Case Number(s): 05-O-03498-RAP, [05-O-04068]
In the Matter of: Charles B. Graff, Bar # 207634, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eli D. Morgenstern, Bar # 190560
Counsel for Respondent: David C. Carr, Bar # 124510
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
Filed: May 4, 2007
<<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 5, 2000.
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. 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 are to be paid in equal amounts prior to February 1 for the following membership years: see below. (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-05498-RAP, [05-O-04068]
In the Matter of: Charles B. Graff A Member of the State Bar
checked. a. Within days/six (6) 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.
<<not>> checked. b. Within days/ 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 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.
CASE NUMBER(S): 05-O-03498-RAP [05-0-04068]
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes end Rules of Professional Conduct.
Case No. 05-O-03498
1. On or about February 4, 2005, Phillip H. Esnayra ("Phillip") hired Respondent to probate the estate of his father, Jesse Esnayra ("Mr. Esnayra’’). Pursuant to the Attorney Client Retainer Agreement, Phillip gave Respondent a check for $2,844 ($2,000 advanced fees and $844 in advanced costs), which Respondent negotiated.
2. On or about June 6, 2005, Phillip met Respondent at Respondent’s office, terminated Respondent and demanded a fulI refund after Respondent apologized for providing Phillip with no services of value. At the June 6, 2005 meeting, Respondent agreed to refund to Phillip the $844 in advanced costs that Phillip had provided to Respondent.
3. On or about June 13, 2005, Phillip mailed a letter to Respondent terminating his services and demanding a full refund. Respondent received the letter.
4. Respondent did not respond to Phillip’s letter and did not refund the unearned fees end costs to Phillip until August 3, 2905, after Phillip filed for fee arbitration.
5. On or about July 20, 2005, the State Bar opened an investigation, Case No. 05-003498, pursuant to a complaint filed by Phillip (the "Esnayra matter").
6. On or about August 2, 2005, Phillip requested fee arbitration with the Riverside County Bar Association. On or about the same day, the Riverside County Bar Association mailed a "Notice of Appointment of Arbitration Panel" ("Notice") to Respondent. Respondent received the Notice.
7. On or about August 3, 2005, Respondent mailed a letter to Phillip enclosing a cheek for $2,844 and Phillip’s original documents.
Conclusions of Law
By not filing the probate petition for Phillip between February 4, 2005, and June 6, 2005, Respondent intentionally, recklessly, or repeatedly failing to perform legal services with competence, in violation of rule 3-110(A) of the Rules of Professional Conduct.
By failing to refund the unearned fees and costs from June 7, 2005 until Phillip requested fee arbitration on August 2, 2005, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned, in wilful violation of rule 3-700(D)(2) of the Rules of Professional Conduct.
Case No. 05-0-04068
Facts
7. On or about October 4, 2004, Connie Silva ("Silva") met with Respondent regarding her student loans. Previously, Silva’s student loans were apparently mischaracterized as dischargeable in a Chapter 7 bankruptcy, and wore purportedly discharged. However, at that time that she initially met with Respondent, Silva was being dunned by the creditor on the loans. Silva hired Respondent to negotiate with the creditor to stop the dunning. On or about October 4, 2004, Silva agreed to pay Respondent $1,000 for advanced fees and costs to begin the work and to pay additional fees as needed for additional work.
8. On or about October 11, 2004, Silva gave Respondent a check for $1,000 for advanced fees and costs, which he negotiated.
9. Between on or about October 11 and 31, 2004, Silva called Respondent’s office on three or four occasions because he had not contacted her as he promised during their meeting on or about October 4, 2004. Respondent was unavailable when she called, and therefore, Silva left messages for him to call her with his assistant. Respondent did not return any of the messages that she left for him to call her.
10. On or about November 8, 2004, Silva went to Respondent’s office without an appointment. Silva found Respondent at his office and had a brief meeting with him. Respondent told Silva that the issues regarding her student loans would be resolved by February or March 2005 in the bankruptcy court, but that he would require additional fees of $1,447, which included filing fees of $47. Silva did not give Respondent the requested $1,447.
11. On or about December 2, 2004, Respondent met with Silva. Respondent told Silva that he would file a motion to reopen her bankruptcy. Respondent asked for an additional $1,447, which included petition filing fees of $209 and motion filing fees of $47. On or about December 10, 2004, Silva gave Respondent a check for $1,447, which he negotiated.
12. Between on or about December 3 and 15, 2004, Silva called Respondent’s office on two or three occasions. Respondent was unavailable when she called, and therefore, Silva left messages for him to call her with the same assistant. Respondent did not return any of the messages that she Ieft for him to call her.
13. On or about April 7, 2005, Silva called Respondent and act up a meeting for that day. During the meeting, Silva asked for an accounting of the $2,447 that she had already paid him.
14. Between on or about April 8, 2005 and May 9, 2005, Silva called Respondent’s office on three or four occasions. Respondent was unavailable when she called, and therefore, Silva left one or two messages for him to call her with Respondent’s new assistant. When Respondent did not return those messages, Silva left one or two messages with Respondent’s new assistant requesting a full refund and the return of her file. Respondent did not provide a refund, return the file, or otherwise communicate with Silva.
15. In or about the first week of May 2005, Silva’s son called and spoke with Respondent. During their conversation, Silva’s son demanded and Respondent agreed to provide a full refund.
16. On or about May 9, 2005, Silva mailed a letter to Respondent complaining that he had failed to represent her, i.e., negotiate payment of her student loans or file any documents with the bankruptcy court, and demanded, inter alia, a full refund. Respondent received the letter.
17. Respondent did not respond to Silva’s letter and did not refund the unearned fees until December 8, 2005, after Silva complained to the State Bar.
18. Respondent wrote at least one letter to the creditor on the student loans in or about December 2004; however, he provided no services of value to Silva towards negotiating payment of the student loans and did not file bankruptcy to discharge the student loans between October 4, 2004 and May 9, 2005.
19. On or about July 6, 2005, Silva filed a complaint with the State Bar against Respondent.
20. On or about August 18, 2005, a State Bar Complaint Analyst mailed a letter to Respondent regarding the complaint that Silva had filed against him. The Complaint Analyst’s letter requested that Respondent respond in writing to specified allegations of misconduct made by Silva against Respondent. Respondent received the letter.
21. On or about August 30, 2005, Respondent mailed a letter to the Complaint Analyst stating, inter alia, that he would refund the full amount Silva had paid.
22. On or about September 27, 2005, the State Bar opened an investigation, Case No. 05-0-04068, pursuant to the July 6, 2005 complaint filed by Silva (the "Silva matter.")
23. On or about November 18, 2005, a State Bar Deputy Trial Counsel ("DTC") mailed a letter to Respondent regarding the Silva matter titled "Notice of Intent to File Notice of Disciplinary Charges," which informed Respondent that the State Bar was considering disciplinary action. Respondent received the letter.
24. On or about December 9, 2005, Respondent mailed a letter to Silva with a courtesy copy to the DTC informing Silva that he was refunding the full amount Silva had paid and returning her file. The letter enclosed a check for $2,447 and Silva’s documents.
25. Silva received the refund and documents.
Conclusions of Law
By not filing the motion to re-open Silva’s bankruptcy between December 2, 2004, and May 9, 2005, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in violation of rule 3-10(A) of the Rules of Professional Conduct.
By failing to respond to the messages left by Silva in October 2004, December 2004, and between April 8, 2005 and May 9, 2005, Respondent failed to respond promptly to reasonable status inquiries of a client, in wilful violation of Business and Professions Code section 6068(m).
By failing to refund the unearned fees and costs to Silva from May 9, 2005 to December 2005, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned, in wilful violation of rule 3-700(I))(2) of the Rules of Professional Conduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was March 26, 2007.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. 05-O-03498; Count THREE; Alleged Violation Business and Professions Code section 6090.5(a)(2);
Case No. 05-0-04068; Count SEVEN; Alleged Violation Rules of Professional Conduct, rule 3-700(D)(1);
Case No. 05-0-04068; Count EIGHT; Alleged Violation Business and Professions Code section 60680)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of March 26, 2007, the estimated prosecution costs in this matter are approximately $2,929. 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.
OTHER FACTORS IN CONSIDERATION.
During the time that the misconduct herein was committed, Respondent was a sole practitioner with a large case load, including approximately 300 Fen phen cases and approximately 200 other eases including bankruptcy and general civil litigation matters. Respondent operated his office with the assistance of two full-time paralegals, a part-time paralegal and a part time law clerk. Respondent and his limited number of office staff were not adequately equipped to handle the large volume of cases.
As of the date that the State Bar entered into this stipulation with Respondent, Respondent is employed as a house counsel for a company in Temecula and maintains his office at the company. Respondent’s employer permits him to represent other business clients in transactional work. Respondent maintains a ease load of approximately 30 to 40 clients
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:"
Samuelson v. State Bar (1979) 23 Cal. 3d 558. Respondent publicly reproved for failing to expeditiously conduct probate proceedings (proceedings unnecessarily delayed for five years).
In the Matter of Hanson (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 703. Respondent publicly reproved for failure to promptly return unearned fee, and upon discharge by the clients, failing to take steps to avoid foreseeable prejudice to the clients.
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.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-03498-RAP, (05-O-04066)
In the Matter of: Charles B. Graff
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: Charles B. Graff
Date: March 30, ‘07
Respondent’s Counsel: David C. Carr
Date: 4/4/07
Deputy Trial Counsel: Eli D. Morgenstern
Date: 4/5/07
Case Number(s): 05-O-03498-RAP, (05-O-04066)
In the Matter of: Charles B. Graff
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 REPROVAL IMPOSED.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department are vacated.
1. At page 2, paragraph A. (8) after “costs to be paid in equal amounts for the following”, delete “membership years” and insert—“three billing cycles following the effective date of the discipline herein.”
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.) 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: Richard A. Honn
Date: 5/2/07
[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 May 4, 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 Los Angeles, California, addressed as follows:
DAVID CARR
LAW OFFICES OF DAVID C CARR
110 W C ST STE 1504
SAN DIEGO CA 92101
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 May 4, 2007.
Signed by:
Angela Owens-Carpenter
Case Administrator
State Bar Court