State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

ACTUAL SUSPENSION

Case Number(s): 11-N-15600

In the Matter of: Fernando Vargas Hernandez, Bar #40498, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Donald R. Steedman

Office of the Chief Trial Counsel

180 Howard Street, 7th Floor

San Francisco, CA 94105

Bar # 104927

Counsel for Respondent: In Pro Per Respondent

Fernando Vargas Hemandez

4 North 2nd Street, Ste. 590

San Jose, CA 95113

Bar # 40498

Submitted to: Settlement Judge, State Bar Clerk’s Office San Francisco.

Filed: October 18,2011.

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 13, 1967.

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. 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.

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 09-O-137347

checked. (b)                          Date prior discipline effective  May 13, 2011

checked. (c)                          Rules of Professional Conduct/ State Bar Act violations: Rule 3-700 (D)(2); 4-100(A)

checked. (d)                          Degree of prior discipline Two-year suspension, stayed, actual suspension for six months.

checked. (e)                          If Respondent has two or more incidents of prior discipline, use space provided below. State Bar case number BM4922, effective June 14, 1985, violations of Business and Professions Code section 6106 and former Rule of Professional Conduct 8-101.  Discipline included 90 days of actual suspension.

<<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.

<<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.

<<not>> 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 cooperated in the disciplinary proceeding and, in particular, has agreed to this pre-filing disposition.

<<not>> 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. 

<<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.

<<not>> 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.

<<not>> checked. (12) Rehabilitation:  Considerable time has passed since the acts of professional misconduct occurred followed by convincing proof of subsequent rehabilitation.

<<not>> checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances:  

D. Discipline:

<<not>> checked. (1)       Stayed Suspension:

<<not>> checked. (a) Respondent must be suspended from the practice of law for a period of .

<<not>> 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.

<<not>> checked. ii. and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.

<<not>> checked. iii. and until Respondent does the following: .

<<not>> checked. (b) The above-referenced suspension is stayed.

<<not>> checked. (2) Probation:  Respondent must be placed on probation for a period of , 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 30 days.

<<not>> 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

<<not>> checked. ii. and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.

<<not>> 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.

<<not>> checked. (2)     During the probation period, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

<<not>> 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.

<<not>> 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.

<<not>> 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.

<<not>> 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.

<<not>> 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.

<<not>> 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.
No Ethics School recommended.  Reason: .

<<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 was ordered to take and pass the examination as part of the April 13, 2011 disciplinary order.

<<not>> 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: .

<<not>> checked. (5)     Other Conditions: .

Attachment language (if any):.

PENDING PROCEEDINGS.

The disclosure date referred to, on page 2, paragraph A(7), was October 11,2011.

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.

FACTS:

1, On or about April 13,2011, the California Supreme Court filed a disciplinary order in State Bar Court case number 09-0-13757 (Supreme Court Case Number S 190168).

2. The disciplinary order required respondent to comply with California Rule of Court 9.20 and to perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 days, respectively, after the effective date of the order.

3. The disciplinary order became effective thirty days after it was filed (Califomia Rules of Court, rule 9.18(a)), and at all times subsequent has remained in full force and effect.

4. Notice of the disciplinary order was properly served upon respondent in the manner prescribed by California Rule of Court 9.18(b) at the address respondent maintained with the State Bar in accordance with Business and Professions Code section 6002.1, subdivision (a). Respondent received the order shortly thereafter.

5. The deadline for complying with rule 9.20(c) expired on June 22, 2011.

6. Respondent wilfully violated the rule 9.20 order by failing to file proof of compliance as required by rule 9.20(c) prior to the deadline. Respondent filed his compliance declaration with the State Bar Court on August 26, 2011.

CONCLUSIONS OF LAW:

Respondent violated Business and Professions Code section 6103 by wilfully disobeying or violating an order of the court requiring respondent to do or forbear an act connected with or in the course of

respondent’s profession which respondent ought in good faith to do or forbear, specifically, an order requiring respondent to comply with Rule 9.20 of the California Rules of Court. Respondent also violated rule 9.20(c), California Rules of Court.

RESPONDENT’S EXPLANATION FOR THE DELAY:

Respondent has provided the following explanation for the delay, and the State Bar stipulates that respondent’s statements are accurate:

"I was told by the State Bar attomey that I would receive a letter or contact from the probation department in a few weeks. I did call Ms. Christine Souhrada in May or June of2011 to advise I had not receive any contact, and she gave me the telephone number of someone in Los Angeles, at the Probation Department, a Mr. Bagai. I contacted him regarding the information for the classes, and left a message.

"In June of 2011, the State Bar attomey, Christine Souhrada advised me that the Stipulation was erroneous in that it referred to a criminal act, which was not the case. She therefor had to amend that Stipulation and correct that error and mailed me an amended Stipulation. On June 30, 2011 I mailed back the amended stipulation, and in that letter again advised her that I had not received any contact from the probation office in Los Angeles regarding the information she had mentioned I would get from that office. She did give me the name and telephone number of the investigatior that could direct me to the information needed, at some point.

"I later learned that a letter from the Probation Department had been mailed on Junel3, 2011, which I do not recall receiving, which stated that I should contact that person regarding the reporting and class requirements.

"It was not until August 18, 2011 that I received a letter from Maricruz Farfan that I had failed to file the 9.20 affidavit and that I was not in compliance. I promptly requested the information that I had expected in May of this year or in June. I did receive the 9.20 form, the quarterly reports, and class information on August 23,2011 and promptly filed the 9.20 form, the first quarterly report and enrolled in the the two classes required, and otherwise complied with the original court order and stipulation.

"I should point out that I did pay the client the amount ordered of $2,027.50 plus interest at 10% on May 27, 2011. I could not file quarterly reports without the forms sent in August to me. I have just completed the Ethics and Trust classes this past week in San Francisco.  I have also registered for the MPRE for November 5, 2011.

"I understand that this confusion does not excuse my failure to file the 9.20 affiidavit, and I apologize for that."

SUPPORTING LEGAL AUTHORITY:

In the Matter of Friedman (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 527 (30-day suspension imposed with no added probation conditions, where attorney complied with for rule 955(a) (now rule 9.20(a)), but filed his compliance declaration 14 days late).

As in Friedman, the State Bar is not recommending stayed suspension or an additional probation term because respondent is already serving a two-year probation term as a result of the prior disciplinary proceeding.

SIGNATURE OF THE PARTIES

Case Number(s): 11-N-15600

In the Matter of: Fernando Vargas Hernandez

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: Fernando Vargas Hernandez

Date: 10/12/11

Respondent’s Counsel:

Date:

Deputy Trial Counsel: Donald R. Steedman

Date:10/13/11

ACTUAL SUSPENSION ORDER

Case Number(s): 11-N-15600

In the Matter of: Fernando Vargas Hernandez

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.

 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: 10/18/11

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 October 18, 2011, I deposited a true copy of the following document(s):

STIPULATION RE FACTS, CONCLUSION 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:

                              Fernando Vargas Hernandez

                              Attorney at Law

                              4 n 2^nd St STE 590

                              San Jose, CA 95113

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 October 18, 2011.

Signed by:

Bernadette C.O. Molina

Case Administrator

State Bar Court