Case Number(s): 07-O-13322
In the Matter of: Anthony Pagkas, Bar # 186112, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Robin Brune, Deputy Trial Counsel
180 Howard Street
San Francisco, California 94105
Bar # 149481,
Counsel for Respondent: In Pro Per Respondent
Anthony Pagkas
75 E. Santa Clara Street, Suite 1210
San Jose, California 95113
Bar# 186112
Submitted to: Assigned 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 December 11, 1996.
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 11 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 5.130, 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: Anthony Pagkas, State Bar No. 186112
STATE BAR COURT CASE NUMBER: 07-O-13323
FACTS AND CONCLUSIONS OF LAW.
In 2003, Ed Mumbert ("Mumbert") hired Pagkas to defend him in Styles v. Mumbert, Case no. 1-03-CV-002071, filed in Superior Court, County of Santa Clara. Respondent failed to timely respond to interrogatories. As a result of respondent’ s failure to timely respond to interrogatories, in January, 2005, the plaintiff succeeded in obtaining terminating sanctions against Mumbert. Mumbert terminated respondent and hired a second attorney to set aside the terminating sanctions order. However, the Court denied a set-aside and entered a default judgment against Mumbert in the sum of $730,466.000.
Thereafter, Mumbert sued respondent for malpractice, Mumbert v. Pagkas, case no 105CV053326, also filed in Superior Court, County of Santa Clara. Respondent filed a cross-complaint for attorney’s fees.
At the same time that the malpractice suit was going forward, Mumbert was also appealing the adverse ruling in the Styles v. Mumbert case. This was case number H029767, filed in the Court of Appeal, Sixth Appellate District.
The parties met to discuss settlement, but no resolution was reached. Thereafter, respondent purchased, from Styles, the rights to the judgment. Respondent sought to then negotiate with Mumbert, and obtain, from Mumbert, consideration for the judgment that respondent now held against Mumbert. Respondent sought a significant sum from Mumbert, originally asking for around $100,000 in the hopes of getting at least a third of that amount. Respondent also sought to intervene as the real party in interest in the pending appeal, by filing pleadings in the Sixth Court of Appeal asking to be substituted into the case in the stead of Styles. In his pleadings, respondent indicated that he should be allowed to step in as a respondent in order to "offset any [future malpractice] award."
On July 15, 2008, the Court of Appeal issued a published decision (164 Cal. App. 4th 1163), denying respondent’s motion to be substituted into the suit in the stead of Styles. The Court found that respondent had violated his fiduciary duties to Mumbert as his former client. The Court sanctioned respondent the sum of $5,260.00, payable to Mumbert.
Respondent did not report the sanctions order to the State Bar.
CONCLUSIONS OF LAW
1. Respondent failed to perform with competence, in reckless, repeated, and willful violation of Rules of Professional Conduct, rule 3-110(A) when he failed to timely respond to interrogatories, resulting in the default judgment against Mumbert.
2. Respondent maintained an adverse, pecuniary interest, adverse to his client, in willful violation of Rules of Professional Conduct, rule 3-300, when he, without his client’s knowledge or consent, purchased the judgment against Mumbert from Styles, and thereafter sought to obtain funds from Mumbert in satisfaction of the judgment.
3. Respondent violated Business and Professions Code, section 6068(o), when he failed to report the adverse ruling, and sanctions against him, to the State Bar.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was November 3, 2010.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of $2,258.00, the prosecution 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.
AUTHORITIES SUPPORTING DISCIPLINE
The Standards for Attorney Sanctions for Professional Misconduct, Standard 2.8, mandates suspension for a willful violation of Rules of Professional Conduct, rule 3-300, unless the extent of the member’s misconduct and the harm are minimal. The Standards for Attorney Sanctions for Professional Misconduct, Standard 2.6 mandates suspension for a willful violation of Business and Professions Code, section 6068. Case law demonstrates a range of discipline from reproval to two-years actual.
In a 3-300 case in which the attorney did not have a prior record of discipline, the discipline has encompassed a public reproval for a single instance of holding an interest adverse to a client without proper notice and consent (Connor v. State Bar, supra, 50 Cal.3d 1047); thirty-days actual suspension for rule 3-300 violations, mismanagement, and intentional misrepresentations involving two trusts (Schneider v. State Bar, supra, 43 Cal.3d 784); and a two-year actual suspension for a business transaction with a client without notice and consent and the improper solicitation of a client, coupled with a client abandonment, failure to communicate with his clients, and failure to return client property and advanced fees promptly. (Rose v. State Bar, supra, 49 Cal.3d 646.)
In In the Matter of Fonte, (1994) 2 Cal State Bar Ct. Rptr. 752, at 765. the attorney received a sixty day actual suspension, one year of stayed suspension, and two years of probation, for, among other misconduct, obtaining an adverse interest to his client in a trust matter. In In Re Silverton (2004) 4 Cal. State Bar Ct. Rptr. 643, the attorney received sixty days of actual suspension for an improper business transaction with his client: he was paying his clients a set amount for the right to negotiate their medical liens, if he successfully negotiated the lien, he would keep the profit from the negotiation. In In Matter of Hultman (1995) 3 Cal. State Bar Ct. Rptr. 297, the attorney made two loans to himself as trustee of a testamentary trust, using up most of the corpus of the trust, in conflict with his client. The Court imposed sixty days of actual suspension, three-years stayed.
In the present case, respondent’s lack of discipline and his cooperation in reaching this stipulation was taken into consideration.
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.
OTHER CONDITIONS NEGOTIATED BY THE PARTIES
See Attachment.
Respondent admits that the aforementioned facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case Number(s): 07-O-13323
In the Matter of: Anthony Pagkas
<<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/ 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 3 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.
The above mentioned section “b” is modified to require that respondent complete three MCLE hours in conflicts.
Case Number(s): 07-O-13323
In the Matter of: Anthony Pagkas
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: Anthony Pagkas
Date: November 13, 2010
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Robin B. Brune
Date: November 17, 2010
Case Number(s): 07-O-13323
In the Matter of: Anthony Pagkas
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
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: Lucy Armendariz
Date: December 2, 2010
[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 2, 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 San Francisco, California, addressed as follows:
ANTHONY E. PAGKAS
LAW OFC ANTHONY E PAGKAS
75 E. SANTA CLARA ST #1210
SAN JOSE, CA 95113
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ROBIN BRUNE, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on December 2, 2010.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court