Case Number(s): 11-O-16078, 11-O-16901, 11-O-18206, 12-O-11763, 12-O-13458
In the Matter of: Eliot Scott Gorson, Bar # 99717, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erica L.M. Dennings, Office of the Chief Trial Counsel
180 Howard Street, 7th F1.
San Francisco, CA 94105
(415) 538-2285
Bar # 145755,
Counsel for Respondent: Richard Miller, 1600 S. Main Street, Suite 230
Walnut Creek, CA 94596
Bar # 63760,
Submitted to: Assigned Judge – State Bar Court Clerk’s Office San Francisco.
<<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 1, 1981.
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 16 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.
Case Number(s): 11-O-16078, 11-O-16901, 11-O-18206, 12-O-11763, 12-O-13458
In the Matter of: Eliot Scott Gorson, State Bar No.: 99717
a. Restitution
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: Armando Jimenez
Principal Amount: $7474
Interest Accrues From: 2/23/11
2. Payee: Jim Hamilton
Principal Amount: $3600
Interest Accrues From: 2/14/11
3. Payee: Luis Coronado
Principal Amount: $1800
Interest Accrues From: 2/17/11
4. Payee: Maria Berrera
Principal Amount: $1500
Interest Accrues From: 6/9/11
5. Payee: Alberto Falconi
Principal Amount: $2800
Interest Accrues From: 2/17/12
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than three months from the effective date of discipline.
<<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.
<<not>> 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: Eliot Gorson, State Bar No. 99717
STATE BAR COURT CASE NUMBER: 11-O-16078, 11-O-16901, 11-O-18206, 12-O-11763, 12-O-13458
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-16078 (Complainant: Armando Jimenez)
FACTS:
1. On February 23, 2011, Armando and Sandy Jimenez ("the Jimenezes"), hired respondent to obtain a home mortgage loan modification. At that time, the Jimenezes’ home was already in foreclosure. The Jimenezes paid $1800 as advanced fees on that date and another $1800 on March 23, 2011.
2. At the time of hire, neither respondent nor any attorney explained the terms of the written fee agreement to the Jimenezes. Instead, the fee agreement was explained by one of respondent’s non attorney staff.
3. The Jimenezes also signed an authorization for ACIV-Paralegal and Bankruptcy Petition Services to represent, them and to speak on their behalf, in connection with all modification/short sale/Bankruptcy efforts pertaining to the loan on their home.
4. Thereafter, the loan modification was denied. Respondent did not obtain a loan modification or any other relief that was of benefit to the Jimenezes.
5. After the loan modification was denied, a non attorney staff person in respondent’s office advised the Jimenezes to file for bankruptcy to forestall the foreclosure proceedings.
6. On May 13, 2011 the Jimenezes paid respondent $3874 to file a chapter 13 bankruptcy petition.
7. Thereafter, respondent failed to file a bankruptcy petition on behalf of the Jimenezes.
8. At some point while respondent represented the Jimenezes, their home was sold.
9. At no time did the Jimenezes meet or talk to respondent. At no time did respondent himself perform any work on the Jimenezes loan modification. Respondent’s non-attorney staff did all the "work" on the loan modification case.
10. Respondent failed to perform any services of value on behalf of the Jimenezes and, therefore, did not earn any portion of the advanced fees paid by the Jimenezes.
11. To date, respondent has failed to refund any portion of the $3874 in unearned fees to the Jimenezes for the bankruptcy matter.
12. On July 20, 2011, the Jimenezes sent a letter to respondent requesting that he return their files. Respondent received the request but failed to provide the files.
CONCLUSIONS OF LAW:
1. By failing to obtain a loan modification, failing to file a bankruptcy petition, and failing to perform any services of value on behalf of the Jimenezes, respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
2. By offering to perform a home mortgage loan modification for the Jimenezes for a fee and collecting fees from the Jimenezes prior to fully performing each and every service respondent contracted to perform or represented he would perform, respondent collected or received such fee prior to fully performing each and every service respondent had contracted to perform or represented that he would perform in violation of section 2944.7(a) of the Civil Code, respondent willfully violated Business and Professions Code section 6106.3.
3. By failing to refund any part of the $3874 paid by the Jimenezes for the bankruptcy matter, respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of rule 3-700(D)(2).
4. By allowing his non-attorney staff to give legal advice to the Jimenezes, including explaining the terms of the written fee agreement, performing all of the loan modification work with little or no supervision, and advising the Jimenezes to file for bankruptcy, respondent aided a person or entity in the unauthorized practice of law in willful violation of rule 1-300(A).
5. By allowing his non attorney staff to perform all of the loan modification work and give legal advice to clients with little or no supervision, respondent failed to supervise his non attorney staff, thereby recklessly failing to perform legal services in willful violation of rule 3-110(A).
6. By not releasing the client files to the Jimenezes, Respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property in willful violation of rule 3-700(D)(1).
Case No. 11-O-16901 (Complainant: Hamilton)
FACTS:
1. On February 14, 2011, Jim Hamilton hired respondent to obtain a home mortgage loan modification. At that time, Hamilton’s home was already in foreclosure. Hamilton paid $1800 as
2. advanced fees on that date and another $1800 on March 10, 2011. Hamilton provided all the documents requested of him by respondent’s office.
3. After providing an authorization to the lender, respondent failed to take any further steps to obtain a loan modification or other relief for Hamilton. In fact, respondent did not communicate with, or provide documents to, the lender as requested. The request for a loan modification was denied.
4. Respondent failed to perform any services of value on behalf of Hamilton.
5. After May 2011, Hamilton requested that respondent return all of the fees he paid. Respondent was aware of the request but failed to return any fees to Hamilton. To date, respondent has failed to refund any portion of the $3600 to Hamilton.
6. During respondent’s representation, Hamilton called respondent at least five times to determine the status of his case, leaving messages for respondent to return his calls. Respondent failed to return his calls and Hamilton was not told the status of his case.
CONCLUSIONS OF LAW:
1. By not taking steps to obtain a loan modification and not providing any services of value to Hamilton, respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
2. By offering to perform a home mortgage loan modification for Hamilton for a fee collecting fees from Hamilton prior to fully performing each and every service respondent contracted to perform or represented he would perform, respondent charged and collected such fee prior to fully performing each and every service respondent had contracted to perform or represented that he would perform in violation of section 2944.7(a) of the Civil Code, respondent willfully violated Business and Professions Code section 6106.3.
3. By not responding to Hamilton’s inquiries about his case, Respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services in willful violation of section 6068(m) of the Business and Professions Code.
Case No. 11-O-18206 (Complainant: Coronado)
FACTS:
1. Prior to February 17, 2012, Carlos Lopez ("Lopez"), a non lawyer, of American Realty Financial telephoned Luis Cornado ("Cornado") on behalf of respondent to solicit his business for a loan modification. Lopez promised Coronado a 100% success rate in obtaining a modification and that the modification would be complete in 120 days. On that date, Coronado signed a fee agreement with the Law Offices of Eliot Gorson and gave Lopez a cashier’s check for $1800 made payable to the Law Offices of Eliot Gorson. Coronado paid $1800 before any work was performed. At the time of hire, neither respondent nor any attorney explained the terms of the written fee agreement to Coronado.
2. Thereafter, respondent failed to obtain a loan modification or perform any services of value for Coronado.
3. Respondent failed to perform any services of value on behalf of Coronado. In August 2011 and November 2011 Coronado requested that respondent return the fees he paid. Respondent was aware of the request but failed to return any fees to the Coronado. To date, respondent has failed to refund any portion of the $1800 fee to Coronado.
CONCLUSIONS OF LAW:
1. By failing to obtain a loan modification or provide any services of value to Coronado, respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
2. By offering to obtain a loan modification for Coronado for a fee and collecting fees from Coronado prior to fully performing each and every service respondent contracted to perform or represented he would perform, respondent charged and collected such fee prior to fully performing each and every service respondent had contracted to perform or represented that he would perform in violation of section 2944.7(a) of the Civil Code, respondent willfully violated Business and Professions Code section 6106.3.
3. By allowing Lopez to call Coronado on respondent’s behalf for the purpose of convincing Coronado to hire respondent for a loan modification, respondent solicited a potential client with whom he had no family or prior professional relationship in willful violation of rule 1-400(C).
Case No. 12-O-11763 (Complainant: Barrera)
FACTS:
1. On June 9, 2011, Maria Barrera employed the law offices of Eliot Gorson to obtain loan modifications for the first and second mortgages on her home. Barrera wrote a check for $1500 payable to the Law Offices of Eliot Gorson. Barrera paid $1500 to respondent prior to any work being done. Barrera signed a fee agreement with the Law Offices of Eliot Gorson. Barrera did not meet with an attorney. Thereafter, one of Barrera’s loans was modified, but not the other. Respondent took no steps to perform any work on behalf of Barrera with respect to modifying the second loan.
2. On March 15, 2012 and April 6, 2012, a State Bar investigator wrote to respondent concerning the allegations in Barrera’s complaint. The letters requested a written response to the allegations. Respondent received the letters., but did not provide a written response to the allegations in the Barrera matter.
CONCLUSIONS OF LAW:
1. By offering to obtain a loan modification for Barrera for a fee and collecting fees from Barrera prior to fully performing each and every service respondent contracted to perform, respondent charged and collected such fee prior to fully performing each and every service respondent had contracted to perform or represented that he would perform in violation of section 2944.7(a) of the Civil Code, respondent willfully violated Business and Professions Code section 6106.3.
2. By not taking any steps to obtain a loan modification on Barrera’s second mortgage, respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
3. By not providing a written response to the allegations in the Barrera complaint, respondent failed to cooperate in a State Bar investigation, in willful violation of section 6068(i) of the Business and Professions Code.
Case No. 12-O-13458 (Complainant: Falconi)
FACTS:
1. In February 2012, Alberto Falconi hired respondent to obtain loan modification. Falconi paid $2800. Falconi signed a fee agreement with the Law Offices of Eliot Gorson. Thereafter, respondent performed no services of value on behalf of Falconi.
CONCLUSIONS OF LAW:
1. By offering to obtain a loan modification for Falconi for a fee and collecting fees from Falconi prior to fully performing each and every service respondent contracted to perform, respondent charged and collected such fee prior to fully performing each and every service respondent had contracted to perform or represented that he would perform in violation of section 2944.7(a) of the Civil Code, respondent willfully violated Business and Professions Code section 6106.3.
2. By failing to obtain a loan modification or provide any services of value to Falconi, respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was May 24, 2012
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.4 (b) multiple offenses involving failure to communicate and perform shall result in reproval or suspension depending upon the extent of the misconduct and degree of harm to the client.
Standard 2.10 requires reproval on suspension for violation of any provision of Business and Professions Code or Rules of Professional Conduct not specified in the standards according to gravity of the offense of harm.
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed on January 26, 2012 in case numbers 11-O-16078 and 11-O-16901 and April 10, 2012 in case number 11-O-18206 and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
RESTRICTIONS WHILE ON ACTUAL SUSPENSION
During the period of actual suspension, respondent shall not:
2. Respondent shall declare under penalty of perjury that he or she has complied with this provision in any quarterly report required to be filed with the Probation Unit, pertaining to periods in which the respondent was actually suspended from the practice of law.
DISMISSALS
The parties respectfully request that the Court dismiss the following counts with prejudice in the interests of justice:
Case no. 11-O-16078
Count One (C) rule 4-200(A)
Count Two (C) rule 4-200(A)
Count Two (D) rule 3-700(D)(2)
Case no. 11-O-16901
Count Three rule 4-200(A)
Count Four rule 3-700(D)(2)
Case no. 11-O-18206
Count Three rule 4-200(A)
Count Four rule 3-700(D)(2)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of May 24, 2012, the prosecution costs in this matter are $12,252. 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.
Case Number(s): 11-O-16078, 11-O-16901, 11-O-18206, 12-O-11763, 12-O-13458
In the Matter of: Eliot Scott Gorson, State Bar No.: 99717
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: Eliot S. Gorson
Date: May 29, 2012
Respondent’s Counsel: Richard S. Miller
Date: May 29, 2012
Deputy Trial Counsel: Erica L.M. Dennings
Date: May 29, 2012
Case Number(s): 11-O-16078, 11-O-16901, 11-O-18206, 12-O-11763, 12-O-13458
In the Matter of: Eliot Scott Gorson, State Bar No.: 99717
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.
<<not>> checked. All Hearing dates are vacated.
1. On page 4 in paragraph (D)(3), insert an "X" in the box next to the heading, "Actual Suspension."
2. On page 4 in subparagraph(3)(a)(ii), delete the words, "in the Financial Conditions form attached to this stipulation" and in their place insert the following: "on page 7 of this stipulation."
3. On page 5, in paragraph E(10), delete the "x" from the box that precedes the words, "The following conditions are attached hereto and incorporated" and also delete the "x" from the box within that same paragraph that precedes the words, "Financial Conditions."
4. On page 7, delete the heading at the top of the page that says, "Financial Conditions."
5. In section "a. Restitution" on page 7, delete the "x" from the box that appears underneath the table that lists the payees to whom restitution must be paid, the amounts of restitution to be paid, and the dates from which interest will accrue and delete the sentence that appears next to that box in its entirety.
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: Pat McElroy
Date: June 14, 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 San Francisco, on June 14, 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 San Francisco, California, addressed as follows:
RICHARD STEVEN MILLER
1600 S MAIN ST #230
WALNUT CREEK, CA 94596
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERICA L. M. DENNINGS, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on June 14, 2012.
Signed by:
Mazie Yip
Case Administrator
State Bar Court