Case Number(s): 11-O-15087
In the Matter of: Charles Reginald Wear, Bar # 102381, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kimberly G, Anderson
The State Bar of California
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1083
Bar# 150359
Counsel for Respondent: In Pro Per Respondent
Charles Reginald Wear
6876 Indiana Avenue, Suite H
Riverside, CA 92506
(951) 530-1543
Bar.# 102381
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: March 6, 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.
1. Respondent is a member of the State Bar of California, admitted February 5, 1982.
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 13 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 are added to membership fee for calendar year following effective date of discipline.
<<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.
Case Number(s): 11-O-15087
In the Matter of: Charles Reginald Wear
a. Restitution
<<not>> checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee:
Principal Amount:
Interest Accrues From:
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. 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.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3. The requirements of this condition are in addition to those set forth in rule 4-100, Rules of Professional Conduct.
checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
IN THE MATTER OF: Charles Reginald Wear, State Bar No. 102381
STATE BAR COURT CASE NUMBER: 11-O-15087
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. 11-O-15087 (Complainant: Tina M. Jackson)
FACTS:
1. In April 2010, Tina M. Jackson ("Jackson") hired Respondent to represent her in a Chapter 13 bankruptcy case. Respondent agreed to handle her bankruptcy case for $2,000 in attorney’s fees, $274 for filing fees, $50 for a credit report and $125 for a property report. Jackson and Respondent agreed that Jackson would pay $1,000 for attorneys’ fees and $399 for costs up front, and then she would pay the balance when she could afford to do so at a later date.
2. On April 19, 2010, Jackson paid Respondent $300 in advanced fees. On May 20, 2010, Jackson paid Respondent an additional $700 in advanced fees. On July 29, Jackson paid Respondent $274 for the filing fee and $125 for the property report.
3. On February 17, 2011, Respondent emailed Jackson and terminated his employment by telling her he could not represent her because he was ill. Respondent did not perform any services of value for Jackson and he promised to refund the money.
4. Between February 17, 2011 and June 27, 2011, Jackson continued to demand that Respondent refund her money to her, but Respondent did not refund the money.
5. On June 27, 2011, Jackson filed a complaint with the State Bar complaining that Respondent had refused to refund her money to her. The State Bar opened an investigation in case no. 11-O-15087.
6. On September 1, 2011, a State Bar investigator wrote to Respondent regarding Jackson’s allegations in case no. 11-O-15087. The investigator also requested Respondent provide his client trust account records and an accounting for the client’s money. The investigator’s letter was placed in a sealed envelope correctly addressed to Respondent at his State Bar of California membership address. Respondent received the letter. The investigator’s letter requested that Respondent respond in writing to specified allegations of misconduct being investigated by the State Bar in case no. 11-O-15087. Respondent had until about September 16, 2011 to respond to the investigator’s letter, but he did not respond to the investigator’s letter.
7. On September 29, 2011, when she had not received a response to her letter, the investigator wrote to Respondent again regarding Jackson’s allegations in case no. 11-O-15087. The investigator’s letter was placed in a sealed envelope correctly addressed to Respondent at his State Bar of California membership address. Respondent received the letter. The investigator’s letter requested that Respondent respond in writing to specified allegations of misconduct being investigated by the State Bar in case no. 11-O-15087. Respondent had until about October 13, 2011 to respond to the investigator’s letter, but he did not respond to the investigator’s letter in writing.
8. On October 1,2011, Respondent refunded the $1,399 in attorneys’ fees and costs to Jackson.
9. On October 14, 2011, Respondent emailed the investigator stating, "Ms Jackson has received a refund of her money. Can this suffice for this case?" On October 14, 2011, the investigator replied to Respondent’s email, stating your written response and supporting documents are still required." Respondent received the investigator’s email reply, but Respondent did not provide any written response to the investigator’s letters, and he did not provide any accounting or client trust account records.
CONCLUSIONS OF LAW:
10. By failing to refund the $1,000 in unearned fees between February 17, 2011 and October 1, 2011, Respondent failed to promptly refund unearned fees in willful violation of Rules of Professional Conduct, rule 3-700(d)(2).
11. By failing to refund the $399 in costs to the client between February 17, 2011 and October 1, 2011, Respondent failed to promptly pay out client funds as directed by his client in willful violation of Rules of Professional Conduct, rule 4-100(b)(4).
12. By not providing a written response to the allegations in case nos. 11-O-15087, and by not providing an accounting and client trust account records as requested by the investigator or otherwise cooperating in the investigation of the matter, Respondent failed to cooperate in a disciplinary investigation in willful violation of Business and Professions Code, section 6068(i).
MITIGATION:
Severe Financial Stress: During the time Respondent had failed to promptly refund Jackson’s money to her as promised, Respondent underwent unexpected financial difficulties. Respondent had purchased a home under a land sale contract, which was his primary residence. He was paying rent to the owner of record of the property with the promise that he would ultimately own the property. The owner became ill and failed to make timely payments. In order to prevent the bank from foreclosing on the property, Respondent had to come up with two additional unexpected payments of $2330 for a total of $4,660, in addition to his other anticipated living expenses.
Family Problems: Respondent’s wife had been homeschooling their eight-year old child, when she was diagnosed with certain mental health issues. Respondent had to make other arrangements for his child’s schooling, which had previously been handled by his wife. Respondent’s wife’s father also passed away from heart failure. These stressors created marital and family problems, although Respondent and his wife did not divorce or separate as a result of those problems.
Additional Mitigation: Though the misconduct was serious, Respondent has had no prior discipline in the more than thirty years he has practiced law. Although Respondent failed to cooperate during the disciplinary investigation, upon being advised that disciplinary charges would be filed, Respondent agreed to enter into a full and complete stipulation to facts and legal conclusions and to disposition of this matter prior to the State Bar having to file disciplinary charges in this matter. During the time of the misconduct, Respondent suffered from family problems and severe financial stress as described above, which led to emotional difficulties, anxiety, depression and insomnia for which he sought some psychological counseling in February and March 2011.
AGGRAVATION:
Harm (Standard 1.2(b)(iv): Respondent’s misconduct resulted in harm to Jackson because she was deprived of her funds from February 17, 2011 until October 1, 2011.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was February 9, 2012.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.10 of the Standards for Attorney Sanctions for Professional Misconduct provides for reproval to suspension for a violation of the Rules of Professional Conduct not otherwise specified in the Standards. This is the applicable Standard for a violation of Rules of Professional Conduct, rule 3-700(d)(2).
Standard 2.6 calls for suspension or disbarment for a violation of Business and Professions Code, section 6068(i).
Standard 2.2(b) calls for a minimum of a three-month actual suspension for any violation of Rule 4-100(a) of the Rules of Professional Conduct.
Standard 1.6 (a) provides that, "If two or more acts of professional conduct are found or acknowledged in a single disciplinary proceeding, and different standards are prescribed by these standards for said acts, the sanction imposed shall be the more or most severe of the different applicable sanctions." Therefore, Standard 2.2(b) is the applicable sanction. The Standards for Attorney Sanctions for Professional Misconduct ("Standards") are entitled to great weight and the State Bar Court should follow their guidance wherever possible. In re Robert Silverton (2005) 36 Cal.4th 81, 92.
However, the Court is "not bound to follow the standards in talismanic fashion. As the final and independent arbiter of attorney discipline, [the Court is] permitted to temper the letter of the law with considerations peculiar to the offense and the offender." (See, In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980.) Standard 1.6(b)(ii) also provides that the appropriate sanction shall be imposed unless, "[m]itigating circumstances are found to surround the particular act of misconduct found or acknowledged and the net effect of those mitigating circumstances, by themselves and in balance with any aggravating circumstances found, demonstrates that the purposes of imposing sanctions set forth in standard 1.3 will be properly fulfilled if a lesser degree of sanction is imposed. In that case, a lesser degree of sanction than the appropriate sanction shall be imposed or recommended."
In In the Matter of Hanson (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 703,710, the attorney received a public reproval based upon his failure to promptly refund an unearned fee to his client and failure take reasonable steps to avoid foreseeable prejudice to his client due to his withdrawal from representing the client. The attorney had a prior record if discipline. While Respondent’s misconduct in this case involves additional violations not present in Hansen, Respondent has been an attorney for more than thirty years without discipline, which is a substantial mitigating factor and Respondent was candid an cooperative in entering into a pre-filing stipulation in this case so that it was not necessary for the State Bar to file its disciplinary case, which is also entitled to substantial mitigation. Jackson was harmed in that she was deprived of her funds from February 17, 2011 and October 1, 2011. On balance, this case is similar to Hanson, but does involve additional violations of Business and Professions Code, section 6068(i) for failing to cooperate in a disciplinary investigation and Rule 4-100(b)(4) of the Rules of Professional Conduct for failing to promptly return the $399 in costs advanced by the client.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of February 9, 2012, the prosecution costs in this matter are approximately $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.
SIGNATURE OF THE PARTIES
Case Number(s): 11-O-15087
In the Matter of: Charles Reginald Wear
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 Reginald Wear
Date: February 16, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Kimberly G. Anderson
Date: February 22, 2012
Case Number(s): 11-O-15087
In the Matter of: Charles Reginald Wear
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: Donald F. Miles
Date: March 16, 2012
[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 March 6, 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:
CHARLES REGINALD WEAR
LAW OFFICE OF CHARLES R. WEAR
6876 INDIANA AVE STE H
RIVERSIDE, CA 92506
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
KIMBERLY ANDERSON, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 6, 2012.
Signed by:
Rose Luthi
Case Administrator
State Bar Court