Case Number(s): 10-O-00366; 10-O-03134
In the Matter of: David S. Silber, Bar # 176377, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Donald R. Steedman,
180 Howard St.
San Francisco, CA 94105
(415/538-2345)
Bar # 104927
Counsel for Respondent: Jonathan I. Arons,
221 Main Street, Suite 740
San Francisco, CA 94105
(415/957-1818)
Bar # 111257
Submitted to: Settlement Judge
Filed: July 11, 2011 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 June 5, 1995.
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 12 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
COUNT ONE
Case No. 10-O-00366
Rules of Professional Conduct, rule 3-110(A)
[Failure to Perform with Competence]
1. Respondent wilfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, and repeatedly failing t~o perform legal services with competence, as follows:
2. On or about October 2, 2008, Steven Perkins employed respondent to file and prosecute a lawsuit asserting Perkin’s interest as a beneficiary of his deceased parents’ testimonial trust. Respondent agreed to pursue Perkins’ claim that the current trustee (Perkin’s sister) and other family members had mishandled the trust and greed to assist Perkins in recovering the portion of the trust estate to which he was entitled.
3. At the time of employment, Perkins paid respondent an advance fee of $2,500 and delivered him papers and files related to the trust issues.
4. Thereafter, and continuing until the termination of his employment on or about October 28, 2009, respondent failed to file the lawsuit and failed to pursue Perkin’s claim in any other way. At some point, respondent prepared a draft complaint, but he did not serve the complaint and did not provide his client with a copy of the draft until long after respondent’s employment terminated.
5. By failing to file the lawsuit and failing to otherwise pursue Perkin’s claim, respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence.
COUNT TWO
Case No. 10-O-00366
Business and Professions Code, section 6068(m)
[Failure to Respond to Client Inquiries]
6. Respondent wilfully violated Business and Professions Code, section 6068(m), by failing to respond promptly to reasonable status inquiries of a client in a matter in which respondent had agreed to provide legal services, as follows:
7. The allegations contained in Count One are hereby incorporated by this reference.
8. Between October 2, 2008, and October 2009, Perkins and his wife made repeated telephone calls to respondent, sent repeated emails to respondent, and transmitted many messages to respondent via the attorney who had originally referred Perkins to respondent. During the first approximately nine to ten months of employment, Perkins and his wife left such messages approximately every two weeks. During August and September 2009, Perkins and his wife left such messages much more frequently, sometimes leaving multiple messages each day. Each of these calls, emails, and messages were reasonable client inquiries concerning the status of Perkins’ matter. Respondent received all of these messages, but only responded on a few occasions. On these occasions, respondent promised to work on the case. On one occasion, respondent admitted that he was dodging the calls, which in fact he was doing.
9. By failing to respond to most of the client status inquiries, respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which respondent had agreed to provide legal services.
COUNT THREE
Case No. 10-O-00366
Rules of Professional Conduct, rule 3-700(D)(2)
[Failure to Refund Unearned Fees]
10. Respondent willfully violated Rules of Professional Conduct, rule 3-700(D)(2), by failing to refund promptly any part of a fee paid in advance that has not been earned, as follows:
11. The allegations contained in Counts One and Two are hereby incorporated by this reference.
12. In or about late October, 2009, Perkins employed new counsel, John W. D’Ewart. On or about October 28, 2009, D’Ewart sent respondent a letter notifying respondent that his employment had terminated, requesting that respondent deliver all client files and papers, and requesting that respondent return the unearned portion of the $2,500.00 attorney fee, and requesting an accounting. Respondent received this letter shortly thereafter but did not immediately respond.
13. At the time his employment was terminated, respondent had not earned any substantial portion of the attorney fee he had received.
14. On or about November 12, 2009, D’Ewart sent respondent a second letter repeating the requests for the file materials, an accounting and a refund. Respondent received this letter shortly thereafter.
15. In or about late November 2009, respondent received notice that the State Bar was investigating Perkins’ discipline complaint against respondent.
16. On or about December 17, 2009, respondent sent D’Ewart some file materials, including the complaint respondent had drafted. No refund was included. The documents were not accompanied by a cover letter.
17. On or about December 23, 2009, D’Ewart sent respondent a letter again requesting the refund and requesting some additional documents believed to be in Silber’s possession. Respondent received this letter shortly after it was sent. Respondent also received telephone messages left by D’Ewart at about this time
but did not return the calls.
18. By letter dated February 6, 2010, respondent sent a refund check to D’Ewart for $2,500. Respondent stated in his letter that he did not have further documents.
19. By failing to return the unearned attorney fee until on or about February 6, 2010, respondent failed to refund promptly any part of a fee paid in advance that has not been earned.
COUNT FOUR
Case No. 10-O-00366
Rules of Professional Conduct, rule 3-700(D)(1)
[Failure to Release File]
20. Respondent wilfully violated Rules of Professional Conduct, rule 3-700(D)(1), by failing to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property, as follows:
21. The allegations contained in Counts One through Three are hereby incorporated by this reference.
22. By failing to release any of Perkin’s files and records until December 17, 2009, respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property.
COUNT FIVE
Case No. 10-O-03134
Rules of Professional Conduct, rule 3-700(D)(2)
[Failure to Refund Unearned Fees]
27. Respondent willfully violated Rules of Professional Conduct, rule 3-700(D)(2), by failing to refund promptly any part of a fee paid in advance that has not been earned, as follows:
28. On or about December 15, 2009, Susan Schlueter employed respondent to file a motion for an ordered allowing Schlueter visitation with her minor-child. At that time, Schlueter paid respondent $1,850 in advance as attorney fees.
29. On or about December 21, 2009, Schlueter notified respondent that his employment had been terminated. Respondent received this notification.
30. As of the termination of employment, respondent had not earned any substantial portion of the advance fee and owed Schlueter a substantial refund.
31. Respondent failed to make any refund to Schlueter until at least December, 2010, and, thus, failed to promptly return the unearned portion of the advanced attorney fee.
32. By failing to make any refund, respondent failed to refund promptly any part of a fee paid in advance that has not been earned.
DISCLOSURE OF PENDING INVESTIGATIONS
The disclosure mentioned in paragraph A(7) of this stipulation was June 8, 2011.
SUPPORTING AUTHORITY
The parties agree that a period of stayed suspension is appropriate given respondent’s lack of prior discipline (Standard 1.2(e)(i)) and respondent’s cooperation and willingness to settle this matter at an early stage (Standard 1.2(e)(v)).
Case Number(s): 10-O-00366
In the Matter of: David S. Silber
<<not>> checked. a. Unless Respondent has been terminated from the Lawyer Assistance Program (“LAP”) prior to respondent’s successful completion of the LAP, respondent must comply with all provisions and conditions of respondent’s Participation Agreement with the LAP and must provide an appropriate waiver authorizing the LAP to provide the Office of Probation and this court with information regarding the terms and conditions of respondent’s participation in the LAP and respondent’s compliance or non-compliance with LAP requirements. Revocation of the written waiver for release of LAP information is a violation of this condition. However, if respondent has successfully completed the LAP, respondent need not comply with this condition.
checked. b. Respondent must obtain psychiatric or psychological help/treatment from a duly licensed psychiatrist, psychologist, or clinical social worker at respondent’s own expense a minimum of ** times per month and must furnish evidence to the Office of Probation that respondent is so complying with each quarterly report. Help/treatment should commence immediately, and in any event, no later than thirty (30) days after the effective date of the discipline in this matter. Treatment must continue for the period of probation or until a motion to modify this condition is granted and that ruling becomes final.
If the treating psychiatrist, psychologist, or clinical social worker determines that there has been a substantial change in respondent’s condition, respondent or Office of the Chief Trial Counsel may file a motion for modification of this condition with the Hearing Department of the State Bar Court, pursuant to rule 5.300 of the Rules of Procedure of the State Bar. The motion must be supported by a written statement from the psychiatrist, psychologist, or clinical social worker, by affidavit or under penalty of perjury, in support of the proposed modification.
checked. c. Upon the request of the Office of Probation, respondent must provide the Office of Probation with medical waivers and access to all of respondent’s medical records. Revocation of any medical waiver is a violation of this condition. Any medical records obtained by the Office of Probation are confidential and no information concerning them or their contents will be given to anyone except members of the Office of Probation, Office of the Chief Trial Counsel, and the State Bar Court, who are directly involved with maintaining, enforcing or adjudicating this condition.
Other:
Case Number(s): 10-O-00366
In the Matter of: David S. Silber
checked. a. Within three months 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.
<<not>> checked. b. Within days/ months/two (2) 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 eight (8) 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.)
<<not>> 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 year(s). 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:
Case Number(s): 10-O-00366
In the Matter of: David S. Silber
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: David S. Silber
Date: 6/28/11
Respondent’s Counsel: Jonathan I. Arons
Date: 6/28/11
Deputy Trial Counsel: Donald R. Steedman
Date: 6/29/11
Case Number(s): 10-O-00366
In the Matter of: David S. Silber
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:
Judge of the State Bar Court: Lucy Armendariz
Date: 7/11/11
[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:
checked by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows;
JONATHAN IRWIN ARONS
LAW OFFICE JONATHAN I ARONS
221 MAIN STREET SUITE 740
SAN FRANCISCO, CALIFORNIA 94105
checked by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DONALD STEEDMAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on July 11, 2011.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court