Case Number(s): 08-O-14761, 10-O-06139
In the Matter of: Kevin Michael Harr, Bar # 149572, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Brandon K. Tady, Deputy Trial Counsel
1149 South Hill Street
Los Angeles, CA 90015-2299
(213) 765-1385
Bar # 83045
Counsel for Respondent: Susan L. Margolis,
Margolis & Margolis LLP
2000 Riverside Drive
Los Angeles, CA 90039
(323) 953-8996
Bar # 104629
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: October 14, 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 4, 1990.
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 13 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: prior to February 1 in three billing cycles following the effective date of the discipline. (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.
Additional Mitigating Circumstances:
During the applicable time period, Respondent experienced health problems that contributed to his inability to respond to or otherwise cooperate with the State Bar’s investigation. Respondent is no longer experiencing those health problems.
Case Number(s): 08-O-14761, 10-O-06139
In the Matter of: Kevin Michael Harr
a. Restitution
<<not>> 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:
Principal Amount:
Interest Accrues From:
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> 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.
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.
IN THE MATTER OF: Kevin Michael Harr, State Bar No. 149572
STATE BAR COURT CASE NUMBER: 08-O-14761, 10-O-06139
FACTS AND CONCLUSIONS OF LAW:
Respondent Kevin Michael Harr ("Respondent") admits that the following facts are true and that he is culpable of violation of the specified statutes and/or Rules of Professional Conduct:
Case No. 08-0-14761
1. From in or about November 2003 through the present, Respondent has continuously maintained a client trust account at JP Morgan Chase Bank (formerly Washington Mutual Bank, FA), Account No. ***-***715-8 ("CTA").
2. On or about September 22, 2008, Respondent issued check no. 234, drawn on his CTA in the amount of $320 and payable to the Los Angeles County Superior Court. The check was for filing fees to initiate a divorce proceeding on behalf of his client, Ramon Cartznes. Cartznes had previously paid Respondent a flat fee of $1,000 to handle his divorce and had agreed to be responsible for paying all filing fees and other expenses.
3. Prior to Respondent issuing CTA check no. 234, the balance in his CTA was approximately three (3) cents. Mr. Cartznes had promised Respondent that he would deposit $320 cash to cover the filing fee into Respondent’s CTA no later than the morning of September 22, 2008. At the time Respondent issued CTA check no. 234, he believed his client had already deposited the funds into his CTA. However, Respondent did not verify with his bank that the funds were in the account prior to issuing the check, and, in fact, his client had not deposited the funds as promised.
4. When the superior court received the check, it attempted to negotiate it. The check was presented for payment at Respondent’s bank on September 25 and 29, 2008, and both times was returned for insufficient funds in the CTA.
5. Respondent did not become aware that there was a problem with the filing fee until early October 2008, when he checked on the status of the case on the Superior Court’s website and discovered a notation that the check used to pay the filing fee had been NSF’d. By that time, however, Respondent had also learned that the client’s wife had filed a petition for dissolution that preceded that of Mr. Cartznes.
6. Subsequent to learning of the unpaid filing fee, Respondent discussed the matter with his client. His client advised Respondent that in light of his wife’s filing, he no longer wished to pursue his own dissolution proceeding, and wanted his funds applied to other litigation matters instead. In accordance with his client’s wishes, therefore, Respondent took no steps to make the check good, and allowed the filing to be cancelled by the superior court. Respondent’s client eventually obtained a divorce in the proceeding initiated by his ex-wife.
7. On or about December 31, 2008, an investigator for the State Bar sent a letter to Respondent properly addressed to the membership records address provided by and on file for Respondent. The letter requested a response regarding the check issued for insufficient funds. The letter was not returned as undeliverable or for any other reason.
8. On or about January 15, 2009, the State Bar investigator sent a second letter to Respondent properly addressed to his membership records address. The letter enclosed the previous letter, and again requested a response from Respondent regarding the NSF check. This letter was not returned as undeliverable or for any other reason.
9. On or about April 15, 2009, a State Bar investigator sent a notice to Respondent’s membership records address, notifying him of CTA records received from Respondent’s bank pursuant to subpoena. The notice was returned to the State Bar unclaimed.
10. On or about May 5, 2009, the investigation was forwarded for further action by the Office of the Chief Trial Counsel. Respondent failed to provide a response to the investigation concerning the insufficient funds check.
Conclusions of Law
11. By issuing CTA check no. 234 without first verifying that there were sufficient funds in the CTA to cover it, Respondent wilfully failed to properly manage funds in his attorney client trust account in violation of Rule 4-100(A), Rules of Professional Conduct.
12. By failing to cooperate or participate in the disciplinary investigation of the insufficient funds check, Respondent wilfully violated Business and Professions Code, section 6068(i).
Case No. 10-O-06139
1. On or about May 25, 2010, Respondent issued check No. 255, drawn on his CTA in the amount of $20 and payable to the Los Angeles Superior Court. The check was for filing fees to file a stipulation for a trial continuance in the case Kzam Properties v. Block, LASC Case No. 09B08270.
2. Prior to issuing check 255, the balance in the CTA was $75.08. On May 25, 2010, Respondent withdrew $55 from the CTA for copying and postage expenses in connection with the Kzam case. The following day, May 26, 2010, Respondent withdrew $20.00 from the CTA for parking expenses in connection with the same case, forgetting that he had given his assistant the $20 check to pay the filing fee the day before.
3. Respondent did not realize his mistake until the evening of May 27, 2010. He went to his bank the next morning, May 28, 2010, and deposited $20 to cover the check. Although Check 255 was honored and paid on June 1, 2010, it was not honored when initially presented to the bank on May 27, 2010.
Conclusions of Law
4. By the conduct described above, Respondent wilfully failed to properly manage funds in his attorney client trust account in violation of Rule 4-100(A), Rules of Professional Conduct.
DISMISSALS
The parties respectfully request that the Court dismiss the following charges/counts in the interest of justice:
Case No.: 08-O- 14761 (Count One), Underlying Charges Dismissed: Business and Professions Code, section 6106
Case No.: 08-0-14761 (Count Two), Underlying Charges Dismissed: Rule 4-100(A)
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 August 20, 2008 and the facts 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 Notice of Disciplinary Charges.
PENDING PROCEEDINGS.
None other than State Bar Court case number 10-0-06139. The disclosure date referred to, on page 2, paragraph A(7), was September 29, 2010.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of September 29, 2010, the disciplinary costs in this matter are $4273. 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.
FINANCIAL CONDITIONS TRUST ACCOUNT SCHOOL
See Financial Conditions attached to this Stipulation.
AUTHORITIES
Standard 1.3 provides the purposes of State Bar disciplinary proceedings 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.
Standard 2.2 (b) provides that culpability of a member of willfully violating rule 4-100, Rules of Professional Conduct, none of which offenses result in a misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances
Standard 2.6 provides that culpability of a member of a violation of California Business and Professions Code, section 6068 (i) 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.
The stipulated discipline of one year stayed suspension, two years probation with conditions including Ethics School, Client Trust Account School, and taking and passing the MPRE is consistent with the purposes of State Bar disciplinary proceedings identified in Standard 1.3. It should be noted that the Standards are guidelines (Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090); In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615,628, and although afforded great weight (In re Silverton (2005) 36 Cal.4th 81, 91-92), are not to be applied in a talismanic fashion (In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct.Rptr. 980, 994). The appropriate discipline is determined in light of all relevant facts, including mitigating and aggravating circumstances. (Gary v. State Bar (1988) 44 Cal.3d 820, 828.) Here, the nature of Respondent’s misconduct, his many years in practice with no prior discipline, the fact that the mitigating circumstances that contributed to his failure to respond to the Bar investigation have since been remedied, the lack of harm to any client, and Respondent’s subsequent cooperation with the State Bar by signing the instant Stipulation, justify a deviation from Standard 2.2(b).
Case Number(s): 08-O-14761, 10-O-06139
In the Matter of: Kevin Michael Harr
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: Kevin Michael Harr
Date: September 28, 2010
Respondent’s Counsel: Susan L. Margolis
Date: September 28, 2010
Deputy Trial Counsel: Brandon K. Tady
Date: September 28, 2010
Case Number(s): 08-O-14761, 10-O-06139
In the Matter of: Kevin Michael Harr
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: Donald F. Miles
Date: October 14, 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 14, 2010, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING STAYED SUSPENSION;
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:
KEVIN M. HARR
406 BROADWAY #380H
SANTA MONICA, CA 90401
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
BRANDON TADY, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 14, 2010.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court