California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - FEBRUARY 1999
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DISCIPLINE

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DISBARMENTS
DAVID FRANCIS GROSSMAN [#46766], 52, of Encino was disbarred July 17, 1998, and ordered to comply with rule 955 of the California Rules of Court.

In 1997, Grossman was suspended and placed on five years of probation with conditions including a requirement that he comply with rule 955 by notifying all his clients and other pertinent parties of his suspension. He did not submit an affidavit to the Supreme Court attesting that he had done so, and as a result was disbarred.

The original misconduct resulted from Grossman's violation of trust accounting rules.

He also was placed on probation and suspended in 1978 after a conviction on federal charges of possession of cocaine for sale.

MICHAEL L. OSTERBERG [#145993], 40, of Oakland was disbarred July 17, 1998, and ordered to comply with rule 955.

Osterberg misappropriated more than $42,000 from a client, lied about it and tried to characterize the theft as a loan. The State Bar Court found that two of his actions constituted moral turpitude.

Osterberg was hired to help a client in the collection and distribution of funds being held in escrow for him. After being paid $2,500 for his services, he deposited $130,000 in his client trust account, and at his client's instructions, distributed more than $87,000 to nine individuals.

Over a five month period, Osterberg took the remaining money for himself or others, until the balance of the client trust account fell to $74.58.

When the client asked that Osterberg either release the funds or provide an accounting, he told the client that the federal government had frozen the funds.

After being unable to contact Osterberg, the client filed a complaint with the State Bar. Before giving the client $25,000, Osterberg asked the client to withdraw the complaint as a condition of repayment. He also gave the client a promissory note, backdated more than a year, purporting to document a $50,000 loan from the client to Osterberg. The note was meant to mislead the bar about Osterberg's actions.

Osterberg still owed his client $17,600.He never responded to the bar's investigation.

In recommending disbarment, bar court Judge Nancy Roberts Lonsdale wrote, "Conduct of this kind is reprehensible and seriously damaging to the reputation of the legal profession."

SUSPENSIONS/PROBATION
OLIVIA THERESA IBARRA [#71307], 47, of Long Beach was suspended for two years, stayed, placed on two years of probation with a 120-day actual suspension and until she makes restitution, and was ordered to comply with rule 955. If the actual suspension exceeds two years, she must prove her rehabilitation. The order took effect July 17, 1998.

In a default hearing, the State Bar Court found that Ibarra committed acts of misconduct in two cases.

In the first matter, she was hired by a high tech firm to obtain a labor certification and change of visa status for an immigrant the company wished to hire as an engineer. Because the company could not find qualified workers, it stressed the urgency of quick action by Ibarra.

She told the company she filed the application. After numerous phone calls and written communications, she asked for additional documents, which the company sent immediately.

After more unanswered phone calls, the company sought a status report, the return of some documents and a refund. Ibarra finally submitted the required documents to the INS, but never responded to any other requests by the company. The company eventually obtained verbal approval to hire the engineer.

The State Bar Court found that Ibarra failed to communicate with clients, perform legal services competently, refund fees or return files. She also did not respond to State Bar inquiries about the matter.

The court made a similar finding in a second case in which Ibarra abandoned clients who hired her to handle an immigration matter. She was asked to obtain visa extensions and convert the status of her clients from vistors to non-quota resident aliens, as well as to obtain permission for one of the clients to be employed pending the change in status.

The clients paid Ibarra $1,500 and provided documents including birth certificates, passports, a marriage certificate, passport photographs and fingerprint cards.

Despite the clients' requests, Ibarra never returned their documents or refunded their fee.

Ibarra also was disciplined earlier last year for similar misconduct, involving failure to complete a client's immigration case. In that matter, she was placed on probation and given an actual 30-day suspension.

JOHN MICHAEL BROWN [#38995], 57, of Pleasanton was suspended for one year, stayed, and placed on two years of probation with an actual 60-day suspension. The order took effect July 17, 1998.

Both the State Bar and Brown sought review of a State Bar Court hearing judge's 1996 decision that found Brown responsible for three disciplinary violations in a single matter. The court found that he failed to perform legal services competently or communicate with his client, and he misrepresented the status of the case to his client.

Bar prosecutors asked for longer probation and a lengthier suspension, while Brown sought a reduction of both. The bar court's review department rejected all of the bar's contentions, all but one of Brown's contentions, and upheld the hearing judge.

Brown's problems resulted from his representation of a client to handle the client's mother's wrongful death and a medical malpractice action.

Brown did not prosecute the lawsuit within four and a half years after filing it.

He did not file a request to set a trial date, despite his promises to his client that he would do so. After four letters and numerous telephone calls from the client, Brown finally asked his paralegal to draft and send to the hospital a joint status report. The hospital's attorney refused to sign and return the report because Brown did not cooperate with the hospital's efforts to obtain all his client's mother's medical records.

During his client's deposition, Brown agreed that the medical records would be provided. However, he never asked his client to sign a release and never produced the records.

Eventually, the superior court dismissed the suit, finding that Brown had not exercised due diligence to expedite the case, and that he had done very little work that was not prompted by the defense.

Brown denied responsibility for his failure to prosecute the case, citing fast track problems, placing blame for some of his actions on his paralegal, and blaming the opposing counsel for unjustly refusing to sign and return the joint status report. The review judge rejected all three arguments.

The review judge also agreed with the hearing department's findings that Brown has a prior record of discipline (although its importance was somewhat diminished because it occurred contemporaneously with the misconduct in this case), that he committed multiple acts of misconduct, harmed his client and was not candid in his testimony before the bar court.

In mitigation, Brown suffered from a serious illness, experienced financial problems, and presented evidence of his good character.

The hospital case marked the third time a disciplinary matter against Brown has gone to the bar's review department.

An earlier discipline involving Brown's failure to file timely tax returns and properly handle entrusted funds was appealed twice by bar prosecutors.

Brown has been attorney since 1966 and had no record of discipline until the 1991 conviction of three misdemeanor counts of violating the Unemployment Insurance Code for failing to pay tax monies withheld from his employees' and his wages.

He has continued to pay his taxes, now uses a payroll service, has discontinued practicing as a professional corporation and reviews the financial condition of his office at least quarterly with an accountant.

The probation of MICHAEL ALAN BAKER [#65108], 50, of Northridge was extended for one year. The order took effect July 17, 1998. Baker was suspended and placed on probation in 1996 with a requirement that he make quarterly probation reports. None has been submitted.

Baker was convicted of one count of mail fraud in U.S. District Court in Sacramento in 1995 and was placed on probation in 1997.

In mitigation, he has been cooperative.

CYNTHIA ANN DUNNING [#126627], 44, of Alta Loma was suspended for two years, stayed, placed on two years of probation with a 90-day actual suspension and until she makes restitution, and was ordered to take the MPRE within one year and to comply with rule 955. If the actual suspension exceeds two years, she must prove her rehabilitation. The order took effect July 19, 1998.

In 1991, Dunning assumed another attorney's caseload, which included representation of two clients in a personal injury matter. After negotiating a settlement, Dunning's office received two settlement checks made out to the two clients and Dunning.

Dunning's employees forged the clients' signatures on documents purporting to release all claims by the clients and sent the documents to the insurance company as part of the settlement. They then forged the clients' signatures on the checks and deposited them into Dunning's general checking account without Dunning's knowledge.

The clients did not receive the funds, which were used by Dunning and her office manager. Dunning did not know the clients were entitled to the funds in question.

She stipulated that she was grossly negligent in failing to supervise her staff or adequately review her case files and bank statements to ensure that client funds were properly maintained.

Dunning failed to maintain client funds in trust and failed to keep her clients informed of developments in their case.

In mitigation, Dunning has no record of discipline in 12 years of practice.

JEAN MICHAEL IRIGOYEN [#177626], 36, of Fresno was suspended for three years, stayed, placed on three years of probation with an actual 90-day suspension and until he proves his rehabilitation, and was ordered to take the MPRE. The order took effect July 19, 1998.

Irigoyen was convicted of petty theft in 1996 after he stole a computer fax modem from an electronics store in Fountain Valley. He was placed on three years of probation and ordered to pay a fine.

The bar court found that his actions constituted an act of moral turpitude. In 1997, he was placed on interim suspension, which was terminated last April by the court's review department.

In a second matter, he misused his client trust account by writing a check for a business expense on that account. The check bounced. The misconduct did not result in any harm to clients.

In mitigation, Irigoyen was a drug addict at the time of the theft, has undergone drug rehabilitation, continues to volunteer with the rehab program, has no record of discipline, and cooperated with the bar's investigation.