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

The State Bar of California


REGULARS

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Front Page - October 1999
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News
Johnson confirmed for second term as bar's top prosecutor
Courts serve up mixed rulings on State Bar
Ethics association elects Karpman president
Six new governors join bar board
New group targets health care fraud
Public law section creates online library of public law links
JoAnne Spears honored
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Trials Digest
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Opinion
Slaying an imaginary dragon
The perfect ending: Results
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From the President - This bar year ends on a high note
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Letters to the Editor
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Public Comment
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Legal Tech - Tips for network administrators
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New Products & Services
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1999 Honors
State Bar cites pro bono service
Young lawyers salute San Diego sole practitioner for outstanding service
State Bar hails 'lawyer's lawyer'
Aided by attorney, parolee cited, hired
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MCLE Self-Study
The Rigors of Fee Agreements
Self-Assessment Test
MCLE Calendar of Events
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Discipline
Ethics Byte - Before you sue for fees, think again
Woman who impersonated husband ordered reinstated
Attorney Discipline

DISCIPLINE

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CAUTION!
More than 167,385 attorneys are eligible to practice law in California. Many attorneys share the same names.

All discipline reports should be read carefully for names, ages, addresses and bar numbers. Attorneys must report address changes within 30 days.

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DISBARMENTS
SHAUN ORVILLE ALLICOCK [#147000], 37, of San Jose was disbarred Aug. 6, 1999, and ordered to comply with rule 955 of the California Rules of Court.

Allicock was disciplined in March 1998, and was ordered to comply with rule 955 by notifying his clients and other interested parties that he was suspended from practice and to submit an affidavit to that effect to the Supreme Court.

He failed to submit the affidavit.

His misconduct, which began less than two years after he was licensed to practice law, included commingling client and personal funds in his client trust account, failure to deposit client funds in his trust account, paying personal expenses from that account and misappropriating client funds. He also failed to perform legal services competently in four client matters, communicate with clients in two matters, promptly pay a medical lien or keep his address current with the State Bar. In addition, he improperly withdrew from employment in three matters and entered into an improper business transaction with a client.

TIMOTHY W. ELLIOTT [#132789], 51, of Rancho Palos Verdes was disbarred Aug. 6, 1999, and ordered to comply with rule 955.

Elliott was disciplined in 1997 for misappropriating $4,000 of a client's settlement.

He was ordered to comply with rule 955 but he failed to submit the required affidavit to the Supreme Court.

FRANK BRUCE LEVY [#97684], 48, of Beverly Hills was disbarred Aug. 6, 1999, and ordered to comply with rule 955.

He was charged with 42 counts of misconduct in 11 matters.

Levy handled a large volume of personal injury cases and maintained 10 offices staffed by non-lawyers. He did not sign leases or pay rent for nine of the offices, and for the most part turned over control of the offices to non-lawyers. They accepted and settled cases, handled client funds, and at least one was a signatory on Levy's bank accounts.

"There was a pervasive carelessness in failing to give these employees any supervision and to oversee the trust accounts, which resulted in client funds being misappropriated," wrote State Bar Court Judge Carlos E. Velarde in a decision recommending disbarment.

Velarde found that Levy misappropriated about $15,000 in client funds, as well as another $16,000-plus which was not charged. Particularly egregious, said Velarde, was the re-hiring of an office manager who had earlier stolen funds from two clients.

In a matter handled out of Levy's Downey office, an insurance draft for $2,780 was cashed by the office manager but not deposited in any law firm accounts. The client had to pay the medical bill out of pocket. Levy testified he was unaware of the insurance check until notified about it by the bar.

Levy did not pay a medical claim of $8,999 for another client, and the balance in his client trust account fell below the required amount nine times and below zero three times. Levy blamed the Stanton office manager for the problem, but Velarde noted Levy's "gross non-involvement" with his clients.

Levy maintained a Wilshire Boulevard office for a time, sharing staff with another attorney. When the other attorney relocated, one of the staff attempted to steal a personal injury case from her. The employee, who had worked on the matter for the other attorney, offered the client $500 as an inducement to hire Levy. She was supervised by the office manager who had twice stolen funds from clients in two of Levy's other offices.

According to court papers, Levy paid the office manager, who then paid the staff based on the amount of work generated in the office. He also paid the manager a bonus based on a percentage of the gross amount of cases settled in that office. Velarde concluded that Levy was "guilty of gross lack of supervision" of the office.

He recommended disbarment, noting the totality of the misconduct, the "serious and inexcusable failure to supervise" and the fact that Levy's "purpose in maintaining multiple offices was motivated by personal gain."

SUSPENSIONS/PROBATION
MICHAEL S. CANTARUTTI [#158373], 35, of Santa Rosa was suspended for two years, stayed, placed on two years of probation with a six-month actual suspension, and was ordered to take the MPRE within one year and comply with rule 955. The order took effect June 18, 1999.

Cantarutti was the third attorney hired by a client to represent her in a lawsuit filed as a result of injuries she sustained in an automobile accident. The first attorney died before the complaint could be filed and the second filed suit against the other parties in the accident.

The client specifically asked that her husband, who was driving, his employer and their insurer not be involved in the litigation.

However, the defendants cross-complained against the husband and his employer, drawing them into the case.

The second attorney, who was handling the case on a 40 percent contingent fee basis, had reached a settlement with the husband's insurer after several months of work.

The client then hired Cantarutti, signing a retainer agreement which also provided for a 40 percent contingent fee. The other attorney filed a lien for her fees and costs.

Cantarutti's first act was to threaten the other attorney with a malpractice action unless she waived her lien; he based his threat on her purported failure to include the client's husband in the original suit.

The attorney explained the facts to Cantarutti, as well as laws governing how fees are divided. He again threatened a malpractice action and made the same settlement demand.

He then disavowed the settlement agreement the former attorney had reached, falsely claiming that she had no authority to act on her client's behalf. Cantarutti arbitrated the case and won a $21,000 judgment against the defendants.

Two settlement checks were sent to Cantarutti, but because they included the former attorney's name, he returned both and subsequently refused to sign either check unless he was guaranteed the full 40 percent contingency fee. He told his client she was responsible for paying each attorney 40 percent fees - 80 percent of the settlement.

He also sued the other attorney for malpractice, again offering to settle the matter if she would waive her lien for fees.

Cantarutti's client repeatedly instructed him to dismiss the suit and the other attorney warned him that she would sue him for malicious prosecution if he did not dismiss the action. He eventually dropped the case and was fired by his client, who had not received any settlement money.

Cantarutti eventually agreed to release some funds to his client, but only if the disputed 40 percent plus $5,000 was placed in trust. Prior to an arbitration proceeding, he demanded a payment of $10,000, which was more than the 40 percent fee of $8,400. He made that demand directly to his ex-client, although she was represented by counsel.

The arbitrator awarded 20 percent of the $8,400 to Cantarutti and 80 percent to the other attorney.

The State Bar Court ruled that Cantarutti failed to promptly release settlement funds to his client, charged an unconscionable fee, filed an unjust and meritless legal action and committed acts of moral turpitude.

In aggravation, the court said he committed an uncharged ethical violation by communicating directly with his former client when she was represented by counsel. Further, it said he exaggerated and lied to the court and that his "evasive, argumentative and untruthful testimony . . . may be misconduct even more serious than that which was charged."

The court warned Cantarutti that if he fails to make essential changes in his practice, "it will simply be a matter of time before he loses the right to practice entirely."

ROBERT JESS ORDUNA [#98182], 44, of Antioch was suspended for three years, stayed, and placed on four years of probation with an actual six-month suspension and until he completes the State Bar's client trust accounting school and proves his rehabilitation. He also must take the MPRE within one year and comply with rule 955. The order took effect July 16, 1999.

Orduna filed a bankruptcy petition for a client who paid $3,000 in advanced fees, but he failed to timely petition the court to be employed as the attorney for his client's estate, as required by law. Orduna then received an additional $3,400 from his client, but had not petitioned the court for approval of his receipt of fees, also required by law.

After the client hired another lawyer, Orduna petitioned the court to approve his employment and fees. He eventually was ordered to refund $3,400 to the client's attorney to pay a creditor and to refund another $2,000 to the client.

Orduna himself has financial problems and filed for bankruptcy in 1996. He never refunded any money to the client, but told the State Bar Court he intends to do so.

The court found that he failed to perform legal services competently and refund client money, and charged an illegal fee.

In a second matter, he wrote a check against insufficient funds in his client trust account, an act of moral turpitude.

Orduna has a record of prior discipline, stemming from his failure to properly manage entrusted funds, and he did not cooperate with the bar's investigation.

In mitigation, he has done considerable pro bono work for the Battered Woman's Alternative program in Contra Costa County.

ISAURO DIAZ [#130475], 39, of Los Angeles was suspended for three years, stayed, and placed on four years of probation with an actual 18-month suspension and until he makes restitution. If the actual suspension exceeds two years, he must prove his rehabilitation. He also was ordered to take the MPRE within one year and comply with rule 955. The order took effect July 22, 1999.

Diaz stipulated to misconduct in 11 consolidated cases, including eight counts of failure to perform legal services competently and five counts of failing to promptly refund advanced client fees. He also did not return clients' documents, keep clients apprised of developments in their case or cooperate with the bar's investigation, and he twice showed disrespect for a court by failing to appear at hearings or advise the court of his inability to appear.

In several cases, Diaz did not respond to interrogatories, file motions, comply with local rules or otherwise properly prosecute cases. He failed to appear at hearings in several matters, resulting in the dismissal of one case and the arrest of one client. He also allowed the statute of limitations to expire in a personal injury case.

Diaz has a prior record of discipline. He was privately reproved in 1993 for failure to perform legal services competently, return a client's file or refund unearned fees. He was again privately reproved in 1996 for misconduct in three matters, including failure to comply with probation in the 1993 discipline and failure to perform legal services or communicate with clients.

In mitigation, he cooperated with the bar's investigation, suffered financial stress and family problems and presented references attesting to his good character.

GELLY YUKON VALERO [#120406], 41, of Van Nuys was suspended for four years, stayed, placed on five years of probation with an actual 22-month 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. He also was ordered to pay a small claims judgment if his appeal is unsuccessful. The order took effect July 22, 1999.

Valero stipulated to misconduct in 16 consolidated cases, including eight counts of failure to maintain complete records of client funds, five counts of failure to pay out client funds, and one count each of failing to release client files, perform legal services competently or keep clients informed about developments in their case.

Valero handled personal injury matters for non-English speaking clients, many of whom had no medical insurance and relied on receiving medical services on a lien basis.

As his practice grew more demanding, he spent less time on it because of personal problems, including depression and divorce. In many cases, the demands by the lienholders were disproportionately high in relation to the settlement amounts. Valero's inattention to his practice caused the lienholders to resist negotiating the lien claims because of long delays in receiving payment.

Valero offered extensive mitigation. He worked seven days a week on his expanding practice, but began to encounter struggles with medical providers who refused to reduce their bills. He reduced his staff and caseload, but began to suffer depression, for which he received treatment.

His son suffered medical problems and his wife was mentally unstable, forcing Valero to care for the couple's three children.

His office was damaged during the Northridge earthquake and later burglarized three times, including the theft of computers containing his accounting information. In addition, his bookkeeper, who had paid herself unearned wages, quit and took accounting files with her.

He experienced disastrous financial problems, including foreclosure and $75,000 in credit card bills run up by his wife. While moving to a new office, some client files were destroyed inadvertently and he was unable to verify if doctors were paid.

FRANK R. SARIOL [#140406], 49, of Santa Ana was suspended for four years, stayed, placed on three years of probation with an actual five-month 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 July 22, 1999.

Sariol stipulated to misconduct in nine consolidated matters involving the misappropriation of client funds as a result of his haphazard failure to maintain adequate records.

In six matters, his negligent handling of the deposit, distribution and maintenance of client funds resulted in a failure to pay medical liens. He issued checks before deposits had been made, and a personal injury matter was dismissed as a result of his failure to pursue the case.

Sariol had enjoyed a booming practice in the early 1990s, but he became overextended and wound up in debt. He was overworked, his office became disorganized, and he sometimes did not have enough time to make deposits into his client trust account. He then became sick and did not recover for two years.

He is now paying off his debts and attempting to re-establish himself.

RICHARD ARNOLD ROCHA [#49728], 58, of Pomona was suspended for one year, stayed, placed on 30 months of probation with an actual 120-day suspension, and was ordered to make restitution, take the MPRE within a year, and comply with rule 955. If the actual suspension exceeds two years, he must prove his rehabilitation. The order took effect July 22, 1999.

Rocha stipulated that he failed to satisfy medical liens for three clients, maintain entrusted funds for clients, or perform legal services competently.

In mitigation, he has no record of prior discipline and he cooperated with the bar's investigation.