Case Number(s): 09-O-13337 and 09-O-14808
In the Matter of: Mark Steven Brown, Bar # 22551, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Brandon K. Tady,
Deputy Trial Counsel
Office of the Chief Trial Counsel
1149 South Hill Street
Los Angeles, California 90015-2299
Bar # 83045
Counsel for Respondent: In Pro Per Respondent
Mark Steven Brown
Brown Law Firm
1913 E. 17th Street, Suite 218
Santa Ana, California 92705
Bar# 225511
Submitted to: Settlement Judge
<<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 5, 2003.
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 15 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: Three billing cycles following the effective date of the Supreme Court’s Order in this matter. (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.
See Stipulation of Facts and Conclusions of Law attached hereto.
her files including all original documents that Ms. Gave to Respondent. Respondent is required to return all of Ms. La Morte’s files to her not later than 30 days after the effective date of the Supreme Court’s Order imposing discipline in this matter.
IN THE MATTER OF: Mark Steven Brown
CASE NUMBER(S): 09-0-13337 and 09-O-14808
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 in the following cases.
Case No. 09-0-13337 (Complainant: Kevin Schrum)
FACTS (Case No. 09-0-13337, Counts One, Two, and Three of the NDC):
1. On June 5, 2003, Mark Steven Brown ("Respondent") was admitted to the practice of law in the State of Califomia. Respondent was a member of the State Bar of California ("State Bar") at all times pertinent to these charges and he is currently a member of the State Bar.
2. On January 8, 2009, Kevin Schrum ("Schrum") met with the Respondent for the purpose of employing him to help negotiate a reduction of two credit card debts worth approximately $80,000. At Schrum’s initial meeting with Respondent, Schrum agreed to pay Respondent a fiat fee of $5,000. Thereafter, Schrum signed a fee agreement with Respondent which specified that Schrum was to pay a fee of $5,000 for the retention of Respondent’s services but did not specify whether there would be any
further charge for Respondent’s services.
3. On January 23, 2009, Schrum paid Respondent $5,000 for Respondent’s legal services.
4. Respondent did not contact Schrum’s creditors or negotiate a reduction of Schrum’s credit card debts, as he was employed to do.
5. During the period from January 23, 2009, to May 5, 2009, Schrum sought to learn the status of his case by telephoning Respondent. On a few occasions, Schrum was able to speak to Respondent by telephone, and Respondent advised Schrum that Respondent would be in a better position to negotiate Schrum’s debts after they were turned over to a second party recovery service.
6. Schrum also sought to communicate with Respondent by email, but he misread Respondent’s email address and sent emails to the wrong address. On May 5, 2009, Schrum received a response to his email which he believed came from Respondent and which stated that Schrum should learn to spend only what he could afford and that he was on his own. Respondent did not send this response. However,
Schrum believed that Respondent had withdrawn from representation.
7. On May 18, 2009, Schrum sent a letter to Respondent requesting a refund of the $5000 in fees Schrum paid to Respondent. Respondent received Schrum’s letter. On May 19, 2009, Respondent responded by letter to Schrum denying that he had sent Schrum an email withdrawing from representation and declining to refund any of the fees.
8. Respondent did not provide any accounting to show how he earned any of the $5,000 received from Schrum. Respondent claimed that the fees were a true retainer earned upon receipt.
9. Respondent did not provide any services of value to Schrum. Respondent did not earn any of the $5,000 in fees received from Schrum.
10. Respondent did not refund any of the $5,000 to Schrum.
11. Schrum requested fee arbitration through the Orange County Bar Association. On August 26, 2010, Schrum appeared for an arbitration hearing, but Respondent informed the Orange County Bar Association staff that he was declining to participate. By decision dated October 29, 2010, the arbitrator ordered that Respondent refund $5,000 to Schrum along with interest and costs for a total of $6,411.96 if paid within 30 calendar days of the award. To date, Respondent has not paid the award to Schrum.
CONCLUSIONS OF LAW (Case No. 09-0-13337).
12. By failing to contact Schrum’s creditors or negotiate a reduction of Schrum’s credit card debts, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in wilful violation of California Rules of Professional Conduct, rule 3-110(A).
13. By failing to provide any accounting to show that Respondent had earned any of the $5,000 fee received from Schrum, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession in wilful violation of Rules of Professional Conduct, rule 4100(B)(3).
14. By not refunding any part of the $5,000 in unearned fees, Respondent failed to refund promptly all or any part of a fee paid in advance that had not been earned in wilful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Case No. 09-0-14808 (Complainant: Dorothy La Morte)
FACTS (Case No. 09-0-14808, Counts Four, Five, Six, Seven, Eight, and Nine Of The NDC).
15. On April 21, 2009, Dorothy LaMorte ("LaMorte") hired Respondent to represent her in a civil complaint she previously filed in pro per in the Orange County Superior Court entitled LaMorte vs Baltes, case no. 07CC 19494 ("Civil Matter"). At that time, LaMorte paid Respondent $2,500 in advanced fees and provided Respondent with her file related to the civil matter.
16. The Civil Matter concerned LaMorte’s Petition to set aside an unfavorable binding fee arbitration award. LaMorte retained Respondent shortly after the Court denied her request for a continuance of the hearing on her Petition scheduled for April 27, 2009.
17. On April 27, 2009, Respondent substituted into the Civil Matter as La Morte’s attorney and he appeared before the court on that date to request a continuance of the April 27, 2009 hearing. On April 27, 2009, Respondent also requested leave of court to file Points and Authorities. On April 27, 2009, the court continued the hearing ofLa Morte’s Petition to June 15, 2009, and set a due date of May 15, 2009 for Respondent to file Points and Authorities.
18. During the period from April 21, 2009, to June 16, 2009, LaMorte mailed several letters to Respondent and called his office numerous times, each time leaving a message for Respondent to return her call. Respondent received LaMorte’s letters but did not respond to them. Respondent did not return LaMorte’s telephone calls.
19. Respondent did not file Points and Authorities in LaMorte’s case. On June 15, 2009, Respondent did not appear in court for the hearing ofLa Morte’s Petition. On June 15, 2009, the court denied LaMorte’s Petition to vacate the arbitration award.
20. On or about June 16, 2009, LaMorte sent Respondent a faxed communication in which she asked him to return all of her files. Respondent received but did not respond to LaMorte’s request.
21. Respondent did not release LaMorte’s file to her.
22. On June 16, 2009, LaMorte sent a letter via certified mail and fax to Respondent requesting that Respondent provide an accounting and refund of unearned fees. Respondent received LaMorte’s request. Respondent did not provide LaMorte with an accounting for the $2,500 in fees received from LaMorte or otherwise respond to her request.
23. Respondent did not provide any services of value to LaMorte. Respondent did not earn any of the $2,500 in fees received from LaMorte.
24. Respondent did not refund to LaMorte any of the $2,500 unearned fees.
25. On or about July 27, 2009, LaMorte submitted a complaint to the State Bar regarding Respondent’s conduct in her case.
26. On or about October 21, 2009, a State Bar investigator mailed a letter to Respondent at his State Bar membership address requesting a response to allegations raised by LaMorte’s complaint. Respondent received the letter.
27. On or about November 3, 2009, Respondent replied to the investigator’s letter with a letter requesting an additional 45 days in which to respond. On or about November 4, 2009, the investigator mailed a letter to Respondent agreeing to an extension of time for Respondent to respond to LaMorte’s complaint to on or about December 21, 2009. Respondent received the letter. Respondent did not provide the State Bar with a response to LaMorte’s complaint.
28. On or about January 14, 2010, the State Bar investigator mailed a second letter to Respondent at his State Bar membership address requesting that Respondent provide a response by January 28, 2010 to the allegations raised by LaMorte’s complaint. Respondent received the letter. Respondent did not provide the State Bar with a response to LaMorte’s complaint.
CONCLUSIONS OF LAW (Case no. 09-0-14808).
29. By failing to respond to LaMorte’s faxes, letters, or telephone calls concerning her pending civil matter, Respondent willfully failed to respond to his client’s reasonable status inquiries in willful violation of California Business and Professions Code, section 6068(m).
30. By failing to file or serve Points and Authorities, to appear before the court for a hearing that was rescheduled at his request, or otherwise advise LaMorte concerning her legal options, Respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
31. By not releasing LaMorte’s file to her upon her request, Respondent failed to promptly release to the client, upon termination of employment and at the request of the client, all of the client’s papers and property in wilful violation of Rules of Professional Conduct, rule 3-700(D)(1).
32. By not providing LaMorte with an accounting for the $2,500 in fees Respondent received from LaMorte, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession in wilful violation of Rules of Professional Conduct, rule 4-100(B)(3).
33. By not refunding any part of the $2,500 unearned fees to LaMorte, Respondent failed to refund promptly any part of a fee paid in advance that had not been earned in wilful violation of Rules of Professional Conduct, rule 3-700(D)(2),
34. By not providing the State Bar investigator with a response to LaMorte’s complaint, Respondent failed to cooperate and participate in the disciplinary investigation pending against him in willful violation of Business and Professions Code, section 6068(i).
DISMISSALS.
None.
CIRCUMSTANCES IN AGGRAVATION.
1. Respondent’s misconduct caused harm to Mr. Schrum and Ms. La Morte because he failed to perform legal services with competence in each of their matters. In Mr. Schrum’s matter, Respondent’s failure to negotiate a reduction of Mr. Schrum’s credit card bills caused the two credit card companies to make repeated telephone calls and to send more than one letter to Mr. Schrum demanding payment. Mr. Schrum’s two credit card accounts also were sent to collection. In Ms. La Morte’s matter, espondent’s
failure to file points and his failure to attend the hearing of Ms. La Morte’s Petition did not advance her argument that the arbitration award should be vacated. Respondent also failed to refund to Mr. Schrum and to Ms. La Morte unearned fees.
2. In both the Schrum and La Morte matters, Respondent demonstrated indifference toward rectification or atonement to Mr. Schrum and Ms. La Morte. Both Mr. Schrum and Ms. La Morte asked Respondent to refund unearned fees which Respondent did not do. Respondent also failed to participate in the Orange County Bar Association fee arbitration with Mr. Schrum and Respondent did not pay the arbitration award made against him.
3. Respondent committed multiple acts of misconduct which are identified in the NDC and in this Stipulation.
CIRCUMSTANCES IN MITIGATION.
1. Respondent is entitled to some, although not full, mitigating credit for years in practice without prior State Bar discipline. Respondent is not entitled to full mitigating credit because he was in practice for approximately six (6) years when he committed the stipulated misconduct.
2. Respondent is entitled to some, although not full, mitigating credit because he entered into this Stipulation of Facts, Conclusions of Law, and Disposition and Order Thereon. Respondent is not entitled to full mitigating credit because he did not cooperate with the State Bar in its investigation of La Morte’s State Bar complaint.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.3 provides that the purposes of sanctions of professional misconduct are protection of the public, the courts, and the legal profession, the maintenance of high professional standards by attorneys, and the preservation of public confidence in the legal profession.
Standard 1.6 provides that where a member is found culpable of two or more acts of professional misconduct and different sanctions are prescribed by these standards for said acts, the sanction imposed shall be the more or most severe of the different applicable sanctions.
Standard 2.4 (a) provides that culpability of a member of willfully failing to perform legal services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of willfully failing to communicate with a client shall result in reproval or suspension depending on the extent of the misconduct and the degree of harm to the client,
Standard 2.6 provides that culpability of a member of violation B&P Code, section 6068 shall result in disbarment or suspension depending on the gravity of the offense or harm, if any, to the victim with due regard to the purposes of imposing discipline set forth in Standard 1.3.
The discipline of six (6) months actual suspension, two years stayed suspension, and two years probation with conditions including financial restitution is an appropriate level of discipline consistent with the Standards.
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 March 7, 2011 and the facts contained in this Stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to a formal hearing on any charge not included in the Notice of Disciplinary Charges.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was June 27, 2011.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of June 27, 2011, the prosecution costs in this matter are $ 6116.00. 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-13337
In the Matter of: Mark Steven Brown
a. Restitution
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: Kevin Schrum
Principal Amount: $5,000
Interest Accrues From: May 18, 2009
2. Payee: Dorothy La Morte
Principal Amount: $2,500
Interest Accrues From: June 15, 2009
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than 30 days before the last day of his six (6) month actual suspension.
<<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.
<<not>> 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-13337 and 09-O-14808
In the Matter of: Mark Steven Brown
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: Mark Steven Brown and Brandon K. Tady
Respondent: Mark Steven Brown
Date: 7/8/11
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Brandon K. Tady
Date: 7/11/11
Case Number(s): 09-O-13337 and 09-O-14808
In the Matter of: Mark Steven Brown
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.
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: 7/25/11
[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 24, 2012, 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:
by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:
Mark S. Brown
Brown Law Firm
1913 East 17th Street Suite 218
Santa Ana, California 92705
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Brandon Keith Tady, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in, San Francisco, California on July 26, 2011.
Signed by:
Case Administrator
State Bar Court