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DISBARMENTS

• PHILIP JOEL BIEL
• SCOTT RAYMOND MERRILL

SUSPENSION/PROBATION

• MARTIN STANLEY TANNER
• STANLEY GLENN EASTER
• WILLIAM O’NEILL III
• KEVIN CHRISTOPHER McDONOUGH
• RICARDA LEE LIM
• BOLDEN BRUCE KITTRELL
• TODD CHRISTIAN SMITH
• RICHARD MICHAEL LADEN
• JACK H. KAUFMAN JR.

DISBARMENTS

PHILIP JOEL BIEL [#160310], 37, of Bakersfield was summarily disbarred Aug. 7, 2004, and was ordered to comply with rule 955 of the California Rules of Court.

Biel was convicted of three counts of grand theft by an agent or employee in 2003. The offenses were felonies that involved moral turpitude, and therefore met the criteria for summary disbarment.

SCOTT RAYMOND MERRILL [#141637], 51, of Davis was disbarred Aug. 7, 2004, and was ordered to comply with rule 955.

Merrill was disciplined in 2003 but did not comply with a rule 955 requirement: he did not submit to the Supreme Court an affidavit stating that he had notified his clients and all other interested parties of his suspension from practice.

The underlying discipline was imposed for misconduct in six matters, including failing to perform legal services competently, return unearned fees, return clients’ files and property, deposit client money into his trust account, communicate with clients or cooperate with the bar’s investigation, and he improperly withdrew from employment.

Merrill also was disciplined in 2002 for similar misconduct.

His default was entered in all three proceedings before the State Bar.

SUSPENSION/PROBATION

MARTIN STANLEY TANNER [#129114], 49, of Salt Lake City was suspended for three years, stayed, placed on four years of probation with an actual one-year suspension and was ordered to prove his rehabilitation, take the MPRE and comply with rule 955. The order took effect April 11, 2004.

Tanner resigned from practice in Utah after he made material misrepresentations to a court in a divorce case. His misconduct in Utah constitutes violations of California statute: he failed to perform competently, misled a judge and committed acts of moral turpitude.

Tanner has never practiced in California, although he was admitted in 1987.

STANLEY GLENN EASTER [#152632], 56, of North Hollywood was suspended for 18 months, stayed, placed on three years of probation and was ordered to take the MPRE within one year. The order took effect July 23, 2004.

Easter stipulated to misconduct in six consolidated cases.

He wrote six checks against insufficient funds in his client trust account, committing acts of moral turpitude, and commingled personal funds in his trust account, using it to pay personal or business expenses.

In three bankruptcy cases, he failed to file the petition or return his clients’ numerous phone calls, and he moved his office without telling the clients his new address or phone number.

In a marital dissolution, he filed a petition and served his client’s husband, but did no further work.

In total, Easter stipulated to 21 counts of misconduct: four counts each of failing to perform legal services competently, communicate with clients and improperly withdrawing from representation; three counts each of commingling personal and client funds and failing to refund unearned fees, two counts of moral turpitude and one count of failing to render an accounting of client funds.

In mitigation, he cooperated with the bar’s investigation and he became very ill with complications from diabetes at the time of the misconduct. He has not practiced fulltime for a year due to health problems. The client trust account problems occurred when Easter had severe financial, medical and emotional problems. He no longer maintains a trust account.

WILLIAM O’NEILL III [#69629], 59, of Auburn was suspended for 90 days, stayed, placed on two years of probation and was ordered to take the MPRE within one year. The order took effect July 23, 2004.

O’Neill stipulated to misconduct in three matters.

O’Neill was hired to represent a client who wanted to be paid for work he had done for a corporation. After a lawsuit was filed, the company sent O’Neill a volunteer agreement the client had signed; it contained provisions stating the client was working without pay and that the prevailing party in any litigation over his status would be entitled to fees and costs. The company asked O’Neill to dismiss the case before it resulted in substantial fees but he did not reply.

O’Neill advised the client that legal presumptions would take precedence over the volunteer agreement, but he did not tell him about the fees and costs provisions or warn him about the risk of pursuing litigation.

The company conducted discovery but O’Neill did not. The court ordered the parties to submit to non-binding arbitration, where O’Neill called no witnesses and did not submit a brief to the arbitrator.

After losing the arbitration, O’Neill advised the client to pursue litigation.

The client paid him a total of $11,952 in fees.

When the corporation filed a motion for summary judgment, O’Neill did not oppose it and advised his client to dismiss the case, but did not warn him about the risk of dismissal without securing a waiver of the volunteer agreement’s fees provisions. The client questioned that advice, but agreed to the dismissal after O’Neill suggested he was acting out of spite to punish the company.

After the dismissal, the company won sanctions against O’Neill and the client of $55,615.18. He never informed the client about the sanctions, provided an accounting to him or gave a complete file to the client’s new lawyer. The documents eventually provided did not include a copy of the sanctions award.

O’Neill stipulated that he failed to perform legal services competently, keep a client informed about developments in his case, render an accounting of client funds, promptly release a client’s file or report sanctions in writing to the State Bar.

He also was privately reproved in 1998 for failing to keep a client informed about developments in a case.

KEVIN CHRISTOPHER McDONOUGH [#99944], 50, of Clinton, Conn. was suspended for three years, stayed, placed on three years of probation with a six-month actual suspension and was ordered to prove his rehabilitation, take the MPRE within one year and comply with rule 955. The order took effect July 23, 2004.

McDonough stipulated that he practiced law in five different cases while suspended. In a sixth case, while suspended, McDonough received an order to show cause regarding proof of service. He did not appear and was sanctioned $200; he ultimately was sanctioned four more times ($250 each time), but never paid.

He also made misrepresentations to a court. Although he admitted he was suspended, he claimed that he did not represent any clients or practice in California, and that he did not appear in court or file any pleadings on anyone’s behalf.

McDonough stipulated that he practiced while suspended, misled the court and disobeyed a court order.

The underlying suspension, imposed in 2000, was the result of his failure to maintain adequate trust account records, and he used his trust account for personal and business purposes unrelated to any client matter and wrote several checks against insufficient funds.

In mitigation, he cooperated with the bar’s investigation, and if called to testify, he would testify that he had no clients who were directly affected by his misconduct.

RICARDA LEE LIM [#137700], 59, of Sacramento was suspended for two years, stayed, actually suspended for 90 days and until the State Bar Court grants a motion to terminate the suspension and was ordered to take the MPRE within one year and comply with rule 955. If the actual suspension exceeds two years, she must prove her rehabilitation. The order took effect July 23, 2004.

In a default proceeding, the bar court found that Lim committed five acts of misconduct.

In a workers’ compensation matter, she took no substantive steps to resolve the case. She never sent a demand letter on her client’s behalf, did not appear for her client’s deposition (the client did appear) and did not respond to a settlement offer or tell her client about it. She also did not respond to her client’s request for information.

The client fired Lim and settled her case for $20,000.

Lim stipulated that she failed to perform legal services competently, inform her client of a settlement offer or respond to her client’s reasonable status inquiries. She also did not cooperate with the bar’s investigation.

In 2002, Lim stipulated to misconduct and was publicly reproved, but she did not comply with probation conditions by failing to submit two quarterly reports. The discipline was imposed for Lim’s failure to perform legal services competently, keep a client informed about developments in a case, respond to client inquiries, take steps to protect her client’s interests when her employment ended or cooperate with the bar’s investigation.

BOLDEN BRUCE KITTRELL [#40896], 64, of Torrance was suspended for five years, stayed, and was placed on five years of probation with an actual three-year suspension and until he makes restitution and proves his rehabilitation. He also was ordered to take the MPRE and comply with rule 955. The order took effect July 23, 2004.

The State Bar Court review department upheld a hearing judge’s findings but reversed his recommendation that Kittrell be disbarred. The hearing judge found that Kittrell entered into a business transaction with an unsophisticated client who lost her life savings, money she had intended to use to buy a house. The judge also found he committed acts of moral turpitude, and after the client won a civil fraud judgment against him, did not report entry of the judgment to the bar.

Kittrell’s client was a 55-year-old naturalized citizen who completed the equivalent of a 12th-grade education in Jamaica. She had minimal prior investment experience, was interested in buying a condominium and was looking for an investment of her life savings of $68,000.

Kittrell owned Bolden Realty, a company he used to do business with equity holders in real estate who could not qualify for conventional bank loans. Although none of his investors lost money for many years, the recession of the early 1990s resulted in problems with trust deeds and Kittrell’s home was foreclosed and sold in 1994.

He first met with the client in 1991 in order to provide legal advice about the tax consequences of a family law settlement. At the same meeting, Kittrell offered the woman an investment in a trust deed in a dance studio that had encumbrances totaling nearly $1.5 million. The property produced annual income of $70,000 and its annual debt service on the first and second of three trust deeds was $100,000. Kittrell had invested in the property, raising $600,000 from investors.

He offered the property for $1.95 million, received one bid below $1 million and tried unsuccessfully to refinance the property. When a third trust deed note for $450,000 came due, Kittrell was unable to refinance or sell the property, so he extended the note’s due date a year and increased its amount to $550,000. In addition, the holder of the first trust deed filed a notice of default.

Kittrell offered his client an investment in the studio and told her it would pay 14 percent interest, that there would be monthly payments and that her principal would be repaid in three to four months. He did not tell her that the property’s debt service exceeded its income and that he did not have a current written appraisal.

A trust declaration and beneficiary agreement he sent the client did not state that the investment was a third trust deed, did not cite the risks of the transaction and misstated the amount of the note as $450,000 rather than $550,000. The papers also set the deadline for repayment of principal a year later than the client understood. Nonetheless, she signed the papers without fully understanding the nature of the investment. She made her funds payable to the realty company but she was unaware that Kittrell was the owner.

The client opened three separate escrow accounts to buy property; all had to be cancelled when Kittrell did not return her investment money. He made 11 interest payments totaling just over $7,000. The client spent $2,300 on escrow fees and storage charges for her personal property.

The client eventually sued Kittrell and won damages of $217,235, plus interest and costs of $61,000. The verdict found that Kittrell’s conduct involved malice, oppression or fraud. The court of appeal upheld the verdict, finding that Kittrell lived on an eight-acre equestrian estate appraised at $2.9 million, owned an airplane worth $125,000 and an Arizona ranch valued at $700,000 and leased a Mercedes and a Lincoln. Although Kittrell conceded that he made several hundred thousand dollars in deposits into his bank account, he testified that his assets were encumbered for more than their value.

He contended that his assets have been foreclosed or sold in bankruptcy, his law practice income yielded about $100,000 in 1996 and 1997, and he claims he paid the client $18,200 and that his insurer paid her as well.

The hearing judge found, and the review department agreed, that Kittrell entered into a business transaction with his client that was not fair and reasonable and that he failed to advise the woman to seek independent legal advice. The judge also determined that the transaction placed Kittrell in a position adverse to his client.

The review department rejected Kittrell’s arguments that the hearing judge’s findings should be reversed. “Sadly, this case stands with too many others as an example of an attorney’s preference of his personal interests in manifest disregard of the interest of his client,” wrote review Judge Ronald Stovitz.

In mitigation, Kittrell practiced for 24 years without a record of discipline.

TODD CHRISTIAN SMITH [#167013], 37, of Carlsbad Probation was revoked, the stay of suspension was lifted and he was actually suspended for one year and was ordered to comply with rule 955. The order took effect July 23, 2004.

Smith did not comply with probation conditions attached to a 2003 discipline. He did not timely develop a law office management plan, submit proof of psychological treatment or submit quarterly reports.

Smith was disciplined for writing checks against insufficient funds and for using his client trust account to pay personal expenses.

He did not participate in the probation revocation proceedings.

RICHARD MICHAEL LADEN [#82188], 59, of Los Angeles Probation was revoked, the stay of suspension lifted and he was actually suspended for 90 days and until he makes restitution. He also was ordered to comply with rule 955. If the actual suspension exceeds two years, he must prove his rehabilitation. The order took effect Aug. 7, 2004.

The review department upheld a hearing judge’s recommendation that Laden’s probation be revoked and he be placed on actual suspension for 90 days as a result of his numerous untimely restitution payments to a client and several delinquent quarterly probation reports. The review judges added the condition that he must remain suspended until restitution is paid in full.

Laden had sought review, arguing that the payments were late because of financial hardship.

A sole practitioner in the areas of personal injury and workers’ compensation, Laden has had limited financial resources for many years. The discipline began with his mishandling of a wrongful death lawsuit arising from the death of his client’s husband. He was privately reproved and agreed to submit his

client’s legal malpractice claim to binding arbitration. She obtained an award of more than $21,000 and Laden had two years to make the payments.

When he did not meet his restitution requirements, Laden was given a 30-day suspension and placed on probation, with requirements that he pay the client almost $10,000. He was late with 19 of 27 payments. He also submitted seven of nine quarterly probation reports late.

Although Laden admitted that many of his payments and quarterly reports were late, he said he did not have the funds to make timely payments.

In mitigation, Laden made a good faith effort to make restitution when he was able, he was current with his obligations at the time of the bar hearing, and he performed community service.

JACK H. KAUFMAN JR. [#57450], 56, of San Clemente was suspended for five years, stayed, placed on five years of probation with an actual two-and-a-half year suspension, and was ordered to make restitution, prove his rehabilitation, take the MPRE and comply with rule 955. The order took effect Aug. 7, 2004.

Kaufman stipulated to misconduct in two matters.

He represented a client’s daughter, who was trustee of her father’s trust. At one point, Kaufman acknowledged that he had overbilled the trust and been overpaid more than $29,000. However, he did not refund the fees, contending that he believed they were earned in the two months between the discovery of the error, his withdrawal from the case and the client’s demand for the refund.

He stipulated that he failed to refund unearned fees.

In the second matter, he stipulated that he practiced law while suspended. When he filed a rule 955 affidavit with the Supreme Court, he indicated that he did not represent any clients in pending litigation, when in fact he was representing clients in an arbitration proceeding. He did not inform his clients or any of the parties to the arbitration about his suspension.

He also stipulated that he disobeyed a court order and committed acts of moral turpitude.

Kaufman has been disciplined three times. In 1996, he was convicted of writing a bad check; in 1998, he was disciplined for multiple instances of unauthorized practice; and the underlying discipline in the current matter was imposed in 2001 for unauthorized practice.

In mitigation, Kaufman contends he was unaware of a billing error until 2003 and he agreed to settle the case with his former client immediately.