Case Number(s): 11-O-18489
In the Matter of: Gary Martin Sklar, Bar # 140580, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eli D. Morgenstern, DTC
State Bar of California
Office of the Chief Trial Counsel
1149 S. Hill St.
Los Angeles, CA 90015-2299
(213) 765-1334
Bar # 190560
Counsel for Respondent: Paul Jean Virgo, Esq.
9909 Topanga Blvd., Ste. 282
Chatsworth, CA 91311
(310) 666-9701
Bar # 67900
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: March 29, 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 June 6, 1989.
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.
SEE PAGE 12 FOR FURTHER DISCUSSION REGARDING COSTS.
Case Number(s): 11-O-18489
In the Matter of: Gary Martin Sklar
<<not>> checked. a. Within days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
<<not>> checked. b. Within days/ months/ one (1) years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Other:
IN THE MATTER OF: Gary Martin Sklar, State Bar No. 140580
STATE BAR COURT CASE NUMBER: 11-O-18489
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 Rule of Professional Conduct.
Case No. 11-O-18489 (Complainant: Maria Sanchez)
Facts:
1. On February 2, 2005, Maria Sanchez ("Sanchez") employed Respondent to represent her in a personal injury matter arising out of a slip-and-fall accident on January 31, 2004, at a Costco in Marina Del Rey, California.
2. On January 23, 2007, Respondent filed a complaint on behalf of Sanchez titled Maria Eva San, chez v. Costco/Wholesale Corporation," Costco Membership Corporation, Los Angeles Superior Court case number SC092501 (the "civil matter"). On January 30, 2007, Respondent caused the complaint in the civil matter to be served.
3. At no time did Respondent inform Sanchez that he had filed and served a complaint in the civil matter on her behalf.
4. On February 21, 2007, counsel for Costco Wholesale Corporation ("Costco") propounded Form Interrogatories, Set One ("Form Interrogatories") on Sanchez in connection with the civil matter. On February 21, 2007, Respondent was served with the Form Interrogatories. Respondent received the Form Interrogatories.
5. At no time did Respondent inform Sanchez that Costco had propounded Form Interrogatories in connection with the civil matter. At no time did Respondent inform Sanchez that she was required to prepare answers to the Form Interrogatories. At no time did Respondent serve Costco’s counsel with answers to the Form Interrogatories.
6. On March 16, 2007, counsel for Costco propounded Request for Production of Documents, Set One ("Request for Production of Documents") on Sanchez in connection with the civil matter. On March 16, 2007, Respondent was served with the Request for Production of Documents. Respondent received the Request for Production of Documents.
7. At no time did Respondent inform Sanchez that Costco had propounded Request for Production of Documents in connection with the civil matter. At no time did Respondent serve Costco’s counsel with responses to the Request for Production of Documents.
8. On May 14, 2007, the court in the civil matter conducted a Case Management Conference. Counsel for Costco appeared; neither Respondent nor Sanchez appeared. The Court set an OSC Re: Sanctions for Failure to Appear and continued the Case Management Conference to June 29, 2007. On May 14, 2007, counsel for Costco served Respondent with a copy of the May 14, 2007 Notice of Ruling. Respondent received the Notice of Ruling.
9. At no time did Respondent inform Sanchez of the Court’s May 14, 2007 Notice of Ruling.
10. On June 1, 2007, counsel for Costco served Respondent with a motion to compel responses to the Form Interrogatories and a motion to compel responses to Request for Production of Documents. Both motions were set to be held on June 28, 2007. Respondent received both motions.
11. At no time did Respondent inform Sanchez of the motion to compel responses to Form Interrogatories. At no time did Respondent inform Sanchez of the motion to compel responses to Request for Production of Documents.
12. On June 28, 2007, the court held a hearing on Costco’s motion to compel responses to Form Interrogatories and motion to compel responses to Request for Production of Documents. Counsel for Costco appeared at the hearing; neither Respondent nor Sanchez appeared at the hearing. The Court ordered Respondent to personally serve full and complete, code-compliant, verified responses to the Form Interrogatories without objection by no later than July 9, 2007. The Court also ordered Respondent to personally serve full and complete, code-compliant, verified responses to the Request for Production of Documents without objection by no later than July 9, 2007. On June 28, 2007, a copy of the Court’s June 28, 2007 Notice of Ruling was served on Respondent. Respondent received the Notice of Ruling.
13. At no time did Respondent inform Sanchez of the June 28, 2007 Notice of Ruling.
14. On June 29, 2007, the court held a Case Management Conference and OSC re: Sanctions for Failure to Appear in the civil matter. Neither Respondent nor Sanchez appeared. The Court continued the Case Management Conference and set an OSC Re: Terminating Sanctions for August 3, 2007. Additionally, the Court imposed sanctions jointly and severally against Respondent and Sanchez in the sum of $500 to be paid to Costco’s counsel before July 13, 2007. On June 29, 2007, a copy of the Court’s June 29, 2007 Notice of Ruling was served on Respondent. Respondent received the Notice of Ruling.
15. At no time did Respondent inform Sanchez of the June 29, 2007 Notice of Ruling.
16. On August 3, 2007, the Court held a Case Management Conference and OSC re: Sanctions for Failure to Appear in the civil matter. Neither Respondent nor Sanchez appeared at the hearing. The Court ordered the civil matter dismissed with prejudice. On August 3, 2007, a copy of the Court’s Order of Dismissal was served on Respondent. Respondent received the Order of Dismissal.
17. At no time did Respondent inform Sanchez of the Order of Dismissal.
18. In July 2011, Sanchez reviewed the Los Angeles County Superior Court website and discovered that Respondent had filed a complaint on her behalf in the civil matter, and that the civil matter was dismissed in August 2007.
19. On February 28, 2012, Respondent paid Costco’s counsel $500 pursuant to the Court’s June 29, 2007 order.
Conclusions of Law
By failing to prosecute the civil matter, Respondent failed to perform competently in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
By failing to inform Sanchez of the filing of the complaint in the civil matter, service of the Form Interrogatories and Request for Production of Documents, service of the motions to compel responses to the Form Interrogatories and Request for Production of Documents, the Court’s orders of May 14, 2007, June 28, 2007, and June 29, 2007 as memorialized in the respective Notice of Rulings, and the Order of Dismissal of the civil matter, Respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services, in willful violation of Business and Professions Code section 6068(m).
AGGRAVATING CIRCUMSTANCES.
1. Prior Record of Discipline
A prior record of discipline is an aggravating circumstance. (Std. 1.2(b)(i).) Respondent has been a member of the State Bar since June 6, 1989, and has a prior record of discipline.
On May 12, 2010, Respondent was privately reproved in Case No. 09-0-13905. Respondent stipulated that in 2005, he failed to take any steps to complete his clients’ binding arbitration, and thereby failed to perform competently in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
2. Multiple Acts of Wrongdoing.
Respondent failed to perform for, and communicate with, Sanchez. Respondent also failed to pay or move to modify or vacate the court’s sanction order. Respondent’s multiple acts of misconduct are an aggravating circumstance. (Std. 1.2(b)(ii).
3. Harm
By failing to prosecute the civil matter on Sanchez’s behalf, which led the court to dismiss the matter, Respondent caused harm to his client. This is an aggravating circumstance. (Std. 1.2(b)(iv).)
MITIGATING CIRCUMSTANCES.
1. Candor and Cooperation
Respondent is entitled to mitigation for entering into this stipulation.(Std. 1.2(e)(v).)
2. Good Character
Respondent has furnished evidence of his record of involvement in bar association and community service activities. Respondent has also provided the State Bar with character letters from lawyers and the general community with knowledge of the misconduct herein. The information provided by Respondent demonstrates good moral character and his commitment to the legal profession.
OTHER FACTORS IN CONSIDERATION.
During the period in which the misconduct herein was committed, Respondent did not employ an adequate office staff to assist him with the management of his office. After the misconduct was committed herein, Respondent recognized the inadequacy of his office staff. Respondent now has an adequate staff and an office management plan that is designed to prevent the type of misconduct committed herein from occurring again.
AUTHORITIES SUPPORTING DISCIPLINE.
1. Standards
Standard 1.3 of the Standards For Attorney Sanctions For Professional Misconduct ("Standards") provides that, "[T]he primary purposes of disciplinary proceedings.., 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."
’ Standard 1.7(a) provides that if a member has a prior record of discipline, the degree of discipline 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.
Standard 1.6(a) provides that if two or more acts of professional misconduct are acknowledged in a single disciplinary proceeding, and different sanctions are prescribed by the standards for the different acts, the sanction imposed shall be the most severe of the different applicable standards.
Standards 2.4(b) and 2.6(a) apply in this matter. The most severe sanction is found at Standard 2.6(a) which recommend disbarment or suspension for offenses involving failing to communicate adequately and failing to obey court orders, respectively, depending on the gravity of the offense or the harm, if any, to the victim, with due regard for the purposes of imposing discipline set forth in Standard 1.3.
The discipline imposed herein is progressive, in conformity with Standard 1.7(a), and within the range delineated by Standard 2.6(a).
PENDING PROCEEDINGS.
The disclosure date referred to on page 2, paragraph A(7), was March 12, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him that as of March 12, 2012, the prosecution costs in this matter are $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-18489
In the Matter of: Gary Martin Sklar
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: Gary Martin Sklar
Respondent:
Date: March 13, 2012
Respondent’s Counsel: Paul Jean Virgo
Date: March 15, 2012
Deputy Trial Counsel: Eli D. Morgenstern
Date: March 22, 2012
Case Number(s): 11-O-18489
In the Matter of: Gary Martin Sklar
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 A. Honn
Date: March 28, 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 29, 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:
PAUL JEAN VIRGO, ESQ
9909 TOPANGA BLVD #282
CHATSWORTH, CA 91311
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Eli D. Morgenstern, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 29, 2012.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court