Case Number(s): 11-J-11428
In the Matter of: Donald Edward Fergus, Jr., Bar # 87334 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Dane C. Dauphine, Supervising Trial Counsel
1149 South Hill St.
Los Angeles, CA 90015-2299
(213) 765-1293
Bar # 121606
Counsel for Respondent: Robert G. Sbardellati, Sheppard, Mullen, et al.
501 W. Broadway, 19th Fl.
San Diego, CA 92101-3598
(619) 338-6500
Bar # 62643
Submitted to: Assigned Judge
<<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 August 1, 1979.
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. 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.
<<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.
Respondent has no prior discipline since his admission in 1979.
IN THE MATTER OF: Donald Edward Fergus, Jr., number 87334
CASE NUMBER(S): 11-J-11428
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. 1 l-J-11428 (Discipline in Other Jurisdiction)
PROCEDURAL BACKGROUND IN OTHER JURISDICTION:
1. On May 21, 1999, Respondent was licensed to practice law in the State of Arizona.
2. On November 13, 2009, the State Bar of Arizona filed a Complaint against Respondent before a Hearing Officer of the Supreme Court of Arizona in case no. 08-2061, and Respondent filed an Answer on January 8, 2010.
3. On March 15, 2010, a hearing held in the matter, and On April 23, 2010, the Hearing Officer filed a report finding that the State Bar of Arizona had proven by clear and convincing evidence that Respondent had committed violations of ER 1.7, ER 8.4(a), ER 8.4(b), and ER 8.4(c) of the Arizona Rules of Professional Conduct (Rule 42, Ariz. R. Sup. Ct.) and recommending that Respondent be suspended from the practice of law for one year to be followed with a one-year probation.
4. On July 10, 2010, Respondent’s case came before the Disciplinary Commission of the Supreme Court of Arizona for consideration of the Hearing Officer’s Report. On or about August 9, 2010, the Commission filed its report adopting the findings of the Hearing Officer but recommended a three-year suspension from the practice of law followed by a one-year probation.
5. On or about November 30, 2010, the Arizona Supreme Court filed its Judgment and Order denying Respondent’s petition for review and ordering that Respondent be suspended from the practice of law for three years for the violations as disclosed in the Disciplinary Commission Report. Thereafter, the order of the Arizona Supreme Court became final.
FACTS:
1. On or about March 6, 2008, Respondent began representing Hugo Van Vliet ("Hugo") relating to an estate matter.
2. At the time, Hugo was suffering from terminal lung cancer, was near death and was receiving hospice care.
3. On March 10, and 11, 2008, Hugo was unable to speak.
4. On March 10, 2008, Respondent attended a meeting with Van Vliet family members relating to Hugo’s estate; on that date, Hugo’s three adult children signed an engagement letter Respondent had prepared retaining him to conduct estate planning and/or other legal tasks relating to Hugo’s estate.
5. On March 11, 2008, under Respondent’s supervision and direction, Respondent’s paralegal and his secretary worked to prepare a power of attorney for Hugo’s signature and a trust document. On March 11, 2008, work on those documents continued until approximately 6:00 p.m.; work on at least one of the documents continued on the morning of March 12, 2008.
6. Respondent had previously instructed his secretary to be prepared to travel to Hugo’s home on the morning of March 12, 2008, to notarize Hugo’s signature on the power of attorney, and to witness the execution of the power of attorney and trust.
7. Hugo died at approximately 4:00 a.m. on March 12, 2008.
8. When Respondent arrived at his office on the morning of March 12, 2008, he instructed his secretary that she did not need to accompany him to Hugo’s home.
9. Respondent knew prior to his arrival at his office, prior to his arrival at Hugo’s home, and/or prior to the execution of the power of attorney and trust that Hugo had died.
10. Respondent traveled to Hugo’s home on the morning of March 12, 2008, bringing with him the unsigned power of attorney and trust documents.
11. The signature on the power of attorney purports to be that of Hugo, and the document bears the date of March 11, 2008. Respondent witnessed the signing of the power of attorney and swore that Hugo had signed the document on March 11, 2008, and that he had been of sound mind when he did so. Respondent’s sworn statements were false and known by him to be false.
12. When Respondent arrived at Hugo’s home, Respondent knowingly instructed and/or permitted Nick Van Vliet ("Nick"), Hugo’s son, to fraudulently forge Hugo’s name on the power of attorney.
13. Using the fraudulent power of attorney, Nick and Hugo’s other adult children executed the separate property trust prepared by Respondent and his staff affecting some or all of Hugo’s property.
14. Respondent knowingly assisted, permitted and/or instructed Nick and the other Van Vliet heirs to execute the trust based on the fraudulent power of attorney.
15. Respondent returned to his office on March 12, 2008, and his secretary thereafter notarized the power of attorney pursuant to direction from Respondent. Respondent falsely indicated to his secretary that the purported signature of Hugo on the power of attorney was authentic when he knew that it was a forgery.
16. Respondent thereafter continued to represent Hugo’s estate.
17. In October 2008, the attorneys for Geri Van Vliet (Hugo’s widow) filed on her behalf a pleading entitled "Objection to Inventory, Request for Emergency Hearing, and Petition to Remove Personal Representative," in Maricopa County Superior Court in PB2008-05244. The pleading alleged, among other things, doubts that Hugo had executed the power of attorney and trust, or that he was not competent to do so at the time.
18. Prior to Geri’s filing of the Objection, Respondent had consulted attorneys Michael J. Farrell ("Mr. Farrell") and John R. Christian, members of Respondent’s firm Jennings Strouss and Salmon, about matters relating to the probate of Hugo’s estate but knowingly and/or intentionally had not revealed to them any misconduct relating to the execution of the power of attorney and trust.
19. In preparation for the October 16, 2008, hearing, Mr. Farrell met with Respondent; Respondent admitted to Mr. Farrell only that there had been some "irregularities" relating to the notarization of the power of attorney. Respondent did not, however, at that time, reveal the true nature of the false signature on the power of attorney nor his specific role in obtaining that signature.
CONCLUSIONS OF LAW:
20. The disciplinary proceeding in the other jurisdiction provided Respondent with fundamental constitutional protection.
21. Respondent’s conduct in the other jurisdiction as set forth above would warrant the imposition of discipline in California as violation(s) of the following:
22. By instructing or permitting Hugo’s son to sign Hugo’s name on the power of attorney after Hugo’s death and to use the power of attorney to execute a separate property trust affecting some or all of Hugo’s property, Respondent advised the violation of a law without believing in good faith that the law was invalid in willful violation of rule 3-210, Rules of Professional Conduct.
23. By signing as a witness to the false signature of his client on the power of attorney and instructing his secretary to notarize the false signature, Respondent committed an act involving moral turpitude, dishonesty or corruption in willful violation of section 6106, Business and Professions Code.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was May 4, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
Culpability for offenses involving moral turpitude, fraud, dishonesty or concealment shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or mislead and the magnitude of the act of misconduct and the degree to which it relates to the practice of law. (Standard 2.3, Standards for Attorney Discipline.)
Here, the magnitude of Respondent’s act of moral turpitude was great since it concerned his representation of a client and involved the client’s son in potentially criminal conduct. Thereafter, he continued to represent the estate knowing that the power of attorney was fraudulent and concealed that fact from members of his firm when consulting them prior to a hearing on the widow’s objections to the administration of the estate. The misconduct is mitigated by Respondent’s many years of practice without discipline and his agreeing to stipulate to a disposition in this matter. Respondent was suspended in Arizona for three years. A suspension in California for two years and until he demonstrates rehabilitation is sufficient to protect the public and ensure that he is rehabilitated prior to returning to active practice.
Case Number(s): 11-J-11428
In the Matter of: Donald Edward Fergus, Jr. number 87334
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: Donald E. Fergus, Jr.
Date: 5/8/2011
Respondent’s Counsel: Robert G. Sbardellati
Date: 5/16/2011
Deputy Trial Counsel: Dane C. Dauphine
Date: 5/23/2011
Case Number(s): 11-J-11428
In the Matter of: Donald Edward Fergus, Jr. number 87334
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.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 6-10-11
[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 June 13, 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 Los Angeles, California, addressed as follows:
ROBERT GEORGE SBARDELLATI, ESQUIRE
SHEPPARD MULLIN ET AL LLP
501 WEST BROADWAY 19 FLOOR
SAN DIEGO, CALIFORNIA 92101 - 3598
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Dane C. Dauphine, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on June 13, 2011.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court