State
Bar Court of California
Hearing
Department
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 09-N-16571
In the Matter of: Michael J. Guglielmino, A Member of the
State Bar of California, (Respondent), Bar # 104484
Counsel For The State Bar: Donald R. Steedman, Bar # 104927
Counsel for Respondent: Bar #
Submitted to: Settlement Judge State Bar Court Clerk’s
Office San Francisco
Filed: February 4, 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.
A. Parties' Acknowledgments:
1. Respondent is a member of the State Bar of California,
admitted December 3, 1982.
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 8 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):
checked.
until costs are paid in full, Respondent will remain actually suspended from
the practice of law unless relief is obtained per rule 284, Rules of Procedure.
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costs to be paid in equal amounts prior to February 1 for the following
membership years: (hardship, special circumstances or other good cause per rule
284, Rules of Procedure.)
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checked. costs waived in part as set forth in a separate attachment entitled
"Partial Waiver of Costs".
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checked. costs 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.
checked. (1) Prior record of discipline [see standard 1.2(f)]
checked. (a) State Bar Court
case # of prior case 05-O-02792
checked. (b) Date prior
discipline effective April 28, 2007
checked. (c) Rules of
Professional Conduct/ State Bar Act violations: BPC 6103, 6068(m); rules
3-110(A), 3-700 (D) (1), 3-700 (D) (2), 4-100 (B) (3)
checked. (d) Degree of prior
discipline Two-year suspension stayed, four-year probation.
checked. (e) If Respondent
has two or more incidents of prior discipline, use space provided below.
State Bar
Case number 07-0-14677; discipline effective July 23, 2009; violation of
Business and Professions Code section 6068(k}; two-year suspension, stayed,
four-year probation on conditions including 150-day actual suspension.
<<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.
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(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.
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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
cooperated in the disciplinary proceeding and, in particular, has agreed to
this pre-filing disposition.
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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.
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checked. (5) Restitution: Respondent paid $ on in restitution to without
the threat or force of disciplinary, civil or criminal proceedings.
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checked. (6) Delay: These disciplinary proceedings were excessively
delayed. The delay is not attributable to Respondent and the delay prejudiced
him/her.
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checked. (7) Good Faith: Respondent acted in good faith.
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(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.
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. Respondent faces
financial difficulties, arising from the fact that he acts as caregiver for his
disabled spouse.
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(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:
Respondent
represents that he had no clients at the time of his suspension, and the State
Bar does not have evidence to the contrary.
D.
Discipline:
checked. (1) Stayed Suspension:
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(a) Respondent must be suspended from the practice of law for a period of two
years.
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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.
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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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 four 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 30 days.
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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
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following:
E. Additional Conditions of Probation:
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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.
checked.
(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.
<<not checked>> No Ethics School recommended. Reason:
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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.
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:
<<not>>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 321 (a)(1) & (c), Rules of Procedure.
checked. No MPRE recommended. Reason: Respondent was ordered to pass the
examination under the terms of the March 2007 disciplinary order, and he did so
in 2008.
<<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 begins here (if any):
PENDING
PROCEEDINGS.
The
disclosure date referred to, on page 2, paragraph A(6), was January 15, 2010.
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.
FACTS:
1.
On or about June 23, 2009, the California Supreme Court filed a disciplinary
order in State Bar Court case number 07-0-14677 (Supreme Court Case Number S 172500).
2.
The disciplinary order required respondent to comply with California Rule of
Court 9.20 and to perform the acts specified in subdivisions (a) and (c) of
that rule within 30 and 40 days, respectively, after the effective date of the
order. The order also suspended respondent from the practice of law.
3.
The disciplinary order became effective thirty days after it was filed
(California Rules of Court, rule 9.18(a)), and at all times subsequent has
remained in full force and effect.
4.
Notice of the disciplinary order was properly served upon respondent in the
manner prescribed by California Rule of Court 9.18(b) at the address respondent
maintained with the State Bar in accordance with Business and Professions Code
section 6002.1, subdivision (a).
5.
The deadlines for complying with rule 9.20(a) and rule 9.20(c) expired on or
about August 22, 2009 and September 1, 2009, respectively.
6.
Respondent wilfully violated the rule 9.20 order by failing to file proof of
compliance as required by rule 9.20(c) prior to the deadline. Respondent did
not file his rule 9.20 declaration until on or about October 5, 2009, more than
a month late.
CONCLUSIONS
OF LAW:
Respondent
violated Business and Professions Code section 6103 by wilfully disobeying or violating
an order of the court requiring respondent to do or forbear an act connected
with or in the course of respondent’s profession which respondent ought in good
faith to do or forbear, specifically, an order requiring respondent to comply
with Rule 9.20 of the California Rules of Court. Respondent also violated rule
9.20(c), California Rules of Court.
SUPPORTING
LEGAL AUTHORITY:
In
the Matter of Friedman (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 527
(30-day suspension imposed where attorney, who had no clients at time of the
disciplinary order, filed compliance declaration 14 days late).
SIGNATURE OF THE PARTIES
Case Number(s): 09-N-16571
In the Matter of: Michael John Guglielmino
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: Michael
John Guglielmino
Date: January
19, 2010
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Donald R. Steedman
Date: January
19, 2010
ACTUAL
SUSPENSION ORDER
Case Number(s): 09-N-16571
In the Matter of: Michael John Guglielmino
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:
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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.
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checked. All Hearing dates are vacated.
A. On page
two; item A(8) is modified to reflect that the costs are to be paid in equal
amounts prior to February 1 for the years 2011, 2012 and 2013.
B.
On page seven; the following facts are added:
1.
Respondent has complied timely with all other probation conditions.
2. Respondent
states that he did not have any clients, client papers or other property, or
any pending litigation matters at the time he was required to comply with rule
9.21 of the California Rules of Court. The State Bar is not aware of any
contrary evidence.
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: George Scott
Date: February
3, 2010
CERTIFICATE
OF SERVICE
[Rule 62 (b); Rules Proc.; 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 San Francisco, on February 4, 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 San Francisco, California, addressed as follows:
MICHAEL JOHN
GUGLIELMINO
141 GLADSTONE
DR
SAN FRANCISCO, CA 94112
checked.
by interoffice mail through a facility regularly maintained by the State Bar of
California addressed as follows:
DONALD
STEEDMAN, Enforcement, San Francisco
I hereby
certify that the foregoing is true and correct. Executed in San Francisco,
California, on February 4, 2010.
Signed by:
Laine Silber
Case
Administrator
State Bar
Court