(State Bar Court Case No. 01-0-02625; 01-0-04162; 01-0-04251 (01-0-05300); 02-0-10672; 02-O-11285; 02-O-12362) $166504 FLED IN THE SUPREME COURT OF CALIFORNIA Nov 7 608 EN BANC Fredetick K. Ohch Clerk i OE, IN RE DUANE R. FOLKE ON DISCIPLINE It is ordered that DUANE R. FOLKE, State Bar No. 137341, be suspended from the practice of law for two years and until he makes restitution as set forth below and until he has shown proof satisfactory to the State Bar Court of respondent's rehabilitation, fitness to practice and leaming and ability in the general Jaw pursuant to standard 1.4 (fii) of the Standards for Attomey Sanctions for Professional Misconduct, that execution of the suspension be stayed, and that he be placed on probation for five years on condition that he be actually suspended for six months and until he makes restitution to: (a) Betty Ross and Randy Akins, in the amount of $6,000, plus 10% interest per annum from July 1, 2001 (respondent will receive credit for such portion of those monies upon satisfactory proof to the Office of Probation that Ross and Akins have recovered from respondent's investigator); (b) Octave Hyacinth in the amount of $2,350, plus 10% interest per annum from July 1, 2001; (c) Emelda Ford and Kenji Howard, in the amounts of (i) $4,000, plus 10% interest per annum from March 16, 1999; (ii) $2,500, plus 10% interest per annum from February 9, 1998; (iii) $1,000, plus 10% interest per annum from April 21, 1999; and (iv) $2,500, plus 10% interest per annum from January 9, 2000; (d) Wendel Phillips in the amount of $2,000, plus 10% interest per annum from September 1, 2001; (¢) Nedra Armstrong in the amount of $7,500, plus 10% interest per annum from November 10, 1999; and (f) Armando Nunez, Jr., in such amount as may be ordered in any fee arbitration proceeding that Nunez may bring against respondent (respondent must consent to binding arbitration and abide by any resulting fee arbitration award or order), If the Client Security Fund (CSF) has already reimbursed any of the above-named individuals for all or any portion of their respective losses, respondent must make restitution to CSF of the amount(s) paid, plus applicable interest and costs, in accordance with Business and Professions Code section 6140.5, and must provide satisfactory proof of such payment to the Office of Probation. Any restitution owed to the Client Security Fund is enforceable as provided in Business and Professions Code section 6140.5, iiisubdivisions (c) and (4). To the extent that respondent has paid any restitution prior to the effective date of the Supreme Court’s final disciplinary order in this proceeding, respondent will be given credit for such payment(s) provided satisfactory proof of such is, or has been shown to the Office of Probation. Respondent is further ordered to comply with the other conditions of probation recommended by the Hearing Department of the State Bar Court in its Decision filed on July 9, 2008, as modified by its order filed July 23, 2008. If respondent is actually suspended for two years or more, he must remain actually suspended until he provides proof to the satisfaction of the State Bar Court of his, rehabilitation, fitness to practice and learning and ability in the general law pursuant to standard 1.4(c)(ii) of the Standards for Attorney Sanctions for Professional Misconduct. Respondent is further ordered to comply with rule 9,20 of the California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 days, respectively, after the effective date of this order.* Costs are 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. *(Sce Bus. & Prof. Code, § 6126, subd. (c).) GEORGE Chief Justice | Frederick K. Ohi, Cla ofthe Supreme Court ofthe Stik Of Califia, do hereby cei tit the receding i tr copy of a oder tis Cours shown by the records of my office. ° Witness my hand andthe sel the Cis Pia ~ by,State Bar Court of the State Bar of Californic ) its Noone ren. A Uovangele “P< ORIGINAL . : “PILOT PROGRAM FO} "ONDENTS WITH SUBSTANCE ABUSE ANI ‘TAL HEALT Caan ete bor canna THE STATE BAR OF CALIFORNIA o1-0.0268200P UBLIC OFFICE OF THE CHIP TRIAL COUNSEL | 02-0-11388 BROOK A SCHAFER No, 194834 ene CHARLES A. MURRAY. No 146069 1-0-0005 tes Angels, Calor 900153299 m7-0-12362 ‘Telephone (213) 7651000 02.0. 10672 Counsel fr Respondent ‘Michael G. Gemer, Eg. 10100 Senta Monica Boulevard, #800 | | Los Angeles, CA’ 90067 Inthe Motter of Submited to Plot Program Judge STIPULATION RE FACTS AND CONCLUSIONS OF LAW 137341 ‘A Member of the State Bar of California (Responden!) _ PREVIOUS STIPULATION REJECTED A. Potties’ Acknowledgments: December 7, 1988 (Date) (1)Responceent is c member of the State Bar of California, admitted (2) he parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition (lo be attached separately) ore rejected or changed by the Supreme Court. However, If Respondent is not accepted into the Lawyer Assistance Program, this stipulation will be rejected and will not be binding on Respondent or the State Bar. (3)All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and ate deemed consolidated, Dismissed charge(s)/count(s) are listed under “Dismissals.” This stipulation consists of _/ 9 pages. (4) A statement of acts ot omissions acknowledged by Respondent as cause or causes for discipline Is Included under "Facts". {5) Conclusions of law, drawn trom and specifically reterting to the facts, ate also included under “Conclusions of Low." (6)No more than 30 days prior fo the filing of this stipulation, Respondent hos been advised in writing of any pending Invesligation/proceeding not resolved by this stipulation, except for criminol investigations. (7)Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§ 6086.10 & 6140.7 ond will pay timely any disciplinary costs imposed in this proceeding, Note: All Information required by this form ond any addiional information which cannot be provided in the space provided, shall be set, forth in the fex! component (attachment) ofthis stipulation under specitic headings, e., Facts", “Dismissals", “Conclusions of Lav.” {Gtipuiation form opproved by SBC Executive Committee 9/18/02) 1 ill il wii# ¥fjovating Circumstances (AAR, sa rtomey sanctions tr rotesio(MMeconctic, ondrd 1.27)) Fact supporting eggtevating clicumsiances ate required. (1) Prior Record of Discipline [see standard 1.2(0] (©) —B_ State Bar Court Case # of prior case__99-0-10837 (©) GF _ Date prior discipline etfective__Abril 3, 2002 {c) (4 Rules of Professional Conduct/State Bar Action violations _RPC_3-700_(D) (2) Business & Professional Code sec.6068(m)} RPC 3-110(A) RPC_4-100(A) () Degree of prior discipline_30 days actual suspension; 2 years stayed suspension; 2 years probation (©) _ I Respondent has two or more incidents of prior discipline, use space provided below or under "Prior Discipline” (2) © _ Dishonesty: Respondent's misconduct was surrounded by or! followed by bad faith, dishonesty, concealment, oventecching or other violations of the Stale Bar Act or Rules of Professional Conduct. (3) D_ Tit violation: Trust funds or property were involved and Respondent refused or was unable to ‘account fo the client or person who was the object of the misconduct for improper conduct toward said funds or property (4) Hat: Respondent's misconduct harmed significantly a client, the public or the administration of justice (8) © _nditferonce: Respondent demonstrated inciference toward rectification of or atonement for the consequences of his or her misconduct. (6) © Lack of Cooperation: Respondent displayed a lack of candor and cooperation to the victims of higher misconduct or the Slate Bar during disciplinary Investigation or proceedings. (7) &_Muttipie/Pattern of Misconduct: Respondent's current misconduct evidences multiple acts of wrong doing or demonstrates a pattem of misconduct. (8) 0 —_Noaggravating circumstances are involved. Adcitional aggravating circumstances: (Stipulation form approved by SBC Executive Committee 9/18/02) 2 Pilot-Stipulation Re Facts & Conea 8) 4) 6) 6 ® o 09) an 02) as) a o o o No Prior Discipline: Respondent has no prior record of discipline over many years of practice coupled with present misconduct which Is not deemed serious, No Horm: Respondent did not harm the client or petson who was the object of the misconduct. Condor/Cooperation: Respondent displayed spontaneous candor and cooperation to the victims of hisfher misconduct and fo the Slate Bar during disciplinary investigation and proceedings. Remorse: Respondent promptiy took objective steps spontaneously demonstrating remorse and recognition of the wrongdoing, which steps were designed to timely atone for any consequences of his/her misconduct. Restitution: Respondent paid § on restitution to without the threat of force of disciplinary, civil or criminal proceedings. Delay: These disciplinary proceedings were excessively delayed. The delay Is not attibutable to Respondent and the delay prejudiced him/her Good Faith: Respondent acted in good faith. Emotional/Physical Difficulties: A! the time of the stipulated act or acts of professional misconduct Respondent suffered extreme emotional difficulties ot physical disabilities which expert testimony would establish were directly responsible for the misconduct. The dificulties or disabilities were not the product of any illegal conduct by the member, such as illegal drugs or subslonce abuse, ‘and Respondent no longer sutters from such difficulties or disabilities. Severe Financial Stress: At the time of the misconduct, Respondent suffered from severe financial sitess which resulted from citcumstances not reasonably foreseeable or which were beyond his! her control and which were directly responsible for the misconduct. Family Problems: Al the time of the misconduct, Respondent sutlered extreme diicutties in his! her personal lite which were other than emotional or physical in nature. Good Character: Respondent's good characte’ is attested to by a wide range of references in the legal and general communities who are aware of the full extent of his/her misconduct. Rehabilitation: Considerable time has passed since the acts of professional misconduct occurred followed by convincing proof of subsequent rehabilitation. No mitigating circumstances are involved. ‘Adaitional mitigating circumstances: (Stipulation form approved by S8C Executive Committee 9/18/02) 3 Pilo!-Stipulation Re Facts & Cone@ é TAC NT. ION RE FACTS AND CONCLUSIO! AW INTHEMATTEROF: Duane R. Folke, member no. 137341 CASE NUMBER(S): 01-0-02625 (Ross/Akins); 02-O-11285 (Hyacinth); 01-O- 04251 (Ford/Howard); 01-0-05300 (Phillips); 02-0-12362 (Amnstrong); and 02-0-10672 (Nunez); and investigation no. 01-0-04162 (SBD) NCLI W, Duane R. Folke (“Respondent”) admits the following facts are true and that he is culpable of the following violations of the specified statutes and/or Rules of Professional Conduct. Respondent was admitted to the practice of law in California on December 7, 1988, and was at all times pertinent hereto a member of the State Bar of California (“State Bar”). Respondent was ordered on inactive status on November 25, 2001 due to an unpaid fee arbitration award pursuant to Business and Professions Code section 6203. Respondent was, suspended for 30-days from April 3, 2002 through May 3, 2002 pursuant to the stipulation in Case Nos. 99-O-10837 et al, as ordered by the Supreme Court on March 4, 2002. As of July 17, 2003, he has been back on active status. (A) Facts - Case No. 01-0-02625 - Ross/Akins 1. On June 2, 1999, Betty Ross (“Ross”) retained Respondent to represent her son, Randy Akins (“Akins”), in a Writ of Habeus Corpus (“Writ”) following Akins’ murder conviction. Akins ‘granted Ross authority to act on Akins’ behalf in matters pertaining to Akins” legal matters. The same day Ross paid Respondent $1,000 on behalf of Akins. 2. On June 28, 1999, Respondent entered into a Retainer Agreement with Akins and agreed to perform the following, infer alia: “Investigation of the claim(s) against you, and the preparation of a Writ of Habeus Corpus for the presentation of new evidence which should reasonably show that you are not the perpetrator of the crime you now stand convicted of with response to both written and oral argument in your defense; however, if you are provided a new trial in lieu of a complete vacating of your sentence, this office shall not be obligated to defend a new trial without further compensation.” 3. The Retainer Agreement required Akins to pay a total fee of $5,500 by making an initial payment of $1,000 and payments of $500 on the 28 of each month beginning on July 28, 1999, until the total amount was paid. The Retainer Agreement required Akins to be responsible for all costs. 4. In July 1999 Ross paid Respondent an additional $500 on behalf of Akins. 5. On August 19, 1999, Ross paid Respondent another $500 on behalf of Akins. Moreover, ‘between October 1999 and October 2000, Ross paid an additional $2500.00 on behalf of Akins. Ross paid a total of $4500.00 to Respondent on Akins’ behalf.6. In March and April 2000 Ross also paid Respondent's private investigator $1500.00 for work investigating the facts of Akins’ case. 7. On September 1, 2000, Respondent sent a letter to Akins, who was in prison in Vacaville, California, advising that Akins’ family had provided funds to pursue a Writ and promising that Respondent would contact Akins’ counselor to assist in arranging an initial visit: {W]e will contact your counselor to assist this office in arranging our initial visit with you over the course of the next few weeks. I believe the best use of the limited resources I am being called upon to utilize to address your matter dictates that perhaps the best use of our time and efforts are to have you provide, in writing, as much information as possible; this, so that I can begin to review and further research the law on the facts you provide. Proceeding in this manner will assure that upon our initial meeting we can cover a ‘great deal of information such that we can work with cach other by written communication. Obviously, from time to time we will need to meet face to face, but given the resources and time necessary to commute from Los Angeles to Sacramento and Vacaville is forall intent [sic] and purposes prohibitive at best. Thereafter, neither Respondent nor anyone in his employ ever met with Akins, and after September 2000 Respondent did not communicate with Akins. 8. Ross made numerous telephone calls to Respondent to obtain a status report on the Writ. Between July 1999 and February 2001 Ross called and left approximately 70 messages with Respondent's office. Respondent did not return those calls. 9. Finally, in July 2001, Respondent called Ross and told her that they were working on the ‘Writ, that they would need six more months to complete it and that they would need an additional $2,000 to complete the Writ. Ross requested on behalf of Akins that Respondent provide proof of the work that Respondent had done on the Writ. Respondent never provided proof of the work that he had done on the Writ to Akins or Ross. No Writ was ever prepared or filed. 10, On July 6, 2001, the State Bar opened investigation, case no. 01-0-02625, pursuant to the complaint filed by Akins (“the Akins matter”). On July 11, 2001, State Bar Investigator Ysabel ‘Nactze! (“Naetze!”) wrote to Respondent regarding the Akins matter. ‘The letter set forth Akins" complaint and requested that Respondent respond in writing along with any supporting documents to specific allegations of misconduct being investigated by the State Bar. Respondent received the July 11, 2001, letter but failed to respond to it. 11. On July 25, 2001, Naetzel sent a second letter to Respondent regarding the Akins matter. ‘The letter requested that Respondent respond to the allegations set forth in the letter dated July 11, 2001, which was attached. Respondent received the July 25, 2001, letter but failed to respond. 1B) Conclusions of Law - Case No, 01-0-02625 - Ross/Akins By never interviewing or contacting Akins, by not preparing the Writ, by not communicating with Ross for over a year regarding Akins’ case, by not informing Akins that he would not be preparing the Writ nor taking any steps to protect his rights should he desire new counsel, and by not providing proof of the work Respondent performed (if any) despite being asked, Respondentrepeatedly failed to perform legal services with competence in violation of rule 3-110(A) of the Rules of Professional Conduct. ~ By collecting $4,500 from Akins to prepare and file the Writ, which was never prepared or filed, and by failing to refund any of the $4,500 paid by Akins, Respondent failed to refund promptly any part of a fee paid in advance that has not been eared in violation of rule 3-700(D)(2) of the Rules of Professional Conduct. ~ By not providing a written supose to the allegations in the Akins matter or otherwise cooperating in the investigation of the Akins matter, Respondent failed to cooperate in a disciplinary investigation in violation of Business and Professions Code section 6068(j). T1(A) Facts - Case No, 02-0-11285 - Hyacinth 12, In March 2001 Octave Hyacinth (“Hyacinth”) retained Respondent to obtain compensation from his former employer Watkins Engineering & Constructors (“Watkins Engineering”) for, inter alia, retaliation, failure to correct a hostile work environment, harassment and race discrimination (“tortious treatment”). 13, Respondent agreed in the Retainer ent to assist Hyacinth in procuring right to sue letters from the Equal Employment Opportunity Commission (“EEOC”) and from the state Department of Fair Employment and Housing (“DFEH”) as prerequisites to filing an action in federal and/or state court. 14. Respondent agreed to do the work for “$7,500 based on an hourly retainer basis at ‘$175.00 per hour.” At the initial meeting on March 10, 2001, Hyacinth paid Respondent $750.00. 15. Hyacinth made numerous subsequent payments between March and July 2001. Total payments to Respondent were $2350.00, 16. Hyacinth and Respondent met one more time on March 24, 2001. After that the two had no more meetings. 17. In late May 2001, Hyacinth began phoning Respondent to get status updates on his legal matters. Hyacinth left messages for Respondent each time, requesting that Respondent retum his call Respondent did not reply to Hyacinth’s requests for status inquiries. 18. In late July 2001, Hyacinth left a telephone message for Respondent advising him that Hyacinth had another $200 payment for him, but that Hyacinth would not send the money until Respondent returned Hyacinth’s telephone call. Respondent called Hyacinth back later that day and instructed Hyacinth to go to the EEOC and file a charge, Respondent also instructed Hyacinth to ‘continue to make the $200 payments every two weeks as set forth in the Retainer Agreement. That was the last conversation the two had. After this conversation Hyacinth never heard from Respondent or anyone from his office again. 19. After their conversation in late July 2001, Hyacinth called Respondent several times, cach time asking that he contact him about filing the EEOC charge. Respondent did not return Hyacinth’s calls. Respondent effectively abandoned Hyacinth’s legal matters. Paget2 e e TB) Conclusions of Law - Case No, 02-0-11285 - Hyacinth ~ By not assisting Hyacinth in filing the EOC charge, by not assisting Hyacinth in filing the DFEH charge, by not returning numerous messages left by Hyacinth, by not telling Hyacinth that he ‘was intending to stop work on his legal matters, by not informing Hyacinth of his attempts to obtain compensation from Watkins Engineering since July 2001, and by not filing an action against Watkins Engineering, Respondent repeatedly failed to perform legal services with competence in violation of rule 3-110(A) of the Rules of Professional Conduct. By collecting $2,350 to obtaining compensation from Watkins Engineering for its tortious treatment of Hyacinth, by failing to take any action to obtain compensation from Watkins Engineering, and by failing to refund some portion of the $2,350 paid by Hyacinth, Respondent failed to refund promptly any part of a fee paid in advance that has not been cared in violation of rule 3-700(D)(2) of the Rules of Professional Conduct. INI(A) Facts - Case No. 01-O-04251 - Ford/Howard A. The Writ to the Court of Appeal 20. On October 23, 1997, Emelda Ford (“Ford”) retained Respondent to represent her son, Kenji Howard (“Howard”), in a Writ of Habeus Corpus to the Court of Appeal (“Writ”), following Howard's murder conviction in the Los Angeles Superior Court. Howard gave Ford authority to act on his behalf in the legal matters being handled by Respondent. ‘The same day, Respondent entered into an agreement with Howard to appear at the sentencing hearing, prepare post-trial motions and file the Writ, The tems of the contract were acknowledged by Respondent in leter to Ford dated tober 23, 1997. 21. The contract called for periodic payments to be paid between October 1997 and March 1998, totaling $4000.00. The contract also made Howard responsible for $3,000 for “investigation and such costs - when and if a new trial is granted.” 22, Ford timely paid Respondent on behalf of Howard the full $4,000 for the Writ by March 23, 1998, 23. On May 27, 1998, Respondent requested an extension of time from the Court of Appeal to file the opening brief, which was granted on May 29, 1998. The extension allowed Respondent until July 5, 1998 to file the opening brief. 24. Respondent did not timely file the opening brief, and the appeal was dismissed on July 14, 1998. On July 31, 1998, Respondent filed a motion to reinsiate the appeal, which was granted by the Court of Appeal on August 12, 1998. On August 12, 1998, Respondent filed the opening brief. 25. On August 27, 1998, the Attomey General of the State of California (“Attomey General”) filed a motion to strike the opening brief for failure to comply with the California Rules of Court. 26.. Despite the serious and complex nature of the case and the length of the record, the opening brief only contained a 2 Y-page “Statement of the Facts,” which did not contain citations to the record of the proceedings below. in fact, not one citation to the Reporter's Transcript is included in the Statement of Facts. Moreover, despite the length of the record, the serious nature of the case, Page # i: @ r and the fact intensive nature of appellant’s contentions," the opening brief provided only four isolated Citations to the record of appellant's trial. 27. By order dated September 17, 1998, the Court of Appeal granted the Attorney General’s motion to strike and struck the opening brief. 28. On September 28, 1998, Respondent re-filed the opening brief. 29. After the Attorney General filed its opening brief, Respondent requested and was granted two extensions of time to file the reply brief. 30. However, Respondent failed to file his reply brief on time, and Respondent was denied a third extension to time to file the reply brief. The case was considered fully briefed on March 16, 1999, Respondent never filed a reply brief. 31. On June 8, 1999, the Court of Appeal affirmed Howard’s conviction. B. “Appeal Costs” 32. In November 1998, Respondent told Ford that he needed an addition $2,500 for what Respondent described as “appeal costs,” “costs on appeal,” and “additional costs for Kenji Howard appeal” (“appeal costs”) for the appeal to the Court of Appeal. Respondent never explained to Ford or Howard why they needed to pay “appeal costs” or what the “appeal costs” actually were. 33. Between November 1998 and February 1999 Ford timely paid Respondent on behalf of ‘Howard the full $2500.00 for “appeal costs.” C. Transferring Howard to Tehachippi State Prison 34, In March 1999 Respondent agreed to represent Howard in a request to transfer him from Salinas Valley State Prison to Tehachippi State Prison to be closer to his family. Ford agreed to pay Respondent approximately $1,000 on behalf of Howard to have Howard transferred. 35. On March 28, 1999, however, Howard wrote a letter to Respondent informing Respondent that Ford was working two jobs and all of the overtime she could manage while in poor health just to pay the cost of Howard’s appeals. He informed Respondent that he believed that Respondent was “taking advantage of [Ford’s] funds” and that they wanted to be “treated, not cheated, and charged fairly for [Respondent’s] services.” Consequently, Howard instructed Respondent not to work on transferring Howard from Corcoran State Prison to Tehachippi State Prison unless Respondent was willing to work “free of charge” on the transfer. 36. Respondent did not respond to Howard’ letter. Respondent continued to accept money from Ford on behalf of Howard to attempt to have Howard transfer from Corcoran State Prison to Tehachippi State Prison. 37. On April 21, 1999, Ford paid Respondent $560 on behalf of Howard to attempt to have Howard transferred from Corcoran State Prison to Tehachippi State Prison. Respondent accepted > The opening brief alleged a purported tainted confession, denial of right toa speedy tral, denial of ‘counsel and ineffective assistance of counsel Page# &$560 from Ford, even though his client, Howard, had specifically instructed him not to accept any money to attempt to have him transferred. Ultimately Ford timely paid Respondent on behalf of Howard the full $1,000 to attempt to have Howard transferred from Corcoran State Prison to Tehachippi State Prison, 38. Although Ford paid Respondent to attempt to have Howard transferred to Tehachippi State Prison, Ford did not perform any work to attempt to have Howard transferred and Howard was never transferred to Tehachippi State Prison. 39. On May 5, 1999, Howard wrote to Respondent asking him for a status update on the oral argument before the Court of Appeal and on the attempt to have Howard transferred. Howard told Respondent that his efforts to transfer Howard probably would be ineffective until Respondent came up to Corcoran State Prison and made himself “visible” to demonstrate that they were serious.” Howard also told Respondent that visiting the prison would also provide Howard and Respondent an ‘opportunity to meet because he was being transferred to Salinas Valley State Prison. 40. Respondent did not provide a status report or respond to Howard’s May 5, 1999, letter in any way. D. The Writ to the Supreme Court 41. In July 1999, after the Court of Appeals had upheld Howard's conviction, Ford retained Respondent to represent Howard in a Writ of Habeus Corpus to the California Supreme Court. Respondent agreed to prepare and file the Writ to the Supreme Court for $2500.00. On July 12, 1999, Ford paid Respondent an initial $500 payment on behalf of Howard to prepare the Writ to the Supreme Court. 42. On September 1, 1999, Respondent sent a letter to Howard, advising him that the appeal filed in the Court of Appeal had been denied, but that Respondent wouid file an appeal with the Supreme Court and seek to have him transferred to Tehachippi State Prison to be closer to his family. 43. By January 2000 Ford had timely paid Respondent on behalf of Howard the full $2500.00 for the Writ to the Supreme Court. 44. Respondent never filed the Writ to the Supreme Court, even though Ford paid Respondent the agreed upon amount of $2500.00 on behalf of Howard to prepare the Writ. 45. Ford made numerous telephone calls on behalf of Howard to Respondent to obtain a status report on the Writ to the Supreme Court. Ford left telephone messages for Respondent on behalf of Howard to contact Ford that Respondent would not return. Ford left messages for Respondent to contact her to obtain a status report during the following months, inter alia: approximately 13 calls in or about April 2000; approximately 4 calls in or about June 2000; approximately 2 calls in or about October 2000. 46. Respondent did not contact Howard or anyone else authorized to act on behalf of Howard after February 2000. TII(B) Conclusions of Law - Case No, 01-0-04251 - Ford/Howard ~ By failing to timely file the opening brief with the Court of Appeal resulting in the dismissal of the appeal, by failing to file a competent opening brief with the Court of Appeal resulting in the opening, Page # a& ¢ brief being stricken, by failing to file a reply brief with the Court of Appeal, by failing to file a Writ with the Supreme Court, by accepting money from Ford to transferring Howard after Howard directed him not to accept money for that purpose, by failing to work on transferring Howard, and by failing to respond to Howard’s and Ford's requests for information, Respondent repeatedly failed to perform legal services with competence in violation of rule 3-110(A) of the Rules of Professional Conduct. ~ By not preparing the Writ to the Sunreme Court. bv not informing Howard that Respondent hhad not taken anv stens to file the Writ to the Sunreme Court. and hv not contacting Howard concerning the status of the Writ to the Supreme Court after February 2000, Respondent effectively abandoned his client and improperly withdrew from employment in violation of rule 3-700(A)(2) of the Rules of Professional Conduct, ~ By providing no services to Howard with respect fo “appeal costs,” transfer of Howard and/or Writ to the Supreme Court, and by not refunding any of the $6,000 to Howard, Respondent failed to refund unearned fees in violation of rule 3-700(D)(2) of the Rules of Professional Conduct. TV(A) Eacts - Case No, 01-0-05300 - Phillips 47. On August 18, 1999, Wendel Phillips retained Respondent to represent him in a dissolution of marriage (“Phillips’ dissolution”). The retainer agreement states that Wendel Phillips will pay Respondent $2,000, by making an initial payment of $1,000, a second payment of $500 on or ‘before September 18, 1999, and a third payment of $500 on or before October 18, 1999. Wendel Phillips timely paid Respondent the full $2,000 for the Phillips” dissolution. 48. The parties worked out the details of the Phillips dissolution. On August 25, 1999, Respondent filed a “Stipulation and Order on Order [sic] to Show Cause.” 49. On November 29, 1999, Respondent sent a letter to David M. Gordon (“Gordon”), the attomey for Wendel Phillips’ former spouse, Dynita Phillips, requesting that Gordon prepare the final judgment in the Phillips dissolution. 50. On March 27, 2000, approximately four months afler the first letter, Respondent sent a second letter to Gordon requesting that Gordon prepare the final judgment in the Phillips” dissolution. 51. On August 22, 2000, approximately five months after the second letter, Respondent sent a third letter to Gordon requesting that Gordon prepare the final judgment. 52. On February 26, 2001, approximately six months after the third letter, Respondent sent a fourth letter to Gordon requesting that Gordon prepare the final judgment in the Phillips dissolution and threatening sanctions if Gordon did not prepare the final judgment. 53. Respondent never obtained the final judgment from Gordon and never sought to prepare the final judgment himself or otherwise finalize the Phillips’ dissolution. 54. In August 2001 Wendel Phillips transmitted a Substitution of Attorney to Respondent to allow Wendel Phillips to proceed in pro per. Respondent did not return the Substitution of Attorney to ‘Wendel Phillips. 53. On February 21, 2002, Respondent and Wendel Phillips met at the State Bar at the request of both parties to execute the Substitution of Attorney in the Phillips’ dissolution.fe e a Iv@) tS aw = | fl — By failing to obtain the final judgment in the Phillips’ dissolution from Gordon, by failing to prepare the final judgment in the Phillips” dissolution himself, by failing to finalize the Phillips’ dissolution over a two-year period, and by failing to execute the Substitution of Attorney, Respondent atedly failing to perform legal services with competence in violation of rule 3-110(A) of the Rules of Professional Conduct. ~ By failing to finalize the Phillips’ dissolution, Respondent did not eam all of the fees paid by Wendel Phillips, by collecting $2,000 for the Phillips’ dissolution and by failing to refund some portion of the $2,000 paid by Wendel Phillips, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned involtion of rule 3-700(DX2) ofthe Rules of Professional ‘onduet. (A) Facts = Case No, 02-0-12362 - Armstrong 56, On March 17, 1999, Nedra Armstrong (““Armstrong”) retained Respondent to defend her in an administrative proceeding brought against her by the Nevada Civil Right Commission (“NCRC”) and to file a federal civil rights action alleging employment discrimination against her employer, the Clark County Department of Juvenile Justice (“Department of Juvenile Justice"). 57. On ot about March 17, 1999, Respondent entered into a retainer agreement with Armstrong to defend her in the NCRC proceeding and to file the federal civil rights action. The retainer agreement required Armstrong to pay a total fee of $7,500 for these services, which she did. 58. On March 29, 1999, Armstrong learmed from the office of Human Resources of the Department of Juvenile Justice that she had 180 days to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), Armstrong informed Respondent that she had been informed by the Department of Juvenile Justice that she had 180 days from March 29, 1999 to file the EEOC charge, ‘e., by September 25, 1999. Respondent agreed that Armstrong had 180 days from March 29, 1999, to file the charge with the EEOC. 59. On July 12, 1999, Armstrong sent Respondent a letter by facsimile requesting his advice about accepting carly separation from the Department of Juvenile Justice. Respondent did not respond to Ammstrong’s letter dated July 12, 1999. 60. On September 8, 1999, Armstrong sent a letter to Respondent by facsimile requesting his assistance in responding to new allegations of employment discrimination by the Department of Juvenile Justice. Respondent did not respond to Armstrong's letter dated September 8, 1999, 61. Respondent did not file a charge of discrimination against the Department of Juvenile Justice with the EEOC by the deadline of September 25, 1999. 62. On November 10, 1999, Armstrong sent a letter to Respondent by facsimile requesting his assistance in responding to an attempt by Clark County to transfer her to another department. 63. Respondent did not respond to Armstrong’s letter dated November 10, 1999, or attempt to contact Armstrong at any time between November 10, 1999 to August 29, 2000. 64. On August 29, 2000, Armstrong called Respondent to discuss the NCRC proceeding and federal civil rights action. Respondent requested that Armstrong provide information concerning Page # onethe NCRC proceeding and federal civil rights action to his office, including but not limited to Armstrong's work history, copy of the civil law suit, hiring flyers, newspaper articles, hate mail left in Armstrong's mailbox, a description of the program Armstrong was supervising. information. 65. On August 29, 2000, Armstrong sent a packet of information to Respondent's office as he requested, including but not limited to Armstrong’s work history, copy of the civil law suit, hiring flyers, newspaper articles, hate mail left in Armstrong’s mailbox, a description of the program Amnsirong was supervising. 66. Respondent did not take any action after receiving Anmstrong’s August 29, 2000 packet of information, nor did he attempt to contact her from August 2000 to April 2002. 67. By April 4, 2002, Armstrong had learned that Respondent recently had been disciplined by the State Bar and lost confidence in his ability and his interest in representing her. Consequently, Armstrong decided to terminate Respondent as her attorney and demanded that he refund the $7,500 that she had paid him. 68, On April 4, 2002, Armstrong called Respondent's office and left a message for Respondent on his voice maii system requesting that Respondent contact Armstrong. 69. On April 9, 2002, Respondent called Armstrong and requested that she overnight documents regarding the NCRC proceeding and federal civil rights action to his office. 70. On April 9, 2002, Armstrong sent Respondent a letter dated April 9, 2002 by U.S. First Class Mail and by U.S. First Class Mail, Return Receipt Requested, that informed Respondent that Armstrong had learned that: (a) Respondent had been placed on inactive status as the result of disciplinary action that took place on April 3, 2002; (b) disciplinary action had been taken against Respondent on November 25, 2002; (c) Respondent had failed to perform the duties set forth in the retainer agreement; and (d) Respondent had failed to file a complaint with the EEOC with 180 days of March 29, 1999. Armstrong complained that Respondent had never informed her that he had been placed on inactive status. Armstrong demanded that Respondent refund the $7,500 retainer fee that Armstrong had paid. Respondent received this leter. 71. Respondent did not respond to Armstrong's letter dated April 9, 2002, nor has Respondent communicated with Armstrong since April 9, 2002. 72, Respondent has not refunded any of the $7,500 retainer fee to Armstrong. 73. Respondent did not: file a complaint with the EEOC within 180 days of the incident giving rise to the charge of discrimination, defend Armstrong against the administrative proceeding brought by the NCRC, or file a Federal action alleging employment discrimination by the Department of Juvenile Justice. VB) Conclusions of Law - Case No, 02-0-12362.- Armstrong By lng to timely file a charge with the EEOC, by filing to assist Armstrong in defending against the NCRC proceeding, by failing to file a federal civil rights action against the Department o! Juvenile Justice, and by failing to provide timely advice to Armstrong, Respondent recklessly failed to perform legal services with competence in violation of rule 3-110(A) of the Rules of Professional Conduct. Page # 2e ¢@ ~ Rv not prenarine anv documents in the matters for which he was retained. by not informing, Armstrong that he had not nrenared anv documents in the matters for which he was retained. by not, informing Armstrong that he had heen nlaced on inactive status on November 21. 2001. hy not transferring Armstrong’ case to another attorney. and hy not maintaining contact with Armstrong concerning the matters for which he had been retained, Respondent effectively abandoned his client and improperly withdrew from employment in violation of rule 3-700(A)(2) of the Rules of Professional Conduct. ~ By providing no services to Armstrong and by not refunding the $7,500 fee to Armstrong, Respondent failed to refund uneamed fees in violation of Rules of Professional Conduct, rule 3- 700(D)(2). VI(A) Facts - Case No. 02-O-10672 - Nunez 74, In January 2000 the County of Los Angeles filed a complaint to collect back child support (“support proceedings”) against Armando Nunez, Jr. (“Nunez”) for support of is children, Nikolas and Janelle, The complaint was filed in Los Angeles County. 75. In March 2000 Nunez retained Respondent to represent him in the support proceedings, and provided Respondent with information necessary to his defense. 76. In April 2000 the County of Los Angeles requested, and the court granted, dismissal of the support proceedings related to Janelle. The support proceedings regarding Nikolas continued. 77.On July 26, 2000, the County of Los Angeles obtained an order entering default against Nunez in the support proceedings. The Superior Court ordered Nunez to pay support for Nikolas for ‘$799 per month beginning on February 1, 2000. On August 29, 2000, Respondent filed a motion to set aside the default judgment. Hearing on the motion was scheduled for October 10, 2000. 78. On September 7, 2000, the County of Los Angeles and Respondent signed and filed an ex parte stipulation and order setting aside the default judgment entered on July 26, 2000 on the condition that Nunez file his Answer by September 18, 2000. The stipulation and order agreed to stop all enforcement proceedings and to advance and Vacate the October 10, 2000 hearing on the ‘motion to set aside the judgment. The stipulation and order was ordered by the Superior Court on September 7, 2000. 79.. Respondent filed Nunez’ Answer to the Complaint on September 29, 2000, rather than by September 18, 2000, as stipulated to and as ordered by the court on September 7, 2000. 80. On February 5, 2001, a hearing in the support proceedings was held. The Superior Court continued the matter until April 23, 2001 at Respondent's request and ordered genetic testing. 81. On April 23, 2001, the court continued the matter until May 23, 2001, because Respondent was involved in a criminal trial. 82. On May 23,2001, hearing was begun in the support proceedings. The hearing was continued until September 7, 2001 at 8:00 a.m. Respondent was present for the May 23" hearing and waived formal notice of the September 7* hearing, Page # “3i @ e. 83. On September 7, 2001, a hearing was conducted in the support proceedings. Respondent failed to appear and default was entered against Nunez, The Superior Court ordered Nunez to pay $799 per month beginning on February I, 2000 forthe support of Nikolas, Respondent ‘was ordered to pay $7,581 for the support of Nikolas from April 1999 through January 2000 by making payments of $227.43 per month beginning February 1, 2000. 84, Respondent never moved to set aside the September 7, 2001, default judgment. 85. After he received notice of judgment in the mail, in late September 2001, Nunez placed Several telephone calls to Respondent fo determine how the County of Los Angeles had obtained an entry of judgment against him. Each time Nunez left a message for Respondent to call him back, but Respondent did not return Nunez’ telephone calls. 86. On November 25, 2001, Respondent was placed on “not entitled” status by the State Bar Court due to an unpaid fee arbitration award pursuant to Business and Professions Code section 6203. Respondent received notice that he was placed on not entitled status from the State Bar Court dated November 21, 2001. 87. Nunez retained new counsel, Krystal Clemens (“Clemens”) in or about December 2001. 88. On January 15, 2002, Clemens sent Respondent a letter requesting that informed Respondent that Nunez had retained Clemens to represent him in further proceedings in COLA v. ‘Nunez. The letter requested that Respondent: (a) sign and return a Substitution of Attomey substituting Clemens as attorney of record for Nunez; (b) forward Nunez’ file to Clemens; and (c) provide Clemens with a declaration explaining Respondent's failure to appear on September 7, 2001, fo alach to Clemens’ motion to set ase the default pursuant to Code of Civil Procedure section 473, e,, relief from default taken due to mistake, inadvertence, surprise or excusable neglect. The letter ‘was sent certified mail, return receipt requested. The letter was received by Respondent's office on January 18, 2002. 89. Respondent did not: (a) sign and retum the Substitution of Attorney substituting Clemens as atfomey of record for Nunez; (b) forward Nunez’ file to Clemens; or (c) provide Clemens with a declaration explaining Respondent's failure to appear on September 7, 2001, to attach to Clemens’ motion to set aside the default, VI(B) Conclusions of Law - Case No, 02-0-10672 - Nunez — By failing to file Nunez’ Answer by September 18, 2000; by failing to appear as ordered at the September 7, 2001, hearing; by failing to inform Nunez that default had been entered against him; by failing to move to set aside the September 7, 2001, default entered against Nunez; and by failing to assist Nunez’ subsequent attorney Clemens, Respondent recklessly and repeatedly failed to perform legal services with competence in violation of rules 3-110(A) of the Rules of Professional Conduct — Bv failing to annear at the Sentember 7. 2001. hearing: by failing to inform Nunez that default had been entered against him: by failing to move to set aside the default judgment; and by, in essence, ceasing all work on Nunez’ legal case after September 1, 2001, Resporident effectively abandoned Nunez and improperly withdrew from employment in wilful violation of Rules of Professional Conduct, rule 3-700(A)(2).. ~ By failing to release Nunez’ file to Clemens upon receipt of Clemens” request forthe file and the substitution of attomey, Respondent failed to release promptly, upon termination of employment, to Page # oeJe be @ é the client, at the request of the client, all the client papers and property in wilful violation of rule 3- 700(D\(1) of the Rules of Professional Conduct, rule 3-700(D\(1). ‘VI(A) Facts ~ Investigation no. 01-0-04162 (SBD 90, Dawn Weber hired Respondent in June 2001, and paid him $2500.00 advance fees on June 11, 2001. Respondent agreed to represent Ms, Weber in a criminal matter. However, Respondent also represented Ms. Weber's co-defendant, and the defense in the Weber case was that the co-defendant was entirely to blame for the crimes committed in the Weber case, not Ms. Weber. On June 27, 2001, the court ordered Respondent to withdraw from Ms. Weber’s case and to refund ‘the $2500.00 she had paid Respondent within thirty days. 91. Respondent failed to refund the entire amount within thirty days of June 27, 2001, as ordered by the court. Respondent made a $500.00 payment in carly September 2001. The court ordered Respondent to appear on October 26, 2001, and show cause why he had not complied with is order to pay. On October 26 2001, the court ordered Respondent to pay Ms, Weber $300.00 month until he remaining $2000.00 was paid. Respondent filled to comply with tho court's October , 2001, order. 92. In January 2002 Respondent filed a status report regarding the unpaid advance fees with the court. In it, he explained that he was having financial difficulties due to unpaid arbitration award, ‘marital break-up and other reasons. He represented to the court that within the next 30 days many of these issues would be resolved such that the fees owing to Ms. Weber would be repaid or at least closer to a final resolution. The court at no time relieved Respondent of his responsibility to refund the fees, however, or of its orders that he do so. 93. On March 1, 2002, Respondent was again before the court on the refunded fees issue. The court ordered him to pay $100.00 to Ms, Weber’s new attorney and to appear in May 2002 for another OSC. Respondent failed to pay the $100.00 to Ms. Weber’s new attorney. At the May 29, 2002, OSC Respondent was ordered to obtain a money order in the sum of $1100.00 and deliver it to Ms. Weber's new attorney. The court set another OSC for August 29, 2002, on the issue of proof of payment of the $1100.00 as well as the issue of the refunded fees balance. ___ 94, Respondent did not provide a money order for $1100.00 by the August 29, 2002, OSC hearing. At that hearing he was given another chance to complete the refund of fees to Ms. Weber ~ until October 29, 2002. 95. Respondent made no additional payments prior to the October 29, 2002, hearing. At that hearing the court ordered him to make a $300.00 payment “forthwith.” As of December 6, 2002, he failed to make the $300.00 payment. Between December 6, 2002, and February 21, 2003, Respondent finally paid Ms. Weber, through her new attorney, all money owed. VIB) Conclusion of Law — investigation no. 01-0-04162 (SBI) ; By lng to make any payments disgorging any advance fees paid by Ms, Weber between September 2001 and December 2002, despite multiple orders of the court that he do so, Respondent wilfully disobeyed an order of the court requiring him to do an act connected with or in the course of his profession which he ought in good faith to do, in wilful violation of B&PC section 6103. Page # 1S.AGGRAVATING FACTORS, cont’d from page 2: Prior Discipline The timeframe of the prior misconduct (December 1997 to February 2001) overlaps somewhat with the instant misconduct, which occurred 1998 through December 2002. As such the court may give the prior less weight in aggravation. (In re Sklar (Rev. Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602. However, the prior need not be disregarded entirely, since had the full facts of all the disciplinary matters been part of the prior the discipline in that matter surely would have been higher, (See Rhodes v. State Bar (1989) 49 Cal.3d 50.) MITIGATING FACTORS, cont'd from page 3: In December 2001 Respondent experienced the break-up of his 12 year marriage. He assumed custody of his three minor children. The events leading up to the dissolution, as well as the adjustments to his life caused by his becoming sole caretaker of his children, created financial and physical stresses on him. DISMISSED CHARGES ‘The parties respectfully request the court dismiss the following charges contained in the currently filed NDCs in the interest of justice. Many of the counts originally contained in the charging documents have been consolidated into the instant stipulation: . /Akins) = Count Two (Failure to Respond to Client Inquiries) — Count Three (Unconscionable Fee) ~ Count Four (Improper Withdrawal) 02-0-11285 (Fivacin Count One (Failure to Respond to Client Inquiries) ~ Count Three (Unconscionable Fee) — Count Four (Improper Withdrawal) Case no, 01-0-04251 (Ford/Howard) =Count Two Failure to Respond to Client Inquiries) = Count Five (Moral Turpitude) Case no, 01-0-05300 (Phillips) Count Seven (Improper Withdrawal) Count Eight (Failure to Respond to Client Inquiries) ~ Count Nine (Improper Withdrawal) )-12: rons = Count Two (Failure to Respond to Client Inquiries) ~ Count Five (Moral Turpitude) —Count Six (Failure to Cooperate) 0, junez) = Count Two (Failure to Maintain Respect to the Court) — Count Three (Failure to Obey Court Order) ~ Count Six (Failure to Retum Uneamed Fecs) Page # 16JEEDINGS. ‘The disclosure date referred to, on page one, paragraph A.(6), was October 1, 2003. RESTITUTION Respondent shall pay restitution to the following individuals(and/or the Client Security Fund, if appropriate) in the following amounts plus 10 percent interest per annum accruing from the dates indicated. To the extent Respondent has paid any restitution prior to the effective date of the order arising from this stipulation he shall be given credit for such payments provided satisfactory proof is shown to the Probation Unit of the State Bar: 1. Payment to Betty Ross and Randy Akins (and/or the Client Security Fund, if appropriate) of $4,500 plus 10% interest from July 1, 2001 2. Payment to Betty Ross and Randy Akins (and/or the Client Security Fund, if appropriate) ‘of $1,500 plus 10% interest from July 1, 2001 for the payment by Betty Ross to James A. Richardson for investigative services. Respondent will receive credit for the $1,500 upon presentation of proof to the State Bar that Betty Ross and Randy Akins have recovered $1,500 plus 10% interest from July 1, 2001 from James A. Richardson. 3. Payment to Octave Hyacinth (and/or the Client Security Fund, if appropriate) of $2,350 plus 10% interest from July 1, 2001. 4. Payment to Emelda Ford and Kenji Howard (and/or the Client Security Fund, if appropriate) of: (a) $4,000 plus 10% interest from March 16, 1999 for the Writ to the Court of Appeal; (b) $2,500 plus 10% interest from February 9, 1998 for “appeal costs;” (c) $1,000 plus 10% interest from April 21, 1999 to transfer Kenji Howard to Tehachippi State Prison; and (d) $2,500 plus 10% interest from January 9, 2000 for the Writ to the Supreme Court. 5, Payment to Wendel Phillips, (and/or the Client Security Fund, if appropriate) of $2000.00 plus 10% interest from September 1, 2001. 6. Payment to Nedra Armstrong (and/or the Client Security Fund, if appropriate) of $7,500 plus 10% interest from November 10, 1999. 7. Respondent provided some legal services to Nunez, but did not eam all of the $4312.00 in fees and costs Nunez paid him. Accordingly, Respondent agrees to consent to binding arbitration should his former client pursue the matter in fee arbitration, and further agrees that he will abide by any fee arbitration award and/or resulting order related thereto. Page # ota"Respondent enters into this stipulation as a conailion of his/her participation in the Pilot Program. Respondent understands that he/she must abide by all terms and conditions of Respondent's Filot Program Contract. Ifthe Respondent is not accepted into the Pilot Program or does not sign the Pilot Program, contract, this Stipulation will be rejected and will not be binding on Respondent or the State Bar. It the Respondent is accepted into the Pilot Program, upon Respondents successful completion ot ‘or termination from the Program, this Stipulation will be filed and the specified level of discipline for successful completion of or termination trom the Program as set forth In the State Bar Court's Statement Re: Discipline shall be imposed or ‘ommpnded the Supreme Court. Ach ber 4, £023 Dune R UKE Bate Print Name lo-F-0% Nh vel i Gti Date Print Name bce. (0 200 As 10 2003. Brooke A. Schafer Date Print Name {Stipulation form approved by SBC Executive Committee 9/18/02) Pilot-Stipulation Re Facts & Cone 18ORDER Finding this stipulation to be fair to the parties, IT Is ORDERED that the requested dismissal of counts/charges, if any, is GRANTED without prejudice, and: The stipulation as fo facts and conclusions of law is APPROVED. Q. The stipulation as to facts and conclusions of law is APPROVED AS MODIFIED as set forth below. The parties are bound by the stipulation as approved unless: 1) a motion fo withdraw or modify the stipulation, filed within 15 days atter service of this order, is granted; 2) this court modifies or further modifies the approved stipulation; or 3) Respondent is not accepted for participation in the Pilot Program or does not sign the Pilot Program Contract. (See rules 136(b) and 802(b), Rules} of Procedure.) The effective date of the disposition is the effective date ot the Supreme Court order herein, normally 30 days atter the file date of the Supreme Court Order. (See rule 953(a), Califomia Rules of Court.) - fal Dat Jédge of the State Bar Court 19BY MAIL CASE NUMBER: 01-0-02625-RMT I, the undersigned, over the age of eighteen (18) years, whose business address and place of employment is the State Bar of California, 1149 South Hill Street, Los Angeles, California 90015, declare that I am not a party to the within action; that I am readily familiar with the State Bar of California's practice for collection and processing of correspondence for mailing with the United States Postal Service; that in the ordinary course of the State Bar of California's practice, correspondence collected and processed by the State Bar of California would be deposited with the United States Postal Service that same day; that I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date on the envelope or package is more than one day after date of deposit for mailing contained in the affidavit; and that in accordance with the practice of the State Bar of California for collection and processing of mail, I deposited or placed for collection and mailing in the City and County of Los Angeles, on the date shown below, a true copy of the within STIPULATION RE FACTS AND CONCLUSIONS OF LAW ina sealed envelope placed for collection and mailing at Los Angeles, on the date shown below, addressed to: Michael G. Gerner, Esq. 10100 Santa Monica Blvd., #800 Los Angeles, CA 90067 in an inter-office mail facility regularly maintained by the State Bar of California addressed to: N/A I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California, on the date shown below. DATED: Wiz. 1/0) LO SIGNED: “ ipe Pacheco-Granados DeclarantCERTIFICATE OF SERVICE [Rule 62(b), Rules Proc.; Code Civ. Proc., § 1013a(4)] Lam a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on July 9, 2008, I deposited a true copy of the following document(s) DECISION AND ORDER FILING AND SEALING CERTAIN DOCUMENTS STIPULATION RE FACTS AND CONCLUSIONS OF LAW in a sealed envelope for collection and mailing on that date as follows: [X] _ by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows: DUANE R. FOLKE, ESQ. LAW OFC DUANE R FOLKE 3450 WILSHIRE BLVD #108-17 LOS ANGELES CA 90010 - 2208 [X] by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows: DAVID SAUBER, ESQ., Enforcement, Los Angeles Thereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on July 9, 2008, Rose M. Luthi Case Administrator State Bar Court onion of Sainscyt e e FILED PUBLIC MATTER JUL 23 2008 STATE BAR.COUN CLERICS OFFICE STATE BAR COURT OF CALIFORNIA —- HEARING DEPARTMENT - LOS ANGELES In the Matter of Case No. 01-0-02625, ete. DUANE R. FOLKE, ORDER AMENDING DECISION AND ORDER FILING AND SEALING CERTAIN Member No. 137341, DOCUMENTS A Member of the State Bar. The court’s July 9, 2008, Decision and Order Filing and Seating Certain Documents (Decision) is hereby amended as follows: 1. In the caption on page 1 of the Decision, “137321” is deleted, and in its place is inserted “137341”. ‘The amendment ordered is a clerical correction. Accordingly, the time for filing a motion to reopen the record and/or for reconsideration of the court’s July 9, 2008, Decision under rules 222 and/or 224, respectively, of the Rules of Procedure of the State Bar of California will be calculated from July 9, 2008, the date the Decision was served on the parties. ITIS SO ORDERED. Dated: Suly 42 2008 RICHARD A. HONN Judge of the State Bar Court ainCERTIFICATE OF SERVICE [Rule 62(b), Rules Proc.; Code Civ. Proc., § 1013a(4)] Tama Case Administrator ofthe State Bar Court of California, Lam over the age of eighteen and nota party tothe within proceeding. Pursuantto standard court practice, inthe City and County of Los Angeles, ‘on July 23, 2008, I deposited a true copy of the following document(s): ORDER AMENDING DECISION AND ORDER FILING AND SEALING CERTAIN DOCUMENTS in a sealed envelope for collection and mailing on that date as follows: [X] by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows: DUANE R FOLKE ESQ LAW OFC DUANE R FOLKE 3450 WILSHIRE BLVD #108-17 LOS ANGELES, CA 90010 - 2208 [X]__byinteroffice mail through a facility regularly maintained by the State Bar of Califomia addressed as follows David T. Sauber, Enforcement, Los Angeles Thereby certify thatthe foregoing is tme and correct. Executedin Los Angeles, California, on July 23, 2008. Case Administrator State Bar Court Cente feetPUBLICMATTER FILED JUL 09 2008 STATE BAR COURT OF CALIFORNIA stags orrice [pS ANGELES HEARING DEPARTMENT - LOS ANGELES In the Matter of Case No, 01-0-02625; 01-0-04251; 01-0-05300; 01-0-04162; DUANE R. FOLKE, 02-0-11285; 02-O-12362; 02-0-10672 ‘Member No. 137321, DECISION AND ORDER FILING AND A Member of the State Bar. SEALING CERTAIN DOCUMENTS INTRODUCTION AND SIGNIFICANT PROCEDURAL HISTORY This original disciplinary proceeding involving respondent Duane R. Folke (respondent) is, based on respondent's violations of provisions of the State Bar Act and the Rules of Professional Conduct of the State Bar of California, ‘After the filing of certain disciplinary charges against respondent in May 2002, respondent sought to participate in the State Bar’s Lawyer Assistance Program (LAP) and the State Bar Court's Alternative Discipline Program (ADP).' On October 2, 2002, respondent executed a Participation Agreement with the LAP. In late 2002, respondent submitted to the court a declaration and 2 letter from a mental health, professional which established that at the time of his misconduct, respondent was suffering from substance abuse and mental health issues. ‘Thereafter, pursuant to an order filed on December 24, 2002, respondent was provisionally accepted into the ADP, pending respondent's execution of the ADP Contract and approval of a stipulation as to facts and conclusions of law. "The ADP was formerly known as the State Bar Court's Pilot Program for Respondent's with Substance Abuse or Mental Health Issues. i ul ul ii i iiOn October 9, 2003, the parties executed a Stipulation Re Facts and Conclusions of Law, and on October 10, 2003, the court lodged the State Bar's brief regarding the issue of the appropriate discipline in this matter.’ ‘Thereafter, on April 27, 2004, the court lodged its Decision Re Altemative Recommendations for Degree of Discipline setting forth the recommended discipline if respondent successfully completed or was terminated from the court's ADP. On that same day, respondent entered into a Contract and Waiver for Participation in the State Bar Court's ADP (Contract), and the parties’ Stipulation Re Facts and Conclusions of Law and the order approving the stipulation was lodged with the court. ‘The LAP issued a Certificate of One Year Participation in the Lawyer Assistance Program dated March 5,2007, which reflects respondent had complied with all drug testing requirements set forth in the LAP Participation Agreement for at least one year prior to March $, 2007, and that uring this time period, no unauthorized substances were detected, and the LAP was not aware of the use of any unauthorized substances during this period. Respondent successfully completed the LAP on July 30, 2007. On September 26, 2007, the court, on its own motion, extended the three year ADP participation period indefinitely. On January 16, 2008, the court issued an order finding that respondent had successfully completed the ADP and giving respondent until January 28, 2008 to file a brief on the issue of the reduction of the low level of discipline, When respondent failed to file such a brief, the matter was submitted for decision on April 9, 2008. Respondent's declaration, the physician's letter, and the stipulated facts establish a causal connection between respondent's mental health and substance abuse issues and the misconduct found in this disciplinary proceeding. As such, the court found that respondent had adequately established a nexus between his mental health and substance abuse issues and his misconduct in this matter, i.e, that his mental health and substance abuse issues directly caused the misconduct set forth in this matter. Respondent agreed with the proposed range of discipline discussed in the State Bar's brief.FINDINGS OF FACT AND CONCLUSIONS OF LAW The partes” stipulation, including the court's order approving the stipulation, is attached hereto and is hereby incorporated by reference, as if fully set forth herein. The stipulation sets forth the fuetual findings, legal conclusions and certain aggravating and mitigating circumstances inthis rmtter. Furthermore, at the time respondent engaged in the misconduct for which he has been found culpable, respondent was suffering from mental health and substance abuse issues which directly caused the misconduet in this proceeding. In accordance with applicable Supreme Court case law, an attorney's rehabilitation from substance abuse problems can be accorded significant mitigating weight if itis established that (1) the abuse was addictive in nature; (2) the abuse causally contributed tothe misconduct; and (3) the attorney has undergone a meaningful and sustained period of rehabilitation. (Harford v, State Bar (1990) 52 Cal.3d 93, 101; In re Billings (1990) 50 Cal3d 358, 367.) Likewise, mental health problems or extreme emotional difficulties are a mitigating factor where expert testimony establishes that the mental health problems or emotional difficulties were directly responsible for the misconduct, provided that the attomey also has established, through clear and convincing evidence, that he no longer suffers from the mental health problems or emotional difficulties. (Porter v, State Bar (1990) $2 Cal,34 518, 5275 In re Naney (1990) $1 Cal.34 186, 197; In re Lamb (1989) 49 Cal.3d 239, 246,) However, the Supreme Court has also held that, absent a finding ofrehabilitstion, emotional problems arenot considered a mitigating factor. (Kaplan v. State Bar (1991) 52 Cal3d 1067, 1072-1073; In re Naney, supra, $1 Cal.3d at p. 197.) Respondent has successfully completed the LAP and the ADP, Respondent's successful completion of the LAP and the ADP qualify as clear and convincing evidence that respondent no longer suffers from the mental health issues which led to his misconduct and establishes, by clear and convincing evidence, that respondent has undergone a meaningful and sustained period of rehabilitation for is substance abuse problems. (Harford v. State Bar, supra, 52 Cal3d at p. 101; Inre Billings, supra, 50 Cal.3d at p. 367.) Accordingly, it is appropriate to consider respondent's successfull completion of the LAP and the ADP as a further mitigating circumstance, (Rules Proc.of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, standard 1.2(e)(iv),) DISCUSSION ‘The purpose of State Bar disciplinary proceedings is not to punish the attomey but, rather, toprotect the public, to preserve public confidence in the legal profession and to maintain the highest possible professional standards for attomeys. (Chadwick v. State Bar (1989) 49 Cal.34 103, 111.) The State Bar submitted a brief to the court on the appropriate discipline in this matter. Respondent agreed with the proposed range of discipline discussed in the State Bar's brief. After reviewing the State Bar’s brief and considering the standards and case law cited therein, the parties” stipulation setting forth the facts, conclusions of law and aggravating and mitigating circumstances with respect to his disciplinary proceeding, the physician’s letter, and respondent’s nexus declaration, the parties were advised of the discipline which would be recommended to the Supreme Court if respondent successfully completed the ADP and the discipline which would be recommended if respondent was terminated from the ADP. Respondent entered into a contract to participate in the ADP and successfully completed both the ADP and the LAP. Accordingly, the court will recommend to the Supreme Court the imposition of the discipline set forth in the court's Decision Re Alternative Recommendations for Degree of Discipline if respondent successfully completed the ADP. RECOMMENDED DISCIPLINE IT IS HEREBY RECOMMENDED that respondent DUANE R. FOLKE be suspended from the practice of law fora period of two years and until (a) he provides satisfactory proof that he thas made the restitution set forth below; and (b) he provides satisfactory proof to the State Bar Court of his rehabilitation, present fitness to practice law and present learning and ability in the general law pursuant to standard 1.4(c)(i) of the Standards for Attomey Sanctions for Professional Misconduct. ‘The Court further recommends that execution of such suspension be stayed and that respondent be placed on probation for a period of five years, on the following conditions: 1. Respondent must be actually suspended from the practice of law in the State of California for the first six months of the period of probation and until he provides satisfactory proofto the Office of Probation that he has made restitution to (a) BettyRoss and Randy Akins, in the amount of $6,000, plus interest of ten percent (10%) per annum from July 1, 2001, provided that respondent will receive credit for such, portion of those monies that respondent is able to satisfactorily prove that either Ross cor Akins have recovered from respondent's investigator, James A. Richardson; (b) Octave Hyacinth in the amount of $2,350, plus interest of ten percent (10%) per annum from July 1, 2001; (¢) Emelda Ford and Kenji Howard, in the amounts of (i) $4,000, plus interest of ten percent (10%) per annum from March 16, 1999; (ii) $2,500, plus interest of ten percent (10%) per annum from February 9, 1998; (iii) $1,000, plus interest of ten percent (10%) per annum from April 21, 1999; and (iv) $2,500, plus interest of ten percent (10%) per annum from January 9, 2000; (d) ‘Wendell Phillips in the amount of $2,000, plus ten percent (10%) per annum from September 1, 2001; (e) Nedra Armstrong in the amount of $7,500, plus interest often percent (10%) per annum from November 10, 1999; and (f) Armando Oscar Nunez, Jr. in such amount as may be ordered in any fee arbitration proceeding that Nunez may bring against respondent. Respondent agrees to consent to binding arbitration and to abide by any resulting fee arbitration award or order. If the Client Security Fund (CSF) bas already reimbursed any of the above-named individuals forall orany portion of their respective losses, respondent must make restitution to CSF of the amount(s) paid, plus applicsble interest and costs, in accordance with Business and Professions Code section 6140.5, and must provide satisfactory proof of such payment to the Office of Probation. Any restitution owed to the Client Security Fund is enforceable as provided in Business and Professions Code section 6140.5, subdivision (c) and (4). To the extent that respondent has paid any restitution prior to the effective date of the Supreme Court's final disciplinary order in this proceeding, respondent will be given credit forsuch payment(s) provided satisfactory proof of such is or has been shown to the Office of Probation, If respondent's actual suspension reaches or exceeds two years, he must remain suspended from the practice of law until he provides satisfactory proof to the StateBar Court of his rehabilitation, present fitness to practice law and present learning. and ability in the general law pursuant to standard 1.4(c)(ii) of the Standards for Attomey Sanctions for Professional Misconduct, Respondent must comply with the provisions of the State Bar Act and the Rules of Professional Conduct; Within ten (10) calendar days of any change in the information required to be ‘maintained on the membership records of the State Bar pursuant to Business and Professions Code section 6002.1, subdivision (a), including his current office address and telephone number, respondent must report such change in writing to both the Office of Probation and to the Membership Records Office of the State Bar; Respondent must submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10 and October 10 of the period of probation. Under penalty of perjury, respondent must state whether he has complied with the State Bar ‘Act, the Rules of Professional Conduct and all conditions of probation during the preceding calendar quarter. Ifthe first report will cover less than thirty (30) calendar ays, that report must be submitted on the reporting date for the next calendar quarter and must cover the extended period. In addition to all quarterly reports, respondent ‘must submit a final report, containing the same information required by the quarterly reports. The final report must be submitted no earlier than twenty (20) calendar days before the last day of the probation period and no later than the last day of the probation period; Subject to the assertion of applicable privileges, respondent must answer fully, promptly and truthfully, all inquiries of the Office of Probation which are directed to him personally or in writing relating to whether respondent is complying or has complied with these probation conditions; Within one year of the effective date of the Supreme Court’s final disciplinary order in this proceeding, respondent must provide the Office of Probation with satisfactory proof of his attendance at a session of State Bar Ethics School and of his passage of@ eo the test given at the conclusion of that session; 8. Theperiod of probation will commence on the effective date of the Supreme Court's final disciplinary order in this proceeding. Respondent took and passed the Multistate Professional Responsibility Examination (MPRE), administered by the National Conference of Bar Examiners, on August 8, 2003, In light of his passage of the MPRE, this court does not recommend that respondent be required to take and pass the MPRE a second time in this proceeding, ‘The court recommends that respondent be ordered to comply with the requirements of rule 9.20 of the California Rules of Court and that he be ordered to perform the acts specified in subdivisions (a) and (c) of that rule within thirty (30) and forty (40) calendar days, respectively, after the effective date of the Supreme Court's final disciplinary order in this proceeding. costs It is 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. ORDER FILING AND SEALING CERTAIN DOCUMENTS ‘The court orders the Case Administrator to file the parties’ Stipulation Re Facts and Conclusions of Law lodged on April 27, 2004, including the court’s order approving the stipulation,* and the Decision and Order Filing and Sealing Certain Documents. Thereafter, pursuant to rule £806(c) of the Rules of Procedure of the State Bar of California (Rules of Procedure), all other documents not previously filed in this matter and all filed documents stamped confidential will be sealed pursuant to rule 23 of the Rules of Procedure. It is further ordered that protected and sealed material will only be disclosed to: (1) parties to the proceeding and counsel; (2) personnel of the Supreme Court, the State Bar Court and independent audiotape transcribers; and (3) personnel of the Office of Probation when necessary for “The order approving the stipulation is modified to insert an “x” in the box next to “The stipulation as to facts and conclusions of law is APPROVED.”o @ their duties. Protected material will be marked and maintained by all authorized individuals in a manner calculated to prevent improper disclosure. All persons to whom protected material is disclosed will be given a copy of this order sealing the documents by the person making the disclosure. ITIS SO ORDERED. Dated: July & 2008 RICHARD A, HONN ‘Tudge of the State Bar Courtbien, By Slale Bot Court of the Slate Bor of Califor “gta Heating ent: WJ Los Angeles O cisco ORIGINAL os PILOT PROGRAM FOMMMRPONDENTS WITH SUBSTANCE ABUSE AL HEAL Counsel forthe Stale Br Cove Number STATE BAR OF CALIFORNIA 01-0.02625-2MT] sureworcurgm,.,| sonesnoP UBLIC Sree wee ean SR Ne es SL oaast gtd Um NS 8-9.5300 a ils Cie 0.0678 LODG: ‘Counsel for Respondent Michael G. Gemer, Bx, 10100 Sania Mona Boulevad, F800 Los Angeles, CA’ 90067 Inthe Matter of Submitted lo Pilot Progrom Judge Duane R. Folke STIPULATION RE FACTS AND CONCLUSIONS OF LAW nore srt ‘A Member of the State Bor of Coilfomia PREVIOUS STIPULATION REJECTED ‘A. Parties’ Acknowledgments: (1) Respondent is c member of the State Bar of California, admitted Decenber 2,808 ate) (2) The patties agree to be bound by the foctual stipulations confoined herein even if conclusions of law or ‘disposition {10 be cttoched separolely) ore relected or changed by the Supreme Court. However, If Respondent is not accepted ino the Lawyer Assisionce Program, this stipulation will be rejected and will not be binding on Respondent or the Slate Bat. {3)All investigations or proceedings listed by case number In the caption of this stipulation are ently resolved. by this sipuiation and ore deemed consolidated. Dismissed charge(s/count(s) are listed under “Dismissals.” This stipulation consists of _/ 9 pages. (4) A stotement of octs or omissions acknowledged by Respondent as couse or causes for discipline is Included under “Facts”. {5}Conctusions of law, drawn from and specifically refering to the facts, ore also included under “Conclusions of Low. (6)No more than 30 days prior fo the fling of this stipulation, Respondent has been advised in wiiting of any ending investigation/proceeding not resolved by this stipulation, except for criminal Investigations. (7) Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus, & Prof. Code §§ 6086.10 & 6140.7 and will pay timely any disciplinary costs imposed in this proceeding, Note: Al information required by ths form and any ecctiona! information which connot be provided in the space provided, sholl be set ‘orth in the text component (attachment of this sipulation under specific headings, Le., "Facts", "Dismissals", "Conclusions of Law.” {Stipulation form approved by $8C Executive Committee 9/18/02) 1 Pilol-Stipulation Re Facts & Concbrane crconsrces SAB x sry nore wre ler, dnd) fo + supporting aggravating circumstances are required. (Q) Bi _Prior Record of Discipline [see standard 1.2(0) @ @ @ 6 o a @) © ©) © @ @ Qo TE _State Bor Court Case # of prior case, j-0- 10837 % Date prior disciptine ettective, ril 3, 2002 CE Rules of Professional Conductistate Bar Action violations _RPC_3-700_(D) (2) Business & Professional Code sec.6068(m); RPC 3-110(A) RPC _4-100(A) B Degree of prior discipline_30 days actual suspension; 2 years stayed eens; 2 eaepte .__IfResponcent has two or more incidents of prior discipline, use space provided below or under ‘Prior Discipline” Dishonesty: Respondent's misconduct was surrounded by of followed by bad faith, dishonesty, concealment, overreaching oF other violations of the State Bar Act of Rules of Professional Conduct. Trust Violation: Trust funds or properly were Involved and Respondent refused or was unable 10 ‘account fo the client or person who was the object of the misconduct for improper conduct toward said funds or property. Horm: Respondent's misconduct harmed significantly a client, the public ot the administration of justice. Indifference: Respondent demonstrated indifference foward rectification of or atonement for the consequences of his or her misconduct. Lack of Cooperation: Respondent displayed a lack of candor and cooperation to the victims of higher misconduct or the State Bar during disciplinary investigation or proceedings. Muttiple/Pattern of Misconduct: Respondent's current misconduct evidences multiple acts of ‘wrong doing or demonstrates a pattem of misconduct. No aggravating circumstances ate Involved. Additional aggravating circumstances: (Sliputation form approved by SBC Executive Committee 9/18/02) 2 Pliot-Sipulotion Re Facts & Conca 2 @ 4 o © a ®@ 09) ay 12) as) a a a o 1 Spring cxcenserces ord ros urpetng naceine ellerces 2 astse No Piior Discipline: Respondent has no ptior record of discipline over many years of practice ‘coupled with present misconduct which Is not deemed serious. No Harm: Respondent did not harm the client or person who was the object of the misconduct. Candor/Cooperation: Respondent displayed spontaneous candor and cooperation to the victims of his/her misconduct and to the State Bar during disciplinary investigation and proceedings. Remorse: Respondent promptly took objective steps spontaneously demonstrating remorse ond recognition of the wrongdoing, which steps were designed fo fimely atone for any ‘consequences of his/her misconduct. Restitution: Respondent paid § on in restitution to ‘without the threat of force of disciplinary, hil or criminal proceeding’ Delay: These disciplinary proceedings were excessively delayed. The delay Is not attributable to Respondent and the delay prejudiced him/her. ‘Good Faith: Respondent acted in good faith. Emotional/Physical Difficutlies: A! the time of the stipulated act or acts of professional misconduct Respondent suffered extreme emotional difficulties oF physical disabilities which expert testimony ‘would establish were directly responsible for the misconduc!. The difficulties or disobiliies were not the product of any illegal conduct by the member, such as illegal drugs or substance abuse, ‘and Respondent no longer sutfers from such difficulties or disabilities. Severe Financial Stress: At the time of the misconduct, Respondent suffered from severe financial siress which resulled from citcumstances not reasonably foreseeable or which were beyond his) her control and which were directly responsible for the misconduct. Fomily Problems: At the time of the misconduct, Respondent suffered extreme difficuties in his) her personal life which were other than emotional or physical in noture. Good Character: Respondent's good character is attested to by wide range of references in the legal and general communities who are awate of the full extent of higher misconduct. Rehabiliiation: Considerabie time has passed since the acts of professional misconduct occurred followed by convincing proof of subsequent rehabbitation. No mitigating circumstances are involved, ‘Additional mitigating citcumstances: {Stipulation form approved by SEC Executive Committee 9/1/02) 3 PliotStipulation Re Facts & ConeATTACHMENT TO INTHEMATTEROF: Duane R. Folke, member no. 137341 CASE NUMBER(S): 01-0-02625 (Ross/Akins); 02-O-11285 (Hyacinth); 01-O- 04251 (Ford/Howard); 01-0-05300 (Phillips); 02-0-12362 « ;, and 02-0-10672 (Nunez); and investigation no. 01-0-04162 (SBI) FACTS AND CONCLUSIONS OF LAW, Duane R. Folke (“Respondent”) admits the following facts are true and that he is culpable of the following violations of the specified statutes and/or Rules of Professional Conduct. Respondent was admitted to the practice of law in California on December 7, 1988, and was at all times pertinent hereto a member of the State Bar of California (“State Bar"). Respondent was ordered on inactive status on November 25, 2001 due to an unpaid fee arbitration award pursuant to Business and Professions Code section 6203. Respondent was suspended for 30-cays from April 3, 2002 through May 3, 2002 pursuant to the stipulation in Case ‘Nos. 99-0-10837 et al. as ordered by the Supreme Court on March 4, 2002. As of July 17, 2003, he has been back on active status. (A) acts - Case No. 01-0-02625 - Ross/Akins 1, On June2, 1999, Betty Ross (“Ross”) retained Respondent to represent her son, Randy Akins (“Akins”), in a Writ of Habeus Corpus (“Writ”) following Akins’ murder conviction. Akins granted Ross authority to act on Akins’ behalf in matters pertaining to Akins’ legal matters. The same day Ross paid Respondent $1,000 on behalf of Akins. 2. On June 28, 1999, Respondent entered into a Retainer Agreement with Akins and agreed to perform the following, infer alia: “investigation of the claim(s) against you, and the preparation of a Writ of Habeus Corpus for the presentation of new evidence which should reasonably show that you are not the perpetrator of the crime you now stand convicted of with respouse to both written and oral argument in your defense; however, if you are provided a new trial in lien of a complete vacating of your sentence, this office shall not be obligated to defend a new trial without further compensation.” 3. The Retainer Agreement required Akins to pay a total fee of $5,500 by making an initial payment of $1,000 and payments of $500 on the 28" of each month beginning on July 28, 1999, until ‘the total amount was paid. The Retainer Agreement required Akins to be responsible for all costs. 4. In July 1999 Ross paid Respondent an additional $500 on behalf of Akins. 5. On August 19, 1999, Ross paid Respondent another $500 on behalf of Akins. Moreover, ‘between October 1999 and October 2600, Ross paid an additional $2500.00 on behalf of Akins. Ross paid a total of $4500.00 to Respondent on Akins’ behalf.¢ 6. In March and April 2000 Ross also paid Respondent's private investigator $1500.00 for work investigating the facts of Akins’ case. 7. On September 1, 2000, Respondent sent a letter to Akins, who was in prison in Vacaville, Califomia, advising that Akins’ family had provided funds to pursue a Writ and promising that Respondent would contact Akins’ counselor to assist in arranging an initial visit: [W]e will contact your counselor to assist this office in arranging our initial visit with ‘you over the course of the next few weeks. I believe the best use of the limited Tesources I am being called upon to utilize to address your matter dictates that pethaps the best use of our time and efforts are to have you provide, in writing, as ‘much information as possible; this, so that I can begin to review and further research the law on the facts you provide. Proceeding in this manner will assure that upon our initial meeting we can cover @ ‘great deal of information such that we can work with each other by written communication. Obviously, from time to time we will need to meet face to face, but given the resouoes and tne necessary to commute from Los Angeles to jacramento and Vacaville is for all intent [sic] and purposes prohibitive at best. ‘Thereafter, neither Respondent nor anyone in his employ ever met with Akins, and after September 2000 Respondent did not communicate with Akins 8, Ross made numerous telephone calls to dent to obtain a status report on the Writ. Between July 1999 and February 2001 Ross called and left approximately 70 messages with Respondent's office. Respondent did not return those calls, 9. Finally, in July 2001, Respondent called Ross and told her that they were working on the Writ, that they would need six more months to complete it and that they would need an additional $2,000 to complete the Writ. Ross requested on behalf of Akins that Respondent provide proof of the work that Respondent had done on the Writ. Respondent never provided proof of the work that he had done on the Writ to Akins or Ross. No Writ was ever prepared or filed. 10. On July 6, 2001, the State Bar opened investigation, case no. 01-0-02625, pursuant to the complaint filed by Akins (“the Akins maiter”). On July 11, 2001, State Bar Investigator Ysabel ‘Naetzel (“Nactzel”) wrote to Respondent regarding the Akins matter. The letter set forth Akins” complaint and requested that Respondent respond in writing along with any supporting documents to specific allegations of misconduct being investigated by the State Bar. Respondent received the July 11, 2001, letter but failed to respond to it. 11, On July 25, 2001, Naetzel sent a second letter to Respondent regarding the Akins matter, The letter requested that Respondent respond to the allegations set forth in the letter dated July 11, 2001, which was attached. Respondent received the July 25, 2001, letter but failed to respond. 1(8) Conclusions of Law - Case No, 01-0-02625 - Ross/Akins ~ By never interviewing or contacting Akins, by not preparing the Writ, by not communicating with Ross for over a year regarding Akins’ case, by not informing Akins that he would not be preparing the Writ nor taking any steps to protect his rights should he desire new counsel, and by not providing proof of the work Respondent performed (if any) despite being asked, Respondent Page #oP . 2 repeatedly failed to perform legal services with competence in violation of rule 3-110(A) of the Rules of Professional Conduct. ~ By collecting $4,500 from Akins to prepare and file the Writ, which was never prepared or filed, and by failing to refimmd any of the $4,500 paid by Akins, Respondent failed to refund promptly any part of a fee paid in advance that has not been eamed in violation of rule 3-700(D)(2) of the Rules of Professional Conduct. ~ By not providing a written response to the allegations in the Akins matter or otherwise cooperating in the investigation of the Akins matter, Respondent failed to cooperate in a disciplinary investigation in violation of Business and Professions Code section 6068()). MA) Facts - Case No, 02-0-11285 - Hyacinth 12. In March 2001 Octave Hyacinth (“Hyacinth”) retained Respondent to obtain compensation from his former employer Watkins Engineering & Constructors (“Watkins Engineering”) for, inter alia, retaliation, failure to correct a hostile work environment, harassment and race discrimination (“tortious treatment”), 13, Respondent agreed inthe Retainer Agreement to asst Hyacinth in procuring right to sue letters from the Equal Employment Opportunity Commission (“EEOC”) and from the state Department of Fair Employment and Housing (“DFEH”) as prerequisites to filing an action in federal and/or state court. 14, Respondent agreed to do the work for “$7,500 based on an hourly retainer basis at $175.00 per hour.” At the initial meeting on March 10, 2001, Hyacinth paid Respondent $750.00. 15, Hyacinth made numerous subsequent payments between March and July 2001. Total payments to Respondent were $2350.00. 16. Hyacinth and Respondent met one more time on March 24, 2001. After that the two had xno more meetings. 17, In late May 2001, Hyacinth began phoning Respondent to get status updates on his legal matters. Hyacinth left messages for Respondent each time, requesting that Respondent retur his call. ‘Respondent did not reply to Hyacinth’s requests for status inquiries. 18. In late July 2001, Hyacinth left a telephone message for Respondent advising him that Hyacinth had another $200 payment for him, but that Hyacinth would not send the money until Respondent returned Hyacinth’s telephone call. Respondent called Hyacinth back later that day and insructed Hyacinth o go othe EEOC and fil charge. Respondent also instructed Hyacinth o continue to make the $200 payments every two weeks as set forth in the Retainer Agreement. That was the last conversation the two had. After this conversation Hyacinth never he Respondent or anyone from his office again. 19. After their conversation in late July 2001, Hyacinth called Respondent several times, each time asking that he contact him about filing the EEOC charge. Respondent did not return Hyacinth’s calls. Respondent effectively abandoned Hyacinth’s legal matters. Page#& @ TI®) Conclusions of Law - Case No, 02-0-11285 - Hyacinth ~ By not assisting Hyacinth in filing the EEOC charge, by not assisting Hyacinth in filing the DFEH charge, by not returning numerous messages left by Hyacinth, by not telling Hyacinth that he ‘was intending to stop work on his legal matters, by not informing Hyacinth of his attempts to obtain ‘compensation from Watkins Engineering since July 2001, and by not filing an action against Watkins Engineering, Respondent repeatedly failed to perform legal services with competence in violation of rule 3-110(A) of the Rules of Professional Conduct. ~ By collecting $2,350 to obtaining compensation from Watkins Engineering for its tortious treatment of Hyacinth, by failing to take any action to obtain compensation from Watkins and by failing to refund some portion of the $2,350 paid by Hyacinth, Respondent failed to refund ‘promptly any part of a fee paid in advance that has not been earned in violation of rule 3-700(D)(2) of the Rules of Professional Conduct. TII(A) Eacts = Case No, 01-0-04251 - Ford/Howard A The Writ to the Court of Appeal 20. On October 23, 1997, Emelda Ford (“Ford”) retained Respondent to represent her son, Kenji Howard (“Howard”), in a Writ of Habeus Corpus to the Court of Appeal (“Writ”), following ‘Howard's murder conviction in the Los Angeles Superior Court. Howard gave Ford authority to act ‘on his behalf in the legal matters being handled by Respondent. The same day, Respondent entered into an agreement with Howard to appear at the sentencing hearing, prepare post-trial motions and file the Writ. The terms of the contract were acknowledged by Respondent in a letter to Ford dated October 23, 1997. 21. The contract called for periodic payments to be paid between October 1997 and March 1998, totaling $4000.00. The contract also made Howard responsible for $3,000 for “investigation and such costs - when and if a new trial is granted.” 22, Ford timely paid Respondent on behalf of Howard the full $4,000 for the Writ by March 23, 1998. 23. On May 27, 1998, Respondent requested an extension of time from the Court of Appeal to file the opening brief, which was granted on May 29, 1998. The extension allowed Respondent until July 5, 1998 to file the opening brief. 24. Respondent did not timely file the opening brief, and the appeal was dismissed on July 14, 1998. On July 31, 1998, Respondent filed a motion to reinstate the appeal, which was granted by the Court of Appeal on August 12, 1998, On August 12, 1998, Respondent filed the opening brief. 25. On August 27, 1998, the Attomey General of the State of California (“Attomey General”) filed a motion to strike the opening brief for failure to comply with the California Rules of Court. 26. Despite the serious and complex nature of the case and the length of the record, the ‘opening brief only contained a 2 ¥s-page “Statement of the Facts,” which did not contain citations to the record of the proceedings below. In fact, not one citation to the Reporter’s Transcript is included in the Statement of Facts, Moreover, despite the length of the record, the serious nature of the case, Page #@ & and the fact intensive nature of appellant's contentions," the opening brief provided only four isolated Citations to the record of appellant's trial. 27. By order dated September 17, 1998, the Court of Appeal granted the Attomey Generai’s motion to strike and struck the opening brief. 28. On September 28, 1998, Respondent re-filed the opening brief. 29, After the Attomey General filed its opening brief, Respondent requested and was granted two extensions of time to file the reply brief. 30. However, Respondent failed to file his reply brief on time, and Respondent was denied a third extension to time to file the reply brief. The case was considered fully briefed on March 16, 1999. Respondent never filed a reply brief. 31. On June 8, 1999, the Court of Appeal affirmed Howard’s conviction. B. “Appeal Costs” 32. In November 1998, Respondent told Ford that he needed an addition $2,500 for what Respondent described as “appeal costs,” “costs on appeal,” and “additional costs for Kenji Howard appeal” (“appeal costs”) for the appeal to the Court of Appeal. Respondent never explained to Ford or Howard why they needed to pay “appeal costs” or what the “appeal costs” actually were. 33. Between November 1998 and February 1999 Ford timely paid Respondent on behalf of Howard the full $2500.00 for “appeal costs.” C. Transferring Howard to Tehachippi State Prison 34. In March 1999 Respondent agreed to represent Howard in a request to transfer him from Salinas Valley State Prison to Tehachippi State Prison to be closer to his family. Ford agreed to pay Respondent approximately $1,000 on behalf of Howard to have Howard transferred, 35. On March 28, 1999, however, Howard wrote a letter to Respondent informing Respondent that Ford was working two jobs and all of the overtime she could manage while in poor health just to pay the cost of Howard’s appeals. He informed Respondent that he believed that Respondent was “taking advantage of (Ford’s] funds” and that they wanted to be “treated, not cheated, and charged fairly for [Respondent's] services.” Consequently, Howard instructed Respondent not to work on transferring Howard from Corcoran State Prison to Tehachippi State Prison unless Respondent was willing to work “free of charge” on the transfer. 36. Respondent did not respond to Howard’s letter. continued to accept money fiom Ford on behalf of Howard to atempt to have Howard transfer fom Corcoran Stale Prison to Tehachippi State Prison. 37. On April 21, 1999, Ford paid Respondent $560 on behalf of Howard to attempt to have Howard transferred from Corcoran State Prison to Tehachippi State Prison, Respondent accepted 2 The opening bref alleged a purported tainted confession, denial of right toa speedy tral, denial of counsel and ineffective assistance of counsel Page #e é '$560 from Ford, even though his client, Howard, had specifically instructed him not to accept any money to attempt to have him transferred. Ultimately Ford timely paid Respondent on behalf of Howard the full $1,000 to attempt to have Howard transferred from Corcoran State Prison to ‘Tehachippi State Prison. 38. Although Ford paid Respondent to attempt to have Howard transferred to Tehachippi State Prison, Ford did not perform any work to attempt to have Howard transferred and Howard was never transferred to Tehachippi State Prison. 39. On May 5, 1999, Howard wrote to Respondent asking him for a status update on the oral argument before the Court of Appeal and on the attempt to have Howard transferred. Howard told Respondent that his efforts to transfer Howard probably would be ineffective until Respondent came up to Corcoran State Prison and made himself “visible” to demonstrate that they were “serious.” Howard also told Respondent that visiting the prison would also provide Howard and Respondent an opportunity to meet because he was being transferred to Salinas Valley State Prison. 40, Respondent did not provide a status report or respond to Howard's May 5, 1999, letter in any way. D. The Writ to the Supreme Court 41. In July 1999, after the Court of Appeals had upheld Howard’s conviction, Ford retained Respondent to represent Howard in a Writ of Habeus Corpus to the California Supreme Court mndent agreed to prepare and file the Writ to the Supreme Court for $2500.00. On July 12, 199, Ford paid Respondent an initial $500 payment on behalf of Howard to prepare the Writ othe Supreme Court, 42. On September 1, 1999, Respondent sent a letter to Howard, advising him that the appeal filed in the Court of Appeal had been denied, but that Respondent would file an appeal with the ‘Supreme Court and seek to have him transferred to Tehachippi State Prison to be closer to his family. 43. By January 2000 Ford had timely paid Respondent on behalf of Howard the full $2500.00 for the Writ to the Supreme Court. 44. Respondent never filed the Writ to the Supreme Court, even though Ford paid Respondent the agreed upon amount of $2500.00 on behalf of Howard to prepare the Writ. 45, Ford made numerous telephone calls on behalf of Howard to Respondent to obtain a rt on the Writ to the Supreme Court. Ford left telephone messages for Respondent on bpchalf of Howard to contact Ford that Respondent would not return. Ford left messages for Respondent to contact her to obtain a status report during the following months, infer ali approximately 13 calls in or about April 2000; approximately 4 calls in or about June 20( approximately 2 calls in or about October 2000. 46. Respondent did not contact Howard or anyone else authorized to act on behalf of Howard after February 2000. TII(B) Conctusions of Law - Case No, 01-0-04251 - Ford/Howard By fling to timely file the opening bret with the Court of Appeal resulting in the dismissal of the appeal, by failing to file competent opening brief with the Court of Appeal resulting in the opening Page # oeu ° ¢ | brief being stricken, by failing to file a reply brief with the Court of Appeal, by failing to fle a Writ with the Supreme Court, by accepting money from Ford to transferring Howard after Howard directed him not to accept money for thal purpose, by fling to Work on transferring Hloward, and by failing to respond to Howard’s and Ford’s requests for information, Respondent repeatedly failed to perform legal services with competence in violation of rule 3-110(A) of the Rules of Professional Conduct. — By not preparing the Writ to the Sunreme Court. hv not informing Howard that Respondent had not taken anv stens to file the Writ to the Sunreme Court. and by not contacting Howard conceming the satus ofthe Writ to the Supreme Cour afer Februry 2000, Respondent effectively abandoned his client and improperly withdrew from employment in violation of rule 3-700(A)(2) of the Rules of Professional Conduct. — By providing no services to Howard with respect to “appeal costs,” transfer of Howard and/or Writ to the Supreme Court, and by not refunding any of the $6,000 fo Howard, Respondent failed to refund unearned fees in violation of rule 3-700(D)(2) of the Rules of Professional Conduct. IV(A) Facts Case No. 01-0-05300 - Phillips 47. On August 18, 1999, Wendel Phillips retained Respondent to represent him in a dissolution of marriage (“Phillips” dissolution”). The retainer agreement states that Wendel Phillips will pay Respondent 2,000, by making an initial payment of $1,000,» seeand payment of $500 on or fore iber 18, 1999, and a third payment of $500 on or before October 18, 1999. Wendel Phillips timely paid Respondent the full $2,000 for the Phillips’ dissolution. | 48. ‘The parties worked out the details of the Phillips dissolution. On August 25, 1999, Respondent filed a “Stipulation and Order on Order [sic] to Show Cause.” 49. On November 29, 1999, Respondent sent a letter to David M. Gordon (“Gordon”), the attomey for Wendel Phillips’ former spouse, Dynita Phillips, requesting that Gordon prepare the final judgment in the Phillips dissolution, 50. On March 27, 2000, approximately four months after the first letter, Respondent sent a second letter to Gordon requesting that Gordon prepare the final judgment in the Phillips’ dissolution, 51. On August 22, 2000, approximately five months after the second letter, Respondent sent a third letter to Gordon requesting that Gordon prepare the final judgment. 52. On February 26, 2001, approximately six months after the third letter, Respondent sent a fourth letter to Gordon requesting ‘that Gordon prepare the final judgment in the Phillips dissolution and threatening sanctions if Gordon did not prepare the final judgment. 53. Respondent never obtained the final judgment from Gordon and never sought to prepare the final judgment himself or otherwise finalize the 8° dissolution. 54, In August 2001 Wendel Phillips transmitted a Substitution of Attomey to Respondent to allow Wendel Philips to proceed in prope. Respondent didnot tum the Substitution of Atfomey o ‘Wendel Phillips. 55. On February 21, 2002, Respondent and Wendel Phillips met at the State Bar at the request of both parties to execute the Substitution of Attorney in the Phillips’ dissolution.& 1v@) - e ~ By failing to oblain the final judgment in the Philips" dissolution from Gordon, by failing to prepare the final judgment inthe Phillips’ dissolution himself, by filing to finalize the Philips dissolution over a two-year period, and by failing to execute the Substitution of Attomey, 1 Reapondent tedly failing Eating Wo pes jor legal services with competence in violation of rule 3-1 TOCA) of the Rules otras By fling ofnalze the Philips’ dissolution, Respondent did not ear all of the fees paid by ofthe 5,000 aid by Wendl Pili, Respondent ld fetid prompt any patos of paid by ips, 3t failed to refuund promptly any part of a fee paid in advance that has not been eamed in violation ofrale 3-700(D\2) ofthe Rules of Profesional ‘V(A) Facts - Case No, 02-0-12362 - Armstrong 56, On March 17, 1999, Nedra Armstrong (“Armstrong”) retained Respondent to defend her in a administrative proceeding brought against her by the Nevada Civil Right Commission (°NCRC”) to file a civil rights action alleging employment discrimination against Cae County Department of Juvenile Justice (‘Department of Juvenile Justice”). 57. On or about March 17, 1999, Respondent entered into a retainer agreement with Armstrong to defend her in the NCRC proceeding and to file the federal civil rights action. The retainer agreement required Armstrong to pay a total fee of $7,500 for these services, which she did. 58. On March 29, 1999, Armstrong learned from the office of Human Resources of the Department of Juvenile Justice that she had 180 days to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Armstrong informed Respondent that she had been infermod byt Department of veil in tha she ad "180 days from March 2, 1999 to file he EEOC charge, vy September lent agreed ‘Amnstrot March 29, 1999, to file the charge with the EEOC. me * 59, On July 12, 1999, Armstrong sent Respondent a letter by facsimile requesting his advice about accepting early separation from the Department of Juvenile Justice. Respondent did not respond to Armstrong's letter dated July 12, 1999. 60, On September 8, 1999, Armstrong sent a letter to Respondent by fasimile requesting his assistance in responding to niew allegations of employment discrimination by the Department of Jawenile Justice Respondent did net respond to Armtrong’s letter dated September 8, 1999. 61. Respondent did not file a charge of discrimination against the Department of Juvenile Justice with the EEOC by the deadline of September 25, 1999. 62. On November 10, 1999, sent a letter to Respondent by facsimile requesting his assistance in responding to an attempt by Clatk County to transfer her to another department. 63. Respondent did not respond to Armstrong's letter dated November 10, 1999, or attempt to contact Armstrong at any time between November 10, 1999 to August 29, 2000. 64, On August 29, 2000, Armstrong called Respondent to discuss the NCRC proceeding and federal civil rights action. Respondent requested that Armstrong provide information concerning Page # vethe NCRC proceeding and federal civil rights action to his office, including but not limited to Armstrong's work history, copy of the civil law suit, hiring flyers, newspaper articles, hate mail left in Amnstrong’s mailbox, a description of the program Armstrong was supervising. information. 65. On August 29, 2000, Armstrong sent a packet of information to Respondent’s office as he requested, including but not limited to Armstrong’s work history, copy of the civil law suit, hiring flyers, newspaper articles, hate mail left in Armstrong's mailbox, & description of the program. Anmstrong was supervising. 66. Respondent did not take any action after receiving Armstrong’s August 29, 2000 packet of information, nor did he attempt to contact her from August 2000 to April 2002. 67. By April 4, 2002, Armstrong had leamed that Respondent recently had been disciplined by the State Bar and lost confidence in his ability and his interest in representing her. Consequently, decided to terminate Respondent as her attomey and demanded that he refund the $7,500 ‘that she had paid him. 68. On April 4, 2002, Armstrong called Respondents office and left a message for ‘Respondent on his voice mail system requesting that Respondent contact Armstrong. 69. On April 9, 2002, Respondent called Armstrong and requested that she overnight documents regarding the NCRC proceeding and federal civil rights action to his office, 70. On April 9, 2002, Armstrong sent Respondent a letter dated April 9, 2002 by U.S. First Class Mat and by U.S; First Class Mal, Retum Receipt Requested, that informed Respondent that Armstrong had learned that: (a) Respondent had been placed on inactive status as the result of disciplinary action that took place on April 3, 2002; (b) disciplinary action had been taken against ‘Respondent on November 25, 2002; (c) Respondent had failed to perform the duties set forth in the retainer agreement; and (d) Respondent had failed to file a complaint with the EEOC with 180 days of March 29, 1999, Armstrong complained that Respondent had never informed her that he had been placed on inactive status. Armstrong demanded that Respondent refund the $7,500 retainer fee that ‘Ammstrong had paid, Respondent received this letter. 71. Respondent did not respond to Armstrong's letter dated April 9, 2002, nor has Respondent communicated with Armstrong since April 9, 2002, 72. Respondent has not refunded any of the $7,500 retainer fee to Armstrong. 73. Respondent did not: file a complaint with the EEOC within 180 days of the incident giving rise to the ‘of discrimination, defend Armstrong against the administrative proceeding brought by the NCRC, or file a Federal action alleging employment discrimination by the Department of Juvenile Justice, VB) Conclusions of Law - Case No. 02-0-12362 - Armstrong ~ By fniling to timely file a charge with the EEOC, by failing to assist Armstrong in defending against the NCRC proceeding, by failing to file a federal civil rights action against the Department of Juvenile Justice, and by failing to provide timely advice to Armstrong, Respondent recklessly failed to perform legal services with competence in voltion of ul 3-10(A) ofthe Rules of Professional Conduct. Page # a@ & By not nrenaring anv documents in the matters for which he was retained. by not informing, Armstrong that he had not nrenared anv documents in the matters for which he was retained. hy not informing Armstrong that he had heen nlaced on inactive status on November 21. 2001. by not transferring Armstrone’s case to another attornev. and by not maintaining contact with. concerning the matters for which he had been retained, Respondent effectively abandoned his client and improperly withdrew from employment in violation of rule 3-700(A)(2) of the Rules of Professional Conduct. ~ By providing no services to Armstrong and by not refunding the $7,500 fee to Armstrong, Messe Salar unsea Sa wolation lan af fall Conch la: TO0(D)2). ‘VI(A) Eacts - Case No. 02-O-10672 - Nunez 74. In January 2000 the County of Los Angeles filed a complaint to collect back child support (“support proceedings”) against Armando Nunez, Jr. (“Nunez”) for support of his children, Nikolas and Janelle. The complaint was filed in Los Angeles County. 75. In March 2000 Nunez retained Respondent to represent him in the support proceedings, and provided Respondent with information necessary to his defense. 76. In April 2000 the County of Los Angeles requested, and the court granted, dismissal of the support proceedings related to Janelle. The support proceedings regarding Nikolas continued. 77..On July 26, 2000, the County of Los Angeles obtained an order entering default against ‘Nunez in the support proceedings. The Superior Court ordered Nunez to pay support for Nikolas for $799 per month beginning on February 1, 2000. On August 29, 2000, Respondent filed a motion to set aside the default judgment. Hearing on the motion was scheduled for October 10, 2000. 78. On September 7, 2000, the County of Los Angeles and Respondent signed and filed an parte stipulation and order setting aside the default judgment entered on July 26, 2000 on the condition that Nunez file his Answer by September 18, 2000. ‘The stipulation and order agreed to stop all enforcement proceedings and to advance and vacate the October 10, 2000 hearing on the motion to set aside the judgment. The stipulation and order was ordered by the Superior Court on September 7, 2000. 79. Respondent filed Nunez” Answer to the Complaint on September 29, 2000, rather than by September 18, 2000, as stipulated to and as ordered by the court on September 7, 2000. 80. On February 5, 2001, a hearing in the support proceedings was held. The Superior Court continued the matter until April 23, 2001 at Respondent's request and ordered genetic testing. 81. On April 23, 2001, the court continued the matter until May 23, 2001, because Respondent was involved in a criminal trial. 82. On May 23, 2001, hearing was begun in the support proceedings. The hearing was continued until September 7, 2001 at 8:00 a.m. Respondent was present for the May 23 hearing and waived formal notice of the September 7* hearing. Page # “3: @ é 83. On September 7, 2001, a hearing was conducted in the support proceedings. Respondent failed to appear and default was entered against Nunez. The Superior Court ordered ‘Nunez to pay $799 per month beginning on February 1, 2000 for the support of Nikolas. Respondent was ordered to pay $7,581 for the support of Nikolas from April 1999 through January 2000 by making payments of $227.43 per month beginning February 1, 2000. ‘84. Respondent never moved to set aside the September 7, 2001, default judgment. 85, After he received notice of judgment in the mail, in late September 2001, Nunez placed several telephone calls to Respondent io determine how the County of Los Angeles had obtained an entry of judgment against him. Each time Nunez left a message for Respondent to call him back, but Respondent did not return Nunez’ telephone calls. 86. On November 25, 2001, Respondent was placed on “not entitled” status by the State Bar Court due to an unpaid fee arbitration award pursuant to Business and Professions Code section 6203. Respondent received notice that he was placed on not entitled status from the State Bar Court dated November 21, 2001. 87. Nunez retained new counsel, Krystal Clemens (“Clemens”) in or about December 2001. 88. On January 15, 2002, Clemens sent Respondent a letter requesting that informed Respondent that Nunez had retained Clemens to represent him in further proceedings in COLA v. ‘Nunez. ‘The letter requested that Respondent: (a) sign and return a Substitution of Attorney substituting Clemens as attomey of record for Nunez; (b) forward Nunez’ file to Clemens; and (c) provide Clemens witha declaration explaining Respondents failure to appear on September 7, 2001, to attach to Clemens’ motion to set aside the default pursuant to Code of Civil Procedure section 473, ie, relief from default taken due to mistake, inadvertence, surprise or excusable neglect, The letter ‘was sent certified mail, return receipt requested. The letter was received by Respondent's office on January 18, 2002. 89. Respondent did not: (a) sign and return the Substitution of Attomey substituting Clemens as attomey of record for Nunez; (b) forward Nune2’ file to Clemens; or (c) provide Clemens with a declaration explaining Respondent’s failure to appear on September 7, 2001, to attach to Clemens’ motion to set aside the default. ‘VI(B) Conclusions of Law - Case No, 02-0-10672 - Nunez By failing to file Nunez’ Answer by September 18, 2000; by failing to appear as ordered at the September 7, 2001, hearing; by failing to inform Nunez that default had been entered against him; by fling to move to st aside the September 7, 2001, default entered against Nunez; and by failing 0 assist Nunez’ subsequent attorney Clemens, Respondent recklessly and repeatedly failed to perform fog sorvicc with competence violation of les 3-1 10(8) of Ie Rule of ratesional Conduct — By failing to annear at the Sentember 7. 2001. hearing: hv failing to inform Nunez. that default had been entered against him: by failine to move to set aside the default judgment; and by, in essence, ceasing all work on Nunez’ legal case after September 1, 2001, Respondent effectively abandoned Nunez. and improperly withdrew from employment in wilful violation of Rules of Professional Conduct, rule 3-700(A)(2).. — By failing to release Nunez’ file to Clemens upon receipt of Clemens’ request for the file and the substitution of attorney, Respondent failed to release promptly, upon termination of employment, to Page # 4he @ é the client, at the request of the client, all the client papers and property in wilful violation of rule 3- 700(D\(1) of the Rules of Professional Conduct, rule 3-700(D\(1). Vi(A) Facts Investigation no, 01-0-04162 (SBD 90. Dawn Weber hired Respondent in June 2001, and paid him $2500.00 advance fees on Tune 11, 2001. Respondent agreed to represent Ms. Weber in a criminal matter. However, Respondent also represented Ms. Weber's co-defendant, and the defense in the Weber case was that the co-defendant was entirely to blame for the crimes committed in the Weber case, not Ms. Weber. On June 27, 2001, the court ordered Respondent to withdraw from Ms. Weber's case and to refund the $2500.00 she had paid Respondent within thirty days. 91. Respondent failed to refund the entire amount within thirty days of June 27, 2001, as oniered by the court. Respondent made a $500.00 payment in early September 2001. ‘The court ordered Respondent to appear on October 26, 2001, and show cause why he had not complied with its order to pay. On October 26, 2001, the court ordered Respondent to pay Ms. Weber $300.00 a month until the remaining $2000.00 was paid. Respondent failed to comply with the court’s October 26, 2001, order. 92, In January 2002 Respondent filed a status report regarding the unpaid advance fees with the court. Init, he explained that he was having financial difficulties due to unpaid arbitration award, ‘marital break-up and other reasons, He represented to the court that within the next 30 days many of these issues would be resolved such that the fees owing to Ms. Weber would be repaid or at least closer to a final resolution. The court at no time relieved Respondent of his responsibility to refund the fees, however, or of its orders that he do so. 93. On March 1, 2002, Respondent was again before the court on the refunded fees issue. The court ordered him to pay $100.00 to Ms. Weber's new attomey and to appear in May 2002 for another OSC. Respondent failed to pay the $100.00 to Ms. Weber's new atfomey. AL the May 29, 2002, OSC Respondent was ordered to obtain a money order in the sum of $1100.00 and deliver it to Ms. Weber’s new attomey. The court set another OSC for August 29, 2002, on the issue of proof of payment of the $1100.00 as well as the issue of the refunded fees balance. 94. Respondent did not provide a money order for $1100.00 by the August 29, 2002, OSC hearing. At that hearing he was given another chance to complete the refund of fees to Ms. Weber — until October 29, 2002. 95. Respondent made no additional payments prior to the October 29, 2002, hearing. At that hearing the court ordered him to make a $300.00 payment “forthwith.” As of December 6, 2002, he failed to make the $300.00 payment. Between December 6, 2002, and February 21, 2003, Respondent finally paid Ms. Weber, through her new attorney, all money owed. VII(B) Conclusion of Law — investigation no. 01-0-04162 (SBD ; By filing to make any payments disgorgng any advance fes pid by Ms. Weber between September 2001 and December 2002, despite mulple odes ofthe cour tht he do so, Respondent fully disobeyed an order of the court requiring him to do an act connected with or in the course of his profession which he ought in good faith to do, in wilful violation of B&PC section 6103. Page # As:AGGRAVATING FACTORS, cont'd from page 2: Priot Discipline The timeframe of the prior misconduct (December 1997 to February 2001) overlaps somewhat with te instant misconduct, which occured 1998 trough December 2002, As such the court may give the prior less weight in aggravation. (In re Sklar (Rev. Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602. However, the prior need not be disregarded entirely, since had the full facts of all the disciplinary matters been part of the prior the discipline in that matter surely would have been higher. (See Rhodes v. State Bar (1989) 49 Cal.34 50.) MITIGATING FACTORS, cont'd from page 3: Family Problems In December 2001 Respondent experienced the break-up of his 12 year ‘marriage. He assumed custody of his three minor children. The events leading up to the dissolution, as well as the adjustments to his life caused by his becoming sole caretaker of his children, created financial and physical stresses on him, DISMISSED CHARGES ‘The parties respectfully request the court dismiss the following charges contained in the currently filed NDCs in the interest of justice. Many of the counts originally contained in the charging documents have been consolidated into the instant stipulation: Case no, 01-0-2625 (Ross/Akins) = Count Two (Failure to Respond to Client Inquiries) — Count Three (Unconscionable Fee) — Count Four (Improper Withdrawal) Case no. 02-0-11285 (Hyacinth) = Count One (Failure to Respond to Client Inquiries) — Count Three (Unconscionable Fee) — Count Four (Improper Withdrawal) Case no. i2s Count Two (Failure to Respond to Client Inquiries) —Count Five (Moral Turpitude) - = Count Seven (Improper Withdrawal) —Count Bight (Failure to Respond to Client Inquiries) —Count Nine (Improper Withdrawal) Case no. 02-O-12362 (Armstrong) = Gonat Two Faure to Respond to Client Inquiries) Count Five ~ Count Six (are wo Koper) (Case no, 02-0-10672 Nunez) = Count Two (Failure to Maintain Respect to the Court) ~ Count Three (Failure to Obey Court Order) ~ Count Six (Failure to Return Uneamed Fees) Page # 16.e & PENDING PROCEEDINGS. ‘The disclosure date referred to, on page one, paragraph A.(6), was October 1, 2003. RESTITUTIE Respondent shall pay restitution to the following individuals(and/or the Client Security Fund, if appropriate) in the following amounts plus 10 percent interest per annum accruing from the dates indicated. To the extent Respondent has paid any restitution prior to the effective date of the order arising from this stipulation he shall be given credit for such payments provided satisfactory proof is shown to the Probation Unit of the State Bar: 1. Payment to Betty Ross and Randy Akins (and/or the Client Security Fund, if appropriate) of $4,500 plus 10% interest from July 1, 2001. 2. Payment to Betty Ross and Randy Akins (and/or the Client Security Fund, if appropriate) of $1,500 plus 10% interest from July 1, 2001 for the payment by Betty Ross to James A. Richardson for investigative services. Respondent will receive credit for the $1,500 upon presentation of proof to the State Bar that Betty Ross and Randy Akins have recovered $1,500 plus 10% interest from July 1, 2001 from James A. Richardson. 3, Payment to Octave Hyacinth (and/or the Client Security Fund, if appropriate) of $2,350 plus 10% interest from July 1, 2001. 4, Payment to Emelda Ford and Kenji Howard (and/or the Client Security Fund, if appropriate) of: (a) $4,000 plus 10% interest from March 16, 1999 for the Writ to the Court of Appeal; (b) $2,500 plus 10% interest from February 9, 1998 for “appeal costs;” (c) $1,000 plus 10% interest from April 21, 1999 to transfer Kenji Howard 1 Tehachippi State Prison; and (4) $2,500 plus 10% interest from January 9, 2000 for the Writ to the Supreme Court. 5. Payment to Wendel Phillips, (and/or the Client Security Fund, if appropriate) of $2000.00 plus 10% interest from September 1, 2001. 6, Payment to Nedra Armstrong (and/or the Client Security Fund, if appropriate) of $7,500 plus 10% interest from November 10, 1999, 7. Respondent provided some legal services to Nunez, but did not earn all of the $4312.00 in fees and costs Nunez paid him, Accordingly, Respondent agrees to consent to binding arbitration should his former client pursue the matter in fee arbitration, and further agrees that he will abide by any fee arbitration award and/or resulting order related thereto. Page # Ayerar eee @ Respondent enters into this stipulation as a conattion of his/her participation in the Pllot Program, Respondent understands that he/she must abide by all terms and conditions of Respondent's Pilot Program Contract. tthe Respondent is not accepted into the Pilot Program or does not sign the Pilot Program contract, this Stipulation will be rejected and will not be binding on Respondent or the State Bar. I the Respondent Is accepted into the Pilot Program, upon Respondent's successful completion of ‘of termination from the Program, this Stipulation will be filed and the specified level of discipline tor successful completion of or termination from the Program as s¢t forth in the State Bar Court's Statement Re: Discipline shall be imposed or recom’ the Supreme Court, Dt ber 4, 2223 Dune AU Bate Print Name: fo-%-0% YW hcl G Citi Date Print Name bck, (0 2003 a — Brooke A. Schafer Date Deputy Tal Counser's: PrinfName- {Gtipulation form approved by SBC Executive Committee 9/16/02) Pilot-Stipulation Re Facts & Cone: 18é ORDER Finding this stipulation to be fair to the parties, IT Is ORDERED that the requested dismissal of ‘counts/charges, if any, is GRANTED without prejudice, and: The stipulation as to facts and conclusions of law is APPROVED. the stipulation as to facts and conclusions of law Is APPROVED AS MODIFIED as set forth below. The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modity the stipulation, filed within 15 days atter service of this order, is granted; 2) this court modifies or further modifies the approved stipulation; or 3) Respondent is not accepted for participation in the Pilot Program or does not sign the Pilot Program Contract. (See rules 135(b) and 802(b), Rules| of Procedure.) The effective date of the disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date of the Supreme Court Order. (See rule 953(a}, California Rules of Court.) ~—— LAh9 idge of the State Bar Court ht lid 19e é ew awe wn 10 u 12 1B 4 15 16 18 19 20 a 2 23 24 25 26 a7 28 CASE NUMBER: 01-0-02625-RMT. I, the undersigned, over the age of eighteen (18) years, whose business address and place of employment is the State Bar of California, 1149 South Hill Street, Los Angeles, California 90015, declare that Tam not a party to the within action; that I am readily familiar with the State Bar of California's practice for collection and processing of correspondence for mailing with the United States Postal Service; that in the ordinary course of the State Bar of California's practice, correspondence collected and processed by the State Bar of California would be deposited with the United States Postal Service that same day; that I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date on the envelope or package is more than one day after date of deposit for mailing contained in the affidavit; and that in accordance with the practice of the State Bar of California for collection and processing of mail, I deposited or placed for collection and mailing in the City and County of Los Angeles, on the date shown below, a true copy of the within STIPULATION RE FACTS AND CONCLUSIONS OF LAW in a sealed envelope placed for collection and mailing at Los Angeles, on the date shown below, addressed to: Michael G. Gerner, Esq. 10100 Santa Monica Bivd., #800 Los Angeles, CA 90067 in an inter-office mail facility regularly maintained by the State Bar of California addressed to: NIA I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California, on the date shown below. DATED: _(QiZiliz< 2/0) 202 SIGNED: 7ae e © CERTIFICATE OF SERVICE RRule 62(6), Rules Proc.; Code Civ. Proc., § 1013a(4)] Tam a Case Administrator of the State Bar Court. Iam 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 April 28, 2004, I deposited a true copy of the following document(s): DECISION RE ALTERNATIVE RECOMMENDATIONS FOR DEGREE OF DISCIPLINE; STIPULATION RE FACTS AND CONCLUSIONS OF LAW; CONTRACT AND WAIVER FOR PARTICIPATION IN THE STATE BAR COURT'S PILOT PROGRAM FOR RESPONDENTS WITH SUBSTANCE ABUSE OR MENTAL HEALTH ISSUES, filed April 27, 2004 ina sealed envelope for collection and mailing on that date as follows: IX] _ by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows: MICHAEL G. GERNER 10100 SANTA MONICA BL #800 ‘LOS ANGELES CA 90067 [X]__ by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows: y CHARLES MURRAY, Enforcement, Los Angeles BROOKE SCHAFER, Enforcement, Los Angeles Thereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on April 28, 2004, Tammy R. Cleaver Case Administrator State Bar CourtCERTIFICATE OF SERVICE [Rule 62(b), Rules Proc.; Code Civ. Proc., § 1013a(4)] Tam a Case Administrator of the State Bar Court of California. 1am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on July 9, 2008, 1 deposited a true copy of the following document(s): DECISION AND ORDER FILING AND SEALING CERTAIN DOCUMENTS STIPULATION RE FACTS AND CONCLUSIONS OF LAW ina sealed envelope for collection and mailing on that date as follows: IX] _ by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows: DUANE R. FOLKE, FSQ. LAW OFC DUANE R FOLKE 3450 WILSHIRE BLVD #108-17 LOS ANGELES CA 90010-2208 (X] _ by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows: DAVID SAUBER, ESQ., Enforcement, Los Angeles Thereby certify that the foregoing is true and correct, Executed in Los Angeles, California, on July 9, 2008, Rose M. Luthi Case Administrator State Bar Court Cote of Sree vot© eu a 10 a 12 13 14 15 16 a7 18 19 20 22 22 23 24 25 26 27 28 FILED. DUANE R. FOLKE 3450 WILSHIRE BOULEVARD, SUITE #108-17 MAY 3.0 2002 LOS ANGELES, CALIFORNIA 90010 (213) 674-0764 TELEPHONE ‘STATE BAR COURT CLERK'S OFFICE. INPRO PER FOR RESPONDENT DUANE R. FOLKE SAN FRANCISCO ‘THE STATE BAR COURT HEARING DEPARTMENT - LOS ANGELES CASE NO: 01-0-02625 Inthe Matter of FORMAL RESPONSE IN Duane R. Folke OPPOSITION TO NOTICE OF ‘No, 137341 DISCIPLINARY CHARGES AND AFFIRMATIVE DEFENSES A Member of the State Bar COMES NOW DUANE R. FOLKE, A MEMBER OF THE STATE BAR OF CALIFORNIA, AND HEREBY SETS FORTH THIS FORMAL RESPONSE IN OPPOSITION TO THE NOTICE OF DISCIPLINARY CHARGES FILED HEREIN; AND, WITHOUT WAIVING OBJECTION TO THE FILING OF A MOTION TO DISMISS SETS FORTH THEFOLLOWING WRITTEN RESPONSE, AND AFFRIMATIVEDEFENSES AS FOLLOWS: JURISDICTION 1, Duane R. Folke ("Respondent") herein is admitted to the practice of law in the State of California since December 7, 1998, and at all times pertinent to the charges remains 2 member in good standing of the State Bar of California; however, it is disputed as to whether there is "jurisdiction" in this matter as the "complaint" filed by the underlying individual is based upon circumstances related to the submission of information which was untrue and therefore not something +31 062 wae oe rss et 2 aii10 1 12 13 14 1s 16 7 18 19 20 22 22 23 24 25 26 27 28 the member could set forward in good faith having previously found the defense to be non- ‘meritorious. COUNT ONE 2, Respondent denies that he“willfully” violated Rules of Professional Conduct rule3-110(A) by failing to perform legal services on behalf of Betty Ross ("Ross) and Randy Akins ("Akins) as ‘counsel represented and resolved an issue regarding the failure to repair a roof'on the complainant's home; and, also worked diligently on the Akins matter to review the law and prepare a draft ofa Writ of Habeus Corpus needing only a review by the investigator hired with respect to the case who subsequently learned that Akins was not telling the truth; and, as a result counsel could not proceed in good faith. 2. Respondent worked diligently on the underlying client's matter until it was determined that he could not proceed based on the information provided by the private investigator hired in this matter, James Richardson. COUNT TWO 3, Respondent denies that he “willfully” violated Business and Professions Code, Section £6068 (m) by filing to respond promptly to reasonable status inquiries as the underlying client Randy ‘Akins was keep filly appraised of his matter by regular contact with his mother, who had agreed to act on his behalf given the distance from which Akins was housed away from Los Angeles. Akins provided information directly by mail; and, through the investigation by investigator James Richardson. COUNT THREE 6. Respondent denies that he “wilfully” violated Rules of Professional Conduct, Rule 4- 200(A) by entering into an agreement for, charging, and/or collecting an unconscionable fee as Respondent did not receive $6,000.00 for the preparation of a Writ; and, also was authorized byRoss to act on her behalf on another matter to which a portion of the actual fee received was applied. COUNT FOUR 7. Respondent denies that he “willfully violated Rules of Professional Conduct, Rule 3- 700(A)(2), improper withdrawal from employment, as counsel met with Ross in July, 2001, and ORAL RESPONSE TO NOTICE oF CHARGES 220 a 12 a3 14 15 16 17 18 19 20 22 22 23 24 25 26 27 28 indicated that in light ofthe fact that serious inconsistencies existed in the factual assertions of Akins, he could not proceed COUNT FIVE 8, Respondent denies that he “willfilly” violated Rules of Professional Conduct, Rule 3- 700(D\2).. COUNT SIX 7, Respondent denies that he “willfully” violated Business and Professions Code Section 6068 (ashe co-operated with The State Bar of California, and was told by the State Bar that there would be no further discipline sought regarding the Ross matter. AFFIRMATIVE DEFENSES COMES NOW, RESPONDENT, DUANE R. FOLKE, AND sets forth the following * Affirmative Defenses" which are applicable herein without waiving additional "Affirmative Defenses” ‘that may be learned through discovery including but not limited to: LACK OF JURISDICTION 1. The Petitioner lacks jurisdiction concerning all or part of the NOTICE OF DISCIPLINARY CHARGES, as issue(s) concerning underlying client Randy Akins and Betty Ross clearly understood why counsel could not go forward; this after it was learned from the investigator that to proceed would have meant settng forth an improper defense. INTERVENING SUPERCEDING CAUSE 2, The respondent asserts that all or part of the allegations set forth in the NOTICE OF DISCIPLINARY CHARGES, were the result of act(s) by the underlying client, and not any wilful commission or omission by counsel; and, the fact that placement on "involuntary inactive" status prevented resolution of this matter. MOOTNESS 3, Respondent asserts that some, ifnot al of said NOTICE OF DISCIPLINARY CHARGES, ‘are moot because they inaccurately depict the former and/or the current status of the petition, and the allegations contained therein fil to reflect the true facts concerning an alleged failure to refund ‘unearned fees; afuilure to respond to underlying client as it was the understanding of respondent thet FORMAL RESPONSE TO NOTICE OF CHARGES 310 1. 12 13 14 1s 16 17 18 19 20 21 22 23 24 28 26 27 28 any complaint by this client hed been "resolved", and that any complaint concerning underlying client Akins or Ross had also been "resolved." 4, Respondent reserves the right to amend both this Response to Formal Notice of Disciplinary Charges and Affirmative Defenses and to file a Motion to Dismiss and/or Summary Disposition once provided with discovery in this matter. Dated: May 20, 2002 vA ‘In Pro Per for RESPONDENT DUANE R. FOLKE 3450 Wilshire Boulevard, Suite #108-17 Los Angeles, California 90010 Telephone: (213) 674-0764 FOWAL RESPONSE 70 NOTICE OF CHARGES 4fo e o VERIFICATION STATE OF CALIFORNIA, COUNTY OF T have read the foregoing, ‘and know its contents CHECK APPLICABLE PARAGRAPH sama party to this action, The matters stated in the foregoing document are true of my own knowledge except as to those mavtere which are staed on information and belie, and as to those matters I believe them to be true D1 1am 0 an Officer O a partve_____O of {party to this action, and am authorized to make this verification for and on its behalf, and I make this verification for that reason, DI am informed and believe and on that ground allege that the matters stated in the foregoing document are true. (I The matters stated in the foregoing document are true of my own knowledge except as to those matters which are ‘stated on information and belief, and a8 to those matters I believe them to be tru “Tam one of the attorneys for — 1 party to this action. Such party is abvent from the county of aforesaid where such attorneys have their offices, and I make this verification for and on behalf of tbat party for that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true. Executed on. » 19. at. [declare under penalty of perjury under the laws of the State of Califo California. ‘that the foregoing is true and correct ‘Type oF Print Name Sipaioe PROOF OF SERVICE a3 0) COP Rea S178 STATE OF CALIFORNIA, COUNTY OF Tam employed in the county of + State of California 1am over the age of If and not a party to the within action; my business address ist (On, 19, I served the foregoing document described as. by placing the true copies thereof enclosed in vealed envelopes addressed as stated on the attached mailing lis by placing 0) the origina Bra true copy thereof enclosed in sealed envelopes addressed ax follows: The Stte BAC OF C21¢Kir as ~ =e U4 Steet HtUl Sie ef- Oe Ca gou/S-229¢ Bovine EZ Otic 41 deported such envelope in the mail st The envelope was mailed with postage thereon fully prepaid afartolors tam ry ona” te im’ pai ofcleton at prong sorponteoc for main ‘Under pape it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Wpagyes em rt 2 ady c ses mm California. party served; service invalid if postal cancellation date or postage meter date is more than one day after date of ser oe mg ie pr pee MZ w Lstixees —__, catia. ees PeRSORAL SERVICE) TGaimrd wah eos by bad othe offen o he seas Executed on. 19, at, + California, (Gute) T declare under penalty of perjury under the laws of the State of California that the above is true and correct. (Federal) I declare that Iam employed in the office of a member ofthe bar ofthis court at whose direction the service was oe " / ‘Type oF Print Name Signature10 a. 12 13 14 15 16 47 18 19 20 21 22 23 24 25 26 27 28 ‘THE STATE BAR OF CALIFORNIA OFFICE OF THE CHIEF TRIAL COUNSEL ENFORCEMENT PAUL T. O'BRIEN, No. 171252 CHARLES T. CALIX, No. 146853 1149 South Hill Street Los Angeles, California 90015-2299 ‘Telephone: (213) 765-1000 © ORIGINAL iii iii FILED way ~ 1 200058) ¢, ore BAR Cour CLERKS OFSIGE PUBLIC MATTER THE STATE BAR COURT HEARING DEPARTMENT - LOS ANGELES In the Matter of Case No, 01-0-02625 No. 137341 A Member of the State Bar } ) DUANE R. FOLKE, }) NOTICE OF DISCIPLINARY CHARGES ) ) ) NOTICE - FAILURE TO RESPOND! IF YOU FAIL TO FILE AN ANSWER TO THIS NOTICE WITHIN THE ‘TIME ALLOWED BY STATE BAR RULES, INCLUDING EXTENSIONS, OR IF YOU FAIL TO APPEAR AT THE STATE BAR COURT TRIAL, (1) YOUR DEFAULT SHALL BE ENTERED, (2) YOU SHALL BE ENROLLED AS AN INACTIVE MEMBER OF THE STATE BAR AND WILL NOT BE PERMITTED TO PRACTICE LAW UNLESS THE DEFAULT IS SET ASIDE ON MOTION TIMELY MADE UNDER THE RULES OF PROCEDURE OF THE STATE BAR, (3) YOU SHALL NOT BE PERMITTED TO PARTICIPATE FURTHER IN THESE PROCEEDINGS UNLESS YOUR DEFAULT IS SET ASIDE, AND (4) YOU SHALL BE SUBJECT TO ADDITIONAL DISCIPLINE. STATE BAR RULES REQUIRE YOU TO FILE YOUR WRITTEN RESPONSE TO THIS NOTICE WITHIN TWENTY DAYS AFTER SERVICE. IF YOUR DEFAULT IS ENTERED AND THE DISCIPLINE IMPOSED BY ‘THE SUPREME COURT IN THIS PROCEEDING INCLUDES A PERIOD OF ACTUAL SUSPENSION, YOU WILL REMAIN SUSPENDED FROM THE PRACTICE OF LAW FOR AT LEAST THE PERIOD OF TIME SPECIFIED BY THE SUPREME COURT. IN ADDITION, THE ACTUAL SUSPENSION WILL CONTINUE UNTIL YOU HAVE REQUESTED, AND THE STATE BAR COURT HAS GRANTED, A MOTION FOR TERMINATION OF THE ACTUAL SUSPENSION. AS A CONDITION FOR TERMINATING THE ACTUAL SUSPENSION, THE STATE BAR COURT ate10 a a2 13 15 16 17 18 19 20 21 22 23 24 25 26 27 MAY PLACE YOU ON PROBATION AND REQUIRE YOU TO COMPLY WITH SUCH CONDITIONS OF PROBATION AS THE STATE BAR COURT DEEMS APPROPRIATE. SEE RULE 205, RULES OF PROCEDURE FOR STATE BAR COURT PROCEEDINGS. ‘The State Bar of California alleges: SDI 1, Duane R. Folke ("Respondent") was admitted to the practice of law in the State of California on December 7, 1988, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California. COUNT ONE: Case No. 01-0-02625 Rules of Professional Conduct, rule 3-110(4) [Failure to Perform with Competence] 2. Respondent wilfully violated Rules of Professional Conduct, rule 3- 110(A), by intentionally, recklessly, or repeatedly failing to perform legal services with competence, as follows: 3. Onor about June 2, 1999, Betty Ross (“Ross”) retained Respondent to represent her son, Randy Akins (“Akins”), in a Writ of Habeus Corpus (‘Writ’) from Akins’ conviction in California State Court of Murder in the First Degree. 4, Akins granted Ross authority to act on Akins’ behalf in matters pertaining to the Writ. 5. On or about June 2, 1999, Ross paid Respondent $1,000 by personal check on behalf of Akins. 6. On or about June 28, 1999, Respondent entered into a Retainer Agreement with Akins and agreed to perform the following, inter alia: “investigation of the claim(s) against you, and the preparation of a Writ of Habeus Corpus for the presentation of new evidence which should reasonably show that you are not the perpetrator of the crime you now stand convicted of with response to both the written and oral argument in your defense; however, if you are provided a new trial in lieu of a complete vacating of your sentence, this office shall not be obligated to defend a new trial without further compensation.”10 qa 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 26 7. The Retainer Agreement required Akins to pay a total fee of $5,500 by making an initial payment of $1,000 that would be considered “earned upon. receipt” and payments of $500 on the 28" of each month beginning on July 28, 1999, until the total amount was paid. 8. The initial payment of $1,000 considered “earned upon receipt” was not a “true retainer” because it was a part of the payment to prepare and file the Writ, while a true retainer is a sum of money paid by a client to secure an attorney's availability over a given period of time, 9. The Retainer Agreement permitted Respondent to retain the services of a private investigator at a cost not to exceed $1,000. 10. The Retainer Agreement required Akins to be responsible for all costs. 11. In July 1999, Ross paid Respondent $500 on behalf of Akins. 12. On or about August 19, 1999, Ross paid Respondent $500 by personal check on behalf of Akins. 13. On or about September 1, 2000, Respondent sent a letter to Akins, who was being held in the California Medical Facility in Vacaville, California, advising that Akins’ family had provided funds to pursue a Writ, promising that Respondent ‘would contact Akins’ counselor to assist in arranging an initial visit in the “next few weeks” and confirming that “from time to time [Respondent and Akins] will need to meet face to face.” 14. On or about October 12, 1999, Ross paid Respondent $500 by personal check on behalf of Akins, 15. On or about December 7, 1999, Ross paid Respondent $500 by personal check on behalf of Akins. 16. On or about February 4, 2000, Ross paid Respondent $500 by personal check on behalf of Akins.10 1 12 13 14 1s 16 17 18 as 20 21 17. On or about March 3, 2000, James A. Richardson (“Richardson”), an investigator from Untouchables Private Detectives, contacted Ross. Respondent retained Richardson to assist in the preparation of the Writ. Pursuant to the Retainer Agreement, the cost for the services of a private investigator would not “exceed $1,000.” 18, On or about March 3, 2000, Richardson went to Ross’ home where Ross paid Richardson $1,000 by personal check on behalf of Akins. Richardson asserted that the “amount of account” was $2,500, and that with the “amount paid” of $1,000, the “balance due was $1,500. 19. On or about April 3, 2000, Ross paid Richardson $500 by personal check on behalf of Akins. Richardson asserted that the “amount of account” was $2,500, and that with the “amount paid” of $1,500, the “balance due was $1,000. 20. On or about October 16, 2000, Ross paid Respondent $1,000 by personal check on behalf of Akins. 21. Akins paid Respondent approximately $4,500. Akins paid Richardson approximately $1,500. 22. Ross went to Respondent's office on numerous occasions on behalf of Akins to obtain a status report on the Writ. Ross never met with Respondent and Respondent would not return the messages that Ross left for Respondent on behalf of Akins to contact Ross. 23, Ross made numerous telephone calls on behalf of Akins to Respondent to obtain a status report on the Writ. Ross would leave telephone messages for Respondent on behalf of Akins to contact Ross that Respondent would not return. Ross left messages for Respondent to contact her to obtain a status report during the following months, inter alia: approximately 2 calls in or about May 1999; approximately 9 calls in or about July 1999; approximately 2 calls in or about August 1999; approximately 14 calls in or about September 1999; approximately 1 call in or about November 1999; approximately 3 calls in or about December 1999; 410 1. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 approximately 2 calls in or about January 2000; approximately 13 calls in or about February 2000; approximately 5 calls in or about May 2000; approximately 3 calls in or about June 3, 2000; approximately 19 calls in or about July 2000; approximately 1 call in or about August 2000; approximately 2 calls in or about September 2000; approximately 2 calls in or about October 2000; approximately 3 calls in or about November 2000; and approximately 1 call in or about February 2001. 24. In or about July 2001, Respondent called Ross. Respondent told Ross that they were working on the Writ, that they would need six months to complete the Writ and that they would need an additional $2,000 to complete the Writ. Ross requested on behalf of Akins that Respondent provide proof of the work that Respondent had done on the Writ. Respondent never provided proof of the work that he had done on the Writ to Akins or Ross. 25. Respondent never meet with or contacted Akins. 26. No one in Respondent's employment or affiliated with Respondent ever met with or contacted Akins. 27. Respondent did not contact Akins or anyone else authorized to act on behalf of Akins after July 2001. 28. By never interviewing or contacting Akins, and by not preparing the Writ, Respondent intentionally, recklessly or repeatedly failed to perform legal services with competence. COUNT TWO Case No. 01-0-02625 Business and Professions Code, section 6068(m) [Failure to Respond to Client Inquiries} 29. Respondent wilfully violated Business and Professions Code, section 6068(m), by failing to respond promptly to reasonable status inquiries of a client, as follows:10 aa 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30. The allegations of paragraphs 3 through 27 are incorporated herein by reference. 31. By not interviewing or contact Akins, by not returning messages left by Ross on behalf of Akins, and by not telling Akins or Ross that Respondent had not prepared the Writ, Respondent failed to respond promptly to reasonable status inquiries of a client, COUNT THREE Rules of professional Conduct, rule 4-200(A) [Unconscionable Fee] 32, Respondent wilfully violated Rules of Professional Conduct, rule 4- 200(A), by entering into an agreement for, charging, and/or collecting an unconscionable fee, as follows: 33. The allegations of paragraphs 3 through 27 are incorporated by reference. 34. By charging and/or collecting a total of approximately $6,000 to prepare and file the Writ and by not taking any steps to file the Writ, Respondent entering into an agreement charging and/or collecting an unconscionable fee. COUNT FOUR Case No, 01-0-02625 Rules of Professional Conduct, rule 3-700(A)(2) [Improper Withdrawal From Employment] 35. Respondent wilfully violated Rules of Professional Conduct, rule 3- 700(A)(2), by failing, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client, as follows: 36. The allegations of paragraphs 3 through 27 are incorporated herein by reference.10 an 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 26 27 28 37. By not preparing the Writ, by not informing Akins that Respondent had not taken any steps to file the Writ, and by not contacting Akins concerning the status of the Writ since July 2001, Respondent effectively abandoned his client and improperly withdrew from employment. COUNT FIVE Case No. 01-0-02625 Rules of Professional Conduct, rule 3-700(D)(2) [Failure to Refund Unearned Fees} 38. Respondent wilfully violated Rules of Professional Conduct, rule 3- 700(D)(2), by failing to refund promptly, upon termination of employment, any part of a fee paid in advance that has not been earned, as follows: 39. The allegations of paragraphs 3 through 27 are incorporated herein by reference. 40, Respondent provided no services to Akins. Respondent did not earn any of the advanced fees paid by Akins. At no time did Respondent refund any of the approximately $6,000 paid by Akins to prepare and file the Writ. 41, By collecting $6,000 to prepare and file the Writ from Akins, by failing to prepare and/or file the Writ, and by failing to refund the some portion of the $6,000 paid by Akins, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned. COUNT SIX Case No. 01-0-02625 Business and Professions Code, section 6068(i) [Failure to Cooperate in State Bar investigation] 42, Respondent wilfully violated Business and Professions Code, section 6068(i), by failing to cooperate and participate in a disciplinary investigation pending against Respondent, as follows: 43. On or about July 6, 2001, the State Bar opened investigation, case no. 01-0-02625, pursuant to the complaint filed by Akins (“the Akins matter"). 710 qn 12 13 14 1s 16 17 1s 19 20 21 22 23 26 25 26 27 44. On or about July 11, 2001, State Bar Investigator Ysabel Naetzel (‘Naetzel") wrote to Respondent regarding the Akins matter. The letter set forth Akins’ complaint and requested that Respondent respond in writing along with any supporting documents to specific allegations of misconduct being investigated by the State Bar. 45. The July 11, 2001, letter was placed in a sealed envelope correctly addressed to Respondent's State Bar membership records address. The letter was properly mailed by first class mail, postage prepaid, by depositing for collection by the United States Postal Service in the ordinary course of business on or about the date of each letter. 46. The United States Postal Service did not return the July 11, 2001, letter as not deliverable. 47. Respondent did not respond to the letter dated July 11, 2001. 48. On or about July 25, 2001, Naetzel sent a second letter to Respondent regarding the Akins matter. The letter requested that Respondent respond to the allegations set forth in the letter dated July 11, 2001, which was attached. 49. The July 25, 2001, letter was placed in a sealed envelope correctly addressed to Respondent's State Bar membership records address. The letter was properly mailed by first class mail, postage prepaid, by depositing for collection by the United States Postal Service in the ordinary course of business on or about the date of each letter. 50. The United States Postal Service did not return the July 25, 2001, letter as not deliverable. 51. Respondent did not respond to the letter dated July 25, 2001. 52. By not providing a written response to the allegations in the Akins matter or otherwise cooperating in the investigation of the Akins matter, Respondent failed to cooperate in a disciplinary investigation.10 coe 12 13 14 NOTICE - INACTIVE ENROLLMENT! YOU ARE HEREBY FURTHER NOTIFIED THAT IF THE STATE BAR COURT FINDS, PURSUANT TO BUSINESS AND PROFESSIONS CODE SECTION 6007(c), THAT YOUR CONDUCT POSES A SUBSTANTIAL THREAT OF HARM TO THE INTERESTS OF YOUR CLIENTS OR TO THE PUBLIC, THAT YOU MAY BE INVOLUNTARILY ENROLLED AS AN INACTIVE MEMBER OF THE STATE BAR. YOUR INACTIVE ENROLLMENT WOULD BE IN ADDITION TO ANY DISCIPLINE RECOMMENDED BY THE COURT, SEE RULE 101(c}, RULES OF PROCEDURE OF THE STATE BAR OF CALIFORNIA, NOTICE - COST ASSESSMENT! IN THE EVENT THESE PROCEDURES RESULT IN PUBLIC DISCIPLINE, YOU MAY BE SUBJECT TO THE PAYMENT OF COSTS INCURRED BY THE STATE BAR IN THE INVESTIGATION, HEARING AND REVIEW OF THIS MATTER FURSUANT TO BUSINESS AND PROFESSIONS CODE SECTION 6086.10. SEE RULE 280, RULES OF PROCEDURE OF THE STATE BAR OF CALIFORNIA. Respectfully submitted, THE STATE BAR OF CALIFORNIA OFFICE OF THE CHIEF TRIAL COUNSEL Datea: Apr 200210 1 12 13 14 15 16 a7 18 19 20 a1 22 23 24 25 DECLARATION OF SERVICE BY CERTIFIED MAIL CASE NUMBER: 01-0-02625 I, the undersigned, over the age of eighteen (18) years, whose business address and place of employment is the State Bar of California, 1149 South Hill Strect, Los Angeles, California 90015, declare that I am not a party to the within action; that I am readily familiar with the State Bar of California's practice for collection and processing of correspondence for mailing with the United States Postal Service; that in the ordinary course of the State Bar of California's practice, correspondence collected and processed by the State Bar of California would be deposited with the United States Postal Service that same day; that I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date on the envelope or package is more than one day after date of deposit for mailing contained in the affidavit. That in accordance with the practice of the State Bar of California for collection and processing of mail, I deposited or placed for collection and mailing in the City and County of Los Angeles, on the date shown below, a true copy of the within NOTICE OF DISCIPLINARY CHARGES in a sealed envelope placed for collection and mailing as certified mail, return receipt requested, Article No.: 7160 3901 9844 5999 5319, at Los Angeles, on the date shown below, addressed to: Duane R. Folke 3450 Wilshire Bivd., #108-17 Los Angeles, CA 90010-2208 in an inter-office mail facility regularly maintained by the State Bar of California addressed to: N/A I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California, on the date shown below. DATED: Yiacloa_ SIGNED: Ta Carolyn ya Declarant“The document to which tis certificate is affixed isa full, true and correct copy ofthe original on file and of record inthe State Bar Court, ATTEST__ September 4.2019 _ State Bar Cour, State Bar of California, Los Angeles 8y See ee am(State Bar Court Case No. 99-O-10837; 00-0-11518; 00-O-12124; 00-0-12776; 0-0-1310; 00-0-14694) $102789 SUPREME COURT FILED IN THE SUPREME COURT OF CALIFORNIA MAR - 4.2002 EN BANC Frederiok K. Ohitich Clerk BERIT IN RE DUANE R. FOLKE ON DISCIPLINE Itis ordered that DUANE R. FOLKE, State Bar No. 137341, be suspended from the practice of law for two years and until he has shown proof satisfactory to the State Bar Court of his rehabilitation, fitness to practice and learning and ability in the general law pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct, that execution of suspension be stayed, and that he be placed on probation for two years on condition that he be actually suspended for 30 days. Respondent is also ordered to comply with the other conditions of probation, including restitution, recommended by the Hearing Department of the State Bar Court in its order approving stipulation filed September 18, 2001, as modified by its order filed November 6, 2001. It is further ordered that he take and pass the Multistate Professional Responsibility Examination within one year after the effective date of this order. (See Segretti v. State Bar (1976) 15 Cal.3d 878, 891, fa. 8.) Costs are awarded to the State Bar and one-third of said costs shall be added to and become part of the membership fees for the years 2003, 2004 and 2005. (Business & Professions Code section 6086.10.) Chief Jpafice keoag* 031 977 IOUTCer ane en 10 ul 12 13 14 15 16 7 18 19 20 2 22 23 24 25 26 7 28 si Re couRT FRICE THE STATE BAR COURT oes ANGELES HEARING DEPARTMENT - LOS ANGELES In the Matter of Case Nos. 99-0-10837-PAB DUANE R. FOLKE, Member No. 137341, } A Member of the State Bar. } MOIRA TION ORDER! TO ALL PARTIES AND COUNSEL IN THE ABOVE ENTITLED MATTER: On the Court’s own motion, the parties” stipulation and order approving same filed on September 18, 2001, are amended to recommend payment of disciplinary costs be paid in equal amounts prior to February 1 for the years 2003, 2004 and 2005 because the Supreme Court’s order in this matter will probably not be effective until after February 1, 2002, Accordingly, the year “2002" on page lof the stipulation shall be deleted and “2005” shall be inserted. The parties have 15 days from the date of service of this order to file any objections thereto, Ifno objections are timely filed, the Clerk of the State Bar Court is ordered to transmit the record to the California Supreme Court, Dated: November, 2001 ewig ® oat 977 181 MIANCERTIFICATE OF SERVICE [Rule 62(b), Rules Proc.; Code Civ. Proc., § 1013a(4)] Tam a Case Administrator of the State Bar Court. 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 November 6, 2001, I deposited a true copy of the following document(s): MODIFICATION ORDER, filed November 6, 2001 in a sealed envelope for collection and mailing on that date as follows: [X]__ by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, Califomia, addressed as follows: DUANE R FOLKE ESQ 3700 WILSHIRE BLVD #457 LOS ANGELES, CA 90010 [X] _ by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows: Shari Sveningson, Enforcement, Los Angeles Thereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 6, 2001 State Bar Court Cerio Seis pt‘ Slote Bar Court of the State Bar of California ” Heating De tment O LosAngels O & ron ORIGINAL Counsel for the State Bar [Core number(s) tr pore ED THE STATE BAR OF CALIFORNIA OFFICE OF THE CHIEF TRIAL COUNSEL Mee ENFORCEMENT SHARI SVENINGSON, BAR NO. 195298 1149 So. Hill Street SEP 18 2001 Los Angeles, CA 90015-2299 yas pan count Telephone: (213) 765-1000 00-0-14694 “Lents OF ICE ‘Counsel for Respondent PUBLIC MATTER DUANE R. FOLKE 3700 Wilshire Blvd., #457 Los Angeles, CA 90010 Telephone (213) 674-0764 sewing ® i 977 182 Submited to [B assigned judge 0 settlement judge STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING. ACTUAL SUSPENSION IN PROPRIA PERSONA {in the Matter of DUANE R. FOLKE par = 137341 A Member of te sete Bo Soto (PREVIOUS STIPULATION REJECTED A. Parties’ Acknowledgments: (1) Respondent Is a member of the State Bar of California, admitted Decenber, (date) {2) The parties agree to be bound by the factual stipulations contained herein even It conclusions of law or disposition are rejected or changed by the Supreme Court. (3) Al investigations of proceedings listed by case number in the caption of this stipulation, are entirely resolved by this stipulation and are deemed consol sea. e, Canied chi ayisqno gfe listed uncer “Dismissals.” The stipulation and order consist of Ta. S3¢ if (4) statement of acts or omissions acknowledged by tele 98 couse oF, gquses for discipline Is included under “Facts.” (5) Conclusions of law, drawn from and specifically reterting fo the facts are also ‘eluded under “Conclusions of Law." £ 1988 (6) No more than 30 days prior to the filing of this stipulation, Respondent has been advised in wiling of any pending investigation/proceeding no! resolved by this stipulation, except for criminal investigations. (7) Payment of Disciplinary Costs—Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only): C_unfil costs are paid in full, Respondent will remain actually suspended from the practice of law unless tellet Is obtained per rule 284, Rules of Procedure. costs fo be paid in equal amounts prior to February 1 for the following membership years: 2002, 2003 and 2004 arcship, special circumstances or oMher good cause per Tule 264, Riles of Woceayrey | |. | costs-walved in part as set forth under “Parfial Waiver of Costs i D CO _ costs entirely waived . Note: Allinfrmation required hy this frm and any aditional information which cannot be provide in the pase provided text component of this stipulation under specific headings, i.e. “Facts,” “Dismissals,” “Conclusions of Law.” ” . {Stipulation form approved by SBC Executive Committee 10/16/00} 1 ‘Actual Suspension“B. Aggravating Circumstances [for nition, see Standards for Atforney Sai__oné for Professional Misconduct, standard 1.2(b).) Facts supporting aggravating circumstances are required. a) (2) (3) (4) 6) (6) m (8) 1 Prior record of ciscipline [see standard 1.2(f] {a) (b) (e) Cc) {e) o o 1D State Bar Court case # of prior case 0 date prior discipline effective Rules of Professional Conduct State Bar Act violations 1 degree of prior discipline 1 If Respondent has two or more Incidents of prior discipline, use space provided below or under “Prior Discipline”. Dishonesty: Respondent's misconduct was surrounded by of followed by bad falth, dishonesty, concealment, overreaching or other violations of the Stale Bar Act or Rules of Professional Conduct. Trust Violation: Trust funds of property were Involved and Respondent refuted or. was unable to account fo the client or person who was the object of the misconduct for Improper:condiict foward sald funds or property. Seats Harn: Respondents misconduct harmed significantty a client, the public or the administration of justice. Indifference: Respondent demonstrated incifference toward rectification of t ctonement for the consequences of his or her misconduct, 1 Lack of Cooperation: Respondent displayed a lack of candor and cooperation fo victims of his/her misconduct or to the State Bar during disciplinary investigation or proceedings. Multiple/Patiem of Misconduct: Respondents current misconduct evidences multiple acts of wiong- doing or demonstrates a pattem of misconduct. No aggravating circumstances are involved. Additional aggravating citoumstances: {Stpulotion form approved by SBC Executive Commitee 10/16/00} ‘Actual Suspension 2. Mitigating Circumstances [see dard 1.2(e),) Facts supporting mitiga, J circumstances are required. (1) No Prior Discipline: Respondent has no prior tecord of discipline over many years of practicecemsepises: yetheesentonisaandunt whic lecisk tee RRs yeeiouE (2) 0 NoHarm: Respondent did not harm the client or person who was the object of the misconduct. (3) Candor/Cooperation: Respondent displayed spontaneous candor and cooperation to the victims of his/her misconduct and to the State Bar during disciplinary Investigation and proceedings. (4) 0 Remorse: Respondent promptly took objective steps spontaneously demonstrating remorse and recognition of the wrongdoing, which steps were designed to timely atone for any consequences of his/her misconduct. (5) G Resiitution: Respondent paid $ on in restitution to ‘without the threat or force of disciplinary, civil of criminal proceedings. (6) 0 Delay: These disciplinary proceedings were excessively delayed. The delay Is not attributable to Respondent and the delay prejudiced him/her. (7) © Good Fath: Respondent acted in good faith. (8) 0 EmotionavPhysical Difficulties: At the time of the stipulated act or acts of professional misconduct Respondent suffered extreme emotional difficulties or physical disabilities which expert testimony would establish was ditectly responsible for the misconduct. The difficulties ot disabilities were not the product of any Illegal conduct by the member, such as illegal drug or substance abuse, and Respondent no longer sutters from such difficulties or disabilities. (9) 0 Severe Financial Sttess: At the time of the misconduct, Respondent sutfered from severe financial stress which resulted from circumstances not reasonably foreseeable or which were beyond his/her control and which were directly responsible for the misconduct, (10) C Family Problems: At the time of the misconduct, Respondent suffered extreme difficulties in his/her personal life which were other than emotional ot physical in nature. (11) 0 Good Choracter: Respondents good character Is attested to by a wide range of references in the legal and general communities who are aware of the full extent of his/her misconduct. (12) 0 Rehabilitation: Considerable time has passed since the acts of professional misconduct occured followed by convincing proot of subsequent rehabilitation. (13) 0 No mitigating cltcumstances are Involved. Additional mitigating circumstances: Respondent issued. checks against NSF and failed to maintain a positive balance in his client trust account due to his mistaken belief that certain checks he had deposited from other clients would be honored by the bank. Dieta tn apne by 88 Ewcuve Corimitew YoneDO) ‘Actual Suspension© pe disexbing j 1,. Stayed Suspension. ‘A. Respondent shall be suspended trom the practice of law for a period of __two (2) years © L._ and until Respondent shows proof satisfactory fo the State Bar Court of rehabilitation and present fliness to practice and present leatning and ability in the law pursuant to standard 1.4(c)(i), Standards for Attorney Sanctions for Professional Misconduct ik Gnd until Respondent pays restitution to [payee(s)] (or the Client Security Fund, If appropriate), In the amount of plus 10% per annum accruing trom Gnd provides proof thereof fo the Probation Unit, Office of the Chief Wal Counsel Di. and unfil Respondent does the following: B, The above-referenced suspension shall be stayed. 2. Probation. Respondent shall be placed on probation for a period of two_(2) years which shall commence upon the effective date of the Supreme Court order herein, (See tule 953, California Rules of Court.) Actual Suspension. ‘A. Respondent shall be actually suspended from the practice of law In the State of California tor a period of _ thirty (30) dave 1D. |. and until Respondent shows proof salistactory to the State Bar Court of rehabilitation and Present fitness fo practice and present learning and ability In the law pursuant to standard 1.4(c)(i), Standards for Attorney Sanctions for Professional Misconduct fi. and until Respondent pays restitution to Ipayee(s)} (oF the Client Security Fund, if appropriate), in the amount of plus 10% per annum accruing trom ‘ ‘and provides proof thereof to the Probation Unit, Office of the Chief Wal Counsel 0 fi, and until Respondent does the following: E, Adaltional Conditions of Probation: a (2) @) (4) 1D It Respondent is actually suspended for two years or mote, he/she shall remain actually suspended until he/she proves to the Slale Bar Court hishher rehabillation, fiiness fo practice, and leaming and ability in general law, pursuant fo standard 1.4(c}fi), Standards for Atlomey Sanctions for Professional Misconduct, 12 During the probation period, Respondent shall comply with the provisions of the Stale Bar Act and Rules of Professional Conduct. 1 Within fen (10) days of any change, Respondent shall report fo the Membership Records Office of the State Bat and to the Probation Unit, all changes of Information, Including current office address and telephone number, or other address for State Bar purposes, as prescribed by section 6002.1 of the Business and Professions Code. ® Respondent shall submit writien quarterly reports fo the Probation Unit on each January 10, April 10, July 10, and October 10 of the period of probation, Under penalty of perjury, respondent shall slate whether respondent has complied with the State Bar Act, the Rules of Professional Conduct, and all (stipulation form approved by $8C Executive Committee 10/16/00) ‘Actual suspension 4‘conditions of probation d ag the preceding calendar quarter, |i» first report would cover less than 30 days, that report shall be submitted on the next quarter date, and cover the extended petlod. In addition fo all quarterly reports, a final report, containing the same information, is due no earlier than twenty (20) days before the las! day of the period of probation and no later than the last day of probation. (5) 0 Respondent shall be assigned a probation monitor. Respondent shall prompily review the terms and conditions of probation with the probation monitor to establish a manner and schedule of compli- ance. During the period of probation, respondent shall furnish to the monitor such reports as may be requested, In adcilion fo the quarterly reports required to be submitted fo the Probation Unit. Re- spondent shall cooperate fully with the probation monitor. (6) @ Subject to assertion of applicable privileges, Respondent shall answer fully, promptly and truthfully ‘any inquiries of the Probation Unit of the Office of the Chief ial Counsel and any probation monitor assigned under these conciifions which are directed to Respondent personally of in writing relating to whether Respondent Is complying ot has complied with the probation conditions, (7) @ Within one (1) year of the effective date of the discipline herein, respondent shall provide fo the Probation Unit satlstactory proof of attendance at a session of the Ethics School, and passage of the test given at the end of that session, 1D No Ethies Schoo! recommended. (8) 0 Respondent shall comply with all concifons of probation imposed in the undetlying criminal matter ‘and shall so declare under penally of perjury In conjunction with any quarterly report fo be filed with the Probation Unit. (9) @ The following conditions are attached hereto and incorporated: 1 Substance Abuse Conditions o Law Office Management Conditions Medical Conditions @ Financial Conditions 544 (08 a. (10) 0 Other conditions negotiated by the parties: 1% Multistate Professional Responsibillly Examination: Respondent shall provide proot of passage of the ‘Multistate Professional Responsibility Examination ("MPRE"), administered by the National Conference of Bar Examiners, fo the Probation Unit of the Office of the Chief Tic! Counsel duting the petiod of ‘actual suspension or within one year, whichever period Is longer. Fallure to pass the MPRE results in actual suspension without further hearing until passage. But see rule 951(b), California Rules of Court, and rule 321(a}(1) & (¢), Rules of Procedure. (No MPRE recommended. 1D Rille 955, California Rules of Court: Respondent shall comply with the provisions of subdivisions (a) and (c) of rule 955, California Rules of Court, within 30 and 40 days, respectively, from the effective date of the Supreme Court order herein. 1 Condifional Rule 955, California Rules of Court if Respondent remains actually suspended for 90 days or mote, he/she.shall comply with the provisions of subdivisions (a) and (c} of rule 955, Califomia Rules of Court, within 120 and 130 days, respectively, from the effective date of the Supreme Court order herein. (D_—Credit for Interim Suspension [conviction referral cases only]: Respondent shall be ctediiled for the period of hisiher interim suspension toward the stipulated period of actual suspension (tiiton form approved by SHC Executve Commits 10/6/00) ‘Actual SuspensionATTACHMENT TO STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION IN THE MATTER OF: Duane R. Folke CASE NUMBER(S): 99-0-10837, 00-0-12776, 00-0-14694, 00-0- 11518, 00-0-12124, 00-0-13310 FACTS AND CONCLUSIONS OF LAW. JURISDICTION 1. Duane R. Folke ("Respondent") was admitted to the practice of law in the State of California on December 7, 1988, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California. COUNT ONE Case No. 99-0-10837 Rules of Professional Conduct, rule 3-700(D)(2) [Failure to Refund Unearned Fees} 2. Respondent wilfully violated Rules of Professional Conduct, rule 3-700(D)(2), by failing to refund promptly any part of a fee paid in advance that has not been earned, as follows: 6 Page # Attachment Page 13. On or about July 22, 1998, James Robinson (‘Robinson Jr.”) employed Respondent to represent him on a capital appeal matter. Because Robinson Jr. was incarcerated, his mother, Vesta Robinson (“Robinson”) had previously contacted Respondent regarding her son’s need for an attorney. On or about July 24, 1998, Robinson paid Respondent $6,000 in advanced fees for his services on behalf of her son. 4. Ina fee agreement dated July 22, 1998, Robinson agreed to pay Respondent a total of $101,000. In a subsequent fee agreement also dated July 22, 1998, both Robinson and Robinson Jr. agreed to pay Respondent a total, of $200,000. From discussions with Respondent it was understood by Robinson and Robinson Jr. that Respondent would apply to the Supreme Court Monitor to get appointed by the State of California to represent Robinson Jr. Once Respondent got appointed by the state, Robinson and Robinson Jr. believed they would be reimbursed the money they had paid Respondent either by Respondent himself or by the State of California. 5. Onor about Oct. 6, 1998, Robinson Jr. (who resides in prison) wrote a letter to Respondent. Robinson Jr. sent a letter stating that he could no longer wait for Respondent to initiate correspondence. Robinson Jr. wanted to know more about how Respondent planned to handle his case and suggested what days would be best for Respondent to visit him. Respondent did not respond to this letter. 6. On or about Sept. 30, 1998, Robinson Jr. sent another letter to Respondent. He informed Respondent that the Canadian Coalition Against the Death Penalty had offered to give him free assistance and a website. Robinson Jr. asked Respondent for advice as to what to put on the website. Respondent did not respond to this letter. Page # Attachment Page 27. On or about Oct.6, 1998, Robinson Jr. sent a letter to Respondent. Robinson Jr. wrote that he would like to be able to call Respondent. Robinson Jr. had a few numbers for Respondent but no one ever answered when he called Respondent. Robinson Jr. requested that Respondent send him his telephone number. Respondent did not respond to this letter. 8. On or about Nov. 18, 1998, Robinson Jr. wrote a letter to Respondent. Robinson Jr. informed him that he had learned Amnesty International and the United Nation give grants to lawyers who represent people on death row. Robinson Jr. requested that Respondent visit him so that they could talk about his case. Respondent did not respond to this letter. 9. Onor about Feb. 18, 1999, Robinson Jr. terminated the services of Respondent. In a letter to Respondent dated Feb. 18, 1999, Robinson Jr, authorized Robinson to seize all transcripts relating to his case from Respondent. Robinson Jr. also requested that Respondent immediately turn over all documents to his mother (Robinson). 10. As of March 1, 1999, Respondent was not appointed to any panel of the California Supreme Court for appointment to a death penalty appeal. It is necessary to be appointed to a panel in order to receive money from the state for representing a defendant on death row. Also, death row inmates must be deemed eligible to be appointed an attorney from the state. One criteria is that the defendant must be considered indigent. 11. On or about March 8, 1999, Robinson demanded a refund of the $6,000 she had paid to Respondent due to the fact Robinson Jr. had already terminated Respondent's services. 12, On or about March 10, 1999, Emery Allen, Chief Attorney of the Office of the State Public Defender (OSPD) wrote a letter to Respondent that 8 Page # Attachment Page 3confirmed their telephone conversation of March 8, 1999. The letter informed Respondent that the OSPD had been appointed to represent Robinson Jr. The letter also demanded Respondent to turn over all transcripts, court files, exhibits and any other information relating to Robinson Jr. immediately. 13. On or about April 7, 1999, Robinson hired Ronald Smith, Esq.(‘Smith’) to assist her in obtaining a refund of the fees she had paid Respondent. 14. On or about April 15, 1999, Robert Reichman, the Automatic Appeals Monitor, sent a letter to Respondent acknowledging that Respondent had submitted an application for appointment to a death penalty appeal proceeding, Prior to submitting the application, Respondent had been advised by Robert Reichman to refund any money Robinson had paid him for the representation of Robinson Jr. since the purpose of applying for an appointment is to get paid by the state. Respondent refused to follow this advice and did not refund any money to Robinson prior to submitting his application to the California Supreme Court Monitor. 15. On or about May 19, 1999, Robinson took Respondent to fee arbitration with the Beverly Hills Bar Association because she and Respondent had not yet resolved the dispute regarding the fees. 16. On or about June 29, 1999, Respondent submitted a revised billing statement (of the work he had done while representing Robinson Jr.) to the arbitrator in the fee dispute between Respondent and Robinson. The billing statement includes 6 hours for viewing an instructional video tape, 2 hours for time spent applying to the Supreme Court Monitor and at least 80 hours spent reviewing the transcripts of the trial that led to the appeal for which Respondent was hired to represent Robinson Jr. 17. On or about Aug. 9, 1999, the arbitrator found that the Page # Attachment Page 4value of Respondent's service was zero and awarded Robinson the full $6,000. 18. Onor about Nov. 9, 1999, Smith filed a Petition to Confirm Arbitration Award in the Beverly Hills Municipal Court. 19. On or about Dec. 23, 1999, judgement was entered against Respondent in the amount of $6,000 plus $2,065 for Smith’s legal fees in the Beverly Hills Municipal Court. 20. On or about May 27, 2000, Respondent paid $500 to Smith as a first payment toward the arbitration award. On or about August 17, 2000, Respondent paid $250 to Smith and on or about Nov. 17, 2000, Respondent paid an additional $250 to Smith, On June 8, 2001, Respondent paid $1,000 to Smith towards the arbitration award. Respondent has not paid any more money towards the arbitration award. Legal lusion 21. By not refunding the full $6,000 arbitration award confirmed by the judgement, Respondent failed to refund uneamed fees in wilful violation of Rules of Professional Conduct, Rule 3-700(D)(2). COUNT TWO Case No. 00-0-12776 Business and Professions Code, section 6068(m) [Failure to Respond to Client Inquiries] 22. Respondent wilfully violated Business and Professions Code, section 6068(m), by failing to respond promptly to reasonable status inquiries of a client, follows: 23. On or about Dec. 23, 1997, Sharon L. Gooch (“Gooch”) employed Respondent to represent Gooch as a plaintiff in an employment discrimination matter. 16 _ Page # Attachment Page 524. On or about Aug. 10, 1999, an order was entered in the United States District Court entitled: Order Granting Defendant's Motion for Summary Judgement in Sharon Gooch vs. State Compensation Insurance Fund. 25. On or about Aug. 10, 1999, Gooch paid Respondent $2,500 in advance fees to represent her to appeal the judgement in Sharon Gooch vs. State Compensation Insurance Fund, There was no written fee agreement for the appeal portion of the case. 26. On or about Aug. 13, 1999, Respondent filed a Notice of Appeal in Sharon Gooch vs. State Compensation Insurance Fund in the United States District Court Central District of California. 27. On or about Aug. 13, 1999, Respondent filed a Transcript Designation and Ordering Form for the trial of Sharon Gooch vs. State Compensation Insurance Fund in the United States District Court Central District of California. It was necessary for Respondent to obtain transcripts of the Summary Judgement hearing in order for Respondent to file an opening brief for the appeal. 28. On or about Sept. 13, 1999, Gooch paid Respondent $500 for additional fees to represent her for the appeal and $105 for the filing fee. 29. On or about Dec. 31, 1999, Gooch paid Respondent an additional $350 to represent her for the appeal. 30. On or about Jan. 18, 2000, an order to dismiss the appeal in Sharon Gooch vs. State Compensation Insurance Fund was filed in the United States District Court of Appeals for the Ninth District for failure to prosecute. 31. On or about Feb. 9, 2000, Gooch paid Respondent an additional $500 to represent her for the appeal. vat # Attachment Page 632. In or about Feb. 2000, Respondent informed Gooch that the appeal had been denied due to Respondent's unsuccessful attempt to obtain transcripts of the Summary Judgment hearing. Respondent also informed Gooch that he would file for an extension of the appeal. 33. On or about May 26, 2000, Gooch sent a letter to Respondent stating that she had made many attempts to contact Respondent regarding the status of her appeal. She requested Respondent to contact her by mail or phone. Respondent did not respond to any of Gooch’s inquiries. 34. On or about July 10, 2000, Gooch sent a letter to the State Bar stating the Respondent has failed to return her telephone calls and failed to respond to her letter of May 26, 2000. 35. On or about Oct. 17, 2000, Gooch sent a letter to Respondent. In the letter, Gooch requested that Respondent provide her with written communication as to the status of her appeal. Respondent did not respond. 36. On or about Jan. 12, 2001, Gooch sent a letter to Respondent. In the letter Gooch requested that Respondent provide her written notice of the status of her appeal, an accounting of the moncy she had paid him to represent her on the appeal, the location of all the files, documents & audiotapes that were used for the underlying trial. This letter was returned to Gooch by the Post Office as “unclaimed”. 37. On or about February 14, 2001, Gooch discovered that Respondent's telephone number was disconnected after one of her many attempts to contact him at his office telephone number. Legal Conclusion 38. By never responding to Gooch’s telephone calls and letters since —b_ Page # Attachment Page 7Feb. 2000 and by not providing a current address and telephone number to his client, Respondent failed to respond to Gooch’s reasonable status inquiries in wilful violation of Business and Professions Code, section 6068(m).. COUNT THREE Case No. 00-0-12776 Rules of Professional Conduct, rule 3-110(A) [Failure to Perform with Competence] 39. Respondent wilfully violated Rules of Professional Conduct, rule 3- 110(A), by intentionally, recklessly, or repeatedly failing to perform legal services with competence, as follows: 40. The allegations of paragraphs 23 through 36 are incorporated by reference. 41. Respondent did not obtain the transcripts of the Summary Judgement hearing because he submitted the request form to a court clerk that was not assigned to the Sharon Gooch vs. State Compensation Insurance Fund case. 42. The court clerk who received Respondent's request for the transcripts attempted to call Respondent at his office but the telephone number was disconnected. 43. At no time did Respondent successfully obtain the transcripts of the Summary Judgement hearing. 44. At no time did Respondent file for an extension of the appeal. 45. On or about Jan. 18, 2000, an order to dismiss the appeal in Sharon Gooch vs. State Compensation Insurance Fund was filed in the United States District Court of Appeals for the Ninth District for failure to Page # Attachment Page @prosecute. 46. Except for one unsuccessful attempt to obtain transcripts of the Summary Judgement hearing, Respondent has failed to perform any legal services on the appeal of Sharon Gooch vs. State Compensation Insurance Fund since Feb. 2000. Legal Conclusion 47. _ By performing virtually no legal services for Gooch on the appeal, Respondent intentionally, recklessly or repeatedly failed to perform legal service with competence in wilful violation of Rules of Professional Conduct, rule 3-110(A). COUNT FOUR Case No. 00-0-11518 Rules of Professional Conduct, rule 4-100(A) [Failure to Maintain Client Funds in Trust Account] 48. Respondent wilfully violated Rules of Professional Conduct, rule 4- 100(A), by failing to maintain the balance of funds received for the benefit of a client and deposited in a bank account labeled “Trust Account," "Client's Funds Account” or words of similar import, as follows: 49. From at least July 23, 1998 to until at least August 2, 2000, Respondent maintained client trust account, no, 0851-048918 at Wells Fargo Bank (“the Wells Fargo trust account’). 50. Between on or about July 23, 1998, and September 30, 2000, the balance in the Wells Fargo Trust account fell into a negative balance on repeated dates, including, but not limited to, the following: DATE BALANCE 7/23/98 $-122.30 Page # Attachment Page 97/24/98 $-137.30 7/30/98 $-887.30 9/15/98 $-339.30 9/24/98 $-404.30 1/5/99 $-496.66 4/18/99 $-174.81 9/9/99 $991.34 10/26/99 $-38.42 10/27/99 $-69.42 12/27/99 $-59.84 12/28/99 $-98.84 12/29/99 $-120.84 1/11/00 $-438.42 1/27/00 $-798.42 2/1/00 $-798.42 2/4/00 $-718.42 3/3/00 $-182.42 3/6/00 $-204.42 3/22/00 . $-464.42 4/1/00 $-464.42 7/19/00 $-973.13 8/2/00 $-973.13 9/1/00 $-973.13 9/30/00 $-973.13 51. Between on or about July 23, 1998, and March 3, 2000, Wells —_s Page # Attachment Page 10Fargo Bank paid the following checks that Respondent had issued from the Wells Fargo Trust Account due to insufficient funds: CHECK NO. CHECK AMOUNT S) COO) E 11569 $400 7/23/98 $-122.30 11871 $1,625 9/15/98 $-339.30 11618 $180 4/15/98 $174.81 11657 $100 12/27/99 $ 59.84 11663 $120 12/27/99 $- 59.84 11696 $23 12/28/99 $- 98.84 11699 $85.58 1/11/00 $-438.32 11709 $220 3/3/00 $-464.12 Legal Conclusion 52. By not maintaining a positive balance and by issuing checks drawn upon the Wells Fargo Trust account when Respondent should have known there were inisuflicient funds, Respondent wilfully failed to properly maintain his client trust account and protect client funds in wilful violation of Rules of Professional Conduct, rule 4-100(A). count Case No. 00-0-12124 Rules of Professional Conduct, rule 4-100(A) [Failure to Maintain Client Funds in Trust Account] The parties have requested that this count be dismissed in the interest of justice. See page @Q.!9. g. le Page # Attachment Page 11COUNT EIGHT Case No. 00-0-13310 Rules of Professional Conduct, rile 4-100(A) [Failure to Maintain Client Funds in Trust Account] The parties have requested that this count be dismissed in the interest of justice. See page @ \V- COUNT NINE Case No. 00-0-14694 Rules of Professional Conduct, rule 4-100(B)(3) [Failure to Render Accounts of Client Funds] The parties have requested that this count be dismissed in the interest of justice. See page GW |%- COUNT TEN Case No. 00-0-14694 Rules of Professional Conduct, rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] ‘The parties have requested that this count be dismissed in the interest of justice. See page @. 0. COUNT ELEVEN Case No.00-O- 14694 Rules of Professional Conduct, rule 4-100(A) Page # Attachment Page 12[Failure to Maintain Client Funds in Trust Account] ‘The parties have requested that this count be dismissed in the interest of justice. See page @ 30 S COUNT TWELVE Case No. 00-0-14694 Business and Professions Code, section 6068(m) {Failure to Respond to Client Inquiries] The parties have requgsted that this count be dismissed in the interest of justice. See page @@ 2% ‘S COUNT TI Case No. 00-0-14694 Rules of Professional Conduct, rule 3-110(A) [Failure to Perform with Competence] ‘The parties have reaygpted that this count be dismissed in the interest of justice. See page@a. 9. COUNT FOURTEEN Case No. 00-0-14694 Business and Professions Code, section 6103 [Failure to Obey a Court Order] The parties have requested that this count be dismissed in the interest of justice. See page 2 Dd B Page # Attachment Page 13cou! Case No, 00-0-14694 Business and Professions Code, section 6068(i) [Failure to Cooperate in State Bar investigation] ‘The parties have requested that this count be dismissed in the interest of justice. See page fg. Do. x PENDING PROCEEDINGS. The disclosure date referred to, on page one, paragraph A.(6), was by letter dated August 17, 2001. DISMISSALS The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice: Case No. Count Alleged Violation 00-0-12124 SEVEN Rule 4-100(A) of the Rules of Professional Conduct [Failure to maintain funds in a client trust account] 00-0-13310 EIGHT Rule 4-100(A) of the Rules of Professional Conduct [Failure to Maintain Client Funds in a Trust Account] 00-0-14694 NINE Rule 4-100(B)(3) of the Rules of Professional Conduct [Failure to render accounts of Page # Attachment Page 14client funds] 00-0-14694 TEN Rule 4-100(B)(4) of the Rules of Professional Conduct [Failure pay client funds promptly] 00-0-14694 ELEVEN Rule 4-100(A) of the Rules of Professional Conduct (Failure to maintain funds in a client trust account] 00-0-14694 TWELVE Business & Professions Code, section 6068(m) [Failure to respond to client inquiries} 00-0-14694 THIRTEEN Rule 3-110(A) of the Rules of Professional Conduct [Failure to perform with competence] 00-0-14694 FOURTEEN Business & Professions Code, section 6103 (Failure to obey court order] 00-0-14694 FIFTEEN Business & Professions Code, section 6068(i) [Failure to cooperate in State Bar investigation] COSTS OF DISCIPLINARY PROCEEDINGS. Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of July 10, 2001, the estimated prosecution costs in this 20 Page # Attachment Page 15matter are approximately $3,200. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings. FINANCIAL CONDITIONS, RESTITUTION (1) Within 2 years from the effective date of discipline in this matter, respondent must make restitution to Vesta Robinson or the Client Security Fund if it has. paid, in the principal amount of $7,224 (this amount includes principal, legal fees and accrued interest as of June 9, 2001) plus interest at the rate of 10% per annum from June 9, 2001 in monthly installments of at least $400 and furnish satisfactory evidence of restitution to the Probation Unit. Respondent must complete paying all restitution including accrued interest no later than 24 months after the effective date of discipline. The requirement that Respondent complete restitution within 2 years may require him to pay a final lump sum of an amount greater than $400, Respondent shall include in each quarterly report required herein satisfactory evidence of all restitution payments made by him or her during that reporting period. FINANCIAL CONDITIONS, RESTITUTION (2) Within 2 years from the effective date of discipline in this matter, respondent must make restitution to Sharon Gooch or the Client Security Fund if it has paid, in the principal amount of $3,955 plus interest at the rate of 10% per annum from August 10, 1999 in monthly installments of at least $230 until paid in full and furnish satisfactory evidence of such restitution to the Probation Unit. —al__ Page # Attachment Page 16Respondent must complete paying all restitution including accrued interest no later than 24 months after the effective date of discipline. The requirement that Respondent complete restitution within 2 years may require him to pay a final lump sum of an amount greater than $230. Respondent shall include in each quarterly report required herein satisfactory evidence of all restitution payments made by him or her during that reporting period. AUTHORITIES SUPPORTING DISCIPLINE Standards 1.3, 1.4(c)(ii), 1.4(c)(ii), 1.5{a), 1.5(b), 1.5(4), 1.6(b)(ii), 2.4(b), of the Standards for Attorney Sanctions for Professional Misconduct, Title IV of the Rules of Procedure of the State Bar of California. In the Matter of McKiernan (1995) 3 Cal. State Bar Ct. Rptr. 420: Respondent received 90 days actual suspension for misconduct involving neglect of his client trust account, which included issuing 2 checks from it against NSF funds. When issuing the checks, Mckiernan had relied on the receipt of checks he had deposited into the account. It was found that Respondent was at least grossly negligent when he issued the checks before he had adequate funds in the account to allow them to be honored. RESTRICTIONS WHILE ON ACTUAL SUSPENSION 1. During the period of actual suspension, respondent shall not: a. Render legal consultation or advice to the client; b. Appear on behalf of a client in any hearing or proceeding or before 22 Page # Attachment Page 17e E any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner or hearing officer; Appear as a representative of a client at a deposition or other discovery matter; Negotiate or transact any matter for or on behalf of a client with third parties; Receive, disburse, or otherwise handle a client's funds; or Engage in activities which constitute the practice of law. 2. Respondent shall declare under penalty of perjury that he or she has complied with this provision in any quarterly report required to be filed with the Probation Unit, pertaining to periods in which the respondent was actually suspended from the practice of law. Page # Attachment Page 18Yor ee sao Hatin DouNe R. Pouxe Liss ate’ fens dignatire™ Prin name Date Retpondents Counsel ignahire Bilt name Giz-ol Tee Fewrrge— SHARI_SVENINGSON wie ae Ferman ORDER Finding the stipulation to be fair fo the parties and that It adequately protects the public, ITIS ORDERED that the requested dismissal of counts/charges, if any, is GRANTED without prejudice, and: a The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court. Q The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED fo the Supreme Court, The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modity the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation, (See rule 135(b), Rules of Procedure.) The effective date of this disposition Is the effective date of the Supreme Court order herein, normally 30 days after file date, (See rule 953(a), Colifomia Rules of Court) ins Tub ayadagr (tbls fom approved by 386 Execuve Commitee 1922/97) 24 susperslonesaton Von signature Page PageCERTIFICATE OF SERVICE [Rule 62(b), Rules Proe.; Code Civ. Proc., § 1013a(4)] 1am a Case Administrator of the State Bar Court. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on September 18, 2001, I deposited a true copy of the following document(s): STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL SUSPENSION, filed September 18, 2001 in a sealed envelope for collection and mailing on that date as follows: [X]___ by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows: DUANE R FOLKE ESQ 3700 WILSHIRE BLVD #457 LOS ANGELES, CA 90010 [X] by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows: SHARI SVENINGSON, Enforcement, Los Angeles T hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 18, 2001. Crit of Service10 1 12 13 14 15 16 a 18 19 20 21 22 23 24 25 26 27 28 DUANE R. FOLKE, ESQ. (STATE BAR #137341) THE LAW OFFICES OF DUANE R. FOLKE FILED 3700 WILSHIRE BOULEVARD, SUITE #457 LOS ANGELES, CALIFORNIA 90010 JUN 14 an (213) 674-0764 TELEPHONE (213) 674-0763 FACSIMILE STATE Bar courr (213) 333-0762 VOICEMAIL/PAGER 7 Tos age ATTORNEYS FOR RESPONDENT DUANE R. FOLKE THE STATE BAR COURT HEARING DEPARTMENT - LOS ANGELES CASE NOS: 99-0-10837, 00-O- 12776, 00-0-13310, 00-0-12124, 00-0-11518, 00-0-14694 \RORMAL RESPONSE IN In the Matter of } } ) . OPPOSITION TO NOTICE OF y 2 2 2 2 ) Duane R. Folke No. 137341 DISCIPLINARY CHARGES AND AFFIRMATIVE DEFENSES. A Member of the State Bar COMES NOW DUANE R. FOLKE, A MEMBER OF THE STATE BAR OF CALIFORNIA, BY AND THROUGH HIS ATTORNEYS THE LAW OFFICES OF DUANE R. FOLKE, AND HEREBY SETS FORTH THIS FORMAL RESPONSE IN OPPOSITION TO THE NOTICE OF DISCIPLINARY CHARGES FILED HEREIN; AND, WITHOUT WAIVING OBJECTION TO THE FILING OF A MOTION TO DISMISS SETS FORTH THE FOLLOWING WRITTEN RESPONSE, AND AFFRIMATIVE DEFENSES AS FOLLOWS: eg * 031 977 185 FORAL RESPONSE 70 NOTICE OF CHARGES a wl tm Ill20 a 12 13 4 15 16 17 18 19 20 aa 22 23 24 25 26 27 28 JURISDICTION 1, Duane R. Folke ("Respondent") herein is admitted to the practice of law in the State of California since December 7, 1998, and at all times pertinent to the charges remains a member in good standing of the State Bar of California; however, it is disputed as to whether there is "jurisdiction" in this matter as "complaint(s)" filed by the underlying individuals have either been "withdrawn"; dismissed, or previously found to be non-meritorious. COUNT ONE 2, Respondent denies that he “willfully” violated Rules of Professional Conduct rule 3-700(D) (2) by failing to refund "promptly" any part of a fee paid in advance that has not been earned, and in an effort to resolve the matter at issue, following a fee arbitration paid a portion of said fees in refund. 3. Respondent worked diligently on the underlying client's matter, and prepared a viable defense but was ultimately not appointed to the matter. INT TWO 3. Respondent denies that he “willfully” violated Business and Professions Code, Section £6068(m) by failing to respond promptly to reasonable status inquiries as the underlying client Sharon Gooch was keep fully appraised of her matter directly; and, through her counsel Mr. Anthony Becks handling a second aspect of her case 4, Issues with respect to the underlying client Ms. Sharon Gooch's appeal are still pending; this, in light of issues of professional negligence by the opposing firm Manatt, Phelps & Philips 5, Furthermore, itis the understanding of respondent, that Ms. Gooch, the underlying client has since "withdrawn" her allegations against respondent thereby removing any jurisdiction concerning formal charges set forth in this petition. ‘T THREE 6. Respondent denies that he “wilfully” violated Rules of Professional Conduct, Rule 3- 110(A) by failing to perform with competence concerning Sharon Gooch vs. State Compensation Fund case as respondent was unable to procure the transcript to be provided with the briefs on appeal and this matter is still at issue in light of pending issue(s) of professional malfeasance by the opposing law firm Manatt, Phelphs & Philips FORML RESPONSE To NOTICE OF cunnces 2ao 10 aa 12 13 a4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUNT FOUR 7. Respondent denies that he “willfully* violated Rules of Professional Conduct, Rule 3- | 700(A)(2), improper withdrawal from employment, as counsel continues to work on Ms. Gooch's matter(s); continues to communicate with counsel handling a part of this matter; and as recently as June 11, 2001, reviewed aspects of this case COUNT FIVE 8. Respondent denies that he “willfully” violated Rules of Professional Conduct, Rule 4- 100(B)(3) as counsel never received any request to render an accounting" to the client, as mail is alleged to have been left "unclaimed" at the U.S. Post Office, but counsel was never sent anything to even be made aware such a request was pending. COUNT SIX 7. Respondent denies that he “willfully” violated Rules of Professional Conduct, Rule 4- 100(A) as counsel's trust account fell into a negative balance because of checks deposited from clients whose items were returned due to insufficient funds, this, with respect to checks that clients provided; not due the act or actions of respondent. COUNT SEVEN 8, Respondent denies that he “willfully” violated Rules of Professional Conduct 4-100(A) as the check number 11716 presented for $1,383.90 was returned because another client, a Ms. Barbara Grady, previously provided a check which was deposited in the same trust account that was dishonored by her bank 9. Immediately, upon learning that said item had been returned, a cashier's check in the amount of $1,383.90. was immediately provided to the client | COUNT EIGHT 10, Respondent denies that he “willfully” violated Rules of Professional Conduct 4-100(A) as a negative balance was registered concerning this account directly because of a client providing a check which was dishonored by their respective bank for insufficient funds. FORIML RESPONSE TO NOTICE OF CHARGES 310 a 12 13 14 15 16 17 18 19 20 22 22 23 24 25 26 27 28 COUNT NINE 11, Respondent denies that he “willfully” violated Rules of Professional Conduct 4-100(B)(3) as the underlying client Mr. Hideo Ohta, has withdrawn his complaint(s) to the State Bar of California "twice" only 10 have these allegations remain in the "Notice of Formal Cherges." COUNT TEN 12, Respondent denies that he" willfully” violated Rules of Professional Conduct 4-100(B)(4) as the underlying client Mr, Hideo Ohta, has withdrawn his complaint(s) to the State Bar of California "twice" only to have these allegations remain inthe "Notice of Formal Charges.” Respondent remains counsel for the underlying client, who has indicated on more than one occasion that counsel "...has done a good job..." handling his case. Cc INT ELEVEN 13, Respondent denies that he “willfully” violated Rules of Professional Conduet 4-100(A) as the underlying client has indicated to the State Bar of California "twice" to have any allegations against Mr. Folke "withdrawn" only to have these allegations remain in the formal charges filed herein, COUNT TWELVE 14, Respondent denies that he “willfully” violated Business and Professions Code, Section 6068(m) concerning status inquiries of a client as Mr. Otha has indicated "twice" to the State Bar of California that he was "mistaken", “overreacted" and wished to withdraw any complaint against the respondent. COUNT THIRTEEN 15. Respondent denies that he “willfully” violated Rule of Professional Conduct, Rule 3- 110(A) as the underlying client has indicated "twice" to the State Bar of California that he wished to withdraw his complaint(s) was "mi Wt Wt “yt ut FORMAL, RESPONSE TO NOTICE OF CHARGES 410 a. 12 13 14 15 16 17 18 19 20 22 22 23 24 25 26 27 28 16, Furthermore, respondent continues to represent Mr, Ohta in the matter of Hideo Ohta y. City of Los Angeles, Case No. 99-1437-NM (JWJ), and is advancing the area of U.S. including but not limited to Discrimination, ies Clause. The facts as set forth in the NOTICE, Constitutional Law as it relates to underlying ca: Commercial Speech; and the Privileges and Immut OF DISCIPLINARY CHARGES are incorrect concerning the Ohta matter as the client accepted full responsibility for any issues concerning procedure; the matter is currently set for trial in September, 2001; and, sanctions in the case were reduced to $105.00 which have indeed been paid, discovery is ongoing with outstanding responses due from the City of Los Angeles, and respondent is currently ‘Preparing a Motion for Partial Summary Judgment on behalf of the client COUNT FOURTEEN 17. Respondent denies that he “willfully * violated Business and Professions Code, Section 6103 as any "complaint" by the underlying client has been withdrawn "uwice", and that the facts as, stated in the NOTICE OF DISCIPLINARY CHARGES are incorrect as the Ohta matter is proceeding in a timely manner and will be ready for trial at the appointed date. COUNT FIFTEEN 18, Respondent denies that he “willfully” violated Business and Professions Code, Section 6068(i) as this aspect of the NOTICE OF DISCIPLINARY CHARGES has been withdrawn "twice" by the client, and counsel has promptly provided responses to the inquiry of the State Bar of California in this matter AFFIRMATIVE DEFENSES COMES NOW, RESPONDENT, DUANE R. FOLKE, BY AND THROUGH THE LAW OFFICES OF DUANE R. FOLKE, and sets forth the following “Affirmative Defenses" which are applicable herein without waiving additional "Affirmative Defenses" that may be learned through discovery including but not limited to: LACK OF JURISDICTION 1, The Petitioner lacks jurisdiction concerning all or part of the NOTICE OF DISCIPLINARY CHARGES, as issue(s) concerning underlying client Sharon Gooch, and Hideo Ohta were withdrawn as formal complaints with the State Bar of California, rendering those FORMAL RESPONSE TO NOTICE OF CHARGES 510 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allegations moot concerning the allegations in the formal complaint; and other aspects of said notice are deficient because they fail to consider or address the “current” status of said matter(s) INTERVENING SUPERCEDING CAUSE 2. The respondent asserts that all or part of the allegations set forth in the NOTICE OF DISCIPLINARY CHARGES, were the result of act(s) by the underlying client, and not any wilful ‘commission or omission by counsel MOOTNESS 3. Respondent asserts that some, ifnot all of said NOTICE OF DISCIPLINARY CHARGES, ‘are moot because they inaccurately depict the former and/or the current status of the petition, and the allegations contained therein fail to reflect the true facts concerning an alleged failure to refund unearned fees; a failure to respond to underlying client as it was the understanding of respondent that ‘any complaint by this client had been "withdrawn"; and that any complaint concerning underlying client Ohta has also been "withdrawn." 4, Respondent reserves the right to amend both this Response to Formal Notice of Disciplinary Charges and Affirmative Defenses and to file a Motion to Dismiss and/or Summary Disposition once provided with discovery in this matter. Dated: June 11, 2001 Duane R. Folke, Es Attomeys for RESPONDENT DUANE R. FOLKE, ESQ. AND THE LAW OFFICES OF DUANE R. FOLKE 3700 Wilshire Boulevard, Suite #457 Los Angeles, California 90010 Telephone: (213) 674-0764 Fax’ (213) 674-0763, FORIAL RESPONSE TO NOTICE OF CHARGES 6VERIFICATION STATE OF CALIFORNIA, COUNTY OF T have read the foregoing. ‘and know its contents. ‘CHECK APPLICABLE PARAGRAPH Lamm party to this sction. The matters stated in the foregoing document are true of my own knowledge except as 0 those matters which are stated on information and belie, and as to those matters I believe them to be true. Tam Dan Officer Da partner Da. of 4 party to this action, and am authorized to make this verification for and on its behalf, and I make ths verification for that reason. (J 1 am informed and believe and on that ground allege that the matters stated in the foregoing document are tue, C1 The matters stated in the foregoing document are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true D1 am one of the attorneys for party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and I make this verification for and on behalf of that party for that reason. Iam informed and believe and on that ground allege that the matters stated in the foregoing document are true. Executed on , 9, at . California I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correc. “Type or Pint Name Sisaare PROOF OF SERVICE a 0) Co Rei Sab 20 STATE OF CALIFORNIA, COUNTY OF S ANGELES Tam employed in the county of Los Angeles ____, State of Califeri Lam over the age of 18 and not a party to the within action; my business address is; ————___ 3700 Wilshire Boulevard, Suite #457, Los (On_dune 14 , 2001, 1 served the foregoing document described as. FROMAL RESPONSE IN OPPOSITION on. Interested Parties— this action 2 true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing the original £1 a true copy thereof enclosed in sealed envelopes addressed as follows: Ms. Shari Sveningson, Esq. The State Bar of California 1149 South Hill street Los Angeles, California 90015-2299 G6) py MaIL aND FAX *1 deposited such envelope in the mail at ‘The envelope was mailed with postage thereon fully prepaid, BC) As follows : 1 am “readily familiar” withthe firm's practice of collection and processing correspondence for mailing. Under that practige it would be deposited with U.S. postl service on that same day with postage thereon fully prepaid at California in the ordinary course of business. T am aware that on motion of the . California. Ewented on_June"14, 200] 19, at LO Angeles ——____, California [ ' ss@y PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee. Executed on 19, at California, (State) 1 declare under penalty of perjury under the laws of the State of California that the above is true and correct. (Federal) T declare that I am employed in the office of a member ofthe bar of this court at whose direction the service yas made. o Type or Paint Name ‘Signatore Tae Sat ER oy pon peau secr BOMTURE WET BE THAT OF EEN10 a. 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 26 27 28 ORIGINAL PUBLIC MATTER ‘THE STATE BAR OF CALIFORNIA OFFICE OF THE CHIEF TRIAL COUNSEL ENFORCEMENT Shari Sveningson, No. 195298 1149 South Hill Street FIL ED Los Angeles, California 90015-2299 Telephone: (213) 765-1000 MAY 2 & a) STATE BAR COURT CLERKS OFFICE 10S ANGELES ‘THE STATE BAR COURT HEARING DEPARTMENT - LOS ANGELES In the Matter of Case Nos. 99-O-10837, 00-0-12776, 00- 0-13310, 00-O-12124, 00-0-11518, 00- 0-14694 Duane R. Folke ) i } No. 137341 ) NOTICE OF DISCIPLINARY CHARGES ) A Member of the State Bar } ) NOTICE - FAILURE TO RESPOND! IF YOU FAIL TO FILE AN ANSWER TO THIS NOTICE WITHIN THE TIME ALLOWED BY STATE BAR RULES, INCLUDING EXTENSIONS, OR IF YOU FAIL TO APPEAR AT THE STATE BAR COURT TRIAL, (1) YOUR DEFAULT SHALL BE ENTERED, (2) YOU SHALL BE ENROLLED AS AN INVOLUNTARY INACTIVE MEMBER OF THE STATE BAR AND WILL NOT BE PERMITTED TO PRACTICE LAW UNLESS THE DEFAULT IS SET ASIDE ON MOTION TIMELY MADE UNDER THE RULES OF PROCEDURE OF THE STATE BAR, (3) YOU SHALL NOT BE PERMITTED TO PARTICIPATE FURTHER IN THESE PROCEEDINGS UNLESS YOUR DEFAULT IS SET ASIDE, AND (4) YOU SHALL BE SUBJECT TO ADDITIONAL DISCIPLINE. STATE BAR RULES REQUIRE YOU TO FILE YOUR WRITTEN RESPONSE ‘TO THIS NOTICE WITHIN TWENTY DAYS AFTER SERVICE. Ww M1 Ww ewig ® 031 977 104 ” TTT10 a 12 13 14 15 16 17 1g 1g 20 21 22 23 24 25 26 27 28 ‘The State Bar of California alleges: JURISDICTION 1, Duane R. Folke ("Respondent’) was admitted to the practice of law in the State of California on December 7, 1988, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California. col NE Case No. 99-0-10837 Rules of Professional Conduct, rule 3-700(D)(2) [Failure to Refund Uneamed Fees} 2. Respondent wilfully violated Rules of Professional Conduct, rule 3-700(D)(2), by failing to refund promptly any part of a fee paid in advance that has not been earned, as follows: 3. Onor about July 22, 1998, James Robinson (“Robinson Jr.”) employed Respondent to represent him on a capital appeal matter. Because Robinson Jr, was incarcerated, his mother, Vesta Robinson (“Robinson”) had previously contacted Respondent regarding her son's need for an attorney. On or about July 24, 1998, Robinson paid Respondent $6,000 in advanced fees for his services on behalf of her son. 4. Ina fee agreement dated July 22, 1998, Robinson agreed to pay Respondent a total of $101,000. In a subsequent fee agreement also dated July 22, 1998, both Robinson and Robinson Jr. agreed to pay Respondent a total, of $200,000. From discussions with Respondent it was understood by Robinson and Robinson Jr. that Respondent would apply to the Supreme Court Monitor to get appointed by the State of California to represent Robinson Jr. Once Respondent got appointed by the state, Robinson and Robinson Jr. believed they would be reimbursed the money they had paid Respondent either by Respondent himself or by the State of California. 5. Onor about Oct. 6, 1998, Robinson Jr. (who resides in prison) Wy10 a2 12 13 14 15 16 17 18 19 20 22 22 23 24 25 26 27 28 wrote a letter to Respondent. Robinson Jr. sent a letter stating that he could no longer wait for Respondent to initiate correspondence. Robinson Jr. wanted to know more about how Respondent planned to handle his case and suggested what days would be best for Respondent to visit him. Respondent did not respond to this letter. 6. Onor about Sept. 30, 1998, Robinson Jr. sent another letter to Respondent. He informed Respondent that the Canadian Coalition Against the Death Penalty had offered to give him free assistance and a website. Robinson Jr. asked Respondent for advice as to what to put on the website. Respondent did not respond to this letter. 7. Onor about Oct.6, 1998, Robinson Jr. sent a letter to Respondent. Robinson Jr. wrote that he would like to be able to call Respondent. Robinson Jr. had a few numbers for Respondent but no one ever answered when he called Respondent. Robinson Jr. requested that Respondent send him his telephone number. Respondent did not respond to this letter. 8 On or about Nov. 18, 1998, Robinson Jr. wrote a letter to Respondent. Robinson Jr. informed him that he had learned Amnesty International and the United Nation give grants to lawyers who represent people on death row. Robinson Jr. requested that Respondent visit him so that they could talk about his case, Respondent did not respond to this letter. 9. Onor about Feb. 18, 1999, Robinson Jr. terminated the services of Respondent. In a letter to Respondent dated Feb.18, 1999, Robinson Jr. authorized Robinson to seize all transcripts relating to his case from Respondent. Robinson Jr. also requested that Respondent immediately turn over all documents to his mother (Robinson). 10. As of March 1, 1999, Respondent was not appointed to any panel of the California Supreme Court for appointment to a death penalty appeal. It is necessary to be appointed to a panel in order to receive money from the state for representing a defendant on death row. Also, death row inmates must be deemed -3-10 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 eligible to be appointed an attorney from the state, One criteria is that the defendant must be considered indigent. 11. On or about March 8, 1999, Robinson demanded a refund of the $6,000 she had paid to Respondent due to the fact Robinson Jr. had already terminated Respondent's services. 12. On or about March 10, 1999, Emery Allen, Chief Attorney of the Office of the State Public Defender (OSPD) wrote a letter to Respondent that confirmed their telephone conversation of March 8, 1999. The letter informed Respondent that the OSPD had been appointed to represent Robinson Jr. The letter also demanded Respondent to turn over all transcripts, court files, exhibits and any other information relating to Robinson Jr. immediately. 13. On or about April 7, 1999, Robinson hired Ronald ‘Smith, Esq.(‘Smith’) to assist her in obtaining a refund of the fees she had paid Respondent. 14. On or about April 15, 1999, Robert Reichman, the Automatic Appeals Monitor, sent a letter to Respondent acknowledging that Respondent had submitted an application for appointment to a death penalty appeal proceeding. Prior to submitting the application, Respondent had been advised by Robert Reichman to refund any money Robinson had paid him for the representation of Robinson Jr. since the purpose of applying for an appointment is to get paid by the state, Respondent refused to follow this advice and did not refund any money to Robinson prior to submitting his application to the California Supreme Court Monitor. 15. On or about May 19, 1999, Robinson took Respondent to fee arbitration with the Beverly Hills Bar Association because she and Respondent had not yet resolved the dispute regarding the fees. 16. Onor about June 29, 1999, Respondent submitted a revised billing statement (of the work he had done while representing Robinson Jr.) to the arbitrator in the fee dispute between Respondent and Robinson, The billing statement includes ao10 a 12 13 14 15 16 17 18 19 20 22 22 23 24 25 26 27 28 6 hours for viewing an instructional video tape, 2 hours for time spent applying to the Supreme Court Monitor and at least 80 hours spent reviewing the transcripts of the trial that led to the appeal for which Respondent was hired to represent Robinson Jr. 17. Onor about Aug. 9, 1999, the arbitrator found that the value of Respondent's service was zero and awarded Robinson the full $6,000. 18. On or about Nov. 9, 1999, Smith filed a Petition to Confirm Arbitration Award in the Beverly Hills Municipal Court. 19. Onor about Dec. 23, 1999, judgement was entered against Respondent in the amount of $6,000 plus $2,065 for Smith’s legal fees in the Beverly Hills Municipal Court. 20. On or about May 27, 2000, Respondent paid $500 to Smith as a first payment toward the arbitration award. On or about August 17, 2000, Respondent paid $250 to Smith and on or about Nov. 17, 2000, Respondent paid an additional $250 to Smith. Respondent has not paid any more money towards the arbitration award. 21, By not refunding the full $6,000 arbitration award confirmed by the judgement, Respondent failed to refund unearned fees in wilful violation of Rules of Professional Conduct, Rule 3-700(D}(2). COUNT TWO Case No. 00-0-12776 Business and Professions Code, section 6068(m) [Failure to Respond to Client Inquiries] 22. Respondent wilfully violated Business and Professions Code, section 6068(m), by failing to respond promptly to reasonable status inquiries of a client, follows: 23. On or about Dec. 23, 1997, Sharon L. Gooch (“Gooch”) employed Respondent to represent Gooch as a plaintiff in an employment discrimination matter.10 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24, On or about Aug. 10, 1999, an order was entered in the United States District Court entitled: Order Granting Defendant's Motion for Summary Judgement in Sharon Gooch vs. State insurance Fund. 25. Onor about Aug. 10, 1999, Gooch paid Respondent $2,500 in advance fees to represent her to appeal the judgement in Sharon Gooch vs. State Compensation Insurance Fund. There was no written fee agreement for the appeal portion of the case. 26. On or about Aug. 13, 1999, Respondent filed a Notice of Appeal in Sharon Gooch vs. State Compensation Insurance Fund in the United States District Court Central District of California. 27. Onor about Aug. 13, 1999, Respondent filed a Transcript Designation and Ordering Form for the trial of Sharon Gooch vs. State Compensation Insurance Fund in the United States District Court Central District of California. It ‘was necessary for Respondent to obtain transcripts of the Summary Judgement hearing in order for Respondent to file an opening brief for the appeal. 28. Onor about Sept. 13, 1999, Gooch paid Respondent $500 for additional fees to represent her for the appeal and $105 for the filing fee. 29. Onor about Dec. 31, 1999, Gooch paid Respondent an additional $350 to represent her for the appeal. 30. Onor about Jan. 18, 2000, an order to dismiss the appeal in ‘Sharon Gooch vs. State Compensation Insurance Fund was filed in the United States District Court of Appeals for the Ninth District for failure to prosecute. 31. Onor about Feb. 9, 2000, Gooch paid Respondent an additional $500 to represent her for the appeal. 32. In or about Feb. 2000, Respondent informed Gooch that Mr MW10 11 a2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the appeal had been denied due to Respondent's unsuccessful attempt to obtain transcripts of the Summary Judgment hearing. Respondent also informed Gooch that he would file for an extension of the appeal. 33. On or about May 26, 2000, Gooch sent a letter to Respondent stating that she had made many attempts to contact Respondent regarding the status of her appeal. She requested Respondent to contact her by mail or phone. Respondent did not respond to any of Gooch’s inquiries. 34, Onor about July 10, 2000, Gooch sent a letter to the State Bar stating the Respondent has failed to return her telephone calls and failed to respond to her letter of May 26, 2000. 35. On or about Oct. 17, 2000, Gooch sent a letter to Respondent. In the letter, Gooch requested that Respondent provide her with written communication as to the status of her appeal. Respondent did not respond. 36. Onor about Jan. 12, 2001, Gooch sent a letter to Respondent. In the letter Gooch requested that Respondent provide her written notice of: the status of her appeal, an accounting of the money she had paid him to represent her on the appeal, the location of all the files, documents & audiotapes that were used for the underlying trial. This letter was returned to Gooch by the Post Office as “unclaimed”. 37. On or about February 14, 2001, Gooch discovered that Respondent's telephone number was disconnected after one of her many attempts to contact him at his office telephone number. 38. By never responding to Gooch’s telephone calls and letters since Feb. 2000 and by not providing a current address and telephone number to his client, Respondent failed to respond to Gooch’s reasonable status inquiries. Wt Wt Mt10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUNT THREE Case No. 00-0-12776 Rules of Professional Conduct, rule 3-110(A) [Failure to Perform with Competence] 39. Respondent wilfully violated Rules of Professional Conduct, rule 3- 110(A), by intentionally, recklessly, or repeatedly failing to perform legal services with competence, as follows: 40. The allegations of paragraphs 23 through 36 are incorporated by reference. 41. Respondent did not obtain the transcripts of the Summary Judgement hearing because he submitted the request form to a court clerk that was not assigned to the Sharon Gooch vs, State Compensation Insurance Eund case. 42. The court clerk who received Respondent's request for the transcripts attempted to call Respondent at his office but the telephone number was disconnected. 43, At no time did Respondent successfully obtain the transcripts of the Summary Judgement hearing 44, At no time did Respondent file for an extension of the appeal. 45. On or about Jan. 18, 2000, an order to dismiss the appeal in Sharon Gooch vs. State Compensation Insurance Fund was filed in the United States District Court of Appeals for the Ninth District for failure to prosecute. 46. Except for one unsuccessful attempt to obtain transcripts of the Summary Judgement hearing, Respondent has failed to perform any legal services on the appeal of Sharon Gooch vs. State Compensation Insurance Fund since Feb. 2000. 47. By performing virtually no legal services for Gooch on the appeal, Respondent intentionally, recklessly or repeatedly failed to perform legal service with competence.10 1. 12 13 14 15 16 ay 18 19 20 21 22 23 24 25 26 27 28 COUNT FOUR Case No. 00-0-12776 Rules of Professional Conduct, rule 3-700(A)(2) [Improper Withdrawal From Employment] 48. As an alternative charge to Count Three, Respondent wilfully violated Rules of Professional Conduct, rule 3-700(A)(2), by failing, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client, as follows: 49. The allegations of paragraphs 23 through 36 and the allegations of paragraphs 41 through 46 are incorporated by reference. 50. After February 5, 2000 when Gooch made a final payment of $500 to Respondent to represent on the appeal, Respondent effectively stopped working on Gooch’s case and did not communicate this to Gooch. 51. _ By failing to complete the services for which he was employed, i.e. to perform services related to Gooch’s appeal; by failing to communicate to Gooch the status of her appeal and by failing to give due notice to the client that Respondent was terminating employment, Respondent improperly withdrew from employment. COUNT FIVE Case No. 00-0-12776 Rules of Professional Conduct, rule 4-100(B)(3) [Failure to Render Accounts to Client] 52. Respondent wilfully violated Rules of Professional Conduct, rule 4- 100(B)(3), by failing to render appropriate accounts to a client regarding all funds coming into Respondent's possession, as follows: 53. The allegations of paragraphs 23 through 36 are incorporated by reference. 54. Gooch has paid Respondent a total of $4,000 as advanced fees for representing her on the appeal. Gooch requested Respondent to provide her with an accounting of her earned and unearned fees. Respondent has not provided Gooch ~9-10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with an accounting of the earned and uneamed portions of the money she has paid to him. 55. By failing to account to Gooch for the fees she has paid, Respondent intentionally, recklessly or repeatedly failed to render accounts to a client regarding all fund coming into Respondent's possession. COUNT SIX Case No. 00-0-11518 Rules of Professional Conduct, rule 4-100(A) [Failure to Maintain Client Funds in Trust Account] 56. _ Respondent wilfully violated Rules of Professional Conduct, rule 4- 100(A), by failing to maintain the balance of funds received for the benefit of a client and deposited in a bank account labeled "Trust Account," "Client's Funds Account” or words of similar import, as follows: 57. From at least July 23, 1998 to until at least August 2, 2000, Respondent maintained client trust account, no, 0851-048918 at Wells Fargo Bank (‘the Wells Fargo trust account”). 58, Between on or about July 23, 1998, and September 30, 2000, the balance in the Wells Fargo Trust account fell into a negative balance on repeated dates, including, but not limited to, the following: DATE BALANCE 7/23/98 $-122.30 7/24/98 $-137.30 7/30/98 $-887.30 9/15/98 $-339.30 9/24/98 $-404.30 1/5/99 $-496.66 4/15/99 $-174.81 9/9/99 $-991.34 10/26/99 $-38.42 10/27/99 $-69.42 12/27/99 $-59.84 12/28/99 $-98.84 12/29/99 $-120.84 1/11/00 $-438.42 1/27/00 $-798.42 -10-10 1. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2/1/00 $-798.42 2/4/00 $-718.42 3/3/00 $-182.42 3/6/00 $-204.42 3/22/00 $-464.42 4/1/00 $-464.42 7/19/00 $-973.13 8/2/00 $-973.13 9/1/00 $-973.13 9/30/00 $-973.13 59. Between on or about July 23, 1998, and March 3, 2000, Wells Fargo Bank paiti the following checks that Respondent had issued from the Wells Fargo Trust Account due to insufficient funds: CHECK NO. CHECK AMOUNT DATE PRESENTED/ ACCOUNT BALANCE 11569 $400 7/23/98 $-122.30 11571 $1,625 9/15/98 $-339.30 11618 $180 4/15/98 $- 174.81 11657 $100 12/27/99 $- 59.84 11663 $120 12/27/99 $- 59.84 11696 $23 12/28/99 $- 98.84 11699 $85.58 1/11/00 $-438.32 11709 $220 3/3/00 $-464.12 60. By not maintaining a positive balance and by issuing checks drawn upon the Wells Fargo Trust account when Respondent should have known, there were insufficient funds, Respondent wilfully failed to properly maintain his client trust account and protect client funds. COUNT SEVEN Case No. 00-0-12124 Rules of Professional Conduct, rule 4-100(A) [Failure to Maintain Client Funds in Trust Account] 61. Respondent wilfully violated Rules of Professional Conduct, rule 4-100(A), by failing to maintain the balance of funds received for the benefit of a client and deposited in a bank account labeled "Trust Account," "Client's Funds Account’ or words of similar import, as follows: -11-10 1) 12 13 14 15 16 17 18 1g 20 21 22 23 24 25 26 a7 28 62. Fromat least July 23, 1998 to until at least April 20, 2000, Respondent maintained client trust account, no, 0851-048918 at Wells Fargo Bank (‘the Wells Fargo trust account’). 63. Between on or about April 17, 2000 and April 20, 2000, Wells Fargo Bank returned the following check that Respondent had issued from the Wells Fargo Trust Account due to insufficient funds: CHECK NO. CHECK AMOUNT DATE PRESENTED/ ACCOUNT BALANCE 11716 $1,383.90 4/17/00 $1,004.27 11716 $1,383.90 4/20/00 $ (983.27 64. By issuing the check drawn upon the Wells Fargo Trust account when he knew or should have known there were insufficient funds, Respondent wilfully failed to manage his client trust account properly. COUNT EIGHT Case No. 00-0-13310 Rules of Professional Conduct, rule 4-100(A) [Failure to Maintain Client Funds in Trust Account] 65. Respondent wilfully violated Rules of Professional Conduct, rule 4-100(A), by failing to maintain the balance of funds received for the benefit of a client and deposited in a bank account labeled "Trust Account," "Client's Funds Account" or words of similar import, as follows: 66. From at least July 23, 1998 to until at least July 19, 2000, Respondent maintained client trust account, no, 0851-048918 at Wells Fargo Bank (‘the Wells Fargo trust account’). 67. Onor about July 19, 2000, the balance in the Wells Fargo Trust account fell into a negative balance, including, but not limited to, the following: DATE BALANCE 7/19/00 $-973.13 -12-10 11 12 13 14 15 16 17 18 19 20 aa 22 23 24 25 26 27 28 68. By not maintaining a positive balance in the Wells Fargo Trust account, Respondent wilfully failed to maintain client funds in a trust account. March 1, 2001 COUNT NINE Case No. 00-0-14694 Rules of Professional Conduct, rule 4-100(B)(3) [Failure to Render Accounts of Client Funds} 69. Respondent wilfully violated Rules of Professional Conduct, rule 4- 100(B)(3), by failing to render appropriate accounts to a client regarding all funds of the client coming into Respondent's possession, as follows: 70. Onor about March 29, 1999, Hideo Ohta (“Ohta”) employed Respondent to represent him in a civil rights lawsuit against the city of Los Angeles. ‘The fee agreement entered into by the parties provided that Ohta would pay Respondent $7,500. 71. Because Ohta does not speak or write English very well, his friend James Belt ("Belt") assists Ohta by acting on behalf of Ohta. 72. Onor about April 15, 1999, Ohta provided a $10,000 cashier’s check to Respondent in payment for legal representation in the civil rights matter. The cashier's check was provided by and made payable to Belt. Both Belt and Respondent endorsed the check. On or about April 16, 1999, Respondent deposited the $10,000 check into his Client Trust Account at Wells Fargo Bank, account #0851-048918. Respondent agreed to refund Ohta the $2,500 difference. 73. Onor about January 31, 2000, Ohta sent a letter to Respondent by certified mail. The postal receipt was signed by Respondent has having been received. In the letter, Ohta accused Respondent of ignoring his phone calls. Ohta also stated Respondent had yet to do anything on the case since Ohta hired him. Ohta expressed concern for the upcoming deposition deadline and trial dates. -13-10 a. 12 13 14 15 16 17 18 19 20 22 22 23 24 25 26 a7 28 74. On or about May 23, 2000, Belt wrote a letter on behalf of Ohta to Respondent. The letter complained that Respondent did not return Ohta’s phone calls and that Respondent had not yet refunded the $2,500. 78. On or about May 25, 2000, Ohta wrote a letter to the State Bar. In the letter, Ohta complained that Respondent had not yet refunded the $2,500, had not done anything on the case since substituting in as attorney of record and had never returned any of his (Ohta’s) phone calls. 76. On or about May 25, 2000, Belt wrote a letter on behalf of Ohta to Respondent. The letter requested that Respondent refund the $2,500 by May 30, 2000. 77. On or about August 22, Ohta wrote a letter to the State Bar. In the letter, Ohta complained that Respondent refused to refund the $2,500 and refused to return any of his phone calls. 78. At no time did Respondent refund the $2,500 to Ohta. 79. By failing to account to Ohta for the fees he has paid, Respondent intentionally, recklessly or repeatedly failed to render accounts to a client regarding all fund coming into Respondent's possession. COUNT TEN Case No. 00-0-14694 Rules of Professional Conduct, rule 4-100(B)(4) [Failure to Pay Client Funds Promptly] 80. Respondent wilfully violated Rules of Professional Conduct, rule 4- 100(B)(4), by failing to pay promptly, as requested by a client, any funds in Respondent's possession which the client is entitled to receive, as follows: 81. The allegations of paragraphs 70 through 78 are incorporated by reference, Mt “iy -14-10 EEE 12 13 14 15 16 17 18 2s 20 21 22 23 24 25 26 27 28 82. By not paying Ohta the $2,500 held in the Wells Fargo Bank trust account at Ohta’s request, Respondent failed to pay client funds as requested by his client. COUNT ELEVEN Case No.00-0- 14694 Rules of Professional Conduct, rule 4-100(A) [Failure to Maintain Client Funds in Trust Account] 83. Respondent wilfully violated Rules of Professional Conduct, rule 4- 100(A), by failing to maintain the balance of funds received for the benefit of a client and deposited in a bank account labeled "Trust Account," "Client's Funds Account’ or words of similar import, as follows: 84. Onoor about March 29, 1999, Hideo Ohta (“Ohta”) employed Respondent to represent him in a civil rights lawsuit against the city of Los Angeles. ‘The fee agreement entered into by the parties provided that Ohta would pay Respondent $7,500. 85. Because Ohta does not speak or write English very well, his friend James Belt ("Belt") assists Ohta by acting on behalf of Ohta. 86. On or about April 15, 1999, Ohta provided a $10,000 cashier's check to Respondent in payment for legal representation in the civil rights matter. The cashier's check was provided by and made payable to Belt. Both Belt and Respondent endorsed the check. On or about April 16, 1999, Respondent deposited the $10,000 check into his Client Trust Account at Wells Fargo Bank (CTA), account #0851- 048918. Respondent agreed to refund Ohta the $2,500 difference. 87. After payment of his attorneys fees, Respondent was required to maintain the balance of $2,500 in his CTA on behalf of Ohta until payment of the funds to Ohta. Wy WwW -15-10 a1 12 13 14 a5 16 17 18 19 20 a1 22 23 24 25 26 a7 28 88, From May 19, 1999 to at least November 16, 2000, the balance of Respondent's CTA fell below the $2,500 that Respondent was holding on behalf of Ohta on at least 80 occasions. On these occasions the balance in this CTA went as low as $-991.34. 89. By not maintaining the balance of at least $2,500 of Ohta’s funds in Respondent's CTA, Respondent failed to maintain the balance of funds received for the benefit of a client in a client trust account. COUNT TWELVE Case No, 00-0-14694 Business and Professions Code, section 6068(m) [Failure to Respond to Client Inquiries} 90. Respondent wilfully violated Business and Professions Code, section 6068(m), by failing to respond promptly to reasonable status inquiries of a client, as follows: 91. The allegations of paragraphs 70 through 77 are incorporated by reference. 92. Atno time did Respondent respond to any of Ohta’s or Belt’s phone calls and letters. 93. By never responding to Ohta’s telephone calls and letters since at least January 31, 2000, Respondent failed to respond to Ohta’s reasonable status inquiries. ase No. 00-0-14694 Rules of Professional Conduct, rule 3-110(A) [Failure to Perform with Competence] 94, Respondent wilfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, or repeatedly failing to perform legal services with competence, as follows: 95. On or about March 29, 1999, Hideo Ohta (“Ohta”) employed t6=10 a 12 13 14 15 16 iy 18 19 20 21 22 23 24 25 26 27 28 Respondent to represent him in a civil rights lawsuit against the city of Los Angeles. The fee agreement entered into by the parties provided that Ohta would pay Respondent $7,500. On or about July 1, 1999, Respondent substituted in as attorney of record in Hideo Ohta v. Ci s Angeles, case no. 99-1437-NM (JW). 96. On or about November 29, 1999, the defendant's counsel in Hideo Ohta v, City of Los Angeles filed a Request for Production of Documents pursuant to FRCP 34. The Request required that Respondent produce an audio tape to the defendant by December 29, 1999. 97. Atno time did Respondent produce the audio tape or served a written response to the Request. 98. On or about November 10, 1999, in Hideo Ohta v. City of Los Angeles, the defendants properly noticed plaintiff's deposition for December 2, 1999.0n November 30, 1999, Respondent's office left a message for defendant's counsel that the deposition would have to be rescheduled. 99. On or about December 7, 1999, in Hideo Ohta v. City of Los Angeles, the defendants properly noticed plaintiff's deposition for December 29, 1999, at 10 a.m. On Dec. 29, 1999 at 8:38 a.m. Respondent left a message for defendant's counsel that the deposition would have to be continued because Respondent was ill with the flu. 100. Since December 29, 1999, defendant's counsel made at least 4 attempts by telephone to reschedule plaintifi’s deposition. Respondent did not respond to any of the telephone calls. 101. On March 16, 2000, the United States District Court Cental District of California ordered the plaintiff in Hideo Ohta v. City of Los Angeles, case no. CV-99- 1437-MN(JWJ) to : a.) appear for deposition on or before April 7, 2000, b.) produce the audio tape or file a declaration of non-possession no later than March 31, 2000, c.) Comply with Local Rule 6.2 by March 31, 2000 and d.)Pay sanctions in the total -17-10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amount of $1,005 for failure to appear for deposition within the discovery time period and failure to respond to the defendant’s Request for Production of Documents within 30 days of the request. 102. On or about April 3, 2000, Respondent responded to the Court's order described in paragraph 67(c) by faxing an “Early Meeting Disclosure by Plaintiff Hideo Ohta pursuant to Rule 6 of the Local Rules of the Cental District Court of California” to defendant’s counsel. 103. On or about May 25, 2000, the United States District Court Cental District of California ordered the plaintiff in Hideo Ohta v. City of Los Angeles, case no. CV-99-1437-MN(JW.J) to file a declaration with the Court by June 15, 2000, advising the Court that all Local Rule 6.2 disclosures have been made. The Court also extended the date by which plaintiff's counsel must pay the $1,005 sanction to June 15, 2000. 104. On or about July 5, 2000 the United States District Court Cental District of California filed an “Order to Show Cause Regarding Plaintiff's Failure to Comply With Court Order” in Hideo Ohta v, City of Los Angeles, case no. CV-99-1437- MN(JWJ). The Order referred to the Court’s May 25, 2000 Order and stated plaintiff had failed to file a declaration advising compliance with Local Rule 6.2 by June 15, 2000. The Court ordered : plaintiff shall have 10 days from the date of this order to file the declaration (July 15, 2000) . The order further stated that if plaintiff fails to respond to, and comply with, this Order to show Cause, the Court will recommend dismissing the action with prejudice for failure to prosecute. 105. On July 17, 2000, Respondent filed a Response to the Court's Order to Show Cause. In the Response, Respondent argued for additional time to complete discovery. 106. On or about August 3, 2000, the United States District Court Cental District of California denied the plaintiff's motion to continue discovery cut-off dates in Hideo Ohta v. City of Los Angeles, case no. CV-99-1437-MN(JWJ}. The Court also -18-20 a 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 26 27 28 stated plaintiff's counsel had failed to pay the sanctions imposed in its May 25 order. As a result, the Court ordered plaintiff's counsel to pay $1,000 by August 7, 2000 and an additional $1,000 by August 14, 2000. 107. Atno time has Respondent paid the sanctions ordered by the Court. 108. On or about December 12, 2000, the United States District Court Cental District of California ordered counsel in Hideo Ohta v. City of Los Angeles, case no. CV-99-1437-MN(JW4) to file a status report, either jointly or respectively, advising the Court whether the sanction imposed upon plaintiff have been paid and whether counsel will be submitting a proposed stipulated dismissal of the action no later than December 22, 2000. 109. At no time did Respondent file the status report ordered by the Court as described in the preceding paragraph. 110. By failing to pay sanctions imposed by the Court for failing to appear for deposition and failing to serve a timely written response to the defendant's Request for Production of Documents; by failing to comply with any of the Court's orders to file declarations regarding Local Rule 6.2 disclosures and non-possession of the audio tape; and by failing to comply with the Court's order to file a status report re payment of sanctions and stipulation of the dismissal of the case, Respondent intentionally, recklessly or repeatedly failed to perform legal services competently. COUNT FOURTEEN Case No. 00-0-14694 Business and Professions Code, section 6103 [Failure to Obey a Court Order] 111. Respondent wilfully violated Business and Professions Code, section 6103, by wilfully disobeying or violating an order of the court requiring him to do or forbear an act connected with or in the course of Respondent's profession he ought in good faith to do or forbear, as follows: 112. On or about March 29, 1999, Hideo Ohta (“Ohta”) employed Wy -19-wow a 12 13 4 15 16 a 18 19 20 21 22 23 24 25 26 27 28 Respondent to represent him in a civil rights lawsuit against the city of Los Angeles. The fee agreement entered into by the parties provided that Ohta would pay Respondent $7,500. On or about July 1, 1999, Respondent substituted in as attorney of record on Hideo Ohta v. City of Los Angeles, case no. 99-1437-MN-(JW4). 113. The allegations of paragraphs 95 through 109 are incorporated by reference. 114, By failing to pay sanctions imposed by the Court for failing to appear for deposition and failing to serve a timely written response to the defendant's Request for Production of Documents; by failing to comply with any of the Court's orders to file declarations regarding Local Rule 6.2 disclosures and non-possession of the audio tape; and by failing to comply with the Court's order to file a status report re payment of sanctions and stipulation of the dismissal of the case, Respondent wilfully disobeyed an order of the court requiring him to do an act connected with or in the course of Respondent's profession COUNT FIFTEEN Case No. 00-0-14694 Business and Professions Code, section 6068(i) [Failure to Cooperate in State Bar investigation] 115. Respondent wilfully violated Business and Professions Code, section 6068(i), by failing to cooperate and participate in a disciplinary investigation pending against Respondent, as follows: 116. On or about September 27, 2000, the State Bar opened an investigation , case no. 00-0-14694, concerning Respondent's representation of a client in Ohta v. City of Los Angeles, case no. CV-99-1437-MN(JW4) before the United States District Court Cental District of California (‘the Ohta matter’). 117. On or about December 13, 2000, State Bar Investigator Ysabel Naetzel wrote to Respondent regarding the Ohta matter. The investigator’s letter was place in a sealed envelope correctly addressed to Respondent at his State Bar of -20-California membership records address. The letter was properly mailed by first class mail, postage pre-paid, by depositing for collection by the United States Postal Service in the ordinary course of business. The United States Postal Service did not return 4, | the investigator's letter as undeliverable or for any other reason. 118. The investigator's letter requested that Respondent respond in writing to specific allegations of misconduct being investigated by the State Bar in the Ohta matter. Respondent did not respond to the allegations in the Ohta matter or otherwise communicate with the investigator. 119. By not providing a written response to the allegations in the Ohta 10 || matter or otherwise cooperating in the investigation of the Ohta matter, Respondent 11 | failed to cooperate in a disciplinary investigation. 12 3 NOTICE - ENTRY OF DEFAULT! YOUR DEFAULT WILL BE ENTERED IF NO RESPONSE IS FILED WITH THE CLERK OF THE STATE BAR COURT WITHIN TEN (10) DAYS OF SERVICE OF A MOTION FOR ENTRY OF DEFAULT. IF YOUR DEFAULT 1S ENTERED: (1) THE FACTUAL ALLEGATION SET FORTH IN THE NOTICE OF DISCIPLINARY CHARGES WILL BE DEEMED ADMITTED; (2) EVIDENCE THAT WOULD OTHERWISE BE INADMISSIBLE MAY BE USED AGAINST YOU IN THIS PROCEEDING; AND (3) YOU WILL LOSE THE OPPORTUNITY TO PARTICIPATE’ FURTHER IN THESE PROCEEDINGS, INCLUDING PRESENTING EVIDENCE IN MITIGATION, COUNTERING EVIDENCE IN AGGRAVATION, AND MOVING FOR 9 RECONSIDERATION, UNLESS AND UNTIL YOUR DEFAULT IS SET ASIDE ON MOTION TIMELY MADE UNDER THE PRESCRIBED GROUNDS. SEE RULES 200 ET SEQ., RULES OF PROCEDURE FOR STATE BAR COURT PROCEEDINGS. 14 15 an IF YOUR DEFAULT IS ENTERED AND THE DISCIPLINE IMPOSED BY ‘THE SUPREME COURT IN THIS PROCEEDING INCLUDES A PERIOD OF ACTUAL SUSPENSION, YOU WILL REMAIN SUSPENDED FROM THE PRACTICE OF LAW FOR AT LEAST THE PERIOD OF TIME SPECIFIED BY THE SUPREME COURT. IN ADDITION, THE ACTUAL SUSPENSION WILL CONTINUE UNTIL YOU HAVE REQUESTED, AND THE STATE BAR COURT HAS GRANTED, A MOTION FOR TERMINATION OF THE ACTUAL SUSPENSION. AS A CONDITION FOR TERMINATING THE ACTUAL SUSPENSION, THE STATE BAR COURT MAY PLACE YOU ON Be PROBATION AND REQUIRE YOU TO COMPLY WITH SUCH CONDITIONS 7 OF PROBATION AS THE STATE BAR COURT DEEMS APPROPRIATE. a SEE RULE 205, RULES OF PROCEDURE FOR STATE BAR COURT PROCEEDINGS. 22 23 24 25 28 -21-10 a 12 13 14 15 1s 17 18 19 20 21 22 23 24 25 26 27 28 Dated: May 24, 2001 NOTICE - INACTIVE ENROLLMENT! YOU ARE HEREBY FURTHER NOTIFIED THAT IF THE STATE BAR COURT FINDS, PURSUANT TO BUSINESS AND PROFESSIONS CODE. SECTION 6007(c), THAT YOUR CONDUCT POSES A SUBSTANTIAL THREAT OF HARM TO THE INTERESTS OF YOUR CLIENTS OR TO THE PUBLIC, THAT YOU MAY BE INVOLUNTARILY ENROLLED AS AN INACTIVE MEMBER OF THE STATE BAR. YOUR INACTIVE ENROLLMENT WOULD BE IN ADDITION TO ANY DISCIPLINE RECOMMENDED BY THE COURT. SEE RULE 101(c), RULES OF PROCEDURE OF THE STATE BAR OF CALIFORNIA. NOTICE - COST ASSESSMENT! IN THE EVENT THESE PROCEDURES RESULT IN PUBLIC DISCIPLINE, YOU MAY BE SUBJECT TO THE PAYMENT OF COSTS INCURRED BY THE STATE BAR IN THE INVESTIGATION, HEARING AND REVIEW OF THIS MATTER PURSUANT TO BUSINESS AND PROFESSIONS CODE SECTION 6086.10. SEE RULE 280, RULES OF PROCEDURE OF THE STATE BAR OF CALIFORNIA. Respectfully submitted, THE STATE BAR OF CALIFORNIA OFFICE OF THE CHIEF TRIAL COUNSEL ‘Shari Sveningson Deputy Trial Counsel -22-10 11 12 13 14 15 16 17 18 19 20 an 22 23 24 25 26 a7 28 DECLARATION OF SERVICE BY CERTIFIED MAIL CASENUMBER: 99-0-10837, 00-0-12776, 00-0-13310, 00-0-12124, 00-0-11518,| 00-0-14694 1, the undersigned, over the age of eighteen (18) years, whose business address and place of employment is the State Bar of California, 1149 South Hill Street, Los Angeles, California 90015, declare that I am not a party to the within action; that I am readily familiar with the State Bar of California's practice for collection and processing of correspondence for mailing with the United States Postal Service; that in the ordinary course of the State Bar of California's practice, correspondence collected and processed by the State Bar of California would be deposited with the United States Postal Service that same day; that I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date on the envelope or package is more than one day after date of deposit for mailing contained in the affidavit. That in accordance with the practice of the State Bar of California for collection and processing of mail, I deposited or placed for collection and mailing in the City and County of Los ‘Angeles, on the date shown below, a true copy of the within NOTICE OF DISCIPLINARY CHARGES in.a sealed envelope placed for collection and mailing as certified mail, return receipt requested, Article No.: 7106 4575 1294 0226 7664, at Los Angeles, on the date shown below, addressed to: Duane R. Folke 3700 Wilshire Blvd., #457 ‘Los Angeles, CA 90010 in an inter-office mail facility regularly maintained by the State Bar of California addressed to: N/A I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California, on the date shown below. patep: SBY/o, SIGNED: Carolyn Eaffada Declarant‘The document to which this certificate is affixed i a ful true and correct copy ofthe original on file and of record inthe State Bar Court, ATTEST__September 4, 2019 ‘Siate Bar Cour, State Bar of California, ‘Los Angeles| By_< — Ger