Case Number(s): 09-O-14644; 09-O-19176
In the Matter of: Robert Deller, Bar # 134311, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Katherine Kinsey, Deputy Trial Counsel
State Bar of California
1149 S. Hill Street
Los Angeles, CA 90015
213-765-1503
Bar #183740
Counsel for Respondent: James O. Heiting,
Heiting & Irwin
5885 Brockton Avenue
Riverside, CA 92506
951-682-6400
Bar #68996
Submitted to: Settlement Judge
Filed: May 3, 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.
1. Respondent is a member of the State Bar of California, admitted June 14, 1988.
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 11 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 and 2013. (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: ANDREW F. BEACH
CASE NUMBER(S): 09-O-16851; 10-O-04039
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 November 2, 2010 and the facts and/or conclusions of law contained in this stipulation.
Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further 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.
B.
FACTS AND CONCLUSIONS OF LAW.
ANDREW F. BEACH ("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.
Facts Supporting Culpability:
1. Respondent was admitted to the practice of law in the State of California on
December 2, 2003, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California.
Case No. 09-O-16851 (Complainant: James Nakama)
2. In March 2009 James Nakama & Mary Nakama (the "Nakamas"), California
residents, were telephoned by a representative of Wisdom Financial Services a/k/a Community Helpline (herein "WFS"), who offered them services related to their mortgage loan. WFS is not a law firm, but its representative informed the Nakamas that it worked with Respondent.
3. Subsequently, on March 25, 2009, a representative of WFS visited the Nakamas at
their home in Westminster, California. After speaking with the WFS representative, the Nakamas employed Respondent to represent them in certain matters relating to their home mortgage loan, including negotiations with the Nakamas’ lender and a modification of their home mortgage loan.
4. The WFS representative was an agent of Respondent, for purposes of signing up
new clients seeking mortgage loan-related services. Respondent’s duty was to supervise all activities that WFS undertook on his behalf.
5. On March 25, 2009, the Nakamas signed an agreement for legal services to be
performed by Respondent (the "Agreement"), provided by the WFS representative, and paid advance legal fees of $3,500.00. The WFS representative instructed the Nakamas to make the check payable to Respondent.
6. The Agreement with Respondent was for legal services. It was entitled "Attorney
Engagement Agreement." In it, the Agreement indicated, among other things: (1) that "The Law Offices of Andrew F. Beach ... will provide legal services to the person(s) signing this Agreement ..... " (2) that the clients wish to employ the attorney (Respondent) to negotiate with the client’s lenders, (3) that legal services would be performed, (4) that the client would be paying a "retainer fee," (5) there was an "attorney/client relationship," and (6) calculation of work performed shall be made at $250.00 per hour if the client terminates the Agreement early.
Respondent signed the Agreement as "Attorney."
7. Both the telephone and subsequent in-person solicitation by the WFS representative
to the Nakamas were unsolicited. In addition, the Nakamas had no prior professional or family relationship with Respondent.
8. The WFS representative signed up the Nakamas as Respondent’s client, and the
advance fees were paid to Respondent. In return Respondent paid WFS approximately
$3,250.00 of the $3,500.00 advance fee, as was his usual pattern and practice in the loan modification cases that he handled at that time.
9. Respondent was aware of, and approved, the arrangements whereby WFS acted as
his agent in signing up clients and he knowingly entered into the arrangement to keep a nominal fee and pass the majority on to WFS.
Case No. 10-O-04039 (Complainant: Gregory B. Dahl)
10. In May 2009, Gregory Dahl and his wife, Kim Dahl (the "Dahls’,), employed
Respondent "to negotiate with Client’s [the Dahl’s] lenders with the goal of obtaining a loss mitigation solution such that client may be able to restructure Client’s debt" with regard to real property.
11. The Agreement with Respondent was for legal services. It was entitled "Attorney
Engagement Agreement." In it, the Agreement indicated, among other things: (1) that "The Law Offices of Andrew F. Beach ... will provide legal services to the person(s) signing this Agreement ..... " (2) that the clients wish to employ the attorney (Respondent) to negotiate with the client’s lenders, (3) that legal services would be performed, (4) that the client would be paying a "retainer fee," (5) there was an "attorney/client relationship," and (6) calculation of work performed shall be made at $250.00 per hour if the client terminates the Agreement early.
Respondent signed the Agreement as "Attorney."
12. At the time they employed Respondent, the Dahls paid an advance legal fee of
$2,900.00. In return, Respondent paid WFS approximately $2,650.00 of the $2,900.00 advance fee, as was his usual pattern and practice in the loan modification cases that he handled at that time.
13. Over the course of the next several months the Dahls dealt exclusively with WFS
with respect to their prospective loan modification.
14. WFS, and not Respondent, performed any work related to the loan modification process for the Dahls.
Conclusions of Law
15. By failing to supervise WFS and allowing the telephonic and in-person solicitation
of the Nakamas to occur, Respondent failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
16. By paying WFS the vast majority of fees paid for the Nakama’s legal services,
Respondent compensated and gave something of value to a person for securing his employment, Respondent wilfully violated Rules of Professional Conduct, rule 1-320(B).
17. By sharing the Nakamas legal fees with WFS, Respondent shared legal fees with a
person who is not a lawyer, Respondent wilfully violated Rules of Professional Conduct, rule 1320(A).
18. By sharing the Dahl’s legal fees with WFS, Respondent shared legal fees with a
person who is not a lawyer Respondent wilfully violated Rules of Professional Conduct, rule 1320(A).
C. FACTS SUPPORTING AGGRAVATION.
1. Multiple Acts of Misconduct [Standard 1.2(b)(ii)]
Respondent’s misconduct involved two (2) separate client matters and four violations of
the Rules of Professional Conduct constitute multiple acts of misconduct.
D. FACTS SUPPORTING MITIGATION.
1. Candor/Cooperation [Standard 1.2(e)(v)]
Respondent cooperated in that he has stipulated to facts, conclusions of law and level of discipline.
2. Good Character [Standard 1.2(e)(vi)]
Respondent has provided to the State Bar references that demonstrate his good character, attested to by a range of references in the legal and general communities and who are aware of the full extent of the member’s misconduct.
E. AUTHORITIES SUPPORTING DISCIPLINE.
Applicable Standards:
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) provides that if two or more acts of misconduct are found in the same
proceeding, the sanction imposed shall be the more or most severe of the different applicable sanctions. Standard 1.6(b) provides that a greater or lesser degree of discipline than the appropriate sanction prescribed by these standards shall be imposed or recommended, depending on the net effect of the aggravating and mitigating circumstances, if any.
Standard 2.4(b), in relevant part, provides that culpability of a member of wilfully failing
to perform services in an individual matter or matters not demonstrating a pattern of misconduct shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.10 provides that the culpability of a member for violation of any provision of
the Business and Professions Code or any Rule of Professional Conduct not specified in the Standards shall result in reproval or suspension, according to 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.
Based on Standard 1.6(a), the most severe sanction for Respondent’s misconduct herein is found in Standard 2.4(a) and in Standard 2.10. Here, Standard 2.4(a) applies because Respondent failed to perform services in the Nakama matter by failing to supervise WFS’s activities. Also, Standard 2.10 applies because Respondent paid compensation to WFS for a referral of employment and shared his legal fees in the Nakama matter. In addition, Respondent shared his legal fees with WFS in the Dahl matter.
Moreover, the mitigating circumstances discussed above do not justify a deviation from
the Standards or a discipline less than suspension. The parties acknowledge that Respondent’s misconduct herein, and the aggravating circumstances surrounding that misconduct warrants suspension.
F. PENDING PROCEEDINGS.
The disclosure date referred to on page two, paragraph A. (7) was March 29, 2011.
Case Number(s): 09-O-16851, et al.
In the Matter of: Andrew F. Beach
<<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.
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 6 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.)
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 two (2) years. 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:
G. COSTS.
Respondent acknowledges that the Office of Chief Trial Counsel has informed him that
as of March 29, 2011, the estimated prosecution costs in this matter are approximately
$5,609.00. Respondent acknowledges that this figure is an estimate only. 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.
H. DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. 10-O-04039 Count Five
Alleged Violation
Rule 3-110(A)
09-O-16851; 10-O-04039 Six B&P §6106
Case Number(s): 09-O-16851, et al.
In the Matter of: Andrew F. Beach
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: Andrew F. Beach
Date: April 12, 2011
Respondent’s Counsel: Edward O. Lear
Date: April 14, 2011
Deputy Trial Counsel: Ashod Mooradian
Date: April 14, 2011
Case Number(s): 09-O-16851
In the Matter of: Andrew F. Beach
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: April 29, 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 May 3, 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:
JAMES OTTO HEITING ESQ
HEITING & IRWIN
5885 BROCKTON AVE
RIVERSIDE, CA 92506
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Katherine D. Kinsey, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles
, California, on May 3, 2011.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court