State
Bar Court of California
Hearing
Department
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 09-O-10327
In the Matter of: Steven Michael O’Neal, Bar # 62315, A Member
of the State Bar of California, (Respondent).
Counsel For The State Bar: Dane C. Dauphine, Supervising
Trial Counsel
1149 South Hill St.
Los Angeles, CA 90015-2299
(213) 765-1293
Bar # 121606
Counsel for Respondent: Paul J. Virgo, Century Law Group
LLP
5200 W. Century Blvd., #345
Los Angeles, CA 90045
(310) 642-6900
Bar # 67900
Submitted to: Assigned Judge
Filed: July 8, 2011 State Bar Court Clerk’s Office Los Angeles
<<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 20, 1974.
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.
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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.) 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)]
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(a) State Bar Court case
# of prior case
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(b) Date prior discipline
effective
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(c) Rules of
Professional Conduct/ State Bar Act violations:
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(d) Degree of prior
discipline
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(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.
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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.
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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 was candid and
cooperative with the State Bar in entering into this resolution.
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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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(5)
Restitution: Respondent paid $ 5,052 owed to Cairns plus an additional
$2,448 on December 19, 2005, and February 17, 2006, in restitution to Donna
Cairns 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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(7)
Good Faith: Respondent acted in good faith. Respondent received the
settlement funds on behalf of Ms. Cairns intending to deliver the funds to her.
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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. In April 2001, Respondent’s son was diagnosed
with bi-polar disorder and commenced medical treatment at that time. In
August 2002, Respondent’s son was arrested and entered a drug rehabilitation
program. As a result of the son’s ongoing personal problems, Respondent
was distracted from his obligations in his law office. In addition, in
the fall of 2005, Respondent’s mother-in-law became very ill with what was then
believed to be terminal. She entered hospice care on December 8,
2005. One week later, Cairns requested her funds.
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(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. Respondent provided three character letters
from people who have known him for 15 to 40 years who were informed of the
facts of the misconduct and attested to his good character.
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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:
D.
Discipline:
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(1) Stayed
Suspension:
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(a) Respondent must be suspended from the practice of law for a period of two
(2) 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:
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(b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on
probation for a period of two (2) 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 sixty (60) days.
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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.
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(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.
checked.
(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.
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(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.
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.
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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:
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(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:.
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(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.
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(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.
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(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:
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(5)
Other Conditions: Within one (1) year of the effective of the discipline
herein, Respondent must provide to the Office of Probation satisfactory proof
of attendance at a session of the State Bar’s Client Trust Accounting School,
and passage of the test given at the end of that session.
ATTACHMENT
TO
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER
OF: Steven Michael O’Neal, no. 62315
CASE
NUMBER(S): 09-0-10327
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-O-10327 (Complainant: Donna Cairns)
FACTS:
1. On February 10, 1998, Donna
Cairns ("Cairns") employed Respondent to represent her in a
landlord-tenant matter. On July 10, 1998, Respondent filed a complaint on
behalf of Cairns in the San Diego County Superior Court entitled Cairns v.
Liever, case no. 603301. On November 10, 1998, the defendant’s default was
entered. On February 24, 1999, the court entered a default judgment in Cairns’s
favor for the sum of $9,670.70.
2. In 1999, Respondent recorded
an abstract of judgment on behalf of Cairns and sought a debtor’s examination
of the judgment debtor in Cairns’s case. After the judgment debtor did not
appear at the debtor’s examination in May 1999, Respondent informed Cairns that
she would have to pay his costs to pursue collection further. Cairns informed
Respondent that she was moving out of state.
3. On September 11, 2000, the
judgment debtor in Cairns’s case filed a motion to set aside default which was
served on Respondent, and Respondent filed an. opposition to the motion. On
October 4, 2001, the motion was denied. Respondent did not contact Cairns to
inform her of the motion and ruling.
4. In or about April 2001, the
judgment debtor was selling real property, and an escrow company contacted
Respondent to satisfy the outstanding judgment in favor of Cairns. Respondent
received on behalf of Cairns a check payable to Respondent’s trust account in
the sum of $9,670.70 which he deposited on May 1 l, 2001, in his client trust
account ("the CTA"). Respondent attempted to contact Cairns by mail
but was unable to reach her. Respondent did not take further steps to identify
a current address for Cairns.
5. After attorney fees and
costs, Respondent was required to maintain in the CTA on behalf of Cairns
approximately $5,052. Due to his failure to locate Cairns and his gross
negligence in maintaining the CTA records, he failed to maintain the balance of
Cairns’s funds in trust. On September 20, 2002, the balance in the CTA dropped
to $549.
6. In or about June 2004,
Respondent’s records relating to the CTA and his closed files, including the
file on Cairns’s case, were destroyed when his storage unit was flooded.
7. In December 2005, Cairns
contacted Respondent after having become aware that the judgment in the civil
action had been paid. Since Respondent did not have a record of the funds
received on behalf of Cairns, he erroneously recalled that the settlement
amount he received was $7,500. Respondent paid $3,750 to Cairns on December 19,
2005, explaining that this was the amount due to her after deducting his 40%
attorney fees and costs. On February 17, 2006, after the correct amount of the
judgment was
identified, Respondent paid Cairns an additional $3,750 from his general
account.
8. Cairns reported the matter
to the State Bar in December 2008.
CONCLUSIONS OF LAW:
9. By not maintaining the sum
of $5,052 in the CTA on behalf of Cairns, Respondent failed to maintain the
balance of funds received for the benefit of a client and deposited in a trust
account in willful violation of the Rules of Professional Conduct, rule
4-100(A).
10. By misappropriating through gross
negligence approximately $4,502 of Cairns’s funds, Respondent committed an act
involving moral turpitude in willful violation of the Business and Professions
Code, section 6106.
PENDING
PROCEEDINGS.
The
disclosure date referred to, on page 2, paragraph A(7), was June 3, 2011.
AUTHORITIES SUPPORTING
DISCIPLINE.
According to
the Standard 2.2 of the Standards for Attorney Sanctions for Professional
Misconduct, the appropriate sanction for willful misappropriation is disbarment
or, if the amount of funds is insignificantly small or if the most compelling
mitigating circumstances clearly predominate, an actual suspension of not less
than one year. Case law has diverged from this standard where the
misappropriation occurred due to gross negligence. "As the term is used in
attorney discipline cases, willful misappropriation covers a broad range of
conduct varying significantly in the degree of
culpability.
An attorney who deliberately takes a client’s funds, intending to keep them
permanently, and answers the client’s inquiries with lies and evasions, is
deserving of more severe discipline than an attorney who has acted negligently,
without intent to deprive mad without acts of deception .... Thus, we have
ordered discipline as light as 30 days of actual suspension when the
misappropriation resulted from negligence and other mitigating factors were
present." (Edwards v. State Bar (1990) 52 Cal.3d 28
[imposing 1
year actual suspension for willful misappropriation of $3,000 where restitution
was made promptly and there were no acts of deceit]; see also, In the Matter of
Bouyer (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 404 [recommending a
six-month actual suspension for misappropriation due to gross negligence of
client funds in three separate client matters mitigated by voluntary
restitution to the clients prior to the involvement of the State Bar].
Here,
Respondent’s mishandling of the client’s funds resulted in misappropriation of
an amount which is not an insignificant sum, but the misconduct arose from
gross negligence rather than an intentional misappropriation and is mitigated
by the fact that Respondent made restitution to the client in 2006 of the
$5,052 due to her plus an additional $2,448 prior to the involvement of the
State Bar. Respondent has no record of prior discipline since his admission in
1974 and has been candid and cooperative with the State Bar. Five years have
elapsed since the payment of restitution without other matters arising
warranting discipline. The 60 day actual suspension is sufficient to protect
the public.
SIGNATURE
OF THE PARTIES
Case Number(s): 09-O-10327
In the Matter of: Steven Michael O’Neal, number 62315
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:
Steven M. O’Neal
Date:
6/3/2011
Respondent’s
Counsel: Paul J. Virgo
Date:
6/9/2011
Deputy Trial
Counsel: Dane C. Dauphine
Date:
6/13/2011
ACTUAL
SUSPENSION ORDER
Case Number(s): 09-O-10327
In the Matter of: Steven Michael O’Neal, number 62315
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.
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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.
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: Richard A. Honn
Date: 7/6/11
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 July 8, 2011, 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;
PAUL JEAN VIRGO
POST OFFICE BOX 67682
LOS ANGELES, CALIFORNIA 90067
checked by
interoffice mail through a facility regularly maintained by the State Bar of
California addressed as follows:
Dane Christopher Dauphine, Enforcement, Los Angeles
I hereby
certify that the foregoing is true and correct. Executed in Los Angeles,
California, on July 8, 2011.
Signed by:
Cristina
Potter
Case
Administrator
State Bar
Court