State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER
APPROVING
REPROVAL
Case Number(s): 13-O-11595
In the Matter of: STANLEY ALARI, Bar # 53058, A Member of
the State Bar of California, (Respondent).
Counsel For The State Bar: Eli D. Morgenstern, Bar #190560,
Counsel for Respondent: Donald Conway, Esq., Bar #123911,
Submitted to: Settlement Judge.
Filed: September 25, 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
14, 1972.
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):
<<not>> 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).
checked. Costs are to be paid in equal
amounts prior to February 1 for the following membership years: two (2) billing
cycles following the effective date of the reproval. (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.
<<not>> checked. (5) Indifference:
Respondent demonstrated indifference toward rectification of or atonement for
the consequences of his or her misconduct.
<<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.
checked. (7) Multiple/Pattern of
Misconduct: Respondent's current misconduct evidences multiple acts of
wrongdoing or demonstrates a pattern of misconduct. See Attachment page
7.
<<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.
<<not>> 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.
<<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: No
Prior Record of Discipline, and Prefiling Stipulation. (See attachment page 7.)
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 .
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: STANLEY ALARI, State Bar
No. 53058
STATE BAR COURT CASE NUMBER: 13-O-11595
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts
are true and that he is culpable of violations of the specified statute and
Rules of Professional Conduct.
Case No. 13-O-11595 (Complainant: Vida
Blue S. Zarzuela)
FACTS:
1. On April 21, 2012, Vida Blue S.
Zarzuela ("Zarzuela") employed Respondent to represent her with
respect to a speeding ticket that she received on April 3, 2012. On April 23,
2012, pursuant to their oral agreement, Zarzuela paid Respondent $750 for his
representation.
2. On July 3, 2012, Respondent mailed a
letter to the traffic court informing the court that he was Zarzuela’s attorney
and entering a not guilty plea on her behalf. In the letter, Respondent also
waived time, requested a trial date, and an own recognizance release on behalf
of Zarzuela.
3. On July 23, 2012, a clerk of the court
served Respondent with notice that Zarzuela’s traffic matter was set for a
court trial on January 7, 2013, at 1:00 p.m. Respondent received the notice.
4. On November 21, 2012, and December 13,
2012, Zarzuela telephoned Respondent’s office and left voice mail messages
inquiring about the status of the traffic matter. Respondent received the
messages. But, he did not respond to them. On January 3, 2013, Zarzuela sent
Respondent an e-mail inquiring about the status of the traffic matter.
Respondent received the e-mail. But, he did not respond to it. Respondent never
informed Zarzuela of the trial date of her traffic matter. On January 3, 2013,
Zarzuela telephoned the traffic court and was informed by an employee of the
court of the January 7, 2013 trial date.
5. On January 7, 2013, neither Respondent
nor Zarzuela appeared in traffic court for Zarzuela’s traffic matter. The court
did not rule on Zarzuela’s citation, but ordered her to pay a civil assessment
fee of $590. Respondent never informed Zarzuela that he failed to appear on her
behalf at the trial of her traffic matter. On January 9, 2013, Zarzuela
telephoned the traffic court and was informed by an employee of the court that
Respondent failed to appear on her behalf at the court trial.
6. Respondent did not perform any services
of value on behalf of Zarzuela.
7. On January 10, 2013, a new attorney
appeared in traffic court on behalf of Zarzuela. The court vacated the civil
assessment fee and set a new trial date of May 8, 2013.
8. On May 8, 2013, the California Highway
Patrol Officer who issued the traffic citation to Zarzuela did not appear for
the trial, and the court dismissed the citation.
9. In July 2013, Respondent provided
Zarzuela with a refund of the $750 in legal fees that she paid to him.
CONCLUSIONS OF LAW:
10. By failing to appear in traffic court
on behalf of Zarzuela at the January 7, 2013 court trial, Respondent
intentionally, recklessly, or repeatedly failed to perform competently in
willful violation of Rules of Professional Conduct, rule 3-110(A).
11. By failing to respond to Zarzuela’s status
inquiries, and by failing to inform her of the January 7, 2013 trial and that
he failed to appear for the trial, Respondent failed to respond promptly to
reasonable status inquiries of a client, and failed to keep a client reasonably
informed of significant developments in a matter in which he had agreed to
provide legal services in willful violation of Business and Professions Code
section 6068(m).
12. By failing to refund any portion of
the unearned attorney’s fees that he received from Zarzuela until July 2013,
Respondent failed to refund promptly any part of a fee paid in advance that has
not been earned, in willful violation of Rules of Professional Conduct, rule
3-700(D)(2).
ADDITIONAL FACTS RE AGGRAVATING
CIRCUMSTANCES.
Multiple Acts of Misconduct (Std
1.2(b)(ii)): During his representation of Zarzuela, Respondent failed to
perform and communicate adequately. Respondent also failed to refund promptly
the unearned attorney’s fees that he received from Zarzuela. Respondent’s
multiple acts of misconduct are an aggravating circumstance.
ADDITIONAL FACTS RE MITIGATING
CIRCUMSTANCES.
No Prior Discipline (Std. 1.2(e)(i)):
Although Respondent’s conduct cannot be deemed "not serious," at the
time that he committed the misconduct herein, Respondent had practiced law for
40 years with no prior record of discipline. Respondent is entitled to
substantial mitigation for having practiced law for 40 years without
discipline. (ln the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct.
Rptr. 41, 39 [attorney’s practice of law for more than 17 years considered to
be mitigating circumstance].)
Prefiling 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 a Notice of Disciplinary
Charges, thereby saving the State Bar Court 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." (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 three acts
of professional misconduct during his representation of Zarzuela. 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.
Standard 2.4(b) applies to Respondent’s
violations of Rules of Professional Conduct, rule 3-110(A) [failure to
perform], and Business and Professions section 6068(m) [failure to
communicate], and provides that when an attorney fails to perform and/or
communicate in an individual matter, the appropriate level of discipline is a
reproval or suspension depending upon the extent of the misconduct and the
degree of harm to the client.
There is no standard specifically
applicable to Respondent’s violation of Rules of Professional Conduct, rule
3-700(D)(2) [failure to return unearned fee]. Standard 2.10 provides that
culpability of an attorney of a willful violation of any Rule of Professional
Conduct not specified in the 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 failed to perform for,
and communicate with, Zarzuela in connection with her traffic matter. He also
failed to refund promptly the unearned attorney’s fees that he received from
Zarzuela. This is significant misconduct. However, Respondent’s 40 years of
discipline-free practice suggest that the misconduct herein was an anomaly.
Moreover, by entering into this stipulation, Respondent has acknowledged his
misconduct, and saved the State Bar Court resources and time. Further,
Respondent’s misconduct did not cause irreparable harm to Zarzuela: the traffic
court dismissed the speeding ticket. Further still, Respondent has refunded the
unearned, attorney’s fees that he received from Zarzuela.
In light of the misconduct, the
appropriate standards, and the aggravating and mitigating circumstances
surrounding the misconduct, a public reproval accomplishes the purpose 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 him that as of August 15, 2013, the
prosecution costs in this matter are $2,925. The costs are to be paid in equal
amounts prior to February 1 for the following two billing cycles following the
effective date of this Reproval. 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): 13-O-11595
In the Matter of: Stanley Alari
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: Stanley Alari
Date: 8/26/13
Respondent’s Counsel: Donald Conway
Date: 9/9/13
Deputy Trial Counsel: Eli D. Morgenstern
Date: 9/12/13
REPROVAL ORDER
Case Number(s): 13-O-11595
In the Matter of: STANLEY ALARI
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.
<<not>> 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 may 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: George E.
Scott, Judge Pro Tem
Date: 9/25/13
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 September 25, 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:
DONALD CONWAY
11664 NATIONAL BLVD #312
LOS ANGELES, CA 90064 - 3082
<<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:
ELI MORGENSTERN, Enforcement, Los Angeles
I hereby certify that the foregoing is
true and correct. Executed in Los Angeles, California, on September 25, 2013.
Signed by:
Rose M. Luthi
Case Administrator
State Bar Court