Case Number(s): 12-O-10063
In the Matter of: Catherine Ann Moscarello, Bar # 216384, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eli D. Morgenstern, Senior Trial Counsel
The State Bar of California
1149 South Hill Street
Los Angeles, CA 90015
(213) 765-1334
Bar # 190560
Counsel for Respondent: Catherine Ann Moscarello, 1442 Cornell Circle
Sugar Lane, IL 60554
(714) 505-2121
Bar # 216984
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: July 6, 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 December 4, 2001.
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):
<<not>> checked. Costs are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following: three billing cycles following effective date of the Supreme Court order herein. (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. See page 12 for further discussion regarding costs.
<<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): 12-O-10063
In the Matter of: Catherine Ann Moscarello
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: Martha Rae
Principal Amount: $1,200
Interest Accrues From: 9/21/2008
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than one hundred eighty (180) days after the effective date of the Supreme Court order herein.
<<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.
<<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.
<<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.
IN THE MATTER OF: Catherine Ann Moscarello, State Bar No. 216384
STATE BAR COURT CASE NUMBER: 12-O-10063
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY.
The parties waive any variance between the First Amended Notice of Disciplinary Charges filed on May 2, 2012, and the facts and/or conclusions of law contained in this stipulation and waive the issuance of an Amended Notice of Disciplinary Charges.
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified Rule of Professional Conduct.
Case No. 12-O-10063 (Complainant: Martha Rae)
FACTS:
1. On May 30, 2007, Martha Rae ("Rae") employed Respondent to represent her in negotiations with Poe’s creditors with respect to Rae’s unsecured debt. On May 30, 2007, Poe paid Respondent $1,200 in advanced fees for Respondent’s legal services.
2. In August 2007, Rae moved to Indiana. At that time, Rae telephoned Respondent, advised Respondent that she had moved out of state, and terminated Respondent’s legal services. During the August 2007 telephone conversation, Respondent stated that Respondent would refund the $1,200 advanced fee that Respondent received from Rae.
3. Respondent did not provide any services of value on behalf of Rae.
4. Between August 2007 and June 2008, Rae telephoned Respondent at her membership records telephone number on several occasions inquiring about the status of the refund. Respondent stated that she intended to provide Rae with a refund of the $1,200 advanced fee.
5. In June 2008, Rae continued to telephone Respondent; however, Respondent did not return her voice mail messages. Consequently, in June 2008, Rae began sending e-mails to Respondent requesting a refund of the $1,200 in advanced fees that she paid to Respondent.
6. On September 21, 2008, Respondent sent Rae an e-mail stating that Respondent intended to refund Rae by way of four installment payments of $300, with the first payment to be made on September 26, 2008.
7. Respondent did not provide any portion of the first installment payment to Rae on September 26, 2008, or at anytime thereafter. Consequently, Rae telephoned Respondent several times after September 26, 2008, and left voice mail messages inquiring about the status of the refund. Respondent received the messages. Respondent did not respond to them. Rae also sent an e-mall to Respondent inquiring about the status of the refund. Respondent did not respond to the e-mail.
8. To date, Respondent has not provided Rae with a refund of any portion of the advanced fee that Respondent received from Rae.
CONCLUSION OF LAW:
By failing to refund the $1,200 advanced fee to Rae, Respondent failed to return an unearned fee to a client in wilful violation of rule 3-700(D)(2) of the Rules of Professional Conduct.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No.: 12-0-10063, Count: Two, Alleged Violation: Business and Professions Code § 6068(i)
PENDING PROCEEDINGS.
The disclosure date referred to on page 2, paragraph A(7), was June 4, 2012.
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 December 4, 2001, and has a prior record of discipline.
On May 26, 201 I, the California Supreme Court ordered, among other things, that Respondent be suspended from the practice of law for two (2) years, stayed, and that Respondent be placed on probation for three (3) years, subject to certain conditions including that she be actually suspended for one year and until she made restitution to eight (8) former clients in the total, principal sum of $12,097. Respondent’s misconduct included violating the following Rules of Professional Conduct and statutes in eight (8) client matters: (i) rule 3-110(A) of the Rules of Professional Conduct ("rule"), by falling to perform competently; (ii) Business and Professions Code section 6068(m) ("section"), by failing to communicate adequately with a client; (iii) rule 3-700(D)(2), by failing to refund unearned fees to a client; (iv) rule 3-700(A)(2), improper withdrawal from employment with a client; (v) rule 3-700(D)(1), by falling to return a client file to a client; and (vi) section 6068(i), by falling to cooperate in a State Bar investigation. (Supreme Court Case No. S191623; State Bar Court Case Nos. 09-O-11594 (09-O-11951; 09-O-14461; 09-O-15562; 09-O-16259; 09-O-16858) 10-O-03447; 10-O-09288.)
Respondent committed the misconduct between 2007 and 2009.
2. Harm
By failing to return the unearned, advance fee that Rae paid to her, Respondent caused financial harm to Rae. (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).)
AUTHORITIES SUPPORTING DISCIPLINE.
1. Standards
Standard 1.3 of the Standards For Attorney Sanctions For Professional Misconduct ("Standards") provides that, "IT]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 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 discipline 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.
The appropriate level of discipline for the culpability of a member who violates rule 3-700(A)(2) of the Rules of Professional Conduct is not specified in the Standards. Under Standard 2.10, the appropriate level of discipline for a violation of a role not specified in the Standards is a reproval or suspension, according to 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.
2. Case Law
In In the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602, 619, the State Bar Court stated that "part of the rationale for considering prior discipline as having an aggravating impact is that it is indicative of a recidivist attorney’s inability to conform his or her conduct to ethical norms..." Given this rationale, the State Bar Court stated that "the aggravating force of prior discipline is generally diminished if the misconduct underlying it occurred during the same time period." (Id.) Therefore, when the misconduct committed by a respondent in a current proceeding is contemporaneous with the misconduct that he or she committed in a prior proceeding, the State Bar Court considers the totality of the findings in both proceedings to determine what the discipline would have been "had all the charged misconduct in this period been brought as one case." (Id.)
Here, Respondent’s current misconduct, i.e., failing to return an unearned fee in violation of rule 3-700(D)(2), was contemporaneous with her prior misconduct. When the totality of the facts and circumstances of the findings in the two proceedings are considered together, the rule violation herein would not have increased the level of discipline already imposed in the prior proceeding.
Accordingly, a one-year stayed suspension conditioned upon a one-year probation is consistent with the Standards and the case law.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed her that as of June 4, 2012, the prosecution costs in this matter are approximately $3,269. The costs are to be paid in equal amounts prior to February 1 for the following three billing cycles following the effective date of the Supreme Court order herein.
If Respondent fails to pay any installment within the time provided herein or as may be modified by the State Bar Court pursuant to section 6086.10, subdivision (c), the remaining balance of the costs is due and payable immediately and enforceable both as provided in Business and Professions Code section 6140.7 and as a money judgment unless relief has been granted under the Rules of Procedure of the State Bar of California. (Rules Proc. of State Bar, rule 5.134.)
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.
Case Number(s): 12-O-10063
In the Matter of: Catherine Ann Moscarello
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: Catherine Ann Moscarello
Date: June 28, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Eli D. Morgenstern
Date: July 3, 2012
Case Number(s): 12-O-10063
In the Matter of: Catherine Ann Moscarello
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. Platel
Date: July 5, 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 July 6, 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:
CATHERINE A. MOSCARELLO
8 CORPORATE PARK STE 300
IRVINE, CA 92606
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ELI MORGENSTERN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on July 6, 2012.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court