State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER
APPROVING
REPROVAL
Case Number(s): 12-O-17447-PEM
In the Matter of: GREGORY RALPH BEYER, Bar # 155101, A
Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Sherrie B. McLetchie, Bar #85447,
Counsel for Respondent: William L. Coggshall, Esq, Bar #211731,
Submitted to: Settlement Judge.
Filed: September 10, 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.
A. Parties' Acknowledgments:
1.
Respondent is a member of the State Bar of California, admitted December
17, 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 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.
B. Aggravating Circumstances [for definition, see Standards for
Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts
supporting aggravating circumstances are required.
<<not>> checked. (1) Prior
record of discipline [see standard 1.2(f)].
<<not>> checked. (a) State Bar Court case # of prior case .
<<not>> checked. (b) Date prior discipline effective .
<<not>> checked. (c) Rules of Professional Conduct/ State
Bar Act violations:
<<not>> checked. (d) Degree of prior discipline
<<not>> checked. (e) If Respondent has two or more incidents
of prior discipline, use space provided below or a separate attachment entitled
“Prior Discipline. .
<<not>> checked. (2) Dishonesty:
Respondent's misconduct was surrounded by or followed by bad faith, dishonesty,
concealment, overreaching or other violations of the State Bar Act or Rules of
Professional Conduct.
<<not>> checked. (3) Trust
Violation: Trust funds or property were involved and Respondent refused or was
unable to account to the client or person who was the object of the misconduct
for improper conduct toward said funds or property.
<<not>> checked. (4) Harm:
Respondent's misconduct harmed significantly a client, the public or the
administration of justice.
checked. (5) Indifference:
Respondent demonstrated indifference toward rectification of or atonement for
the consequences of his or her misconduct. See "Facts Supporting
Aggravating Circumstances": in the Stipulation Attachment at page 8.
<<not>> checked. (6) Lack of
Cooperation: Respondent displayed a lack of candor and cooperation to victims
of his/her misconduct or to the State Bar during disciplinary investigation or
proceedings.
<<not>> checked. (7) Multiple/Pattern
of Misconduct: Respondent's current misconduct evidences multiple acts of
wrongdoing or demonstrates a pattern of misconduct.
<<not>> checked. (8) No
aggravating circumstances are involved.
Additional aggravating circumstances: .
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
checked. (1) No Prior Discipline:
Respondent has no prior record of discipline over many years of practice
coupled with present misconduct which is not deemed serious. See" Facts
Supporting Mitigating Circumstances": in the Stipulation Attachment at
page 8.
<<not>> checked. (2) No Harm:
Respondent did not harm the client or person who was the object of the
misconduct.
<<not>> checked. (3) Candor/Cooperation:
Respondent displayed spontaneous candor and cooperation with the victims of
his/her misconduct and to the State Bar during disciplinary investigation and
proceedings.
<<not>> checked. (4) Remorse:
Respondent promptly took objective steps spontaneously demonstrating remorse
and recognition of the wrongdoing, which steps were designed to timely atone
for any consequences of his/her misconduct.
<<not>> checked. (5) Restitution:
Respondent paid $ on in restitution to without the threat or force of
disciplinary, civil or criminal proceedings.
<<not>> checked. (6) Delay:
These disciplinary proceedings were excessively delayed. The delay is not
attributable to Respondent and the delay prejudiced him/her.
<<not>> checked. (7) Good
Faith: Respondent acted in good faith.
<<not>> checked. (8) Emotional/Physical
Difficulties: At the time of the stipulated act or acts of professional
misconduct Respondent suffered extreme emotional difficulties or physical
disabilities which expert testimony would establish was directly responsible
for the misconduct. The difficulties or disabilities were not the product of
any illegal conduct by the member, such as illegal drug or substance abuse, and
Respondent no longer suffers from such difficulties or disabilities.
<<not>> checked. (9) Severe
Financial Stress: At the time of the misconduct, Respondent suffered from
severe financial stress which resulted from circumstances not reasonably
foreseeable or which were beyond his/her control and which were directly
responsible for the misconduct.
<<not>> checked. (10) Family
Problems: At the time of the misconduct, Respondent suffered extreme
difficulties in his/her personal life which were other than emotional or
physical in nature.
<<not>> checked. (11) Good
Character: Respondent's good character is attested to by a wide range of
references in the legal and general communities who are aware of the full extent
of his/her misconduct.
<<not>> checked. (12) Rehabilitation:
Considerable time has passed since the acts of professional misconduct occurred
followed by convincing proof of subsequent rehabilitation.
<<not>> checked. (13) No
mitigating circumstances are involved.
Additional mitigating circumstances: See
"Additional Facts Re Mitigating Circumstances": in the Stipulation
Attachment at page 8.
D. Discipline:
<<not>> checked. (1) Private reproval (check applicable
conditions, if any, below):
<<not>> checked. (a) Approved by the Court prior to initiation
of the State Bar Court proceedings (no public disclosure).
<<not>> checked. (b)Approved by the Court after initiation of
the State Bar Court proceedings (public disclosure).
or
checked. (2) Public reproval (Check applicable conditions,
if any below)
E. Additional Conditions of Reproval:
checked. (1) Respondent must
comply with the conditions attached to the reproval for a period of one year.
checked. (2) During the condition
period attached to the reproval, Respondent must comply with the provisions of
the State Bar Act and Rules of Professional Conduct.
checked. (3) Within ten (10) days
of any change, Respondent must report to the Membership Records Office of the
State Bar and to the Office of Probation of the State Bar of California
("Office of Probation"), all changes of information, including
current office address and telephone number, or other address for State Bar
purposes, as prescribed by section 6002.1 of the Business and Professions Code.
checked. (4) Within thirty (30)
days from the effective date of discipline, Respondent must contact the Office
of Probation and schedule a meeting with Respondent's assigned probation deputy
to discuss these terms and conditions of probation. Upon the direction of the
Office of Probation, Respondent must meet with the probation deputy either
in-person or by telephone. During the period of probation, Respondent must
promptly meet with the probation deputy as directed and upon request.
checked. (5) Respondent must
submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10
of the period of probation. Under penalty
of perjury, Respondent must state whether Respondent has complied with the
State Bar Act, the Rules of Professional Conduct, and all conditions of
probation during the preceding calendar quarter. Respondent must also state
whether there are any proceedings pending against him or her in the State Bar
Court and if so, the case number and current status of that proceeding. If the
first report would cover less than 30 days, that report must be submitted on
the next quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same
information, is due no earlier than twenty (20) days before the last day of the
period of probation and no later than the last day of the condition period.
<<not>> checked. (6) Respondent
must be assigned a probation monitor. Respondent must promptly review the terms
and conditions of probation with the probation monitor to establish a manner
and schedule of compliance. During the period of probation, Respondent must
furnish such reports as may be requested, in addition to the quarterly reports
required to be submitted to the Office of Probation. Respondent must cooperate
fully with the monitor.
checked. (7) Subject to assertion
of applicable privileges, Respondent must answer fully, promptly and truthfully
any inquiries of the Office of Probation and any probation monitor assigned
under these conditions which are directed to Respondent personally or in writing
relating to whether Respondent is complying or has complied with the conditions
attached to the reproval.
checked. (8) Within one (1) year
of the effective date of the discipline herein, Respondent must provide to the
Office of Probation satisfactory proof of attendance at a session of the State
Bar Ethics School, and passage of the test given at the end of that session.
<<not>> checked. No Ethics School recommended. Reason: .
<<not>> checked. (9) Respondent
must comply with all conditions of probation imposed in the underlying criminal
matter and must so declare under penalty of perjury in conjunction with any
quarterly report to be filed with the Office of Probation.
checked. (10) Respondent must provide proof
of passage of the Multistate Professional Responsibility Examination
("MPRE"), administered by the National Conference of Bar Examiners,
to the Office of Probation within one year of the effective date of the
reproval.
<<not>> checked. No MPRE recommended. Reason: .
<<not>> checked. (11) The
following conditions are attached hereto and incorporated:
<<not>> checked. Substance Abuse
Conditions.
<<not>> checked. Law Office
Management Conditions.
<<not>> checked. Medical Conditions.
<<not>> checked. Financial
Conditions.
F. Other Conditions Negotiated by the
Parties:
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW
AND DISPOSITION
IN THE MATTER OF: GREGORY RALPH BEYER,
State Bar No. 155101
STATE BAR COURT CASE NUMBER:
12-O-17447-PEM
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-17447 (Complainants: David,
Donald & Edward Brown)
FACTS:
1. Respondent drafted the second and third
amendments to the Brown Family Living Trust ("the Trust") for Mr. and
Mrs. Boyd N. Brown, in 2000 and November 2007, respectively.
2. On January 22, 2012, Boyd N. Brown, the
surviving settlor of the Trust and original trustee died.
3. Thereafter, pursuant to the November
2007 amendment to the Trust, one of Mr. and Mrs. Boyd N. Brown’s four children,
Carol Brown ("Carol"), became the successor trustee of the Trust.
4. Thereafter, Respondent gave legal
advice to Carol regarding the Trust.
5. Carol, along with her brothers, Edward
Brown ("Edward), Donald Brown ("Donald"), and David Brown
("David"), was a beneficiary of the Trust. Under the terms of the
Trust, Donald was granted a life estate in the family home which was the main
asset of the Trust. Upon Donald’s death, his siblings would receive equal
shares of the family home.
6. Carol was present at a February 23,
2012 meeting between Respondent and Donald. At the meeting, Respondent told
Donald that Carol had asked him to explain to Donald why it was advantageous
for Donald to either buy the family home, or purchase Carol’s contingent
interest in the home. Respondent advised Donald that if he owned the home, he
could rent out a room in case Donald lost his job, that Donald could, be
evicted from the home by the Trust if Donald did not adequately maintain the
home’s condition, and that Donald could use Trust funds to purchase the family
home.
7. At the February 23, 2012 meeting,
Respondent requested and Donald paid $1,295 for the preparation of a trust.
8. At no time did Respondent mention to
Donald any conflict or potential conflict between Respondent’s representation
of Carol and Respondent’s representation of Donald.
9. Shortly after March 1, 2012, Edward,
Donald, and David all received copies of a memo from Carol which stated that
Respondent recommended that Donald buy the family home from the Trust.
10. Shortly thereafter, and prior to March
8, 2012, Donald received an e-mail from Carol stating in pertinent part:
"Your trust will be ready for you to sign & pick up on Thursday, March
29, 2012 @ 3:00 p.m. in Greg Byer’s office in Sacramento. I took the first
appt. he had, because he has documents for me m sign if you buy the house and
some other trust documents that can be signed at the same time. I’m emailing
out a 4 page document that will lay out everything for Dave, Ed, & you as
to the benefits of you purchasing the house from The Trust, as everything must
be completed by April 21, 2012 to prevent an increase in property taxes."
11. On March 8, 2012, David met with
Respondent and asked Respondent whether Respondent had recommended that Donald
buy the family home, and that the property taxes on the family home would be
reassessed higher if title to the home remained in the name of the Trust. During
the March 8, 2012 meeting, David requested, and Respondent gave David, his
legal opinions and advice.
12. On April 5, 2012, Donald mailed
Respondent a letter pointing out the conflict of interest in Respondent’s
representation of both Carol and Donald at the February 23, 2012 meeting,
cancelling any further work on his trust, and requesting a refund of the $1,295
paid. This letter terminated Respondent’s representation of Donald. Respondent
received Donald’s April 5, 2012 letter shortly after it was received.
13. Respondent continued to represent
Carol at least through April 17, 2012.
14. At no time did Respondent receive
informed written consent from Donald to allow for Respondent’ s concurrent
representation of Carol and Donald, during the time Respondent represented
Carol and Donald from February 23, 2012, until Respondent’s receipt, of
Donald’s April 5, 2012 letter.
15. At no time did Respondent receive
informed written consent from David or Donald of Respondent’s concurrent
representation of Carol, Donald, and David, during the time Respondent
represented Carol, Donald, and David from March 8, 2012, through Respondent’s
receipt of Donald’s April 5, 2012 letter.
16. The interests of Carol, Donald, and
David were in actual conflict.
CONCLUSION OF LAW:
17. By giving legal advice to Carol, then
Donald, then David, regarding the Trust, the family home, and property taxes,
Respondent accepted representation of more than one client in a matter in which
the interests of the clients conflicted without the informed written consent of
each client in wilful violation of Rules of Professional Conduct, rule
3-310(C)(2).
FACTS SUPPORTING AGGRAVATING CIRCUMSTANCE.
Indifference (Std. 1.2(b)(v)): Because of
the failure to obtain a waiver to the conflicts of interest, Respondent was not
entitled to the fees he charged and collected from Donald. In In the Matter of
Fonte (Review Department 1994) 2 Cal. State Bar Ct. Rptr. 752, 765, the Review
Department found that Fonte had violated rule 3-310(B) by representing both
parties to an agreement without obtaining written consent and unilaterally
withdrawing $2,500 from one client’s bank account to which Fonte had access as
payment for that representation. The Review Department stated "Restitution
of the $2,500 in fees to Mr. Loeloff or his estate is appropriate as well,
since respondent’s representation of the Loeloffs at the time he removed the
funds was improper. (See Goldstein v. Lees (1975) 46 Cal. App.3d 614,
618.)" Goldstein, ibid, states: "An attorney may not recover for
services rendered if those services are rendered in contradiction to the
requirements of professional responsibility .... " Respondent did not
refund Donald’s attorney’s fees until December 10, 2012, eight months after
Donald’s April 5, 2012 letter which pointed out the conflict and requested the
refund based on the conflict of interest. In addition, by letter dated 9, 2012,
and drafted by counsel, Donald again pointed out the conflict and requested the
refund. Further, prior to December 10, 2012, Respondent was twice contacted by
the State Bar regarding the Browns’ complaint. Thus, by delaying the refund for
eight months after he was first placed on notice of the conflict between his
representation of Carol and Donald, Respondent demonstrated indifference toward
atonement for the consequences of his misconduct.
FACTS SUPPORTING MITIGATING CIRCUMSTANCE.
No Prior Discipline (Std 1.2(e)(i)):
Respondent was admitted to practice on December 17, 1991, in the 20 years until
the misconduct admitted herein commenced, he had no record of prior discipline.
ADDITIONAL FACTS RE MITIGATING
CIRCUMSTANCE.
Pretrial Stipulation: Respondent is
entitled to mitigation for entering into a stipulation with the Office of the
Chief Trial Counsel prior to trial, thereby saving the State Bar time and
resources. (Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079 [where mitigative
credit was given for entering into a stipulation as to facts and culpability].)
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.)
Standard 2.10 applies to Respondent’s
violation of rule 3-310(C)(2), and provides that: "Culpability of a member
of a violation of any provision of the Business and Professions Code not
specified in these standards or of a wilful 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, with due regard to the purposes of imposing discipline set forth in
standard 1.3."
Here, Respondent gave legal advice to
clients who had adverse interests without the required informed written consent
of each client. Respondent’s misconduct was short in duration- less than a
month- and did not cause harm to his clients. Respondent’s misconduct is
aggravated by his failure to return $2,500 in fees to Donald for eight months.
However, Respondent is entitled to significant mitigation for practicing law
for 20 years without discipline. He is also entitled to mitigation for entering
into this stipulation. Balancing all of the factors, a disposition at the lower
end of the standard is appropriate. A public reproval with a one-year period of
compliance with probation conditions will serve the purposes of attorney
discipline as set forth in standard 1.3.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of
the Chief Trial Counsel has informed Respondent that as of August 28, 2013, the
prosecution costs in this matter are $3,419. 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 MINIMUM CONTINUING LEGAL
EDUCATION CREDIT
Pursuant to rule 3201, Respondent may not
receive MCLE Credit for completion of State Bar Ethics School or the
Multi-State Professional Responsibility Examination. (Rules Proc. of State Bar,
rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-174447 - PEM
In the Matter of: GREGORY RALPH BEYER
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: GREGORY RALPH BEYER
Date: 9/4/13
Respondent’s Counsel: William L. Coggshall
Date: 9/6/13
Deputy Trial Counsel: Sherrie B. McLetchie
Date: 9/9/13
REPROVAL ORDER
Case Number(s): 12-O-17447 - PEM
In the Matter of: GREGORY RALPH BEYER
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.
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: Lucy
Armendariz
Date: 9/10/13
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 September 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:
WILLIAM L. COGGSHALL
ARCHER NORRIS
2033 N MAIN ST #800
WALNUT CREEK, CA 94596
<<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:
Sherrie McLetchie, Enforcement, San
Francisco
I hereby certify that the foregoing is
true and correct. Executed in San Francisco, California, on September 10, 2013.
Signed by:
George Hue
Case Administrator
State Bar Court