State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
STAYED SUSPENSION; NO ACTUAL
SUSPENSION
Case Number(s): 10-O-02912
In the Matter of: Daniel R. Schwarz, Bar # 129898, 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: Samuel C. Bellicini, Fishkin
& Slatter, LLP, 1111 Civic Dr Ste 215, Walnut Creek, CA 94596, (925)
944-5600, Bar# 152191
Submitted to: Settlement Judge – State Bar Court Clerk’s
Office San Francisco.
Filed: February 17, 2011.
<<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.
A. Parties' Acknowledgments:
1.
Respondent is a member of the State Bar of California, admitted December
11, 1987. .
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 9 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.
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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.
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checked. Costs are waived in part as set forth in a separate attachment
entitled "Partial Waiver of Costs".
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checked. Costs are entirely waived.
B. Aggravating Circumstances [for definition,
see Standards for Attorney Sanctions for Professional Misconduct, standard
1.2(b)]. Facts supporting aggravating circumstances are required.
<<not>> checked. (1)
Prior record of discipline [see standard 1.2(f)].
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(a) State Bar Court case # of prior case .
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(b) Date prior discipline effective
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(c) Rules of Professional Conduct/ State Bar Act
violations:
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(d) Degree of prior discipline
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(e) If Respondent has two or more incidents of
prior discipline, use space provided below or a separate attachment entitled
“Prior Discipline”.
<<not>> checked. (2)
Dishonesty: Respondent's misconduct was surrounded by or followed by bad
faith, dishonesty, concealment, overreaching or other violations of the State
Bar Act or Rules of Professional Conduct.
<<not>> checked. (3)
Trust Violation: Trust funds or property were involved and Respondent
refused or was unable to account to the client or person who was the object of
the misconduct for improper conduct toward said funds or property.
<<not>> checked. (4)
Harm: Respondent's misconduct harmed significantly a client, the public
or the administration of justice.
<<not>> checked. (5)
Indifference: Respondent demonstrated indifference toward rectification of
or atonement for the consequences of his or her misconduct.
<<not>> checked. (6)
Lack of Cooperation: Respondent displayed a lack of candor and
cooperation to victims of his/her misconduct or to the State Bar during
disciplinary investigation or proceedings.
<<not>> checked. (7)
Multiple/Pattern of Misconduct: Respondent's current misconduct evidences
multiple acts of wrongdoing or demonstrates a pattern of misconduct.
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(8) No
aggravating circumstances are involved. See page 7
Additional aggravating circumstances:
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
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(1) No Prior
Discipline: Respondent has no prior record of discipline over many years of
practice coupled with present misconduct which is not deemed serious. See page
7.
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(2) No
Harm: Respondent did not harm the client or person who was the object of
the misconduct. See page 8.
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(3)
Candor/Cooperation: Respondent displayed spontaneous candor and
cooperation with the victims of his/her misconduct and to the State Bar during
disciplinary investigation and proceedings. See page 8
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(4)
Remorse: Respondent promptly took objective steps spontaneously
demonstrating remorse and recognition of the wrongdoing, which steps were
designed to timely atone for any consequences of his/her misconduct.
<<not>> checked. (5)
Restitution: Respondent paid $ on in restitution to without the threat or
force of disciplinary, civil or criminal proceedings.
<<not>> checked. (6)
Delay: These disciplinary proceedings were excessively delayed. The
delay is not attributable to Respondent and the delay prejudiced him/her.
<<not>> checked. (7) Good
Faith: Respondent acted in good faith.
<<not>> checked. (8)
Emotional/Physical Difficulties: At the time of the stipulated act or
acts of professional misconduct Respondent suffered extreme emotional
difficulties or physical disabilities which expert testimony would establish
was directly responsible for the misconduct. The difficulties or
disabilities were not the product of any illegal conduct by the member, such as
illegal drug or substance abuse, and Respondent no longer suffers from such
difficulties or disabilities.
<<not>> checked. (9) Severe
Financial Stress: At the time of the misconduct, Respondent suffered from
severe financial stress which resulted from circumstances not reasonably
foreseeable or which were beyond his/her control and which were directly
responsible for the misconduct.
<<not>> checked. (10) Family
Problems: At the time of the misconduct, Respondent suffered extreme
difficulties in his/her personal life which were other than emotional or
physical in nature.
checked. (11) Good Character:
Respondent's good character is attested to by a wide range of references in the
legal and general communities who are aware of the full extent of his/her
misconduct. See page 8.
D. Discipline:
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(1) Stayed
Suspension:
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(a)
Respondent must be suspended from the practice of law for a period of two (2)
years.
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checked. i. and until Respondent shows proof satisfactory to the
State Bar Court of rehabilitation and present fitness to practice and present
learning and ability in the law pursuant to standard 1.4(c)(ii) Standards for
Attorney Sanctions for Professional Misconduct.
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checked. ii. and until Respondent pays restitution as set forth in
the Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following:
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checked. (b) The above-referenced suspension is stayed.
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(2)
Probation: Respondent must be placed on probation for a period of three
(3) years, which will commence upon the effective date of the Supreme Court
order in this matter. (See rule 9.18, California Rules of Court.)
E. Additional Conditions of Probation:
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(1) During
the probation period, Respondent must comply with the provisions of the State
Bar Act and Rules of Professional Conduct.
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(2) Within
ten (10) days of any change, Respondent must report to the Membership Records
Office of the State Bar and to the Office of Probation of the State Bar of
California ("Office of Probation"), all changes of information,
including current office address and telephone number, or other address for
State Bar purposes, as prescribed by section 6002.1 of the Business and
Professions Code.
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(3) Within
thirty (30) days from the effective date of discipline, Respondent must contact
the Office of Probation and schedule a meeting with Respondent's assigned
probation deputy to discuss these terms and conditions of probation. Upon the
direction of the Office of Probation, Respondent must meet with the probation
deputy either in-person or by telephone. During the period of probation,
Respondent must promptly meet with the probation deputy as directed and upon
request.
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(4)
Respondent must submit written quarterly reports to the Office of Probation on
each January 10, April 10, July 10, and October 10 of the period of probation.
Under penalty of perjury, Respondent must state whether Respondent has complied
with the State Bar Act, the Rules of Professional Conduct, and all conditions
of probation during the preceding calendar quarter. Respondent must also state
whether there are any proceedings pending against him or her in the State Bar
Court and if so, the case number and current status of that proceeding. If the
first report would cover less than 30 days, that report must be submitted on
the next quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same
information, is due no earlier than twenty (20) days before the last day of the
period of probation and no later than the last day of probation.
<<not>> checked. (5) Respondent
must be assigned a probation monitor. Respondent must promptly review the terms
and conditions of probation with the probation monitor to establish a manner
and schedule of compliance. During the period of probation, Respondent must
furnish to the monitor such reports as may be requested, in addition to the
quarterly reports required to be submitted to the Office of Probation. Respondent
must cooperate fully with the probation monitor.
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(6) Subject
to assertion of applicable privileges, Respondent must answer fully, promptly
and truthfully any inquiries of the Office of Probation and any probation
monitor assigned under these conditions which are directed to Respondent
personally or in writing relating to whether Respondent is complying or has
complied with the probation conditions.
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(7) Within
one (1) year of the effective date of the discipline herein, Respondent must
provide to the Office of Probation satisfactory proof of attendance at a
session of the Ethics School, and passage of the test given at the end of that
session.
<<not>> checked. No Ethics
School recommended. Reason:
<<not>> checked. (8) Respondent
must comply with all conditions of probation imposed in the underlying criminal
matter and must so declare under penalty of perjury in conjunction with any
quarterly report to be filed with the Office of Probation.
<<not>> checked. (9) The
following conditions are attached hereto and
incorporated:
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checked. Substance Abuse Conditions.
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checked. Law Office Management Conditions.
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checked. Medical Conditions.
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checked. Financial Conditions.
F. Other Conditions Negotiated by the Parties:
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(1)
Multistate Professional Responsibility Examination: Respondent must
provide proof of passage of the Multistate Professional Responsibility
Examination ("MPRE"), administered by the National Conference of Bar
Examiners, to the Office of Probation within one year. Failure to pass
the MPRE results in actual suspension without further hearing until passage.
But see rule 9.10(b), California Rules of Court, and rule 5.162(A) & (E),
Rules of Procedure.
<<not>> checked. No MPRE
recommended. Reason:
<<not>> checked. (2) Other
Conditions:
Attachment language (if any):
FACTS AND
CONCLUSIONS OF LAW
FACTS
1. From
September 3, 2002 through March 4, 2010, respondent was enrolled inactive for failing
to comply with his MCLE requirements. From September 4, 2002 through October
23, 2009, respondent was suspended for failure to pay his State Bar membership
dues. From September 3, 2002, through March 4, 2010, respondent knew that he
was not permitted to practice law.
2. In May
2009, respondent was hired by an attorney ("attorney-employer"), to
work in attorney-employer’s law firm. Specifically, respondent was hired to
defend depositions for attorney-employer’s workers’ compensation clients. At the
time of hire, respondent did not inform attorney-employer of his status based
on respondent’s belief that he did not need an active law license to defend
workers’ compensation depositions. During the employment, attorney-employer was
not aware of respondent’s status. Consequently, when attorney-employer had
scheduling conflicts in two of his civil cases, he assigned respondent to
appear on his behalf. Respondent made the appearances even though he knew he
was not permitted to practice law.
CONCLUSIONS
OF LAW
By making
appearances in attorney-employer’s civil cases at a time when respondent knew
that he was not permitted to practice law, respondent held himself out as
entitled to practice law when he was not an active member of the State Bar of
California and wilfully violated Business and Professions Code sections 6125
and 6126, thereby failed to abide by and support the laws of the State of
California.
PENDING
PROCEEDINGS
The
disclosure date referred to on page two, paragraph A (7) was January 27, 2011.
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.
FACTS
SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
AGGRAVATING
CIRCUMSTANCES
There are
no aggravating circumstances.
MITIGATING
CIRCUMSTANCES
Standard 1.2(e)(i).
Respondent has been practicing law since 1987, and has no prior record of
discipline.
Standard
1.2(e)(iii). Attorney-employer’s clients were not harmed by respondent’s
misconduct.
Standard
1.2(e)(v). Respondent displayed spontaneous candor and cooperation to the State
Bar during the disciplinary proceedings.
Standard
1.2(e)(vi). Respondent has demonstrated good character.
Standard
1.2(e)(vii). Respondent displayed remorse for his misconduct.
SUPPORTING
AUTHORITY
Standard
2.6 requires that a violation of Business and Professions Code sections 6068,
6125 and 6126 shall result in disbarment 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.
Although
engaging in the unauthorized practice of law generally results in an actual
suspension (see In the Matter of Trousil (Review Dept. 1990) 1 Cal. State Bar
Ct. Rptr. 229 [30 days’ actual suspension; prior record of discipline]; In the
Matter of Johnston (Review Dept. 1997) 4 Cal. State Bar Ct. Rptr. 585 [60 days’
actual suspension; default entered; no prior record of discipline]; In the
Matter of Mason (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 639 [90 days’
actual suspension for UPL; prior record of discipline]), based on the
overwhelming mitigation in this matter and lack of aggravating circumstances, a
two-year stayed suspension is appropriate.
SIGNATURE OF THE PARTIES
Case Number(s): 10-O-02912
In the Matter of: Daniel R. Schwarz
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:
Daniel R. Schwarz
Date: January
23, 2011
Respondent’s
Counsel: Samuel C. Bellicini
Date:
January 31, 2011
Deputy Trial
Counsel: Susan I. Kagan
Date:
February 3, 2011
STAYED SUSPENSION ORDER
Case Number(s): 10-O-02912
In the Matter of: Daniel R. Schwarz
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:
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The stipulated facts and disposition are APPROVED and the DISCIPLINE
RECOMMENDED to the Supreme Court.
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checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set
forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
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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:
February 17, 2011
CERTIFICATE OF SERVICE
[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 February 17, 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 San Francisco,
California, addressed as follows:
SAMUEL C. BELLICINI
FISHKIN & SLATTER, LLP
1111 CIVIC DR STE 215
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 February 17, 2011.
Signed by:
Bernadette
C.O. Molina
Case
Administrator
State Bar
Court