Case Number(s): 07-O-14651, 08-H-13519
In the Matter of: John Earl Mortimer, Bar # 130526, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Bita Shasty, Bar # 225177
Counsel for Respondent: In Pro Per, Bar #
Submitted to: In Pro Per.
Filed: December 2, 2009.
<<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, 1987.
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):
<<not>> checked. Costs are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: Two 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.
IN THE MATTER OF: John Earl Mortimer, State Bar No. 130526
STATE BAR COURT CASE NUMBER: 07-O-14651 and 08-H-13519
FACTS AND CONCLUSIONS OF LAW.
Respondent John Earl Mortimer ("Respondent") admits that the following facts are true and that he is culpable of violations of the specified statues and/or Rules of Professional Conduct.
FACTS
1. On July 7, 2003, Mary Ann Greaux ("Greaux") was injured while working at Wal-Mart. On September 26, 2003, Greaux employed attorney John Mendoza ("Mendoza") to represent her in a workers’ compensation proceeding against Wal-Mart.
2. On February 19, 2004, Greaux called Respondent’s office and spoke with Respondent. After discussing her case with Respondent, Greaux terminated Mendoza and employed Respondent to represent her in her workers’ compensation proceeding against Wal-Mart.
3. On February 19, 2004, Respondent faxed a memo, substitution of attorney, and a fee disclosure statement Greaux. Greaux received the documents, signed the substitution of attorney and fee disclosure statements, and mailed both to Respondent. Respondent received both documents from Greaux.
4. On February 23, 2005, Greaux, Respondent, and the attorney for Wal-Mart conducted Greaux’s deposition. At the conclusion of the deposition, the parties agreed that the deposition transcript would be mailed to Greaux to review, correct as necessary, and sign under penalty of perjury.
5. On March 1, 2005, Greaux received the transcript of her deposition from the court reporter. After reviewing her deposition, Greaux called Respondent to discuss errors in the transcript. Respondent told Greaux to make the corrections and mail the transcript to him, which she did. Greaux asked Respondent to call her when he received the transcript to confirm receipt.
6. In March of 2005, Greaux called Respondent’s office when Respondent did not call Greaux to confirm receipt of the transcript. Greaux was unable to speak with Respondent and left a message for Respondent on his telephone voice message system identifying herself, providing her telephone number, and requesting that Respondent call her to confirm receipt of the transcript and provide a status report. Respondent received the message.
7. Between March of 2005 and September of 2005, Greaux called Respondent’s office approximately two or three times. Greaux was unable to speak with Respondent and left messages for Respondent on his telephone voice message system identifying herself, providing her telephone number, and requesting that Respondent call her to provide a status report. Greaux also sent two or three e-mail to Respondent that identified herself and requested that Respondent provide her with a status report. Respondent received the messages and e-mail.
8. Respondent did not return Greaux’s messages, respond to Greaux’s e-mail, or otherwise communicate with Greaux.
9. On October 25, 2005, Greaux hired attorney Steffen Lieber ("Lieber") to represent her in the workers’ compensation proceeding against Wal-Mart.
10. On November 16, 2005 and January 31, 2006, Lieber prepared and mailed letters to Respondent at his then official State Bar membership address, i.e., P.O. Box 391259, Pasadena, California 91109, stating that Greaux had terminated Respondent, Greaux had employed Lieber to represented Greaux in the workers’ compensation proceeding against Wal-Mart, and requesting that Respondent forward Greaux’s file to Lieber. The November 16, 2005 letter enclosed a copy of the dismissal of Respondent and substitution of attorney signed by Greaux. Respondent received the letters.
11. Respondent did not forward Greaux’s file to Greaux or Lieber, or otherwise communicate with Greaux or Lieber.
12. Between September 19, 2006 and August 28, 2009, Respondent’s official State Bar membership records address had been P.O. Box 391259, Anza, California 92539 (the "Anza address").
13. On October 12, 2007, the State Bar opened an investigation, Case No. 07-O-14651, pursuant to a complaint filed by Greaux (the "Greaux matter").
14. On April 22, 2008, a State Bar Investigator prepared a letter to Respondent regarding the Greaux matter. The letter requested that Respondent provide a written response to the allegations set forth in the Greaux matter. The letter was placed in a sealed envelope correctly addressed to the Respondent at the Anza address. The letter was properly mailed by first class mail, postage prepaid, by depositing for collection by the U.S. Postal Service in the ordinary course of business.
15. On April 24, 2008, the letter was returned to the State Bar with the notation that the U.S. Postal Service was unable to deliver the letter because the post office box was closed.
16. On July 15, 2007, the State Bar Court filed and served on Respondent at the Anza address its Decision in In the Matter of John Earl Mortimer, Case No. 06-O-11452 ("In the Matter of Mortimer"). The State Bar Court imposed a Public Reproval with, inter alia, the requirement that Respondent attend and complete State Bar Ethics School on or before July 21, 2008.
17. On September 10, 2007, a Probation Deputy from the State Bar’s Office of Probation prepared a letter to Respondent regarding the Decision in In the Matter of Mortimer. The letter attached a copy of the Decision and provided Respondent with directions on how to comply with the terms and conditions of the Public Reproval. The letter was placed in a sealed envelope correctly addressed to the Respondent at the Anza address. The letter was properly mailed by first class mail, postage prepaid, by depositing for collection by the U.S. Postal Service in the ordinary course of business.
18. On October 5, 2007, the letter was returned to the State Bar with the notation that the U.S. Postal Service was unable to deliver the letter because the post office box was closed.
19. Respondent has not attended and completed State Bar Ethics School as required by the Decision in In the Matter of Mortimer.
20. By failing to maintain a current address with the State Bar, Respondent intentionally or recklessly made himself unavailable for actual service of disciplinary documents.
CONCLUSIONS OF LAW (COUNT ONE)
21. By failing to respond to the telephone messages left by Greaux and e-mail requesting a status report left by Greaux between in or about March of 2005 and in or about September of 2005, Respondent failed to respond promptly to reasonable status inquiries of a client in willful violation of Business and Professions Code, section 6068(m).
CONCLUSIONS OF LAW (COUNT TWO)
22. By failing to forward Greaux’s file to Greaux or Lieber upon receipt of letters notifying him that he had been terminated and Greaux had employed Lieber to represent Greaux, Respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property, in willful violation of Rules of Professional Conduct, rule 3-700(D)(1).
CONCLUSIONS OF LAW (COUNT THREE)
23. By failing to provide a current address to the State Bar, Respondent willfully violated Business and Professions Code, section 6068(j), by failing to comply with the requirements of section 6002.1.
CONCLUSIONS OF LAW (COUNT FOUR)
24. By failing to attend and complete State Bar Ethics School as required by the Decision in In the Matter of Mortimer, Respondent has failed to comply with all conditions attached to any disciplinary probation in willful violation of Rules of Professional Conduct, rule 1-110.
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed on May 22, 2009, in case nos. 07-0-14651 and 08-H-13519 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 a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was October 27, 2009.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 27, 2009, the approximate costs in this matter is $5,290. 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.
ADDITIONAL MITIGATING CIRCUMSTANCES
Cooperation and Remorse
Respondent has been candid and readily admitted to all four counts in the Notice of Disciplinary Charges. Respondent has been in contact with the State Bar and as explained in more detail below, been fully cooperative during these proceedings. On August 18, 2009, the State Bar, as part of its due diligence efforts to locate Respondent, wrote a letter to an address not previously known to the State Bar. This address was a valid mailing address for Respondent. On August 20, 2009, Respondent promptly contacted the State Bar, advising that this was the first time he had received any communication from the State Bar. Respondent stated that he had changed his membership records address online in mid-July of 2006. However, he contends that he did not realize the change of address he made online did not properly take effect. Respondent would have communicated with the State Bar had he been aware that proceedings were pending against him. As soon as he realized his mistake, he took corrective measures to change his address with the California State Bar Membership Department.
Respondent recognizes his mistakes and in recognition of that has stipulated to all four counts of misconduct.
Good Character
Respondent presented the State Bar with three letters from references in the general community attesting to his good character. These letters are from people who are aware of the full extent of Respondent’s misconduct and who have worked with Respondent in a professional capacity. These letters attested to Respondent’s highly ethical character, honesty and trustworthiness. He is described as having an excellent work ethic and an outstanding character.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.3, Title IV, Standards for Attorney Sanctions for Professional Misconduct, provides that the primary purposes of the disciplinary system 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."
Recently, the Supreme Court emphasized the importance of the standards and held that great weight should be given to the application of the standards in determining the appropriate level of discipline. The Court indicated that unless it has "grave doubts as to the propriety of the recommended discipline," it will uphold the application of the standards. In re Silverton (2005) 36 Cal. 4th 81, 91-92.
Standard 2.4(b) provides that "culpability of a member of wilfully failing 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. Respondent failed to respond to Greaux’s messages including phone calls and email requesting a status report on her case.
Standard 2.6(a) provides that "Respondent’s violations of Business and Professions Code, section 6068 shall result in suspension or disbarment "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 forth in standard 1.3." Respondent failed to update his membership address as required with the State Bar Membership Records.
Standard 2.9 provides that "culpability of a member of a wilful violation of rule 1-110, Rules of Professional Conduct, shall result in suspension." Respondent failed to comply with the conditions attached to his disciplinary probation as required by the Decision in In the Matter Mortimer.
Standard 2.10 provides that a violation of any provision of the Rules of Professional Conduct "not specified in these standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3." Respondent failed to release Greaux’s file upon termination of employment.
Standard 1.7(a) addresses the effects of prior discipline as follows: "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(f), the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding .... " As stated above, Respondent has one prior imposition of discipline where he received a public reproval.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-14651, 08-H-13519
In the Matter of: John Earl Mortimer
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: John Earl Mortimer
Date: November 9, 2009
Respondent’s Counsel: N/A
Date:
Deputy Trial Counsel: Bita Shasty
Date: November 10, 2009
Case Number(s): 07-O-14651, 08-H-13519
In the Matter of: John Earl Mortimer
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: December 2, 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 December 2, 2009, 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:
JOHN E. MORTIMER
44489 TOWN CTR WAY #D-466
PALM DESSERT, CA 92260
<<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:
Bita Shasty, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 2, 2009.
Signed by:
Cristina Potter
Case Administrator
State Bar Court