State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

STAYED SUSPENSION; NO ACTUAL SUSPENSION

Case Number(s): 09-O-12248

In the Matter of: Barry D. Silbermann Bar #69402, 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

Tel. (213) 765-1293

Bar #121606

Counsel for Respondent:  In Pro Per Respondent

Barry D. Silbermann

12400 Ventura Blvd., #413

Studio City, CA 91604

Tel. (310) 702-6699

Bar # 69402

Submitted to: Assigned Judge

Filed: May 20, 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 June 25, 1976.

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 10 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. Costs are added to membership fee for calendar year following effective date of discipline.

checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: 2012, 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.

<<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.

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 or a separate attachment entitled “Prior Discipline”.

<<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.

<<not>> checked. (8) No aggravating circumstances are involved.
Additional aggravating circumstances:

C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating circumstances are required.

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. Respondent has no prior discipline since his admission in ]976. Although the misconduct of commingling of personal funds in a trust account is serious, no client funds were put at risk.

(2) [] No Harm: Respondent did not harm the client or person

<<not>> checked. (2) No Harm:  Respondent did not harm the client or person who was the object of the misconduct. 

checked. (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 with the State Bar in providing records and entering into a stipulation in this matter.

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. 

<<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.

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. During the time of the misconduct, Respondent was suffering from a stress-related anxiety disorder resulting from severe financial pressure.

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 began to use the trust account to deposit personal funds and pay personal expenses offer the economic downturn resulted in a substantial period of unemployment the bank’s closure of his personal checking account.

<<not>> 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.

<<not>> 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.

<<not>> checked. (12) Rehabilitation:  Considerable time has passed since the acts of professional misconduct occurred followed by convincing proof of subsequent rehabilitation.

<<not>> checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances:

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:

<<not>> checked. (b)         The above-referenced suspension is stayed.

<<not>> 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.)

E. Additional Conditions of Probation:

checked. (1)            During the probation period, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

checked. (2)            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. (3)            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. (4)            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.

<<not>> checked. (5) 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. (6)            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. (7)            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:

<<not>> checked. (8) 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. (9) 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 within one year.  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) Other Conditions: 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 State Bar’s Client Trust Accounting School, and passage of the test given at the end of that session. 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 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: Barry David Silbermann

CASE NUMBER(S): 09-0-12248

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. 09-0-12248 (State Bar Investigation)

FACTS:

1. During the period from in or about August 2008 through June 2009, Respondent maintained a trust account at Wells Fargo Bank, account no. XXX-XXX8464 ("the CTA"). (The complete account number has been omitted due to privacy concerns.)

2. During the period from in or about August 2008 through June 2009, Respondent deposited his personal funds in the CTA, including, but not limited to, the following:

, Amount ($), Nature of the Funds

Date 08/25/08, Amount ($) 1,000.00, Nature of the Funds Personal loan to Respondent

Date 09/02/08, Amount ($) 1,039.00, Nature of the Funds Social Security Benefits for Respondent’s son

Date 10/02/08, Amount ($) 1,039.00, Nature of the Funds Respondent’s son Social Security Benefits for

Date 10/31/08, Amount ($) 991.50, Nature of the Funds Social Security Benefits for Respondent

Date 10/31/08, Amount ($) 1,039.00, Nature of the Funds Social Security Benefits for Respondent’s son

Date 12/01/08, Amount ($) 1,039.00, Nature of the Funds Social Security Benefits for Respondent’s son

Date 02/02/09, Amount ($) 1,100.00, Nature of the Funds Social Security Benefits for Respondent’s son

Date 02/02/09, Amount ($) 1,064.30, Nature of the Funds Respondent Social Security Benefits for

Date 04/02/09, Amount ($) 1,100.00, Nature of the Funds Social Security Benefits for Respondent’s son

Date 04/02/09, Amount ($) 1,064.30, Nature of the Funds Social Security Benefits for Respondent

Date 04/22/09, Amount ($) 4,118.80, Nature of the Funds Refund of funds attached by Respondent’s ex-wife

Date 04/30/09, Amount ($) 1,064.30, Nature of the Funds Social Security Benefits for Respondent

Date 05/07/09, Amount ($) 250.00, Nature of the Funds Social Security Benefits for Respondent

Date 05/07/09, Amount ($) 500.00, Nature of the Funds Personal loan to Respondent

Date 05/22/09, Amount ($) 1,066.30, Nature of the Funds Social Security Benefits for Respondent

Date 06/01/09, Amount ($) 1,100.00, Nature of the Funds Social Security Benefits for Respondent’s son

3. During the period from in or about August 2008 through June 2009, Respondent used funds in the CTA to pay personal debts, including, but not limited to, his family’s health insurance premiums, cable and dish network payments, Verizon wireless service, AAA membership, and utilities.

CONCLUSIONS OF LAW:

4. By depositing personal funds in the CTA, Respondent commingled funds belonging to Respondent in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import in willful violation of the Rules of Professional Conduct, rule 4-100(A).

PENDING PROCEEDINGS.

The disclosure date referred to, on page 2, paragraph A(7), was May 13, 2011.

AUTHORITIES SUPPORTING DISCIPLINE.

The Standards for Attorney Sanctions for Professional Misconduct provide, at Standard 2.2(b), for a minimum actual suspension of three months irrespective of mitigating circumstances for the commission of a violation of rule 4-100, Rules of Professional Conduct, which does not result in the willful misappropriation of entrusted funds or property. Reported cases of discipline based on commingling and issuance of NSF checks include: In the Matter of Heiser (Review Dept. 1990) 1 Cal. State Bar Ct.

Rptr. 47 (6 months actual suspension); In the Matter of Bleecker (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 113 (60 days actual suspension); In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615 (6 months actual suspension); In the Matter of Doran (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 871 (6 months actual suspension). Here, Respondent’s prior record of 34 years with no record of discipline and his cooperation with the State Bar to resolve this matter by stipulation supports the imposition of a stayed suspension.

SIGNATURE OF THE PARTIES

Case Number(s): 09-O-12248

In the Matter of: Barry David Silbermann

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: Barry David Silbermann  and Dane C. Dauphine

Respondent: Barry David Silbermann 

Date: May 13, 2011

Respondent’s Counsel:

Date:

Deputy Trial Counsel: Dane C. Dauphine

Date: May 13, 2011

STAYED SUSPENSION ORDER

Case Number(s): 09-O-12248

In the Matter of: Barry David Silbermann

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.

Page 6- Paragraph E. (7) The “X” in the box next to “No Ethics School Recommended” 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:

Richard A. Platel

Judge of the State Bar Court

Date: May 18, 2011

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 May 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:

                              BARRY DAVID SILBERMANN

                              12400 VENTURA BLVD STE 413

                              STUDIO CITY, CA 91604

 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 May 20, 2011.

Signed by:

Johnnie Lee Smith

State Bar Court