Case Number(s): 13-O-10767
In the Matter of: JANG H. KWON, Bar # 259659, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Adriana M. Burger, Bar #92534,
Counsel for Respondent: Jang H. Kwon, Bar #259659,
Submitted to: Assigned Judge.
Filed: July 3, 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 8, 2008.
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. 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.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: JANG H. KWON, State Bar No. 259659
STATE BAR COURT CASE NUMBER: 13-O-10767
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statute.
Case No. 13-O-10767 (State Bar Investigation)
FACTS:
1. In order to remain as an active member of the State Bar, Respondent was required to complete 25 hours of minimum continuing legal education ("MCLE") during the period of February 1, 2009 through January 31, 2012 (the "compliance period").
2. On January 11, 2012, Respondent reported to the State Bar that he was in compliance with the MCLE requirements and, in particular, that he had completed his MCLE during the compliance period.
3. In fact, Respondent had not completed any MCLE courses within the compliance period.
4. When Respondent reported to the State Bar that he was in compliance with the MCLE requirements, Respondent knew that he had not completed the MCLE during the compliance period as required.
5. Respondent took the requisite MCLE courses after his compliance period after being contacted by Membership Services regarding an audit of MCLE compliance. Respondent timely complied with the audit.
CONCLUSION OF LAW:
6. By reporting to the State Bar, that he was in compliance with the MCLE requirements when he knew that he was not in compliance with the MCLE requirements, Respondent intentionally committed an act involving moral turpitude, dishonesty or corruption in wilful violation of Business and Professions Code, section 6106.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES
Pre-filing Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of the Chief Trial Counsel prior to the filing of disciplinary charges and prior to trial, thereby saving the Office of the Chief Trial Counsel and the State Bar Court time and resources. (Silva-Fidor v State Bar (1989) 49 Cal.3d 1071, 1079 [where mitigation credit was given to the attorney 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. (ln 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.)
Here, the applicable standard is found in standard 2.3, which provides that
"[c]ulpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client or another person or of concealment of a material fact to a court, client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law."
Respondent’s false statement to the State Bar regarding his MCLE compliance is serious and constitutes an act of dishonesty directly relating to the practice of law. The California Supreme Court has stated that the MCLE program is "a consumer protection measure intended to enhance the competency of attorneys practicing law in this state." (Warden v. State Bar (1999) 21 Cal.4th 628, 634 (quoting People v. Ngo (1996) 14 Cal.4th 30, 36).) The State Legislature established the MCLE program upon "find[ing] and declar[ing] that it is in the public interest to continue the mandatory continuing legal education requirements for attorneys licensed to practice law." (Bus. and Prof. Code § 6070.)
Although there is no California case addressing an attorney’s misrepresentations concerning MCLE compliance, we can look to other states for guidance. In the Matter of Diggs (S.C. 2001) 544 S.E. 2d 628, emphasizes the importance of attorneys’ honesty in reporting their MCLE compliance, as follows:
"Truthful representations on CLE compliance reports are essential to the successful operation of South Carolina’s CLE program. Our CLE program operates on an honor system. The Commission does not check the accuracy of every attorney’s CLE compliance report." (ld. at 631-632.) California’s MCLE program also operates on an honor system. The State Bar relies on an attorney’s word when reporting MCLE compliance and therefore truthful reporting is essential. When an attorney lies and takes advantage of the honor system, as Respondent did in this case, it undermines public confidence in the legal profession.
Because Respondent’s misconduct is serious, is directly related to the practice of law, and undermines public confidence in the profession, actual suspension is appropriate. However, because there is no harm to a client, the matter involves only a single act of misconduct, and Respondent’s misconduct is mitigated by the fact that he cooperated with the State Bar in entering into a full, pre-filing stipulation to resolve the matter, thereby saving time and resources, a level of discipline at the low end of the range of discipline suggested by standard 2.3 is consistent with the purposes of imposing sanctions for attorney misconduct.
Respondent’s misconduct is analogous to the misconduct in Drociak v. State Bar (1991) 52 Cal.3d 1085. In Drociak, the attorney used his client’s presigned verification to respond to discovery without first consulting with his client to ensure the veracity of assertions of fact in the discovery responses, thereby committing an act of moral turpitude or dishonesty in violation of Business and Professions Code section 6106 and seeking to mislead the court by an artifice or false statement of fact in violation of Business and Professions Code section 6068(d) and former rule 7-501(1) of the Rules of Professional Conduct. The attorney, who had no prior record of discipline in 25 years of practice, received a 30-day actual suspension. In imposing the 30-day actual suspension, the Supreme Court specifically cited to standard 2.3, noting that "[t]he [p]etitioner’s prior ’clean’ record is commendable, but it does not render the recommended 30-day actual suspension inappropriate." (Id. at 1090-1091.)
Although Respondent’s misconduct does not involve a misrepresentation to a court, Respondent did commit an act of moral turpitude and dishonesty. Here, as in Drociak, Respondent made a misrepresentation in order to circumvent requirements imposed for important policy reasons. However, the attorney in Drociak had practiced law for 25 years with no prior record of discipline, whereas Respondent had only practiced law for slightly more than three years when he committed the misconduct herein. Accordingly, a greater level of discipline than imposed in Drociak is appropriate in this case.
In light of the totality of the facts and circumstances surrounding Respondent’s misconduct, including the mitigation, and in light of standard 2.3, discipline consisting of a one-year suspension, stayed, and a one-year period of probation with conditions including a 60-day actual suspension from the practice of law is appropriate to protect the public, the courts and the legal profession, to maintain high professional standards by attorneys, and to preserve public confidence in the legal profession.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him that as of June 3,2013, 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
Respondent will not receive MCLE credit for the completion of State Bar Ethics School taken in compliance with the conditions of probation herein. (Rules of Procedure of the State Bar of California, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 13-O-10767
In the Matter of: JANG H. KWON
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: JANG H. KWON
Date: 6/11/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Adriana M. Burger
Date: 6/14/13
ACTUAL SUSPENSION ORDER
Case Number(s): 13-O-10767
In the Matter of: JANG H. KWON
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. Platel
Date: 7/1/13
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 Los Angeles, on July 3, 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:
JANG H. KWON
2706 HENRIETTA AVE.
LA CRESCENTA, CA 91214
<<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:
ADRIANA BURGER, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on July 3, 2013 .
Signed by:
Johnny Lee Smith
Case Administrator
State Bar Court