Case Number(s): 12-O-14874
In the Matter of: Emmanuel Eke Enyinwa , Bar # 207088, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Robert A. Henderson, Deputy Trial Counsel
180 Howard St.
San Francisco, CA 94105
Telephone: (415) 538-2385
Bar # 173205,
Counsel for Respondent: In Pro Per Respondent
Emmanuel Eke Enyinwa
807 Montgomery St.
San Francisco, CA 94133
Telephone: (415) 956-6100
Bar #207088
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
<<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 June 5, 2000.
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. 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.
<<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.
IN THE MATTER OF: Emmanuel Eke Enyinwa, State Bar No. 207088
STATE BAR COURT CASE NUMBER: 12-O-14874
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-14874 (Complainant: Wilian Barrera)
FACTS:
1. On May 12, 201 I, Wilian Barrera-Donis ("Barrera"), received a letter from the Bureau of Immigration and Customs Enforcement. The letter directed Barrera to report for his departure to Guatemala on June 20, 2011. The letter provided Barrera with other reporting instructions for his departure.
2. Subsequent to receiving the May 12, 2011 letter, Barrera hired respondent to represent him. Specifically, Barrera wanted to legally extend his stay in the United States.
3. On May 3 I, 2011, Barrera paid respondent $3,000 in advanced fees. Between July 21,2011, and October 20, 2011, Barrera paid an additional $2,000 in advanced fees, for a total of $5,000 paid advanced fees.
4. Respondent never filed anything on behalf of Barrera in the immigration matter and took no affirmative action on behalf of Barrera. Respondent did speak periodically with Barrera and did start a draft Motion to the Board of Immigration Appeals.
5. On March 5, 2012, Barrera spoke with respondent by telephone, terminated respondent’s representation and requested a refund of the $5,000 advanced fees.
6. On April 16, 2012, respondent told Michael Tisocco ("Tisocco"), Barrera’s successor counsel, that he would provide an accounting for the $5,000 advanced fees.
7. In November 2012, respondent provided Tisocco an accounting for the advanced fees.
8. On December 18, 2012, respondent, Tisocco and Barrera agreed that respondent would refund $3,000 of the advanced fees and retain $2,000 as compensation for a partially completed Motion to the Board of Immigration Appeals and the telephonic advice provided to Barrera.
9. On December 19, 2012, respondent refunded the $3,000 in unearned advanced fees paid by Barrera.
CONCLUSIONS OF LAW:
10. By failing to take any affirmative action on behalf of Barrera respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in wilful violation of Rules of Professional Conduct, rule 3-110(A).
11. By failing to refund the $3,000 in advanced fees to Barrera until December 19, 2012, respondent wilfully failed to promptly refund a fee paid in advance that had not been earned, in wilful violation of Rules of Professional Conduct, rule 3-700(D)(2).
12. By failing to provide an accounting of the advanced fees until November 2012, respondent wilfully failed to promptly render an accounting for the funds which he received in wilful violation of Rules of Professional Conduct, rule 4-100(B)(3).
FACTS SUPPORTING AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline in case no. 08-J-13407. Private Reproval effective December 1, 2009.
Respondent’s thee acts of misconduct constitute multiple acts of misconduct. (See In the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631,646-647.)
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 Ievel of discipline. (ln re Silverton (2005) 36 Cal.4th 8 I, 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 Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should dearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
Respondent admits to committing three acts of professional misconduct. Standard 1.6 (a) requires that where a Respondent acknowledges two or more acts of misconduct, and different sanctions are prescribed by the standards that apply to those acts, the sanction imposed shall be the more or most severe prescribed in the applicable standards.
The most severe sanction applicable to Respondent’s misconduct is found in Standard 2.2(b), which applies to Respondent’s violation of Rules of Professional Conduct, rule 4-100(B)(3).
Standard 2.2(b) provides that:
"Culpability of a member of commingling of entrusted funds or property with personal property or the commission of another violation of rule 4- 100, Rules of Professional Conduct, none of which offenses result in the wilful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances."
Additionally, Standards 1.2(b)(ii) and 1.7(a) must be considered as there are multiple acts and a prior record of discipline.
Standard 1.2(b)(ii) states:
’"’Aggravating circumstance" is an event or factor established clearly and convincingly by the State Bar as having surrounded a member’s professional misconduct and which demonstrates that a greater degree of sanction than set forth in these standards for the particular act of professional misconduct found or acknowledged is needed to adequately protect the public, courts and legal profession.
(ii) that the current misconduct found or acknowledged by the member evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct;"
Standard 1.7(a) states:
"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 as defined by standard 1.2(0, the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior discipline imposed 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."
However, deviation from the Standards, may be appropriate where there exists grave doubts as to the propriety of applying them in a particular case. (Silverton, supra, 36 Cal.4th at 92). For example, deviation from the Standards may be appropriate where extraordinary circumstances exist or where the imposition of discipline called for by the Standards would be manifestly unjust. (Sternlieb v. State Bar (1990) 52 Cal. 3d 317, 321 [30-day actual suspension for misappropriation and failure to properly account for trust funds. Attorney had no prior discipline, expressed remorse and established office procedures to avoid future mismanagement]; In the Matter of Fonte (Review Dept, 1994) 2 Cal.. State Bar Ct. Rptr. 752 [60-day actual suspension for failing to provide proper accounting, obtaining adverse interests in client property, representing clients with conflicting interests, aggravated by overreaching, and uncharged misconduct. Attorney had 25 years of practice without discipline and extensive public service]; In the Matter of Respondent F (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr 17, 36-39 [deviation from standard 2.2(b) requirement of at least three months actual suspension for a trust account violation].) Deviating from Standard 2.2(b) in the current matter is appropriate, as the emphasis of Standard 2.2(b) is on funds placed in the client trust account, whereas the current misconduct implicated by the Standard is a failure to properly account for funds received as required by rule 4-100, Rules of Professional Conduct, but not required to be placed in the client trust account.
In Bach v. State Bar (1991) 52 Cal.3d 1201, the Supreme Court found Bach culpable of failing to pursue a dissolution action in a single client matter. The findings in Bach were for failing to: communicate, perform competently, refund unearned fees, and cooperate in the disciplinary investigation. Bach had no prior discipline. The Supreme Court imposed a one-year suspension stayed, and a 30-day actual suspension.
Bach and the current matter are similar. Bach failed to perform for a period of two and a half years in a marital dissolution matter. Bach also involved the failure to refund $2,000 in unearned fees, failure to communicate with the client and an improper withdrawal from employment. In mitigation, the attorney in Bach had no prior discipline over many years of practice. In the present matter, respondent has a prior record of discipline, but his failure to perform is over a shorter period of time. Also, respondent in this matter has refunded the unearned fees, albeit belatedly.
On balance the conduct involved in Bach is slightly more serious, but the aggravating factor and lack of mitigation in the current matter suggest that a similar level of discipline is appropriate,
Thus, a thirty-day actual suspension will adequately protect the public, while also adhering to the guidance of the Standard and case law.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was December 20, 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 $1,983. 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. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-14874
In the Matter of: Emmanuel Eke Enyinwa
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: Emmanuel Eke Enyinwa
Date: December 21, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Robert A. Henderson
Date: December 21, 2012
Case Number(s): 12-O-14874
In the Matter of: Emmanuel Eke Enyinwa
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.
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: Lucy Armendariz
Date: January 10, 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 10, 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:
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ROBERT A. HENDERSON, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on January 10, 2013.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court