Case Number(s): 10-O-0070 [10-O-00071; 10-O-00077; 10-O-04549]
In the Matter of: Jordan Morgenstern, Bar # 134046, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Deputy Trial Counsel
180 Howard Street
San Francisco, CA 94105
(415) 538-2037
Bar # 214209
Counsel for Respondent: Carol M. Langford, 100 Pringle Ave #570
Walnut Creek, CA 94596
(925) 938-3870
Bar # 124812
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
Filed: December 16, 2010.
<<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 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):
checked. Costs are added to membership fee for calendar year following effective date of discipline.
<<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.
FACTS AND CONCLUSIONS OF LAW
Case No. 10-O-00070 (The Mata matter)
Facts
1. On October 23, 2008, respondent was hired by Hector Mata ("Mata") to represent Mata in a criminal matter. On the same date, Mata paid respondent $35,000.00 as advanced fees.
2. On July 3, 2009, Mata sent a letter to respondent requesting an accounting. Soon thereafter, respondent received Mata’s July 3, 2009 letter, but failed to provide an accounting.
3. It was not until April 16, 2010, and only after the State Bar became involved in the matter, that respondent provided an accounting to Mata for the $35,000.00 paid as advanced fees.
Conclusions of Law
By failing to provide an accounting of his fees to Mata for more than nine months after one was requested, respondent failed to render appropriate accounts to a client regarding all funds coming into respondent’s possession in willful violation of rule 4-100(B)(3) of the Rules of Professional Conduct.
Case No. 10-O-00071 (The Allasia matter)
Facts
1. On August 5, 2009, respondent was hired by John Allasia ("Allasia") to represent Allasia in a civil matter. On the same date, Allasia paid respondent $2,000.00 as advanced fees in the civil matter.
2. As of August 27, 2009, respondent had not earned any portion of the $2,000.00 paid as advanced fees by Allasia. On August 27, 2009, Allasia sent a letter to respondent terminating respondent’s services and requested a refund of unearned fees. Soon thereafter, respondent received Allasia’s August 27, 2009 letter, but failed to provide a refund of unearned fees.
3. It was not until February 9, 2010, and only after the State Bar became involved in the matter, that respondent refunded $2,000.00 in unearned fees to Allasia.
Conclusions of Law
By failing to refund $2,000.00 in unearned fees to Allasia for more than five months after Allasia first requested the refund, respondent failed to promptly refund unearned fees in willful violation of rule 3-700(D)(2) of the Rules of Professional Conduct.
Case No. 10-0-00077 (The Bott matter)
Facts
1. On April 26, 2004, respondent was hired by Maya Bott ("Bott") to represent Bott in a marital dissolution matter. On the same date, Bott paid respondent $5,000.00 as advanced fees in the marital dissolution matter.
2. On April 27, 2004, one day after hiring respondent, Bott decided not to proceed with the marital dissolution. On the same date, Bott terminated respondent’s services and requested a refund of unearned fees. As of April 27, 2004, respondent had not earned any portion of the $5,000.00 paid as advanced fees by Bott. Respondent received notice of Bott’s request for a refund of unearned fees soon after it was made, but failed to refund any portion of the $5,000.00 to Bott.
3. On September 7, 2007, Bott sent a letter to respondent again requesting a refund of the $5,000.00 in unearned fees. Soon thereafter, respondent received the September 7, 2007 letter, but failed to refund any portion of the $5,000.00 to Bott.
4. It was not until March 24, 2008, and only after the State Bar became involved in the matter, that respondent refunded $5,000.00 in unearned fees to Bott.
Conclusions of Law
By failing to refund $5,000.00 in unearned fees to Bott for approximately four years after Bott first requested a refund, respondent failed to promptly refund unearned fees in willful violation of rule 3-700(D)(2) of the Rules of Professional Conduct.
Case No. 10-0-04549 (The Rogers matter)
Facts
1. On May 29, 2007, respondent was hired by Brenda and James Rogers ("the Rogers") to represent them with planning/zoning issues against the city of South Lake Tahoe. At the time of hire, respondent knew that the Rogers had not exhausted their administrative remedies on the planning/zoning issues. Respondent also knew that the Rogers were not time-barred from pursuing administrative remedies. However, instead of taking any action to pursue administrative remedies on behalf of the Rogers, respondent filed a civil complaint in the matter, Rogers v. City of South Lake Tahoe, El Dorado Superior Court Case No. SC20080086 ("civil matter").
2. Thereafter, the defendants in the civil matter filed a demurrer to the complaint based on respondent’s failure to state a cause of action. Respondent then filed a first amended complaint, second amended complaint and third amended complaint in the civil matter. The defendants filed demurrers to each amended complaint based on respondent’s failure to state a cause of action. On April 17, 2009, the court in the civil matter sustained the defendant’s demurrer to the third amended complaint without leave to amend based on respondent’s failure to state a cause of action.
4. On April 29, 2009, the Rogers sent a letter to respondent terminating his services and requesting return of their client file. Soon thereafter, respondent received the April 29, 2009 letter and returned a portion of the client file to Rogers. At that time, respondent failed to return the entire client file to the Rogers.
5. It was not until November 2010, that respondent returned the entire client file to the Rogers.
Conclusions of Law
1. By failing to take any action to pursue administrative remedies on behalf of the Rogers, and by failing to state a cause of action in the complaint and the first, second and third amended complaints, which resulted in the loss of his clients’ case, respondent intentionally, recklessly and repeatedly failed to perform legal services with competence in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
2. By failing to promptly return the entire client file to the Rogers, respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property in willful violation of rule 3-700(D)(1) of the Rules of Professional Conduct.
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A (7) was November 22, 2010.
STATE BAR ETHICS SCHOOL
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the State Bar has informed respondent that as of November 22, 2010, the estimated prosecution costs in this matter are approximately $3,840.00. 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)(ii). Respondent’s five counts of misconduct represent multiple acts of wrongdoing.
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(i). Respondent has been practicing law since 1988, and has no prior record of discipline.
Standard 1.2(e)(iv). Respondent suffered from extreme difficulties in his personal life which expert testimony would establish were directly responsible for the misconduct and have since been resolved. During the time of the misconduct, respondent was in the midst of a divorce. Respondent has since resolved these issues.
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 his misconduct.
SUPPORTING AUTHORITY
Standard 2.4(b) requires a reproval or suspension for a respondent who has wilfully failed to perform services for which he was retained.
Standard 2.10 requires that a violation of any provision of the Rules of Professional Conduct not specified in the standards (e.g., rules 3-700(D)(1) and 3-700(D)(2)) 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 purpose of imposing discipline set forth in standard 1.3.
Generally, discipline for failing to perform ranges from reproval to suspension. (See In the Matter of Aguiluz (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr: 32 [one-year stayed suspension for abandonment in single client matter; no prior record of discipline]; Van Sloten v. State Bar (1989) 48 Cal.3d 921 [six-month stayed suspension for abandonment in single client matter; no prior record of discipline].) Likewise, multiple failures to refund unearned fees have resulted in actual suspensions. (See, e.g., In the Matter of Lais (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 907 [90 days’ actual suspension for misconduct including failure to perform, failure to refund unearned fees and moral turpitude; no prior record of discipline].)
Based respondent’s extensive mitigation, which outweighs the one aggravating circumstance, a stayed suspension with a two-year probationary period will meet the purposes of attorney discipline.
Case Number(s): 10-O-0070 [10-O-00071; 10-O-00077; 10-O-04549]
In the Matter of: Jordan Morgenstern
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: Jordan Morgenstern
Date: December 3, 2010
Respondent’s Counsel: Carol Langford
Date: December 6, 2010
Deputy Trial Counsel: Susan I. Kagan
Date: December 9, 2010
Case Number(s): 10-O-00070
In the Matter of: Jordan Richard Morgenstern, State Bar No.: 134046
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 135 (b), 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: Lucy Armendariz
Date: December 16, 2010
[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 December 16, 2010, 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 San Francisco, California, addressed as follows:
CAROL LANGFORD
100 PRINGLE AVE #570
WALNUT CREEK, CA 94596
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 December 16, 2010.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court