Case Number(s): 07-O-10788
In the Matter of: Matthew Bernard Weber, A Member of the State Bar of California, (Respondent), Bar # 202719
Counsel For The State Bar: Dane C. Dauphine, Bar # 121606
Counsel for Respondent: Bar #
Submitted to: Assigned Judge 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 November 22, 1999.
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):
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 membership years: (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.
State Bar Court case # 07-N-12386
Date prior discipline effective: December 3, 2009
Rules of Professional Conduct/State Bar Act violations: Cal. Rule of Court 9.20 violation
Degree of prior discipline: Two years stayed suspension, three years probation with 1 year actual suspension and until rehabilitation shown pursuant to standard 1.4 (c) (ii)
Case Number(s): 07-O-10788
In the Matter of: Matthew Bernard Weber, #202719
a. Restitution
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: Stephen Weinstein
Principal Amount: $4,707.50
Interest Accrues From: January 1, 2005
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.
IN THE MATTER OF: Matthew B. Weber
CASE NUMBER(S): ET AL. 07-O-10788
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
FACTS:
1. On or about August 11, 2004, Stephen G. Weinstein ("Weinstein") employed Respondent to represent him in a civil claim against Unum Provident regarding a disability insurance policy. At that time, Weinstein paid Respondent $1,000 in advanced fees to prepare and file a civil complaint.
2. On or about October 1, 2004, Respondent filed a complaint on behalf of Weinstein in the San Francisco County Superior Court entitled Weinstein v. Unumprovident Corporation, et al., case no. CGC 04-435138. In order to file the action, Respondent gave funds to a friend, Jacqueline M. Gallardo. At the time of the filing of Weinstein’s case, Jacqueline M. Gallardo wrote a check on behalf of Respondent to the court to pay a filing fee of $292.50. Thereafter, Gallardo’s check was returned due to insufficient funds. On or about December 20, 2004, the court received $317.50 in payment of the filing fee and the penalty for the returned check.
3. On or about October 1, 2004, Respondent informed Weinstein by email that he had filed ’Weinstein’s case in court the day before and had paid $900 in filing fees. Respondent requested that Weinstein pay an additional $5,000 for costs and fees to proceed with the case, estimating that he would need approximately $400 for service of process.
4. At the time that Respondent sent the email to Weinstein, Respondent knew, or was grossly negligent in not knowing, that he had not paid $900 in filing fees on behalf of Weinstein.
5. On or about October 5, 2004, Weinstein paid Respondent $5,000 as requested by Respondent.
6. On or about October 29, 2004, Marta Weinstein, acting on behalf of Weinstein, sent an email to Respondent requesting a written fee agreement and a current billing statement for the fees and costs paid to Respondent. On or about November 18, 2004, Respondent sent Weinstein a letter providing a written fee agreement for his employment by Weinstein. Respondent did not provide a billing as requested.
7. At no time did Respondent provide a billing or accounting to Weinstein for the funds paid to him by Weinstein.
8. After Weinstein received a written fee agreement from Respondent in November 2004, Respondent did not communicate with Weinstein again. When Weinstein attempted to contact Respondent by telephone, he discovered that the number was disconnected. When Weinstein sought to communicate with Respondent by email, he received no response.
9. On or about December 23, 2004, the court issued an order to show cause in Weinstein’s case for Respondent to appear on or about February 1, 2005, to show cause why the case should not be dismissed for failure to file proof of service on defendants. On or about December 23, 2004, the court served Respondent with a copy of the order to show cause by mail to Respondent’s address of record with the court. Thereafter, Respondent did not appear at court on or about February 1, 2005, to respond to the order to show cause.
10. In or about January 2005, Respondent withdrew from representation of Weinstein without informing Weinstein of Respondent’s intent to do so. At no time did Respondent obtain a substitution of attorney or the consent of the court to withdraw from representation of Weinstein in the action he filed on behalf of Weinstein.
11. In or about January 2005, Weinstein employed new counsel to represent him in his action filed by Respondent. Weinstein’s new counsel was unable to contact Respondent to obtain a substitution of counsel. On or about June 17, 2005, new counsel filed a motion with the court to substitute in place of Respondent as Weinstein’s counsel. On or about July 18, 2005, the court granted a motion filed on behalf of Weinstein to substitute new counsel for Respondent.
12. Respondent was entitled to reimbursement from the $5,000 paid by Weinstein for the filing fee of $292.50. Respondent did not earn the remaining sum of $4,707.50 received from Weinstein. Respondent withdrew from employment and did not refund the unearned fees to Weinstein.
CONCLUSIONS OF LAW:
13. By misrepresenting to Weinstein that he had incurred $900 in filing fees in filing Weinstein’s case, Respondent committed an act involving moral turpitude, dishonesty or corruption in willful violation of the Business and Professions Code, section 6106.
14. By not providing an accounting for the fees and costs paid by Weinstein despite the client’s request, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession in willful violation of the Rules of Professional Conduct, rule 4-100(B)(3).
15. By abandoning representation of Weinstein without informing Weinstein and obtaining a substitution of attorney, Respondent failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client in willful violation of the Rules of Professional Conduct, rule 3-700(A)(2).
16. By not refunding the $4,707.50 paid by Weinstein, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of the Rules of Professional Conduct, rule 3-700(D)(2).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was January 19, 2010.
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct (the "Standards"):
Standard 1.6(a) provides that where 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 sanctions imposed shall be the more or most severe of the different applicable sanctions.
Standard 2.3 provides for actual suspension or disbarment for an act of moral turpitude depending upon the extent to which the victim of the misconduct is harmed or mislead and depending upon the magnitude of the act of misconduct and the degree to which it relates to. the member’s acts within the practice of law.
Standard 2.2(b) provides for a minimum actual suspension of three months irrespective of mitigating circumstances for the commission of a violation of rule 4-100, Rules of Professional Conduct, which does not result in the willful misappropriation of entrusted funds or property.
Standard 2.4(b) provides for reproval or suspension for an individual abandonment of a client depending upon the extent of the misconduct and the degree of harm to the client.
Standard 1.7(b) provides for disbarment if a member is found culpable of professional misconduct and had a record of two prior impositions of discipline.
Case Law
Although this case will be Respondent’s third imposition of discipline, his misconduct occurred during the same period as the misconduct in his first discipline. Where the misconduct occurred during the same period as the prior misconduct, the aggravating force of prior discipline is diminished, but it is appropriate to consider what the discipline would have been if all the charged misconduct during the time period had been brought in one case. (ln the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602, 618-9.)
In Respondent’s first discipline effective April 2007, he was found culpable of misappropriating funds received on behalf of a client, making misrepresentations to a bank, and failing to cooperate with the State Bar in the Miller matter; misappropriating client funds and failing to cooperate in a State Bar investigation in the Lin Matter; failing to maintain funds in trust and failing to cooperate in a State Bar investigation in a trust account matter; and improper withdrawal, failing to account for fees, dividing a fee with another lawyer without client consent and failing to cooperate in a State Bar investigation in the Montoya Matter; and violating a court order, failing to report sanctions to the State Bar, and failing to cooperate in a State Bar investigation in the Ferguson Matter. Respondent defaulted in the discipline case and was placed on a two-year stayed suspension with an actual suspension of two years and until he shows rehabilitation pursuant to standard 4.1 (c)(ii) and makes restitution.
The prior misconduct also involves abandonment of a client and failure to account for fees as in this case as well as more serious misconduct such as misappropriation of client funds and failure to participate in State Bar investigations. Had the current misconduct been combined with the prior misconduct, it is unlikely that the case would have resulted in disbarment or altered the outcome of the second case involving Respondent’s late compliance with rule 9.20, Rules of Professional Conduct. Nevertheless, an additional period of actual suspension is warranted.
Abandonment of clients and failure to refund unearned fees has resulted in actual suspension up to 6 months where there are repeated violations or other misconduct. (Matthew v. State Bar (1989) 49 Cal.3d 784 [60-days actual suspension for failing to account for and/or refund unearned fees in three matters and failing to and failing to perform services diligently in two of the matters; no prior record of discipline]; In the Matter of Nees (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 459 [6-month suspension in a default case for failing to communicate with the client in a habeas corpus case, failing to perform services, failing to release the client file, and failing to refund unearned fees on $7,000, all in one client matter, no prior discipline]; In the Matter of Kennon (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 267 [30-days actual suspension for failing to perform and communicate in two client matters and failing to refund unearned fees of $2,000 in one of the cases; no prior discipline].) Where the client abandonments are repeated or the misconduct is accompanied by acts of moral turpitude, the discipline can be substantial actual, suspension or disbarment. (In the Matter of Kroff (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 838 [recommending three years of actual suspension and until restitution and rehabilitation for misconduct which included ten acts of moral turpitude].)
An additional year of actual suspension with the requirement that Respondent establish his rehabilitation is warranted to address this additional misconduct.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-10788
In the Matter of: Matthew Bernard Weber, #202719
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: Matthew B. Weber
Date: 2/5/2010
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Dane C. Dauphine
Date: 2-9-10
Case Number(s): 07-O-10788
In the Matter of: Matthew Bernard Weber
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.
Page 6 – Paragraph F (2) Check Box
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. Platel
Date: 02-16-10
[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 16, 2010, 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:
MATTHEW B. WEBER
LAW OFFICE OF DAVID BATES
2141 ROSECRANS AVE STE 1130
EL SEGUNDO, CA 90245
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DANE DAUPHINE, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 16, 2010.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court