Case Number(s): 05-O-05175
In the Matter of: Debra L. Koven, Bar # 149983, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Agustin Hernandez, Bar # 161625
Counsel for Respondent: David A. Clare, Bar # 44971
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: December 7, 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 December 4, 1990 .
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. Costs are added to membership fee for calendar year following effective date of discipline.
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: . (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) 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. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes.
FACTS:
1. On May 20, 2002, Respondent filed an appeal on behalf of her client Paul Bashkin in the Court of Appeal of the State of California, Second Appellate District, Division Six ("Court of Appeal"), in a matter designated Bashkin v. Blase, et al., Court of Appeal Case No. B159344. This appeal was from an order of the Superior Court of the State of California, County of Ventura ("Superior Court"), denying a motion by Bashkin to disqualify the defendants’ counsel and an expert witness retained by the defendants.
2. On June 17, 2003, Respondent filed another appeal on behalfofBashkin in the Court of Appeal in Bashkin v. Blase, et al. This appeal was assigned Court of Appeal Case No. B168013, and was from an order of the Superior Court entering summary judgment in favor of the defendants.
3. On June 18, 2003, Respondent submitted to the Court of Appeal a letter in Case No. B159344, requesting that the justices of the Court of Appeal recues themselves on the ground of bias against Bashkin.
4. On July 2, 2003, the Court of Appeal denied the request for recusal in Case Nos. B 159344 "as frivolous."
5. In separate opinions issued on May 31, 2005, following briefing and oral argument, the Court of Appeal affirmed the Superior Court’s order denying Bashkin’s motion to disqualify the defendants’ counsel and expert witness in Case No. B159344, and affirmed the summary judgment in Case No. B168013.
6. On June 16, 2005, Respondent petitioned for rehearing in both appeals.
7. In the petition for rehearing in Case No. B159344, Respondent made the following statements, with the emphasis and Capitalization as shown:
7.1. "After reading the Opinion, it became painfully obvious that this Court worked backwards in reviewing the issues to ensure that the ’ends justified the means.’ ... [¶] It is clear from the Opinion that this Court neither reviewed the controlling cases, nor read [Bashkin’s] Reply Brief, which contained the authority mandating reversal. And why would this Court look at cases cited by [Bashkin], anyhow, when it has concealed its own conflicts with [defendants] resulting from their prior relationships! How could [Bashkin] possibly convince this Court to follow the governing law requiring expert’s and counsel’s disqualification, when this Court engaged in the same type of ’loyalty-breaching’ activities that [Bashkin] was complaining about in his motion to disqualify them?! [Bashkin] never stood a chance to succeed on this appeal. If this Court dared to disqualify an expert and a defense firm that failed to disclose conflicts, its own conduct could be called into question! The cards were not only stacked against [Bashkin], but the Jokers were wild!"
7.2. "THIS COURT CONSPIRED WITH [DEFENDANTS] TO DEFEAT [BASHKIN’S] INTERESTS."
7.3. "In fact, the justices of this Court refused to disclose their conflicts of interest; refused to respond to [Bashldn’s] charges; and refused to recues themselves, precisely because ’the fix was in’ .... "
7.4. "Despite its obvious ’window-dressing,’ this Court’s elaborate ’staging’ of the removal of Justice Coffee from the panel hearing oral argument on [Bashkin’s] two appeals, ironically proved three things: First, that Justice Gilbert knew full well that [Bashkin’s] charges against the other three justices were anything but ’frivolous.’ Second, that all of the prior rulings against [Bashkin] in which at least Justice Coffee participated were tainted. And, third, that there were still at least two justices comprising the panel (Yegan and Perren), with personal biases in favor of [defendants], who had failed to respond to [Bashkin’s] recusal demands, that were going to perpetuate the ’fix.’ [¶] An independent review of the totality of the circumstances would disclose a ’personal bias or prejudice’ by the conflicted justices in favor of [defendants] and against [Bashkin] .... This Court’s rulings against [Bashkin] in this appeal, each of which had no basis whatsoever in fact or law, were merely a reaffirmation that the ’fix’ was proceeding full bore."
7.5. "A reasonable person, aware of the facts, would believe that this Court purposely denied [Bashkin’s] stay request and purposely delayed the hearing on this interim appeal..., since it had already predetermined that it could ’kill-two-birds-with-one-stone’ by first affirming the summary judgment, and then claiming that its affirmance somehow ’mooted’ the [expert witness] disqualification. The fix was not only ’in,’ but proceeding at full throttle."
7.6. "This Court’s predilections for prejudicial posturing ....”
7.7. "THIS COURT MANIPULATED AN AFFIRMANCE ...."
7.8. "If this Court had conducted an honest and impartial review of [Bashkin’s] willful suppression claim, it would have to have found, as a matter of law, a willful suppression of evidence by [defendants’ counsel] .... "
7.9. "The bottom line: the record establishes the ’presence of judicial partiality’ in... this Court’s review of [Bashkin’s] motion."
7.10. "In fact, this Court’s finding is a complete red herring. This Court purposely concocted a flimsy excuse not to rule on the merits of this issue, because it knew that to do so would have required it to reverse ....
8. In the petition for rehearing in Case No. B168013, Respondent made the following statements, with the emphasis and Capitalization as shown:
8.1 "[I]t is difficult to remain focused on what is ’just’ when faced with an unfair and biased Court that predetermined its findings and worked backwards to get there, by deciding the instant appeal before the interim disqualification appeal. In light of their own inherent conflicts of interest pertaining to prior relationships with [defendants] - not to mention, the home-town factor of the ’Ventura Good-Old Boy’ [defendants] - in combination with the personal animus this Court has toward [Bashkin], even with Clarence Darrow as his representative, [Bashkin] did not stand a chance of prevailing in this Court. The fix was most assuredly ’in.’"
8.2. "In order to manipulate an affirmance, this Court ignored issues that mandated reversal; refused to apply the law that supported [Bashkin’s] position; failed to view the facts and inferences in the light most favorable to [Bashkin], all to his detriment and prejudice; and employed an ’end-justify the-means’ approach in order to push this litigant out of the court system."
8.3. "[The court] refused to afford [Bashkin] an opportunity to address these additional grounds upon which his appeal was rejected, because its intent was to deny [Bashkin] his constitutional right to equal protection under the law."
8.4. "This Court’s finding was not simply a flagrant, reprehensible breach of its ethical and legal obligations to afford every litigant, including [Bashkin], equal protection under the law, but it is contrary to all published legal authority in this state. Moreover, it demonstrates a profound lack of integrity, by directly assaulting [Bashkin’ s] right to have each of his appeals reviewed by a non-prejudicial court that had not enjoyed prior relationships with [defendants] which it kept concealed for the entirety of [Bashkin’s] lawsuits involving them!"
8.5. "When this Court chose to engage in a betrayal of the fundamental values and principles of the law, in order to defeat the interests of a ’Bashkin,’ it undertook an ’ends-justifies-the-means’ approach. The ’ends’ was to eliminate [Bashkin] from the judicial system, whatever the cost- the cost being this Court’s integrity and continuing viability as a depository of the public trust."
8.6. "Far from viewing the evidence in the light most favorable to [Bashkin], this Court spent two pages of its Opinion trashing [Bashkin] as the ’patient-from-hell’ who allegedly ordered his doctor to alter his medical records .... How convenient for this Court to concoct a trumped-up review of this issue that fits so snugly into its own predetermined perception of this litigant!"
8.7. "THIS COURT MISREPRESENTED THE EVIDENCE IN ORDER TO MANIPULATE AN AFFIRMANCE ON [A] FRAUD THEORY OF LIABILITY."
8.8. "[I]f this panel remains steadfast to its unique interpretation of the proper review of unchallenged theories, it must publish its Opinion, so that [Bashkin] will not be singled out for special treatment (which, of course, was this Court’s intention from the outset)."
8.9. "The bottom line is: this Court refused to apply the governing principles and law to it [sic] analysis of the facts in order to manipulate an affirmance on this issue in favor of a litigant with whom the Court had a personal relationship and against a litigant it views with disdain .... Therefore, it must now rehear and reverse the summary judgment on these fraud theories of liability, or be guilty of itself having committed fraud in betraying its duty to uphold the public trust in a fair, impartial judiciary."
9. At the time Respondent made the statements set forth in paragraphs 7.1 to 7.10 and 8.1 to 8.9, Respondent knew that the statements were false, or made them with a reckless disregard as to their truth or falsity, thereby impugning the integrity of the court.
10. On June 28, 2005, in a matter designated In re Debra L. Koven on Contempt, Court of Appeal Case No. B184017, the Court of Appeal issued an order to show cause why Respondent should not be held in contempt and punished for impugning the integrity of the Court based on the petition for rehearing in Case No. B 159344, including, but not limited to, each of the statements set forth in paragraphs 7.1 to 7.10, above.
11. Also on June 28, 2005, in a matter also designated In re Debra L. Koven on Contempt, Court of Appeal Case No. B 184018, the Court of Appeal issued an order to show cause why Respondent should not be held in contempt and punished for impugning the integrity of the court based on the petition for rehearing in Case No. B 168013, including, but not limited to, each of the statements set forth in paragraphs 8.1 to 8.9, above.
12. On September 26, 2005, Respondent, through counsel, filed a consolidated return to the orders to show cause in Case Nos. B184017 and B184018, including a declaration in which Respondent apologized to the Court of Appeal and acknowledged that the statements set forth in paragraphs 7.1 to 7.10 and 8.1 to 8.9, above, were "improper" and "inexcusable."
13. On October 14, 2005, the Court of Appeal held a hearing on the orders to show cause, which Respondent attended, represented by counsel.
14. On November 22, 2005, the Court of Appeal issued a decision in Case Nos. B184017 and B184018, in which it found the statements set forth in paragraphs 7.1 to 7.10 and 8.1 to 8.9, above, to be contemptuous on their face, and found Respondent guilty of two counts of direct criminal contempt, one count for each petition for rehearing in Case Nos. B 159344 and B 184018, respectively, and ordered Respondent to pay fines of $1,000 for each count of contempt, for a total of $2,000, due within 60 days of the date of finality of the decision.
15. The decision became final on December 22, 2005.
CONCLUSIONS OF LAW:
16. By making the statements set forth in paragraphs 7.1 to 7.10 and 8.1 to 8.9 above, in pleadings filed in the Court of Appeal, Respondent failed to maintain the respect due to the courts of justice and judicial officers.
SUPPORTING AUTHORITY:
Standard 1.3, Title IV, Standards for Attorney Sanctions for Professional Misconduct, provides that the primary purposes of the disciplinary system 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."
Recently, the Supreme Court emphasized the importance of the standards and held that great weight should be given to the application of the standards in determining the appropriate level of discipline. The Court indicated that unless it has "grave doubts as to the propriety of the recommended discipline," it will uphold the application of the standards. In re Silverton (2005) 36 Cal. 4th 81, 91-92.
Standard 2.6(a) provides that Respondent’s violation of Business and Professions Code, section 6068(b) shall result in suspension or disbarment "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."
Respondent has offered no compelling reason that would justify a deviation from the standards.
PENDING PROCEEDINGS:
The disclosure date referred to on page one, paragraph A(7) was October 25, 2007.
SIGNATURE OF THE PARTIES
Case Number(s): Debra L. Koven
In the Matter of: 05-O-05175
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: Debra L. Koven
Date: November 15, 2007
Respondent’s Counsel: David A. Clare
Date: October 2, 2007
Deputy Trial Counsel: Agustin Hernandez
Date: November 8, 2007
Case Number(s): 05-O-05175
In the Matter of: Derbra L. Koven
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: December 6, 2007
[Rules Proc. of State Bar; Rule 5.27(B); 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 December 7, 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 ALAN CLARE ESQ
DAVID A CLARE, ATTORNEY AT LAW
444 W OCEAN BLVD STE 800
LONG BEACH, CA 90802
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Agustin Hernandez, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 2, 2007.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court