Case Number(s): 12-H-17982
In the Matter of: MICHAEL ALAN BRUSH, Bar # 46576, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Adriana M. Burger, Bar # 92534,
Counsel for Respondent: Michael Alan Brush, Bar # 46576,
Submitted to: Settlement Judge.
Filed: October 29, 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 June 26, 1970.
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.
Attachment language (if any):.
FINANCIAL CONDITIONS
Case Number(s): 12-H-17982
In the Matter of: MICHAEL ALAN BRUSH
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: Department of Public Works, City of Los Angeles, Office of Finance-Revenue Management Division
Principal Amount: $ 3,351.34
Interest Accrues From: September 12, 2013 (Date of first invoice)
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
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) Department of Public Works, City of Los Angeles, Office of Finance-Revenue Management Division
Minimum Payment Amount $300.00
Payment Frequency Monthly
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
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
<<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.
SUBSTANCE ABUSE CONDITIONS
Case Number(s): 12-H-17982
In the Matter of: MICHAEL ALAN BRUSH
checked. a. Respondent must abstain from use of any alcoholic beverages, and shall not use or possess any narcotics, dangerous or restricted drugs, controlled substances, marijuana, or associated paraphernalia, except with a valid prescription.
checked. b. Respondent must attend at least four (4) meetings per month of:
<<not>> checked. Alcoholics Anonymous
<<not>> checked. Narcotics Anonymous
<<not>> checked. The Other Bar
checked. Other program Please see "other" below.
As a separate reporting requirement, Respondent must provide to the Office of Probation satisfactory proof of attendance during each month, on or before the tenth (10th) day of the following month, during the condition or probation period.
<<not>> checked. c. Respondent must select a license medical laboratory approved by the Office of Probation. Respondent must furnish to the laboratory blood and/or urine samples as may be required to show that Respondent has abstained from alcohol and/or drugs. The samples must be furnished to the laboratory in such a manner as may be specified by the laboratory to ensure specimen integrity. Respondent must cause the laboratory to provide to the Office of Probation, at the Respondent’s expense, a screening report on or before the tenth day of each month of the condition or probation period, containing an analysis of Respondent’s blood and/or urine obtained not more than ten (10) days previously.
<<not>> checked. d. Respondent must maintain with the Office of Probation a current address and a current telephone number at which Respondent can be reached. Respondent must return any call from the Office of Probation concerning testing of Respondent’s blood or urine within twelve (12) hours. For good cause, the Office of Probation may require Respondent to deliver Respondent’s urine and/or blood sample(s) for additional reports to the laboratory described above no later than six hours after actual notice to Respondent that the Office of Probation requires an additional screening report.
checked. e. Upon the request of the Office of Probation, Respondent must provide the Office of Probation with medical waivers and access to all of Respondent’s medical records. Revocation of any medical waiver is a violation of this condition. Any medical records obtained by the Office of Probation are confidential and no information concerning them or their contents will be given to anyone except members of the Office of Probation, Office of the Chief Trial Counsel, and the State Bar Court who are directly involved with maintaining, enforcing or adjudicating this condition.
Other: As a condition of probation, and during the period of probation, Respondent must attend a minimum of four (4) meetings per month of any abstinence-based self-help group of Respondent’s choosing, including without limitation Alcoholics Anonymous, Narcotics Anonymous, LifeRing, S.M.A.R.T., S.O.S., etc. Other self-help maintenance programs are acceptable if they include a subculture to support recovery, including abstinence-based group meetings. (See O’Conner v. Calif. (C.D. Calif. 1994) 855 F. Supp. 303 [no First Amendment violation where probationer given choice between AA and secular program].) Respondent is encouraged, but not required, to obtain a "sponsor" during the term of participation in these meetings.
The program called "Moderation Management" is not acceptable because it is not abstinence-based and allows the participant to continue consuming alcohol.
Respondent must contact the Office of Probation and obtain written approval for the program Respondent has selected prior to attending the first self-help group meeting. If Respondent wants to change groups, Respondent must first obtain the Office of Probation’s written approval prior to attending a meeting with the new self-help group.
Respondent must provide to the Office of Probation satisfactory proof of attendance at the meetings set forth herein with each Quarterly Report required to be submitted to the Office of Probation. Respondent may not sign as the verifier of his or her own attendance.
Respondent is encouraged, but is not required, to participate in the Lawyers’ Assistance Program, to abstain from alcohol and illegal drugs, and to undergo random urinalysis testing to complement abstinence.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: MICHAEL ALAN BRUSH, State Bar No. 46576
STATE BAR COURT CASE NUMBER: 12-H-17982
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. 12-H-17982 (State Bar Investigation)
FACTS:
1. On July 9, 2012, the State Bar Court issued a disciplinary order publicly reproving Respondent and requiring him to comply with certain conditions attached to the reproval for a period of two years (the "Reproval Order"). At all relevant times, Respondent had notice of the Reproval Order, which became effective on July 31, 2012.
2. Pursuant to the Reproval Order, Respondent was ordered to comply with the following conditions, among others:
a) to contact the Office of Probation no later than August 30, 2012 to schedule a meeting with Respondent’s assigned probation deputy to discuss the conditions of Respondent’s reproval;
b) to attend at least four meetings per month of an abstinence-based self-help group of Respondent’s choosing and approved by the Office of Probation and to provide to the Office of Probation documentary proof of attendance at the meetings of the approved program with each quarterly report required to be submitted to the Office of Probation as a condition of the reproval, commencing with the report due on October 10, 2012;
c) to comply with all conditions of probation imposed in the underlying criminal matter and to so declare under penalty of perjury in each quarterly report required to be submitted to the Office of Probation as a condition of the reproval, commencing with the report due on October 10, 2012;
d) to contact the City of Los Angeles Department of Streets and/or the City of Los Angeles Department of Water and Power to arrange to pay restitution for any and all property damage to the light standard caused by Respondent’s misconduct, to pay the restitution and to provide satisfactory proof of payment of restitution to the Office of Probation within one (1) year from the effective date of the disciplinary order, but if Respondent’s insurance carrier is deemed responsible for restitution, to provide the Office of Probation within one (1) year from the effective date of the disciplinary order satisfactory proof of payment made by Respondent’s insurance carrier for the benefit of Respondent; and e) to submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10 of the condition period attached to the reproval stating under penalty of perjury whether Respondent has complied with the State Bar Act, the Rules of Professional Conduct, and all conditions of the reproval during the preceding quarter.
3. Respondent failed to timely contact the Office of Probation by August 30, 2012 to schedule a meeting and instead contacted the Office of Probation on January 28, 2013 to schedule the meeting.
4. Respondent failed to attend at least four meetings of an abstinence-based self-help group approved by the Office of Probation for the months of August 2012 (attended no meetings), September 2012 (attended no meetings), October 2012 (attended two meetings), November 2012 (attended one meeting) and December 2012 (attended no meetings) and failed to submit to the Office of Probation proof of attendance at the meetings of the approved program.
5. Respondent failed to declare under penalty of perjury that he had complied with all the conditions of probation in the underlying criminal matter in the quarterly reports that he submitted on October 10, 2012, January 10, 2013, and July 10, 2013.
6. Respondent failed to contact the City of Los Angeles Department of Streets and/or the City of Los Angeles Department of Water and Power to arrange and pay restitution for any and all property damage to the light standard caused by Respondent’s misconduct and failed to submit satisfactory proof of payment of restitution to the Office of Probation, which was due no later than July 31, 2013.
7. Respondent failed to timely submit three quarterly reports to the Office of Probation. He submitted the report due October 10, 2012 on October 11, 2012, he submitted the report due January 10, 2013 on February 12, 2013, and he submitted the report due on July 10, 2013 on July 30, 2013.
8. Respondent failed to comply with conditions attached to the Reproval Order.
CONCLUSIONS OF LAW:
9. By failing to comply with all of the conditions of the Reproval Order, Respondent willfully violated Rules of Professional Conduct, rule 1-110.
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Multiple Acts of Misconduct (Std. 1.2(e)(ii)): From July 31, 2012 to July 31, 2013, Respondent committed multiple acts of misconduct by failing to comply with twenty-one (21) probationary terms and conditions within the twelve month period.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Prefiling Stipulation: Respondent admitted to the misconduct and entered into this stipulation fully resolving this matter prior to the filing of disciplinary charges. Respondent’s cooperation at this early stage will save the State Bar significant resources and time. Respondent’s cooperation in this regard is a mitigating factor in this resolution. (Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 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. (In 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. (In re Naney (1990) 51 Cal.3d 186, 190.)
Standard 2.9 applies to Respondent’s failure to comply with the conditions of the Reproval Order and provides that a wilful violation of Rules of Professional Conduct, rule 1-110 shall result in suspension. Standard 1.7(a) provides that Respondent has a record of one prior discipline. Accordingly, the degree of discipline imposed in this matter must be greater than the public reproval imposed in the prior proceeding.
Pursuant to standards 2.9 and 1.7(a), a suspension is appropriate in this matter. In light of the misconduct; the aggravating factors including Respondent’s prior record of discipline and the multiple violations of disciplinary conditions; and the mitigating credit for entering into a prefiling stipulation, a one-year suspension stayed, with a three-year probation with conditions including a 60-day actual suspension will protect the public, the courts, and the legal profession, help maintain high professional standards, and preserve public confidence in the profession.
Case law also supports the stipulated level of discipline. In Conroy vs. State Bar (1990) 51 Cal.3d 799, the attorney failed to timely comply with one condition of his reproval, defaulted at trial, and received a one-year stayed suspension with a one year period of probation with conditions including a 60-day actual suspension. While Respondent is cooperating unlike the attorney in Conroy, and also has more mitigation, Respondent committed more extensive misconduct. Accordingly, the level of discipline suggested by Conroy is also appropriate here.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was October 7, 2013.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 7, 2013, the prosecution costs in this matter are $ 2,925.00. 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): 12-H-17982
In the Matter of: MICHAEL ALAN BRUSH
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: MICHAEL ALAN BRUSH
Date: 10/9/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Adriana M. Burger
Date: 10/9/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-H-17982
In the Matter of: MICHAEL ALAN BRUSH
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: 10/28/13
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 October 29, 2013, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING ACTUAL SUSPENSION
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:
MICHAEL ALAN BRUSH
BRUSH & SACKS
815 MORAGA DR.
LOS ANGELES, CA 90049
<<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:
ADRIANA BURGER, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 29, 2013.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court