Case Number(s): 05-O-03562-RAH
In the Matter of: Janet Clare Miller, Bar # 106018, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kimberly G. Anderson, Bar # 150359
Counsel for Respondent: Arthur Margolis, Bar # 57703
Submitted to: Assigned Judge State Bar Court Clerk’s Office Los Angeles
Filed: February 5, 2009
<<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 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):
checked. costs are 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: 2010, 2011 and 2012 (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.
Respondent has practiced law for over 26 years with no prior discipline. Respondent also had an honest, but mistaken belief that she was entitled to withhold the client’s entrusted funds and to maintain those funds in trust until resolution of the fee dispute. Respondent also has an extensive history of pro bono community and bar service. (See also stipulation attachment.)
Case Number(s): 05-O-03562-RAH
In the Matter of: Janet Clare Miller A Member of the State Bar
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.
IN THE MATTER OF: Janet Clare Miller
CASE NUMBER(S): ET AL. 05-O-03562-RAH
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 July 22, 2008 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 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 AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
1. On or about On or about December 17, 2003, Elena Gutierrez ("Gutierrez"), a.k.a. Elena Valdez, and Francisco Gutierrez ("Francisco") entered into a Stipulated Judgment ("Stipulated Judgment,’) in a marital dissolution matter entitled Gutierrez v. Gutierrez, San Diego Superior Court case no. D472554 ("the Gutierrez matter"). At the time Gutierrez and Francisco entered into the Stipulated Judgment, Gutierrez was represented by attorney Raymond Wood and Francisco was represented by Claudia Garcia.
2. As part of the Stipulated Judgment the parties agreed to contribute $7,000 each from their share of the equity in the real property of the community to pay approximately $14,000.00 in miscellaneous community credit card debts in full. The funds were to be generated from Francisco’s buy-out of Gutierrez’s interest in the community property residence by refinancing the mortgage. The proceeds from the new loan were placed in escrow pursuant to Francisco’s refinancing agreement. Neither of the attorneys representing Ms. Gutierrez or her husband paid at least six of the debts contemplated, and Gutierrez was left to resolve the debts without counsel.
3. On or about March 29, 2004, Gutierrez employed Respondent to represent her to attempt to resolve the remaining unpaid balances owed to the creditors of the community, and paid Respondent advanced fees of $1,500. No written employment agreement was signed by Gutierrez.
4. On or about October 29, 2004, Chateau Mortgage (the escrow company) issued a check in the amount of $5,447.12, made payable to Respondent and Gutierrez. The check represented the undistributed community debt funds remaining in the Chateau escrow account.
5. On or about October 29, 2004, Respondent deposited the $5,447.12 check into her client trust account no. 0937002590, at Wells Fargo Bank ("CTA"). It was understood that Respondent was to use the funds to attempt to negotiate and pay credit card debts owed by the Gutierrezes.
6. Among the services performed by Respondent, on or about April 20, 2005, Respondent settled one of Gutierrez’s community debts to Jardines del Tiempo, Inc. in the negotiated sum of $1,576.00 satisfying what had been a $1,924.40 debt. Respondent then held a balance of $3,871.12 in trust.
7. On or about August 16, 2005, Gutierrez sent a letter to Respondent requesting that Respondent refund the fees paid in advance for her services, as well as, the "monies of the escrow checks" turned over to Respondent by Garcia. Respondent did not return the $3,871.12 to Gutierrez at that time.
8. On or about September 2, 2005, Respondent sent a letter to Gutierrez referring to Gutierrez’s August 16, 2005 letter. Enclosed for Gutierrez’s signature was a Substitution of Attorney form placing Gutierrez in pro per status. The letter stated:
"I have received your letter dated August 16, 2005. While I would be happy to refund the monies held in trust, which have not already been paid out to creditors, I would like to finish the job I started for you, as we have made substantial progress.
"When I received the first letter from the State Bar Association I was uncertain as to how you wished for me to proceed with your case. I have answered your inquiry as requested.
"If you would like mc to settle the remaining accounts, I would be happy to do so, at no further charge to you for work done from this date on. You do have an outstanding balance due at this time, however. It will be more costly for you in the long run if you start up with another lawyer, and I don’t want you to incur any more fees or costs. The outcome of your dissolution of marriage case, before you retained my services, was not very satisfactory. It is not too late to resolve your consumer credit accounts. In order to do so, I gill need a list of the payments you have made to each creditor this year, I do not need copies of the payment coupons, just copies of the statements and of your payments,
"In the event you wish to terminate my representation, I have enclosed an original Substitution of Attorney form for your consideration and signature. If you sign and date this document where indicated and return it to me, I will arrange for filing with the Court. Of course, I will provide you with a conformed copy, once available. You would then be your own representative in the matters remaining in your dissolution action.
"If you have any questions regarding the Substitution of Attorney form, or any other matter, please call me immediately."
9. On or about December 22, 2005, Gutierrez filed a Substitution of Attorney substituting Respondent out of the case and proceeding in pro per, At that time, Respondent still had not returned the $3,871.12 to Gutierrez or Francisco. Gutierrez, after terminating Respondent’s service, continued to ask Respondent to perform more work on her case.
10. On or about January 24 and 30, 2006, Respondent proposed in letters sent to Gutierrez that she retain $1,660.50 of the $3,871.12 for her services and forward Gutierrez the balance of $2,210.62 from her CTA. Gutierrez did not respond to Respondent’s offers.
11. On or about April 11, 2006, at a meeting at Respondent’s office, Respondent’s assistant attempted to get Gutierrez to authorize Respondent to retain $1,660.50 in her client trust account for payment for Respondent’s past services. The assistant presented a receipt that stated the amount Respondent claimed she was owed for her services, and showing she would maintain the disputed $1,660.50 billed to Gutierrez, in her CTA. Gutierrez refused to sign the receipt and refused to pay Respondent the $1,660.50. Respondent did not return any portion of the $3,871.12, but her assistant did offer to provide Gutierrez with $2,210.62. Gutierrez requested of Respondent’s assistant that Respondent return all of the entrusted funds. Gutierrrez refused to. take any portion of the funds less the entire amount ($3,871.12) Gutierrez was demanding.
12. On or about April 11, 2006, Gutierrez sent a letter to Respondent requesting that Respondent return all of the funds to her being held in trust. By letter on April 12, 2006, Respondent again offered to hold $1,795.50 in her client trust account as disputed funds and offered to return $2075.62 to Gutierrez. Respondent did not offer to return the $1,795.50 to Gutierrez at that time, and Respondent stated to Gutierrez that, "I am not withholding funds to which you are entitled." Respondent now understands that her statement was legally incorrect.
13. Respondent did not have a lien on the funds; however, she honestly but mistakenly believed that the law permitted her to withhold the disputed funds in trust. Respondent did in fact maintain the funds in trust until a fee arbitration was held.
14. Pursuant to a fee arbitration award filed on December 18, 2006, Respondent sent Gutierrez her CTA check in the amount of $3,402.87 -- funds that the arbitrator found were payable to Gutierrez. The check was sent to Gutierrez after the arbitration award became final. In the findings, the arbitrator said, in part, that, "...attorney Miller earned fees in the sum of $2,058, of which $1,500.00 has been paid. Attorney Miller is therefore due $558.00. The arbitration filing fee in the amount of $89.75 is charged to the attorney resulting in a final award to the attorney of $468.25."
15. Respondent violated rule 4-100(B)(4) of the Rules of Professional Conduct by withholding the aforementioned funds from the entrusted funds she received from Chateau to hold and use for paying Gutierrez’s community debts.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was January 15, 2009.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. 05-0-03562; Count One; Alleged Violation 3-110(A);
Case No. 05-0-03562; Count Four; Alleged Violation 4-200(A);
Case No. 05-0-03562; Count Five; Alleged Violation 6106;
Case No. 05-0-03562; Count Three; Alleged Violation No violation alleged. (The Notice of Disciplinary Charges was incorrectly numbered.)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of January 13, 2009, the prosecution costs in this matter are $5,056.90. 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.
Respondent reserves the right to file a motion to reduce costs and the State Bar reserves the right to oppose a motion to reduce costs.
MITIGATING CIRCUMSTANCES.
Although the misconduct is serious, Respondent has no prior discipline since her admission to the California bar on December 3, 1982.
Respondent had an honest but mistaken belief that she was entitled to withhold the client’s entrusted funds and to maintain those funds in trust until resolution of the fee dispute.
Respondent also has an extensive history of pro bone community and bar service.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.2(b) would appear to be applicable. Standard 2.2(b) provides for a three month actual suspension, irrespective of mitigating circumstances.
However, the Standards are not necessarily applied in a talismanic form, there is mitigation and we should look to ease law as well. The case of Dudujian v. State Bar (1991) 52 Cal.3d 1092 is instructive. In Dudujian, the attorneys (Dudujian and his partner) retained client settlement funds in their own account and refused to pay them out to the clients in the honest, but mistaken belief that the clients had authorized the application of these funds to the payment of attorneys’ fees. The attorneys were found culpable of violating rules 4-100(A) and 4-10003)(4) of the Rules of Professional Conduct. There was substantial mitigation. The attorneys received a public reproval.
The instant case is close to Dudujian, but more egregious in that the client did not authorize Respondent to keep the settlement funds. However, the client did terminate Respondent’s services August 16, 2005 after filing a State Bar complaint and then did subsequently ask the Respondent to do more work on the case, which could lead to the conclusion that her instructions were confusing and unclear.
In In the Matter of Klein (Review Dept. 1994) respondent failed to obey a court order to halt implementation of a writ of execution against the client’s estranged husband for spousal support, retained the funds in his client trust account despite the husband’s demand for their return, and ultimately used the funds to pay himself for the wife’s legal fees, among other minor violations. The hearing judge found that this conduct involved failure to comply with a court order and violation of trust fund rules, but did not involve moral turpitude or misappropriation since the conduct involved a mistaken and unreasonable, but honest belief that his actions were justified. The attorney received a. stayed suspension, and probation.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-03562-RAH
In the Matter of: Janet Clare Miller
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: Janet Clare Miller
Date: January 20, 2009
Respondent’s Counsel: Arthur Margolis
Date: January 22, 2009
Deputy Trial Counsel: Kimberly G. Anderson
Date: January 22, 2009
Case Number(s): 05-O-03562-RAH
In the Matter of: Janet Clare Miller
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 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 1-28-09
[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 February 5, 2009, 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:
ARTHUR LEWIS MARGOLIS
MARGOLIS & MARGOLIS LLP
2000 RIVERSIDE DR
LOS ANGELES, CA 90039
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Kimberly G. Anderson, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 5, 2009.
Signed by:
Cristina Potter
Case Administrator
State Bar Court