Case Number(s): 08-O-14675, 09-O-14199
In the Matter of: Ivan Pedro C. Porto, Bar # 129629, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erin McKeown Joyce, Deputy Trial Counsel
State Bar of California
1149 South Hill Street
Los Angeles, CA 90015-2299
(213) 765-1356
Bar # 149946
Counsel for Respondent: In Pro Per Respondent
Ivan Pedro C. Porto
5225 Fiore Ter Dl10
San Diego, CA 92122
Bar # 129629
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: October 19, 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 October 15, 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: 2012 and 2013. (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: Ivan Pedro Porto, State Bar No. 129629
STATE BAR COURT CASE NUMBER: 08-O-14675, 09-O-14199
PENDING PROCEEDINGS:
The disclosure date referred to on page two, paragraph A.(7), was September 9, 2010.
Case No 08-O-14675
FACTS
Respondent admits that the following facts are true and that he is culpable of a violation of Rule of Professional Conduct 3-110(A) as follows:
1. In December 2004, Ozenilda Pereira Costa ("Costa") employed Respondent to represent her in an asylum application matter before the United States Immigration Court in San Diego, California (the "Costa legal matter"). Costa paid Respondent an advanced fee of $2,500 for his legal services.
2. In March 2005, Costa moved from the San Diego area to San Francisco, California. Costa provided Respondent with her new contact information to provide to the Immigration Court. Respondent received the new contact information from Costa. However, Respondent never filed a change of address for Costa with the Immigration Court.
3. On May 24, 2005, Respondent accompanied Costa to a hearing at the Immigration Court in Costa’s legal matter. Because Costa speaks Portuguese, she was unable to understand what transpired at the hearing, despite her presence at the hearing. After the hearing, Respondent provided Costa with a summary of what occurred at the hearing, and informed Costa that the Judge scheduled an individual hearing in her case for February 13, 2006. He informed her that there was nothing else for her to do until the time of the February 13, 2006 hearing.
4. Respondent failed to inform Costa that during the May 24, 2005 hearing, the Judge set a deadline of September 21, 2005, for Costa to provide her fingerprints to the Department of Homeland Security ("DHS").
5. Because Respondent failed to inform Costa of the deadline to provide her fingerprints to DHS, Costa did not timely submit her fingerprints to DHS.
6. On October 5, 2005, the Judge in Costa’s legal matter issued an Interim Order directing Costa to provide proof that she had timely provided her fingerprints to DHS (the "Interim Order"). The Interim Order issued because Costa had not timely submitted her fingerprints to DHS.
7. Respondent received notice of the Interim Order, but failed to notify Costa of the order and failed to file any response to the Interim Order with the court in Costa’s legal matter.
8. Because Respondent failed to timely respond to the Interim Order and to ensure that Costa timely submitted her fingerprints to DHS, the court deemed Costa’s application abandoned and she was ordered removed from the United States.
9. In January 2006, Costa called Respondent to make an appointment to prepare for the February 2006 scheduled hearing in the Costa legal matter. Respondent informed Costa that her hearing had already taken place on November 30, 2005. However, Respondent failed to inform Costa that the Immigration Court deemed her case as abandoned at the November 30, 2005 hearing. He further failed to inform Costa that she was ordered removed from the United States to Brazil, and that the hearing scheduled for February 13, 2006 was vacated.
10. In the same January 2006 telephone call, Respondent explained to Costa that he had moved his office and lost two (2) boxes of his client files, which included her file, in the process of his move. Respondent told Costa that he had not informed her that her case was dismissed by the Court because he did not have any contact information on her due to the loss of her file. However, Respondent informed Costa that he would file a motion to reopen her case.
11. Respondent failed to inform Costa that his motion to reopen her matter would be based on his ineffective assistance as counsel, and that Costa would have to provide a declaration in support of the motion to reopen.
12. On or about February 27, 2006, Respondent attempted to file a Motion to Admit Late Asylum Documentation, Attorney Translation, Expand Asylum Claim, Rescind Arrest Order, and to Re-calendar Hearing (the "Motion to Admit Late Filed Asylum Documentation") with the Immigration Court. The Immigration Court rejected Respondent’s motion because the court had already closed Costa’s matter. The Immigration Court directed Respondent to file a motion to reopen the matter. Respondent received the order rejecting the Motion to Admit Late Asylum Documentation.
13. On or about June 1, 2006, Respondent filed a motion to reopen Costa’s matter with the Immigration Court. On or about June 30, 2006, the Immigration Court denied the motion to reopen Costa’s matter.
14. The motion to reopen filed in Costa’s matter was denied because Respondent failed to comply with the requirements for a motion to reopen due to ineffective assistance of counsel set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), affd. 857 F.2d 10 (1st Cir. 1988). The motion to reopen was not accompanied by his client’s declaration, and Respondent’s own declaration did not establish that he had reported his ineffective assistance of counsel to the State Bar of California. Instead, Respondent explained in his motion that "he acquired a nervous tension and irrational fear of this case which has not allowed [him] to even face it."
15. On June 30, 2006, the court denied the motion to reopen as untimely. The court further found that the untimeliness of the motion was not excused since the motion contained no "documentation to satisfy the three prongs of the Lozada test." Respondent received the order denying the motion to reopen.
16. Sometime thereafter, Respondent called Costa and told her that the motion to reopen was denied but that the court’s decision contained errors which would be corrected by filing an appeal. Costa agreed to have Respondent file the appeal.
17. On or about July 28, 2006, Respondent filed an Appeal with the Board of Immigration Appeals ("BIA"). In the appeal, Respondent still failed to provide a declaration of his client establishing when she learned of Respondent’s ineffective assistance. The appeal gave no indication that Respondent had investigated or attempted to comply with the requirements of Lozada.
18. On or about December 6, 2006, the BIA dismissed Costa’s appeal, and denied Costa’s request for a stay of removal. Respondent received the December 6, 2006 order dismissing the appeal.
19. It was not until more than one year later, in March 2008, that Respondent called Costa and told her of the Board’s decision on her appeal. Even at that point, Respondent failed to notify Costa that she had been ordered removed.
CONCLUSIONS OF LAW
By failing to provide Costa’s contact information to the Immigration Court, by failing to inform Costa of the requirement to submit her fingerprints, by failing to respond to the Interim Order, by filing the deficient Motion to Admit Late Filed Asylum Documentation, by filing the deficient motion to reopen, and by filing the deficient appeal with the BIA, Respondent intentionally, recklessly or repeatedly failed to perform legal services with competence in wilful violation of Rule of Professional Conduct 3-110(A).
Case No. 09-O-14199
FACTS
Respondent admits that the following facts are true and that he is culpable of a violation of Rule of Professional Conduct 3-110(A) as follows:
1. On June 23, 2009, Jennifer Michaels ("Michaels") employed Respondent to represent her boyfriend, Moises Lopez Rivera ("Rivera"), in a criminal matter. That day Michaels signed an attorney client agreement employing Respondent, and paid Respondent $3,000 advanced attorney fees in cash. For the payment of the $3,000 advanced fees, Respondent agreed to provide "legal services as follows: any and all pertaining to the case, all including plea deals w/government [sic] identity."
2. At the time she hired Respondent, Michaels notified Respondent of the upcoming hearing date in Rivera’s criminal case set for July 7, 2009. Respondent agreed to attend the hearing.
3. On July 7, 2009, failed to appear at the July 7, 2009 hearing.
4. Shortly thereafter, Michaels contacted Respondent about, why he failed to appear at the hearing. Respondent did not have an explanation for why he failed to appear. 5. After failing to appear on July 7, 2009, Respondent appeared at a subsequent hearing that July in Rivera’s criminal case and in an in-chambers conference, Respondent represented to the Court that he did not represent Rivera in Rivera’ criminal case.
6. The only legal work Respondent performed in Rivera’s legal matter was to meet with Rivera while he was incarcerated to discuss Rivera’s case. Respondent never became attorney of record for Rivera in Rivera’s criminal case.
CONCLUSIONS OF LAW
By failing to appear in court on Rivera’s criminal case on July 7, 2009, and failing to represent Rivera in his criminal case as he was employed to do, Respondent intentionally, recklessly or repeatedly failed to perform legal services with competence in wilful violation of Rule of Professional Conduct 3-110(A).
AUTHORITIES SUPPORTING DISCIPLINE
STANDARDS FOR ATTORNEY SANCTIONS
To determine the appropriate level of discipline, the standards provide guidance. Drociak v. State Bar (1991) 52 Cal.3d 1085; In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119. A disciplinary recommendation must be consistent with the discipline in similar proceedings. See Snyder v. State Bar (1990) 49 Cal.3d 1302. Moreover, the recommended discipline must rest upon a balanced consideration of relevant factors. In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119.
Pursuant to Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct 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. Rehabilitation of a member is a permissible object of a sanction imposed upon the member but only if the imposition of rehabilitative sanctions is consistent with the above-stated primary purposes of sanctions for professional misconduct.
Pursuant to Standard 1.5 of the Standards for Attorney Sanctions for Professional Misconduct:
Reasonable duties or conditions fairly related to the acts of professional misconduct and surrounding circumstances found or acknowledged by the member may be added to a recommendation or suspension or; pursuant to rule 9.19, California Rules of Court, to a reproval. Said duties may include, but are not limited to, any of the following:
1.5(b): a requirement that the member take and pass an examination in professional responsibility;
1.5(d): a requirement that the member undertake educational or rehabilitative work at his or her own expense regarding one or more fields of substantive law or law office management;
1.5(f): any other duty or condition consistent with the purposes of imposing a sanction for professional misconduct as set forth in standard 1.3.
Pursuant to Standard 2.10 of the Standards for Attorney Sanctions for Professional Misconduct:
Culpability of a member of a violation of any provision of the Business and Professions Code not specified in these standards or of a wilful violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the offense, or harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
The stipulated discipline in this matter of a one year stayed suspension, with a two year probation is appropriate in this matter. In the Matter of Kaplan (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 635. Respondent has acknowledged violating Rule of Professional Conduct 3-110(A) in two separate client matters. The stayed suspension agreed between the parties should adequately address Respondent’s admitted misconduct.
DISMISSALS
The State Bar agrees to dismiss Count Two and Count Four in the interests of justice.
FACTS SUPPORTING MITIGATION
Respondent has met with the State Bar and agreed to this Stipulation to fully resolve these cases. Accordingly, he is entitled to mitigation for his candor and cooperation.
Respondent has been admitted to practice for 23 years, and has no prior record of discipline.
COSTS OF DISCIPLINARY PROCEEDINGS:
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of September 9, 2010, the prosecution costs in this matter are $2,915.00. 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.
Case Number(s): 08-O-14675 and 09-O-14199
In the Matter of: Ivan Pedro C. Porto
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: Ivan Pedro C. Porto
Date: September 23, 2010
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Erin McKeown Joyce
Date: September 29, 2010
Case Number(s): 08-O-14675 and 09-O-14199
In the Matter of: Ivan Pedro C. Porto
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: October 18, 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 Los Angeles, on October 19, 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 Los Angeles, California, addressed as follows:
IVAN PEDRO C PORTO
5225 FIORE TER D110
SAN DIEGO, CA 92122
<<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:
Erin M. Joyce, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 19, 2010.
Signed by:
Cristina Potter
Case Administrator
State Bar Court