Case Number(s): 12-O-11833-RAP
In the Matter of: Kevin Robert Riva, Bar # 186921, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: William Todd, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, California 90015
213-765-1491
Bar # 259194
Counsel for Respondent: Samuel J. Long, 3877 12th St
Riverside, California 92501
Bar # 133159
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
Filed: November 26, 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 16, 1996.
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 11 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.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: the two billing cycles immediately following the effective date of the Supreme Court order in this matter. (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.
Please see “Facts Re Additional Aggravating Circumstances” on page eight of the attachment to the stipulation.
Please see “Facts Re Additional Mitigating Circumstances” on page eight of the attachment to the stipulation.
D. Discipline:
Respondent must apply for a client fee arbitration regarding Cesar Alvarado Real’s matter within sixty (60) days of the effective date of the Supreme Court Order in this matter. Respondent is to bear the costs of this arbitration, and must provide proof of filing to the Office of Probation. Respondent must also provide proof of the outcome of this arbitration to the Office of Probation within one (1) year of the effective date of the Supreme Court order in this matter.
IN THE MATTER OF: KEVIN ROBERT RIVA
CASE NUMBER(S): 12-0-11833
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-11833 (Complainant: Cesar Alavarado Real)
FACTS:
1. On May 4, 2011, Cesar Real ("Real") retained Respondent for two purposes. The first was to represent Real in an immigration matter. The second was to complete an expungement on behalf of Real in Riverside County criminal case no. RIM358480. Real paid Respondent a $2,500.00 fee for both services.
2. Respondent never completed the necessary expungement filing on Real’s behalf in Riverside County Criminal Case RIM358480 as originally agreed on May 4, 2011.
3. Real retained new counsel in February 2012.
4. On February 2, 2012, an attorney hired by Real to resolve his ongoing immigration matter sent Respondent a letter advising Respondent that Real had retained the new attorney, and that Respondent should immediately send Real’s client file to the new attorney.
5. On February 6, 2012, the same attorney sent Respondent a letter requesting Real’s client file.
6. Respondent did not return Real’s client file after either request.
7. Despite being advised on February 2, 2012 and February 6, 2012 that Real had secured new counsel prior to Respondent completing the agreed upon expungement, Respondent failed to refund any portion of the fees he received from Real.
8. Respondent did not earn a portion of the $2,500.00 fee Real paid him for both services.
CONCLUSIONS OF LAW:
9. By failing to return Respondent’s client file, Respondent willfully failed to release promptly, upon termination of employment, to the client, at the request of the client, all client papers and property in violation of Rules of Professional Conduct rule 3-700(D)(1).
10. By failing to refund any part of Real’s fee which was paid in advance, Respondent willfully failed to refund promptly at least a portion of a fee paid in advance that has not been earned in violation of Rules of Professional Conduct rule 3-700(D)(2).
FACTS RE ADDITIONAL AGGRAVATING CIRCUMSTANCES.
Multiple/Pattern of Misconduct: Respondent’s admissions demonstrate multiple acts of misconduct. See In the Matter of Field (Review Dept. 2010) 5 Cal. State Bar Ct. Rptr 171. By failing to return Real’s file and/or refund the unearned fee to Real, Respondent’s misconduct injured Real in two ways, both of which are both distinct and serious. As a result, the number of charges here is properly considered an aggravating circumstance.
Additional Aggravating Circumstances: Respondent’s failure to return Real’s file to his client did cause some harm. See In the Matter of Conner (Review Dept. 2008) 5 Cal. State Bar Ct. Rptr. 93. However, as appropriate handling of client property is central to an attorney’s duties, and since the client’s file is considered client property, Respondent’s failure to return it upon demand is harmful, and is properly considered an aggravating circumstance.
FACTS RE ADDITIONAL MITIGATING CIRCUMSTANCES.
No Prior Discipline: Respondent has no prior record of discipline in fourteen (14) years of practice at the time of the misconduct. See In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41.
Candor/Cooperation: Respondent has cooperated with the State Bar in drafting this stipulation, including stipulation to all relevant facts, aggravation, and mitigation. However, cooperation with State Bar disciplinary proceedings is required, and the stipulations offered here are of facts easily proven, which limits the weight available in mitigation. See In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41.
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, n. 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.) 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.)
Standard 2.10 provides that culpability of a member of a violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim.
Here, Respondent’s failure to return his client’s file and/or refund unearned fees certainly caused harm to the client, and offenses involving a failure to promptly return funds and/or property are not minor offenses. However, in this instance, the harm is not severe, and though Respondent’s violations are well-established they are not especially egregious. As a result, these violations merit discipline in the lower range of standard 2.10, and a one-year stayed suspension will adequately address the purpose of attorney discipline.
Aggravation and Mitigation
The next issue is the effect of aggravating and mitigating circumstances on the level of discipline. As described in standard 1.6(b), the appropriate sanction shall be the sanction imposed unless aggravating circumstances are found to surround the particular act of misconduct and that the net effect of those aggravating circumstances, in balance with any mitigating circumstances found, demonstrates that a greater degree of sanction is required, or vice versa.
The relevant aggravating circumstance here is the presence of two acts of misconduct under standard 1.2 (b)(ii). Additionally, though there is some harm to the client here, the harm is not significant enough to fall under standard 1.2 (b)(iv), and thus would be considered merely an additional aggravating circumstance.
In mitigation, Respondent did have fourteen (14) years of discipline-free practice prior to this misconduct. Additionally, Respondent did cooperate with the State Bar in drafting this stipulation, which includes stipulations to facts, conclusions of law, aggravation, mitigation and level of discipline.
On the whole, the aggravation and mitigation here are roughly equivalent, resulting in no net change to the appropriate level of discipline. Therefore, the appropriate discipline, in light of both the aggravating and mitigating circumstances, remains a one-year stayed suspension.
California Supreme Court Precedent
In Bach v. State Bar (1991) 52 Cal.3d 1201, the respondent was found culpable of falling to perform legal services for client in uncontested marital dissolution proceeding, failing to communicate with client over much of the time, withdrawal of representation without client’s consent or court approval, failing to refund unearned fees paid in advance and failure to cooperate in State Bar’s investigation of the complaint against him. Respondent’s mitigation in Bach was his twenty (20) years of misconduct-free practice leading up to his misconduct, and aggravation included his attitudes towards discipline, which was made obvious by his attempt to claim mitigation in multiple areas in which there was no supporting evidence. The court ultimately ordered a 12-month suspension, stayed, with actual suspension for 30 days.
Compared to this matter, the misconduct in Bach is more severe, as the misconduct in Bach was both broader (greater number of charges) and in some ways deeper (such as the repeated failures to communicate with a client). Also, the attitude of the respondent in Bach worked against him, and in fact strengthened the case for actual suspension. Here, as described above, the misconduct is both less severe and narrower than that seen in Bach, and Respondent’s attitude here is one of remorse, not indignance. In light of these factors, a one-year stayed suspension, without a period of actual suspension, is sufficient to protect the public, the courts, and the legal profession while also remaining consistent with both the standards for attorney discipline and relevant California Supreme Court precedent.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was October 30, 2012.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. 12-O-11833; Count ONE; Alleged Violation Rules of Professional Conduct rule 3-110(A);
Case No. 12-O-11833; Count TWO; Alleged Violation Business and Professions Code section 6068(m);
Case No. 12-O-11833; Count THREE; Alleged Violation Rules of Professional Conduct rule 4-100(A);
Case No. 12-0-11833; Count FOUR; Alleged Violation Rules of Professional Conduct rule 4-100(B)(3);
Case No. 12-0-11833; Count FIVE; Alleged Violation Rules of Professional Conduct rule 3-700(A)(2)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 30, 2012, the prosecution costs in this matter are $5,308.00. 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.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School ordered as a condition of reproval or suspension. (Rules Proc. of State Bar, rule 3201.)
Case Number(s): 12-O-11833
In the Matter of: Kevin Robert Riva
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: Kevin Robert Riva
Date: October 30, 2012
Respondent’s Counsel: Samuel J. Long
Date: October 30, 2012
Deputy Trial Counsel: William Todd
Date: October 30, 2012
Case Number(s): 12-O-11833
In the Matter of: Kevin Robert Riva
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: 11/19/12
[Rule 62(b), Rules Proc.; 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 November 26, 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:
SAMUEL J. LONG
3877 12TH ST
RIVERSIDE, CA 92501
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
William S. Todd, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California on November 26, 2012.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court