Case Number(s): 12-N-16993-PEM
In the Matter of: David Lin, Bar # 174022, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Heather E. Abelson, Deputy Trial Counsel
180 Howard Street
San Francisco, CA 94105-1639
Phone: (415) 538-2357
Bar # 243691,
Counsel for Respondent: in Pro Per Respondent
David Lin
1036 Jena Terrace
Sunnyvale, CA 94089
Bar # 174022
Submitted to: State Bar Court Clerk’s Office San Francisco.
Filed: January 14, 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 7, 1994.
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 9 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 awarded to the State Bar.
<<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.
9.
ORDER OF INACTIVE ENROLLMENT:
The parties are aware that if this stipulation is approved, the judge will
issue an order of inactive enrollment under Business and Professions Code
section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule
5.111(D)(1).
IN THE MATTER OF: David Lin, State Bar No. 174022
STATE BAR COURT CASE NUMBER: 12-N-16993-PEM
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-N-16993-PEM (Rule 9.20 Proceeding)
FACTS:
1. On May 15, 2012, Respondent was convicted of violating 18 U.S.C. sections 1349 (conspiracy to commit mail and wire fraud), 1341 (mail fraud), and 1343 (wire fraud) in the United States District Court, Northern District of California, San Francisco Division, Case No. 3:11-cr-00393. Respondent appealed his conviction, and his appeal is pending.
2. On June 29, 2012, the Review Department of the State Bar Court, In Bank, issued an Interim. Suspension After Conviction Order in Case No. 12-C-13717 (hereinafter "9.20 Order"). The 9.20 Order included a requirement that Respondent comply with Rule 9.20, California Rules of Court, by performing the acts specified in subdivisions (a) and (c) within 30 and 40 days, respectively, after the effective date of the 9.20 Order.
3. On June 29, 2012, a Case Administrator of the State Bar Court properly served upon Respondent a copy of the 9.20 Order. Respondent received the 9.20 Order.
4. The Review Department Order became effective on July 22, 2012. Thus, Respondent was ordered to comply with subdivision (a) of Rule 9.20 of the California Rules of Court no later than on or about August 26, 2012, and was ordered to comply with subdivision (c) of Rule 9.20 no later than on or about September 5, 2012.
5. To date, Respondent has not filed with the clerk of the State Bar Court a declaration of compliance with Rule 9.20(a), California Rules of Court, as required by Rule 9.20(e).
CONCLUSIONS OF LAW:
6. By not filing a declaration of compliance with Rule 9.20, Respondent has failed to comply with the Review Department’s 9.20 Order requiring Respondent to do acts connected with or in the course of his professions which he ought in good faith to do, in wilful violation of Business and Professions Code section 6103.
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 Nancy 0990) 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.)
Here, Respondent violated Business and Professions Code section 6103 by willfully failing to comply with the Review Department’s Rule 9.20 Order. The applicable standard is Standard 2.6(b) which provides that a violation of section 6103 shall result in disbarment or suspension "depending on the gravity of the offense or the harm, if any, to the victim[.]" The expect level of discipline set forth in the plain language of California Rules of Court, rule 9.20, as well as related case law supports a level of discipline in this matter at the highest level of standard 2.6(b).
Rule 9.20 states in pertinent part "A suspended member’s willful failure to comply with the provisions of this role constitutes a cause for disbarment .... "
Disbarment is also supported by caselaw. In Matter of Esau (2007) 5 Cal. State Bar Rptr. 131, the Review Department disbarred respondent for failing to comply with rule 9.20. The Court stated "Indeed, the finding that respondent willfully violated a court order requiring his compliance with rule 9.20 is sufficient grounds for disbarment when, as here, the evidence in mitigation is not compelling." ld. at 133. The Court noted that "the decisional law has been weighted towards disbarment for violations of rule 9.20. Id. at 138. The Court further noted that recent cases that "resulted in discipline of less than disbarment involved significant evidence in mitigation and/or substantial compliance with rule 9.20[.]" ld. Here, disbarment is appropriate because, as in Esau, there is not compelling evidence in mitigation, nor is there substantial compliance with rule 9.20.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was December 19, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of December 20, 2012, the prosecution costs in this matter are $2,382.00. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this mater may increase due to the cost of further proceedings.
SIGNATURE OF THE PARTIES
Case Number(s): 12-N-16993-PEM
In the Matter of: David Lin, State Bar No.: 174022
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: David Lin
Date: December 21, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Heather E. Abelson
Date: December 26, 2012
Case Number(s): 12-N-16993-PEM
In the Matter of: David Lin, State Bar No.: 174022
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.)
Respondent David Lin is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herein, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Judge of the State Bar Court: Pat E McElroy
Date: January 14, 2013
[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 January 14, 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 San Francisco, California, addressed as follows:
DAVID LIN
1036 JENA TER
SUNNYVALE, CA 94089
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Heather E. Abelson, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on January 14, 2013.
Signed by:
George Hue
Case Administrator
State Bar Court