Case Number(s): 09-O-12143, 09-O-13356, 09-O-13675, 10-O-00933
In the Matter of: Valerie L. Barber, Bar # 170148, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Melanie J. Lawrence, 1149 South Hill Street
Los Angeles, CA 90015
(213)765-1066
Bar # 230102,
Counsel for Respondent: Edward O. Lear, 5200 West Century Blvd., Suite 345
Los Angeles, CA 90045
(310)642-6900
Bar # 132699,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles .
Filed: January 20, 2011
<<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 1, 1994.
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 14 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. 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: one year following the effective date of 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 aggravating circumstances:
Additional mitigating circumstances:
<<not>> checked. Substance Abuse Conditions.
checked. Law Office Management Conditions.
<<not>> checked. Medical Conditions.
<<not>> checked. Financial Conditions.
Attachment language (if any):
Case Number(s): 09-O-12146 et. al.
In the Matter of: Valerie Barber
<<not>> checked. a. Within days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
<<not>> checked. b. Within days/ months/ years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Other:
Within one year of the effective date of the discipline herein, Respondent must
submit to the Office of Probation satisfactory evidence that she has completed
no less than 10 MCLE’s, all in legal ethics. This condition is in addition to
Ethics School. This condition is in addition to Respondent’s regular MCLE
requirements. Respondent will not receive credit towards this condition for
attending Ethics School nor will she receive MCLE credit towards her regular
MCLE requirements.
IN THE MATTER OF: VALERIE L. BARBER, State Bar No. 170148
STATE BAR COURT CASE NUMBER: 09-O-12143, 09-O-13356, 09-O-13675, 10-O-00933
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, 2010, and the facts and/or conclusions of law contained in this stipulation and waive the issuance of an Amended Notice of Disciplinary Charges. The parties further waive the right to the filing of an Amended 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 she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
STATEMENT OF FACTS:
09-O-12143
1. On August 30, 2008, Respondent entered into an "Agreement for Services" ("Agreement") with Fastlink Financial, Inc. ("Fastlink"), in which Respondent agreed to perform legal analysis of mortgage loan documents of Fastlink’s loan modification clients. Fastlink is an entity owned and operated by non-attorneys. Respondent’s Agreement with Fastlink provided that Respondent would be paid a $200 fee for each Fastlink client for whom she performed a "mortgage loan document analysis" to find potential violations of the federal laws known as Real Estate Settlement Procedures Act ("RESPA") and the Truth in Lending Act ("TILA").
2. At the time, attorneys could collect advanced fees for loan modification services. However, a loan modification company could not unless it had an advanced fee agreement approved by the California Department of Real Estate ("DRE"). Fastlink did not have an advanced fee agreement approved by the DRE, and therefore could not legally charge clients advanced fees for loan modification services. However, Respondent made no inquiry into whether they had an approved fee agreement, before entering into the Agreement with Fastlink. Fastlink collected advanced fees for loan modification services and represented they had an attorney working with them. Respondent’s participation in the modification services allowed Fastlink to circumvent the requirement for a DRE approved advanced fee agreement.
3. Respondent stopped analyzing mortgage loan documents for Fastlink in approximately February 2009.
CONCLUSIONS OF LAW
By entering into an agreement with Fastlink to perform legal analysis of mortgage loan documents when Fastlink was not authorized to collect advanced fees for loan modification services, and without making any inquiry into whether Fastlink was so authorized, Respondent was grossly negligent in participating in Fastlink’s effort to circumvent the prohibition against collecting advanced fees for loan modification services, and thus violated Business and Professions Code § 6106.
09-O-13356
4. In February 2009, Respondent held herself out as licensed to practice in Arizona, and accepted the representation of Willie and Lylah Raven, residents of Arizona, as clients, in order to negotiate and obtain for them a home mortgage loan modification for their Arizona property. On March 31, 2009, Respondent mailed a letter to the Ravens on "Barber Law Center" letterhead which Respondent signed as "Valerie L. Barber, Esq., Attorney for Barber Law Center."
5. On March 11, 2009, the Ravens paid Respondent an advanced fee in the sum of $2,200.
6. Arizona Supreme Court Rule 31 defines "practice of law" as "providing legal advice or services to or for another by: (1) preparing any document in any medium intended to affect or secure legal rights for a specific person or entity; (2) preparing or expressing legal opinions; (5) negotiating legal rights or responsibilities for a specific person or entity." Rule 31 also defines engaging in the "unauthorized practice of law," in pertinent part, as follows: "... using the designations ‘lawyer’ ‘attorney as law,’ ‘counselor at law,’ ‘law,’ ‘law office,’ ‘J.D.,’ ‘Esq.,’ or other equivalent words by any person or entity who is not licensed to practice law in this state...".
7. Moreover, Arizona Supreme Court Rule 42 incorporates the Rules of Professional Conduct applicable to attorneys practicing law in Arizona. Rule 5.5(b) of those Rules of Professional Conduct prohibits a lawyer who is not admitted in Arizona from holding out to the public or otherwise representing that the lawyer is admitted to practice law in Arizona.
8. Respondent is not presently, and never has been, admitted to practice law in the state of Arizona.
9. On June 9, 2009, the Ravens submitted a complaint to the State Bar about Respondent’s representation. When Respondent learned of the Ravens’ complaint, Respondent secured an agreement from the Ravens under which Respondent would provide a partial refund of the Raven’s advanced fee in return for the Ravens’ withdrawal of their State Bar complaint. Respondent paid the Ravens’ a refund of $1,100.
10. In December 2010, Respondent refunded the remaining $1,100 to the Ravens, plus interest.
CONCLUSIONS OF LAW:
By holding herself out as licensed to practice law in Arizona when she was not so licensed, and accepting the Ravens as clients, Respondent practiced law in a jurisdiction where practicing is in violation of the regulations of the profession in that jurisdiction, in willful violation of Rule 1300(B) of the Rules of Professional Conduct.
By entering into an agreement for, charging, and collecting fees from the Ravens, when she was not licensed to practice in Arizona, Respondent willfully entered into an agreement for, charged, and collected an illegal fee from the Ravens in violation of Rule 4-200(A) of the Rules of Professional Conduct.
By entering into an agreement with Lylah Raven that Respondent would refund a portion of Mrs. Raven’s advanced fee in return for Mrs. Raven’s withdrawal of her State Bar complaint, Respondent willfully agreed or sought agreement that Mrs. Raven would withdraw a disciplinary complaint in willful violation of Business and Professions Code, section 6090.5(a)(2).
09-O-13675
11. In July 2008, Respondent entered into an "Agreement For Services" ("Agreement") with Advanced Loan Modification ("Advanced"), in which Respondent agreed to perform legal analysis of mortgage loan documents of Advanced’s loan modification clients. Advanced is an entity owned and operated by non-attorneys. Respondent’s Agreement with Advanced provided that Respondent would be paid a $100 fee for each Advanced client for whom she performed a "mortgage loan document analysis".
12. At the time, attorneys could collect advanced fees for loan modification services. However, a loan modification company could not unless it had an advanced fee agreement approved by the California Department of Real Estate ("DRE"). Advanced did not have an advanced fee agreement approved by the DRE, and therefore could not legally charge clients advanced fees for loan modification services. However, Respondent made no inquiry into whether they had an approved fee agreement, before entering into the Agreement with Advanced. Advanced collected advanced fees for loan modification services and represented they had an attorney working with them. Respondent’s participation in the modification services allowed Advanced to circumvent the requirement for a DRE approved advanced fee agreement.
13. Respondent stopped analyzing mortgage loan documents for Advanced in approximately December 2008.
CONCLUSIONS OF LAW
By entering into an agreement with Advanced to perform legal analysis of mortgage loan documents when Advanced was not authorized to collect advanced fees for loan modification services, and without making any inquiry into whether Advanced was so authorized, Respondent was grossly negligent in participating in Advanced’s effort to circumvent the prohibition against collecting advanced fees for loan modification services, and thus violated Business and Professions Code § 6106.
10-O-00933
14. In March 2009, Respondent held herself out as licensed to practice in Illinois, and accepted the representation of Raynold Calderon, a resident of Illinois, as her client, in order to negotiate and obtain for him a home mortgage loan modification for his Illinois property.
15. On March 11, 2009, Calderon paid Respondent an advanced fee in the sum of $2,800 for negotiating the loan modification.
16. Practicing law, or holding oneself out as entitled to practice law, in the State of Illinois when one is not licensed to practice law there, is prohibited by the State of Illinois. The practice of law in Illinois includes negotiating with third parties and engaging in any activities which require the skill, knowledge, training, or responsibility of an attorney.
17. Respondent is not presently, and never has been, admitted to practice law in the state of Illinois.
18. On October 7, 2009, Calderon informed Respondent, in writing, of his intention to file a State Bar complaint concerning Respondent’s representation. On February 17, 2010, Respondent secured an agreement from Calderon under which Respondent would provide a partial refund of Calderon’s advanced fee in return for his agreement not to initiate any complaint against Respondent before any administrative body.
19. Respondent refunded Calderon $925 of the $2,800 he had paid.
20. In December 2010, Respondent refunded the remaining $1,875 to Calderon, plus interest.
CONCLUSIONS OF LAW
By holding herself out as licensed to practice law in Illinois when she was not so licensed, and accepting Calderon as a client to negotiate a loan modification, Respondent willfully violated the regulations of the profession in Illinois in violation of Rule 1-300(B) of the Rules of Professional Conduct.
By entering into an agreement for, charging, and collecting fees from Calderon, when she was not licensed to practice in Illinois, Respondent willfully entered into an agreement for, charged, and collected an illegal fee from Calderon in violation of Rule 4-200(A) of the Rules of Professional Conduct.
By entering into an agreement with Calderon that she would refund a portion of Calderon’s advanced fee in return for agreement to not file a State Bar complaint, Respondent willfully agreed or sought agreement that Respondent’s professional misconduct or the terms of a settlement of a claim for professional misconduct would not be reported to the disciplinary agency in willful violation Business and Professions Code, section 6090.5(a)(1).
AGGRAVATING CIRCUMSTANCES.
Respondent’s misconduct involves multiple client matters constituting multiple acts of misconduct.
MITIGATING CIRCUMSTANCES.
Respondent has been in practice for sixteen years and has never before been disciplined.
Respondent has fully cooperated with the State Bar in providing requested information and in resolving this matter without trial.
Respondent has submitted eleven letters from a wide range of references in the general and legal communities who are aware of her misconduct, and which establish an extraordinary demonstration of good character.
AUTHORITIES SUPPORTING DISCIPLINE.
The stipulated discipline falls within the range of discipline set forth the in the Standards for Attorney Sanctions for Professional Misconduct.
Standard 1.3 provides that the primary purposes of attorney discipline are, "the protection of the public, the courts and the legal profession; the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession."
Standard 1.6(a) states that where two or more acts of professional misconduct are charged and different sanctions are prescribed by the standards for the acts, the sanction imposed shall be the more or most severe of the different applicable sanctions.
Standard 2.3 applies to offenses involving moral turpitude. It requires actual suspension or disbarment depending upon the extent to which the client was harmed or misled and 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.
B&PC § 6090.5 states that violations of that section is cause for suspension, disbarment, or other discipline.
Standard 2.10 applies to violations of any rule or B&PC section not specified under any other standard. It requires reproval or suspension according to the gravity of the offense or harm to the victim, and with due regard for the purposes of imposing discipline.
DISMISSALS
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No.: 09-O-12143, Count Alleged: 2-4 ,Violation: Rule 1-400(c), B&PC § 6106, Rule 1-320(A) ,
Case No.: 09-O-13675, Count Alleged: 9-10 ,Violation: B&PC § 6106, Rule 1-320(A) ,
Case No.: 10-O-00933, Count Alleged: 14 ,Violation: Rule 3-400(B) ,
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of December 15, 2010, the prosecution costs in this matter are estimated at $5,806.38. 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.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was December 16, 2010.
Case Number(s): 09-O-12143 et. al.
In the Matter of: Valerie Barber
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: Valerie Barber
Date: January 10, 2011
Respondent’s Counsel: Edward O. Lear
Date: January 11, 2011
Deputy Trial Counsel: Melaine J. Lawrence
Date: January 13, 2011
Case Number(s): 09-O-12143 et. al.
In the Matter of: Valerie L. Barber
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 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: January 19, 2011
[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 January 20, 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:
EDWARD O LEAR ESQ
CENTURY LAW GROUP LLP
5200 W CENTURY BLVD #345
LOS ANGELES, CA 90045
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Melanie j. Lawrence, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 20, 2011.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court