Case Number(s): 05-O-04288
In the Matter of: Monika M. Arboles, Bar # 170468, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Miho Murai, Bar # 235178
Counsel for Respondent: Tracy Green, Bar # 137869
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
Filed: September 20, 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 June 6, 1994.
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):
<<not>> checked. costs added to membership fee for calendar year following effective date of discipline.
<<not>> checked. costs to be paid in equal amounts prior to February 1 for the following membership years: 2007 & 2008 (hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
See Attachment to Stipulation re Facts, Conclusions of Law, and Disposition
IN THE MATTER OF: MONIKA M, ARBOLES
CASE NUMBER(S): 05-0-04288
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.
FACTS
1. Respondent was admitted to the practice of law in the State of California on June 6, 1994, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California.
2. In or about May 2003, Respondent was retained by Ms. Marye Grays in an overtime and wage claim against her former employer.
3. On or about November 17, 2003, Respondent filed a Complaint for Damages, Restitution, and Injunctive Relief, on behalf of Ms. Grays’, in the Los Angeles County Superior Court, entitled Marye L. Grays v. Apartment Association of Greater Los Angeles, Case No. BC306197.
4. This was Respondent’s last active litigation case before she was to close her practice down, and find a non-legal position in business. Respondent also had a few corporate clients for short-term projects, such as writing employment manuals and other employment advice.
5. During this time, Respondent’s address of record for State Bar purposes was a virtual office suite located at 400 S. Beverly Drive #214, Beverly Hills, CA 90212. Respondent received her mail there, and had access to conference rooms, a receptionist, and other office amenities. Although Respondent usually worked from home, she was regularly in contact with the Beverly Hills office location.
6. On or around February 1, 2004, Respondent decided to close the virtual office suite, located in Beverly Hills, and have her mail sent to her home address, located on 2244 Talmadge Street, Los Angeles, CA 90027.
7. On or around February 4, 2004, Respondent filed a Notice of Change of Firm Name and Address in the Los Angeles County Superior Court, in her only active litigation case, Marye L. Grays v. Apartment Association of Greater Los Angeles, Case No. BC306197. She notified her client, the parties, and the Court that effective February 1, 2004, her address had changed from 400 S. Beverly Drive, Suite 214, Beverly Hills, CA 90212 to 2244 Talmadge Street, Los Angeles, CA 90027.
8. Respondent, however, did not notify the State Bar of the change of address, as required by section 6002.1(a) of the Business and Professions Code. Rather, she waited over eighteen (18) months later before notifying the State Bar of the new address, on or around August 25, 2005, thereby willfully violating Business and Professions Code section 60680(j).
9. Due to rules relating to forwarding of mail in a shared office suite, Respondent was precluded from filing a "change of address" with the U.S. Postal Office. Also, the virtual office suite had a policy of keeping mail for only thirty (30) days.
10. From May 2004 to August 2004, the Office of Membership Billing Services of the State Bar of California ("Membership Billing Services") sent Respondent various notices regarding her failure to pay her State Bar membership fees to the membership records address provided by Respondent for State Bar purposes, at 400 S. Beverly Dr. #214, Beverly Hills, CA 90212. These notices informed Respondent that her continued failure to pay her State Bar membership fees would result in suspension from the practice of law, effective or around September 16, 2004.
11. Respondent never received these notices as she no longer had an office at the Beverly Hills address. Also, thirty (30) days had already elapsed and so the virtual office was no longer keeping any of her mail.
12. From July 2004 to September 2004, the Office of Certification of the State Bar of California ("Office of Certification") sent Respondent various notices regarding her failure to comply with the Minimum Continuing Legal Education ("MCLE") requirement to the membership records address provided by Respondent for State Bar purposes, at 400 S. Beverly Drive #214, Beverly Hills, CA 90212. These notices informed Respondent that if she failed to comply with the MCLE requirement by September 15, 2004, she would be enrolled as an inactive member of the State Bar and would not be permitted to practice law until the State Bar received adequate proof of compliance.
13. Respondent never received these notices as she no longer had an office at the Beverly Hills address. The notices were returned to the State Bar by the U.S. Postal Office stamped, "Returned to Sender - Attempted - Not Known."
14. Between September 16, 2004 and September 12, 2005, Respondent was suspended from the State Bar for failure to pay her membership fees, and therefore, not eligible to practice law during this period.
15. Between September 16, 2004 and October 21, 2005, Respondent was enrolled on "Non Entitled" status for failure to comply with MCLE requirements, and therefore, was not eligible to practice law during this period.
16. Respondent was aware, or should have been aware, that she was not eligible to practice law during this period. However, because she failed to update her membership records address, as required by section 6002.1 (a) of the Business and Professions Code, Respondent did not have actual knowledge of her suspension and/or her "Non Entitled" status until almost a year later, on or around August 16, 2005.
17. Around this same time period, on or around August 7, 2004, Respondent was involved in an accident, whereby she sustained a severe fracture to her left leg, and was unable to walk, work, or drive.
18. According to her physician, Respondent was rendered "totally disabled" from August 2004 through November 2004.
19. Respondent notified her client and opposing counsel of her injury, and thereafter, advised her client to seek new counsel.
20. Ms. Grays was not able to find new counsel until approximately a year later, on or around October 2005.
21. Between September 16, 2004 and October 21, 2005, while suspended and/or enrolled on "Non Entitled" status, Respondent continued to hold herself out as entitled to practice law and continued to practice law, by corresponding with Ms. Grays and opposing counsel about the status of the case, preparing and filing several pleadings, making approximately six court appearances, and representing Ms. Grays during her deposition and at the mandatory settlement conference.
22. On or around April 6, 2005, them was a mandatory settlement conference, whereby Ms. Grays accepted a settlement offer for $40,000.00. Respondent agreed to waive her fees and costs so that her client could take home a higher net profit. Ms. Grays later rescinded the settlement offer on or around April 21, 2005.
23. On or about August 16, 2005, Ms. Grays and her daughter met with Mr. William Becker to discuss her case and potential representation.
24. During their meeting, Mr. Becker reviewed the State Bar website and discovered that Respondent was listed as having been suspended from the Bar and not eligible to practice law since late 2004. He subsequently contacted the State Bar and received confirmation that Respondent was not eligible to practice law.
25. Mr. Becker then informed Ms. Grays and opposing counsel about Respondent’s suspension, and left a message with Respondent, inquiring about the status of her suspension.
26. On or around August 23, 2005 and August 24, 2005, Mr. Becker and Respondent exchanged e-mails, whereby Respondent informed Mr. Becker that she was surprised to learn about her suspension, and would inform the Court about it.
27. After becoming aware of her suspension, Respondent immediately took steps to rectify the problem, by updating her membership records address, paying her State Bar membership fees, and completing her MCLE requirements.
28. Although Respondent should have immediately withdrawn from the case when she discovered that she was currently not eligible to practice law, Respondent failed to exercise good judgment and remained as Ms. Grays’ counsel in order to protect her client’s interests.
29. During this time period, there was significant activity in Ms. Grays’ civil lawsuit. There was a deposition scheduled and the opposing counsel had filed a motion for summary judgment.
30. Since Respondent knew that it would be very difficult for Ms. Grays to immediately secure new counsel with the upcoming trial and summary judgment motion, Respondent prepared and filed the opposition to the summary judgment motion, attended Ms. Grays’ deposition, although it did not go forward because Ms. Grays failed to appear, and appeared for the summary judgment motion.
31. When Respondent appeared for the summary judgment motion on September 13, 2005, she assumed that her administrative suspension had been terminated since she had paid for her State Bar membership fees and completed her MCLE requirements prior to the court heating. However, she failed to verify her status with the State Bar before making her appearance.
32. At the heating, the Court relieved Respondent as Ms. Grays’ counsel at the request of her client and due to her suspension.
CONCLUSIONS OF LAW
By not updating her State Bar membership records address for over eighteen (18) months, Respondent failed to comply with section 6002.1 (a), thereby wildly violating Business and Professions Code section 60680(j).
By continuing to correspond with Ms. Grays and opposing counsel, appearing in court proceedings held in the Los Angeles County Superior Court, and preparing and filing pleadings while she was not entitled to do so, Respondent practiced and/or attempted to practice law when she was not an active member of the State Bar, in willful violation of Business and Professions Code, sections 6125 and 6126, and thereby, failed to support the laws of the State of California.
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A.(7), was September 5, 2006.
SUPPORTING AUTHORITY
Pursuant to Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct, the primary purposes of disciplinary proceedings and imposing sanctions for professional misconduct are "the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession."
Here, the requested discipline complies with Standard 1.3.
Standard 1.6(a) provides that the appropriate sanction for an act of professional misconduct shall be the sanction set forth in the standards for the particular misconduct found.
Pursuant to Standard 2.6, the culpability of a member of a violation of Business and Professions Code section 6068 (including sections 60680) and 6068(a)), "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."
The Supreme Court gives the Standards "great weight," and will reject a recommendation consistent with the Standards only where the Court entertains "grave doubts" as to its propriety. In re Naney (1990) 51 Cal. 3d 186, 190; see also In re Silverton (2005) 36 Cal. 4th 81, 91, 92. Further, although the Standards are not mandatory, it is well established that the Standards may be deviated from only when there is a compelling, well-defined reason to do so. See Aronin v. State Bar (1990) 52 Cal. 3d 276, 291; see also Bates v. State Bar (1990) 52 Cal. 3d. 1056, 1060, fn. 2.
Turning to case law, the range of discipline for unauthorized practice of law in published opinions ranges from thirty (30) days actual suspension to six (6) months actual suspension to disbarment, depending on the gravity of the offense or the harm, if any, to the victim. See In the Matter of Trousil (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 229; see also, Farnham v. State Bar (1976) 17 Cal. 3d 605; see also, In the Matter of Taylor (Review Department 1991) 1 Cal. State Bar Ct. Rptr. 563. Although Respondent’s misconduct would normally warrant an actual suspension, given the totality of the relevant facts and circumstances, an actual suspension is not necessary in this case to effectuate the purposes of the disciplinary proceedings. Respondent has accepted full responsibility for her misconduct, and is on voluntary inactive status, as she is no longer practicing law at this time.
Moreover, the stipulated discipline is within the range of discipline prescribed by the Standards as set forth above. In light of the facts that Respondent has been in practice for more than twelve (12) years without any prior discipline, has been candid and cooperative with the State Bar, and has taken responsibility for her actions, a period of actual suspension is not deemed necessary. Rather, a stayed suspension (with a period of probation and the stipulated conditions) is appropriate in this case to further the purposes of Standard 1.3 to protect the public, the courts, and the profession.
MITIGATING CIRCUMSTANCES
Respondent has been an attorney for over twelve (12) years with no prior record of discipline.
Respondent has displayed spontaneous candor and cooperation with the State Bar throughout the disciplinary investigation and proceedings.
Respondent has shown remorse and promptly took objective steps spontaneously demonstrating recognition of wrongdoing.
Respondent has a history of extensive pro bono work on behalf of the community, including volunteering for Junior Achievement for two years and being on the Board of Directors of Portals, a nationally recognized non-profit mental health agency.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of September 5, 2006, the estimated prosecution costs in this matter are approximately $1,983.00. Respondent acknowledges that this figure is an estimate only. Respondent further acknowledges that should this stipulation be rejected or should relief from this stipulation be granted, the costs in this matter may increase due to the costs of further proceedings.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-04288 and 05-O-04289
In the Matter of: Monika M. Arboles
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: Monika Arboles
Date: 9-11-06
Respondent’s Counsel: Tracy Green
Date: 9-7-06
Deputy Trial Counsel: Miho Murai
Date: 9/14/06
Case Number(s): 05-O-04288 and 05-O-04289
In the Matter of: Monika M. Arboles
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: 9-19-06
[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 September 20, 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:
TRACY GREEN
GREEN & ASSOCIATES
865 S FIGUEROA ST FL 32
LOS ANGELES, CA 90017 -2543
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MIHO MURAI, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 20, 2006.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court