State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 10-O-11214
In the Matter of: Michael Jude O’Brien, Bar # 147414, A Member
of the State Bar of California, (Respondent).
Counsel For The State Bar: Anthony J. Garcia, Deputy Trial
Counsel, Office of the Chief Trial Counsel, 1149 S. Hill Street, 10th Fl., Los
Angeles, CA 90015,
Telephone: (213) 765-1089, Bar#171419
Counsel for Respondent: In Pro Per Respondent, Michael Jude
O’Brien, PO Box 1409, Upland, CA 91785, Telephone: (626) 966-5663, Bar# 147414
Submitted to: Assigned Judge – State Bar Court Clerk’s
Office Los Angeles
Filed: May 10, 2012 .
<<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 June 11,
1990.
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):
<<not>> checked. Until costs are
paid in full, Respondent will remain actually suspended from the practice of
law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal
amounts prior to February 1 for the following membership years: 2013,
2014. (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.
B.
Aggravating Circumstances [for definition, see
Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)].
Facts supporting aggravating circumstances are required.
checked. (1) Prior record of discipline [see standard 1.2(f)]
checked.
(a)
State Bar Court case # of prior case 07-O-13150, 07-O-13198, 07-O-13379.
checked.
(b)
Date prior discipline effective January 27, 2012.
checked. (c)
Rules of Professional Conduct/ State Bar Act violations: 5-200(A), 5-200(B),
6068(d), 6068(g).
checked.
(d)
Degree of prior discipline six (6) months actual suspension.
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(e) If Respondent has two or more incidents of prior
discipline, use space provided below.
<<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.
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.
<<not>> checked. (8) No aggravating circumstances are
involved.
Additional aggravating circumstances:
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
<<not>>
checked. (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.
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checked. (2) No Harm: Respondent did not harm the
client or person who was the object of the misconduct.
checked.
(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. Respondent has admitted culpability
at this early stage of the proceedings. He is receiving substantial mitigation
for candor and cooperation.
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checked. (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.
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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.
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checked. (7) Good Faith: Respondent acted in good
faith.
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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.
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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.
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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.
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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.
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checked. (12) Rehabilitation: Considerable time has passed since the acts
of professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
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checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances:
D.
Discipline:
checked.
(1) Stayed
Suspension:
checked.
(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:
checked.
(b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on probation
for a period of two (2) years, which will commence upon the effective date of
the Supreme Court order in this matter. (See rule 9.18, California Rules
of Court.)
checked. (3) Actual Suspension:
checked.
(a) Respondent must be actually suspended from the practice of law in the State
of California for a period of one (1) year.
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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:
E. Additional Conditions of Probation:
<<not>>
checked. (1) If Respondent is actually suspended for two years or
more, he/she must remain actually suspended until he/she proves to the State
Bar Court his/her rehabilitation, fitness to practice, and learning and ability
in the general law, pursuant to standard 1.4(c)(ii), Standards for Attorney
Sanctions for Professional Misconduct.
checked.
(2)
During the probation period, Respondent must comply with the provisions of the
State Bar Act and Rules of Professional Conduct.
checked.
(3)
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.
checked.
(4)
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.
checked.
(5)
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.
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checked. (6) 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.
checked.
(7)
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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checked. (8) 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:
Respondent will take Ethics School in 2012 as a requirement of the discipline
entered in case no. 07-O-13150.
<<not>>
checked. (9) 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. (10) The following conditions are attached hereto and incorporated:
<<not>> checked. Substance
Abuse Conditions.
<<not>> checked. Law Office
Management Conditions.
<<not>> checked. Medical
Conditions.
<<not>> checked. Financial
Conditions.
F. Other Conditions Negotiated by the Parties:
<<not>> checked. (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 during the period of actual suspension or within one year, whichever
period is longer. 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.
checked. No MPRE recommended. Reason: Respondent will take the
MPRE in 2012 as a requirement of the discipline entered in case no. 07-O-13150.
checked.
(2)
Rule 9.20, California Rules of Court: Respondent must comply with the
requirements of rule 9.20, California Rules of Court, and perform the acts
specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar
days, respectively, after the effective date of the Supreme Court's Order in
this matter.
<<not>> checked. (3) Conditional Rule 9.20,
California Rules of Court: If Respondent remains actually suspended for
90 days or more, he/she must comply with the requirements of rule 9.20,
California Rules of Court, and perform the acts specified in subdivisions (a)
and (c) of that rule within 120 and 130 calendar days, respectively, after the
effective date of the Supreme Court's Order in this matter.
<<not>> checked. (4) Credit for Interim Suspension
[conviction referral cases only]: Respondent will be credited for the
period of his/her interim suspension toward the stipulated period of actual
suspension. Date of commencement of interim suspension:
checked.
(5)
Other Conditions:
Respondent
has agreed to quitclaim the property located at 1510 Farmstead Ave, Hacienda
Heights, CA back to Buddy Price, to account for all rental income he has
received from the tenant at 1510 Farmstead Ave, Hacienda Heights, CA, and to
remit to Buddy Price all rental income that he has received from the tenant at
1510 Farmstead Avenue, Hacienda Heights, CA except for that portion of the
rental income that has been used to pay the mortgage and/or other identifiable
and documented expenses. Respondent agrees to complete these tasks no later
than 30 days after the effective date of the Supreme Court’s Order in this
matter.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION
IN THE MATTER OF: Michael
Jude O’Brien, State Bar No. 147414
STATE BAR COURT CASE NUMBER:
10-O-11214
FACTS AND
CONCLUSIONS OF LAW
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.
Case No.
10-O- 11214 (Complainant: Buddy Price)
FACTS:
1. In
September 2007, Buddy Price and Judith Price (deceased) refinanced their home
using an Adjustable Rate Mortgage (ARM) to borrow $328,250. The terms of the
ARM required them to pay $108.73 per month for the five-year term of the loan.
The unpaid interest was added to the principal balance each month. At the end
of five years, the ARM loan would reset and, after the loan reset, the Prices’
loan payments would include principal and interest.
2. In
September 2008, the Prices became concerned that they would not be able to
afford their loan payments after the ARM loan reset and the Prices looked for a
lawyer to help them with their ARM loan.
3. On
September 24, 2008, the Prices met with Respondent for a legal consultation.
Respondent advised the Prices that he could help them and suggested that they
sell the Farmstead home for $1 to a company that he and his sister were
forming.
4. The Prices
understood that by selling the Farmstead home to Respondent, they would be
relieved of further financial responsibility on the Farmstead home.
5. On
September 24, 2008, Respondent drafted an agreement called the
"Supplemental Fee Agreement For Use With Deeds of Trust RPC-3-300"
(Supplemental Fee Agreement). Respondent delivered the Supplemental Fee
Agreement to the Prices for their signatures. According to the terms of the
Supplemental Fee Agreement, the Prices elected to sell to
broker/attorney/sister/assignee Real Property for $1.00 with no guarantee there
would not be a foreclosure. The Supplemental Fee Agreement stated that the
Prices had a right to consult with an independent attorney/broker with regard
to the
payment of fees and the execution of the sales deed.
6. On September
24, 2008, the Prices signed the Supplemental Fee Agreement.
7. The
Supplemental Fee Agreement was not fair to the Prices. The terms of the
Supplemental Fee Agreement transferred title to the Farmstead home to Respondent
and left the Prices with all of the risk and responsibilities of the ARM loan.
8. The
Supplemental Fee Agreement did not fully disclose all of the terms of the
transaction. For example, it did not state that the Prices were still legally
responsible for the ARM loan, it was vague and ambiguous regarding who
purchased the Farmstead home, it was silent regarding the purchaser’s
obligations related to the Farmstead home, and it failed to disclose
Respondent’s business and legal relationship with the purchaser, Respondent’ s
sister.
9. On June
14, 2009, the Prices met with Respondent who had prepared a contract and
Quitclaim
Deed for their signature. The Prices signed the Quitclaim Deed and conveyed the
Farmstead home to an entity named Hauscara LLC. Hauscara LLC is owned by
Respondent and his sister. That same day, Respondent gave the Prices a $1.00
bill.
10. In the
summer of 2009, with Respondent’s knowledge and permission, Gerardo Zepeda and
would live in the house, pay the mortgage, the insurance premiums, and make
necessary repairs. The agreement anticipated that Zepeda would eventually buy
the Farmstead home.
11. On June
20, 2010, the Prices~ lender contacted them about unpaid property taxes on the
Farmstead home.
12. In July
2010, the Prices learned that they were still legally responsible for the ARM
loan. They consequently learned that Respondent had not yet filed the Quitclaim
Deed they signed on or about June 14, 2009.
13. On or
about November 9, 2010, at the Prices insistence, Respondent recorded the
Quitclaim deed for the Farmstead home.
14. In June
2011, Zepeda moved out of the Farmstead home.
15. In July
2011, Lorenzo Morales moved into the Farmstead home. Morales pays $1,400 in
monthly rent to Respondent and/or Respondent’s sister. Out of these funds,
Respondent pays the mortgage, $312.32/month, and insurance, $1,035/year.
16. To date,
Morales is living in the Farmstead home. All mortgage payments and insurance
premiums have been paid.
CONCLUSION OF
LAW:
17. By
entering into an agreement with the Prices to purchase the Farmstead home that
left with the Prices with all the risk and responsibilities of the ARM loan, by
not explaining to the Prices that they were still legally responsible for the
ARM loan, by not clearly identifying who purchased the Farmstead home, not
identifying the purchaser’s obligations in the sale of the Farmstead home, and
by not disclosing Respondent’s business and legal relationship was with his
sister, Respondent entered into a business transaction with a client without
complying with the requirements that the transaction or acquisition and its
terms were fair and reasonable to the client and that the transaction or
acquisition and its terms were fully disclosed and transmitted in writing to
the client in a manner which should reasonably have been understood by the
client in willful violation of California Rules of Professional Conduct, rule
3-300.
PENDING
PROCEEDINGS.
The disclosure
date referred to, on page 2, paragraph A(7), was April 17, 2012.
AUTHORITIES
SUPPORTING DISCIPLINE
Standards
Standard 1.7(a) which states that ifa member has a prior discipline, the degree
of discipline in the current proceeding shall be greater than the discipline
imposed in the prior proceeding unless the prior discipline was so remote in
time to the current proceeding and the offense for which it was imposed was so
minimal in severity that imposing greater discipline in the current proceeding
would be manifestly unjust.
Standard 2.8
provides that, when a respondent is culpable of a violation of Rules of
Professional Conduct, rule 3-300, that Respondent should be suspended unless
the extent of Respondent’s misconduct and the harm to the client are minimal,
in which case, the degree of discipline shall be reproval.
SIGNATURE OF THE PARTIES
Case Number(s): 10-O-11214
In the Matter of: MICHAEL JUDE O’BRIEN
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:
MICHAEL JUDE O’BRIEN
Date: April
18, 2012
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Anthony J. Garcia
Date: April
20, 2012
ACTUAL SUSPENSION ORDER
Case Number(s): 10-O-11214
In the Matter of: MICHAEL JUDE O’BRIEN
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.
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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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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: Richard A. Honn
Date: May 7,
2012
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 Los
Angeles, on May 10, 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:
MICHAEL J O’BRIEN ESQ
PO BOX 1409
UPLAND, CA 91785
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
Anthony J. Garcia, Enforcement, Los
Angeles
I hereby
certify that the foregoing is true and correct. Executed in Los Angeles,
California, on May 10, 2012.
Signed by:
Julieta E.
Gonzales
Case
Administrator
State Bar
Court