Case Number(s): 06-O-14652
In the Matter of: Sean Tabibian, Bar # 207447, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Lee Ann Kern, Bar # 156623
Counsel for Respondent: Michael G. Gerner, Bar # 65906
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: November 5, 2008.
<<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, 2000.
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 10 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.
Case Number(s): 06-O-14652
In the Matter of: Sean Tabibian
<<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/ months/ 1 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 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.)
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 3 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: Sean Tabibian, State Bar No. 207447
STATE BAR COURT CASE NUMBER: 06-O-14652
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified Rule of Professional Conduct.
COUNT ONE: Rules of Professional Conduct, rule 3-110(A) [Failure to Perform with Competence]
1. On or about February 2, 2006, Catherine Hampton ("Hampton") met with Respondent at his office and hired him that day to represent her minor grandson, Stanley Mitchell ("Mitchell"), in a criminal matter in which Mitchell had been charged with murder. The case was entitled People vs. Stanley Mitchell, Los Angeles Superior Court Case No. TA083254.
2. On or about February 2, 2006, Hampton and Respondent entered into a written fee agreement ("fee agreement") wherein Respondent agreed to represent Mitchell "pre-filing." However, the fee agreement also stated that Respondent would represent Mitchell "through the completion of all pretrial proceedings. (Arraignments, Pretrial Conferences, Plea Negotiations, Preliminary Hearings, Motion Hearings, Structured Disposition, and any Sentencing.)"
3. The fee agreement called for Hampton to pay Respondent a total of $25,000, with $10,000 down and the $15,000 balance due "ASAP." On or about February 2, 2006, Hampton paid Respondent $10,000 in legal fees towards the $25,000.
4. On or about February 2, 2006, when Hampton met with and hired Respondent, Hampton told Respondent that Mitchell’s arraignment was scheduled the following day, February 3, 2006, in Division 12 of the Compton District of the Los Angeles Superior Court.
5. At no time did Respondent inform Mitchell or Hampton that he was unwilling or unable to attend any pre-trial court appearances in Mitchell’s case, including Mitchell’s arraignment.
6. On or about February 3, 2006, Respondent intentionally did not appear in court for Mitchell’s arraignment because Hampton had not yet paid Respondent his entire $25,000 fee. Alternate Defense Counsel ("ADC") represented Mitchell at the arraignment. The court continued the arraignment until February 6, 2006, at 8:30 a.m.. Respondent received notice of the continued hearing date from either Mitchell or Hampton.
7. On or about February 6, 2006, Respondent arrived at the courthouse by 8:30 a.m., but again intentionally failed to appear for the continued arraignment because Hampton had not yet paid Respondent his entire $25,000 fee. Mitchell was represented by ADC in court that day. After Mitchell’s case was called, Respondent met with the ADC and received the police report and the Information in Mitchell’s case from the ADC.
8. Between February 2, 2006 and February 10, 2006, Respondent met with Mitchell once while Mitchell was in custody.
9. On or about February 10, 2006, Hampton terminated Respondent’s services.
10. Respondent intentionally did not provide Mitchell with the pre-trial services for which Hampton had contracted. Respondent therefore did not earn the entire $10,000 in advanced fees paid to him by Hampton.
11. The reasonable value of Respondent’s services was $2,000. Respondent did not refund $8,000 in unearned, advanced fees paid to him by Hampton upon Respondent’s termination of employment.. On or about October 1, 2008, Respondent mailed Hampton a check in the amount of $8,000 representing the unearned, advanced fees.
12. By intentionally failing to provide Mitchell with the pre-trial services for which Hampton had contracted, including appearing in court on Mitchell’s behalf, Respondent intentionally failed to perform legal services with competence, in wilful violation of rule 3-110(A), Rules of Professional Conduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was October 2, 2008.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of September 17, 2008, the prosecution costs in this matter are $1,983. 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.
AUTHORITIES SUPPORTING DISCIPLINE.
In In the Matter of Riley (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91, 115, the Review Department concluded that an attorney of record who intentionally absented himself from a client’s deposition, despite knowing that the client would be unrepresented, failed to perform legal services competently.
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; In re Silverton (2005) 36 Cal. 4th 81, 91-92.) 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; Bates v. State Bar (1990) 51 Cal.3d 1056, 1060, fn. 2. There is no compelling reason to deviate from the standards in the instant matter.
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 shall result in reproval or suspension depending upon the extent of the misconduct or the degree of harm to the client. The stipulated level of discipline, one year stayed suspension and two years probation, is justified and is supported by the standards and the case law.
SIGNATURE OF THE PARTIES
Case Number(s): 06-O-14652
In the Matter of: Sean Tabibian
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitations and each of the terms and conditions of this Stipulation Re Facts and Conclusions of Law.
Respondent enters into this stipulation as a condition of his/her participation in the Program. Respondent understands that he/she must abide by all terms and conditions of Respondent’s Program Contract.
If the Respondent is not accepted into the Program or does not sign the Program contract, this Stipulation will be rejected and will not be binding on Respondent or the State Bar.
If the Respondent is accepted into the Program, upon Respondent’s successful completion of or termination from the Program, this Stipulation will be filed and the specified level of discipline for successful completion of or termination from the Program as set forth in the State Bar Court’s Statement Re: Discipline shall be imposed or recommended to the Supreme Court.
Respondent: Sean Tabibian
Date: October 7, 2008
Respondent’s Counsel: Michael G. Gerner
Date: October 9, 2008
Deputy Trial Counsel: Lee Ann Kern
Date: October 10, 2008
Case Number(s): 06-O-14652
In the Matter of: Sean Tabibian
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: November 5, 2008
[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 November 5, 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:
MICHAEL GALEN GERNER
MICHAEL G. GERNER, A PROF LAW CORP
10100 SANTA MONICA BLVD #300
LOS ANGELES, CA 90067
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Lee Ann Kern, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 5, 2008.
Signed by:
Cristina Potter
Case Administrator
State Bar Court