Case Number(s): 11-O-17033
In the Matter of: ROBERT WILLIAM BATES, Bar # 125291, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Anthony J. Garcia, Bar #171419,
Counsel for Respondent: Robert William Bates, Bar #125291,
Submitted to: Settlement Judge.
Filed: August 5, 2013.
<<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 11, 1986.
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 14 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):
<<not>> 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.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: Two billing cycles following the effective date of the Supreme Court order. (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.
Attachment language (if any):.
FINANCIAL CONDITIONS
Case Number(s): 11-O-17033
In the Matter of: Robert William Bates
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 .
b. Installment Restitution Payments
<<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.
c. Client Funds Certificate
<<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.
d. Client Trust Accounting School
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.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: Robert William Bates, State Bar No. 125291
STATE BAR COURT CASE NUMBER: 11-O-17033
FACTS AND CONCLUSIONS OF LAW.
Robert William Bates (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-17033 (Kenneth Chemi)
FACTS
1. In 2009, Kenneth Chemi (Chemi) hired Respondent to represent him in a medical malpractice matter.
2. On September 23, 2009, Chemi mailed a check in the amount of $1,000 to Respondent’s office to pay for an independent medical examination (IME) that was to be conducted by Dr. Grossman.
3. The check was received by Respondent’s paralegal who deposited the check into Respondent’s general account and did not inform Respondent that the check had been received. Respondent closed his general account in March 2010, unaware that Chemi’s funds had been deposited into his general account.
4. Respondent never hired Dr. Grossman to perform the IME, and Dr. Grossman did not perform an IME in Chemi’s matter.
5. In November 2009, Respondent asked Chemi for another $1,000 to pay Dr. Line for an IME.
6. In November 2009, Chemi delivered $1,000 to Respondent for Dr. Line’ s IME, and Respondent deposited the funds into his client trust account (CTA).
7. In November 2009, Dr. Line performed the IME and Respondent paid Dr. Line $250. Respondent should have maintained the remaining $750 in his CTA.
8. However, by December 31, 2009, the balance in Respondent’s CTA dipped to $91.06, despite the fact that Respondent had not paid out any additional funds to Chemi or to anyone on Chemi’s behalf. Respondent, with gross negligence, misappropriated $658 of Chemi’s funds.
9. In May 2011, Chemi asked Respondent for a refund of $1,750. This request was the first time that Respondent learned that Chemi had delivered $1,000 to his office in September 2009.
10. In May 2011, Respondent refunded $750 to Chemi and requested bank records from his closed general account to confirm that Chemi had delivered $1,000 to his office in November 2009.
11. In September 2011, after confirming that Respondent’s paralegal deposited Chemi’s $1,000 into Respondent’s general account, and confirming that Chemi’s funds were not spent on expenses related to Chemi’s litigation, Respondent refunded $793.75 to Chemi. In December 2011, Respondent refunded $206.25 to Chemi, thereby refunding all of Chemi’s funds.
CONCLUSION OF LAW
12. By failing to deposit the $1,000 that Chemi sent to Respondent’s office in September 2009 for an IME into a client trust account, Respondent failed to deposit funds received for the benefit of a client in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import in willful violation of California Rules of Professional Conduct, rule 4-100(A).
13. By misappropriating $658,94 of Chemi’s funds, Respondent committed an act involving moral turpitude, dishonesty or corruption thereby violating California Business and Professions Code, section 6106.
14. By not completely refunding all of Chemi’s funds until December 2011, Respondent failed to pay promptly, as requested by a client, any funds in Respondent’s possession which the client is entitled to receive in willful violation of California Rules of Professional Conduct, rule 4-100(B)(4).
ADDITIONAL FACTS REGARDING AGGRAVATING CIRCUMSTANCES
Multiple Acts of Misconduct:
Respondent’s conduct involved multiple acts of wrongdoing. (Standard 1.2 (b)
Harm:
Respondent’s misconduct caused harm to Chemi. Chemi first paid Respondent $1,000 in September 2009 for an IME. Respondent never used those funds on his client’s behalf and did not return them to Chemi for over 2 years. Chemi lost the use of his funds for a prolonged period causing harm.
ADDITIONAL FACTS REGARDING MITIGATING CIRCUMSTANCES
No prior Discipline:
Respondent has been practicing since 1986 with no priors. He is entitled to some mitigating credit for no prior discipline even where the underlying conduct is found to be serious or significant. (ln the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn. 13.)
Extreme Emotional Difficulties:
In December 2008, Respondent married a woman from Indonesia who had a pending political asylum claim with Immigration and Naturalization Services (INS). In March of 2009, Respondent’s wife’s asylum claim was denied and INS initiated removal proceedings that would return her to Indonesia. Between March 2009 and April 2010, Respondent and his wife tried to adjust her immigration status to reflect her marriage to Respondent, a US citizen. But, in April 2010, their attempts to adjust her status were denied and Respondent’s wife was ordered to voluntarily depart the country. Respondent’s wife left the country in August 2010. She and Respondent assumed that upon leaving the country, she would be faced with a 10-year bar to re-entry. This series of events, resulting in Respondent’s "loss" of his wife caused him considerable stress during the period that this misconduct occurred. Due to recent events, Respondent’s wife may be able to apply for a visa within a year or two. (In the Matter of Kaplan (Review Dept. 1993) 2 Cal State Bar Ct. Rptr. 509, 519 [limited mitigation for marital difficulties in the absence of medical diagnosis].) In 2010, Respondent began winding down his law practice and he completed the last matter for his last client in January 2013.
Pre-filing Stipulation:
Respondent is entitled to mitigation for entering into a full stipulation with the Office of the Chief Trial Counsel prior to trial, thereby saving State Bar Court time and resources. (Silva-Vidor v. State Bar (1989) 49 Cal.3d 107 l, 1079 [where mitigation credit was given for entering into a stipulation as to facts and culpability].)
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipline" pursuant to a set of written principles to "better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to standards are to this source).) The primary purposes of disciplinary proceedings and of the sanctions imposed are "the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession." (In re Morse (1995) 11 Cal.4th 184, 205; std. 1.3.)
Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible" in determining level of discipline. (ln re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal.4th 205, 220 and In re Young (1989) 49 Cal.3d 257, 267, fn. 11.) Adherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (ln re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
Respondent admits to committing three acts of professional misconduct. Standard 1.6 (a) requires that where a Respondent acknowledges two or more acts of misconduct, and different sanctions are prescribed by the standards that apply to those acts, the sanction imposed shall be the more or most severe prescribed in the applicable standards. The most severe sanction applicable to Respondent’s misconduct is found in standard 2.2(a) which applies to Respondent’s violation of Business and Professional Code sections 6106 [moral turpitude-misappropriation].
Standard 2.2 provides that culpability of a member of wilful misappropriation of entrusted funds or property shall result in disbarment. Only if the amount of funds or property misappropriated is insignificantly small or if the most compelling mitigating circumstances clearly predominate, shall disbarment not be imposed. In those latter cases, the discipline shall not be less than a one-year actual suspension, irrespective of mitigating circumstances.
In the present matter, Respondent misappropriated $658.94 of Chemi’s funds. This amount falls within the court’s definition of an "insignificantly small" sum. (See Howard v. State Bar (1990) 51 Cal. 3d 215 [misappropriation of $1,300 a relatively small sum], In the Matter of Bleecker (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 113 [misappropriation of $277 was a relatively small amount].)
In addition, the mitigating circumstances clearly predominate in this matter. Respondent had been practicing for 23 years with no prior discipline when the instant misconduct occurred. At the time of his misconduct Respondent was struggling to keep his wife in this country. In addition, Chemi has received all of the money that he was owed. In recognition of his misconduct, Respondent closed his law practice and began a teaching career.
The California Supreme Court has stated that the usual discipline for misappropriation is disbarment (Howard v. State Bar (1990) 51 Cal.3d 215,221; Gordon v, State Bar (1982) 31 Cal.3d 748, 757), that it "generally" warrants disbarment (Friedman v. State Bar (1990) 50 Cal.3d 235,244; Kelly v. State Bar (1988) 45 Cal.3d 649, 656), that it "frequently" justifies disbarment (Weller v. State Bar (1989) 49 Cal.3d 670, 677), and that it "could warrant disbarment in the absence of extenuating circumstances" (Murray v. State Bar (1985) 40 Cal.3d 575, 583.)
But, "disbarment would rarely, if ever, be an appropriate discipline for an attorney whose only misconduct was a single act of negligent misappropriation, unaccompanied by acts of deceit or other aggravating factors." (Edwards v. State Bar, (1990) 52 Cal.3d 28.) In Edwards, the Supreme Court reviewed its own cases where it failed to disbar an attorney who had willfully misappropriated client funds due to a variety of extenuating circumstances that were deemed sufficient to warrant a lesser punishment than disbarment. To provide an example of its reasoning in Edwards, the court listed cases where the attorney has presented evidence of compelling mitigating circumstances or unusual difficulties the attorney was experiencing at the time of the misconduct, which tended to prove that the misconduct was aberrational and unlikely to recur. They included Weller v. State Bar, supra, 49 Cal.3d 670, 675 [emotional strain; character testimonials]; and Friedman v. State Bar, supra, 50 Cal.3d 235, 245 [stress of marital problems; long, unblemished record of legal practice]. (Edwards v. State Bar, 52 Cal. 3d at 38.)
In Edwards, the Supreme Court ordered Edwards suspended from the practice of law for three years, stayed the suspension order, and placed Edwards on probation for three years with probation conditions, including the condition that Edwards be actually suspended from the practice of law for one year. The Court found that Edwards commingled personal and client funds in his trust account, misappropriated about $3,000 of a client’s settlement funds, failed to maintain proper trust account records, and failed to promptly pay funds to his client that his client was entitled to receive. Edwards had no prior record of discipline and the Court found that he had not engaged in acts of deceit, had repaid his client in full within 3 months, had been candid and cooperative throughout the proceedings, and voluntarily took steps to improve his management of entrusted funds.
This case involves less money and fewer acts of misconduct than Edwards, and Respondent does not have a record of prior discipline. Like Edwards, Respondent did not engage in acts of deceit and because Respondent has left the practice of law he is unlikely to commit misconduct in the future. But Respondent took over two years to fully repay his client, unlike Edwards who repaid his client within three months.
On balance, in light of the gravity of Respondent’s misconduct, applying Standard 2.2(a), balancing the aggravating and mitigating factors and observing the Supreme Court’s findings in Edwards, the parties stipulate that one year actual suspension is appropriate to protect the public and to preserve public confidence in the profession.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was July 2, 2013.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of July 2, 2013, the prosecution costs in this matter approximately $4,500. Respondent further acknowledges that this is an estimate and 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.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Client Trust Accounting School. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 11-O-17033
In the Matter of: Robert William Bates
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: Robert William Bates
Date: 7/7/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Anthony J. Garcia
Date: 7/15/13
ACTUAL SUSPENSION ORDER
Case Number(s): 11-O-17033
In the Matter of: Robert William Bates
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: George E. Scott, Judge Pro Tem
Date: 8/2/13
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 Los Angeles, on August 5, 2013, 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 W BATES
PO BOX 6173
ALTADENA, CA 91003
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Anthony J. Garcia, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 5, 2013.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court