit to Fuller. In January 2006, Fuller requested a refund of fees paid, her file and an accounting of fees earned. Respondent did not refund the fees paid, return the file or provide an accounting of fees earned.
Conclusions of Law
COUNT THREE (A)
Respondent, by wilfully failing to provide Fuller with the written analysis of the MSA or provide any other service of value to Fuller, intentionally failed to perform legal services with competence in violation of rule 3- I 10(A), California Rules of Professional Conduct.
COUNT THREE (B)
Respondent, by failing to refund to Fuller any part of the unearned $2.000 paid, wilfully violated rule 3-700(D)(2), California Rules of Professional Conduct.
COUNT THREE (C)
Respondent, by not promptly returning Fuller’s file after termination of employment and upon request, wilfully violated rule 3-700(D)(1), California Rules of Professional Conduct.
COUNT THREE (D)
By wilfully failing to provide Fuller an accounting of the $2,000, respondent violated rule 4-100(B)(3), California Rules of Professional Conduct.
Case No. 05-0-03838 (SBI)
Facts
On May 23, 2005, respondent deposited $500 into his client trust account ("CTA"). On May 23, 2005, respondent’s CTA balance was $1,303.28. On May 23, 2005, respondent issued CTA check no. 1086 for $1,650 made to cash and also made a CTA ATM withdrawal of $100. The two withdrawals were for earned fees. However, as the CTA only had $1,303.28, the net result of the May 23, 2005, deposit and withdrawal resulted in the CTA being overdrawn by $446.72. The bank did honor the transactions, but also imposed a $32 handling fee. After the handling fee the CTA was overdrawn by $478.72. Technical commingling was involved as respondent deposited and withdrew $500 in earned attorney fees on the same day.
On September 25, 2005, a CTA check for $850 made to cash required special handling because the CTA balance was only $572.36 and on November 22. 2005 a CTA check for $180 made to cash required special handling because the CTA balance was only $111.36.
Respondent also had not maintained complete records of the funds entering and leaving his CTA. Specifically between February 5, 2005 and August 21, 2005, respondent made eleven withdrawals for fees from his CTA, which he did not identify as such, at the time of the withdrawal.
Conclusions of Law
Respondent, by wilfully failing to maintain complete records of all funds, securities, and other properties of a client coming into his possession, and by incurring the special handling charges for his CTA by the bank for overdrafts, violated rule 4-100(B)(3).
PENDING PROCEEDINGS.
Pending Investigation
The disclosure date referred to, on page one, paragraph A.(7), was October 4, 2006.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 4, 2006, the estimated prosecution costs in this matter are approximately $5,391. 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 1.2(e)(i) - absence of any prior record o f discipline over many years of practice coupled with present misconduct which is not deemed serious.
Standard 2.2(b) - Culpability of a member of commingling of entrusted funds or property with personal property or the commission of another violation of rule 4-100, Rules of Professional Conduct, none of which offenses result in the wilful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances.
Standard 2.4(b) - 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(b) - Culpability of a member of a violation of Business and Professions Code section 6103 shall result in 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.
In the Matter of Lantz, (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 126 - Lantz received two-years stayed suspension on condition of one-year actual suspension for misconduct in four matters involving misappropriation of funds through gross neglect, withholding an illegal fee, recklessly incompetent performance of services, failure to return promptly unearned fees and failure to render an appropriate accounting. He had no prior discipline.
In the Matter of Lais, (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 907 - Lais received a two-year stayed suspension on condition of 90-days actual suspension for misconduct in four client matters involving appearing without a client’s authority; failing to promptly return unearned fees and client papers, to communicate properly with a client, to intentionally provide competent legal services, to promptly pay out settlement proceeds upon request, to deposit funds received for the benefit of a client in a trust account; and withdrawing from employment without obtaining the required permission of the court and without taking reasonable steps to protect the client’s rights. He had no prior discipline.
In the Matter of Respondent F, (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 17 - Respondent misappropriated $10.77 from her client trust account. The Review Department imposed a private reproval.
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.
OTHER CONDITIONS NEGOTIATED BY THE PARTIES.
Respondent must show with proof satisfactory to the State Bar’s Office of Probation, within 60-days of the effective date of this stipulation, that the sanctions imposed by the court in Theresa Soder-LaQuey v. Russell Roberts, San Francisco Superior Court case no. CGC-02416265 have been satisfied.
Respondent must show with proof satisfactory to the State Bar’s Office of Probation, within 60-days of the effective date of this stipulation, that there is no overdraft protection on his client trust account.
Respondent must show with proof satisfactory to the State Bar’s Office of Probation, within 60-days of the effective date of this stipulation, that the ATM debit card for his client trust account has been cancelled.
Respondent pleads nolo contendere to the above facts and violations. Respondent completely understands that the plea for nolo contendere shall be considered the same as an admission of the stipulated facts and of his culpability of the statutes and/or Rules of Professional Conduct specified herein.
Case Number(s): 05-0-02792; 05-0-03492; 06-0-10705; 05-0-03838
In the Matter of: Michael J. Guglielmino
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a Notice of Disciplinary Charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere shall be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court shall find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based. (Added by Stats. 1996, ch. 1104.) (emphasis supplied)
Rule 133, Rules of Procedure of the State Bar of California STIPULATION AS TO FACTS, CONCLUSIONS OF LAW AND DISPOSITION
(a) A proposed stipulation to facts, conclusions of law, and disposition must set forth each of the following:
(5) a statement that Respondent either
(i) admits the facts set forth in the stipulation are true that he or she is culpable of violations of the specified statutes and/or Rules of Professional Conduct or
(ii) pleads nolo contendere to those facts and violations. If the Respondent pleas nolo contendere, the stipulation shall include each of the following:
(a) an acknowledgement that the Respondent completely understands that the plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his or her culpability of the statutes and/or Rules of Professional Conduct specified in the stipulation; and
(b) if requested by the Court, a statement by the Deputy trial counsel that the factual stipulations are supported by evidence obtained in the State Bar Investigation of the matter (emphasis supplied)
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 133(a)(5) of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent:
Date:
Case Number(s): 05-0-02792; 05-0-03492; 06-0-10705; 05-0-03858
In the Matter of: Michael J. Guglielmino
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: Virginia Fuller
Principal Amount: $2,000.00
Interest Accrues From: February 16, 2006
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than 60 days after the effective date of this Stipulation
<<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.
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): 05-0-02792; 05-0-03492; 06-0-10705; 05-0-03858
In the Matter of: Michael J. Guglielmino
checked. a. Within 90 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 days/ 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, 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): 05-0-02792; 05-0-03492; 06-0-10705; 5-0-03858
In the Matter of: Michael J. Guglielmino
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: Michael J. Guglielmino
Date: 10/17/06
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Robert A. Henderson
Date: 10/17/06
Case Number(s): 05-0-02792; 05-0-03492; 06-0-10705; 05-0-03858
In the Matter of: Michael J. Guglielmino
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. On page 2, Section 8(b)--costs to be paid in equal amounts prior to February 1 for the following membership years of 2008, 2009 and 2010.
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: Pat McElroy
Date: October 27, 2006
[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 October 27, 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:
MICHAEL JOHN GUGLIELMINO
P O BOX 210107
SAN FRANCISCO, CA 94121
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ROBERT HENDERSON, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on October 27, 2006.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court