Case Number(s): 07-O-12295-DFM
In the Matter of: Martin George Crumblish, Bar # 49361, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Ashod Mooradian, Bar # 194283 ,
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Settlement 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 June 29, 1971.
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):
<<not>> checked. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: three billing cycles following the effective date of the Supreme Court order. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.)
<<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.
(A) CLIENT TRUST ACCOUNTING SCHOOL: 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 State Bar Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
(B) MCLE CREDIT: Respondent will not receive Minimum Continuing Legal Education (MCLE) credit for attending the State Bar Ethics School as required pursuant to paragraph E.(8) above or for attending Client Trust Accounting School as required pursuant to paragraph F.(5)(A) above. These requirements are 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 of California.)
IN THE MATTER OF: MARTIN GEORGE CRUMBLISH, State Bar No. 49361
STATE BAR COURT CASE NUMBER: 07-O-12295-DFM
A. WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY:
The parties waive any variance between the Notice of Disciplinary Charges ("NDC") filed on November 26, 2008, and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
B. FACTS AND CONCLUSIONS OF LAW.
MARTIN GEORGE CRUMBLISH ("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 June 29, 2006, Respondent deposited and thereafter maintained personal funds in his client trust account held at Washington Mutual Bank bearing account number. 877027608-4 ("client trust account").
2. Specifically, on June 29, 2006, Respondent deposited a check into his client trust account made payable to Respondent in the amount of $68,071.56. The $68,071.56 was Respondent’s portion of community property funds from Respondent’s marital dissolution.
3. Respondent was the only authorized signatory on the client trust account. Also, prior to June 29, 2006, the balance in Respondent’s client trust account was $21.25.
4. From about July 1, 2006 through about May 1, 2007, Respondent issued approximately nineteen (19) checks to himself from his client trust as periodic disbursements of his marital settlement proceeds.
5. On April 6, 2007, Respondent issued trust account check number 133 in the amount of $1,000 and made payable to "Glacamora Enterprise". The memo section of trust account check number 133 stated "MGC-Disso Partial Dist." Glacamora Enterprise is a California Corporation formed by Respondent of which he is the President.
6. As of May 1, 2007, the balance in Respondent’s client trust account was $500.20.
7. On May 7, 2007, Washington Mutual Bank notified the State Bar of California that Respondent had issued client trust check number 203 against insufficient funds in his client trust account.
8. On May 15, 2007, the State Bar wrote Respondent regarding the insufficient funds activity in his client trust account.
9. On May 18, 2007, Respondent responded to the State Bar. In his May 18, 2007 letter, Respondent stated that client trust check number 203 was made payable to himself. Respondent also stated that the only funds in his client trust account at the time check number 203 was issued were his personal funds.
10. On July 16, 2007 and on October 26, 2007, a State Bar investigator wrote Respondent regarding his client trust account.
11. On or about December 13, 2007, Respondent provided a written response to the State Bar regarding his client trust account. In the December 13, 2007 letter, Respondent stated that the $68,071.56 deposited into his client trust account were funds Respondent received from his divorce attorney and were Respondent’s "allotment of funds from the marital settlement agreement." That is, it was Respondent’s understanding that some portion of the $68,071.56 actually belonged to his wife. However, Respondent concedes that shortly after the deposit of the $68,071.56, it was made clear to Respondent that no portion of said funds belonged to his wife and still Respondent took no action to remove said funds from his client trust account.
Conclusions of Law:
12. By maintaining personal funds in his client trust account and by disbursing personal funds from his client trust account, Respondent commingled his personal funds in a bank account labeled "Trust Account" or "Client’s Funds Account" in willful violation of Rules of Professional Conduct, rule 4-100(A).
C. AUTHORITIES SUPPORTING DISCIPLINE.
Applicable Standards:
In In re Silverton1, the California Supreme Court held that the Standards For Attorney Sanctions For Professional Misconduct2 are entitled to "great weight" and the Court will "not reject a recommendation arising from the Standards unless [it has] grave doubts as to the propriety of the recommended discipline." [Footnote 1: (2005) 36 Cal. 4th 81, 92.; Footnote 2: Hereinafter "Standard” or "Standards".] The Standards are not binding but "they promote the consistent and uniform application of disciplinary measures." (Id.) The "presumptively appropriate level of discipline" for any misconduct is as set forth in the standards.3 [Footnote 3: See Morgan v. State Bar (1990) 51 Cal.3d 598, 607.]
The primary purposes of disciplinary proceedings 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.4 [Footnote 4: See Standard 1.3.] Pursuant to the Standards, Respondent’s misconduct warrants significant discipline.
Standard 1.7(b) provides 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 two prior impositions of discipline as defined by Standard 1.2(f), the degree of discipline in the. current proceeding shall be disbarment unless the most compelling mitigating circumstances clearly predominate.
Standard 2.2(b) states that the 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."
Looking to the Standards, the most severe specific Standard applicable to the misconduct found is Standard 2.2(b). Standard 2.2(b) provides for at least a three-month suspension, irrespective of mitigating circumstances. Further, in this matter, Respondent has two prior records of discipline implicating the application of Standard 1.7(b). If Standard 1.7(b) is applied then the resulting discipline is disbarment or a longer actual suspension. However, Respondent’s first prior discipline involved Respondent’s two convictions for driving under the influence of alcohol for was over 15 years ago and since that time Respondent has remained abstinent and consistently has treated with Alcoholics Anonymous and "The Other Bar". Further, the second prior discipline was for a violation of rule 3-110(A), which Respondent immediately acknowledged, stipulated to misconduct and took steps to atone for the consequences of his misconduct by immediately offering a refund and helping the client-victim in a separate proceeding. Therefore, the application of Standard 1.7(b) in this matter is not appropriate.
Given the nature and scope of Respondent’s misconduct, including aggravation evidence, the appropriate level of discipline under the Standards is a three month period of actual suspension.
Aggravating Circumstances:
An aggravating circumstance "...is an event or factor established clearly and convincingly by the State Bar as having surrounded a member’s professional misconduct and which demonstrates that a greater degree of sanction than set forth in these standards for the particular act of professional misconduct found or acknowledged is needed to adequately protect the public, courts and legal profession.’’5 [Footnote 5: Standard 1.2(b).]
Standard 1.2(b) provides for a greater degree of sanction set forth in the standards where aggravating circumstances exist. In this matter, only one aggravating factor exists, pursuant to Standard 1.2(b)(i), Respondent has two prior records of discipline (for discussion see infra.).
Mitigating Circumstances:
Standard 1.2(e) provides for a more lenient degree of sanction than set forth in the standards where mitigating circumstances exist. In this case, there are three mitigating circumstances.
First, no client funds were involved or imperilled by any of Respondent’s misconduct herein.6 [Footnote 6: Standard 1.2(e)(iii).] All of Respondent’s misconduct herein involved his personal funds and his deposit into and multiple disbursements out of his client trust account. Second, Respondent displayed spontaneous candor and cooperation with the State Bar during disciplinary investigation and proceedings.7 [Footnote 7: Standard 1.2(e)(v).] Respondent further cooperated to the extent that he stipulated to facts, conclusions of law and level of discipline. Third, Respondent was remorseful for both charges herein and has candidly expressed such remorse to the State Bar.8 [Footnote 8: Standard 1.2(e)(vii).] Further, Respondent recognizes his wrongdoing, was remorseful and has taken steps to atone for the consequences of his misconduct.
Given the nature and scope of Respondent’s misconduct, and considering evidence of aggravating and mitigating circumstances, the appropriate level of discipline under the Standards is a period of actual suspension of 90 da ys "to deter the recalcitrant attorney from future wrongdoing."9 [Footnote 9: In Re Silverton (2005) 36 Cal. 4th 81, 95.]
Caselaw:
In fashioning the appropriate level of discipline, the Standards are the starting point. Consideration must also be given to whether the recommended discipline is consistent with or disproportional to prior decisions of the California Supreme Court and the Review Department of the State Bar Court.
In Matter of McKiernan,10 the court concluded that the attorney violated section 6106 by issuing the two checks knowing that there were insufficient funds to cover them; by failing to make timely restitution; and by his gross neglect in failing to maintain and supervise his client trust account.11 [Footnote 10: (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 420.; Footnote 11: Id. at 423-424.] The court also found that the attorney violated rule 4-100(A) by retaining personal funds in his client trust account, and by failing to supervise and properly maintain his client trust account in that he allowed a client to place funds in the client trust account and use it as his personal business account. Finally, the court found that there were three aggravating circumstances and five mitigating circumstances, including no prior record of discipline. The attorney was suspended for two years, stayed, and placed on two years probation on conditions, including actual suspension for a period of three months.12 [Footnote 12: Id. at 429.]
Comparison:
Respondent’s misconduct is similar to that found in Matter of McKiernan. However, in this matter, the aggravating and mitigating circumstances differ significantly than those found in Matter of McKiernan.
Respondent’s misconduct in this matter, as discussed above, had fewer aggravating factors than those found in Matter of McKiernan. In McKiernan, the court found the following aggravating factors: a) multiple acts of wrongdoing; and b) harm to the client, the public, the courts and the administration of justice. However, in this matter there is only one factor, two prior records of discipline. More significantly, and as discussed above, there are three factors in mitigation, no harm to a client, candor and cooperation and remorse.
Therefore, with several factors in mitigation including, as discussed above, the inappropriateness of applying Standard 1.7(b) in this matter, Respondent’s actual suspension from the practice of law for ninety (90) days is a level of discipline consistent with the applicable standards and caselaw.
D. PENDING PROCEEDINGS.
The disclosure date referred to on page one, paragraph A. (7) was October 6, 2009.
E. COSTS.
Respondent acknowledges that the Office of Chief Trial Counsel has informed Respondent that as of October 6, 2009, the estimated prosecution costs in this matter are approximately $5,510.75. Respondent acknowledges that this figure is an estimate only. 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.
If Respondent fails to pay any installment within the time provided herein or as may be modified by the State Bar Court pursuant to section 6068.10, subdivision (c), the remaining balance of the costs is due and payable immediately and enforceable both as provided in Business and Professions Code, section 6140.7 and as a money judgment unless relief has been granted under rule 286 of the Rules of Procedure of the State Bar of California.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-12295-DFM
In the Matter of: Martin George Crumblish
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: Martin George Crumblish
Date: October 8, 2009
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Ashod Mooradian
Date: October 8, 2009
Case Number(s): 07-O-12295-DFM
In the Matter of: Martin George Crumblish
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: Pat E. McElroy
Date: October 20, 2009
[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 October 22, 2009, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL SUSPENSION
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:
MARTIN GEORGE CRUMBLISH
MACKEY & CRUMBLISH
100 WILSHIRE BLVD STE 950
SANTA MONICA, CA 90401
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ASHOD MOORADIAN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 22, 2009.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court