Case Number(s): 08-O-10983,
In the Matter of: Evan Llewellyn Smith, Bar # 101369, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Charles A. Murray
Deputy Trial Counsel
1149 South Hill Street
Los Angeles, California 90015-2299
Tel: (213) 765-1486
Bar # 146069
Counsel for Respondent: Arthur Margolis, Esq.
Margolis & Margolis LLP
2000 Riverside Drive
Los Angeles CA 90039
Tel: (323)953-8996
Bar,# 57703
Submitted to: Program Judge, State Bar Court Clerk’s Office Los Angeles.
Filed: March 15, 2010.
<<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 1, 1981.
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. However, except as otherwise provided in rule 804.5(c) of the Rules of Procedure, if Respondent is not accepted into the Alternative Discipline Program, this stipulation will be rejected and will not be binding on the Respondent or the State Bar.
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, except for Probation Revocation proceedings. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 9 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. 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.
7. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7 and will pay timely any disciplinary costs imposed in this proceeding.
Additional aggravating circumstances: ** .
Additional mitigating circumstances:
During the time immediately before and during the misconduct, Respondent suffered from a series of serious medical conditions that significantly impacted his personal life and his ability to work, eventually leading to severe financial stress and bankruptcy.
(Effective January 1, 2011.)
Alternative Discipline Program
IN THE MATTER OF: Evan Llewellyn Smith, State Bar No. #101369
STATE BAR COURT CASE NUMBER: 08-O-10983
PENDING PROCEEDINGS
The disclosure date referred to on page one, paragraph A.(6), is November 15, 2009.
STIPULATION AS TO FACTS AND CONCLUSIONS OF LAW
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, or that he has otherwise committed acts of misconduct warranting discipline, as follows:
Facts for Case No. 08-0-10983
1. On July 15, 2003, Respondent entered into a Stipulation as to Facts, Conclusions of
Law and Disposition ("Stipulation") with the State Bar case nos. 02-O-12713 & 02-O-12751.
2. On July 23, 2003, the Hearing Department of the State Bar Court filed the
Stipulation and Order making disciplinary’ recommendations to the California Supreme Court, including a period of stayed suspension and probation on conditions including, among others, those set forth in detail below. On the same date, July 23, 2003, the Stipulation re: Facts, Conclusions of Law and Disposition and Order Approving, filed July 23, 2003, was properly served on the Respondent.
3. On November 25, 2003, the California Supreme Court filed an Order ("Order") in case no. S 118758 (State Bar Court case nos. 02-0-1271’3 and 02-0-12751) that Respondent be suspended from the practice of law for one (1) year and until he provides proof satisfactory to the State Bar Court of his rehabilitation, fitness to practice and present learning and ability in the general law pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct, that execution of suspension be stayed, and that he be placed on probation for three (3) years subj ect to the conditions of probation recommended by the Hearing Department.
4. The November 25, 2003 Order became effective on December 25, 2003, thirty days
after it was filed. The Order was properly served by the Clerk of the Supreme Court.
5. Pursuant to the November 25, 2003 California Supreme Court Order and the State Bar Court Hearing Department’s July 23, 2003 Stipulation and Order Approving the Stipulation, the
RESPONDENT: (PROGRAM)
Page Attachment Page 4
(Printed: 12/11/09)
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Respondent was ordered to comply with the following relevant conditions of probation, among other conditions:
a. To comply with the provisions of the State Bar Act and Rules of Professional Conduct
of the State Bar of California during the period of probation; Submit written quarterly reports to the Probation Unit on each January 10, April 10, July 10, and October 10 of the period of probation. Under penalty of perjury, Respondent shall state whether Respondent has complied with the State Bar Act, the
Rules of Professional Conduct, and all conditions of probation during the preceding calendar quarter. If the first report would cover less than thirty (30) days, that report shall be submitted on the next quarter date, and cover the extended period; and, Complete six (6) hours of participatory continuing legal education courses in attorney/client relations above those required for his license and provide proof of completion within one (1) year of the effective date of the order approving the stipulation to the Probation Unit.
6. Respondent had actual knowledge of the Order and conditions of probation at all relevant times herein from the effective date of his probation and at all times during the pendency of his probation in case no. S128018.
7. On January 6, 2004, a Probation Deputy of the Office of Probation wrote a letter to the Respondent in which he reminded the Respondent of the terms and conditions of his suspension and probation imposed pursuant to the November 25, 2003 Supreme Court Order. The Probation Deputy specifically advised Respondent of his obligation to file quarterly reports with the first due date beginning April 10, 2004. The Probation Deputy specifically reminded Respondent of his obligation to complete six participatory hours of MCLE by December 25, 2004. Enclosed with the January 6, 2004 letter were, among other things, copies of the Supreme Court Order, filed November 25, 2003, the relevant portion of the Stipulation setting forth the conditions of Respondent’s Probation, and a quarterly report form with instructions, that specifically included the instruction that the quarterly reports submitted "... should also contain an original signature."
8. The Probation Deputy’s letter to Respondent and the enclosures thereto were mailed in a sealed envelope addressed to the Respondent at his then official State Bar membership records address [PMB 166, 324 South Diamond Bar Boulevard, Diamond Bar, California 91765] via the United States Postal Service, first class mail, postage prepaid on that same date, January 6, 2004. The letter was not returned as undeliverable by the Post Office or for any other reason.
Respondent received the letter.
RESPONDENT:
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9. On June 25, 2004, the Probation Deputy sent a follow-up letter to the Respondent to remind him of his obligation to file the required quarterly reports, noting that he had not filed his first (April 10, 2004) quarterly report, and enclosing a copy of his January 6, 2004 letter. The June 25, 2004 letter and the enclosure thereto, was again mailed to Respondent’s then official membership records address via the United States Postal Service, first class mail, postage prepaid. The letter was not returned as undeliverable by the Post Office or for any other reason. Respondent received the letter.
10. On September 21, 2004 and again, on February 3, 2005, the Probation Deputy
,contacted the Respondent by telephone and actually spoke to him to remind Respondent of his obligation to file his quarterly reports. Respondent filed the quarterly reports due on April 10, 2004, July 10, 2004, October 10, 2004 and January 10, 2005 on February 8, 2005.
11. The following conditions were not met in a timely. manner by Respondent:
Quarterly by Report due April 10, 2004 - filed February 8, 2005.
Quarterly by Report due July 10, 2004 - filed February 8, 2005.
Quarterly by Report due October 10, 2004 o filed February 8, 2005.
Quarterly by Report due January 10, 2005- filed February 8, 2005.
Attendance and proof of attendance at six (6) hours of MCLE due December 25, 2004 filed February 8, 2005.
12. On August 23, 2005, the Probation Deputy contacted Respondent by telephone and actually spoke to him to inform him that the quarterly report, due on July 10, 2005, had not been filed. Respondent advised the Deputy that he would do so. Respondent did not file the report in response to this call (see 14a. below, report faxed on February 15, 2006, but original not delivered).
13. On December 13, 2005, the Probation Deputy sent a follow up letter to the
Respondent reminding him of his obligation to file the July 10, 2005 quarterly report, and now, also the October 10, 2005 quarterly report, which was late. The Probation Deputy also reminded the Respondent that his next report was due between January 1, 2006 and January 10, 2006. The letter was properly mailed to Respondent’s then official membership records address via the United States Postal Service, first class mail postage prepaid. The letter was not returned as undeliverable by the Post Office or for any other reason. Respondent received the letter. Respondent filed the July 10, 2005, October 10, 2005 and January 10, 2006 reports on February 15, 2006, by facsimile only. On January 6, 2004 the Probation Deputy had, among other things, provided Respondent written instructions in approximately size 18 font that "The report should also contain an original signature." Respondent knew or was grossly negligent in not knowing that he was required to file reports bearing an original signature, not fax copies.
RESPONDENT: "(PROGRAM)
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14. Thus, the following conditions(s) were not met in a timely manner by Respondent:
a. Quarterly report [original] due July 10, 2005 - filed February 15, 2006 by fax only.
b. Quarterly report [original] due October 10, 2005 - filed February 15, 2006 by fax only.
c. Quarterly report [original] due January 10, 2006 - filed February 15, 2006 by fax only.
d. Attendance and proof of attendance at six (6) hours of MCLE due December 25, 2004 -filed February 8, 2005.
15. On May 17, 2006, the Probation Deputy spoke to Respondent by telephone requesting the missingoriginal/hard copies of the previously late faxed reports and a now late May 10, 2006 report.
16. On July 18, 2007, the Probation Deputy contacted Respondent by telephone and
spoke with him. The deputy advised Respondent that he had received only the fax copies of the quarterly reports due July 10, 2005, October 10, 2005 and January 10, 2006, and that they had not received any form of the remainder of the quarterly reports.
17. On July 18, 2007, the Probation Deputy sent a follow up letter to the Respondent. The letter was sent to Respondent at what was at that time the former membership records address for Respondent. Respondent had properly advised Membership Records of an address change, but had not inform the Office of Probation [also a condition of his probation]. The letter was properly mailed via U.S. Postal Service, first class mail, postage pre-paid. It was not returned as undeliverable or for any other reason. Respondent received the letter. The letter confirmed the conversation of the same date with the Respondent that the Office of Probation had not received his original quarterly reports for July 10, 2005, October 10, 2005 and January 10, 2006 nor any quarterly reports (fax or original) due by April 10, 2006, July 10, 2006, October 10, 2006, and the final report December 25, 2006.
18. The following condition(s) have not been met by Respondent to date: a) The original (hard) reports due July 10, 2005, October 10, 2005 and January 10, 2006. b) Quarterly reports due April 10, 2006, July 10, 2006, October 10, 2006 and the final report due December 25, 2006.
Conclusions of Law for Case No. 08-0-10983
19. By his filing of late reports, by his filing of late reports by facsimile only, by his failure to file the balance of his quarterly reports as hereinabove described,.and by failing to timely notify the Office of Probation of his change of address, Respondent violated the conditions of his probation in case no. S 118758 in willful violation of Section 6068(k) of the California Business and Professions Code.
RESPONDENT: 7 (PROGRAM)
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20. By his failure to comply timely or at all with conditions specified above in connection with his probation in case no. S 118758, Respondent disobeyed or violated an order of the court requiring him to do an act connected with or in the course of his profession in willful violation of Section 6103 of the California Business and Professions Code.
AGGRAVATING CIRCUMSTANCES.
PRIOR DISCIPLINE:
Case No. 98-O-00580: Effective October 21, 1999.
Violation: RPC 4-100(a) (trust account violation (P-10 NSF Reportable Action - bounced check).
Discipline: Private reproval with conditions for one (1) year. Case No. (S099259) 00-H- 14843: Effective November 2, 2001. Violation: (Rules of Professional Conduct, rule 1-110) (failure to comply with conditions of reproval). Discipline: Suspension for thirty (30) days, stayed; one (1) year probation with conditions. Case No. (S118758) 02-0-12713; 02-0-12751: Effective December 25, 2003. Violation: B&P Code Section 6068(k) (failure to comply with conditions of probation; B&P Code Section 6068(i) (failure to cooperate with a State Bar investigation); Rules of Professional Conduct, rule 3-110(A) (failure to perform competently).
Discipline: Suspension for one (1) year & until rehabilitation, stayed; Three (3) years probation with conditions, MPRE within one (1) year, and costs. The current matters constitute the fourth imposition of discipline in ten years for this Respondent.
Case Number(s): 08-O-10983
In the Matter of: Evan Llewellyn Smith
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: Evan L. Smith
Date: 12/14/2009
Respondent’s Counsel: Arthur L. Margolis
Date: 12/16/09
Deputy Trial Counsel: Charles A. Murray
Date: 12/16/09
Case Number(s): 08-O-10983
In the Matter of: Evan Llewellyn Smith
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 conclusions of law is APPROVED.
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; or 3) Respondent is not accepted for participation in the Program or does not sign the Program Contract.the file date. (See rule 5.58(E) & (F) and 5.382(D), Rules of Procedure.)
Signed by:
Judge of the State Bar Court: Richard Honn
Date: 03-15-10
(Effective January 1, 2011)
Program Order
[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 March 24, 2010, I deposited a true copy of the following document(s):
STIPULATION RE FACTS AND CONCLUSIONS OF LAW
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:
Arthur Lewis Margolis
Margolis & Margolis LLP
2000 Riverside DR
Los Angeles, CA 90039
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 24, 2010.
Signed by:
Cristina Potter
Case Administrator
State Bar Court