Case Number(s): 09-O-10394, 09-O-10006
In the Matter of: Tristan R. Pico, Bar # 64482 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Timothy G. Byer, DTC
1149 S. Hill St.
Los Angeles, CA 90015
(213) 765-1325
Bar # 172472,
Counsel for Respondent: Ellen A. Pansky, Pansky Markle Ham LLP
1010 Sycamore Ave., Ste. 308
South Pasadena, CA 91030
(213) 626-7300
Bar # 77688,
Submitted to: Settlement Judge – 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.
1. Respondent is a member of the State Bar of California, admitted June 27, 1975.
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):
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: 2011, 2012. (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.
IN THE MATTER OF: Tristan R. Pico, State Bar No. 64482
STATE BAR COURT CASE NUMBER: 09-O-1006, 09-O-10394
WAIVER OF RIGHT TO FILING OF NOTICE OF DISCIPLINARY CHARGES:
The parties waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
FACTS AND CONCLUSIONS OF LAW:
Respondent admits that the following facts are true and that he is culpable of violation of the specified Rule of Professional Conduct.
Facts:
Case No. 09-0-100064
1. On August 31, 2005, Genelle Peterson employed Respondent to represent her in a personal injury matter. Respondent settled the matter at mediation on September 13, 2007.
2. On October 3, 2007, Respondent deposited a settlement check issued on behalf of Peterson in the sum of $20,000.00 into his client trust account, no. xxxxxx 6808,1 at Wells Fargo Bank ("CTA"). After subtracting Respondent’s contingent fee and the amounts owing to Peterson’s medical care providers, Respondent was required to maintain $12,259.32 in trust for Peterson. [Footnote 1: The full account number is omitted for privacy purposes.]
3. On numerous occasions thereafter, and before paying out any funds to Peterson or to any other entity on Peterson’s behalf, Respondent allowed the balance in his CTA to fall below $12,259.32. On October 26, 2007, Respondent allowed the balance in his CTA to fall to $2,654.95.
4. Peterson made numerous requests of Respondent for the status of her matter, which Respondent received but to which he did not respond. Peterson made numerous telephone calls to Respondent between October 2007 and October 2008, and employed another attorney to mail Respondent a letter dated October 18, 2008, requesting to be advised of the status of Peterson’s case. Respondent received the October 18, 2008 letter but did not respond to it.
5. After settling Peterson’s matter at mediation on September 13, 2007, Respondent delayed negotiation of the medical liens owed by Peterson, and payment of those medical liens, until January 2009. The full account number is omitted for privacy purposes.
6. In her telephone calls to Respondent between October 2007 and October 2008, Peterson repeatedly asked Respondent to negotiate her medical liens and pay out those funds owed to the lien holders and the remaining funds to her.
7. Respondent failed until January 2009 to pay out to Peterson her share of the settlement funds he deposited into his CTA in October 2007, despite her repeated requests that he do so.
Case No. 09-O-10934
8. On November 10, 2004, Todd McCraven employed Respondent for representation in a personal injury matter.
9. On February 1, 2007, Respondent deposited a settlement check issued on behalf of McCraven in the sum of $8,000.00 into his client trust account, no. xxxxxx 6808,2 at Wells Fargo Bank ("CTA"). After subtracting Respondent’s contingent fee, reimbursable legal costs, and the amount paid to McCraven as his portion of the settlement, Respondent was required to maintain $2,905.70 in trust for payment of McCraven’s medical providers/lienholders. [Footnote 2: The full account number is omitted for privacy purposes.]
10. On numerous occasions thereafter, Respondent allowed the balance in his CTA to fall below $2,905.70. On September 26, 2007, Respondent allowed the balance in his CTA to fall to $18.89.
11. One of McCraven’s medical providers/lienholders, "San Gabriel Valley Diagnostic," referred McCraven’s unpaid obligation to a debt collection agency when their lien was not paid.
12. McCraven made numerous attempts to contact Respondent about this unpaid lien, calling Respondent, and sending faxed letters and email messages. Respondent received all the messages but responded to none of them.
13. In his telephone calls, faxed letters, and email messages to Respondent, McCraven repeatedly asked Respondent to pay his medical liens.
14. Respondent failed to pay out to San Gabriel Valley Diagnostic the amount of the lien held by that medical service provider, despite McCraven’s repeated requests that he do so.
Legal Conclusions
15. By not maintaining at least $12,259.32 in trust for Peterson in his CTA, Respondent willfully failed to maintain the balance of funds received for the benefit of his client and deposited in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import, in willful violation of Rules of Professional Conduct, rule 4-100(A).
16. By not responding to Peterson’s reasonable status inquiries, Respondent failed to respond promptly to reasonable status inquiries of a client, in willful violation of Business & Professions Code, section 6068(m).
17. By not disbursing Peterson’s settlement funds to her and to her medical lienholders from September 2007 until January 2009, Respondent willfully failed to pay promptly, as requested by a client, any funds in Respondent’s possession which the client is entitled to receive, in willful violation of Rules of Professional Conduct, rule 4-100(B)(4).
18. By his grossly negligent misappropriation of $9,604.37 that he was required to maintain in trust for Genelle Peterson, Respondent committed an act or acts involving moral turpitude, dishonesty, or corruption, in willful violation of Business and Professions Code, section 6106.
19. By not maintaining at least $2,905.70 in trust for McCraven in his CTA, Respondent willfully failed to maintain the balance of funds received for the benefit of his client and deposited in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import, in willful violation of Rules of Professional Conduct, rule 4-100(A).
20. By not responding to McCraven’s reasonable status inquiries, communicated to Respondent in numerous telephone calls, faxed letters, and email messages, all of which Respondent received, Respondent willfully failed to respond promptly to reasonable status inquiries of a client, in willful violation of Business & Professions Code, section 6068(m).
21. By not paying San Gabriel Valley Diagnostic the amount due that provider from McCraven’s settlement funds, as McCraven requested, Respondent willfully failed to pay promptly, as requested by a client, any funds in Respondent’s possession which the client is entitled to receive, in willful violation of Rules of Professional Conduct, rule 4-100(B)(4).
22. By his grossly negligent misappropriation of $2,886.81 that he was required to maintain in trust for Todd McCraven, Respondent committed an act or acts involving moral turpitude, dishonesty, or corruption, in willful violation of Business and Professions Code, section 6106.
Aggravating Circumstances:
Multiple Acts of Misconduct: Respondent committed eight separate acts of misconduct: two acts of misappropriation, two acts of failing to maintain client funds in trust, two acts of failing to respond promptly to reasonable status inquiries of a clients, and two acts of failing to pay client funds out promptly.
Mitigating Circumstances:
Emotional/Physical Difficulties and Severe Financial Stress: At the time of the underlying actions, Respondent had closed his law practice to work for a company that soon thereafter experienced financial crisis and failed, which resulted in unforeseen and severe financial consequences to Respondent. His serious financial problems contributed to his becoming clinically depressed, which adversely impacted his ability to act promptly in completing the few remaining cases from his solo law practice and which contributed to his failures to adequately maintain his CTA.
Candor/cooperation: Respondent cooperated fully with the State Bar, and did not seek to avoid responsibility for his improper handling of trust funds.
Remorse: Respondent admitted his failure to maintain client funds in his client trust account and fully repaid all the sums owed.
AUTHORITIES SUPPORTING RECOMMENDED DISCIPLINE:
Standards:
Standard 2.3 provides that "[c]ulpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client or another person or of concealment of a material fact to a court, client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law."
COSTS:
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him that, as of August 8, 2010, the costs in this matter are $2,602.00. 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): 09-O-10006, 09-O-10394
In the Matter of: Tristan R. Pico, State Bar No.: 64482
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.
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.
Case Number(s): 09-O-10006, 09-O-10394
In the Matter of: Tristan R. Pico
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: Tristan R. Pico
Date: October 15, 2010
Respondent’s Counsel: Ellen A. Pansky
Date: October 20, 2010
Deputy Trial Counsel: Timothy G. Byer
Date: October 25, 2010
Case Number(s): 09-O-10006, 09-O-10394
In the Matter of: Tristan R. Pico
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 2 of the stipulation, the "X" in the first box of paragraph A(8) is deleted because it is inconsistent with the stipulated extension of time for respondent to pay costs that is set forth in the second box of paragraph A(8). (The instructions to paragraph A(8) state "(Check one option only).") Further, the two membership years designated in paragraph A(8) are amended to read: 2012 and 2013.
On page 4 of the stipulation, the "X" in box E(1) is deleted to remove the conditional standard 1.4(c)(ii) requirement. The conditional standard 1.4(c)(ii) requirement is inappropriate because no "and until" condition is attached to respondent’s six-month suspension which could cause respondent to be "actually suspended for two years or more."
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: November 10. 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 November 15, 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:
ELLEN NANNE PANSKY, ESQ.
PAMSKY MARKLE HAM LLP
1010 SYCAMORE AVE UNIT 308
SOUTH PASADENA, CA 91030
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
TIMOTHY BYER, ESQ., Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 15, 2010.
Signed by:
Rose Luthi
Case Administrator
State Bar Court