FILED, ce ay pepe JAN 02 2020 PUBLIC MATTER STATE BAR COURT CLERK'S OFFICE LOS ANGELES STATE BAR COURT OF CALIFORNIA HEARING DEPARTMENT - SAN FRANCISCO. In the Matter of Case Nos. 14-0-01284 (15-0-10417; 15-0-11630; 15-0-12643; 15-0-13574; 15-0-14508; 16-0-10133; 16-0-10280; 16-0-10917; 16-O-11898; 16-0-14381; 16-0-14807; 16-O-14860; 16-O-17058; 16-0-17304; 16-0-18118; 17-0-00453; 17-0-01021) 17-0-03977 (17-0-05743) (Consolidated) JEFFREY DAVID BOHN, State Bar No, 243870. DECISION AND ORDER. INTRODUCTION’ In this contested disciplinary proceeding, Jefirey David Bohn (Respondent) was charged with 90 counts of misconduct in 20 consolidated matters. The alleged misconduct includes, among other things, misappropriation, failing to perform legal services with competence, failing to promptly pay client funds, improper withdrawal from employment, failing to account, failing to respond to client inquiries, failing to communicate significant developments, and failing to cooperate in a disciplinary investigation. This court finds, by clear and convincing evidence, that Respondent is culpable on 56 of the 90 counts, Based on the nature and extent of culpability, as well as the applicable aggravating and mitigating circumstances, the court recommends disbarment. " Unless otherwise indicated, all references to rules refer to the State Bar Rules of Professional Conduct. Furthermore, all statutory references are to the Business and Professions Code, unless otherwise indicated.SIGNIFICANT PROCEDURAL HISTORY ‘The Office of Chief Trial Counsel of the State Bar of California (OCTC) initiated this, proceeding by filing notices of disciplinary charges against Respondent on December 19, 2017 (First NDC) and April 16, 2018 (Second NDC). Respondent filed a response to the First NDC on February 2, 2018, and he filed a response to the Second NDC on May 11, 2018. Trial in this matter occurred from September 27, 2018 through September 13, 2019, Following the close of trial, OCTC filed a motion seeking, in part, to dismiss six counts in the First NDC and two counts in the Second NDC. OCTC’s request to dismiss those counts was subsequently granted. Following the filing of the parties’ closing briefs, this matter was submitted for decision ‘on October 4, 2019. At trial, the court took three exhibits under submission, Accordingly, the court hereby admits Exhibit 1168, Exhibit 1169, and pages 138-140 of Exhibit 352 FINDINGS OF FACT AND CONCLUSIONS OF LAW Respondent was admitted to the practice of law in California on August 4, 2006, and has ‘deen a State Bar of California attorney at all times since that date. Case No. 15-0-10417 (Tong Yang) Facts ‘As laid out below, Tong Yang retained Respondent to represent her in two separate ‘matters, The first matter was a slip and fall case and the second matter was a motor vehicle accident. The motor vehicle accident involved two different settlements— one from the other driver's insurance company and the other from Tong Yang's underinsured driver policy. ? OCTC’s exhibits in this matter were lengthy and convoluted. OCTC presented over 40 binders of exhibits ~ most of which contained approximately 600 pages. Accordingly, OCTC presented roughly 24,000 pages of exhibits ~ many of which were confusing, redundant, or unnecessary. 2Tong Yang's Slip and Fall Case On or about July 7, 2008, Tong Yang signed a contingency fee agreement engaging Respondent to represent her in a personal injury action arising out of a slip and fall case against Logan Park Apartments. On February 18, 2010, Respondent filed a complaint initiating Tong ‘Yang's personal injury action in the Sacramento County Superior Court. During a mediation session, Tong Yang's slip and fall case settled for $25,000. Shortly thereafter, the liens of Tong Yang’s only medical lienholders, Medicare and the Department of Health Services, were satisfied by the issuance of two separate checks paid directly to those lienholder. On or about August 26, 2014, a slip and fall settlement check was issued by Logan Park ‘Apartments in the amount of $23,675.80, payable to Respondent’s law office in trust for Tong ‘Yang. Respondent executed the settlement check on behalf of Tong Yang and had it deposited into Respondent's client trust account (CTA). (Exh. 44, p. 5787.) On September 8, 2014, Respondent issued and negotiated a check to himself for $11,931.17 for Tong Yang’s attorney's fees and costs incurred in the slip and fall case. (Exh. 44, p. 5796.) Respondent sent Tong Yang a disbursal letter on November 5, 2014. In this letter, Respondent advised that he had received the settlement funds from Logan Park Apartments. The letter went on to state that, after subtracting Respondent's attomey’s fees and costs, Tong Yang ‘was due $11,568.63 in the slip and fall matter, (Exh. 4, p. 142.) ‘Tong Yang checked in frequently with Respondent and his staff between November 2014 and April 2015. (Exh. 4, p. 56-58) However, Respondent did not, during that time frame, 5 Respondent maintained three client trust accounts. The court will refer to those accounts collectively as Respondent’s CTA. 3.disburse any of the slip and fall settlement funds to Tong Yang. As a result, Tong Yang submitted a complaint against Respondent to the State Bar in December 2014.* On or about April 9, 2015, when Respondent failed to appear for a scheduled meeting with Tong Yang, she rejected the slip and fall settlement check his office staff had prepared for her in the amount of $7,568.63. The $7,568.63 figure was less than the $11,568.63 figure that was previously quoted because it deducted a $4,000 “advance” that Respondent gave Tong Yang in or about April 2014.° Tong Yang was displeased because she thought her settlement disbursal would have been higher and she considered Respondent’s failure to attend the scheduled meeting to be “a slap in the face.” On or about July 23, 2015, Respondent's office emailed Tong Yang’s daughter and advised her that they still had Tong Yang’s check for the slip and fall case.” Tong Yang’s Motor Vehicle Accident Claim In 2013, Tong Yang had another personal injury matter pending. This matter involved a motor vehicle accident (MVA) that occurred on October 7, 2012. Tong Yang retained attorney Kou Xiong (attomey Xiong) to represent her in the MVA matter. Attorney Xiong negotiated ‘ This was the second State Bar complaint Tong Yang submitted on Respondent. Her first complaint was filed in March 2014, after she called Respondent's office numerous times in an effort to speak with him but was passed off to his staff. Respondent contacted Tong Yang personally after she filed the first State Bar complaint. Tong Yang credibly testified that while Respondent told her to cancel her State Bar complaint, he did not promise or threaten a particular ‘outcome if she failed to do so. * In the March 23, 2015 breakdown of the Logan Park settlement funds, prepared by Respondent's office, Tong Yang was paid $7,568.63; Respondent took a 40% contingency fee of $10,000; Respondent recouped the $4,000 he had advanced to ‘Tong Yang; Tong Yang's physicians and Medi-Cal were paid $1,500; and the balance of the settlement was allocated for litigation costs. (Exh. 4, p. 364.) © This advance was paid out of Respondent's operating account. Respondent, fluent in Hmong, generally communicated with Tong Yang in her native language; however, Tong Yang often utilized the translation assistance of her daughter, who was a fluent English speaker.with Farmers Insurance to try to settle Tong Yang’s MVA claim. On August 28, 2013, Farmers Insurance communicated to attorney Xiong a policy limits offer of $15,000. (Exh. 4, p. 18.) On December 4, 2013, while the slip and fall case remained pending, Tong Yang discussed her MVA matter with Respondent. Respondent told Tong Yang that he would loan her the aforementioned $4,000 advance if she retained him in her MVA claim. Tong Yang needed money, so she terminated attomey Xiong and, on December 4, 2013, signed a fee agreement for Respondent to represent her in the MVA matter, As noted above, Respondent ultimately provided Tong Yang with the $4,000 advance in or about April 2014. Respondent's fee agreement with Tong Yang in the MVA matter included a paragraph stating: 14, INSURANCE. [Respondent] does not maintain errors and omissions insurance coverage applicable to the services rendered. (Exh. 4, p. 1-3.) At the time that he entered into the December 4, 2013 fee agreement, Respondent had in place professional liability insurance policy number JL.10318101, in effect with Ironshore Indemnity, Inc.® (Exh. 11, p. 56.) By letter dated March 24, 2014, a Farmers Insurance claims representative informed Respondent that Tong Yang had previously been represented by attorney Xiong and that Farmers “had previously made a policy limits offer of $15,000 to [attorney Xiong] back on September 13, 2013.” (Exh. 4, p. 17.) On or about April 23, 2014, Respondent sent a letter to attorney Xiong, which informed attorney Xiong that Respondent was representing Tong Yang. In his April 25, 2014 response, attorney Xiong stated his office “fully investigated, essentially prosecuted and settled [Tong 8 Respondent presented evidence that his errors and omissions insurance sporadically lapsed or was cancelled for nonpayment or other issues; however, there is no evidence that his insurance was not in place when he made his December 4, 2013 representation to Tong Yang that he did not have insurance.Yang’s] bodily claims both the third party and UIM claims” and that all Respondent did “was to secure the final Medi-Cal lien” which was easy to obtain. (Exh. 4, p. 14.) Attomey Xiong offered “to accept $5,000 in full and final satisfaction of my lien or 90% of your attomey’s fees, whichever is higher.” (Exh. 4, p. 14.)° In or about March 2014, Respondent and Farmers Insurance settled Tong Yang’s MVA matter for $15,000, Tong Yang signed a release of all her claims against Farmers’ insureds on March 24, 2014, On July 7, 2014, Farmers Insurance issued a settlement check in the amount of $14,843.91 in the MVA case.'° This check was made payable to Respondent, Tong Yang, and attorney Xiong, (Exh. 4, p. 16.) Respondent did not deposit this check or return it to Farmers Insurance. On or about July 11, 2014, Respondent sent a letter to attomey Xiong requesting an accounting to calculate attomey Xiong’s quantum meruit payment.'' Attorney Xiong replied that he had kept no such accounting of his work, but proposed settlement of the lien for a “flat fee” of $5,000. Respondent and attorney Xiong subsequently exchanged a series of leters and emails but did not resolve the fee dispute. Accordingly, Respondent did not obtain attorney Xiong’s endorsement on the July 7, 2014 Farmers Insurance settlement check. Neither Respondent nor his office informed Tong Yang that the Farmers Insurance settlement funds were received in July 2014. On or about October 22, 2014, Tong Yang inquired ° In a September 4, 2015 email, attorney Xiong offered to compromise the fee dispute with Respondent by accepting 70% of the attomey’s fees awarded, stating that if Respondent found that offer unreasonable, their fee dispute would have to be arbitrated. (Exh. 1034.) The fee dispute between Respondent and attomey Xiong was neither arbitrated nor resolved. 1 The balance of the $15,000 was paid directly to Medicare and Medi-Cal. "' 4 quantum meruit payment was requested because it was Respondent's understanding that attorney Xiong represented Tong Yang on a contingency basis.about the “hold-up” with the distribution of her MVA settlement funds. At this point, Respondent's office informed her that the July 7, 2014 settlement check had been received. On or about November 5, 2014, Respondent's office sent a letter to Tong Yang regarding the receipt of the Farmers Insurance settlement funds and providing a breakdown of costs and expenses. (Exh. 4, p. 59.) The breakdown allocated, among other things, a 25% fee for Respondent of $3,750; $5,000 to pay attomey Xiong; $4,000 to pay the aforementioned advance; and a total recovery for Tong Yang of $2,001.58. (Exh. 4, p. 59). ‘On January 30, 2015, a Farmers Insurance representative called Respondent’s law office and wanted to know what was going on with Tong Yang’s MVA claim because the check Farmers issued in July 2014 had not yet cleared. (Exh. 4, p. 28-29.) On January 30, 2015, Farmers reissued the check in the amount of $14,843.91 (the Farmers reissued check). The Farmers reissued check was payable only to Tong Yang and Respondent's law office. Respondent’s office deposited the Farmers reissued check into Respondent’s CTA, on February 11,2015. To date, Respondent has not paid attomey Xiong, any amount for the services he rendered in Tong Yang's MVA case. Underinsured Motorist Claim As part of Tong Yang’s MVA matter, she also had an underinsured motorist claim with Progressive Insurance, On or about July 16, 2014, a $10,000 underinsured motorist settlement check was issued by Progressive Insurance. The check was made out to Respondent, attorney Xiong, and Tong Yang. (Exh. 4, p. 10.) Neither Respondent nor his office promptly informed Tong Yang that this check had been received, Tong Yang did not learn that Respondent had received the check until she inquired about the “hold-up” with the distribution of her MVA settlement funds on October 22, 2014.Respondent’s November 5, 2014 breakdown of costs and expenses for the MVA matter also contained a breakdown of the costs and expenses of the underinsured motorist matter. (Exh. 4, p. 60.) The breakdown allocated a 25% fee for Respondent of $2,500, and a recovery for Tong Yang of $7,500. (Exh. 4, p. 59). Respondent’s November 5, 2014 letter concluded that between the Farmers Insurance and Progressive Insurance payouts, Tong Yang’s total recovery was $9,501.53. Tong Yang's September 2016 Meeting with Respondent Respondent and Tong Yang ultimately met approximately two and a half years later, on ‘September 8, 2016, to discuss her cases. In order to resolve their disputes, Respondent informed Tong Yang that he would reduce his attorney’s fees to 25% and gave her two checks: one for $9,236.13 and the other in the amount of $18,501.53." In exchange for the $18,501.53, Respondent had Tong Yang sign a release. The release stated that the $18,501.53 payment was made to Tong Yang in consideration for releasing Respondent and his firm from any liability with regard to the MVA matter. (Exh. 35, pp. 138- 140.) Tong Yang, who speaks Hmong, did not understand the release, but signed it to receive the money.”? Conclusions of Law Count Two" (A) — Former Rule 3-110(A) [Failure to Perform with Competence] Former’? rule 3-110(A) provides that an attorney must not intentionally, recklessly, or repeatedly fail to perform legal services with competence. In Count Two (A), OCTC charges ” It is not clear how these totals were derived because Respondent's accountings stated that he owed Tong Yang $11,568.63 in the slip and fall matter and $9,501.58 ($2,001.58 + $7,500) in the MVA matter. "3 Neither the release nor any other document provided by Respondent informed Tong ‘Yang that she had the right to consult independent counsel before signing the release. ™ Count One was dismissed in its entirety upon OCTC’s request. Unless otherwise indicated, all dismissed counts in this matter are dismissed with prejudice.that Respondent violated former rule 3-110(A) by failing to negotiate with attorney Xiong regarding satisfaction of attorney Xiong’s lien. ‘The court disagrees. During Respondent’s efforts to negotiate with attomey Xiong, Respondent exchanged multiple letters and/or emails with attomey Xiong in an effort to resolve the fee dispute. Ultimately, either Respondent or attorney Xiong could have pursued fee arbitration to settle the dispute, but neither did. OCTC did not establish by clear and convincing evidence that Respondent's conduct with regard to his handling of attorney Xiong’s lien rose to the level of an intentional, reckless, or repeated failure to perform legal services with competence. Accordingly, Count Two (A) is dismissed with prejudice. Count Two (B) — Former Rule 4-100(B)(1) [Failure to Notify Upon Receipt of Funds] Former rule 4-100(B)(1) requires an attorney to notify a client promptly of the receipt of the client’s funds, securities, or other properties. Here, Respondent received the Farmers Insurance check in July 2014, but did not inform Tong Yang of the receipt of these funds until after she inquired about the status of the funds in October 2014, By failing to promptly inform Tong Yang of Respondent's receipt of the $14,843.91 Farmers Insurance check, Respondent willfully violated former rule 4-100(B)(1).'° Count Two (D)'" — Section 6106 [Moral Turpitude-Misappropriation] Section 6106 provides, in part, that the commission of any act involving dishonesty, ‘moral turpitude, or corruption constitutes cause for suspension or disbarment. “[A]n attorney's 'S The State Bar Rules of Professional Conduct were revised on November 1, 2018. '® Bven though Respondent was not able to deposit the July 2014 Farmers check, he still had an obligation to promptly notify Tong Yang that he had received the funds. (See In the Matter of Khakshooy (October 11, 2019, as modified on November 22, 2019, 16-0-17807) _Cal State Bar Ct. Rptr. _ [2019 WL 6249427] [attorney’s failure to promptly deposit a client check in trust due to the aitorney’s unreasonable delay in obtaining opposing counsel’s endorsement is not a defense for failing to promptly deposit client funds in trust)].) "7 Count Two (C) was dismissed upon OCTC’s request. 9.failure to use entrusted funds for the purpose for which they were entrusted constitutes misappropriation. [Citation.]” (Baca v. State Bar (1990) 52 Cal.3d 294, 304.) While moral turpitude generally requires a certain level of intent, guilty knowledge, or willfulness, the law is clear that where an attomey’s fiduciary obligations are involved, particularly trust account duties, a finding of gross negligence will support such a charge. (In the Matter of Blum (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 403, 410.) “The wilful misappropriation of client funds is theft. [Citation.]” (Howard v. State Bar (1990) 51 Cal.3d 215, 221.) “Ina society where the use of a lawyer is often essential to vindicate rights and redress injury, clients are compelled to entrust their claims, money, and property to the custody and control of lawyers. In exchange for their privileged positions, lawyers are rightly expected to exercise extraordinary care and fidelity in dealing with money and property belonging to their clients. [Citation.] Thus, taking a client’s money is not only a violation of the moral and legal standards applicable to all individuals in society, it is one of the most serious breaches of professional trust that a lawyer can commit.” (Jbid.) Typically, OCTC establishes misappropriation by demonstrating a dip in the attomey’s client trust account. Here, however, OCTC presented no such evidence. Instead, OCTC asserts a novel theory of “constructive misappropriation” related to receiving funds on behalf of Tong Yang and failing to promptly distribute those funds. OCTC, however, did not support their theory of constructive misappropriation by citing any case law. Moreover, the court was unable to find any California case law involving “constructive misappropriation.” In Count Two (D), OCTC alleges that Respondent constructively misappropriated for his own purposes the $5,000 that attorney Xiong was entitled to receive as a lienholder. However, it has not been established by clear and convincing evidence that: (1) Respondent misappropriated -10-$5,000 for his own purposes;'* and (2) attorney Xiong was entitled to receive the entire $5,000.'° Accordingly, Count Two (D) is dismissed with prejudice. Count Two (E) — Former Rule 4-100(B)(1) [Failure to Notify of Receipt of Client Funds] Similar to Count Two (B), Respondent received the Progressive Insurance check in July 2014, but did not inform Tong Yang of the receipt of these funds until after she inquired about the status of the funds in October 2014. By failing to promptly inform Tong Yang of Respondent’s receipt of the $10,000 Progressive Insurance check, Respondent willfully violated former rule 4-100(B)(1).. Count Two (F) — Former Rule 4-100(A) [Failure to Deposit Client Funds in Trust] Former rule 4-100(A) provides that all funds received or held for the benefit of clients must be deposited in a client trust account and no funds belonging to the attomey or law firm. must be deposited therein or otherwise commingled therewith, except for limited exceptions. In Count Two (F), OCTC alleges that the $10,000 in settlement funds Respondent received on bchalf of Tong Yang from Progressive Insurance was not deposited into one of Respondent’s CTA accounts and by failing to do so, Respondent willfully violated former rule 4-100(A). However, OCTC failed to show by clear and convincing evidence that the Progressive Insurance settlement check, issued on June 23, 2017, was not deposited into Respondent’s CTA. ‘Accordingly, Count Two (F) has not been established by clear and convincing evidence and is dismissed with prejudice. Count Two (G) - Former Rule 4-100(B)(1) [Failure to Notify of Receipt of Client Funds} In Count Two (G), OCTC alleges that Respondent received the settlement check from Logan Apartments on or about September 9, 2014, but did not inform Tong Yang of the receipt "8 Tt has not been established by clear and convincing evidence that the $5,000 in question ‘was ever removed from Respondent’s client trust account. | This appears to be a matter that should be resolved by fee arbitration. -ll-of these funds until after she inquired about the status of her funds in October 2014. By failing to promptly inform Tong Yang of Respondent's receipt of the Logan Apartments settlement check for approximately two months, Respondent failed to promptly notify a client of Respondent's receipt of funds on the client’s behalf, in willful violation of former rule 4-100(B)(1). (McKnight v, State Bar (1991) 53 Cal.34 1025 [attomey’s failure to notify client within three weeks of receipt of settlement funds or to specify amount received constituted failure to notify client of the receipt of funds).)”” Count Two (H) — Former Rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] Former rule 4-100(B)(4) requires an attorney to promptly pay or deliver, as requested by the client, any funds, securities, or other properties in the attomney’s possession which the client is entitled to receive. In Count Two (H), OCTC alleges that Respondent violated former rule 4-100(B)(4) by failing for over two years to pay Tong Yang her portion of the settlement funds Respondent received from Logan Apartments on or about September 9, 2014. ‘The court agrees and finds Respondent culpable on Count Two (H). (In the Matter of Berg (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 725, 735 [six-week delay in disbursing funds sufficient for violation of rule 4-100(B)(4)].) ‘The court does not find compelling Respondent’s assertion that he attempted to pay those funds to Tong Yang, but she rejected the settlement check on or about April 9, 2015. For Respondent received the settlement funds in August of 2014, promptly paid himself in early September 2014, and did not attempt to provide the settlement funds to Tong Yang until some seven months later, in April 2015. Moreover, when Respondent actually did attempt to provide funds to Tong Yang, in April 2015, the check he presented to her was for $4,000 less than his © OCTC alleges in the First NDC that Tong Yang was not notified about the Logan Apartments check until March 23, 2015, but the evidence at trial demonstrated that Respondent’s office notified her following her October 2014 inquiry. 2‘November 2014 disbursement sheet. And after Tong Yang rejected the April 2015 check, Respondent made little to no effort to remedy the situation until approximately September 2016. ‘Count Two (1) — Section 6090.5, Subd. (a)(2) [Agreement Not to File Complaint] Section 6090.5, subdivision (a)(2), prohibits an attorney, whether as a party or as an attorney for a party, from agreeing or seeking agreement, in a civil matter, that the plaintiff will withdraw a disciplinary complaint or will not cooperate with the investigation or prosecution conducted by the State Bar. Here, the evidence demonstrated that Respondent told Tong Yang to cancel her State Bar complaint. He did not, however, promise or threaten a particular outcome if she failed to do so. Nor did he enter into any type of an agreement with Tong Yang. Moreover, ‘Tong Yang was not a “plaintiff” in a civil action against Respondent, Accordingly, Count Two (1) has not been established by clear and convincing evidence and is dismissed with prejudice. Count Two (J) ~ Section 6106 [Moral Turpitude —Misrepresentation] In Count Two (J), OCTC alleges that Respondent violated section 6106 by misrepresenting to Tong Yang in his retainer agreement that Respondent did not maintain ‘malpractice insurance when Respondent knew this statement was false. Respondent's December 4, 2013 fee agreement with Tong Yang unequivocally stated that Respondent had no errors and omissions insurance. That representation was false because Respondent had errors and omissions coverage at that time. Although Respondent apparently has a history of allowing his errors and omissions coverage to periodically lapse, he, at a minimum, should have known that he had coverage in place on December 4, 2013. By misrepresenting to Tong Yang that he did not have errors and omissions coverage when he should have known that he did, Respondent, through gross negligence, willfully violated Business and Professions Code section 6106. “13+Count Two (K) — Former Rule 3-400(A) [Limiting Liability to a Client] Former rule 3-400(A) states that an attorney shall not contract with a client to prospectively limit the attomey’s professional malpractice liability. By having Tong Yang sign, ‘on September 8, 2016, a release of all claims against Respondent and his law office with regard to the MVA, Respondent contracted with a client to prospectively limit his professional malpractice liability, in willful violation of former rule 3-400(A). ‘Count Two (L) — Former Rule 3-400(B)"' [Limiting Liability to a Client] Former rule 3-400(B) states that an attorney shail not settle a claim or potential claim for the attorney's liability to the client for the attorney's professional malpractice, unless the client is informed in writing that the client may seek the advice of an independent lawyer of the client’s choice regarding the settlement and is given a reasonable opportunity to seek that advice. By failing to inform Tong Yang in writing that she may seek the advice of an independent lawyer prior to signing the September 8, 2016 release, Respondent willfully violated former rule 3-400(B). ‘Count Two (M) — Section 6106 [Moral Turpitude] In Count Two (M), OCTC alleges that Respondent committed moral turpitude by centering into the September 8, 2016 release with Tong Yang. However, the facts and circumstances surrounding this allegation to do not demonstrate moral turpitude by clear and convincing evidence.” Moreover, this misconduct was more appropriately charged and found in Counts Two (K) and (L). Consequently, Count Two (M) is dismissed with prejudice. 2! The heading in the First NDC contains a typographical error identifying this charge as involving former rule 3-400(A). The text of the charge, however, clearly states that Respondent is actually charged with a violation of former rule 3-400(B). ‘The court finds that Respondent received adequate notice of this charge. ” The court notes that between the $9,236.13 and $18,501.53 checks, Respondent paid Tong Yang more than she was apparently owed. -14-Case No, 15-O-11630 (John Yang) Facts On or about November 10, 2009, John Yang hired Respondent to represent him in a personal injury action stemming from a motor vehicle accident. The negotiated language of the fee agreement provided Respondent would be entitled to a 25% contingency fee instead of the 40% contingency fee originally set forth in the agreement. (Exh. 5, pp. 10-12.) On or about December 27, 2011, State Farm Insurance issued a settlement check on behalf of its insured in the amount of $24,755.87 (State Farm settlement check). The State Farm settlement check was made out to John Yang and Respondent, and it was delivered to Respondent. After receiving the check, Respondent endorsed it on behalf of John Yang. In January 2012, Respondent deposited the check into his CTA. (Exh, 44, p. 305.) Respondent took his fee for his work on John Yang’s case on or about January 13, 2012. As of August 7, 2012, John Yang’s numerous medical providers were owed approximately $32,057. And this total did not include all of John Yang’s medical services. (Exh. 5, p. 24.) Following arbitration, Metlife issued a $20,000 settlement check in satisfaction of John ‘Yang's underinsured motorist benefits, on or about July 14, 2014. The check was made out to John Yang and Respondent. Around August 15, 2014, Respondent gave John Yang a $4,000 advance from Respondent’s operating account. (Exh. 5, p. 199.) ‘On August 18, 2014, Respondent sent a request for bill reductions to eleven of John Yang's medical providers. (Exh. 5, pp. 98, 109-110.) Respondent’s August 18, 2014 letter informed John Yang’s medical providers that as of that date, Yang’s medical bills totaled $38,633.84, (Exh. 5, p.99.) By August 25, 2014, at least five of John Yang’s medical providers -15-offered to reduce their bills by a total of approximately $5,500. (Exh. 5, p. 98; 109-110.) By February 24, 2015, three more medical providers offered to reduce their bills. (Exh. 5, pp. 99, 103.) On or about August 29, 2014, Respondent endorsed and deposited the $20,000 Metlife check into his CTA account. Approximately one week later, on or about September 5, 2014, Respondent paid himself fees and costs, including a 40% contingency fee in the amount of $8,222.40 ($8,000 for fees and $222.40 for costs), in connection with John Yang’s underinsured motorist claim. (Exh. 44, p. 5778.) At trial, Respondent acknowledged that the 40% fee payment he took on September 5, 2014, was excessive and taken in error but Respondent wasn’t sure whether the overcharged fees have ever been returned to his CTA to be held in trust for John Yang. Pursuant to the parties’ fee agreement, Respondent was entitled to 25%, rather than 40%, Accordingly, Respondent should have taken $5,000, rather than $8,000. There is no evidence in the record that Respondent has returned to his CTA any portion of the $3,000 that was overcharged. In or about January 23, 2015, Respondent's office manager sent a settlement breakdown to John Yang via email. (Exh. 5, pp. 19-20.) According to that breakdown, John Yang’s portion of the settlement was currently -$702.40, Therefore, John Yang would only receive funds if Respondent succeeded in negotiating reductions of his liens. Between September 18, 2014 and July 10, 2015, John Yang called Respondent's office over 20 times seeking a conference with Respondent and a status update. Despite these requests, ‘no meaningful update was provided to John Yang. (Exh. 5, 101-108.) At the time of his August 18, 2015 response to OCTC, Respondent claimed that he was still negotiating reductions in John Yang’s medical liens. Three years later atthe time of trial, Respondent still had not paid any funds to John Yang or any of his lienholders. -16-Conclusions of Law Count Three (A) — Former Rule 3-110(A) [Failure to Perform with Competence] In Count Three (A), OCTC charges Respondent with failing to competently represent John Yang in connection with his motor vehicle collision by failing to negotiate with John Yang’s medical providers regarding satisfaction of the liens. The court agrees. ‘The word “negotiate” means “[tJo communicate with another party for the purpose of reaching an understanding.” (Black’s Law Diet. (7" ed. 1999) p. 1059, col. 2.) Although Respondent's office sent out an initial correspondence with several of John Yang’s medical lienholders, there is no credible evidence that Respondent or his office took any of the subsequent steps necessary to reach an understanding with the lienholders. And this is despite the fact that several lienholders offered to reduce their bills. It has now been over five years since Respondent sent out his requests for bill reductions and he has not taken any meaningful steps toward completing the task of negotiating John Yang’s medical provider bill reductions. Said conduct constitutes a willful violation of former rule 3-110(A) Count Three (B) — Former Rule 3-700(A)(2) [Improper Withdrawal] Former rule 3-700(A)(2) prohibits an attorney from withdrawing from employment until the attorney has taken reasonable steps to avoid reasonably foreseeable prejudice to the client's rights, including giving due notice to the client, allowing time for the employment of other counsel, and complying with former rule 3-700(D) and other applicable rules and laws. In Count Three (B), OCTC alleges that Respondent constructively terminated his employment in the John ‘Yang matter by failing to take any action on his client’s behalf beginning in or about July 2015. The court agrees. Despite John Yang’s many communications and the fact that Respondent was, holding John Yang’s funds for numerous medical providers, Respondent took no meaningful action in this matter since approximately July 2015. By constructively terminating his, -17-representation of John Yang without notice and without taking any reasonable steps to avoid foreseeable prejudice to John Yang, Respondent willfully violated former rule 3-700(A)(2). Count Three (D)” — Former Rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] ‘The evidence demonstrates that Respondent failed to promptly pay out John Yang’s portion of the settlement funds received from State Farm Insurance client funds, ‘The obligation to comply with former rule 4-100(B)(4) also includes the duty to pay valid medical liens where the attorney is holding client funds for that purpose. (See, e.g., In the Matter of Dyson (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 280, 286; In the Matter of Mapps (Review Dept. 1990) 1 Cal. State Bar Ct. Rpt. 1, 10.) By failing to pay out any of the settlement funds received from State Farm Insurance to John Yang or on John Yang’s behalf to his medical providers, Respondent willfully violated former rule 4-100(B)(4). Count Three (E) - Former Rule 4-100 (B)(4) [Failure to Pay Client Funds Promptly] In Count Three (E), OCTC alleges that Respondent violated former rule 4-100(B)(4) by failing to promptly pay out John Yang’s portion of the settlement funds received from Metlife Insurance, Similar to Count Three (D), Respondent’s failure to pay out any of the settlement funds received from Metlife to John Yang or on John Yang’s behalf to his medical providers, Respondent willful violated former rule 4-100(B)(4). Count Three (F) — Section 6068, Subd. (m) [Failure to Respond to Client Inquiries] Section 6068, subdivision (m), provides that an attomey has a duty to promptly respond to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services. By failing to respond to John Yang’s repeated reasonable status inquires between approximately September 2014 and July 2015, Respondent willfully violated section 6068, subdivision (m). ?3 Count Three (C) was dismissed upon OCTC’s request. -18-Count Three (G) ~ Section 6106 [Moral Turpitude -- Misappropriation] Similar to Count Two (D), OCTC alleges that Respondent “constructively misappropriated” $18,505.67 in funds received from the State Farm settlement check in this, matter. However, the evidence did not demonstrate that Respondent ever took or otherwise misappropriated any portion of these funds from his CTA. And as previously mentioned, OCTC did not cite to any case law in support of its theory of constructive misappropriation. Accordingly, Count Three (G) has not been established by clear and convincing evidence and is dismissed with prejudice. Count Three (H) — Section 6106 [Moral Turpitude -- Misappropriation] In Count Three (H), OCTC again alleges that Respondent “constructively misappropriated” $18,505.67 in funds received from the Metlife settlement check in this matter. However, the evidence did not demonstrate that Respondent ever took or otherwise misappropriated any portion of these funds from his CTA. Accordingly, Count Three (H) has not been established by clear and convincing evidence and is dismissed with prejudice. Case No, 15-0-12643 (Tong Xiong) Facts On or about April 13, 2011, Tong Xiong hired Respondent to represent her in connection with claims arising from a motor vehicle collision that occurred on April 11, 2011. On October 8, 2013, the motor vehicle case was settled and on October 23, 2013, the third-party insurer, ‘AAA Insurance, issued a check with a payment of $14,000. (Exh. 6, p. 16.) The settlement check from AAA Insurance, made payable to Respondent and Tong Xiong, was deposited into Respondent's CTA on October 24, 2013. Respondent paid himself attomey’s fees and costs, in the amount of $4,671.77, on or about December 4, 2013. At that point, $4,210.80 remained in trust to be disbursed to the Tong Xiong’s lienholders. -19-On or about October 28, 2013, Respondent sent Tong Xiong’s medical providers a lien reduction request. (Exh. 1054; Exh. 6, pp. 30-32; Exh. 24, pp. 451-452, 471-474.) Respondent obtained lien reduction offers from Tong Xiong’s medical providers by November 1, 2013. Despite receiving these reduction offers, Respondent did not pay any of Tong Xiong’s lienholders at that time. On December 4, 2013, Respondent met with Tong Xiong and provided her with a settlement distribution sheet that reflected that her post-Lien reduction settlement would net her a disbursal of $5,027.43. (Exh. 6, pp. 17-18.) Respondent provided Tong Xiong with a cash payment of $5,027.43, and asked her, in exchange, to sign a “Receipt of Funds” form, which was written in English, The receipt of funds form stated that “no other claim exists regarding this ‘matter,” and that any bills not listed on the distribution sheet would be paid from Tong Xiong’s settlement funds. (Exh. 6, p. 19.) Tong Xiong subsequently received billing notices from three separate lienholders, all of whom were listed on the distribution sheet Respondent had provided. By calls and letters made to Respondent's office from July 2014 through February 2015, Tong Xiong made Respondent aware of the many billing collection invoices, calls, and other communications demanding payment that Tong Xiong received from the medical lienholders who Respondent had not yet paid, (Exh. 6, p. 20-21.) In 2015 and 2016, Respondent ultimately began attempting to again procure the previously offered lien reductions from Tong Xiong’s medical lienholders. Said medical providers included, among others, Fresno Imaging, Safeco Medpay, and Prospice Medical Group. (Exh. 1183, p. 1) Tong Xiong’s last medical lienholder was finally paid in or about April 26, 2016. (Exh. 1058.) -20-Conclusions of Law ‘Count Four (A) - Former Rule 3-110(A) [Failure to Perform with Competence] In Count Four (A), OCTC alleges that Respondent violated former rule 3-110(A) by failing to negotiate Tong Xiong’s medical provider liens. ‘The court agrees. Respondent initiated negotiations with Tong Xiong’s medical providers in October 2013, but then failed to follow through with the negotiations despite Tong Xiong’s repeated requests to do so. Respondent's conduct demonstrated an intentional, reckless, and repeated failure to perform legal services on ‘Tong Xiong’s behalf, in willful violation of former rule 3-110(A). Count Four (B) — Former Rule 3-700(A)(2) [Improper Withdrawal] By taking no action on Tong Xiong’s matter between on or about December 4, 2013 and 2015, despite her repeated requests for help, Respondent constructively withdrew from employment without taking reasonable steps to avoid reasonably foreseeable prejudice to Tong Xiong, in willful violation of former rule 3-700(A)(2). Count Four (C)— Former Rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] By not promptly paying the medical lien to MRI Imaging on behalf of Tong Xiong, Respondent willfully violated former rule 4-100(B)(4).. Count Four (D) — Former Rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] By not promptly paying the medical lien to Prospice Medical on behalf of Tong Xiong, Respondent willfully violated former rule 4-100(BY(4).. Count Four (E) — Former Rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] By not promptly paying the medical lien to Safeco Medpay on behalf of Tong Xiong, Respondent willfully violated former rule 4-100(B)(4).. dit -21-Count Four (F) — Section 6106 [Moral Turpitude-Misappropriation] Similar to previous counts, OCTC charged that Respondent’s failure to promptly pay out Tong Xiong’s lienholders constituted a constructive misappropriation, even though no evidence ‘was presented demonstrating that Respondents CTA account dipped below what he was required to hold for Tong Xiong and her lienholders. The Tong Xiong lienholder funds have now been paid out and the court concludes that the alleged misappropriation has not been established by clear and convincing evidence. As a result, Count Four (F) is dismissed with prejudice, Case No, 15-0-13574 (Saelee) Facts On or about January 20, 2011, Weun Choy Saelee hired Respondent to represent him, his wife, and his minor grandchild (the Saelees) in connection with a motor vehicle collision that took place on or about January 5, 2011. At the time of the collision, Weun Choy Saelee was insured by Mercury Insurance (Mercury) under a policy that provided coverage and benefits for himself, his wife, and grandchild. The Mercury insurance policy provided med-pay coverage which required that the insured submit claims for reimbursement for medical costs within two years of the date of any accident where injuries were sustained by the insured. (Exh. 7, p. 151.) During January 201 1, Respondent sent a demand to Mercury for $5,000 per insured. By letters dated February 25, March 24, April 22, June 16, and August 12, 2011, Mercury sent letters to Respondent stating that Mercury required an Explanation of Benefits (OB) stateme from the Saelees’ health carrier. ‘These letters asked Respondent to “please provide status on your obtaining the EOB’s [sic] to process the medical claim.” (Exh. 7, pp. 162-167.) Respondent never provided Mercury with the Saelees’ EOB, despite Mercury’s multiple requests for one. Consequently, the Saelees’ med-pay coverage for injuries they sustained in the -22-January 5, 2011 motor vehicle accident expired. Respondent did not inform the Saelees that he did not provide Mercury with the requested EOBs and that the two-year med-pay period expired during the period he was representing them, ‘The Saelees terminated Respondent's services and retained another lawyer. By letter dated November 25, 2013, Mercury Insurance informed Respondent that since the EOBs had not been received, “the contractual provisions of the policy preclude the [Saelees] from collecting under [the med-pay] coverage of the policy.” (Exh. 7, p. 168. ) Respondent did not inform the Saelees about Mercury's denial of the med-pay claims. Conclusions of Law Count Five (A) - Former Rule 3-110(A) [Failure to Perform with Competence] Respondent was hired to represent the Saelees in connection with personal injuries arising from their January 5, 2011 auto accident, yet he failed to take the steps necessary to provide Mercury with the EOBs needed to process the med-pay coverage for the Saelees and the med-pay coverage lapsed. As such, Respondent recklessly and repeatedly failed to perform legal services with competence, in willful violation of former rule 3-110(A). Count Five (B) — Section 6068, Subd. (m) [Significant Development] By failing to inform the Saclees that he did not provide Mercury with the EOBs and that, the two year med-pay period expired during the period that he was representing them, Respondent willfully violated section 6068, subdivision (mn). Case No. 15-O-14508 (Trer Vang) Facts On or about January 5, 2012, Trer Vang retained Respondent to represent her in connection with her claims arising out of a January 4, 2012 automobile accident. (Exh. 8, p. 19- 21) 2.On February 27, 2015, Trer Vang’s case was settled for a total of $40,000. On March 2, 2015, Progressive Insurance issued a check in the amount of $40,000 payable to Trer Vang and Respondent. On or about May 5, 2015, Respondent deposited the $40,000 check into his CTA. account. That same day, Respondent issued to himself a check in the amount of $17,694.78 for attorney's fees and costs. By July 2, 2015, Respondent's office had sent lien reduction requests to all of Trer ‘Vang’s medical providers and all, except one, had responded to and accepted reductions. (Exh. 25, p. 331.) As a result of the reductions, Trer Vang was to receive $6,240.22. (Exh. 25, p. 331.) Inalletter also dated July 2, 2015, Respondent presented Trer Vang with a breakdown of the anticipated disbursals in her case. The letter stated that without lien reductions, Respondent anticipated a balance of -$4,534.53; with anticipated lien reductions, Respondent expected a $6,240.22 disbursal to Trer Vang. In the same letter, Respondent admitted that at the time Trer ‘Vang agreed to the settlement of her claim, Respondent promised her a minimum net recovery of $10,000 after anticipated reductions to her medical liens. As such, Respondent stated that he would disburse $10,000 to Trer Vang regardless of his success in negotiating lien reductions. On August 10, 2015, Respondent issued a check to Trer Vang in the amount of $10,000. ‘Trer Vang emailed Respondent on August 12, 2015, demanding that he provide proof that her ‘medical expenses had been paid and requesting a copy of the actual medical provider bills. (Exh, 8, p. 38.) She was told by Respondents office staff that her email had been forwarded to Respondent and his office manager. (Exh. 8, p. 38.) In an August 26, 2015 email to the State Bar, Respondent stated that he was still negotiating reductions to Trer Vang’s liens.Respondent didn’t issue checks to Trer Vang’s lienholders until October 10, 2017. (Exh. 44, pp. 9114, 9122-9123, 9127, 9133-9134, 9141, 9200; Exh. 25, pp. 322, 331.) Lienholder ‘Trover Solutions was also issued a check dated October 10, 2017. (Exh. 44, p. 9141.) Conclusions of Law Count Six (A) - Former Rule 3-110(A) [Failure to Perform with Competence] In Count Six (A), OCTC alleges that Respondent violated former rule 3-1 10(A) by failing to negotiate with Trer Vang’s medical providers regarding satisfaction of their liens. The court agrees. Respondent received Trer Vang’s settlement check in May 2015 and received reduction offers from all but one of Trer Vang’s medical providers by July 2015. Despite these facts, Respondent took no action to either accept the medical lienholders’ offers or provide them with a counteroffer. Ultimately, Respondent did not pay out the lienholders until he was facing State Bar disciplinary charges in October 2017. Accordingly, Respondent intentionally, recklessly, and willfully failed to perform legal services with competence, in willful violation of former rule 3-110(A). Count Six (B) — Former Rule 4-100(B)(4) [Failure to Pay Client Funds Promptly} In Count Six (B), OCTC alleges that Respondent violated former rule 4-100(B)(4) by failing to promptly pay Trover Solutions, Inc./Kaiser Permanente the money it was owed in connection with its treatment of Trer Vang. The court agrees. As noted above, Respondent failed to pay out funds he was holding on behalf of Trer Vang to Trover Solutions, Inc., for approximately two and a half years, in willful violation of former rule 4-100(B)(4). Count Six (C) ~ Section 6106 [Moral Turpitude—Misappropriation] Similar to previous counts, OCTC charged that Respondent’s failure to promptly pay out ‘Trer Vang’s funds constituted a constructive misappropriation, even though no evidence was presented demonstrating that Respondent’s CTA account dipped below what he was required to 25-hold for Trer Vang. ‘The Trer Vang funds have now been paid out and the court concludes that the alleged misappropriation has not been established by clear and convincing evidence. As a result, Count Six (C) is dismissed with prejudice. Case No. 16-0-10133 (State Bar Investigation) Facts On March 5, 2015, the Fresno County Superior Court entered against Respondent and an associate at his firm, a default judgment in a professional malpractice action entitled Reyes v. Childs. The judgment was entered in the amount of $2,180,000. Respondent did not report the default judgment to the State Bar within 30 days of the entry of the default judgment. Nor did Respondent report the default judgment to the State Bar within 30 days of the November 2015 date when Respondent acknowledged that he first had notice of the judgment.”* Conclusions of Law Count Seven — Section 6068, Subd. (o)(2) [Failure to Report Entry of Judgment] Section 6068, subdivision (0)(2), provides that within 30 days of knowledge, an attorney has a duty to report, in writing, to the State Bar the entry of judgment against the attomey in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed ina professional capacity. By failing to report the Fresno County Superior Court judgment within 30 days of when Respondent became aware of it in November 2015, Respondent willfully violated section 6068, subdivision (0)(2). uw > Respondent testified that he “reported” the default judgment to State Bar investigator Braulio Munoz in an email during the October to December 2015 time frame. The court did not find this testimony credible, as Respondent could not locate the email or any other documentation of such a “report.” 26+Case No. 16-O-10280 (Parker-Reed and Reed) Facts Inor around October 2010, Elaine Parker-Reed (Parker-Reed) and then-minor child Monte Reed (Monte), through father and husband Stanley Reed (Reed), hired Respondent to represent them in a personal injury action stemming from an April 9, 2010 motor vehicle collision. Parker-Reed and Monte suffered injuries for which they both received medical treatment, Monte’s medical treatment ended in 2011. In or around June 2011, Respondent received two bodily injury partial settlements of $15,000 each for Parker-Reed and Monte. Because Monte was still a minor at the time that this settlement payment was made for Monte, Respondent advised Parker-Reed and Reed to set up a custodial account for Monte, which Reed set up on or around September 2, 2011. (Exh. 9, p. 27.) Respondent provided no additional instructions and did not at any time file, on Monte’s behalf, a petition to approve minor’s compromise of disputed claim pursuant to California Probate Code, sections 3500-3610. On or about June 29, 2011, Respondent prepared Parker-Reed’s cost disbursal pre- reduction and post-reduction breakdown for the third-party bodily injury claim. According to this breakdown, Parker-Reed was to net $6,456.37 after post-lien reductions. On an unknown date, Respondent also sent a cost disbursal breakdown for Monte which stated that Respondent had been directed by Parker-Reed to pay all of Monte’s medical providers who provided services in connection with Monte’s underinsured motorist claim injuries. (Exh. 9, p. 19.) In July 2011, Respondent advanced Parker-Reed $4,000, In December of 2011, Parker- Reed borrowed $12,500 from Golden Pear, a high interest settlement lender. She understood that Respondent would negotiate with and pay her Golden Pear loan from the settlement funds. 27-‘Monte reached the age of majority on January 23, 2015. Parker-Reed and Reed made multiple calls to Respondent’s office and sent Respondent letters dated April 9 and June 12, seeking status updates and demanding disbursal of Monte’s settlement funds. (Exh. 9, pp. 23- 27.) Respondent was initially non-responsive to Parker-Reed’s and Reed’s communications, but ultimately paid Monte’s settlement funds to Reed on July 2, 2015, in two checks: $5,831.72 and $5,418.28, totaling $11,250.* (Exh. 44, p. 7007-7008.) ‘Thereafter, Parker-Reed and Monte settled their underinsured motorist (UIM) claims during a July 29, 2015 mediation. On or about July 31, 2015, Geico, Parker-Reed’s insurer, issued UIM checks payable to Respondent, Parker-Reed, and Monte as follows: $28,000 to Parker-Reed; and $10,000 to Monte. (Exh. 44, pp. 7328-7330.) Respondent signed both checks under a power of attorney and deposited both checks into his CTA. Respondent paid himself UIM claim attomey’s fees and costs of $7,050 for Parker-Reed and $2,550 for Monte, on September 4, 2015. (Exh. 44, p. 7345.) This left $7,450°° owed to Monte and $20,950 owed to Parker-Reed and her lienholders, including Golden Pear.” Respondent did not promptly inform Parker-Reed that he had received the $28,000 Geico settlement check on her behalf.”* By a letter dated May 3, 2016, delivered to Respondent by both postal and electronic ‘mail, the State Bar informed Respondent of the allegations in this case and requested his 25 According to a disbursement Respondent prepared for Monte on bodily injury settlement, Monte’s share of the proceeds was $5,831.72. (Exh. 9, p. 19.) It is unclear what the $5,418.28 check was for. 26Even assuming that the aforementioned $5,418.28 check was an advance on Monte’s share of the UIM proceeds, Monte would still be owed $2,031.72 ($7,450 - $5,418.28) from the UIM settlement. 27 There is no evidence that this sum or any portion of it was paid to Parker-Reed or her lienholders. 25 The court found Parker-Reed’s testimony on this subject to be credible, The court also rejects Respondent's argument that Parker-Reed must have been aware of the check because she endorsed it, as the check was signed by Respondent under power of attorney. -28-response by May 20, 2016. Respondent informed the State Bar that he was experiencing a myriad of personal and medical events that required him to request extensions of time to respond to the Parker-Reed allegations. The State Bar extended the time for Respondent to address the allegations to June 6, 2016. (Exh. 9, p. 42.) After he learned of it, Respondent asked Parker-Reed to withdraw her State Bar complaint, As of the time of trial, Respondent still had not distributed any portion of the remaining UIM settlement funds to Parker-Reed, Monte, or any lienholder on behalf of Parker- Reed or Monte. Conclusions of Law Count Fight (A) — Former Rule 3-110(A) [Failure to Perform with Competence] Respondent is culpable of willfully violating former rule 3-110(A) by failing to file, on Monte’s behalf, a petition to approve minor's compromise of disputed claim after his medical treatments ended in 2011 and before Monte reached the age of majority in 2015. Count Eight (B) — Former Rule 3-700(A)(2) [Improper Withdrawal] In Count Eight (B), OCTC alleges that Respondent constructively withdrew from representation of the Parker-Reed and Monte on or about September 4, 2015, by failing to take any action on their behalf after that date. This allegation, however, was not demonstrated by clear and convincing evidence. Accordingly, Count Eight (B) is dismissed with prejudice. Count Eight (C)~ Former Rule 4-100(B)(1) [Failure to Notify Upon Receipt of Funds] By failing to promptly inform Parker-Reed of Respondent's receipt of the $28,000 Geico check, Respondent failed to promptly notify a client of Respondent's receipt of funds on the client’s behalf, in willful violation of former rule 4-100(B)(1). we -29-Count Bight (D) - Former Rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] Respondent received $15,000 in settlement funds for Monte in or about June 2011, but he failed to pay out to Monte any portion of those funds until July 2, 2015. Accordingly, Respondent failed to promptly distribute client funds, in willful violation of former rule 4-100(B)(4). Count Eight (E) — Former Rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] Respondent received $28,000 in settlement funds for Parker-Reed from Geico on July 31, 2015, but he failed to pay out to Parker-Reed (or any lienholder on her behalf) any portion of those funds. Accordingly, Respondent failed to promptly distribute client funds, in willful violation of former rule 4-100(B)(4). Count Eight (F) —Section 6106 [Moral Turpitude-Misappropriation] In Count Eight (F), OCTC alleged that Respondent constructively misappropriated for his ‘own purposes, $20,950 that he received on behalf of Parker-Reed. Unlike the previous charges of misappropriation in this matter, Respondent still has not released any portion of these funds to Parker-Reed or her lienholders. While a dip in a trust account creates an inference of misappropriation (Giovanazzi v. State Bar (1980) 28 Cal.3d 465, 474), the court finds that Respondent’s failure to distribute client funds in four-plus years creates a similar inference. Respondent did not provide any credible evidence demonstrating that he continues to hold these funds on Parker-Reed’s behalf and that he intends to distribute them. Accordingly, the court concludes that Respondent has misappropriated these funds, in willful violation of section 6106. Count Fight (G) — Former Rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] Respondent received $10,000 in settlement fuunds for Monte from Geico on July 31, 2015, but he failed to pay out to Monte (or any lienholder on his behalf) any portion of those funds. -30-Accordingly, Respondent failed to promptly distribute client funds, in willful violation of former rule 4-100(B)(4). Count Eight (H) — Section 6106 [Moral Turpitude-Misappropriation] In Count Eight (H), OCTC alleged that Respondent constructively misappropriated for his own purposes, the funds he received on behalf of Monte in the UIM matter. Similar to Count Eight (F), Respondent still has not released all these funds to Monte or his lienholders. Construing the facts in a light most favorable to Respondent, he still owes Monte or his lienholders at least $2,031.72. Considering that Respondent received these funds over four years ago and continues to not distribute them, the court concludes that he has misappropriated these funds, in willful violation of section 6106. Count Eight (1) - Section 6068, Subd. (a) [Failure to Comply with Laws] Section 6068, subdivision (2), provides that an attomey has a duty to support the Constitution and laws of the United States and California. In Count Eight (1), OCTC alleges that Respondent violated this section by failing to file a petition to approve minor’s compromise of disputed claim, as required by California Probate Code sections 3500-3613. California Probate Code sections 3500-3613 lay out the parameters for settling claims brought on behalf of minor children. By failing to file a petition to approve minor’s compromise of disputed claim on behalf of Monte, as required by California Probate Code sections 3500-3613, Respondent willfully violated section 6068, subdivision (a). Count Eight (J) — Section 6068, Subd. (m) [Failure to Respond to Client Inquiries] By failing to respond to Parker-Reed and Reeds repeated reasonable status inquires ‘between approximately April 2015 and June 2015, Respondent willfully violated section 6068, subdivision (m). -31-Count Eight (K) — Section 6090.5 Subd. (a)(2) [Agreement Not to File Complaint] Here, the evidence demonstrated that Respondent asked Parker-Reed to cancel her State Bar complaint, He did not, however, promise or threaten a particular outcome if she failed to do so. Nor did he enter into any type of an agreement with Parker-Reed. Moreover, Parker-Reed ‘was not a “plaintiff” in a civil action against Respondent. ‘Accordingly, Count Eight (K) has not been established by clear and convincing evidence and is dismissed with prejudice. Count Eight (L) - Section 6106 [Moral Turpitude] In Count Eight (L), OCTC alleges that Respondent committed moral turpitude by conditioning payment of funds owed to Parker-Reed and Monte upon their withdrawal of a State Bar complaint. This allegation, however, was not established by clear and convincing evidence. Parker-Reed credibly testified that Respondent asked her to withdraw her State Bar complaint, but she did not testify that Respondent asked her to do that in exchange for his releasing her settlement funds. Accordingly, Count Eight (L) is dismissed with prejudice. Case No. 16-0-10917 (Cabrera-Lozano) Facts On July 25, 2012, Augustin Cabrera-Lozano (Cabrera-Lozano) hired Respondent to represent him on a contingency basis in connection with injuries Cabrera-Lozano had suffered in a motor vehicle collision. (Exh. 26, p. 979-981.) Respondent represented to Cabrera-Lozano that he would be paid a recovery of $16,000 or $17,000. (Exh. 26, p. 11.) Cabrera-Lozano underwent various medical treatments, but, although he was still experiencing back pain, Cabrera-Lozano was reluctant to undergo certain more extensive medical treatments recommended by Respondent and his staff. On or about August 25, 2015, Cabrera-Lozano’s personal injury case was resolved after 32-mediation with a $60,000 settlement. On or about August 25, 2015, Cabrera-Lozano signed a release from all claims and retumed it to Respondent's office. Sometime after August 25, 2015, Respondent received a check from State Farm Insurance in the amount of $60,000 made payable to Respondent and Cabrera-Lozano. (Exh. 44, p. 7408.) Respondent deposited the State Farm check into his CTA and paid himself $24,000 in attorney's fees on October 5, 2015. (Exh. 44, p. 7409.) On or about September 23, 2015, Cabrera-Lozano called Respondent's office and was informed that the settlement check had been received. Disgusted that he had not yet received any settlement funds, Cabrera-Lozano filed a State Bar complaint against Respondent during, February 2016. On or about June 19, 2016, Respondent had the following exchange with his employee, ‘Thi Nguyen, regarding Cabrera-Lozano: “[Respondent]: We should tell him that I will reduce my [attomey’s] fee but that as a condition he will withdraw his complaint with the bar;” “TN: Ok | will have Rosa tell him now.” (Exh. 26, p. 11.) Subsequently, Rosa Perez, Respondent's office paralegal, told Thi Nguyen that she had “confirmed that client had agreed to withdraw, but asked how can he do so.” (Exh. 26, p. 11.) Rosa Perez also informed Cabrera-Lozano that Respondent needed confirmation from the State Bar. (Exh. 26, p. 11.) Cabrera-Lozano went to Respondent's office to pick up his settlement check on April 25, 2017. However, when Cabrera realized that the disbursal check was for a total of $8,229, instead of the $16,000 he had been promised by Respondent, Cabrera refused to accept the check and eft. (Exh. 26, pp. 3-5.) Respondent paid Cabrera-Lozano a disbursal check dated September 18, 2017, in the amount $16,000. (Exh. 44, p. 9084.) After the September 18, 2017 disbursal to Cabrera- Lozano, Respondent paid Cabrera-Lozano’s medical lienholders. -33-Conclusions of Law Count Nine (C)”? — Former Rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] By failing to pay out Cabrera-Lozano’s portion of the State Farm Insurance settlement check for almost two years after receipt, Respondent willfully violated former rule 4-100(B)(4). Count Nine (D) ~ Former Rule 4-100(B)(3) [Failure to Account] Former rule 4-100(B)(3) provides that an attorney must maintain records of all client funds, securities, and other properties coming into the attomey’s possession and render appropriate accounts to the client regarding such property. OCTC, however, did not establish by clear and convineing evidence that Cabrera-Lozano sought an accounting in or about October 2015, as alleged. Accordingly, Count Nine (D) is dismissed with prejudice. ‘Count Nine (E) — Section 6090.5 Subd. (a)(2) [Agreement Not to File Complaint] Respondent's June 19, 2016 exchange reflects that Cabrera-Lozano was offered a fee reduction in exchange for the withdrawal of his State Bar complaint against Respondent. Accordingly, Respondent sought an agreement with a client to withdraw a State Bar disciplinary complaint, in willful violation of section 6090.5(a)(2.) Count Nine (F) - Section 6106 [Moral Turpitude] In Count Nine (F), OCTC alleges that Respondent committed moral turpitude by conditioning payment of Cabrera-Lozano’s settlement funds on Cabrera-Lozano withdrawing his State Bar disciplinary complaint. The court agrees. By conditioning payment of client funds, which the client was entitled to receive, Respondent committed an act involving moral turpitude or corruption in willful violation of section 6106. vi ?° Counts Nine (A) and (B) were dismissed upon OCTC’s request. 34.Count Nine (G) — Section 6106 [Moral Turpitude—Misappropriation] Similar to previous counts, OCTC charged that Respondent’ failure to promptly pay out Cabrera-Lozano’s funds constituted a constructive misappropriation, even though no evidence ‘was presented demonstrating that Respondent's CTA account dipped below what he was required to hold for Cabrera-Lozano. The Cabrera-Lozano funds have now been paid out and the court concludes that the alleged misappropriation has not been established by clear and convincing evidence. As a result, Count Nine (G) is dismissed with prejudice. Case No. 16-0-11898 (Cha) Facts On or about January 20, 2014, Gilbert Cha (Cha) hired Respondent to represent him in a personal injury action relating to a December 31, 2013 motor vehicle incident in which Cha struck a cow on the roadway. The fee agreement Cha signed stated that Respondent did not maintain errors and omissions insurance coverage applicable to the services rendered, when, in fact, he did. (Exh. 16, p. 25-27.) ‘The December 31, 2013 traffic collision report identified the individual believed to be the owner of the cow. (Exh. 16, p. 65-67.) After reviewing the traffic collision report, Respondent's office attempted to locate the owner of the cow that had wandered onto the roadway. On or about June 4, 2015, Respondent's office submitted a request to MEA Research Services, Ltd., in an attempt to determine whether the alleged owner of the cow held an insurance policy under which Cha’s claim could be tendered for coverage. By June 12, 2015, MEA informed Respondent's office staff that it could locate no such insurance coverage under the name of the alleged cow owner. (Exh. 1107.) Respondent subsequently leamed that the alleged cow owner was deceased and his office was unable to locate the cow's caretaker. -35-On December 17, 2015, two weeks prior to the expiration of the statute of limitations on Cha’s claim, Respondent sent a certified letter to Cha terminating Respondent's representation of Cha. In this letter, Respondent informed Cha that his “insurance has the right to seek reimbursement from [Cha] regarding any medical payments that has [sic] been issued for the matter” and that “a personal injury claim must be filed within two years from the date of the injury or any rights to recovery which you may have will be forever lost.” (Exh. 16, p. 28.) Conclusions of Law Count Ten (A) — Former Rule 3-110(A) [Failure to Perform with Competence] OCTC alleges that by failing to file a complaint on Cha’s behalf, Respondent failed to perform competently, The court does not agree, The evidence before the court demonstrates that Respondent and/or his office made efforts to locate the owner of the cow. Despite these efforts, they were unable to identify a liable party to sue or from whom to demand a settlement. Accordingly, it has not been established by clear and convincing evidence that Respondent's failure to file a complaint in the Cha matter was the result of his intentional, reckless, or repeated failure to perform. Count Ten (A) is therefore dismissed. Count Ten (B) - Former Rule 3-700(A)(2) [Improper Withdrawal From Employment] In Count 10 (B), OCTC alleges that Respondent violated former rule 3-700(A)(2) by withdrawing from employment in the Cha matter without taking necessary action to protect, Cha’s legal claim and allowing him time to obtain other counsel. ‘The evidence demonstrates that Respondent and/or his office’s attempts to locate the owner the cow occurred in June 2015. No reasonable explanation was provided regarding why Respondent waited until December 17, 2015 to draft his termination letter to Cha, Here, it was foreseeable that waiting to withdraw until two weeks before the statute of limitations had run would be prejudicial to Cha. Respondent was retained in January 2014 and -36-hhad nearly two full years to investigate Cha’s matter. By waiting until the eve of Cha’s statute of limitations to inform him that Respondent was withdrawing from representation, Respondent failed to take necessary action to protect Cha’s legal claim and failed to provide Cha reasonable time to employ other counsel, in willful violation of former rule 3-700(A)(2). (See Jn the Matter of Dahlz (Review Dept. 2001) 4 Cal. State Bar Ct, Rptr. 269, 280 [attomey has duty to avoid foresceable prejudice to client’s interest until a substitution of counsel is filed}.) ‘Count Ten (C) — Section 6106 [Moral Turpitude — Misrepresentation] Similar to Count Two (J), Respondent was, at a minimum, grossly negligent when he misrepresented to Cha that he did not have errors and omissions coverage when he should have known that he did, This misrepresentation through gross negligence constitutes a willful violation of Business and Professions Code section 6106. Case No. 16-0-14381 (Vaughn) Facts In or about December 2012, Melissa Vaughn (Vaughn)*’ and her one-year old daughter were in a car accident, Vaughn suffered spinal and other back injuries. Vaughn was referred to Respondent by her doctor. On or about December 19, 2012, Vaughn met with Respondent via Skype from one of. Respondent's satellite offices and signed a contingency fee agreement for Respondent to handle personal injury claim for her and her daughter. ‘The fee agreement Vaughn signed stated that Respondent did not maintain errors and omissions insurance coverage applicable to the services rendered.*! * Vaughn is also known as Melissa Alberghini. It was not established by clear and convincing evidence that Respondent had errors and omissions coverage in place as of December 2012. -37-Anticipating that Respondent was going to file a complaint on her behalf, Vaughn rejected a $65,000 settlement offer made by third party insurer QBE to resolve her claim. (Exh. 1p. 15.) Unbeknownst to Vaughn, Respondent thereafter failed to file the complaint before ‘Vaughn’s statute of limitations expired on December 15, 2014. Nonetheless, on December 18, 2014, Respondent informed QBE that he had filed a complaint on Vaughn’s behalf.” Thereafter, Respondent failed to inform Vaughn that he had not timely filed the complaint, In or about the spring of 2015, Vaughn began calling Respondent's office every day in an effort to try to try to obtain a status update. Respondent, however, was never available to speak with her and didn’t return her calls. Nor did Respondent provide the case status updates, which Vaughn requested. At one point, Respondent scheduled a Skype telephone conference with Vaughn, but then failed to participate. When Vaugha retained a new firm, Ashton and Price, to handle her personal injury case, Craig Ashton, Esq. (Ashton), reviewed the file and informed Vaughn that Respondent had not filed the complaint. Ashton also leaned that Respondent had falsely informed the third party insurance rep on December 15, 2014, that Respondent had filed a complaint on behalf of Vaughn. (Exh. 11, p. 15.) In February 2016, Respondent also informed Ashton that Respondent did not maintain applicable errors and omissions coverage. ‘Vaughn lost her cause of action and was left with $45,000 in medical bills. Ashton successfully negotiated a total waiver/reduction of Vaughn’s medical liens. dt >» QBE Claims Examiner Pamela Smith-Richmond sent a letter to Vaughn, dated April 21, 2016, which stated that Respondent told QBE that he had filed a complaint on Vaughn’s behalf. -38-Conclusions of Law Count Eleven (A) ~ Former Rule 3-110(A) [Failure to Perform with Competence] By failing to file Vaughn’s complaint before the statute of limitations expired, Respondent failed to perform with competence the legal services he was employed to perform and violated former rule 3-110(A). Respondent contends that he signed Vaughn’s complaint uring September 2014 and that his secretary failed to file it in the Sacramento Superior Court as. Respondent instructed, However, as the attorney retained to provide legal services on the case, it, ‘was Respondent's responsibility to properly supervise the secretary and to ensure that Vaughn’s complaint was filed before the statute of limitations expired. (In the Matter of Malek-Yonan (Review Dept. 2003) 4 Cal. State Bar Ct. Rptr. 627, 634 [former rule 3-110(A) includes duty to supervise work of staff].) Count Eleven (B) — Former Rule 3-700(A)(2) [Improper Withdrawal From Employment] In Count Eleven (B), OCTC alleges that Respondent improperly withdrew from his representation of Vaughn by constructively terminating his employment on December 18, 2014. The court agrees. Without any notice to Vaughn, Respondent stopped performing any services on her behalf on or about December 18, 2014. At that time, Respondent had a duty to communicate the significant events that had transpired, most notably his failure to file a complaint before Vaughn’s statute of limitations expired. Moreover, despite her repeated requests for a status update, Respondent and his office chose to ignore her. Consequently, his conduct rose to the level of constructive termination of his employment. By constructively terminating his repres ation of Vaughn without notice, Respondent willfully violated former rule 3-700(A)(2). wt -39-Count Eleven (C) ~ Section 6068, Subd. (m) [Failure to Respond to Client Inquiries] “Vaughn credibly testified that she called Respondent's office numerous times seeking status updates and leaving messages requesting that Respondent return her calls. By failing to respond to Vaughn’s repeated reasonable status inquires, Respondent willfully violated section 6068, subdir Count Eleven (D) — Section 6068, Subd. (m) [Communicate Significant Developments} By failing to inform Vaughn that Respondent did not file a complaint on her behalf within the statute of limitations, Respondent willfully violated section 6068, subdivision (mm). Count Eleven (E) ~ Section 6106 [Moral Turpitude -- Misrepresentation] In Count Eleven (E), OCTC alleges that Respondent committed moral turpitude by misrepresenting to Vaughn that he did not maintain malpractice insurance in December 2012. However, it has not been established by clear and convincing evidence that Respondent had malpractice insurance in place at the time that statement was made. Accordingly, Count Eleven (E) is dismissed with prejudice. ‘Count Eleven (F) — Section 6106 {Moral Turpitude — Misrepresentation] In Count Eleven (F), Vaughn testified that she called QBE and was also told that Respondent told QBE that he had filed a lawsuit on her behalf, which he had not done. The April 21, 2016 letter from QBE Claims Examiner, Pamela Smith-Richmond also states that Respondent told QBE that he had filed a complaint on Vaughn’s behalf. ‘While Respondent does not deny making that representation, he argues that his misrepresentation to the QBE claims representative was a negligent misrepresentation. (See Respondent's closing brief, p. 12.) 33 In Count Eleven (C), OCTC alleges that Vaughn called Respondent 17 times. It is unclear whether there were exactly 17 calls, but it was established that Vaughn made numerous calls seeking status updates. -40-Making such a representation about this act, essential to Vaughn’s case, is, at a minimum, ‘gross negligence due to Respondent’s failure to first check his own records. (Giovanazzi v. State Bar, supra, 28 Cal.34 465, 475 [“Gross carelessness and negligence constitute violations of the ath of an attomey to faithfully discharge his duties to the best of his knowledge and ability, and involve moral turpitude as they breach the fiduciary relationship owed to clients.”].) If Respondent had practiced even minimal diligence, he would have determined that no complaint had been filed in the Vaughn matter. Therefore, by making this misrepresentation to QBE through gross negligence, Respondent is culpable for willfully violating Business and Professions Code section 6106. Case No. 16-0-14807 (The Medi-Cal Matter) Facts Respondent represented a client who obtained $15,673.91 in medical services provided by Medi-Cal. On or about August 2, 2013, the Department of Health Care Services (DHCS) sent a letter to Respondent which informed Respondent that his client owed Medi-Cal $15,673.91 for medical services and “the State has the right of reimbursement pursuant to Welfare and Institutions Code, Sections 14124.70 through 14124.795, or Section 14024.” (Exh. 17, p. 45.) DHCS also informed Respondent that it would reduce its medical lien to $11,755.44, ‘On August 15, 2013, Respondent proposed that DHCS accept a further reduced amount of $706.31, based on a settlement amount of $10,000. (Exh. 17, p. 36-37.) DHCS countered with an offer to accept $2,740.70 if the total settlement was $10,000. (Exh. 17, p. 46-47.) A final settlement payment was made in Respondents client’s case on or around May 27, 2016. After Respondent did not pay DHCS, it submitted a complaint against Respondent to the State Bar. On October 7, 2016, a State Bar investigator contacted Respondent and requested a response to the DHCS complaint. Respondent received this letter but did not respond. Al.Respondent ultimately paid his client’s DHCS Medi-Cal lien in the amount of $2,740.70 on September 9, 2017. ‘Conclusions of Law Count Twelve (A) ~ Section 6068, Subd. (a) [Failure to Comply with Laws] In Count Twelve (A), OCTC alleges that Respondent violated this section by failing to pay the DHCS lien, as required by California Welfare and Institutions Code, sections 14124.70- 14124.795. California Welfare and Institutions Code, sections 14124.70-14124.795 lay out DHCS’s entitlement for payment. By failing to effectuate payment of DHCS’s lien for over four years, Respondent failed to comply with California Welfare and Institutions Code, sections 14124,70-14124.795, in willful violation of section 6068, subdivision (a). Count Twelve (B) ~ Section 6068, Subd. (i) [Failure to Cooperate] Section 6068, subdivision (i), provides that an attorney has a duty to cooperate and participate in any disciplinary investigation or other regulatory or disciplinary proceeding pending against the attorney. By receiving and failing to provide a substantive response to OCTC’s investigative letter of October 7, 2016, Respondent willfully violated section 6068, subdivision (i). Case No. 16-0-14860 (State Bar Investigation) Facts Respondent hired Alfred L. Hansen (Hansen) to work in Respondent's law office. Hansen was formerly licensed to practice law as an attomey in the state of Louisiana, From April 8, 2014 through July 14, 2016, Hansen was not licensed to practice law in California, At the time that he hired Hansen, Respondent knew that Hansen was suspended from practicing law oth in Louisiana and before the Board of Immigration Appeals (BIA). -42-Hansen was fluent in Spanish. During his employment with Respondent, Hansen would ‘communicate with Respondent's clients, preparing and translating immigration documents and forms. Occasionally, Hansen would draft pleadings for Respondent’s review and signature. While employed by Respondent, Hansen was identified on Respondent's firm’s website as a “Lead Immigration Clerk” who “has been practicing law since 1983 and was admitted to the State Bar of Louisiana shorty after graduating from Tulane University School of Law. Mr. ‘Hansen has extensive experience in immigration law related criminal law matters.” (Exh. 18, pp. 21-23 [emphasis added].) The website also contained an asterisk next to Hansen’s name and one other staff member listed on Respondent’s firm’s website. In smaller font at the bottom of the page, the accompanying footnote asterisk stated, “Not licensed to practice law in California.” (Exh. 18, p. 23.) Catherine O’Connell (O’Connell), Disciplinary Counsel with the United States Citizenship and Immigration Services (USCIS), sent a letter to Respondent, dated April 8, 2014, which informed Respondent that Hansen was not eligible to practice law in any jurisdiction and that the website's characterization of Hansen as “practicing law” was misleading. (Exh. 18, p.30.) O’Connell urged Respondent to correct the website’s mischaracterization of Hansen as cone who is practicing law. Respondent never corrected the website, He ultimately had Hansen’s website biography removed from the firm’s website in 2016, but that was after: (1) Respondent ‘was contacted by OCTC; and (2) Hansen left the Bohn firm. Conclusions of Law Count Thirteen — Former Rule 1-400(D)(3) [Misleading Advertisement] Former rule 1-400(D)(3) states that attorney communications or solicitations shall not omit to state any fact necessary to make the statement made, in the light of the circumstances under which they are made, not misleading to the public. In Count Thirteen, OCTC alleges that -43-Respondent willfully violated former rule 1-400(D)(3) by omitting the fact that Hansen was no longer licensed to practice law in any jurisdiction and was specifically barred from practicing immigration law before the USCIS. The court agrees. Respondent is charged with violating former rule 1-400(D)(3) by making or allowing to be made on his firm’s website, a misleading communication regarding the legal experience and professional employment of his employee, Alfred L. Hansen. Respondent's description of Hansen was, at best, misleading regarding whether Hansen was practicing law. Despite Respondents contentions that he didn’t draft the Hansen website bio, seldom/never looked at the firm website, and didn’t see O’Connell’s letter until OCTC investigation in 2017, he was responsible for his firm’s advertising, including the characterization of his staff. When he hired Hansen, Respondent knew Hansen was not admitted to practice law anywhere. The court also does not accept Respondent’s argument that OCTC was required to prove someone was actually misled by the website. Former rule 1-400(D)(3) does not require that someone actually be misled. Instead, it bars advertisements that are “misleading to the public.” Accordingly, Respondent is culpable of willfully violating former rule 1-400(D)(3). Case No. 16-0-17058 (T'sa Xiong & Nou Ying Moua) Facts On or about August 29, 2013, Tsa Xiong and Nou Ying Moua (Xiong and Moua) hired Respondent to represent them in a personal injury action stemming from an August 21, 2013 motor vehicle collision. The fee agreement signed by Xiong and Moua stated that Respondent did not maintain errors and omissions insurance applicable to the contemplated services, when in fact he did.On or about June 16, 2016, Respondent settled claims against the third-party insurer of $22,000 for Moua and $30,000 for Xiong, and they both signed a settlement agreement that day. Respondent deposited the checks into his CTA on or about July 18, 2016. Respondent’s Xiong/Moua case file notes did not reflect any communications with Xiong and Moua between June 20 and August 22, 2016. (Trial Notes). Between July 2016 and November 2016, Xiong and her daughter, Yer Xiong (Yer), made several phone calls to Respondent's office. Xiong and Moua also stopped by Respondent’s office on several occasions, demanding status updates and inquiring as to when they could expect receipt of the settlement funds, (Exh. 28, p. 293-295; Exh. 1134.) During that time frame, they did not receive a substantive response from Respondent or his staff. In October 2016, Moua visited Respondent’s office and inquired about the settlement. (Exh. 28, p. 293.) He was told that the case had settled but Respondent's office needed to work on getting reductions. (Exh. 1134, p. 6.) ‘When Xiong contacted Respondent’s office on December 27, 2016, Xiong was told that Respondent was still negotiating with lien providers. (Exh. 1134, p. 4 of 36) On January 6, 2017, Xiong and Yer went to Respondent’s office to pick up her settlement funds check. During the January 6, 2017 office visit, Xiong signed a document entitled “Receipt of Funds” for the $12,027.67 check she received. (Exh. 19, p.7.) Xiong also received a settlement disbursal letter from Respondent which reflected $9,990 paid to Respondent for attomey’s fees, and $4,058 paid to Heu Chiropractic™ with a total disbursal to Xiong of $12,310.03. (Exh. 19, p. 6) Prior to May 2017, Dr. Heu billed Xiong $4,058 and Moua $2,583 for the services rendered to them. On or about May 9, 2017, Dr. Heu again demanded payment and sent his bills to Respondent, (Exh. 19, p. 9.) According to Respondent, he considered Dr. Heu’s bills to be ™ Xiong and Moua were treated for their injuries by Dr. Heu, a chiropractor. -45-unreasonably high for the services Dr. Heu rendered to Xiong. Heu Chiropractic wasn’t paid for the services for Xiong and Moua until October 17, 2017. On that date, Respondent paid Heu Chiropractic the full amount of its lien. (Exh. 1134.) Conclusions of Law Count Fourteen (A) — Former Rule 3-110(A) [Failure to Perform with Competence] OCTC contends Respondent failed to perform competently by failing to negotiate with Xiong and Moua’s medical providers to satisfy the lien. Respondent received the settlement, funds in this matter in July 2016, yet, despite his office’s reassurances to the contrary, he failed to take any reasonable steps to resolve Dr. Heu’s liens until approximately October 2017. This conduct constituted a reckless and repeated failure to perform legal services on behalf of his clients, in willful violation of former rule 3-110(A). Count Fourteen (B) - Former Rule 3-700(A)(2) [Improper Withdrawal] By Count Fourteen (B), OCTC charges that Respondent constructively terminated his ‘employment with Xiong and Moua on or about June 17, 2016, by failing to take any action on their behalf after settling their claims against the third party insurer. While the evidence before the court supports findings that Respondent failed to perform legal services with competence, failed to promptly respond to client inquiries, and failed to promptly pay out client funds, it does not rise to the level of a constructive withdrawal from representation. A constructive withdrawal is typically evident when an attomey stops performing any services on the client’s behalf, Here, Respondent's performance of legal services was deficient and delayed, but the evidence does not support the allegation that he constructively terminated his representation of Xiong and Moua in June 2016. Accordingly, Count Fourteen (B) is dismissed with prejudice. ~46-Count Fourteen (C) ~ Section 6068, Subd. (m) [Failure to Respond to Client Inquiries] By failing to promptly respond to Xiong’s and Moua’s reasonable requests for status updates between July and November 2016, Respondent willfully violated section 6068, subdivision (m). Count Fourteen (D) — Former Rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] In Count Fourteen (D), OCTC alleges that Respondent violated former rule 4-100(B)(4) by failing to promptly pay out $4,058 to Dr. Heu on behalf of Xiong. The court agrees. Respondent received the settlement funds in July 2016 and provided Xiong a January 2017 accounting noting that $4,058 was going to be paid to Dr. Heu. Nonetheless, Respondent did not pay Xiong’s funds to Dr. Heu until he was facing the prospect of eminent State Bar disciplinary charges in October 2017. Accordingly, Respondent willfully violated former rule 4-100(B)(4). ‘Count Fourteen (F)* — Section 6106 [Moral Turpitude-Misrepresentation] As laid out above, Respondent was, at a minimum, grossly negligent when he misrepresented to Xiong and Moua that he did not have errors and omissions coverage when he should have known that he did. This misrepresentation through gross negligence constitutes a willful violation of Business and Professions Code section 6106. Case No. 16-0-17304 (Vang/Lee) Facts On or about January 28, 2015, Bee Vang, Lia Vang, and Ka Pao Lee (the Vang/Lee clients) were involved in an auto accident. The Vang/Lee clients retained Respondent on February 2, 2016. (Exh. 31, p. 183-185.) ‘The Vang/Lee clients had insurance coverage under a Geico policy which included med- pay coverage for their injuries. Between March 23 and mid-July 2015, Geico sent Respondent: 55 Count Fourteen (E) was dismissed upon OCTC’s request. 47.(1) two med-pay checks totaling $4,167.97 for Lia Vang’s medical providers (Exh. 44, pp. 6643, 7081); (2) three med-pay checks totaling $4,279.77 for Ka Pao Lee’s medical providers (Exh. 44, pp. 6644, 7075, 7203); and (3) twelve med-pay checks totaling $5,381 for Bee Vang’s medical providers (Exh, 44, p. 6735, 6817, 6818, 6824, 7078-7080, 7085, 7143-7145, 7154). Respondent deposited each of the Vang/Lee clients’ med-pay checks into his CTA. After the Vang/Lee clients began to receive payment demands from their medical providers and their bill collectors, the Vang/Lee clients called and/or emailed Respondent's staff, requesting that Respondent send the med-pay funds to their respective lienholders. (Exh. 31, pp. 2, 140-144.) Explaining that they were tired of being harassed by the bill collectors, the ‘Vang/Lee clients made multiple requests between November 5 and December 3, 2015, for Respondent to pay the medical providers. ‘When the medical providers still had not been paid by March 9, 2016, Respondent's staff noted “[c]lients have finished treating. They have all been receiving calls and mail from the [UC Davis ER/Facility, D.C.] threatening to send them to collections. Ihave spoken with all of the clients and they requested that we pay the D.C. even after I explained that we would be unable to ask for reductions later. They stated they were fine with it and just wanted the harassment to stop. Lia Vang would like us to settle the case as soon as possible because she states that [Ka Pao Lee] and Bee Vang are both constantly ill and not in good health. They'd like to put this behind them.” (Exh. 31, pp. 149-150.) Frustrated with Respondent's inaction, the Vang/Lee clients decided to terminate his services. Respondent learned that Vang and Pao Lee terminated his services when Respondent's office received a June 6, 2016 letter from Joseph Fornasero, Esq. (Fornasero). In this letter, Fomasero stated that he had been retained by the Vang/Lee clients to represent them and 48.requested the Vang/Lee clients’ files be prepared for him to pick them up when ready. (Exh. 12, p. 14.) One of Respondent’ staff called Fomasero’s office the same day the letter was received. Fomasero followed up with Respondent by faxing a letter to Respondent, on or about June 10, 2016. In this letter, Fomasero asked Respondent to send the Vang/Lee client files and med-pay funds. (Exh. 12, p. 13.) According to Respondent’s Vang/Lee client file notes, the Vang/Lee clients’ file was not sent to Fornasero until August 1, 2016. (Exh. 31, p. 1.) Fomasero sent by certified mail, another letter dated September 27, 2016, again requesting that Respondent send Fornasero the med-pay funds Respondent had received on behalf of the Vang/Lee clients. (Exh. 12, pp. 32-33.) This letter was received by Respondent's office on September 30, 2016. (Exh. 12, p. 33.) Respondent did not respond. After the Vang/Lee clients filed a complaint with the State Bar against Respondent, Respondent paid the following amounts to the Vang/Lee clients on or about November 7, 2017: Kao Pa Lee - $4,930.57; Bee Vang - $9,700; and Lia Vang - $4,167.97. Conclusions of Law Count Fifteen (A) — Former Rule 3-110(A) [Failure to Perform with Competence] In Count Fifteen (A), OCTC alleges that Respondent violated former rule 3-110(A) by failing to pay the Vang/Lee clients’ medical providers from med-pay funds Respondent received from their insurer. The court agrees. Respondent received the aforementioned med-pay funds on the Vang/Lee clients’ behalf in mid-July 2015. Despite his clients’ repeated pleas and the fact that they were being hounded by payment demands, Respondent intentionally, recklessly, and repeatedly failed to act on his clients’ behalf, in willful violation of former rule 3-110(A). ‘Count Fifteen (B) - Former Rule 3-700(A)(2) [Improper Withdrawal] In Count Fifteen (B), OCTC alleges that Respondent failed to take reasonable steps to avoid prejudice to the Vang/Lee clients by constructively terminating his employment on or -49-about June 17, 2016, by failing to take any action on the Vang/Lee clients’ behalf after receiving and depositing approximately $18,000 in client funds on their behalf. It is settled that an attorney's obligation to avoid prejudice also extends to any attomey who has been terminated. (In the Matter of Myrdall (Review Dept. 1995) 3 Cal. State Bar Ct, Rptr. 363, 374.) Here, Respondent was terminated by the frustrated Vang/Lee clients in or about June 6, 2016. Thereafter, however, he failed to take any steps to avoid reasonably foreseeable prejudice to the Vang/Lee clients. Most notably, Respondent failed to promptly and reasonably turn over the med-pay funds he had held in his CTA since July 2015. Accordingly, Respondent's conduct constituted a constructive termination without taking reasonable steps to avoid reasonably foreseeable prejudice to his clients, in willful violation of former rule 3-700(A)(2). Count Fifteen (C) ~ Former Rule 4-100(B)(1) [Failure to Notify Upon Receipt of Funds] Ithas not been established by clear and convincing evidence that Respondent failed to notify the Vang/Lee clients regarding his receipt of the med-pay funds. Accordingly, Count Fifteen (C) is dismissed with prejudice. ‘Count Fifteen (D) — Former Rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] In Count Fifteen (D), OCTC alleges that Respondent willfully violated former rule 4-100(B)(4) by failing to promptly pay out the Vang/Lee client med-pay. The court agrees; however, the charges in Count Fifteen (D) are duplicative to Count Fifteen (A). The appropriate resolution of this matter does not depend on how many rules of professional misconduct or statutes proscribe the same misconduct. (In the Matter of Torres (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 138, 148.) Accordingly, Count Fifteen (D) is dismissed, as duplicative. Count Fifteen (E) — Section 6106 [Moral Turpitude-Misappropriation] Similar to previous counts, OCTC charged that Respondent's failure to promptly pay out the Vang/Lee client funds constituted a constructive misappropriation, even though no evidence -50-‘was presented demonstrating that Respondent’s CTA account dipped below what he was required to hold for the Vang/Lee client funds. Respondent did ultimately release those funds from his CTA. Consequently, the court concludes that the misappropriation alleged in Count Fifteen (E) has not been established by clear and convincing evidence. As a result, Count Fifteen (&) is dismissed with prejudice” Case No. 16-O-18118 (LaLonde) Facts Carla LaLonde (LaLonde) wanted to retain Respondent to represent her and her daughter, with regard to a motor vehicle accident.” On March 18, 2014, LaLonde consulted with Respondent's office ~ first with his staff and then with Respondent. Respondent and LaLonde discussed various treatment and settlement scenarios, depending on the nature of LaLonde’s injuries, LaLonde was presented with a fee agreement, which she signed. Following the consultation, however, Respondent decided he would not represent LaLonde because he did not believe her. To Respondent, LaLonde’s purported injuries did not correlate with such a minor accident. Respondent therefore declined to sign the retainer agreement and informed LaLonde that he would not represent her.** On February 2, 2015, Wawanesa Insurance inquired whether Respondent's office was counsel for LaLonde, Respondent confirmed with Wawanesa Insurance by letter dated May 22, + Count Fifteen (F) was dismissed upon OCTC’s request. 37 LaLonde actually asked Respondent to represent her in three different matters. Respondent declined to represent her in the other two right away. Observing LaLonde’s demeanor and considering the evidence in this case, the court found her testimony to be disingenuous. °8 A copy of a retainer agreement purportedly signed by Respondent can be found in the exhibits. (Exh. 20, pp. 12-14.) Respondent credibly testified that it was not his signature on this, agreement. “Sle2015, that after the March 18, 2014 consultation with LaLonde, Respondent declined to accept her case. ‘After LaLonde believed her statute of limitations ran out, she wrote a letter to Respondent, on or about August 1, 2015, demanding that he pay her $7,000. In this letter, LaLonde stated that if her “settlement” offer was not accepted by Respondent, then she would “just have to ask the [S]tate Bar Association, [t]he Attorney General, and the Insurance ‘Commissioner, for a complaint form and advice on how to handle this situation.” (Exh. 1204, p. 3) Conclusions of Law Count Sixteen (A) — Former Rule 3-110(A) [Failure to Perform with Competence] Respondent is not culpable of violating former rule 3-110(A) because although LaLonde consulted with Respondent, he elected not to represent her. Since Respondent did not agree to provide legal services to LaLonde and her daughter, Count Sixteen (A) is dismissed with prejudice. Count Sixteen (B) — Former Rule 3-700(A)(2) [Improper Withdrawal] Similar to Count Sixteen (A), Respondent cannot be found culpable of violating former rule 3-700(A)(2) since he never agreed to represent LaLonde and her daughter. Accordingly, Count Sixteen (B) is dismissed with prejudice. ‘Case No. 17-0-00453 (Song) Facts On or about December 10, 2013, Kor Song hired Respondent to represent him and his > It is not clear whether LaLonde’s statute of limitations actually had expired in August 2015. LaLonde’s personal injury claim arose from an automobile accident that, pursuant to the retainer agreement, occurred on November 20, 2013. ‘The statute of limitations for personal injuries matters is two years in California, -52-three minor children A., M., and J."° (the Songs), in connection with injuries suffered in a motor vehicle collision on December 4, 2013. The fee agreement Kor Song signed stated that Respondent did not maintain errors and omissions insurance coverage applicable to the services rendered, when, in fact, he did. In early December 2015, Respondent's office settled the Songs’ cases with a third-party insurance carrier for a $15,000 payout for Kor Song and $5,000 payouts for each of the minor children. At the request of one of Respondent's staff, the Songs went to Respondents Sacramento office on December 3, 2015, where an office assistant presented them with settlement releases for their signatures. On December 15, 2015, Respondent received and deposited into his CTA account four checks: (1) $13,665 on behalf of Kor Song; (2) $5,000 on behalf of A. Song; (3) $4,440 on behalf of M. Song; and (4) $4,320 on behalf of J. Song ($27,425 in total). Approximately one year later, on December 9, 2016, Kor Song and his wife sent a letter to Respondent inquiring about the status of their case. Prior to sending the letter, Kor Song and his wife had contacted Respondent's office on at least three separate occasions, asking Respondent's staff for an update, but no update was ever provided by Respondent or any of his staff." (Exh, 13, p. 21-22.) Respondent issued checks annotated “final settle{ment]” in the following amounts to the Songs on February 12, 2018: (1) $6,375 (Kor Song); (2) $5,160.63 (A. Song); and (3) $4,965.63 (J. Song). (Exh. 1178.) Thereafter, on March 12, 2018, Kor Song received $4,759.10 in settlement funds on behalf of M. Song. (Exh. 1201, p. 3.) These checks were issued over two “° For privacy considerations, the court shall not use the minor children’s true names. *' Respondent’s office was contacted telephonically on May 11, 2016, July 7, 2016, and August 2, 2016. 53+‘years after Respondent received the Songs’ settlement funds and a few months after the First NDC was filed, Conclusions of Law Count Seventeen (A) ~ Former Rule 3-700(A)(2) [Improper Withdrawal] In Count Seventeen (A), OCTC alleges that Respondent improperly withdrew from representation of the Songs on or about March 18, 2014, by failing to take any action on their behalf after entering into a fee agreement with Kor Song and by failing to inform them that he ‘was withdrawing as their counsel. While Respondent failed to promptly respond to client inquiries -see Count 17(D), OCTC did not prove by clear and convincing evidence that Respondent constructively withdrew as counsel as alleged. Accordingly, Count Seventeen (A) is dismissed with prejudice. Count Seventeen (B) — Former Rule 4-100(B)(4) [Failure to Promptly Pay Client Funds] By failing to promptly pay out to the Songs over $21,000 in med-pay funds, which Kor Song inquired about as early as August 2016, Respondent willfully violated former rule 4- 100(B)(4).. Count Seventeen (C) — Section 6106 [Moral Turpitude — Misappropriation] Similar to previous counts, OCTC charged that Respondent’s failure to promptly pay out the Songs’ funds constituted a constructive misappropriation, even though no evidence was presented demonstrating that Respondent’s CTA account dipped below what he was required to hold for the Songs, The court acknowledges that at the time the First NDC was drafted, Respondent still had not turned over the funds to the Songs, so it was reasonable for OCTC to conclude Respondent would not do so, However, Respondent did release the Songs’ funds a few ‘months after the filing of the First NDC. Consequently, the court concludes that the alleged -54-misappropriation has not been established by clear and convineing evidence. As a result, Count Seventeen (C) is dismissed with prejudice. Count Seventeen (D) ~ Section 6068, Subd. (m) [Failure to Respond to Client Inquiries] By failing to prompily respond to reasonable status inquiries made by Kor Song and his wife between May 2016 and December 9, 2016, Respondent willfully violated section 6068, subdivision (m). Count Seventeen (E)— Former Rule 1-300(A) [Aiding Unauthorized Practice of Law] Former rule 1-300(A) provides that an attomey must not aid any person or entity in the unauthorized practice of law. In Count Seventeen (E), OCTC alleges that Respondent violated former rule 1-300(A) by delegating client intake responsibilities, including consultations and discussions of case strategy, to his non-attomey office staff, This charge, however, was not established by clear and convincing evidence, as there was little to no testimony or facts relating to this allegation. Accordingly, Count Seventeen (E) is dismissed with prejudice. Count Seventeen (F) — Section 6106 [Moral Turpitude ~ Misrepresentation] As laid out above, Respondent was, at a minimum, grossly negligent when he misrepresented to Kor Song that he did not have errors and omissions coverage when he should have known that he did, This misrepresentation through gross negligence constitutes a willful violation of Business and Professions Code section 6106. Case No. 17-0-01021 (Salinas) Facts On or about August 14, 2015, Joel Salinas (Joel) hired Respondent to handle an immigration case relating to his brother, Regino Salinas (Regino). The fee agreement in this matter was signed by Joel and Lorenzo Hurtado (Hurtado), but not Regino. (Exh. 14, p. 5-8.) ® Hurtado was Regino’s former brother in-law. -55-Regino was being held in an immigration detention facility in Texas at the time the agreement was executed. (Exh. 14, p. 5-8.) ‘The fee agreement set forth the following scope of services Respondent agreed to provide: a. Attomey will assist [Regino] in obtaining and evaluating the criminal records of [Regino] from Kern Count [sic], in order to determine if [Regino] will be a good candidate to have his most recent criminal convictions in Kern County Superior Court either vacated or reduced to acceptable immigration-neutral conviction(s). b. If [Regino] is eligible for post-conviction relief that will allow him to avoid the negative immigration consequences as outlined in California Penal Code, section 1016.5, Attorney will assist [Regino] in preparing and filing all appropriate pleadings in the KERN COUNTY SUPERIOR COURT, to either vacate his existing criminal convictions, of to have them reduced to conviction(s) with acceptable immigration-neutral consequences. The subject criminal convictions are as follow [si Infliction of Corporal Injury to Spouse or Cohabitant. . . Receiving Stolen Property . . . and Under Influence of Controlled Substance.” (Exh. 14, p. 5.) Joel made two wire transfer payments to Respondent for his brother’s representation, each in the amount of $4,000." Joel and Hurtado primarily communicated with Hansen,** who provided them with declarations for Regino’s ex-wife and others to sign in support of Regino’s hearing to vacate his criminal convictions. Hansen contacted Joel to request that Regino’s ex- wife travel to Bakersfield for the hearing. In addition, on two occasions, Hansen communicated with Joel regarding the rescheduling of a hearing. © At the time Respondent agreed to represent Regino, Respondent was aware that Regino had also retained an immigration attomey in Texas to handle Regino’s immigration needs there. “+ There is no evidence in the record that Respondent ever obtained Regino’s informed written consent for accepting compensation for Regino’s representation from Joel. * As previously noted, Hansen was not an attorney in the state of California and was working for Respondent in the capacity of an immigration clerk. -56-On December 4, 2015, Respondent’s office filed a motion to vacate judgment (motion to vacate) in a Kern County criminal case in which Regino was the defendant, (Exh. 14, pp. 19- 85.) The motion to vacate was heard December 28, 2015, and Respondent was present to argue its merits. The judge met with the parties in chambers and informed them that the court’s tentative ruling was to deny the motion to vacate. Respondent sought and was granted a continuance to allow him to file a supplemental briefing. Accordingly, the hearing was continued to January 25, 2016. Respondent did not inform Joel about the date of the rescheduled hearing or the supplemental briefing schedule. On January 22, 2016, Joel emailed Respondent to inform him. that he had retained new counsel for Regino. In this email, Joel also demanded a full reimbursement for the attorney’s fees that had been paid Respondent. (Exh. 14, p. 14.) Respondent did not respond to this email and did not appear at the January 25, 2016 hearing, Thereafter, Joel sent a letter to Respondent dated October 14, 2016, in which Joel again asked for a refund. In this letter, Joel also asked for the case file and an accounting of Respondent's time spent on Regino’s case. Joel sent another letter to Respondent dated ‘November 14, 2016, asking for the file materials, a $6,000 refund, and an accounting. (Exh. 14, p. 15.) Respondent did not respond to either of these letters. Conclusions of Law Count Eighteen (A) — Former Rule 3-110(A) [Failure to Perform with Competence] In Count Kighteen (A), OCTC alleged that Respondent failed to perform legal services with competence by failing to participate in a hearing on the motion to vacate or perform any other work on Regino’s behalf. This allegation, however, was not supported by clear and convincing evidence. The evidence at trial demonstrated that Respondent did participate in the December 28, 2015 hearing. Thereafter, Respondent's services were terminated prior to the -57-January 25, 2016 hearing. Consequently, Count Bighteen (A) has not been established by clear and convincing evidence and is dismissed with prejudice. Count Eighteen (B) — Former Rule 3-310(F) [Accepting Fees from a Non-Client] Former rule 3-310(F) states, in part, that an attorney shall not accept compensation for representing a client from one other than the client without obtaining the client’s informed written consent. By accepting $8,000 from Joel for representation of Regino without obtaining Regino’s informed written consent to receive such compensation, Respondent willfully violated former rule 3-310(F), Count Eighteen (C) — Former Rule 3-700(4)(2) [Improper Withdrawal] In Count Eighteen (C), OCTC alleges that Respondent violated former rule 3-700(A)(2) by constructively withdrawing from Regino’s matter in or about December 28, 2015, without taking reasonable steps to avoid foreseeable prejudice to Regino. The evidence, however, does not demonstrate that Respondent constructively withdrew in December 2015. Instead, Joel terminated Respondent in January 2016, shortly before the next hearing in Regino’s matter. Accordingly, Count Eighteen (C) has not been established by clear and convincing evidence and is dismissed with prejudice. Count Eighteen (D) — Former Rule 1-300(A) [Aiding the Unauthorized Practice of Law] In Count Eighteen (D), OCTC alleged that Respondent violated former rule 1-300(A) by aiding Hansen in the unauthorized practice of law in Regino’s matter. It, however, has not been established by clear and convincing evidence that any of Hansen’s actions rose to the level of practicing law. Accordingly, Count Eighteen (D) is dismissed with prejudice. ‘Count Eighteen (E) - Former Rule 3-700(D)(2) [Failure to Refund Unearned Fees] Former rule 3-700(D)(2) requires an attorney, upon termination of employment, to promptly refund any part of a fee paid in advance that has not been eamed, Pursuant to -58-Respondent's fee agreement, he was retained, in part, to “assist [Regino] in preparing and filing all appropriate pleadings in the KERN COUNTY SUPERIOR COURT, to either vacate his existing criminal convictions, or to have them reduced to conviction(s) with acceptable immigration-neutral consequences.” (Exh. 14, p. 5.) While Respondent began this process by filing the motion to vacate and appearing at the first hearing, his representation was terminated before he completed these services. Based on Respondent’s limited work in this matter and the fact that he did not complete the job he was retained to perform, he did not eam the entire $8,000 paid by Joel. Therefore, by failing to refund any portion of the $8,000 fee, Respondent willfully violated former rule 3-700(D)(2).* Count Eighteen (F) - Former Rule 4-100(B)(3) [Failure to Account] By failing to provide Regino or Joel with an accounting, despite repeated requests, Respondent willfully violated former rule 4-100(B)(3). Count Eighteen (G) — Section 6068, Subd. (m) [Failure to Respond to Client Inquiries] In Count Eighteen (G), OCTC alleges that Respondent failed to reply to “status inquiries” from Joel between January 22 and November 2016, in violation of section 6068, subdivision (m). This charge, however, was not estal \ed by clear and convincing evidence, as Joel terminated Respondent on January 22 and was demanding a refund. While the court did find Respondent culpable of failing to provide an accounting based on these communications, the evidence does not demonstrate that they were status inquires. Accordingly, Count Eighteen (G) is dismissed with prejudice, i “© The court is unable to recommend restitution in this matter because it is unclear what portion of the fees were actually earned. -59-Case Nos. 15-0-10417, ete, (Habitual Disregard) Facts In Count Nineteen, OCTC incorporated all the counts in the First NDC, except Counts One, Seven, Twelve, and Thirteen. Accordingly, all of the court’s findings for those counts are incorporated as if fully set forth herein. Conclusions of Law Count Nineteen — Section 6106 [Moral Turpitude Habitual Disregard] OCTC alleges that as it previously charged, Respondent failed to perform competently in thirteen client matters, improperly withdrew from employment in ten client matters, failed to notify a client of receipt of settlement funds in four matters, failed to promptly pay a client in eight matters, failed to communicate with clients in eight matters, constructively misappropriated client funds in eight matters, made misrepresentations in five client matters, and sought a client's agreement to withdraw a State Bar complaint or to decline to cooperate in three client matters. Aside from the fact that the court did not find Respondent culpable on several of these allegations, the court finds that Count Nineteen constitutes duplicative charging. Habitual disregard for client interests is typically considered as a point of aggravation, rather than a stand- alone charge. (See e.g, Jn re Billings (1990) 50 Cal.3d 358; Farnham v. State Bar (1998) 47 Cal.3d 429.) Accordingly, the court does not find Respondent culpable on Count Nineteen, but will consider the issues of pattem of misconduct and habitual disregard for client interests as potential factors in aggravation. Wl -60-Case No. 17-0-03977"" (The DHCS Matter) Facts Respondent represented Tialee Cherkong (Cherkong) in connection with an auto accident that occurred on September 26, 2014. Cherkong received medical care for injuries suffered in the car accident, and the Department of Health Care Services (DHCS) advanced payment for those medical services. In April 2016, Respondent settled Cherkong’s case for $20,000. On May 17, 2016, Respondent deposited Cherkong’s settlement check into his CTA and issued a $6,985.15 check to himself for his attorney's fees and costs. DHCS leamed of the settlement and by letter dated June 17, 2016, DHCS informed Respondent that it was aware of Cherkong’s settlement. DHCS, on July 20, 2016, offfered to reduce its lien for Cherkong’s medical care to $3,659.98. (Exh. 21, p. 23.) In an effort to collect the outstanding lien amount, DHCS contacted Respondent on numerous occasions, including sending letters to Respondent on February 15, March 27, and May 4, 2017. (Exh. 21, p. 21-30.) When Respondent failed to respond, DHCS filed a State Bar complaint against Respondent, on or about June 21, 2017. (Exh. 21, p. 32.) On or about July 20, 2017, OCTC sent a letter to Respondent requesting him to respond to the allegations in this matter. Respondent received the letter but did not respond. Respondent paid DHCS the reduced lien amount on or about March 28, 2018. (Exh. 1154.) wt “7 Case Nos. 17-0-03977 and 17-0-05743 are contained in the Second NDC. -61-Conclusions of Law Count One ~ Section 6068, Subd. (a) [Failure to Comply with Laws] In Count One, OCTC alleges that Respondent violated this section by failing to pay the DHCS lien, as required by California Welfare and Institutions Code, sections 14124.70- 14124.795. California Welfare and Institutions Code, sections 14124.70-14124.795 lay out DHCS’s entitlement for payment. By failing to effectuate payment of DHCS’s lien for nearly ‘two years, Respondent failed to comply with California Welfare and Institutions Code, sections 14124,70-14124.795, in willful violation of section 6068, subdivision (a). Count Two ~ Section 6068, Subd. (i) [Failure to Cooperate] By receiving and failing to provide a substantive response to OCTC’s investigative letter of July 20, 2017, Respondent willfully violated section 6068, subdivision (i)."° ‘Case No. 17-0-05743 (Garibay) Facts Before meeting Hansen at Respondent's law office on March 15, 2016, Maura Garibay (Garibay) had some familiarity with Hansen because he assisted her husband with an immigration matter when Hansen was working at another law firm. Garibay thought Hansen ‘was an attorney because he “acted like an attomey.” When Garibay met with Hansen at Respondent’s law offices, she gave him $300 for additional fees after he performed intake-related tasks and explained to her, in Spanish, the various fees for photos, fingerprinting, and filing certain immigration forms in connection with the services that Garibay requested. Shortly thereafter, Hansen informed Garibay that he was leaving Respondent's office and would take her file to another law office. 8 The court found Respondent’s various excuses for not responding to OCTC. investigatory letters to be inconsistent and not credible. 62-Conclusions of Law Count Three — Former Rule 1-300(A) [Aiding the Unauthorized Practice of Law] In Count Three, OCTC alleged that Respondent violated former rule 1-300(A) by aiding Hansen in the unauthorized practice of law in Garibay’s matter. It, however, has not been established by clear and convincing evidence that any of Hansen’s actions rose to the level of practicing law. It was not proven by clear and convincing evidence that Hansen gave Garibay legal advice while he was employed by Respondent. Also, Garibay was rather confused as to what Hansen did at Respondent’s office as opposed to the other law firm that he went to after he left. Accordingly, Count Three is dismissed with prejudice. Count Six” — Section 6068, Subd. (i) [Failure to Cooperate] Tt was not established by clear and convincing evidence that Respondent failed to cooperate in the Garibay investigation. Accordingly, Count Six is dismissed with prejudice. Aggravation™ OCTC bears the burden of proving aggravating circumstances by clear and convincing evidence. (Std. 1.5.) The court finds the following with respect to aggravating circumstances. Multiple Acts of Wrongdoing (Std. 1.5(b).) Respondent’s multiple acts of misconduct constitute an aggravating factor, The court assigns this factor substantial weight in aggravation. Significant Harm to Clients (Std. 1.5(),) Respondent's misconduct caused significant harm to his clients. The harm Respondent caused his clients was both financial and emotional. Vaughn lost her cause of action. And several of Respondent’s other clients were subjected to harassing calls from bill collectors trying “ Counts Four and Five of the Second NDC were dismissed upon OCTC’s request. * All references to standards (Std.) are to the Rules of Procedure of the State Bar, title IV, Standards for Attorney Sanctions for Professional Misconduct, -63-to collect debts Respondent was responsible for paying. Despite repeated pleas from his clients, Respondent often allowed these calls to continue for months, if not years. Accordingly, Respondent’ significant harm to his clients warrants substantial weight in aggravation, Pattern/Habitual Disregard of Client Interests (Std. 1.5(c).) Respondent’s misconduct could be viewed as a pattern; however, at the very least, it constitutes a habitual disregard of his clients’ interests. (See Farnham v. State Bar, supra, 47 Cal 34 429 [willfully failing to perform, misrepresenting case status, failing to communicate, and failing to return unearned fees involving seven clients demonstrated habitual disregard of clients’ interests].) Consequently, the court finds Respondent’s habitual disregard of his clients’ interests, tobe a substantial factor in aggravation. Mitigation Respondent bears the burden of proving mitigating circumstances by clear and convincing evidence. (Std. 1.6.) The court finds the following with regard to mitigating circumstances. No Prior Record of Discipline (Std. 1.6(a).) Respondent was admitted to practice law in California in 2006, and had no prior record of discipline prior to the onset of the present misconduct in or about 2013. Standard 1.6(a) allows for mitigation based on the absence of a prior record of discipline over many years of practice coupled with present misconduct that is not likely to recur. Here, however, the present misconduct is extensive, serious, and not aberrational. (Cooper v. State Bar (1987) 43 Cal.3d 1016, 1029 [when the misconduct is serious, a discipline-free record is most relevant when the misconduct is aberrational and unlikely to recur].) Accordingly, the court assigns Respondent's discipline-free record only limited weight in mitigation. -64-‘Candor/Cooperation (Std. 1.6(¢).) Respondent entered into a factual stipulation with OCTC. This stipulation, however, only involved a minimal number of facts considering the numerous matters at issue. ‘Accordingly, Respondent’s candor/cooperation with OCTC warrants limited consideration in mitigation. Good Character (Std. 1.6.) Respondent presented good character testimony from five individuals, including one attorney (Joseph O’Keefe), a chiropractor (Russell Kuwamoto), two college friends (Tony Curtis and Roger Dorman) and a teacher (Brandi Newton). Respondent’s character witnesses have each known him for many years and view him as an honest and capable lawyer. Respondent had explained the charges to each of his good character witnesses and admitted to most of them that he was culpable and remorseful for his failure to promptly pay a number of his clients. This court affords Respondent some good character mitigation credit for the comments made by all of Respondent's witnesses, except Kuwamoto, whose view of Respondent may have been biased by his financial entanglement with Respondent.*! ‘The credible testimony of Respondent’s four character witnesses do not constitute a wide range of members of the community, and the court accordingly assigns only modest weight in mitigation for Respondent’s good character evidence. (In the Matter of Respondent K (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 335, 359; In the Matter of Riordan (Review Dept. 2007) 5 Cal, State Bar Ct. Rptr. 41, 50.) vl 5! Respondent has referred over 40 clients to Kuwamoto over the past two years. 65+Extreme Emotional Difficulties (Std. 1.6(d).) Respondent has recently experienced extreme emotional and physical difficulties. Of these, the most impactful has been Respondent’s daughter’s health struggles.” In addition, Respondent also underwent multiple back surgeries between 2015 and 2016. ‘Although there was no expert testimony regarding his emotional and physical difficulties and their connection to the present misconduct, Respondent's testimony regarding his daughter's health was corroborated by several of his character witnesses who knew of and testified about her condition. Accordingly, the court affords Respondent’s extreme emotional and physical difficulties substantial weight in mitigation. (See In the Matter of Ward (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 47, 59-60 [although established by lay testimony, personal stress factors given some weight in mitigation].) DISCUSSION ‘The purpose of attomey discipline is not to punish the attorney, but to protect the public, the courts, and the legal profession; to preserve public confidence in the profession; and to maintain high professional standards for attomeys. (Std. 1.1.) The discipline analysis begins with the standards, which promote the consistent and uniform application of disciplinary ‘measures and are entitled to great weight. (In re Silverton (2005) 36 Cal.4th 81, 91 [Supreme Court will not reject recommendation arising from standards unless grave doubts as to propriety of recommended discipline}.) Standard 1.7(a) provides that, when two or more acts of misconduct are found in a single disciplinary proceeding and different sanctions are prescribed for those acts, the recommended sanction is to be the most severe of the different sanctions. Many standards apply to the present matter, among the most severe sanctions for Respondent’s misconduct is standard 2.7(a), which *® Based on privacy considerations, the court shall not get into extensive detail on this topic. -66-provides that disbarment is the presumed sanction for performance, communication, or withdrawal violations demonstrating habitual disregard of client interests. The standards, however, “do not mandate a specific discipline.” (In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct, Rptr. 980, 994.) It has long been held that the court is “not bound to follow the standards in talismanic fashion, As the final and independent arbiter of attomey discipline, {the Supreme Court is] permitted to temper the letter of the law with considerations peculiar to the offense and the offender.” (Howard v. State Bar, supra, 51 Cal.3d 215, 221-222.) Yet, while the standards are not binding, they are entitled to great weight. (In re Silverton, supra, 36 Cal.4th at p. 92.) OCTC argues that the appropriate level of discipline for Respondent's misconduct is disbarment. Respondent, on the other hand, maintains that a period of actual suspension and until Respondent demonstrates rehabilitation is the appropriate level of discipline. Cases involving a habitual disregard of clients’ interests or a pattern of misconduct often result in disbarment. (See e.g., Jn re Billings, supra, 50 Cal,3d 358 [disbarment for 18 matters involving abandonment resulting in serious harm to clients, practicing law while on suspension and conviction for misdemeanor drunk driving resulting in grave injuries to a passenger); Farnham y. State Bar, supra, 47 Cal.3d 429 [disbarment for seven instances of abandonment with prior disciplinary record].) The Review Department has also found that “cases involving extensive misconduct ‘in which the attorney had no prior discipline and in which intentionally dishonest acts, such as misrepresentations and misappropriation of client funds, were not the essence of the disciplinary charges,’ suspension has generally been deemed adequate only where the attomey presented evidence of a tragic event or set of circumstances which altered and explained the attorney’s conduct, as well as sufficient evidence of rehabilitation to give the court confidence that the misconduct would not be repeated. (In the Matter of Phillips (Review Dept. -67-2001) 4 Cal. State Bar Ct. Rptr. 315, 347, citing Jn the Matter of Hindin (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 657, 687.) Here, the court found culpability on 56 charges involving 18 separate matters. While the court is sympathetic with the tragic events in Respondent's personal life, his extensive misconduct and over such a lengthy period of time gives the court little assurance that the misconduct will not continue. Reviewing the case law, the court has not found any modern cases involving such extensive and serious misconduct that have not resulted in disbarment. In fact, there are many examples of cases involving less egregious misconduct that resulted in disbarment. One example of such a case is In the Matter of Phillips, supra, 4 Cal. State Bar Ct. Rptr. 315. In Phillips, the attomey was disbarred for his misconduct involving five client matters and two non-client matters over a period of nearly four years. His misconduct included charging an illegal fee, failing to retum client files, sharing legal fees with a non-lawyer, forming a law partnership with a non-lawyer, failing to perform legal services, failing to refund unearned fees, failing to render an accounting, and improper solicitation, ‘The attomey began to commit professional misconduct soon after he was admitted to practice law and the misconduct was surrounded by little evidence in mitigation, but significant evidence in aggravation. The misconduct in the present case is much more extensive than Phillips. While Respondent has more mitigation than the attorney in Phillips, the court has also found substantial aggravation ~ which counterbalances Respondent’s mitigation. Therefore, having considered the nature and extent of the misconduct, the aggravating and mitigating circumstances, as well as the case law, the court finds that Respondent's disbarment is necessary to protect the public, the courts, and the legal community; to maintain high professional standards; and to preserve public confidence in the legal profession. -68-RECOMMENDATIONS It is recommended that respondent Jeffrey David Bohn, State Bar Number 243870, be disbarred from the practice of law in California and Respondent's name be stricken from the roll of attomeys. It is further recommended that Respondent make restitution to the following individuals (or to the Client Security Fund to the extent of any payment from the Fund to any of them, in accordance with Business and Professions Code section 6140.5): (1) Elaine Parker-Reed in the amount of $20,950 plus 10 percent interest per year from September 4, 2015; and (2) Monte Reed in the amount of $2,031.72 plus 10 percent interest per year from September 4, 2015. California Rules of Court, Rule 9.20 It is further recommended that Respondent be ordered to comply with the requirements of California Rules of Court, rule 9.20, and to perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 days, respectively, after the effective date of the Supreme Court, order imposing discipline in this matter.*? Costs It is further recommended that costs be awarded to the State Bar in accordance with Business and Professions Code section 6086.10, and are enforceable both as provided in Business and Professions Code section 6140.7 and as a money judgment. Unless the time for *? For purposes of compliance with rule 9.20(a), the operative date for identification of “clients being represented in pending matters” and others to be notified is the filing date of the Supreme Court order, not any later “effective” date of the order. (Athearn v. State Bar (1982) 32 Cal.3d 38, 45.) Further, Respondent is required to file a rule 9.20(c) affidavit even if Respondent has no clients to notify on the date the Supreme Court filed its order in this proceeding. (Powers v. State Bar (1988) 44 Cal.3d 337, 341.) In addition to being punished as a crime or contempt, an attomney’s failure to comply with rule 9.20 is, inter alia, cause for disbarment, suspension, revocation of any pending disciplinary probation, and denial of an application for reinstatement after disbarment. (Cal. Rules of Court, rule 9.20(d).) -69-payment of discipline costs is extended pursuant to subdivision (c) of section 6086.10, costs assessed against an attorney who is actually suspended or disbarred must be paid as @ condition of reinstatement or return to active status. ORDER OF INVOLUNTARY INACTIVE ENROLLMENT Respondent is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent's inactive enrollment will be effective three calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herein, or as provided for by rule 5.111(D)Q) of the State Bar Rules of Procedure, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction. Yvette D. Roland Dated: January 2 __, 2020 YVETTE D. ROLAND Judge of the State Bar CourtCERTIFICATE OF SERVICE [Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)] 1am a Court Specialist 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 January 2, 2020, I deposited a true copy of the following document(s): DECISION AND ORDER in a sealed envelope for collection and mailing on that date as follows: (J by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows: Stephen Strauss Law Offices of Stephen Strauss 1107 Fair Oaks Ave # 885 South Pasadena, CA 91030 1 __ by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows: Christina Lauridsen, Enforcement, San Francisco Thereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 2, 2020. Paul Songeo B - Court Specialist State Bar Court