Case Number(s): 12-O-11661
In the Matter of: Sergio J. Lopez, Bar # 259288, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Mia R. Ellis, Deputy Trial Counsel
1149 South Hill St.
Los Angeles, CA 90015
213-765-1380
Bar # 228235,
Counsel for Respondent: John “Jack” Nelson, Weisenberg & Nelson, Inc.
12437 Lewis St., 204
Garden Grove, CA 92840
714-703-7070
Bar # 73958,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: May 22, 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 2, 2008.
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 10 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 (public reproval).
<<not>> checked. Case ineligible for costs (private reproval).
<<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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
IN THE MATTER OF: Sergio J. Lopez, State Bar No. 259288
STATE BAR COURT CASE NUMBER: 12-O-11661
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-O-11661 (Complainant: Linda Gonzalez)
FACTS:
1. On April 18, 2011, Linda Gonzalez ("Gonzalez") signed a fee agreement with Respondent, employing Respondent to represent her brother, Enrique Vasquez ("Vasquez"), in two felony criminal matters in which Vasquez was a defendant, entitled People v. Enrique Vasquez, Orange County Superior Court case number 11CF0941, and People v. Enrique Vasquez, Orange County Superior Court case number 11 WF0889 (collectively, the "criminal actions"). Vasquez remained incarcerated throughout the period of Respondent’s representation.
2. On April 19, 2011, Gonzalez paid Respondent $14,000 in advanced fees.
3. On May 31,2011, Rudy Gonzalez, Linda Gonzalez’s husband called Respondent terminating his representation. Respondent advised that he needed to hear directly from Vasquez.
4. On June 5, 2011, Vasquez signed and caused a letter to be sent to Respondent, by certified mail, terminating Respondent’s representation and requesting a complete copy of Vasquez’s file in the criminal actions, an accounting of legal services rendered, and a refund of all unearned fees. Respondent received the letter.
5. On June 15,2011, Vasquez hired a new attorney, Douglas Meyers. Myers called Respondent’s office a number times and left messages requesting Respondent to provide Myers with Vasquez’s entire criminal file. Respondent received the messages but did not return the file to Vasquez or to Myers.
6. On July 7, 2011, Respondent’s paralegal, Jessie Wong, sent a letter to Vasquez, at Gonzalez’s address, containing two accounting statements, each dated July 6, 2011, for legal services performed in connection with each of the two criminal actions. The accounting for case number 11CF0941 stated that Vasquez’s account had a remaining balance of $505. The accounting for case number 11WF0889 stated that Vasquez’s account had a remaining balance of $$75. The July 7, 2011 letter stated that Respondent would mail Vasquez a refund check "sometime next week."
7. Between June 15, 2011 and July 13,2011, Myers went to Respondent’s office to pick up Vasquez’s file regarding the criminal actions. The file was incomplete.
8. On July 14, 2011, Myers contacted Respondent’s office to request the remainder of Vasquez’s file. Myers was told that the remaining documents from the file were work product and would not be turned over.
9. On July 14, 2011, Myers sent Respondent a letter asking for the file. Respondent received the letter. Respondent thereafter failed to release the remainder of Vasquez’s file to Myers.
10. On August 2, 2011, the Orange County Superior Court set an Order to Show Cause ("OSC") for August 30, 2011, regarding Respondent’s failure to provide Myers with Vasquez’s file. Respondent received notice of the August 30, 2011 OSC.
11. On August 30, 2011, Respondent appeared at the OSC and provided Myers with the remaining documents he had from Vasquez’s file.
12. Respondent did not obtain Vasquez’s informed written consent for Respondent to accept compensation from Gonzalez to pay for Vasquez’s representation.
13. On March 26, 2013, Respondent refunded $1,380 in unearned advanced fees to Gonzalez.
CONCLUSIONS OF LAW:
14. By failing to obtain Vasquez’s informed written consent for Respondent to accept compensation from Gonzalez to pay for Vasquez’s representation, Respondent accepted compensation for representing a client from one other than the client without complying with the requirement that Respondent obtain the client’s informed written consent, in willful violation of Rules of Professional Conduct, rule 3-310(F).
15. By failing to release Vasquez’s file upon Vasquez’s request between June 5, 2011, and August 30, 2011, Respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property, in willful violation of Rules of Professional Conduct, rule 3-700(D)(1).
16. By failing to promptly refund $1,380 in unearned advanced fees to Vasquez or Gonzalez which he did not earn, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned, in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent’s conduct involved multiple acts of wrongdoing as he has stipulated to three separate acts of misconduct.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Additional Mitigating Circumstances:
Pre-Trial Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of Chief Trial Counsel prior to the trial, thereby saving State Bar Court time and resources. In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 993-994.) However, the facts in the matters could have been proven by documentary evidence and witness testimony. Thus, Respondent’s cooperation is entitled to only slight weight in mitigation. (In re Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 151,156)
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." (ln 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. (ln re Naney (1990) 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.)
The California Supreme Court accepts a disciplinary recommendation resulting from application of the standards unless it has "grave doubts" about the recommendation’s propriety. (In re Morse, supra, 11 Cal.4th at p. 206; In re Lamb (1989) 49 Cal.3d 239, 245.)
Standard 2.10 provides the culpability of a member of a violation of any provision of the Business and Professions Code not specified in the standards or of a wilful violation of any Rule of Professional Conduct not specified in the standards, including violations of rules 3-310(F), 3-700(D)(1), and 3-700(D)(2), shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
Here, the gravamen of Respondent’s misconduct is his failure to refund unearned fees and failure to completely release a file. However, Respondent’s misconduct did not cause significant harm to his client as the representation occurred during a limited period of time, approximately three months, and Respondent has now refunded the unearned fees. Balancing the misconduct, and mitigating and aggravating factors, the parties maintain that a public reproval is appropriate in this case pursuant to Standard 2.6 and will adequately protect the public, the courts, and the legal profession.
PENDING PROCEEDINGS.
The disclosure date referred to on page 2, paragraph A(7), was May 7, 2013.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of May 7, 2013, the prosecution costs in this matter are $2,945. Respondent further acknowledges that this is an estimate and 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.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-11661
In the Matter of: Sergio Lopez
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: Sergio Lopez
Date: April 30, 2013
Respondent’s Counsel: John Jack Nelson
Date: May 1, 2013
Deputy Trial Counsel: Mia R. Ellis
Date: May 7, 2013
Case Number(s): 12-O-11661
In the Matter of: Sergio Lopez
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department 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.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: George E. Scott, Judge Pro Tem
Date: May 21, 2013
[Rule 62(b); Rules Proc. of State Bar; 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 May 22, 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 Los Angeles, California, addressed as follows:
JOHN WILLIAM NELSON
WEISENBERG & NELSON, INC.
12437 LEWIS ST STE 204
GARDEN GROVE, CA 92840
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MIA ELLIS, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on May 22, 2013.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court