Case Number(s): 10-0-04794
In the Matter of: Wayne Martin Fong, Bar # 158172, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eli D. Morgenstern, DTC, Bar # 190560, Office of the Chief Trial Counsel, 1149 S. Hill St., Los Angeles, CA 90015, 213-765-1334
Counsel for Respondent: Michael G. Gerner, Esq, Michael G. Gerner, A Professional Law Corp., 425 S. Beverly Drive, Suite 210, Beverly Hills, CA 90212 Bar # 65906
Submitted to: Assigned Judge, State Bar Court Clerk’s Office Los Angeles
Filed: September 8, 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.
1. Respondent is a member of the State Bar of California, admitted June 8, 1992
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 to be awarded to the State Bar.
<<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.
9. ORDER OF INACTIVE ENROLLMENT: The parties are aware that If this stipulation is approved, the judge will Issue an order of inactive enrollment under Business and Professions Code section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule 5.111(D)(1 ).
(Effective
January 1, 2011)
IN THE MATTER OF: Wayne Martin Fong, State Bar No. 158172
STATE BAR COURT CASE NUMBER: 10-O-04794
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statute.
Facts
1. Between April 1, 1999, and in or about January 2010. Respondent was employed as an Associate Counsel and Vice President with Fidelity National Title Group, Inc. ("Fidelity National").
2. Between in or about 2000 and 2010, Respondent diverted funds belonging to Fidelity National into several bank accounts under various fictitious business names over which he had control, and then converted the funds for his own use.
3. In total, Respondent converted approximately $500,000 of Fidelity National’s funds.
4. In or about January 2010,. a Fidelity National compliance officer discovered Respondent’s misconduct; and on January 29, 2010, Fidelity National filed a civil complaint against Respondent titled Fidelity National Title Group, Inc. v. Wayne Fong, Orange County Superior Court case number 00340653 (the "civil matter").
5. In or about July 2010, the parties reached a confidential settlement of the civil matter. Pursuant to the settlement, Respondent made a lump sum payment of $100,000 to Fidelity National, and is required to pay an additional $400,000 to Fidelity National pursuant to a payment plan over the next thirty (30) years.
Conclusions of Law
By converting Fidelity National’s funds, Respondent committed an act(s) of moral turpitude, dishonesty, or corruption in willful violation of Business and Professions Code section 6106.
PENDING PROCEEDINGS.
The disclosure date referred to on page 2, paragraph A(7) was August 10, 2011.
AGGRAVATING CIRCUMSTANCES
1. Multiple Acts of Wrongdoing.
Over several years, Respondent committed Multiple acts of conversion. (Std. 1.2(b)(ii).)
2. Harm
By converting approximately $500,000 of Fidelity National’s funds. Respondent caused serious
harm to his former employer. (Std. 1.2(b)(iv).)
MITIGATING CIRCUMSTANCES.
1. No Prior Record of Discipline.
Respondent has been a member of the State Bar since June 8, 1992, and has no prior record of discipline. Respondent practiced law for approximately eight (8) years before he began committing the misconduct herein. Respondent’s eight (8) years of discipline free practice is a mitigating circumstance. (Std. 1.2(e)(i). See also, In the Matter of Lynch (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 287).
2. Extreme Emotional Difficulties
Respondent provided evidence to Fidelity National and the State Bar that he had a gambling disorder during the time that the misconduct described herein was committed. (Std. 1.2(e)(iv).) On September 28, 2010, Respondent began attending weekly counseling meetings at the UCLA Gambling Studies Program and was diagnosed with pathological gambling in accordance with the Diagnostic and Statistical Manual of Mental Disorders. Respondent’s rehabilitation program consists of attending three (3) meetings per week with Gambling Anonymous and one (1) meeting per week with the Other Bar.
3. Candor and Cooperation Once Respondent was confronted with his misconduct, he acknowledged and took responsibility for it and cooperated with Fidelity National. Respondent also cooperated with the State Bar during its investigation. (Standard 1.2(e)(v).)
Respondent’s stipulation to the facts, his culpability, and his disbarment is also a mitigating circumstance. (In the Matter of Spaith (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 511,521 .)
AUTHORITIES SUPPORTING DISCIPLINE.
1. Standards
Standard 2.2(a) of the Standards for Attorney Sanctions for Professional Misconduct
("Standards") provides that culpability of a member of willful misappropriation of entrusted funds shall result in disbarment. Only if the amount of funds misappropriated is insignificantly small or if the most compelling mitigating circumstances clearly predominate, shall disbarment not be imposed
Here Respondent. in his capacity as Fidelity National’s Associate Counsel. converted approximately $500,000 of Fidelity National’s funds over a several year period. The misconduct was directly related to his practice, involved deceit and dishonesty, and caused significant harm to his employer.
2. Case Law
The Supreme Court has repeatedly held that disbarment is the usual discipline for the willful misappropriation of client funds. (See, Grim v State Bar (i 991 ) 53 Cal,3d 2t Edwards v. State Bar (1990) 52 Cal.3d 28, 37; Howard v. State Bar (1990) 51 Cal.3d 215, 221 and Chang v. State Bar (1989) 49 Cat.3d 114, 128)
In the Matter Priamos (Review Dept. t 998) 3 Cal. State Bar Ct. Rptr. 824, the attorney committed acts of moral turpitude by his seven year self-dealing with over $500,000 of investment funds he was asked by the client to handle, and by unilaterally paying himself nearly $450.000 in management and legal fees. The Review Department recommended that the attorney be disbarred.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him that as of August 10, 2011, the prosecution costs in this matter are $2,797. 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): 10-O-04794
In the Matter of: Wayne Martin Fong
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: Wayne M. Fong, Michael G. Gerner, Eli D. Morgenstern
Respondent: Wayne M. Fong
Date: 08/18/2011
Respondent’s Counsel: Michael G. Gerner
Date: 08/18/2011
Deputy Trial Counsel: Eli D. Morgenstern
Date:
08/22/2011
Case Number(s): 10-0-04794
In the Matter of: Wayne Martin Fong
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.)
Respondent Wayne Martin Fong is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herein, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by: Richard A. Honn
Judge of the State Bar Court: Richard A. Honn
Date: 09/08/2011
(Effective January 1, 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 September 8, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
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:
MICHAEL GALEN GERNER ESQ
MICHAEL G GERNER, A PROF LAW CORP
425 S BEVERLY DR STE 210
BEVERLY HILLS, CA 90212
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 8, 2011.
Signed by: Julieta E. Gonzales
Case Administrator: Julieta E. Gonzales
State Bar Court