Case Number(s): 06-O-14076, 07-O-14019
In the Matter of: John William Millar, Bar # 156804, A Member of the State Bar of California, (Respondent)
Counsel For The State Bar: Suzan J. Anderson, Bar # 160559
Counsel for Respondent: Bar #
Submitted to: 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 16, 1991.
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 17 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.
checked. costs to be paid in equal amounts prior to February 1 for the following membership years: for the two 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.
Please see attachment, pages 14 & 15.
Attachment language begins here (if any):
Please see attachment pages 11 through 16.
Case Number(s): 06-O-14076, 07-O-14019
In the Matter of: John William Millar 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.
Case Number(s): 06-O-14076, 07-O-14019
In the Matter of: John William Millar A Member of the State Bar
<<not>> checked. a. Within days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
checked. b. Within days/ six (6) months/ years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than six (6) hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
IN THE MATTER OF: John William Millar
CASE NUMBER(S): 06-0-14076, 07-0-14019
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he/she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
FACTS
COUNT ONE - Case Number 06-0-14076
1. At all times mentioned herein, Respondent maintained a client trust account at Union Bank of California, Account Number 7340026831 ("Respondent’s CTA").
2. On August 28, 2005, Respondent received $208,615.00 into Respondent’s CTA by way of an electronic transfer from the State of California on behalf of his client, Robert Barczewski ("Barczewski"). The agreement between Respondent and Barczewski was that Barczewski was to receive $170,000.00 of these funds and the remainder was to be used to pay past attorney fees owed to Respondent by Barczewski.
3. On September 9, 2005, prior to any payment being made to Barczewski or anyone on his behalf, the balance in Respondent’s CTA fell to $167,771.95. On September 14, 2005, prior to any payment being made to Barczewski or anyone on his behalf, the balance in Respondent’s CTA fell to $167,738.95.
CONCLUSIONS OF LAW
By not maintaining at least $170,000.00 on behalf of Barczewski in Respondent’s CTA until payment was made to Barczewski, Respondent failed to maintain funds in trust in a client trust account in wilful violation of Rule 4-100(A) of the Rules of Professional Conduct.
COUNT TWO - Case Number 06-0-14076
4. The stipulated facts of paragraphs 1 through 3 are incorporated by reference.
5. Respondent dishonestly misappropriated at least $2,261.05 of the funds received on behalf of Barczewski.
CONCLUSIONS OF LAW
By misappropriating at least $2,261.05 of the funds received on behalf of Barczewski, Respondent committed acts involving moral turpitude, dishonesty and/or corruption in wilful violation of Business and Professions Code section 6106.
COUNT THREE - Case Numbers 06-0-14076, 07-O-14019
6. The stipulated facts of paragraph 1 are incorporated by reference.
7. Between February 2005 and September 2007, Respondent issued the following checks drawn on and authorized the following electronic debits drawn on Respondent’s CTA against insufficient funds:
CHECK NUMBER: 1028; CHECK AMOUNT: $1,438.00; DATE PRESENTED: 02/07/05; BANK ACTION: Paid NSF; RESULTING ACCOUNT BALANCE: - $ 603.76;
CHECK NUMBER: 1026; CHECK AMOUNT: $303.50; DATE PRESENTED: 02/08/05; BANK ACTION: Paid NSF; RESULTING ACCOUNT BALANCE: - $ 926.26; (Check 1026 then reversed on 02/09/05)
CHECK NUMBER: 1026; CHECK AMOUNT: $303.50; DATE PRESENTED: 02/10/05; BANK ACTION: Paid NSF; RESULTING ACCOUNT BALANCE: - $ 947.26; (Check 1026 again reversed on 02/11/05)
CHECK NUMBER: 1050; CHECK AMOUNT: $2,000.00; DATE PRESENTED: 05/25/05; BANK ACTION: Paid NSF; RESULTING ACCOUNT BALANCE: - $ 1,783.84(Check 1050 then reversed on 05/26/05);
CHECK NUMBER: 1053; CHECK AMOUNT: $ 36.30; DATE PRESENTED: 06/17/05; BANK ACTION: Paid NSF; RESULTING ACCOUNT BALANCE: - $ 3.40;
CHECK NUMBER: Electronic; CHECK AMOUNT: $ 6,092.89; DATE PRESENTED: 08/15/05; BANK ACTION: Paid NSF; RESULTING ACCOUNT BALANCE: - $ 2,115.72;
CHECK NUMBER: Electronic; CHECK AMOUNT: $ 8.50; DATE PRESENTED: 08/15/05; BANK ACTION: Paid NSF; RESULTING ACCOUNT BALANCE: - $ 2,115.72;
CHECK NUMBER: 1063; CHECK AMOUNT: $170,000.00; DATE PRESENTED: 09/13/05; BANK ACTION: Paid NSF; RESULTING ACCOUNT BALANCE: - $ 2,228.05;
(Check 1063 then reversed on 09/14/05);
CHECK NUMBER: 1063; CHECK AMOUNT: $170,000.00; DATE PRESENTED: 09/19/05; BANK ACTION: Paid NSF; RESULTING ACCOUNT BALANCE: - $ 2,261.05;
CHECK NUMBER: 1111; CHECK AMOUNT: $180.00; DATE PRESENTED: 09/03/07; BANK ACTION: Paid NSF; RESULTING ACCOUNT BALANCE: - $ 167.05
8. Respondent issued the checks set forth above when he knew or in the absence of gross negligence should have known that there were insufficient funds in Respondent’s CTA to pay them. As several of the checks were returned twice (numbers 1026 and 1063), Respondent made no effort to ensure that there were sufficient funds in Respondent’s CTA after Respondent issued the checks and authorized the electronic debits.
CONCLUSIONS OF LAW
By issuing checks and authorizing electronic debits drawn upon Respondent’s CTA when he knew or in the absence of gross negligence should have known that there were insufficient funds in the account to pay them and failing to ensure that there were sufficient funds in the account to pay the checks, Respondent committed acts of moral turpitude, dishonesty and/or corruption in wilful violation of Business and Professions Code section 6106.
COUNT FOUR - Case Number 06-0-14076
9. The stipulated facts of paragraph 1 are incorporated by reference.
10. During the period of February 2005 to September 2005, Respondent left personal funds in Respondent’s CTA for the payment of office and/or personal expenses as needed.
11. During the same time period, Respondent made personal deposits into Respondent’s CTA for a total of $500.00 as follows:
DATE OF DEPOSIT: 02/15/05; AMOUNT OF DEPOSIT: $ 300.00;
DATE OF DEPOSIT: 09/08/05; AMOUNT OF DEPOSIT: $ 200.00
12. During the same time period, Respondent repeatedly issued checks and authorized electronic debits drawn upon Respondent’s CTA to pay his office and/or personal expenses as follows:
CHECK NUMBER: 1028; DATE PRESENTED: 02/07/05; PAYEE: Tawnie Makua; CHECK AMOUNT: $1,438.00;
CHECK NUMBER: 1050; DATE PRESENTED: 05/25/05; PAYEE: Mission Valley Terrace; CHECK AMOUNT: $2,000.00;
CHECK NUMBER: 1055; DATE PRESENTED: 06/30/05; PAYEE: Tawnie John; CHECK AMOUNT: $1,492.75;
CHECK NUMBER: 1054; DATE PRESENTED: 07/01/05; PAYEE: Steve Kosmata; CHECK AMOUNT: $30.00;
CHECK NUMBER: 1057; DATE PRESENTED: 07/18/05; PAYEE: BayHo; CHECK AMOUNT: 400.00;
CHECK NUMBER: 1058; DATE PRESENTED: 07/25/05; PAYEE: Tawnie Makua; CHECK AMOUNT: $550.00;
CHECK NUMBER: Electronic; DATE PRESENTED: 08/15/05; PAYEE: AMC Mortgage Services; CHECK AMOUNT: $6,092.89;
CHECK NUMBER: Electronic; DATE PRESENTED: 08/15/05; PAYEE: AMC Mortgage Services; CHECK AMOUNT: $8.50;
CHECK NUMBER: 1062; DATE PRESENTED: 09/08/05; PAYEE: Mission Valley Terrace; CHECK AMOUNT: $2,550.00;
CHECK NUMBER: Wire Transfer; DATE PRESENTED: 09/09/05; PAYEE: Ameriquest Mortgage; CHECK AMOUNT: $8,096.22;
CHECK NUMBER: 1065; DATE PRESENTED: 09/29/05; PAYEE: Alex Tomaseirc; CHECK AMOUNT: $152.00
LEGAL CONCLUSIONS
By leaving personal funds in and/or depositing personal funds into Respondent’s CTA for withdrawal as needed to pay office and/or personal expenses, and by issuing checks and authorizing electronic debits as needed for office and/or personal expenses, Respondent improperly used Respondent’s CTA as a personal account and commingled funds belonging to Respondent in a client trust account in wilful violation of Rule 4-100(A) of the Rules of Professional Conduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was January 11, 2008.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of December 4, 2007, the costs in this matter are $1,983.00. 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.
MITIGATING CIRCUMSTANCES
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
No Prior Discipline: Respondent has been a licensed attorney for over 16 years with no prior record of discipline.
Remorse: Several days after Respondent learned that check number 1063 to Mr. Barczewski had been returned for insufficient funds, Respondent purchased a cashier’s check for the amount so Mr. Barczewski received his funds several days later. Respondent made sure the Mr. Barczewski received his funds without the threat or force of disciplinary, civil or criminal proceedings. Mr. Barczewski never complained to the State Bar, the misconduct was discovered due to an insufficient funds check from Respondent’s client trust account.
Severe Financial Stress: In May 2004, Respondent left his employment with the firm where he had been working for several years because the firm owed him a substantial sum of money and refused to pay. Respondent sued the firm in pro per for the funds owed and in early 2006, Respondent won substantial judgment from the firm after a five-day trial. Since Respondent represented himself, this litigation against the firm took a major amount of his time and expenses to bring the case to trial. Respondent was involved in this litigation during the time of the misconduct. As it has now concluded, this will no longer be a problem for Respondent, and he is no longer under financial stress since winning the judgment.
Family Problems: At the time of the misconduct, Respondent and his wife were determining that their marriage was no longer viable and decided to terminate the marriage. Respondent has two children who were greatly affected by this decision and the entire family was under severe stress and suffered emotional difficulties until the details of the termination were worked out. Each family member has learned to adapt to the new situation, and the stress level had subsided considerably, so Respondent is no longer dealing with the emotional difficulties of the entire family.
AUTHORITIES SUPPORTING DISCIPLINE.
Pursuant to standard 1.3, 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."
Standard 2.2(a) provides that culpability of a member of wilful misappropriation of entrusted funds or property shall result in disbarment. Only if the amount of funds or property misappropriated is insignificantly small or if the most compelling mitigating circumstances clearly predominate, shall disbarment not be imposed. In those latter cases, the discipline shall not be less than a one-year actual suspension, irrespective of mitigating circumstances.
Standard 2.2(b) provides that culpability of a member of commingling of entrusted funds or property with personal property which does not result in 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 2.3 provides that culpability of a member of an act of moral turpitude shall result in actual suspension to disbarment depending upon the extent of the harm caused by the act of moral turpitude.
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 Nancy (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 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.
In Edwards III v. State Bar (1990) 52 Cal.3d 28, the Supreme Court stated that a period of one year of actual suspension was sufficient discipline for an attorney found culpable of commingling personal and client funds in a trust account and had on at least one occasion willfully misappropriated a client’s settlement funds from the account, given the attorney’s good faith in refraining from acts of deceit towards the client, making full repayment within three months after the misappropriation and before the attorney was aware of the complaint to the State Bar, cooperating candidly throughout the proceedings, and voluntarily taking steps to improve his management of entrusted funds.
In Murray v. State Bar (1985) 40 Cal.3d 575, the attorney commingled and misappropriated funds entrusted to him, unilaterally determined and withdrew his fees from those funds, made disbursements without court approval, and failed to account to the executors of an estate in face of their repeated demands. The attorney was suspended for two years stayed, and placed on probation for two years to include one year actual suspension.
The stipulated discipline in this matter clearly falls within the standards and case law as mentioned above.
SIGNATURE OF THE PARTIES
Case Number(s): 06-O-14076, 07-O-14019
In the Matter of: John William Millar
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: John William Millar
Date: 1/22/08
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Suzan J. Anderson
Date: 1/28/08
Case Number(s): 06-O-14076, 07-O-14019
In the Matter of: John William Millar
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: 2-15-08
CASE NUMBER: 06-0-14076, 07-0-14019
I, the undersigned, over the age of eighteen (18) years, whose business address and place of employment is the State Bar of California, 1149 South Hill Street, Los Angeles, California 90015, declare that I am not a party to the within action; that I am readily familiar with the State Bar of California’s practice for collection and processing of correspondence for mailing with the United States Postal Service; that in the ordinary course of the State Bar of California’s practice, correspondence collected and processed by the State Bar of California would be deposited with the United States Postal Service that same day; that I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date on the envelope or package is more than one day after date of deposit for mailing contained in the affidavit; and that in accordance with the practice of the State Bar of California for collection and processing of mail, I deposited or placed for collection and mailing in the City and County of Los Angeles, on the date shown below, a true copy of the within
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL SUSPENSION
in a sealed envelope placed for collection and mailing at Los Angeles, on the date shown below, addressed to:
John William Millar
14 2447 Mammoth Drive
San Diego, CA 92123
in an inter-office mail facility regularly maintained by the State Bar of California addressed to:
N/A
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California, on the date shown
below.
DATED:
January 28, 2008
Signed: Max Carranza Declarant
[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 15, 2008, 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:
JOHN W. MILLAR
LAW OFFICE OF JOHN W MILLAR
2750 WHEATSTONE ST SPC 197
SAN DIEGO, CA 92111
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Suzan J. Anderson, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 15, 2008.
Signed by:
Charles Nettles
Case Administrator
State Bar Court