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BESSIE MAE CARR [#121368], 48, of San Diego was disbarred March 17, 2007, and was ordered to comply with rule 955.
In a default proceeding, the State Bar Court found that Carr misappropriated $83,544.85 from a client and failed to cooperate with the bar’s investigation.
In a divorce proceeding in which Carr represented the husband, she received the proceedings from the sale of the couple’s house. She received two checks, totaling $96,634.20, that she deposited in her client trust account, but repeatedly allowed the balance to fall well below the required amount.
She also did not return 15 phone calls from her client, who fired her and hired a new lawyer. When the court ordered Carr to release all funds to the new lawyer, she did not do so.
The bar court found that Carr violated a court order, failed to communicate with a client or cooperate with the bar’s investigation, and she misappropriated client funds, an act involving moral turpitude.
MARK WARREN DEL MORAL [#171129], 45, of San Diego was disbarred March 17, 2007, and was ordered to comply with rule 955.
In a partnership dispute matter, Del Moral received a $40,000 check from his client to hold in trust to purchase his former partner’s interest. At the client’s request, Del Moral paid more than $11,300 in rent to the partnership’s landlord, but subsequently stopped communicating with the client.
He also was suspended from practice for noncompliance with court-ordered child and family support obligations, but did not notify his client.
He allowed the balance in his client trust account to fall below the required amount, wrote a check against insufficient funds and commingled personal and client funds in the account.
When a new attorney was unable to recover the remaining $28,000 Del Moral was still holding in trust, he filed a complaint in superior court. The new lawyer won a judgment against Del Moral, who refunded $27,000 and won an agreement from the client to keep the remainder as his fee.
The State Bar Court found that Del Moral improperly withdrew from employment, failed to promptly release client funds or cooperate with the bar’s investigation, and he committed acts of moral turpitude by commingling and misappropriating client funds.
Although bar prosecutors sought an 18-month suspension with restitution, the court considered the seriousness of Del Moral’s actions, plus a prior discipline and his failure to participate in the proceedings and recommended his disbarment. He “has demonstrated disdain and contempt for the orderly process and rule of law,” wrote Judge Richard A. Honn, and he “continued to engage in misconduct even after being disciplined for similar misconduct.”
JAMES MICHAEL KEARNEY III [#151880], 40, of Claremont was disbarred March 23, 2007, and was ordered to comply with rule 955.
The State Bar Court found that Kearney committed numerous acts of misconduct in two matters, including acts of moral turpitude.
He represented a client who wished to file a breach of contract claim against a dentist regarding the sale of a dental office. Kearney sent a draft complaint to his client, stating that it would be filed in the Santa Anita district of the Los Angeles Superior Court. He then notified the dentist about the case, which he said would be settled if the dentist paid Kearney’s client $24,000. It was the first the dentist heard about the matter.
Several months later, Kearney sent his client another draft complaint and said it would be filed in the Rio Hondo district of the L.A. Superior Court. The client had paid $2,700 in five payments for Kearney’s work.
More than two years later, Kearney told the client he had filed a complaint and judgment had been entered against the dentist. Neither statement was true. He did not respond to the client’s suggestion that a lien be placed on the dentist’s home and a debtor’s examination be conducted.
The client gave him an additional $500 fee.
Kearney told the client he was pursuing efforts to collect on the judgment, continued to send purported legal documents and at one point, sent a $2,000 check meant to be the first installment of the settlement. He did not respond to the client’s demands for a copy of the judgment and other court documents, nor did he send any more money.
When the client hired a new lawyer, he learned no complaint had been filed and the statute of limitations had expired.
Kearney agreed to pay the maximum award his client could have won, $1,000 per month interest and the client’s legal fees, for a total of $35,000. He provided seven checks but each bounced. The client was able to recover only $2,372.50.
The bar court found that Kearney failed to perform legal services competently or communicate with a client and he committed acts of moral turpitude by making numerous misrepresentations to the client.
At a time when Kearney had no civil jury trial experience and had never filed a civil appeal, he filed a wrongful death case against the state of California. The court ruled the state was immune from liability.
He then filed a notice of appeal but did not pay the clerk’s transcript fee and the appeal was dismissed. Two other fees had been paid late. The court found that he failed to perform legal services competently or communicate with his clients by not informing them that additional fees were required.
Kearney has two prior disciplines.
The bar court recommended his disbarment because of “the very serious nature of the misconduct as well as the self-interest and protracted dishonesty underlying [Kearney’s] actions.” In addition, wrote Judge Robert M. Talcott, earlier similar misconduct suggests he “is capable of future wrongdoing and raise(s) concerns about his ability or willingness to comply with his ethical responsibilities.”
MORRIS BEE JENNINGS [#61618], 66, of Elk Grove was disbarred March 23, 2007, and was ordered to comply with rule 955.
In a default proceeding, the State Bar Court found that Jennings committed six acts of misconduct, including misappropriating $14,460 from a client, violating a court order, committing acts of moral turpitude, unauthorized law practice, and failure to maintain funds in a client trust account or pay client funds promptly.
Jennings received more than $14,000 in settlement of a 1993 personal injury case. Ten years later, he finally paid his clients $5,450 but did not pay the remainder of what they were owed. He repeatedly allowed the balance in his client trust account to fall below the required amount and admitted to his client and to the State Bar that he spent the money.
In 1995, Jennings moved his office and it was not until 2003 that his clients’ son was able to locate him through an internet search.
Jennings also was suspended in 1994 for one year, but did not inform his clients. He also continued to practice law and sent his clients letters on his letterhead, leading them to believe he was pursuing their case.
The submitted several false probation reports with the State Bar.
In recommending disbarment, Judge Joann Remke pointed to Jennings’ misappropriation, misrepresentations to his client and default in the disciplinary proceedings and said she was “seriously concerned about the possibility of similar misconduct recurring, particularly since the misconduct in [Jennings’] prior and current disciplinary matters all involved client funds and moral turpitude and had continued for more than 10 years.”
ROBERT HOWARD SACK [#165033], 47, of Los Osos was suspended for two years, stayed, placed on three years of probation with an actual two-year suspension and until he proves his rehabilitation and makes restitution, and was ordered to take the MPRE and comply with rule 955. The order took effect Feb. 17, 2007.
In a pretrial stipulation with the bar, Sack admitted he committed 20 acts of misconduct but he appealed a State Bar Court judge’s discipline recommendation to the court’s review department. A three-judge panel upheld the recommendation.
According to the review panel, Sack “caused substantial harm to his clients by recklessly turning over operation and control of his law practice for nearly two years to non-lawyers,” who apparently misappropriated $100,000 or more of trust funds. He was ordered to repay more than $41,000, plus interest, to former clients.
For several years, Sack operated a law office in Los Angeles where he employed four to six people, none of them lawyers, and catered to a mostly Korean-speaking clientele. He relied on his assistant manager to communicate with clients and had a CPA handle the bookkeeping. He lived in San Luis Obispo and, because his wife had serious health problems, he spent three or less days in his office each week.
Sack stipulated that his employees interviewed prospective clients and accepted cases and fees without his input, and they performed legal services, negotiated, settled and collected funds on clients’ claims without their knowledge or consent. He did not review the books carefully.
As a result, in four of five charged cases, he failed to maintain client funds in his trust account. His staff also wrote 24 checks against insufficient funds.
When Sack discovered that two accounts had been opened in his name without his knowledge, he fired his employees, took his name off the door and left with his files. He subsequently learned that his assistant manager had been taking clients’ money. Sack sued him and filed two suits against the bookkeeper, one for malpractice and the other for filing fraudulent and inaccurate tax returns. He also sued the bank for fraud, forgery and conspiracy.
At trial, Sack testified he revamped his office policies, has no employees and no one has access to his trust accounts.
His misconduct included failing to perform legal services competently, respond to client inquiries, refund unearned fees, notify clients of receipt of funds and maintain client funds in a trust account, and he sought an agreement to withdraw a disciplinary complaint and committed acts of moral turpitude.
The review department rejected Sack’s argument that the hearing judge weighed mitigating and aggravating circumstances incorrectly, resulting in an excessively harsh discipline recommendation.
DAVID TURNER HARNEY [#142760], 53, of Los Angeles was suspended for one year, stayed, actually suspended for six months and until the State Bar Court grants a motion to terminate the suspension, and was ordered to take the MPRE and comply with rule 955. If the actual suspension exceeds two years, he must prove his rehabilitation. The order took effect Feb. 17, 2007.
In a default proceeding, the bar court found that Harney committed three acts of misconduct — he failed to perform legal services competently, obey court orders or cooperate with the bar’s investigation.
A woman retained Harney’s firm to handle a medical malpractice case. Nine months after she signed a fee agreement and supplied her medical records, and despite numerous phone calls, nothing was done and the statute of limitations expired. The client won a malpractice judgment against the firm for $429,000 with interest.
She hired a lawyer to collect the judgment, but Harney failed to appear at two judgment debtor examinations. Two bench warrants were issued over two months and Harney’s bail was set at $25,000.
JON ROBERT KURTIN [#95454], 52, of San Diego was suspended for two years, stayed, placed on three years of probation with an actual 30-day suspension and was ordered to prove his rehabilitation and take the MPRE within one year. The order took effect Feb. 17, 2007.
Kurtin stipulated to two counts of misconduct related to his role in the sale and development of the Carlsbad Raceway. Kurtin is a licensed real estate broker as well as a lawyer. An affidavit, signed by a real estate broker, was needed to obtain the loan for purchase of the property. The broker was to have been involved in the loan negotiations.
Although Kurtin had nothing to do with arranging the loan, he signed an affidavit stating that he had been involved in the negotiations “since the commencement of the discussion leading to the loan.” Prior to signing, he told the attorney for the lender that the affidavit was false.
He stipulated that he committed an act of moral turpitude.
In subsequent litigation over issues including the loan, Kurtin entered into a settlement agreement and release of all claims that included an agreement by the lender to withdraw a complaint it had made about him to the State Bar. Seeking an agreement to withdraw a complaint to the bar violates the Business and Professions Code.
In mitigation, Kurtin had no prior discipline record.
JOE ALFRED LEYVA [#175131], 38, of Azusa JOE ALFRED LEYVA [#175131], 38, of Azusa was suspended for one year, stayed, actually suspended for one year and until the State Bar Court grants a motion to terminate the suspension, and he was ordered to take the MPRE and comply with rule 955. If the actual suspension exceeds two years, he must prove his rehabilitation. The order took effect Feb. 17, 2007.
In a default proceeding, the bar court found that Leyva committed six acts of misconduct in a property foreclosure case. He represented a married couple who wanted to pursue an action against the Bank of America and other parties.
After demanding an accounting of the proceeds from the foreclosure sale from two parties, he was successful in obtaining excess funds for his clients. Several months later, he told the clients he had filed a complaint against the defendants, although he had not done so. A year later, he filed a breach of contract complaint but did not serve the defendants. When the client complained about a lack of progress, Leyva said he was attempting to schedule mediation or a settlement conference; in fact, he knew the defendants had not been served and he had made no contact with them.
The court scheduled an order to show cause hearing, but Leyva did not inform the defendants, who did not appear as a result. Leyva told the court the defendants had been served; as a result, the court discharged the order to show cause and set a case management conference. The judge also ordered Leyva to notify the defendants about the conference; he did not do so.
At the conference, the court continued the matter when Leyva appeared and said the breach of contract action might proceed by way of arbitration. Leyva continued to make misrepresentations to the court over ensuing months and eventually the breach of contract complaint was dismissed. He did not notify his clients and instead made another misrepresentation and gave them a phony document with a forged signature that purported to be a request for a hearing.
Several months later, Leyva sent the file to the client, with a substitution of attorney form.
The State Bar Court found that Leyva failed to perform legal services competently, obey court orders, communicate with clients or cooperate with the bar’s investigation, and he made misrepresentations and committed acts of moral turpitude.
In mitigation, Leyva practiced for eight years without a discipline record.
RICHARD ANSON PHILLIPS [#157669], 44, of West Hollywood was suspended for one year, stayed, actually suspended for one year and until he makes restitution and the State Bar Court grants a motion to terminate the suspension, and was ordered to take the MPRE and comply with rule 955. If the actual suspension exceeds two years, he must prove his rehabilitation. The order took effect Feb. 17, 2007.
In a default proceeding, the State Bar Court found that Phillips engaged in the unauthorized practice of law, charged or collected illegal fees and failed to maintain a current address with the bar.
While suspended for non-payment of bar dues, Phillips represented a client in a probate matter, appearing in court, filing legal documents and receiving more than $14,000 in legal fees over a 14-month period. Because he was not entitled to collect any fees while suspended, the bar court ordered him to refund the money to his client.
Phillips also did not update his mailing address with the bar.
He had no record of discipline in 10 years in practice.
KARLA DIANE HENDERLONG [#100899], 52, of Walnut Creek was suspended for two years, stayed, placed on two years of probation with a 90-day actual suspension and was ordered to take the MPRE and comply with rule 955. The order took effect Feb. 17, 2007.
Henderlong stipulated that she commingled funds in her client trust account and did not cooperate with the bar’s investigation.
She repeatedly used her trust account for personal purposes, issuing more than 50 checks to satisfy personal obligations. She also deposited non-client funds in the account and wrote a check against insufficient funds.
Henderlong did not respond to five letters from bar investigators.
In mitigation, no clients were harmed, Henderlong was under severe financial stress and she had emotional or physical difficulties. She was privately reproved in 1997.
ELLEN ANN WHELAN [#135279], 49, of Manhattan Beach was suspended for 90 days, stayed, placed on one year of probation and was ordered to take the MPRE within one year. The order took effect Feb. 17, 2007.
Whelan pleaded no contest in 2005 to misdemeanor cruelty to a child. The bar court determined the conviction did not involve moral turpitude but did warrant discipline.
The conviction resulted from a 2004 incident involving both Whelan and her husband, who were arrested and charged with two counts each of infliction of corporal punishment on two of their minor children. The children told police their father hit them with a sweat stick, a plastic stick used to remove sweat from a horse. Their son accused his mother of punching him in the stomach and slapping his face. He said he was being punished for being disrespectful to the babysitter.
The couple’s daughter said her father pinched her face and spanked her after she got in trouble in school and apparently lied about it. She told police her mother pulled her head back by the ponytail.
The children recanted significant portions of their testimony at a preliminary hearing, where the judge found the testimony of neither child credible and believed they were trying to protect their parents.
In a trial before the bar court, Ellen Whelan testified that she pleaded no contest to protect her husband from a felony conviction and a possible loss of employment. She denied much of the children’s story and said she never hit her son or pulled her daughter’s hair. The bar court found her testimony not credible and “a direct attack of the conviction.”
In mitigation, Whelan practiced for 16 years without discipline.
JOHN YAHENG TU [#146945], 58, of Monterey Park was suspended for one year, stayed, placed on two years of probation and was ordered to take the MPRE within one year. The order took effect Feb. 17, 2007.
Tu stipulated that he failed to comply with probation conditions attached to a 2004 private reproval by not providing proof that he passed the MPRE.
MARK ROBERT MOORE [#74804], 56, of Peacham, Vt. was revoked, the previous stay of suspension was lifted and he was suspended for two years and until he proves his rehabilitation, and was ordered to take the MPRE, comply with rule 955 and prove that he completed ethics school. Credit toward the actual suspension will be given for a period of involuntary inactive enrollment that began May 14, 2005. The order took effect Feb. 23, 2007.
The State Bar Court review department upheld a hearing judge’s recommendation that Moore’s probation be revoked because he filed five probation reports late, did not file one report at all and did not provide proof that he made restitution. Moore had sought review, saying he was financially unable to make restitution or pay the required costs of his first disciplinary proceeding. The review court found his arguments “unmeritorious.”
Originally disciplined in 2001 for failing to perform legal services competently, promptly return a client’s file or refund unearned fees, Moore was suspended again in 2003 for failing to meet probation conditions. The latest discipline resulted from more probation violations.
DAVID M. VAN SICKLE [#167401], 53, of Roseville, Minn. was suspended for one year, stayed, placed on two years of probation with a three-month actual suspension and was ordered to comply with rule 955, take the MPRE and make restitution. The order took effect Feb. 23, 2007.
The State Bar Court review department, in a second ruling on Van Sickle’s misconduct, found that he charged an unconscionable fee in two matters he handled for a client and acquired an interest adverse to the client’s.
The client was injured in an automobile accident. She was driving a U.S. Postal Service truck that was involved in a crash with a car and another truck. The client originally hired another lawyer to handle her personal injury claim against the driver and owner of the car. After the first lawyer did significant work on the case, the client decided to handle it herself. The lawyer filed a lien against any recovery in the amount of $1,289.73 for costs plus one third of any recovery.
The client also sued the truck driver separately.
After interviewing three other lawyers, she hired Van Sickle to handle both personal injury lawsuits, a workers’ compensation claim and a fee dispute with the first attorney. Van Sickle and the client entered into a fee agreement that called for him to receive 35 percent of any settlement or judgment plus costs. Van Sickle said the client agreed to bear the full risk that she would be required to pay the first attorney his fees as well as pay Van Sickle’s 35 percent contingent fee. The client said Van Sickle never explained that she would have to pay both fees.
That is exactly what happened when the client received a $50,000 settlement. A fee arbitrator awarded the first lawyer $12,500 and Van Sickle took $14,874.99. Together, the lawyers were paid 53.75 percent of the settlement, an amount the review department said was unconscionable.
Van Sickle also charged the client a 25 percent contingency fee for the workers’ comp case, in which the client received nothing but medical benefits she obtained prior to hiring him. Van Sickle collected more than $2,200, 35 percent of the amount the client had received from her employer. The review department found that Van Sickle was entitled to no fees in that matter.
Van Sickle represented the client at a fee arbitration hearing for which he charged $500. The client agreed to pay the fee in installments and also agreed that if she were more than three days late on a payment, the entire amount would be due and payable. She granted Van Sickle a lien on her home to secure the fee. Van Sickle admitted that he acquired an interest adverse to the client by not advising her to seek independent legal advice before entering into the fee agreement with him.
In mitigation, Van Sickle entered into a pretrial stipulation with the State Bar as to some charges and he performed pro bono and community service.
IRIS CLAUDETTE BROSSARD [#183429], 45, of Los Angeles was suspended for one year, stayed, placed on two years of probation and was ordered to take the MPRE within one year and make restitution. The order took effect Feb. 24, 2007.
Brossard was retained to file a petition for permanent residence for a client and his family. The client paid a $3,500 fee in installments. Brossard had a baby around that time and was often absent from her office. She was not aware the application had not been filed or that her office had received funds from the client.
She did not respond to a bar investigator’s inquiries, despite receiving two letters, and she was unaware that discipline charges had been filed against her until she received a letter from the Client Security Fund because her client filed an application for reimbursement.
Brossard stipulated that she failed to adequately supervise her employees, refund unearned fees or cooperate with the bar’s investigation.
DMITRY DAVID KRAYEVSKY [#192548], 36, of Canoga Park was suspended for three years, stayed, placed on four years of probation with an actual one-year suspension and until he proves his rehabilitation, and was ordered to comply with rule 955. The order took effect Feb. 24, 2007.
Krayevsky stipulated to four counts of misconduct in two matters. The first was a personal injury case that he handled on a contingency fee basis. However, he failed to properly serve the complaint, conduct discovery, designate an expert witness (necessary to establish damages), conduct any trial preparation and allowed the case to be dismissed without notifying his client.
He stipulated that he failed to perform legal services competently or keep a client informed of significant developments in their case.
In a second matter, he stipulated that he failed to comply with probation conditions attached to a 2004 discipline order: he submitted two quarterly probation reports late, did not submit four more and completed ethics school late. After receiving notice that the State Bar planned to file charges for probation violations, Krayevsky filed four probation reports late.
In the earlier discipline, Krayevsky stipulated to misconduct in six matters, all for practicing law while suspended for non-compliance with MCLE requirements.
In mitigation, Krayevsky had a substance abuse problem at the time of the misconduct for which he is being treated.
JEFFREY ALAN BERGER [#104227], 51, of San Francisco was suspended for two years, stayed, placed on three years of probation and was ordered to prove his rehabilitation and take the MPRE within one year. The order took effect Feb. 24, 2007.
Berger successfully completed the State Bar Court’s alternative discipline program after he stipulated to 12 counts of misconduct in four client matters. The court found that his misconduct was the result of substance abuse; he participated for three years in the bar’s Lawyer Assistance Program and has committed to a five-year participation agreement.
Berger’s misconduct included misappropriating $6,000 that he was holding in trust for a client’s medical bill and failing to perform legal services competently, communicate significant developments to his clients or respond to their status inquiries, return client files or cooperate with the bar’s investigation.
He practiced law for 15 years without discipline prior to the start of the misconduct.
KENNETH E. COHEN [#129220], 56, of Encino was suspended for two years, stayed, placed on three years of probation and was ordered to take the MPRE within one year and make restitution. The order took effect March 16, 2007.
Cohen stipulated to 15 counts of misconduct in six client matters.
In the first, he filed a Chapter 13 bankruptcy petition for a married couple. However, two claims either were not listed or the incorrect amount was listed on the petitions and schedules submitted to the court, so Cohen approved a payment plan that was more than double what the clients anticipated without notifying them. When they learned about the change, they called him five times without success.
The husband hired Cohen to handle a child support modification because he owed his ex-wife a significant amount of overdue child support. Cohen suggested the client wait until the Chapter 13 bankruptcy was completed before trying to modify. He did not respond to the client’s subsequent inquiries and performed no further work.
In another matter, a couple retained Cohen to file a bankruptcy petition to protect their home from foreclosure. Although he filed the petition, it had several problems and the bankruptcy trustee filed various objections. Cohen did not take appropriate action to address the trustee’s concerns and the petition was ultimately dismissed.
He filed a second petition that also had problems and again the trustee filed various objections. Cohen did not appear at a hearing and the petition was dismissed.
Both petitions named the husband only.
Cohen then filed another petition on behalf of the wife without disclosing the husband’s employment or income. He never met or spoke with either of his clients.
After Cohen missed one hearing and sent another lawyer in his place to another hearing, the court issued an order to show cause why Cohen should not be sanctioned for abandoning his client and ordered to disgorge his fees. Cohen apologized, took full responsibility for his actions and promised to refund his fees, which he eventually did.
He mishandled four other bankruptcy matters and also did not respond to his clients’ status inquiries or refund unearned fees.
In mitigation, Cohen had a heart attack and underwent two heart surgeries in 1999 and reduced his caseload. All the cases in which he committed misconduct occurred after he resumed his practice. In 2000, his wife was diagnosed with pulmonary fibrosis, a terminal illness. Because she was unable to care for the couple’s minor children, Cohen spent less time attending to his clients. He and his children also suffered from depression and he was later diagnosed with bipolar disorder.
He cooperated with the bar’s investigation and has taken remedial measures to prevent future misconduct.
MONIKA MARGARITA ARBOLES [#170468], 39, of Los Angeles was suspended for one year, stayed, placed on two years of probation and was ordered to take the MPRE within one year. The order took effect March 16, 2007.
Arboles was handling a civil case in 2003, shortly before she decided to close her practice. Although she notified her client, the other parties and the court about her change of address, she did not notify the State Bar. As a result, she was unaware that she was suspended for a year for non-payment of bar dues and failure to comply with MCLE requirements.
During that year, Arboles also suffered a severe fracture to her leg that left her totally disabled. She advised her client to seek new counsel but continued to work on her case, not knowing she was not entitled to practice. When the client accepted a settlement offer, Arboles agreed to waive her fees and costs so the client could take home a higher net profit.
When another lawyer informed Arboles she was not entitled to practice, she took steps to rectify the situation. Although she should have withdrawn as counsel, there was significant activity in the lawsuit at the time. Knowing it would be difficult for the client to secure new counsel in the face of an upcoming trial, Arboles continued to handle the case. She did not verify her status with the bar before making a court appearance, where she was relieved as counsel at her client’s request and due to her suspension.
She stipulated that she failed to update her address with the bar and practiced law while not entitled.
In mitigation, she has no prior discipline record, cooperated with the bar’s investigation and demonstrated remorse.