Case Number(s): 09-O-13248, [09-O-14337]
In the Matter of: Ellen S. Rodin, Bar # 92305, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Bar # 214209, Deputy Trial Counsel, The State Bar of California, 180 Howard Street, San Francisco, CA 94104, 415-538-2037
Counsel for Respondent: William Simpich, Jr, Bar # 106672, 1736 Franklin St 10th Fl, Oakland, CA 94612, (510) 444-0226
Submitted to: Assigned Judge, State Bar Court Clerk’s Office San Francisco
<<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 May 30, 1980
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.
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: (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.
(Effective January 1, 2011)
IN THE MATTER OF: Ellen S. Rodin, State Bar No. 92305
STATE BAR COURT CASE NUMBER: 09-0-13248, 09-0-14337
Facts
1. Prior to February 20, 2007, Duane Daskam ("Daskam"), was appointed Executor of his brother’s estate in the matter, Estate of Kenneth Daskam, Alameda County Superior Court Case No. RP07313203 ("probate matter"). On February 20, 2007, Respondent was hired by Daskam to represent him in his capacity as Executor in the probate matter. At all relevant times herein, Daskam maintained control over the estate’s funds.
2. At all relevant times herein, Respondent maintained a client trust funds account at Wells Fargo Bank (Account No. xxx-xxxx006; hereinafter "trust account" or "Respondent’s trust account;" the account number has been excluded to protect the account from identity theft.)
3. In May 2007, Respondent contacted Daskam and requested $5,000.00 from the estate’s funds to hire an accountant in the probate matter. On June 1, 2007, Daskam provided Respondent check no. 93 in the amount of $5,000.00 from the estate’s funds for the purpose of hiring an accountant. On June 1, 2007, Respondent deposited check no. 92 into her trust account. As of November 30, 2007, the balance in Respondent’s trust account dropped to $700.46. At no time prior to November 30, 2007, did Respondent use the $5,000.00 to hire an accountant. As of November 30, 2007, through gross negligence, Respondent misappropriated at least $4,929.54 from the estate’s funds for her own use and purpose. Respondent later performed the accounting on behalf of the estate in the probate matter.
4. On May 8, 2008, Respondent requested advanced fees of $8,000.00 from Daskam to continue to represent him in the probate matter. On May 9, 2008, Daskam provided Respondent check no. 97 in the amount of $8,000.00 from the estate’s funds as advanced fees. Respondent’s acceptance of the $8,000.00 as advanced fees from the estate’s funds violated the Probate Code section 859.
5. On September 10, 2008, Daskam filed a petition in the probate matter for return of estate assets from Respondent. Respondent later refunded money to the estate.
Conclusions of Law
1. By failing to maintain in her trust account the funds that she was required to maintain on behalf of Daskam and the estate, respondent failed to maintain the balance of funds received for the benefit of a client and deposited in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import in willful violation of rule 4-100(A) of the Rules of Professional Conduct.
2. By misappropriating at least $4,929.54 of the estate’s funds through gross negligence, Respondent committed an act involving moral turpitude, dishonesty or corruption in willful violation of section 6106 of the Business and Professions Code.
3. By accepting $8,000.00 as advanced fees from the estate’s funds in violation of the Probate Code, respondent charged and collected an illegal fee in willful violation of rule 4-200 of the Rules of Professional Conduct.
Case No. 09-0-14337
Facts
1. At all relevant times herein, Respondent maintained a client trust funds account at Wells Fargo Bank (Account No. xxx-xxxx006; herein after "trust account" or "Respondent’s trust account;" the account number has been excluded to protect the account from identity theft.)
2. Respondent repeatedly used her trust account for personal purposes by issuing numerous checks to satisfy her personal, non-client obligations, as follows:
Date of Check: 5/7/07, Check No.: N/A (debit) , Amount of Check: $593.14, Waste Management
Date of Check: 5/8/07, Check No.: 1082, Amount of Check: $631.00, Rick Sutherland
Date of Check: 5/30/08, Check No.: 1088, Amount of Check: $5,000.00, Andrew Brag
3. These checks were paid either using non-client funds that Respondent had left in her trust account after they were earned or using non-client funds that Respondent had improperly deposited into his trust account.
4. Respondent repeatedly deposited non-client funds into his trust account, thereby commingling these funds into her trust account, as follows:
Date of Deposit: 6/7/07 Amount of Deposit $1,000.00 Type of Deposit Cash
Date of Deposit: 9/26/08 Amount of Deposit $700.00 Type of Deposit Check
Date of Deposit: 9/26/08 Amount of Deposit $500.00 Type of Deposit Check
Conclusions of Law
By depositing non-client funds into her trust account and by issuing checks from the trust account for personal and non-client trust account related business expenses, Respondent used the trust account for personal purposes and deposited or 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 rule 4-100 of the Rules of Professional Conduct.
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A (7) was July 21, 2011.
STATE BAR ETHICS SCHOOL & CLIENT TRUST ACCOUNTING SCHOOL
Because Respondent has agreed to attend State Bar Ethics School and State Bar Client Trust Accounting School as part of this stipulation, Respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School and State Bar Client Trust Accounting School.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the State Bar has informed respondent that as of July 21, 2011, the estimated prosecution costs in this matter are approximately $3,788.80. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. 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.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES AGGRAVATING CIRCUMSTANCES
Standard 1.2(b)(iv). Respondent’s misconduct caused significant harm to her client.
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(i). Respondent has been practicing law since 1977, and has no prior record of discipline.
Standard 1.2(e)(iv). Respondent suffered from extreme emotional disabilities in her personal life which expert testimony would establish were directly responsible for the misconduct and have since been resolved.
Standard 1.2(e)(v). Respondent displayed spontaneous candor and cooperation to the State Bar during the disciplinary proceedings.
Standard 1.2(e)(vii). Respondent displayed remorse for her misconduct.
SUPPORTING AUTHORITY
Standard 2.2(a) requires disbarment for the willful misappropriation of entrusted funds. The standard suggests not less than a one-year actual suspension if the amount of funds is insignificantly small or if the most compelling mitigating circumstances clearly predominate.
Standard 2.2(b) requires at least a three-month actual suspension for a violation of rule 4-100, irrespective of mitigating circumstances.
Standard 2.3 requires an actual suspension or disbarment for a respondent that has committed an act of moral turpitude.
An intentional misappropriation generally results in disbarment, even when the Respondent has no prior record of discipline. (See In re Abbott (1977) 19 Cal.3d 249; Kaplan v. State Bar (1991) 52 Cal.3d 1067; Chang v. State Bar (1989) 49 Cal.3d 114; Kelly v. State Bar (1988) 45 Cal.3d 649; In the Matter of Spaith (Review Dept. 1996) 3 Cal.State Bar Ct.Rptr. 511; In the Matter of Keuker (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 583.) Even when the misappropriation is due to gross negligence and there is an extensive showing of mitigation, such misconduct will generally result in a long actual suspension. (Howard v. State Bar (1990) 51 Cal.3d 215) [six months’ actual suspension; mitigation including restitution and a history of alcohol and chemical dependency and psychological problems]; McKnight v. State Bar (1991) 53 Cal.3d 1025 [one year actual suspension; mitigation including a history of manic depression.) Based on the standards and case law, a one-year actual suspension is the appropriate level of discipline in this matter.
(Effective January
1, 2011)
Case Number(s): 09-O-13248, 09-0-14337
In the Matter of: Ellen S. Rodin
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.
<<not>> 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.
(Effective January 1, 2011)
Case Number(s): 09-0-13248, 09-0-14337
In the Matter of: Ellen S. Robin
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: Ellen S. Robin, William Simpich, Jr, Susan I Kagan
Respondent: Ellen S. Robin
Date: 08/05/2011
Respondent’s Counsel: William Simpich, Jr
Date: 08/05/2011
Deputy Trial Counsel: Susan I Kagan
Date: 08/09/2011
Case Number(s): 09-O-13248, 09-O-14337
In the Matter of: Ellen S. Rodin
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.
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: Lucy Armendariz
Judge of the State Bar Court: Lucy Armendariz
Date: August 16, 2011
(Effective January 1, 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 San Francisco, on, August 16, 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:
WILLIAM MORRIS SIMPICH, JR.
ATTORNEY AT LAW
1736 FRANKLIN ST 10TH FL
OAKLAND, CA 94612
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN I. KAGAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on August 16, 2011
Signed by: Bernadette C.O. Molina
Case Administrator: Bernadette C.O. Molina
State Bar Court