Case Number(s): 07-O-10369
In the Matter of: Arturo Marquez, Bar # 59704, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Esther Rogers, Bar # 148246,
Counsel for Respondent: Vicki H. Young, Bar # 73261,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
<<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 18, 1974.
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 12 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. 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 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.
IN THE MATTER OF: Arturo Marquez, State Bar No. 59704
STATE BAR COURT CASE NUMBER: 07-O-10369
FACTS AND CONCLUSIONS OF LAW.
Count One
On or about February 17, 2005, Moe Haughey ("Haughey"), hired respondent to appeal a decision of the Labor Board awarding Haughey’s former employee, Kathy Mahaney ("Mahaney") unpaid overtime wages and interest totaling $7,315.73.
On or about March 8, 2005, respondent filed a Notice of Appeal on behalf of Haughey in the matter Kathy Mahaney v. Moe Haughey, Superior Court of California, County of Yuba, case no. CVG 05-61. The court required Haughey to post a bond for $7,315.73, the amount of Mahaney’s award. On April 29, 2005, the State of California Labor Commissioner informed the court that they would represent the plaintiff and would seek attorney’s fees from Haughey if plaintiff prevailed on appeal.
On May 20, 2005, the court filed and properly served on respondent a Case Management Order. The Case Management Order required respondent to file and serve a settlement conference statement at least five judicial days before the settlement conference set for July 29, 2005. Thereafter, respondent failed to file a settlement conference statement at least five judicial days before the settlement conference. On July 29, 2005, respondent appeared at the settlement conference. The parties did not settle the matter.
On or about August 1, 2005, the court filed a Settlement Conference Order requiring the parties to file and serve a statement of facts, pretrial motions and motions in limine, a list of proposed exhibits, a trial witness list and a trial brief at least five days before the August 31, 2005 trial date. In or about the end of August 2005, the court continued the trial until September 2, 2005. The case was continued less than five judicial days before the August 31, 2005 trial date. Respondent failed to file any documents as ordered by the court, within five judicial days before the August 31, 2005 trial date.
On or about September 2, 2005, the court vacated the September 2, 2005 trial date. On September 12, 2005, the court issued a Notice of Court Trial and re-set the matter for trial to commence on December 1, 2005. The court clerk properly served respondent with a copy of the Notice of Trial. The Notice of Court Trial stated that .trial briefs were due five days before the scheduled trial. Thereafter, respondent failed to file a trial brief.
As of on or about September 12, 2005, respondent knew or should have known that the trial was going forward on December 1, 2005. On or about November 30, 2005, court clerk Lisa Sparks telephoned respondent’s office and left a voice mail message stating to respondent that his trial brief, witness list, exhibit list and any motions in limine were overdue since the trial was scheduled to commence the following day.
Thereafter, respondent failed to appear at the December 1, 2005 trial. At the December 1, 2005 trial, the Court found in favor of plaintiff.
Conclusions of Law
By failing to file a trial brief, exhibit list, and witness list, and by failing to appear for trial on December 1, 2005, respondent recklessly and repeatedly failed to perform legal services with competence in wilful violation of Rules of Professional Conduct, rule 3-110(A).
Count Two
Facts
Count One is incorporated by reference as if fully set forth herein.
Conclusions of Law
By failing to: (1) file and serve a settlement conference statement; and (2) by failing to file and serve trial brief, a list of proposed exhibits and a trial witness list in advance of the August 31, 2005 trial date, in violation of the court’s orders, respondent wilfully violated an order of the court requiring him to do an act in the course of respondent’s profession which he ought in good faith do, in wilful violation of Business and Professions Code section 6103.
SUPPORTING AUTHORITY
Standard 2.4(b) states "[c]ulpability of a member of wilfully failing to perform services with competence 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 2.6(b) states that a member found culpable of Business and Professions Code §6103 "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 for in standard 1.3."
Standard 1.7(a) states "if a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one prior imposition of discipline as defined by standard 1.2(0, the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior discipline imposed was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust.
The Supreme Court recently re-affirmed that great weight is to be given to the Standards and that they should be followed whenever possible. (In re Silverton (2005) 36 Cal.4th 81, 92 [emphasis added].)
Thus, while the Standards are not mandatory, the Supreme Court has held that they should be followed unless the charged attorney can demonstrate the existence of extraordinary circumstances justifying a lesser sanction. (In re Silverton, supra, 36 Cal.4th at 92.) It is Respondent’s burden to demonstrate that there are extraordinary circumstances justifying a lesser sanction than that recommended by the Standards.
Case law also supports actual suspension here. For example, in Sorenson v. State Bar
(1991) 52 Cal.3d 1036, an attorney who failed to obey a court order and breached his duty to maintain such actions only as appear to him legal or just, received a 30 day actual suspension. In Franklin v. State Bar (1986) 41 Cal.3d 700, an attorney who failed to perform and communicate in two matters and made misrepresentations to the State Bar was Suspended for one year, stayed, including 45 days actual suspension. Franklin had no prior record of discipline in 14 years of practice.
In Harris v. State Bar (1990) 51 Cal.3d 1082, an attorney received a 90 day actual suspension for failing to perform in one matter and improper withdrawal. In aggravation, the court found a lack of candor and indifference toward the consequences of his misconduct. The attorney had no prior record of discipline in 20 years of practice.
In Stuart v. State Bar (1985) 40 Cal.3d 838, an attorney was actually suspended for 30 days for failing to perform and improper withdrawal in one matter. He had previously been privately reproved for encouraging a third party to cash two checks that Stuart issued but later failed to honor.
In Layton v. State Bar (1990) 50 Cal.3d 889, an attorney was suspended for three years, stayed, with 30 days actual suspension for failing to perform in one matter involving an estate. He acted as both executor and attorney for the estate. Layton had no priors in 30 years of practice.
The recommended discipline for this matter is well within the Standards and case law. In recommending 30 days actual suspension the parties considered respondent’s record of prior discipline.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was November 14, 2007.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 14, 2007, the costs in this matter are approximately $2,000. 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.
STATE BAR ETHICS SCHOOL.
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
RESTRICTIONS WHILE ON ACTUAL SUSPENSION.
1. During the period of actual suspension, respondent shall not:
a. Render legal consultation or advice to a client;
b. Appear on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner, or hearing officer;
c. Appear as a representative of a client at a deposition or other discovery matter;
d. Negotiate or transact any matter for or on behalf of a client with third parties;
e. Receive, disburse, or otherwise handle a client’s funds; or
f. Engage in activities which constitute the practice of law.
2. Respondent shall declare under penalty of perjury that he or she has complied with this provision in any quarterly report required to be filed with the Probation Unit, pertaining to periods in which the respondent was actually suspended from the practice of law.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-10369
In the Matter of: Artuor Marquez, State Bar No.:59704
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: Arturo Marquez
Date: November 26, 2007
Respondent’s Counsel: Vicki Young
Date: November 28, 2007
Deputy Trial Counsel: Esther Rogers
Date: November 29, 2007
Case Number(s): 07-O-10369
In the Matter of: Artuor Marquez, State Bar No.:59704
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: George Scott
Date: December 18, 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 San Francisco, on December 19, 2007, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSION 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 San Francisco, California, addressed as follows:
VICKI HUI-WEN YOUNG
LAW OFFICE OF VICKI YOUNG
706 COWPER STREET, SUITE 205
PALO ALTO, CA 94301
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Esther Rogers, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on December 19, 2007.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court