State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER
APPROVING
ACTUAL SUSPENSION
Case Number(s): 09-C-12555
In the Matter of: Tung The Pham, Bar # 241735, 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: Phillip Feldman, 14401 Sylvan
Street, Suite 200, Van Nuys, California 91401, 818-986-9890, Bar # 40792
Submitted to: Settlement Judge – State Bar Court Clerk’s
Office Los Angeles.
Filed: March 6, 2012 .
<<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.
A. Parties' Acknowledgments:
1. Respondent is
a member of the State Bar of California, admitted February 14, 2006.
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 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. 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):
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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: 2013 and 2014. (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.
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checked. Costs are waived in part as set forth in a separate attachment
entitled "Partial Waiver of Costs".
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checked. Costs are entirely waived.
B.
Aggravating Circumstances [for definition, see Standards for Attorney Sanctions
for Professional Misconduct, standard 1.2(b)]. Facts supporting aggravating
circumstances are required.
<<not>> checked. (1) Prior record of discipline [see
standard 1.2(f)]
<<not>> checked. (a) State Bar Court case #
of prior case
<<not>> checked. (b) Date prior discipline
effective
<<not>> checked. (c) Rules of Professional
Conduct/ State Bar Act violations:
<<not>> checked. (d) Degree of prior
discipline
<<not>> checked. (e) If Respondent has two or
more incidents of prior discipline, use space provided below. .
<<not>> checked. (2) Dishonesty: Respondent's
misconduct was surrounded by or followed by bad faith, dishonesty, concealment,
overreaching or other violations of the State Bar Act or Rules of Professional
Conduct.
<<not>> checked. (3) Trust Violation: Trust funds or
property were involved and Respondent refused or was unable to account to the
client or person who was the object of the misconduct for improper conduct
toward said funds or property.
<<not>> checked. (4) Harm: Respondent's misconduct
harmed significantly a client, the public or the administration of justice.
<<not>> checked. (5) Indifference: Respondent
demonstrated indifference toward rectification of or atonement for the
consequences of his or her misconduct.
<<not>> checked. (6) Lack of Cooperation: Respondent
displayed a lack of candor and cooperation to victims of his/her misconduct or
to the State Bar during disciplinary investigation or proceedings.
<<not>> checked. (7) Multiple/Pattern of Misconduct:
Respondent's current misconduct evidences multiple acts of wrongdoing or
demonstrates a pattern of misconduct.
checked. (8) No aggravating circumstances are involved.
Additional aggravating circumstances: .
C. Mitigating Circumstances [see standard 1.2(e)]. Facts
supporting mitigating circumstances are required.
<<not>>
checked. (1) No Prior Discipline: Respondent has no
prior record of discipline over many years of practice coupled with present
misconduct which is not deemed serious.
<<not>>
checked. (2) No Harm: Respondent did not harm the
client or person who was the object of the misconduct.
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(3)
Candor/Cooperation: Respondent displayed spontaneous candor and
cooperation with the victims of his/her misconduct and to the State Bar during
disciplinary investigation and proceedings. Respondent has displayed
spontaneous candor and cooperation with the State Bar since the referral of
this matter to the Hearing Department.
checked.
(4)
Remorse: Respondent promptly took objective steps spontaneously
demonstrating remorse and recognition of the wrongdoing, which steps were
designed to timely atone for any consequences of his/her misconduct. As part of
the terms of his criminal conviction, Respondent was proactively mentored by
his counsel in law office management skills and ethics.
<<not>>
checked. (5) Restitution: Respondent paid $
on in restitution to without the threat or
force of disciplinary, civil or criminal proceedings.
<<not>>
checked. (6) Delay: These disciplinary proceedings were
excessively delayed. The delay is not attributable to Respondent and the
delay prejudiced him/her.
<<not>>
checked. (7) Good Faith: Respondent acted in good
faith.
<<not>>
checked. (8) Emotional/Physical Difficulties: At the
time of the stipulated act or acts of professional misconduct Respondent
suffered extreme emotional difficulties or physical disabilities which expert
testimony would establish was directly responsible for the misconduct.
The difficulties or disabilities were not the product of any illegal conduct by
the member, such as illegal drug or substance abuse, and Respondent no longer
suffers from such difficulties or disabilities.
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checked. (9) Severe Financial Stress: At the time of
the misconduct, Respondent suffered from severe financial stress which resulted
from circumstances not reasonably foreseeable or which were beyond his/her
control and which were directly responsible for the misconduct.
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checked. (10) Family Problems: At the time of the misconduct, Respondent
suffered extreme difficulties in his/her personal life which were other than
emotional or physical in nature.
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checked. (11) Good Character: Respondent's good character is attested to
by a wide range of references in the legal and general communities who are
aware of the full extent of his/her misconduct.
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checked. (12) Rehabilitation: Considerable time has passed since the acts
of professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
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checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances: While Respondent has no prior
record of discipline, he has only been admitted to practice since 2006, and as
such, only slight mitigation is to be extended, if any.
D.
Discipline:
checked.
(1) Stayed
Suspension:
checked. (a) Respondent must be suspended from the practice of law for a
period of one year.
<<not>> checked. i. and until Respondent shows proof
satisfactory to the State Bar Court of rehabilitation and present fitness to
practice and present learning and ability in the law pursuant to standard
1.4(c)(ii) Standards for Attorney Sanctions for Professional Misconduct.
<<not>> checked. ii. and until Respondent pays restitution as
set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following:
.
checked. (b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on probation
for a period of two years, which will commence upon the effective date of the
Supreme Court order in this matter. (See rule 9.18, California Rules of
Court.)
checked. (3) Actual Suspension:
checked. (a) Respondent must be actually suspended from the practice of law
in the State of California for a period of thirty days.
<<not>> checked. i. and until Respondent shows proof
satisfactory to the State Bar Court of rehabilitation and present fitness to
practice and present learning and ability in the law pursuant to standard
1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct
<<not>> checked. ii. and until Respondent pays restitution as
set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following:
.
E. Additional Conditions of Probation:
<<not>>
checked. (1) If Respondent is actually suspended for two years or
more, he/she must remain actually suspended until he/she proves to the
State Bar Court his/her rehabilitation, fitness to practice, and learning and
ability in the general law, pursuant to standard 1.4(c)(ii), Standards for
Attorney Sanctions for Professional Misconduct.
checked.
(2)
During the probation period, Respondent must comply with the provisions of the
State Bar Act and Rules of Professional Conduct.
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(3)
Within ten (10) days of any change, Respondent must report to the Membership
Records Office of the State Bar and to the Office of Probation of the State Bar
of California ("Office of Probation"), all changes of information,
including current office address and telephone number, or other address for
State Bar purposes, as prescribed by section 6002.1 of the Business and Professions
Code.
checked.
(4)
Within thirty (30) days from the effective date of discipline, Respondent must
contact the Office of Probation and schedule a meeting with Respondent's
assigned probation deputy to discuss these terms and conditions of probation.
Upon the direction of the Office of Probation, Respondent must meet with the
probation deputy either in-person or by telephone. During the period of
probation, Respondent must promptly meet with the probation deputy as directed
and upon request.
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(5)
Respondent must submit written quarterly reports to the Office of Probation on
each January 10, April 10, July 10, and October 10 of the period of probation.
Under penalty of perjury, Respondent must 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. Respondent must also state
whether there are any proceedings pending against him or her in the State Bar
Court and if so, the case number and current status of that proceeding. If the
first report would cover less than 30 days, that report must be submitted on
the next quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same
information, is due no earlier than twenty (20) days before the last day of the
period of probation and no later than the last day of probation.
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checked. (6) Respondent must be assigned a probation monitor.
Respondent must promptly review the terms and conditions of probation with the
probation monitor to establish a manner and schedule of compliance. During the
period of probation, Respondent must furnish to the monitor such reports as may
be requested, in addition to the quarterly reports required to be submitted to
the Office of Probation. Respondent must cooperate fully with the probation
monitor.
checked.
(7)
Subject to assertion of applicable privileges, Respondent must answer fully,
promptly and truthfully any inquiries of the Office of Probation and any
probation monitor assigned under these conditions which are directed to
Respondent personally or in writing relating to whether Respondent is complying
or has complied with the probation conditions.
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(8)
Within one (1) year of the effective date of the discipline herein, Respondent
must provide to the Office of Probation satisfactory proof of attendance at a
session of the Ethics School, and passage of the test given at the end of that
session.
No Ethics School recommended. Reason: .
checked.
(9)
Respondent must comply with all conditions of probation imposed in the
underlying criminal matter and must so declare under penalty of perjury in
conjunction with any quarterly report to be filed with the Office of Probation.
<<not>>
checked. (10) The following conditions are attached hereto and incorporated:
<<not>> checked. Substance Abuse Conditions.
<<not>> checked. Law Office Management Conditions.
<<not>> checked. Medical Conditions.
<<not>> checked. Financial Conditions.
F. Other Conditions Negotiated by the Parties:
checked.
(1)
Multistate Professional Responsibility Examination: Respondent must
provide proof of passage of the Multistate Professional Responsibility
Examination ("MPRE"), administered by the National Conference of Bar
Examiners, to the Office of Probation during the period of actual suspension or
within one year, whichever period is longer. Failure to pass the MPRE
results in actual suspension without further hearing until passage. But see
rule 9.10(b), California Rules of Court, and rule 5.162(A) & (E), Rules of
Procedure.
<<not>> checked. No MPRE recommended. Reason:
<<not>> checked. (2) Rule 9.20, California
Rules of Court: Respondent must comply with the requirements of rule
9.20, California Rules of Court, and perform the acts specified in subdivisions
(a) and (c) of that rule within 30 and 40 calendar days, respectively, after
the effective date of the Supreme Court's Order in this matter.
<<not>> checked. (3) Conditional Rule 9.20,
California Rules of Court: If Respondent remains actually suspended for
90 days or more, he/she must comply with the requirements of rule 9.20,
California Rules of Court, and perform the acts specified in subdivisions (a)
and (c) of that rule within 120 and 130 calendar days, respectively, after the
effective date of the Supreme Court's Order in this matter.
<<not>> checked. (4) Credit for Interim
Suspension [conviction referral cases only]: Respondent will be credited
for the period of his/her interim suspension toward the stipulated period of
actual suspension. Date of commencement of interim suspension:
<<not>> checked. (5) Other Conditions:
Attachment language (if any):
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: TUNG THE
PHAM, State Bar No. 241735
STATE BAR COURT CASE NUMBER:
09-C-12555
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. 09-C-12555 (Conviction Proceedings)
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING:
1. This is a proceeding pursuant to sections 6101 and 6102
of the Business and Professions Code and rule 9.10 of the California Rules of
Court.
2. On October 22, 2009, Respondent was convicted of
violating Penal Code section 370, public nuisance.
3. On August 10, 2010, the Review Department of the State
Bar Court issued an order referring the matter to the Hearing Department on the
following issues:
FACTS:
4. On May 5, 2009, a complaint warrant was filed in the
Orange County Superior Court in case no. 09CM04446, styled the People of the
State of California v. Tung The Pham et al. charging Respondent with two counts
of violation of Business and Professions Code section 6128(c), unlawful receipt
of funds, a misdemeanor.
5. On October 22, 2009, the court changed the charges
against Respondent to one count of violation of Penal Code section 370, public
nuisance.
6. On November 9, 2009, Respondent pled guilty to this one
count. The original counts sounding in the unlawful receipt of funds, were
dismissed. Respondent was placed on two years informal probation, ordered to
violate no laws, obey the orders of the court and probation, cooperate in
counseling, pay a $100.00 restitution fine, a $100.00 probation revocation
restitution fine, pay a $30.00 security fee and an additional $30.00 criminal
conviction assessment fee.
CONCLUSIONS OF LAW:
The facts and circumstances surrounding the above-described
violation did not involve moral turpitude but did involve other misconduct
warranting discipline. By failing to properly supervise his office staff,
Respondent allowed a questionable claim arising out of a staged accident to be
accepted by his office for handling and in so doing, willfully, intentionally,
and recklessly failed to perform with competence in violation of Rules of
Professional Conduct, rule 3-110(A).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7),
was February 10, 2012.
AUTHORITIES SUPPORTING DISCIPLINE.
In State Bar disciplinary proceedings involving criminal
convictions, the conviction is considered conclusive evidence of guilt and the
Respondent may not collaterally attack it. In re Utz (1989) 48 Cal.3rd 468,
480.
Moral turpitude has been defined as an "act of
baseness, vileness or depravity in the private and social duties which a man
owes to his fellow men, or to society in general, contrary to the accepted and
customary rule of right and duty between man and man [citation]. The concept of
moral turpitude depends upon the state of public morals, and may vary according
to the community or the times, [citations] as well as on the degree of public
harm produced by the act in question." In Re Fahey (1973) 3 Cal. 3rd 842,
849.
Standard 3.4 provides that "Final conviction of a
member of a crime which does not involve moral turpitude inherently or in the
facts and circumstances surrounding the crime’s commission but which does
involve other misconduct warranting discipline shall result in a sanction as
prescribed under part B of these standards appropriate to the nature and extent
of the misconduct found to have been committed by the member."
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 one month actual suspension, one year
stayed suspension and two year probation.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial
Counsel has informed respondent that as of February 10, 2012, the prosecution
costs in this matter are approximately $4,906.00. 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.
SIGNATURE OF THE PARTIES
Case Number(s): 09-C-12555
In the Matter of: Tung The Pham
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: Tung T Pham
Date: February 23, 2012
Respondent’s Counsel: Phillip Feldman
Date: February 23, 2012
Deputy Trial Counsel: Hugh G. Radigan
Date: February 23, 2012
ACTUAL SUSPENSION ORDER
Case Number(s): 09-C-12555
In the Matter of: Tung The Pham
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:
<<not>> checked. The
stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to
the Supreme Court.
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.
On page 7 of the stipulation, at numbered paragraph 3, the
words “on the following issues:’ is deleted.”
On page 7 of the stipulation, the caption between paragraphs
3 and 4 is modified to read “FINDING OF FACTS AND CONCLUSIONS OF LAW.” The
caption after numbered paragraph 6 is deleted.
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 6, 2012
CERTIFICATE OF SERVICE
[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 6, 2012, 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:
PHILLIP FELDMAN
LAW OFFICES
OF PHILLIP FELDMAN
14401 SYLVAN
ST, STE 200
VAN NUYS, CA
91401
checked. by
interoffice mail through a facility regularly maintained by the State Bar of
California addressed as follows:
HUGH RADIGAN,
Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct.
Executed in Los Angeles, California, on March 6, 2012.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court