Case Number(s): 05-O-03770
In the Matter of: Frank S. Carleo, A Member of the State Bar of California, (Respondent), Bar # 65390
Counsel For The State Bar: Diane J. Meyers, Bar # 146643
Counsel for Respondent: Susan L. Margolis Bar # 104629
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
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 18, 1975.
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 11 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. 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.
<<not>>checked. costs to be paid in equal amounts prior to February 1 for the following membership years: (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.
(a) State Bar Court case # of prior case: 02-O-12160
(b) Date of prior discipline effective: April 25, 2005
(c) Rules of Professional Conduct/State Bar Act violations: Section 6103 of the Business and Professions Code
(d) Degree of prior discipline: Public reproval
Respondent was suffering from severe health problems at the time of the misconduct, which were treated successfully and are now under control. Respondent demonstrated recognition of wrongdoing by entering into this stipulation, thereby saving the resources of the State Bar.
G. SUPPORTING AUTHORITY:
Standard 2.6(a) of the Standards for Attorney Sanctions for Professional Misconduct provides that culpability of a member of a violation of Business and Professions Code 6068 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 set forth in standard 1.3.
Standard 1.7(b) provides that if a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of two prior impositions of discipline as defined by standard 1.2(f), the degree of discipline in the current proceeding shall be disbarment unless the most compelling mitigating circumstances clearly predominate.
The parties agree that Respondent’s misconduct herein did not involve moral turpitude. Further, Respondent’s first discipline imposed in 1989, while serious, is remote in time; and his second discipline imposed in 2005, warranted only a public reproval. Thus the parties agree that the mitigating circumstances present outweigh the aggravating factor of Respondent’s prior discipline.
H. MISCELLANEOUS:
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of December 21, 2009, the disciplinary costs in this matter are approximately $2,047.99. 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 costs of further proceedings.
Attachment language begins here (if any):
Respondent pleads nolo contendere to the following facts and violations with respect to case no. 05-0-03770. Respondent understands that the nolo contendere plea shall be considered the same as an admission of the stipulated facts and of his culpability of the statutes and/or rules specified, for the purposes of this proceeding only, and as otherwise stated in the attached and signed nolo contendere plea form:
Case No. 05-0-03770
FACTS:
1. On August 15, 2002, Respondent filed a complaint in the Los Angeles County Superior Court entitled, Frank Carleo v. Ralph Lyu, et al., case number 02C01282 ("Carleo I”).
2. On July 28, 2003, Respondent filed three other lawsuits related to Carleo I in the Los Angeles County Superior Court entitled, Frank Carleo v. Shong-Ching Tong, et al., case number 03C01167; Frank Carleo v. Esther Chow, et al., case number 03C01168; and Frank Carleo v. Li Zhao, et al., case number 03C01169.
3. On February 3, 2005, a trial setting conference was held in the cases and continued to February 24, 2005. The court ordered Respondent, who was present in court on February 3, 2005, to give notice of the February 24, 2005 conference. Respondent gave notice of the conference, but his notice was defective because it listed the date of the conference as February 25, 2005. As such, when the matter was called by the court on February 24, 2005, all of the defendants were not present, requiring the court to continue the conference again to April 21, 2005 in Division 3. Again, the court ordered Respondent, who was present in court on February 24, 2005, to give notice of the April 21, 2005 conference.
4. On April 20, 2005 at 3:52 p.m., Respondent filed a declaration in the action that he signed under penalty of perjury and dated April 20, 2005. In the declaration, Respondent stated that he would not attend the conference on April 21, 2005 because he was scheduled to represent a client in an administrative hearing. In the declaration, Respondent requested that the court set the trial on a date after September 2005, so that Respondent could file summary judgment motions. Respondent filed a proof of service with the court which represented that he had served his declaration on the parties by mail on April 21, 2005, the day of the conference and the day after the declaration was filed with the Court. None of the defendants or their attorneys were served with a copy of Respondent’s declaration dated April 20, 2005, advising that Respondent would not be appearing at the April 21, 2005 trial setting conference.
5. On April 21, 2005, the court held a trial setting conference in the action. Since Respondent was not present, the court continued the conference to June 17, 2005, and on its own motion, scheduled a hearing for June 17, 2005 on an order to show cause for sanctions against Respondent for his failure to appear at the conference. Respondent received notice of the conference and notice that the court was contemplating imposing sanctions against him.
6. On May 25, 2005, counsel for defendants Ralph Lyu and Esther Chow filed a motion for a monetary sanction against Respondent and for dismissal of the action due to Respondent’s failure to appear at the trial setting conference (the "motion"). Respondent received notice of the motion, and filed a written opposition to the motion on June 10, 2005.
7. As Respondent did not serve any of the defendants with his declaration dated April 20, 2005, the proof of service submitted by Respondent and filed with the court on April 20, 2005, contained a false statement of fact.
8. On June 21, 2005, the court granted the motion and ordered Respondent to pay a $1,126.30 sanction to defendants’ attorney within 30 days.
9. On June 21, 2005, the court clerk served written notice of the sanction order on Respondent by mail. Respondent received notice of the sanction.
10. Respondent did not report the imposition of the $1,126.30 sanction to the State Bar of California ("State Bar").
CONCLUSIONS OF LAW:
1. By filing a proof of service with the Court that contained a false statement of fact, Respondent wilfully violated Business & Professions Code section 6068(d).
2. By not reporting the imposition of the $1,126.30 sanction to the State Bar, Respondent wilfully violated Business and Professions Code section 6068(0)(3).
Case Number(s): 05-O-03770
In the Matter of: Frank S. Carleo A Member of the State Bar
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
The terms of pleading nolo contendere are set forth in the Business and Professions Code and the Rules of Procedures of the State Bar. The applicable provisions are set forth below:
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 will be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court will 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 Stipulations 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 and 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 pleads 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 of California. 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: Frank Carleo
Date: 1/15/10
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-03370
In the Matter of: Frank S. Carleo
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: Frank S. Carleo
Date: 1/15/10
Respondent’s Counsel: Susan L. Margolis
Date: 1/19/10
Deputy Trial Counsel: Diane J. Meyers
Date: 1/22/10
Case Number(s): 05-O-03770
In the Matter of: Frank S. Carleo
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: 2-10-10
[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 11, 2010, 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:
SUSAN L MARGOLIS ATTORNEY AT LAW
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:
Diane J. Meyers, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 11, 2010.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court