Case Number(s): 12-O-15788-PEM, 12-H-15644-PEM
In the Matter of: JEFFREY ALAN AGNEW, Bar # 105268, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Sean Beckley, Bar #260003,
Counsel for Respondent: Jeffrey Alan Agnew, Bar #105268,
Submitted to: Settlement Judge.
Filed: June 21, 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 3, 1982.
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 15 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: the three 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.
Attachment language (if any):.
FINANCIAL CONDITIONS
Case Number(s): 12-O-15788; 12-H-15644-PEM
In the Matter of: JEFFREY ALAN AGNEW
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: Natalie & Luke Lauer
Principal Amount: $2,500.00
Interest Accrues From: December 20, 2007
2. Payee: Jan Ebert
Principal Amount: $2,000.00
Interest Accrues From: April 4, 2008
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
b. Installment Restitution Payments
<<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.
c. Client Funds Certificate
<<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.
d. Client Trust Accounting School
<<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.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: OF: JEFFREY ALAN AGNEW, State Bar No. 105268
STATE BAR COURT CASE NUMBER: 12-O-15788; 12-H-15644
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 Rules of Professional Conduct.
Case No. 12-0-15788 (State Bar Investigation)
FACTS:
1. On December 30, 2010, the California Supreme Court filed an Order in Case No. S187453 (State Bar Court Case Nos. 07-O-14909, et al.) ("Order") ordering Respondent suspended from the practice of law for 90 days and placed on probation for three years subject to certain conditions.
2. On January 29, 2011, the Order became effective.
3. As a condition of probation, Respondent was required to submit to the Office of Probation of the State Bar ("Office of Probation") quarterly reports by no later than April 10, 2011, July 10, 2011, January 10, 2012, April 10, 2012, July 10, 2012, and October 10, 2012, each report covering the preceding calendar quarter. The quarterly reports required Respondent to report his compliance with the State Bar Act and Rules of Professional Conduct and all terms of probation.
4. Respondent submitted the quarterly report due by April 10, 2011 late, on April 12, 2011.
5. Respondent submitted the quarterly report due by July 10, 2011 late, on July 11, 2011.
6. Respondent submitted the quarterly report due by October 10, 2012 late, on October 11, 2012.
7. On January 10, 2012, the Office of Probation received the quarterly report due by January 10, 2012, but it was not accepted because it was dated incorrectly.
8. On April 10, 2012, the Office of Probation received the quarterly report due by April 10, 2012, but it was not accepted because Respondent did not report his compliance with the State Bar Act and Rules of Professional Conduct and all terms of probation.
9. On July 11, 2012, the Office of Probation received the quarterly report due by July 10, 2012, but was not accepted because Respondent did not report his compliance with the State Bar Act and Rules of Professional Conduct and all terms of probation.
10. As a condition of probation, Respondent was required to submit satisfactory proof to the Office of Probation of attendance and completion of the Ethics School by January 29, 2012.
11. Respondent failed to submit satisfactory proof to the Office of Probation of attendance and completion of the Ethics School by January 29, 2012. Respondent attended and completed the Ethics School late, on March 21, 2013, and submitted satisfactory proof of attendance and completion of the Ethics School late, on April 8, 2013.
12. As a condition of probation, Respondent was required to submit satisfactory proof to the Office of Probation of attendance and completion of the Client Trust Accounting School by January 29, 2012.
13. Respondent failed to submit satisfactory proof to the Office of Probation of attendance and completion of the Client Trust Accounting School by January 29, 2012. Respondent attended and completed the Client Trust Accounting School late, on March 22, 2013, and submitted satisfactory proof of attendance and completion of the Client Trust Accounting School late, on April 8, 2013.
14. As a condition of probation, Respondent was required to make restitution to Natalie and Luke Lauer in the amount of $2,500 plus interest from December 20, 2007, and Jan Ebert in the amount of $2,000 plus interest from April 4, 2008. Respondent was required to provide satisfactory proof to the Office of Probation that he paid fifty percent of total restitution by January 29, 2012, and that he paid fifty percent of total restitution by January 29, 2013.
15. At no time did Respondent make any restitution payments. Consequently, Respondent failed to provide satisfactory proof to the Office of Probation that he paid fifty percent of total restitution by January 29, 2012, and that he paid fifty percent of total restitution by January 29, 2013.
16. As a condition of probation, Respondent was required to join the State Bar’s Law Practice Management and Technology Section for 2012, and submit satisfactory proof to the Office of Probation by April 10, 2012.
17. Respondent failed to join the State Bar’s Law Practice Management and Technology Section for 2012 and to submit satisfactory proof to the Office of Probation that he joined the State Bar’s Law Practice Management and Technology Section for 2012 by April 10, 2012. On December 6, 2012, Respondent joined the Section for 2013.
CONCLUSIONS OF LAW:
18. By submitting three written quarterly reports to the Office of Probation late; by submitting three written quarterly reports to the Office of Probation that were not in compliance with the requirements of his probation and were rejected; by attending and completing the Ethics School late and submitting satisfactory proof to the Office of Probation of attendance and completion of the Ethics School late; by attending and completing the Client Trust Accounting School late and submitting satisfactory proof to the Office of Probation of attendance and completion of the Client Trust Accounting School late; by failing to make restitution payments and provide satisfactory proof to the Office of Probation of restitution; and by failing to join and to submit satisfactory proof to the Office of Probation that he joined the State Bar’s Law Practice Management and Technology Section for 2012, Respondent wilfully failed to comply with all conditions attached to his disciplinary probation in wilful violation of Business and Professions Code section 6068(k).
Case No. 12-H-15644 (State Bar Investigation)
FACTS:
19. On May 4, 2011, the Hearing Department of the State Bar Court filed its Decision and Discipline Order in Case Nos. 07-O-10024; 08-O-10270 (Cons.), imposing on Respondent a public reproval with conditions in effect for one year.
20. On May 25, 2011, the reproval became effective.
21. As a condition of reproval, Respondent was required to contact the Office of Probation and schedule a meeting with his assigned probation deputy by June 24, 2011.
22. Respondent contacted his assigned probation deputy late, on June 27, 2011.
23. As a condition of reproval, Respondent was required to submit to the Office of Probation a quarterly report by no later than June 10, 2011, and submit to the Office of Probation a final quarterly report by no later than May 25, 2012.
24. Respondent submitted his quarterly report due by July 10, 2011 late, on July 11, 2011.
25. Respondent failed to submit his final quarterly report due by May 25, 2012.
26. As a condition of reproval, Respondent was required to submit to the Office of Probation quarterly Lawyers Assistance Program ("LAP") reports by no later than July 10, 2011, October 10, 2011, January 10, 2012, and April 10, 2012, and submit to the Office of Probation a final LAP report by no later than May 25, 2012.
27. Respondent submitted the quarterly LAP report due by July 10, 2011 late, on July 12, 2011.
28. Respondent submitted the quarterly LAP report due by October 10, 2011 late, on January 9, 2012.
29. Respondent submitted the quarterly LAP report due by January 10, 2012 late, on January 12, 2012.
30. Respondent submitted the quarterly LAP report due by April 10, 2012 late, on April 11, 2012.
31. Respondent submitted the final LAP report due by May 25, 2012 late, on July 12, 2012.
32. As a condition of reproval, Respondent was required to submit satisfactory proof to the Office of Probation of attendance and completion of the Ethics School by no later than May 25, 2012.
33. Respondent failed to submit satisfactory proof to the Office of Probation of attendance and completion of the Ethics School by May 25, 2012. Respondent attended and completed the Ethics School late, on March 21, 2013, and submitted satisfactory proof of attendance and completion of the Ethics School late, on April 8, 2013.
34. As a condition of reproval, Respondent was required to submit satisfactory proof to the Office of Probation of passage of the Multistate Professional Responsibility Examination ("MPRE") by no later than May 25, 2012.
35. Respondent failed to submit satisfactory proof to the Office of Probation of passage of the MPRE by May 25, 2012. Respondent passed the MPRE late, on August 10, 2012, and satisfactory proof of passage of the MPRE late, on September 11, 2012.
CONCLUSIONS OF LAW:
36. By contacting his assigned probation deputy late; by submitting one quarterly report to the Office of Probation late; by failing to submit the final written quarterly report to the Office of Probation; by attending and completing the Ethics School late and submitting satisfactory proof to the Office of Probation of attendance and completion of the Ethics School late; by submitting four quarterly LAP reports to the Office of Probation late; by submitting the final LAP report to the Office of Probation late; and by taking and passing the MPRE late and submitting satisfactory proof to the Office of Probation of passage of the MPRE late, Respondent wilfully failed to comply with conditions attached to his public reproval in wilful violation of Rules of Professional Conduct, rule 1-110.
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): Respondent has been disciplined on two prior occasions.
Effective January 29, 2011, the California Supreme Court ordered that Respondent be suspended from the practice of law in California for two years, that execution of the suspension be stayed, and that he be placed on probation for three years subject to certain conditions, including a 90-day actual suspension. The discipline resulted from Respondent’s misconduct in case numbers 07-O-14909, et al., consisting of violations of Rules of Professional Conduct, rule 3-110(A) (failure to perform), rule 3-700(D)(2) (failure to refund unearned fees), 4-100(A) (commingling), as well as Business and Professions Code section 6068(0)(2) (failure to report judicial sanctions). Respondent’s misconduct occurred between 2006 and 2010 and involved six client matters.
Effective May 25, 2011, following Respondent’s successful completion of the State Bar Court’s Alternative Discipline Program for members with substance abuse or mental health issues (Rules Proc. of State Bar 5.380 et seq.); the State Bar Court publically reproved Respondent. The discipline resulted from Respondent’s misconduct in case numbers 07-O-10024 and 08-O-10270, consisting of violations of Rules of Professional Conduct, rule 3-110(A) (failure to perform), rule 3-700(D)(2) (failure to refund unearned fees), as well as Business and Professions Code sections 6106 (misrepresentation to a client) and 6068(i) (failure to cooperate with a State Bar investigation). Respondent’s misconduct occurred between 2005 and 2007 and involved two client matters.
Harm (Std. 1.2(b)(iv)): By failing to make full restitution to his former clients as ordered by the Supreme Court in Case No. S 187453, Respondent caused financial harm to those clients. Additionally, Respondent’s failure to abide by the court orders in each case harmed the administration of justice.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent’s failure to comply with numerous conditions of his probation in violation of Business and Professions Code section 6068(k), and failure to comply with numerous reproval conditions in violation of Rules of Professional Conduct, rule 1-110, constitutes multiple acts of misconduct, although not a pattern.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Pretrial Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of Chief Trial Counsel prior to trial, thereby saving the State Bar Court time and resources. (In the Matter of 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." (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. (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.)
Respondent admits to committing numerous violations of probation and reproval conditions in violation of two provisions of the State Bar Act and Rules of Professional Conduct. 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 2.6, which applies to Respondent’s violation of Business and Professions Code section 6068(k) and provides that a violation of Business and Professions Code section 6068 shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any to the victim, with due regard to the purpose of imposing discipline set forth in standard 1.3.
Standard 1.7(b) provides if a member has a record of two prior impositions of discipline, the discipline in the current proceeding shall be disbarment unless the most compelling mitigating circumstances clearly predominate. Although Respondent has two prior disciplines, it would be manifestly unjust to apply standard 1.7(b) in the present matter. The misconduct in Respondent’s prior disciplines occurred during the same time period and could have been resolved by a single disciplinary stipulation. Discipline in case numbers 07-O-14909, et al. was imposed pursuant to a stipulation that addressed the ongoing State Bar matters in case numbers 07-O-10024 and 08-O-10270. It stated that the Court should consider all of the charges brought in all cases as though they had been brought together to determine the appropriate discipline and that the stipulated discipline of 90 days’ actual suspension was appropriate for all pending cases. (See In the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602, 619.) Additionally, the probation condition violations and reproval condition violations that constitute the misconduct in the present cases were contemporaneous in time.
Accordingly, standard 1.7(a) is the more appropriate standard to consider in this case. It provides if a member has a prior record of discipline, the discipline in the present proceeding shall be greater than that imposed in the prior proceeding.
The current misconduct includes numerous violations of California Supreme Court ordered probation conditions and numerous violations of State Bar Court ordered reproval conditions. Respondent’s failure to comply with the orders of the California Supreme Court and the State Bar Court is serious misconduct and harms the administration of justice. In aggravation, the Respondent’s prior discipline of a 90-day actual suspension, the harm caused by his failure to make restitution and follow the court order in each case, and the multiple acts of misconduct in each case, far outweighs the mitigation Respondent receives for entering into a pretrial stipulation. In consideration of the standards, the gravity of the misconduct in the present cases, and consideration of the circumstances in aggravation and mitigation in these cases, the appropriate level of discipline here is a two-year actual suspension.
The level of discipline is consistent with case law. The failure to abide by the terms and conditions of probation is a serious violation. (See Potack v. State Bar (1991) 54 Cal.3d 132, 139.) In Potack, the Supreme Court upheld an additional two-year actual suspension in a probation revocation hearing after the attorney failed to file one quarterly report and defaulted in the revocation hearing. While Respondent has participated in these proceedings, his misconduct involves violations of both probation and reproval conditions that are far more serious than a failure to file a single quarterly report.
PENDING PROCEEDINGS.
The disclosure date referred to on page 2, paragraph A(7), was April 24, 2013.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of April 18, 2013, the estimated prosecution costs in this matter are $6,944.00. 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.
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-15788; 12-H-15644. PEM
In the Matter of: JEFFREY ALAN AGNEW
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: JEFFREY ALAN AGNEW
Date: 5/2/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Sean Beckley
Date: 6/5/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-O-15788; 12-H-15644 - PEM
In the Matter of: JEFFREY ALAN AGNEW
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: Donald F. Miles
Date: 6/19/13
CERTIFICATE OF SERVICE
[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 June 21, 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:
JEFFREY ALAN AGNEW
1485 H ST
RAMONA, CA 92065
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Sean S. Beckley, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on June 21, 2013.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court