Case Number(s): 06-O-11011-RAH
In the Matter of: S. Callaghan Brickwood, Bar # 96324, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eli D. Morgenstern, Bar # 195060
Counsel for Respondent: Bar #
Submitted to: Assigned Judge State Bar Court Clerk’s Office Los Angeles
<<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 22, 1980.
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. 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 three billing cycles following the effective date of the Supreme Court Order. (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.
Although the discipline herein is serious, Respondent has been a member of the State Bar since December 22, 1980, and no prior record of discipline.
IN THE MATTER OF: S. CALLAGHAN BRICKWOOD
CASE NUMBER(S): 06-0-11011
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified Rules of Professional Conduct.
Facts
1. In or about 1987, Michael Valdez ("Valdez") employed Respondent to file a voluntary Chapter 7 Bankruptcy petition on his behalf. Respondent agreed to prepare the and file the Bankruptcy petition for $1,200, plus the filing fee. At or about the time that Valdez employed Respondent, Valdez paid Respondent $1,200 in advanced fees.
2. Immediately thereafter, Valdez decided that he wanted to postpone Respondent’s preparation and filing of the Bankruptcy petition and advised Respondent not to work on the matter until further notice.
3. In or about April 2005, Valdez advised Respondent’s employee, Richard Buchavich ("Buchavich"), that he was ready to proceed with the bankruptcy and instructed Respondent to prepare and file the Bankruptcy petition. At or about this time, Valdez also provided to Respondent all relevant information and documents necessary to prepare mad file the Bankruptcy petition.
4. On or about April 20, 2005, Valdez provided Respondent with the $209 filing fee for the Bankruptcy petition. At no time did Respondent maintain an attorney client trust account; consequently, at no time did Respondent deposit the $209 into an attorney client trust account.
5. In or about April or May 2005, Valdez mailed to Respondent’s office a completed and signed Chapter 7 Bankruptcy petition, with the understanding that Respondent would file said petition with the United States Bankruptcy Court, Northern District of California. Respondent received Valdez’s Chapter 7 Bankruptcy petition.
6. At no time did Respondent file the Chapter 7 Bankruptcy petition on behalf of Valdez.
7. On or about May 23, 2005, Buchavich sent Valdez an e-mail telling him that the office was "just waiting for confirmation from the court of your filing."
8. On or about September 29, 2005, Respondent sent Valdez an e-mail telling him that she was closing her office. The e-marl also included a partial invoice which stated, among other things, that on or about April 20, 2005, Valdez paid Respondent the $209 filing fee for the Bankruptcy petition, and that Respondent filed the Bankruptcy petition on behalf of Valdez on or about May 19, 2005. The e-mail also stated that Respondent would not be appearing in court on behalf of Valdez, that Valdez did not need to retain another attorney, and that he should just make the appearance in pro per.
9. On or about September 29, 2005, Respondent closed her law office and moved to New York. At the time that she closed her law office, Respondent terminated her representation of Valdez; however, she did not provide Valdez with a new address or telephone number.
10. On or about October 1, 2005, Valdez attempted to call Respondent; however, a recording indicated that Respondent had closed her office and instructed the caller not to leave a message as it would not be returned.
11. Thereafter, Respondent did not contact Valdez.
12. Respondent did not return the advanced fee or the filing fee until on or about December 4, 2006, after the State Bar commenced its investigation of the instant matter. On or about December 4, 2006, Respondent returned $1,625.88 to Valdez. The sum represented the advanced fee plus the filing fee ($1,200 +$209), or $1,409, plus interest at the rate of 10% per annum from May 23, 2005 through December 4, 2006, or $216.88, for a total of $1,625.88.
Legal Conclusions
By failing to file the voluntary Chapter 7 Bankruptcy petition on behalf of Valdez, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in wilful violation of Rules of Professional Conduct, rule 3-l 10(A).
By failing to provide Valdez with a new address and telephone number or take any other action on behalf of Valdez, Respondent improperly withdrew from employment with a client and failed to take reasonable steps to avoid reasonably foreseeable prejudice to his client, in wilful violation of Rules of Professional Conduct, role 3-700(A)(2).
By not depositing and maintaining the $209 filing fee in a client trust account, Respondent commingled and failed to deposit and maintain client funds in trust, in wilful violation of Rules of Professional Conduct, rule 4-100(A).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was December 6, 2006.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. 06-O-11011; Count ONE; Alleged Violation Business & Professions Code § 6106 (Misrepresentation to a Client);
Case No. 06-O-11011; Count FIVE; Alleged Violation Business & Professions Code § 6106 (Misappropriation)
OTHER FACTORS IN CONSIDERATION.
Respondent did not intend to mislead Valdez when she stated to him in the September 29, 2005 e-mail that the Chapter 7 Bankruptcy petition was filed on his behalf on May 19, 2005. At the time that she made the statement to him, Respondent relied on her office’s computer records, which were maintained by Richard Buchavich, an employee. The records indicated that the office had received the petition from Valdez, as well as the filing fee, and that the petition had been filed with the Bankruptcy Court.
Respondent acknowledges that she did not receive a conformed copy of the Chapter 7 Bankruptcy petition from the court or notice of the meeting of creditors pursuant to 11 U.S.C. § 341(a) of the Bankruptcy Code, which should have alerted her to the fact that Mr.; Valdez’s Bankruptcy petition was not filed.
Valdez filed a voluntary Chapter 7 Bankruptcy petition on his own behalf on October 11, 2005; and the bankruptcy was discharged in or about January 2006.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of December 6, 2006, the estimated prosecution costs in this matter are approximately $2,296.
STATE BAR ETHICS SCHOOL EXCLUSION
Respondent resides outside California and is unable to attend the State Bar’s Ethics and Client Trust Account Schools. As an alternative to attending State Bar’s Ethics and Client Trust Account Schools, the parties agree that Respondent must submit to the Office of Probation satisfactory evidence of completion of nine (9) hours of MCLE approved courses in legal ethics within one year of the effective date of the discipline herein. The classes must be participatory, and Respondent shall receive MCLE credit for her attendance at the courses.
AUTHORITIES SUPPORTING DISCIPLINE.
Standards
Standard 2.2(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 commingling of entrusted funds or property with personal property or the commission of another violation of rule 4-100, Rules of Professional Conduct, none of which offenses result in the wilful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances."
Standard 2.4(b) 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."
Standard 2.10 applies to the instant matter, because there is no specified standard for a violation of role 3-700(A)(2) of the Rules of Professional Conduct. Standard 2.10 provides in relevant part that:
"Culpability era member of a... wilful violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to 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 1.6(a) provides that "... if two or more acts of professional misconduct are found or acknowledged in a single disciplinary proceeding, and different sanctions are prescribed by these standards for said acts, the sanction imposed shall be the more or most severe of the different applicable sanctions."
Case Law
The Supreme Court has stated that the State Bar Court should follow the guidance of the Standards whenever possible. (In Re Young (1989) 49 Cal.3d 257, 267, fn. 11; see also In re Silverton (2005) 36 Cal.4th 81, 92.)
This is because "adherence to the Standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, imposition of similar attorney discipline for similar attorney misconduct. (In re Naney (1990) 51 Cal.3d 186, 190.) In fact, the Supreme Court has held that the Standards are to be given great weight in determining the appropriate discipline to be imposed. (In re Silverton, supra, 36 Cal.4th at 92 (emphasis added).)
Further, the Supreme Court will not reject a recommendation arising from the Standards unless it has grave doubts as to the propriety of the recommended discipline. (Lawhorn v. State Bar (1987) 43 Cal.3d 1357, 1366.) Consequently, the Supreme Court has held that the State Bar Court should depart from the Standards only when it finds a compelling reason to do so. (Aronin v. State Bar (1990) 52 Cal.3d 276, 291; In the Matter of Bouyer (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 404, 419.) Any reason for deviating from the Standards should be set forth clearly. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5; In the Matter of Friedman (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 527, 534.) Moreover, the burden is on Respondent to demonstrate the existence of extraordinary circumstances justifying a lesser sanction. (In re Silverton, supra, 36 Cal.4th at 92. (In re Silverton, supra, 36 Cal.4th at 92.)
SIGNATURE OF THE PARTIES
Case Number(s): 06-O-11011-RAH
In the Matter of: S. Callaghan Brickwood
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: S. Callaghan Brickwood
Date: 12/13/06
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Eli D. Morgenstern
Date: 12/18/06
Case Number(s): 06-O-11011-RAH
In the Matter of: S. Callaghan Brickwood
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 DISCIPLINE RECOMMENDED to the Supreme Court.
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 “x” in the box at paragraph B (3) is removed. The aggravating circumstance is included as part of the charged misconduct.
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: Richard A. Honn
Date: 12-21-06
[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 December 26, 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:
S CALLAGHAN BRICKWOOD ATTORNEY AT LAW
331 W 57TH ST #216
NEW YORK, NY 10019
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Eli D. Morgenstern, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 26, 2006.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court