Case Number(s): 11-O-12864
In the Matter of: CHARLES M. BARRETT, Bar # 94800, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Mark Hartman
180 Howard Street
San Francisco, California 94105
Telephone: (415) 538-2558
Bar# 114925
Counsel for Respondent: In Pro Per, Charles M. Barrett
Dreyer & Babitch el al LLP
20 Bicentenial Circle
Sacramento, CA 95826
Bar #94800
Submitted to: State Bar Court Clerk’s Office San Francisco.
Filed: October 13, 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 December 16, 1980.
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 15 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.
Additional aggravating circumstances:.
Additional mitigating circumstances:
Respondent dealt with severe health issues of a close family member and severe financial problems.
Attachment language (if any):.
IN THE MATTER OF: CHARLES M. BARRETT, State Bar No. 94800
STATE BAR COURT CASE NUMBER: 11-O-12864
RESOLUTION OF THE CURRENT CASE
The State Bar of California ("the State Bar") and respondent Charles M. Barrett ("respondent") enter into this stipulation as to Facts, Conclusions of Law, and Discipline ("Stipulation") in order to resolve case number 11-O-12864 ("the current case").
FACTS
Respondent admits that the following facts are true:
1. On September 22, 2008, the California Supreme Court filed a disciplinary order in State Bar Court case number 03-0-00177 et alia (Supreme Court Case Number S 164738).
2. The order became effective on October 22, 2008 (California Rules of Court, rule 9.18(a)), and at all time subsequent has remained in full force and effect, except as set forth below (with respect to the modification of the restitution condition).
3. Notice of the disciplinary order was properly served upon respondent (California Rule of Court 9.18(b)), and he received the notice.
4. The September 22, 2008, disciplinary order placed respondent on disciplinary probation for three years, beginning on the date the disciplinary order became effective, and required him to comply with the conditions of probation recommended by the Hearing Department of the State Bar Court in its Decision filed On April 24, 2008.
5. At all times subsequent to October 22, 2008, respondent has remained on disciplinary probation; and the probation conditions mentioned above have remained in full force and effect, except as provided below (with respect to the modification of the restitution condition).
6. QUARTERLY REPORTING CONDITION.
(a) One of the conditions of probation provided as follows:
"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. If the first report will cover less than thirty (30) days, that report must be submitted on the next following 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 probation period and no later than the last day of the probation period;"
(b). Respondent violated this condition of probation because did not file the following quarterly reports in a tin rely manner:
Date Report Was Due January 10, 2009, Date Report Was Filed June 24, 2009;
Date Report Was Due January 10, 2010, Date Report Was Filed January 15, 2010;
Date Report Was Due July 10, 2010, Date Report Was Filed September 8, 2010;
Date Report Was Due October 10, 2010, Date Report Was Filed October 11, 2010;
Date Report Was Due January 10, 2011, Date Report Was Filed January 13, 2011;
Date Report Was Due April 10, 2011, Date Report Was Filed September 22, 2011;
9. RESTITUTION CONDITION.
(a) One of the conditions of probation originally provided as follows:
"During the period of probation, respondent must make restitution to the following individuals in the indicated amounts:
(a) To Scott and Lorraine Seidenstricker in the amount of $25,078.68, plus 10% interest per annum from January 1, 1998 (or to the Client Security Fund to the extent of any payment from the fund to Scott and Lorraine Seidenstricker, plus interest and costs, in accordance with Business and Professions Code section 6140.5), and furnish satisfactory proof of such restitution to the State Bar’s Office of Probation; FN 4
“(b) To Doug and Linda Wilkinson in the principal amount of $20,000, plus 10% interest per annum from January 1, 2003 (or to the Client Security Fund to the extent of any payment from the fund to Doug and Linda Wilkinson, plus interest and costs, in accordance with Business and Professions Code section 6140.5), and furnish satisfactory proof of such restitution to the State Bar’s Office of Probation;
“(c) To Charles Justice in the amount of $21,700, plus 10% interest per annum from January 1, 1998 (or to the Client Security Fund to the extent of any payment from the fund to Charles Justice, plus interest and costs, in accordance with Business and Professions Code section 6140.5), and furnish satisfactory proof of such restitution to the State Bar’s Office of Probation;
“(d) To Ashley Williams in the amount of $750, plus 10% interest per annum from May 1, 2001 (or to the Client Security Fund to the extent of any payment from the fund to Ashley Williams, plus interest and costs, in accordance with Business and Professions Code section 6140.5), and furnish satisfactory proof of such restitution to the State Bar’s Office of Probation; and
“(e) To Ola Barrett in the amount of $1,500, plus 10% interest per annum from August 1, 2001 (or to the Client Security Fund to the extent of any payment from the fund to Ola Barrett, plus interest and costs, in accordance with Business and Professions Code section 6140.5), and furnish satisfactory proof of such restitution to the State Bar’s Office of Probation.FN5
"Any restitution owed to the Client Security Fund is enforceable as provided in Business and Professions Code section 6140.5, subdivisions (c) and (d);
“FN4: It should be noted that respondent has made substantial, if not all, restitution to the Client Security Fund. However, this court is unclear as to how much is still owed. The Office of Probation and the Client Security Fund must re-calculate how much restitution is still owed.
“FN5: As part of his participation in the ADP, respondent was required to make quarterly restitution payments to satisfy these obligations and he so did. Accordingly, the amounts owed must be recalculated by the Office of Probation."
(b) As of the effective date of discipline, respondent still owed a total of about $26,089.16 in principle, plus years of accrued interest. Thereafter, until late September 2011, respondent (1) provided the Office of Probation with no proof that he made any payments on this obligation and (2) made no payments on this obligation.
(c) On July 20, 2010, the Office of Probation notified respondent that he owed a total of $41,749.31 pursuant to the restitution order. Respondent received this notification shortly thereafter.
(d) On October 12, 2010, the Office of Probation filed a motion asking the State Bar Court to modify the conditions of probation to require respondent to make periodic payments on the obligation.
(e) On October 15, 2010, respondent filed a response promising to pay the entire amount owing by January 15, 2011, and to provide proof of such payment by January 29, 2011.
(f) On or about November 8, 2010, the State Bar Court filed the following order modifying the above-quoted condition of probation:
"On October 12, 2010, the Office of Probation of the State Bar of California, represented by supervising attorney Terrie Goldade (Office of Probation), asked that a probation condition of respondent Charles Martin Barrett be modified - requiting him to make monthly restitution payments. (Supreme Court order No. S 164738.)
"On October 18, 2010, in response to the Office of Probation’s request, respondent proposed to pay the entire amounts due to all of the individuals (and the State Bar’s Client Security Fund, if owed) on or before January 15, 2011, and to provide proof of payment to the Office of Probation on or before January 29, 2011. (Currently, respondent s proof for full payment is not due until October 22, 2011.)
"GOOD CAUSE APPEARING, the court finds respondent’s proposed restitution payment plan reasonable and hereby ORDERS that the probation condition of restitution be modified, such that respondent must pay the entire amounts of restitution (principal and interest) due to all of the individuals (or reimburse the Client Security Fund, to the extent of any payment from the fund to those individuals, in accordance with Business and Professions Code section 6140.5) on or before January 15, 2011, and furnish proof to the State Bar’s Office of Probation on or before January 31, 2011.
"IT IS SO ORDERED."
(g) At all times thereafter, the November 8, 2010, order remained in full force and effect.
(h) On November 8, 2010, the State Bar Court served respondent with a copy of the order of November 8, 2610. Respondent received the order shortly thereafter.
(i) As of January 7, 2011, respondent owed the following approximate amounts to the following individuals covered by the restitution order:
Payee: Charles Justice, Amount owed (including interest to date): $37,220.15;
Payee: The Wilkinsons, Amount owed (including interest to date): $2,383.56;
Payee: Ashley Williams, Amount owed (including interest to date): $8.99;
Payee: Ola Barrett, Amount owed (including interest to date): $1,106.71;
Payee: Client Security Fund (for payments made to Ola Barrett), Amount owed (including interest to date): $1,807.09;
Total Amount owed: $42,526.50.
(j) On January 7, 2011, the Office of Probation sent respondent a letter containing (1) a statement of the payments that respondent had made to date, (2) the amounts owed, and (3) copies of the Office of Probation’s records concerning respondent’s restitution payments. Respondent received this letter shortly thereafter, but did not promptly make restitution payments.
(i) Respondent has now made restitution payments and provided proof of restitution to the Office of Probation.
(k) Respondent violated the restitution condition of his probation by failing to complete restitution and provide proof of restitution until September 2011.
CONCLUSION OF LAW
Respondent admits that the following conclusion of law is true:
Respondent willfully violated section 6068, subdivision (k) of the Business and Professions Code by failing to comply with the quarterly reporting and restitution conditions attached to the disciplinary probation in State Bar Court case numbers 03-0-00177 et al.
AGGRAVATION
Prior Records of Discipline
First Prior Record of Discipline
State Bar Court case number: 92-0-13806
Effective date of discipline: January 21, 1994
Ethical violations: Rules 3-110(A) and 3-700(A) (2) of the Rules of Professional Conduct
Private reproval
Degree of discipline:
Second Prior Record of Discipline
State Bar Court case number: 92-0-13946
Effective date of discipline: August 9, 1995
Ethical violations: Rule 3-110(A) of the Rules of Professional Conduct and section 6068(m) of the Business and Professions Code
Degree of discipline: Public reproval
Third Prior Record of Discipline
State Bar Court case numbers: 97-0-10268 et al.
Effective date of discipline: January 23, 1999
Ethical violations: Rule 3-110(A) of the Rules of Professional Conduct and section 6068, subdivision (m) of the Business and Professions Code
Degree of discipline: Stayed suspension for two years and until respondent complies with standard 1.4(c) (ii) and probation for three years, conditioned on restitution and other requirements
Fourth Prior Record of Discipline
State Bar Court case numbers: 03-0-00177 et al.
Effective date of discipline: October 22, 2008
Ethical violations: Rules 3-110(A) and 3-700(D) (2) of the Rules of Professional Conduct and section 6068, subdivisions (k) and (m); section 6104; and section 6106 of the Business and Professions Code
Degree of discipline: Stayed suspension for three years and until respondent complies with standard 1.4(c) (ii) and probation for three years, conditioned on restitution, actual suspension for one year, and other requirements
Harm
Respondent’s violations of quarterly reporting and restitution requirements harmed the administration of justice and the former clients to whom he owed restitution.
Multiple Acts of Misconduct
Respondent’s misconduct involved multiple violations of quarterly reporting and restitution requirements.
MITIGATION
Candor/Cooperation
Respondent has displayed candor to, and cooperation with, the State Bar in resolving the current case by entering into this Stipulation.
Physical Difficulties
Respondent had very severe medical difficulties during his period of misconduct.
Additional Mitigating Circumstances
During the period of his misconduct, respondent had to deal with severe health issues of a close relative and with severe financial difficulties.
SUPPORTING AUTHORITY
The misconduct in respondent’s initial disciplinary matters occurred in the 1990’s before his participation in the Alternative Discipline Program and involved no actual suspension. Because of very substantial mitigation in the current case, disbarment is not necessary. In compliance with standard 1.7(a) of the Standards for Attorney Sanctions for Professional Misconduct, the recommended discipline in the current case exceeds the discipline in State Bar Court case numbers 03-0-00177 et al.
ESTIMATED PROSECUTION COST
The estimated prosecution cost of the current cases is approximately $6,779.00. This sum is only an estimate, and the final cost may differ from the estimated cost. If this Stipulation is rejected or if relief from this Stipulation is granted, the prosecution cost of the current case may increase because of the cost of further proceedings.
DATE OF DISCLOSURE OF ANY PENDING INVESTIGATION OR PROCEEDING
On September 28, 2011, the State Bar sent a disclosure
letter by e-mail to respondent. In this letter, the State Bar advised him of
any pending investigations or proceedings against him other than the current
case.
Case Number(s): 11-O-12864
In the Matter of: Charles M. Barrett
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: Charles M. Barrett
Date: 09/30/2011
Respondent’s Counsel: **
Date: **
Deputy Trial Counsel: Mark Hartman
Date: 09/30/2011
Case Number(s): 11-O-12864
In the Matter of: CHARLES M. BARRETT
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
checked. All Hearing dates are vacated.
1. On page 4, section D.(1)(a)(i) remove the "and until" std. 1.4(c)(ii) condition from the stayed suspension as unnecessary (See, In the Matter of Luis (Review Dept. 2004) 4 Cal. State Bar Ct. Rptr. 737.)
2. On p. 12, regarding the 3d disciplinary matter, add, after the State Bar Court case no.: Supreme Court no. S074111;
3. On p. 13, regarding the 4th disciplinary matter, add, after the State Bar Court case no.: Supreme Court no. S164738.
4. On p. 13, Respondent confirmed through sufficient and uncontradicted evidence the following facts in mitigation: In, the fall of 2011, Respondent had a lesion removed from his hand and tests revealed Respondent had suffered a recurrence of malignant skin cancer, requiring a number of surgical procedures and nearly six months of chemotherapy. As a result of his health issues and the treatment for the cancer, Respondent suffered a number of documented debilitating side effects, including open sores and blisters throughout his body, fatigue, nausea and an involuntary 40 pound weight loss within a five week period. A needed and planned hip replacement surgery has been delayed because Respondent’s health did not permit him to undergo such surgery. While undergoing chemotherapy, Respondent also suffered a recurrence of pre-existing abdominal disease, resulting in two medical procedures in addition to the surgeries and procedures required in treatment of his cancer. Also during 2010 and 2011, Respondent was the sole individual responsible for the care of a close family member who was suffering from a serious, chronic medical condition. During 2010 and 2011, Respondent suffered financial difficulties as a result of IRS and Franchise Tax Board levies seeking payment for business taxes from an office operated by Respondent in the 1990s. Despite levies against his account, Respondent has paid all sums due under the terms of the orders issued in the underlying matters, which totaled $146,952.85 in restitution, $6,788.22 in costs to the State Bar and $13,854 for Respondent’s mandated participation in the Lawyer’s Assistance Program, which Respondent successfully completed in timely fashion. These amounts paid as restitution and to the State Bar are amounts in addition to sums Respondent collectively paid to the IRS and Franchise Tax Board for personal tax obligations arising in 1996 and 2003. During this period, Respondent continued to be employed and there are no other pending disciplinary matters other than the instant matter for failure to timely pay restitution (which was actually paid within the time specified within the original order) and the untimely or incorrect filings of mandated Quarterly Reports.
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: Patricia McElroy
Date: October 13, 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 San Francisco, on October 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 **, California, addressed as follows:
CHARLES MARTIN BARRETT
DREYER BABICH ET AL LLP
20 BICENTENNIAL CIR
SACRAMENTO, CA 95826
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MARK HARTMAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on October 13, 2011.
Signed by:
Laine Silber
Case Administrator
State Bar Court