Case Number(s): 11-O-17442-RAH
In the Matter of: Dennis M. Russell, Bar # 118523, 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: Ellen A. Pansky, Pansky Markle Ham, LLP
101.0 Sycamore Avenue, Suite 308
South Pasadena, CA 91030
(213) 626-7300
Bar # 77688,
Submitted to: Assigned Judge .
<<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 June 11, 1985.
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. 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-17442-RAH
In the Matter of: Dennis M. Russell
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.
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: Dennis M. Russell, State Bar No. 118253
STATE BAR COURT CASE NUMBER: 11-O-17442-RAH
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-17442-RAH (Complainant: Karen and Ronald Dinson)
FACTS:
1. On March 17, 201 I, Ronald and Karen Dinson ("the Dinsons") hired Respondent to represent them in a foreclosure defense proceeding involving real property located at 24737 Choke Cherry Lane in Newhall, California.
2. On March 17, 2011, the Dinsons paid Respondent $3,000 in advanced fees.
3. On March 18, 2011, Respondent and Karen Dinson had a telephone conversation that lasted approximately 14 minutes.
4. On March 24, 2011, Karen Dinson sent a text message to Respondent requesting a status update. Respondent received the text message and responded stating that he would call Karen Dinson the next day. Respondent did not call Karen Dinson on March 25, 2011 or at any time between May 25, 2011 and March 29, 2011.
5. On March 29, 2011, Karen Dinson sent Respondent another text message requesting status update, Respondent received the text message and responded stating that he would call Karen Dinson the next day. Respondent did not call Karen Dinson on March 30, 2011 or on March 31, 2011.
6. On March 3 I, 2011, Karen Dinson sent Respondent another text message requesting a status update. Respondent received the text message, but did not respond to it at any time between March 31, 2011 and May 24, 2011.
7. On May 24, 201 I, the Dinsons hired new counsel to complete the work Respondent had not yet begun, and they sent Respondent a letter terminating his legal services, which was mailed to Respondent via first class mail to his State Bar Membership Records Address of 9595 Wilshire Blvd. Ste. 900, Beverly Hills, CA 90212, which was also the address Respondent had provided to the Dinsons when they hired him. Respondent received the letter.
8. Respondent did not earn any portion of the $3,000 the Dinsons paid to him because he did not perform any services of value to the Dinsons.
9. Respondent did not provide an accounting to the Dinsons for the $3,000 in advanced fees the), paid to him after they terminated him.
10. On December 6, 2011, after having been made aware that the Dinsons had filed a State Bar complaint against him, Respondent refunded the $3,000 in advanced fees to them.
CONCLUSIONS OF LAW:
11. By failing to respond to Karen Dinson’s requests for status updates at any time between March 24 and May 24, 2011, Respondent failed to promptly respond to reasonable status inquiries from his client in willful violation of Business and Professions Code, section 6068(m).
12. By failing to provide the Dinsons with an accounting for the $3,000 at any time between May 24, 2011 and December 6, 2011, Respondent failed to promptly and properly account to the Dinsons in violation of Rules of Professional Conduct, rule 4-100(B)(3).
13. By failing to refund the $3,000 in unearned advanced fees to the Dinsons at any time between May 24, 2011 and December 6, 2011, Respondent failed to promptly refund unearned fees to the Dinsons in violation of Rules of Professional Conduct, rule 3-700(D)(2).
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violation in the interest of justice:
Case No: 11-O-17442-RAH, Count: One, Alleged Violation: Rule 3-110(A), Rules of Professional Conduct
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline: Respondent has a prior record of discipline as discussed on page 2 of this Stipulation and as discussed in the Authorities Supporting Discipline and Analysis section below.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was July 18, 2011.
AUTHORITIES SUPPORTING DISCIPLINE AND ANALYSIS.
Standard 1.6 provides that where there are multiple acts of professional misconduct found in a single disciplinary proceeding, the most severe of the different sanctions shall be imposed. Standard 2.2(b) is the most severe sanction.
Standard 2.2(b) also applies to Respondent’s failure to account to the Dinsons. It states:
Culpability of a member of commingling entrusted funds or property with personal property or the commission of another violation of rule 4-100 of the Rules of Professional Conduct, none of which offenses result in the willful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances.
Respondent’s prior discipline is an aggravating factor. (See, Standards 1,2(b)(i) and 1.7(a).) Standard 1.7(a) states:
If a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one prior imposition of discipline.. ,the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior discipline was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust.
In In the Matter of Downey (Review Dept, 2009) 5 Cal. State Bar Ct. Rptr. 151, the State Bar Court Review Department recently addressed the application of progressive discipline pursuant to Standard 1.7(a). Where the attorney had a prior record of discipline that was similar to his current misconduct, but the prior misconduct was more serious and had been imposed twelve years earlier, the Review Department concluded progressive discipline was warranted. Downey’s actions in both his prior and subsequent discipline involved dishonesty, while this Respondent’s misconduct in both the prior and current disciplinary matters involves failing to communicate with his clients and failing to promptly refund unearned fees.
Like the attorney in Downey, Respondent’s prior misconduct was more serious than his current misconduct. Respondent’s prior misconduct involved a pattern of abandonment and failure to communicate with approximately 37 clients over a two-year period between approximately 1990 and 1992. Although Respondent only received a 30-day actual suspension in that ease, he was placed on five years’ probation and his probation ended in July 2000. The misconduct in the instant ease does not amount to a pattern, but involves a single incident which began in 2011, eleven years after his disciplinary probation ended and sixteen years after that discipline had been imposed. Respondent’s significant prior discipline for the same type of misconduct should have provided Respondent with a heightened sense of awareness of his ethical obligations with respect to the Dinsons. Therefore, progressive discipline is warranted, and the Respondent is receiving a 90 day actual suspension (three times the amount of suspension for his first disciplinary matter). On balance, the instant case involves one client incident eleven years after his disciplinary probation ended and sixteen years after that discipline had been imposed.
In determining the level of discipline, the Standards are entitled to great weight. (In re Silverton (2005) 36 Cal.4th 81, 89-94 and In re Brown (1995) 12 Cal.4th 205,220. But the Standards are not applied in a talismanic fashion, and the Court tempers its analysis of the proper level of discipline by considerations peculiar to the offense and the offender. (In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct, Rptr. 980, 994.)
Based upon the consideration of all relevant facts and circumstances, a 90 day actual suspension represents sufficiently progressive discipline to impress upon Respondent that he must promptly respond to client inquiries mad he must refund and account for unearned fees promptly upon termination of his employment, but also takes into account the fact that the misconduct in this matter involves a single client matter.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of July 18, 2011, the prosecution costs in this matter are approximately $6,944.00. 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-17442-RAH
In the Matter of: Dennis M. Russell
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: Dennis M. Russell
Date: July 20, 2012
Respondent’s Counsel: Ellen A. Pansky
Date: July 20, 2012
Deputy Trial Counsel: Kimberly G. Anderson
Date: July 20, 2012
Case Number(s): 11-O-17442-RAH
In the Matter of: Dennis M. Russell
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: Richard Honn
Date: July 31, 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 August 3, 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:
ELLEN ANNE PANSKY
PANSKY MARKLE HAM LLP
1010 SYCAMORE AVE UNIT 308
SOUTH PASADENA, CA 91030
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
KIMBERLY g. Anderson, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 3, 2012.
Signed by:
Cristina Potter
Case Administrator
State Bar Court