Los Angeles
Case Number(s): 08-O-10426, 08-O-13243, 09-O-10190
In the Matter of: Mark S. Roberts, Bar # 92880, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Hugh G. Radigan, Deputy Trial Counsel, 1149 South Hill Street, Los Angeles, California 90015, 213-765-1206, Bar # 94251
Counsel for Respondent: In Pro Per Respondent, Mark S. Roberts, P.O. Box 9769, Newport Beach, California 92658, 949-566-5916, Bar # 92880
Submitted to: Settlement Judge - State Bar Court Clerk’s Office Los Angeles.
Filed: April 4, 2011.
<<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 May 30, 1980.
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 16 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: 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.) 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.
Respondent was and continues to make himself available to serve in a pro tem capacity in various local acting as a hearing officer in a variety of context including settlement.
Attachment language (if any):.
Case Number(s): 08-O-10426, 08-O-13243, 09-O-10190
In the Matter of: Mark S. Roberts
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: Robin G. Hietala
Principal Amount: $7,500.00
Interest Accrues From: September 4, 2007
2. Payee: Helen Lettice
Principal Amount: $8,500.00
Interest Accrues From: August 10, 2007
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.
<<not>>
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.
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.
Case No. 08-O-10426 (Complainant: Hietala)
FACTS:
1. On August 24, 2007, attorney Patricia Mireles wrote a letter to Robin G. Hietala ("Hietala")and Hietala’s brother, Rex Monson, Jr., ("Rex"), on behalf of their half-brother, Wayland Brad Monson ("Brad"). In the August 24, 2007 letter, Mireles demanded, pursuant to Probate Code section 16061.5,copies of trust documents for the Rex B. Monson, St. Trust.
2. On September 4, 2007, Hietala, along with her brother Rex, hired Respondent to assist them in the administration of their father’s trust and to respond to Mireles’s August 24, 2007 letter regarding the trust documents (the "trust matter"). Hietala discussed the August 24, 2007 letter with Respondent and provided Respondent with a copy of the letter.
3. On September 4, 2007, Hietala paid Respondent $7,500 in advanced legal fees for his legal services.
4. After retaining Respondent to represent her, Hietala attempted on multiple occasions to meet with Respondent to discuss the trust matter.
5. On October 10, 2007 and on or about November 14, 2007, Hietala scheduled meetings with Respondent to discuss the trust matter. Respondent cancelled both meetings.
6. From November 29, 2007 through on or about December 14, 2007, Hietala telephoned Respondent six times in an attempt to discuss the trust matter with him. Each time, Hietala left a message for Respondent to her call her back. Respondent did not return any of Hietala telephone calls.
7. Respondent failed to respond to the August 24, 2007 letter. As a result, on or about December 5, 2007, Brad filed a Petition to Compel Trustee to Provide Copy of Trust Instrument against Hietala and Rex, and in or about December 2009, Hietala and Rex were each served with a copy of the petition and summons.
8. In December 2007, Hietala retained new counsel to represent her in the trust matter.
9. On December 20, 2007, Hietala retained attorney Valerie K. deMartino ("deMartino") to represent her in the trust matter.
10. On December 20, 2007, deMartino sent a letter to Respondent by telefax informing him that she had been retained by Hietala. In the letter, deMartino requested that Respondent have Hietala’s file ready for pick up the next day because the documents in the file were needed to respond to the petition.
11. On December 28, 2007, Respondent contacted deMartino by telefax. Respondent stated that he had only received the December 20, 2007 telefax that day because of problems with his fax machine. Respondent stated that Hietala’s file was ready for pick up that day; that an accounting was underway; and that after it was completed, it would be forwarded with a check for the balance of fees.
12. On December 28, 2007, deMartino’s office confirmed receipt of Respondent’s fax and confirmed that Hietala would pick up the file from Respondent on Monday, December 31, 2007.
13. On December 31, 2007, Respondent sent a letter to deMartino and Hietala regarding the trust matter. In the December 31, 2007 letter Respondent told them that Hietala’ s file was not ready for pickup, and he would overnight the file on January 2, 2008.
14. On December 31, 2007, deMartino emailed Respondent to remind him to overnight the trust documents. In the email, deMartino noted that they had to respond to the petition, and the hearing in the trust matter was set for January 16, 2008.
15. As of January 10, 2008, Respondent still had not turned over Hietala’s file. Therefore, on January 10, 2008, deMartino sent Respondent a letter regarding his failure to provide the documents. Once again, deMartino reminded Respondent that there was a hearing coming up in the trust matter and asked Respondent when they would receive the file.
16. On January 24, 2008, eight days after the scheduled hearing in the trust matter, Respondent sent Hietala’s client file to deMartino.
17. On February 19, 2008, deMartino sent a letter to Respondent requesting an itemized statement for the work he performed for Hietala and requested the remaining balance of Hietala’s retainer immediately. Respondent received the letter but failed to provide an accounting and a refund.
18. Respondent did not provide any services of value to Hietala and Rex. Respondent did not earn the $7,500 fee that Hietala paid in advance.
19. To date, Respondent has not refunded any portion of the unearned fees to Hietala.
CONCLUSIONS OF LAW:
20. By failing to meet with Hietala and by failing to return Hietala’s telephone calls seeking status updates on the trust matter, Respondent failed to respond promptly to reasonable status inquiries of a client in willful violation of Business and Professions Code section 6068(m).
21. By failing to respond to Brad’s letter of August 24, 2007 as discussed at the September 4,2007 meeting and by failing to provide any services of value to Hietala and Rex, Respondent intentionally, willfully and recklessly failed to perform with competence in violation of Rules of Professional Conduct, rule 3-110(A).
22. By not promptly returning the client file to Hietala despite requests from Hietala and requests from deMartino on Hietala’s behalf, Respondent failed to release promptly, upon termination of employment, to his client, at the request of the client, all client papers and property in violation of Rules of Professional Conduct, rule 3-700(D)(1).
23. By failing to render an appropriate account to Hietala regarding the $7,500 advanced fees she had paid him, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’ s possession in willful violation of Rules of Professional Conduct, rule 4-100(B)(3).
24. By failing to refund upon termination any portion of the $7,500 in advanced fees received from Hietala, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 08-O-13243 (Complainant: Lettice)
FACTS:
25. On July 26, 2007, Helen Lettice ("Lettice") employed Respondent to assist her in the administration of her mother’s trust. On July 26, 2007, Lettice paid Respondent $8,500 in advanced fees for his legal services.
26. After hiring Respondent for the administration of her mother’s trust, Lettice learned that she only needed to obtain her mother’s death certificate to transfer her mother’s assets into her name and Respondent’s services were unnecessary.
27. On August 10, 2007, Lettice spoke to Respondent by telephone and requested a refund of the advanced fees. In response, Respondent told Lettice he had no money.
28. On September 8, 2007, Lettice emailed Respondent requesting a refund from Respondent. On or about September 10, 2007, Respondent responded by email asking Lettice to rethink terminating his services.
29. On October 3, 2007, Lettice met with Respondent at his office and requested an accounting and refund. Respondent told Lettice that his computer was down and could not comply with her request. During the October 3, 2007 meeting with Respondent, Lettice agreed to accept $4,250 or 50% of the fees she had paid Respondent. However, Respondent did not refund the $4,250 or any sum to Lettice.
30. On May 8, 2008, after Lettice was unable to resolve her issues with Respondent, she hired attorney Jay Stoegbauer ("Stoegbauer") to represent her.
31. On May 9, 2008, Stoegbauer informed Respondent that he had been retained by Lettice to assist in retrieving her file and the $8,500 in unearned fees from Respondent.
32. On May 19, 2008, Respondent responded to Stoegbauer’s letter and represented that he would provide all "appropriate documentation,,’ an accounting and a check for unearned fees to Stoegbauer no later than May 27, 2008. Respondent failed to provide the documentation, the accounting and the refund by May 27, 2008 or at any time.
33. Respondent did not provide any services of value to Lettice. Respondent did not earn any of the $8,500 in advanced fees paid by Lettice.
34. To date, Respondent has not refunded any portion of the unearned fees to Lettice.
CONCLUSIONS OF LAW:
35. By failing to render an appropriate account to Lettice regarding the $8,500 advanced fees she had paid him, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession willful violation of Rules of Professional Conduct, rule 4100(B)(3).
36. By failing to refund upon termination of his employment any portion of $8,500 in advanced fees Respondent received from Lettice, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct,rule 3-700(D)(2).
Case No. 09-O-10190 (Complainant: Daily)
FACTS:
37. In February 2005, Phyllis Daily ("Daily") hired Respondent to assist her in the administration of Daily’s trusts after the recent death of Daily’s husband, Robert. Respondent also agreed to prepare a charitable trust for Daily. In February 2005, Daily paid Respondent $10,000 for his legal services.
38. Respondent continued to provide legal services to Daily through, at least, June 2006.
39. On July 20, 2006, Respondent sent Daily an email requesting a "loan" from Daily in the amount of $40,000. As collateral for loan, Respondent offered his interest in funds from the current sale of a residence he co-owned with a friend. Specifically, in the July 20, 2006 email, Respondent proposed paying interest only at 10% from "now until the funds are distributed from the sale of Greenhaven ....When funds are distributed, I’ll pay $20,000." Respondent also offered the cash surrendered value of his life insurance policy.
40. On July 23, 2006, Daily loaned $25,000 to Respondent.
41. Prior to obtaining a loan from Daily, Respondent failed to fully disclose the terms of the loan in writing to Daily. Respondent did not provide any written security for the loan despite his oral promise to secure the loan with real property and an insurance policy. Respondent did not sign a promissory note on Daily’s behalf.
42. Prior to entering into the loan with Daily, Respondent did not advise Daily in writing that she may seek the advice of independent counsel of her choosing.
43. Prior to obtaining a loan from Daily, Daily did not consent in writing to the terms of the transaction.
44. Respondent failed to repay the $25,000 loan to Daily despite multiple requests to do so.
45. In March 2007, Daily employed attorney Jorge Gonzales to obtain repayment of the $25,000.
46. To date, Respondent has only repaid $1,062 of the $25,000 loan.
CONCLUSIONS OF LAW:
47. By borrowing $25,000 from Daily without assuring that the terms of the transaction were fair, were fully disclosed to Daily and were transmitted in writing Daily and by borrowing $25,000 from Daily without her written consent, Respondent knowingly entered into a business transaction with a client without assuring that the terms of the transaction were fair, were fully disclosed to the client, and were transmitted in writing to the client in a manner which should have been understood to the client in willful violation of Rules of Professional Conduct, rule 3-300(A).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was March 21,2011.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.6(a) provides that, "The appropriate sanction for an act of professional misconduct shall be that set forth in the following standards for the particular act of misconduct found or acknowledged. If 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 sanction imposed shall be the more or most severe of the different applicable sanctions."
Standard 1.6(b)(i) provides for a greater degree of discipline than the appropriate sanction where aggravating circumstances are found to surround the complained of misconduct. The fact that Respondent is alleged to have entered into a personal relationship with his client Daily in order to facilitate the subject personal loan, constitutes significant aggravation. Additionally, in each of these three matters the clients were compelled to retain replacement/successor counsel to achieve either their original objectives or responsiveness from Respondent.
Standard 2.2(b) provides for at least a three month actual suspension irrespective of mitigating circumstances for a violation of rule 4-100.
Standard 2.4(a) provides for disbarment where culpability is found for a pattern of willfully failing to perform services demonstrating abandonment of the causes in which he was retained.
Standard 2.6 provides for disbarment or suspension depending upon the gravity of the offense or harm where culpability for violation of section 6068(m) is found.
Standard 2.8 provides for suspension where culpability is found for a willful violation of rule 3-300, unless the harm to the client is minimal, which in the Daily matter is not the case.
The Standards should be followed whenever possible. In re Silverton (2005) 36 Cal. 4th 81, 92. In imposing discipline, the court should consider the appropriate discipline in light of the standards, but in so doing the court may consider any ground that may form a basis for an exception to application of the standards. In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980. Inasmuch as the standards are not mandatory, they may be deviated from when there is a compelling, well-defined reason to do so. Bates v. State Bar (1990) 51 Cal. 3rd 1056, 1061.
In consideration of the facts and circumstances surrounding Respondent’s misconduct, and the aggravating and mitigating circumstances present, the parties submit that the intent and goals of the Standards are met in this matter with the imposition of a six month actual suspension, two year stayed suspension and two year probation.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No.: 08-O-13243, Count: Eight, Alleged Violation: Rules of Professional Conduct, rule 2-100(A)
Case No.: 09-O-10190, Count: Ten, Alleged Violation: Business and Professions Code section 6106
Case No.: 09-O-10190, Count: Eleven, Alleged Violation: Business and Professions Code section 6068(i)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial
Counsel has informed respondent that as of March 21,2011, the prosecution costs
in this matter are approximately $6,283.00*. 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. [*Respondent requests an itemized breakdown of costs].
Case Number(s): 08-O-10426, 08-O-13243 and 09-O-10190
In the Matter of: Mark S. Roberts
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: Mark S. Roberts
Date: March 24, 2011
Respondent’s Counsel Signature:
Date:
Deputy Trial Counsel: Hugh G. Radigan
Date: March 24, 2011
Case Number(s): 08-O-10426, 08-O-1323 and 09-O-10190
In the Matter of: Mark S. Roberts
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 5.58 (E) & (F), 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: Donald F. Miles
Date: March 28, 2011
[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 April 4, 2011, 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:
Mark Scott Roberts
Roberts Law Firm
PO Box 9769
Newport Beach, CA 92658
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Hugh Gerard Radigan, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on April 4 2011.
Signed by:
Cristina Potter
Case Administrator
State Bar Court