Case Number(s): 12-O-14397
In the Matter of: Hoa Phu Truong Bar #156411 a Member of the State Bar of California, (Respondent).
Counsel for the State Bar: Meredith A. McKittrick 1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1204
Bar #234484
Counsel for Respondent: In Pro Per Respondent
Hoa Phu Truong
10221 Slater Ave. Ste. 202
Fountain Valley, CA 92708
(714) 963-7335
Bar# 156411
Submitted to: Settlement Judge, State Bar Court Clerk’s Office Los Angeles
<<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 27, 1991.
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):
<<not>> 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.
checked Costs are to be paid in equal amounts prior to February 1 for the following membership years: Costs to be paid in equal amounts prior to February 1 for the following two (2) billing cycles following the effective date of the Supreme Court order. (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.
IN THE MATTER OF: Hoa P. Truong
CASE NUMBER(S): 12-0-14397
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-14397 (Complainant: Tommy Viet Nguyen)
FACTS:
1. On October 7, 2009, Tommy Viet Nguyen ("Nguyen") and Phung Ngoc Duong ("Duong") were involved in an automobile accident. Nguyen was driving, Duong was his passenger.
2. On or about October 20, 2009, Nguyen and Duong employed Respondent to represent them in their claims arising from the automobile accident. Respondent agreed to represent both the driver, Nguyen, and the passenger, Duong.
3. Respondent failed to inform Nguyen of the potential conflicting interests of the driver, Nguyen, and the passenger, Duong.
4. Respondent accepted representation of Nguyen, the driver, and Duong, the passenger, without obtaining informed written consent of Nguyen as to the potential conflict of interests.
5. On August 11, 2010, having concluded that Nguyen was at fault for the accident, Respondent withdrew from his representation of Nguyen.
6. Respondent continued to represent Duong.
7. In September 2010, Respondent made a claim on behalf of Duong with Nguyen’s insurance company.
8. On August 23,2011, Respondent filed suit on behalf of Duong against Nguyen and others in Orange County Superior Court case number 30-2011-00205192-CU-PA-CJC in the matter entitled Duong v. Nguyen, et al.
CONCLUSIONS OF LAW:
9. By accepting and continuing representation of Nguyen, the driver, and Duong, the passenger, without Nguyen’s informed written consent regarding the potential conflict of interests, Respondent accepted representation of more than one client in a matter in which the interests of the clients potentially conflicted without the informed written consent of each client in willful violation of Rules of Professional Conduct, rule 3-310(C)(1).
10. By continuing representation of Duong without obtaining Nguyen’s informed written consent upon determining that Nguyen was at fault for the accident, Respondent continued employment adverse to a former client where, by reason of the representation of the former client, Respondent had obtained confidential information material to the employment, without the informed written consent of the former client in willful violation of Rules of Professional Conduct, rule 3-310(E). ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline: Respondent was disciplined pursuant to stipulation effective February 9, 2008, for misconduct in two client matters. As to one client, Respondent intentionally, recklessly, or repeatedly failed to perform work with competence, failed to inform the client of significant developments in the client’s legal matter, and failed to return unearned advanced fees. As to the other client, Respondent failed to refund unearned advanced fees.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Additional Mitigating Circumstances: Respondent has entered into a stipulation before a Notice of Disciplinary Charges has been filed thereby saving the time and resources of the State Bar Court, and is receiving slight mitigation for doing so. (See In the matter of Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr 151,156; In the Matter of Johnson (Review Dept. 2000) 4 Cal State Bar Ct. Rptr. 179, 190; see also Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079.)
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. (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.)
Standard 2.10 provides that the range of discipline to be imposed for violations not specified in another standard at between reproval and suspension, with consideration to gravity of offense, harm to victim, and the purposes of discipline set forth in Standard 1.3. As Respondent’s violations here are not specified in another standard, Standard 2.10 is the appropriate standard to apply to those violations.
Standard 1.7(a) states that discipline after a finding of culpability for misconduct when the member has one prior record of misconduct shall result in greater discipline that that which was imposed in the previous matter ’hardess the prior discipline was so remote in time and the prior offense so minimal in severity that progressively increasing discipline would result in manifest injustice."
The combined effects of Standard 2.10 and Standard 1.7(a) demand a level of discipline in this matter above the two-year stayed suspension, two years’ probation and two months’ actual suspension that was previously imposed upon Respondent.
In Connor v. State Bar (1990) 50 Cal. 3d 1047, the Supreme Court imposed a public reproval on an attorney who, in an effort to assist a client to avoid foreclosure, acquired title to the client’s property, obtained a home equity loan on the property, paid the proceeds of that loan to the client to enable the client to make the necessary payments to avoid foreclosure. After foreclosure was avoided the attorney would quit claim his interest in the property back to the client, who would continue to make payments on the loan. After this plan was initially carried out, the client ceased making payments on the loan. The attorney made payments for a time then stopped making payments as well. At that point the attorney withdrew from representation of the client. The attorney never provided the client with a written explanation of the potential conflict involved in the transaction, and did not advise the client to seek independent counsel regarding the transaction. In mitigation the Court gave credit for the attorney’s 16 years in practice without any record of prior discipline, the fact that this was an isolated incident of misconduct, and client’s consent, relative sophistication, and the fact that the attorney believed he was acting in the client’s best interest. In Hawk v. State Bar (1988) 45 Cal. 3d 589, the Supreme Court imposed discipline in the form of a four-year stayed suspension, four years’ probation, and a six-month actual suspension on an attorney who took as payment of legal fees on two separate occasions promissory notes secured by a deed of trust on real property owned by the clients. The attorney did not disclose and transmit the terms of these agreements in writing, did not advise his clients to have the transaction reviewed by independent counsel and give them the opportunity to do so, and did not provide the clients with copies of the documents executed. In aggravation the Court considered the attorney’s record of two prior impositions of discipline, and his poor attitude toward the disciplinary proceedings. The Court further conduct in misleading his clients with regard to when they needed to meet their obligations under the note, and the attorney’s changing the terms of the first note. In mitigation the Court considered the testimony of character witnesses, and that the particular issues involved in this case appeared to be issues of first impression, not a well established rule.
Analogy can be drawn between the nature of the current matter and the nature of the violations in both Connor and Hawk. In this matter the appropriate level of discipline should fall somewhere between that imposed in Connor and that imposed on Hawk. Unlike Connor, Respondent here has a prior record of discipline which should be considered in aggravation. Further, Standard 1.7(a) dictates a level of discipline increased from that which was imposed in Respondent’s prior imposition of discipline. But, it appears appropriate that the discipline in this matter should not rise to the level of that imposed in Hawk, as there are no apparent elements of misleading or moral turpitude involved in this matter, and Respondent is cooperative.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was December 21, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of December 21, 2012, the prosecution costs in this matter are $2,865.00. 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, and / or any other educational courses to be ordered as a condition of suspension. (Rules Proc.
of State Bar, rule 3201.)
Case Number(s): 12-O-14397
In the Matter of: Hoa P. Truong
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: Hoa P. Truong
Date: 12-26-12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Meredith A. McKittrick
Date: 12-26-12
Case Number(s): 12-O-14397
In the Matter of: Hoa P. Truong
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: George E. Scott, Judge Pro Tem
Date: 1-11-13
[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 January 15, 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:
HOA P. TRUONG
TRUONG AND ASSOCIATES
10221 SLATER AVE STE 202
FOUNTAIN VALLEY, CA 92708
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Meredith A. McKittrick, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 15, 2013.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court