California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - FEBRUARY 2002
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DISCIPLINE

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CAUTION!

More than 178,000 attorneys are eligible to practice law in California. Many attorneys share the same names. All discipline reports are taken from State Bar Court documents and should be read carefully for names, ages, addresses and bar numbers.

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DISBARMENTS

KIM CALDER HAYES [#133757], 51, of Berkeley was disbarred Oct. 14, 2001, and ordered to comply with rule 955 of the California Rules of Court.

In August 2000, Hayes was suspended and his probation from two different cases was revoked. He was ordered to comply with rule 955 by notifying his clients and opposing parties of his suspension and submitting to the Supreme Court an affidavit stating that he had done so. He never filed the affidavit. Violation of rule 955 is grounds for disbarment.

The underlying discipline was the result of Hayes' abandonment of a client, failure to perform legal services competently, communicate with the client or return the client's phone calls.

Noting that Hayes failed to appear for three proceedings against him, State Bar Court Judge Eugene Brott wrote, "It appears that no disciplinary action taken to date has gotten respondent's attention as to his professional obligations. [He] has demonstrated that he cannot, or will not, conform his conduct to the high ethical standards required of attorneys in this state."

CHRIS PATRICK JOHNSON [#54928], 54, of Monterey was disbarred Oct. 14, 2001, and ordered to comply with rule 955.

Johnson was appointed the escrow holder for the sale of a business by the bankruptcy court, but misappropriated more than $120,000 of escrow funds he held in his client trust account. He allowed the balance in his account to drop below $2,000.

A temporary restraining order was issued against him, prohibiting him from transferring or removing any escrow funds and he was ordered to give the funds to the bankruptcy trustee. A preliminary injunction later ordered him to turn over the funds to the trustee, but he never did so.

A default judgment for $211,800 plus $150 in costs was issued against Johnson, but he did not comply.

In a default proceeding, the bar court found that Johnson misappropriated escrow funds, an act of moral turpitude, failed to properly maintain client funds, keep records or provide an accounting for client funds, turn over the funds to the trustee and did not cooperate with the bar's investigation.

Johnson has two prior disciplines, a 1997 private reproval for failing to perform legal services competently, communicate with a client or cooperate with the bar's investigation, and a 2000 suspension for violating the terms of his probation and failing to pay sanctions.

In recommending Johnson's disbarment, Judge Eugene Brott cited the seriousness and nature of his misconduct and the lack of any mitigating circumstances.

TONY RODRIGUEZ [#102882], 49, of Cerritos was disbarred Oct. 18, 2001, and was ordered to comply with rule 955.

In a default proceeding, the bar court found that Rodriguez did not comply with rule 955 as ordered in a 2000 discipline.

In that matter, which consolidated four cases, he stipulated to 19 counts of misconduct, all involving mishandling his client trust account. He repeatedly wrote checks against insufficient funds, allowed the balance in the trust account to fall below the required amount, misappropriated client funds, failed to maintain client funds in a trust account, commingled personal and client funds, and failed to cooperate with the bar's investigation. Some of the misconduct amounted to moral turpitude.

Rodriguez also has two other disciplines: in 1994, he stipulated to issuing nine checks against insufficient funds and failing to maintain client funds in trust, and in 1996, he was disciplined for failing to file two quarterly probation reports.

DANIEL GENE RUSSELL [#96063], 55, of Concord was disbarred Oct. 18, 2001, and was ordered to comply with rule 955.

Russell did not comply with rule 955, as ordered in a 2000 probation imposed for multiple acts of misconduct in four client matters. The bar court found he  failed to perform legal services competently, communicate with clients, refund unearned fees or return client files, and he improperly withdrew from employment. He failed to cooperate with the bar's investigation of two matters.

Noting that Russell defaulted in both the disbarment proceedings and the underlying matter, Judge Eugene Brott said his disbarment is necessary to protect the public, the courts and the community. "It appears that the prior disciplinary action failed to get respondent's attention as to his professional obligations," Brott wrote. "Respondent has demonstrated that he cannot, or will not, conform his conduct to the high ethical standards required to attorneys in this state."

JOHN OWEN STANSBURY [#43117], 60, of Oakland was disbarred Oct. 18, 2001, and was ordered to comply with rule 955.

In a default proceeding, the bar court found that Stansbury failed to comply with rule 955, as ordered in a 2000 discipline imposed for his failure to perform legal services competently, refund unearned fees, communicate with a client or keep his records current with the State Bar.

He also was publicly reproved in 1998 for failing to refund unearned fees.

In recommending Stansbury's disbarment, Judge Joanne Remke said he "has demonstrated an unwillingness to comply with the professional obligations and rules of court imposed on California attorneys even though he has been given several opportunities to do so."

GEORGE RICHARD ROYLSTON [#101918], 46, of Tucson, Ariz., was disbarred Oct. 21, 2001, and was ordered to comply with rule 955.

Roylston lost his license for misconduct committed in Arizona which would warrant his disbarment in California. He was disbarred in Arizona in 2000 and was ordered to make restitution to 12 clients totaling more than $76,000. He committed misconduct in 24 cases.

Had the misconduct been committed in California, the State Bar Court found, it would have involved 15 instances of failure to communicate with clients, 13 counts of failing to perform legal services competently, five acts of misrepresentation, dishonesty and misappropriation of client funds, seven instances of failing to return client files, and five instances of failing to refund unearned fees and engaging in the unauthorized practice of law.

Roylston also failed to render appropriate accounts to clients, maintain funds in a client trust account, comply with court orders or cooperate with the bar's investigation, and he improperly withdrew from representation and represented conflicting interests.

He defaulted in both Arizona and California.

SUSPENSIONS/PROBATION

KEITH HUBERT GILL [#43381], 72, of Woodland Hills was suspended for six months, stayed, placed on one year of probation and was ordered to take the MPRE. The order took effect Sept. 30, 2001.

Gill stipulated to misconduct in two cases.

In the first, he was hired by a couple to assist them in estate planning and to represent the husband's corporation. Gill took possession of the company's corporate minute book and stock book.

The client hired another lawyer to handle a collection matter, but despite repeated phone calls, Gill did not provide the file. Because the client was dissatisfied with Gill's failure to communicate in the collection matter, he hired a new lawyer to represent his company in its corporate matters. Gill did not provide the corporate minute book to the new lawyer until after the client complained to the State Bar. He also did not cooperate with the bar's investigation.

He stipulated that he failed to release client papers and property upon request.

Gill also did not cooperate with the bar's investigation of another complaint by two clients.

Gill was disciplined in 1997 for failing to perform legal services competently or communicate with a client.

In mitigation, no clients were harmed by his actions and he demonstrated remorse.

JACK H. KAUFMAN JR. {#57450], 53, of Escondido was suspended for two years, stayed, placed on three years of probation with an actual 120-day suspension, and was ordered to prove his rehabilitation, take the MPRE and comply with rule 955. The order took effect Sept. 30, 2001.

Kaufman stipulated that he practiced law while not entitled and committed two acts of moral turpitude.

Kaufman and another attorney represented clients in two separate cases against the same defendant. The two attorneys reached a "joint collection agreement" concerning judgments they received on behalf of their clients and negotiated a division of the defendant's assets.

Several months later, Kaufman was suspended for six months.

While suspended, he sent four letters to the other attorney in which he represented himself as attorney of record for his clients. Although he signed a substitution of attorney form, he did not file the form for more than two months.

As part of the disciplinary order, Kaufman was ordered to file with the Supreme Court an affidavit of compliance with rule 955. He incorrectly stated in the affidavit that he had no clients and no pending litigation.

Kaufman has been disciplined twice, in 1996 and in 1998 .

In mitigation, Kaufman believed he was acting as an escrow agent for his clients. The clients were elderly, pleaded with Kaufman for help and his actions were designed to prevent further harm to the clients, who had been unable to secure legal representation before hiring Kaufman. His actions did not harm them and he cooperated with the bar's investigation.

SUSAN JO MAGAR [#170061], 39, of Chicago was suspended for three years, stayed, actually suspended for 18 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, she must prove her rehabilitation. The order took effect Sept. 30, 2001.

Because Magar did not participate in the disciplinary proceedings, the only issue before the State Bar Court was the degree of discipline.

Magar was disciplined in Illinois for preparing fraudulent lease documents in order to refinance her property. After being denied a loan by one bank, she applied to another for an equity loan on her property, again submitting a fraudulent document under penalty of perjury. At the time, she was delinquent on her mortgage payments by $25,000. She received a loan of $135,848.50.

Had Magar's misconduct occurred in California, she would have been suspended for committing an act of moral turpitude, the court said.

ROBERT LOUIS MARKS [#104026], 46, of Santa Ana was suspended for two years, stayed, placed on two 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 Sept. 30, 2001.

Marks stipulated that he failed to perform legal services competently in a civil action he had filed in early 1991. In the summer of that year, he was suspended and closed his practice.

He notified all his clients except one. He also failed to update his address with the State Bar, so mail sent to his old address was not received.

Marks overlooked that one client's file, did not contact opposing counsel and made no arrangements to withdraw from the case. He also did not receive any documents or pleadings in the matter since he had closed his office. Believing that he had taken steps to properly withdraw from the matter, he took no further action. Judgment was entered against his client.

Marks was suffering from substance abuse problems, which affected his ability to supervise his secretary, led to a disorganized office and affected his ability to represent the one client he had.

Marks also was disciplined in 1993, but failed to comply with his probation conditions by not attending ethics school.

He was disciplined again in 1994 for not complying with rule 955 and in 1995 for a drunken driving conviction.

In mitigation, Marks reports successful substance abuse rehabilitation and is now employed in another line of work.

LUCINDA MORENO [#136850], 55, of Rosemead was suspended for six months, stayed, and was ordered to take the MPRE within one year. The order took effect Sept. 30, 2001.

Hired to handle both a Social Security disability matter and a workers' compensation claim, Moreno stipulated that she failed to respond to her client's inquiries about medical appointments, the return of medical files and the general status of the cases.

After meeting with her client in June 1997, Moreno did not communicate with him again until March of the following year, despite several phone calls and faxes seeking information about the status of the case. At the March meeting, she admitted she had done no work on either case, but said she would schedule doctor appointments for her client. In July, she promised again to schedule the doctor appointments, which finally were set in September.

An administrative law judge ruled in January 1999 that the client was not entitled to disability insurance benefits. The client asked Moreno to appeal. Moreno mailed the request for review before the required deadline, but the hearing department said the postmark was illegible and since the request was received after the deadline, it was rejected. Notice of the rejection, however, was not sent for more than a year.

In the interim, the client contacted his congressman for help with his case. Moreno did not respond to any efforts by either the congressman's office or the client to reach her for one year. Finally, the client fired her. The client eventually won review of his case.

Moreno has been disciplined twice: She was privately reproved in 1994 for failing to perform competently or communicate with clients in six cases, and she was suspended in 1996 for failing to perform competently or respond to client inquiries in one matter.

In mitigation, a staffing shortage contributed to Moreno's law office management problems and she cooperated with the bar's investigation.

JOHN FREDERICK MURPHY [#57868], 56, of Orange was suspended for one year, stayed, placed on two years of probation with a 90-day actual suspension, and was ordered to take the MPRE within one year and comply with rule 955. The order took effect Sept. 30, 2001.

Murphy settled a personal injury case for more than $12,000. Just prior to the settlement, he prevailed upon his client to lend him $1,000 without disclosing the terms of the loan in writing or advising the client to seek independent counsel.

Murphy received two settlement checks - one payable to him and his client for $10,855 and another payable to his client for $2,000. Both checks were negotiated and deposited in his trust account. The money was withdrawn but not paid to the client. Two months later, the client received the money by a check drawn from the office manager's general account. The settlement accounted for repayment of the loan and a reduction in Murphy's contingency fee.

Murphy stipulated that he improperly entered into a business transaction with a client, that by not supervising a non-attorney employee who removed the settlement funds from a trust account he failed to perform legal services competently, and that he failed to properly maintain client settlement funds.

In mitigation, Murphy paid the full amount of the settlement to the client.

He also was given a stayed suspension in 1996 for failing to report the filing of three or more malpractice lawsuits filed against him in a 12-month period.

ULYSSES GRANT PLUMMER III [#86628], 59, of Los Angeles was suspended for three years, stayed, placed on three years of probation with a one-year actual suspension, and was ordered to make restitution, take the MPRE within one year and comply with rule 955. The order took effect Sept. 30, 2001.

Plummer stipulated to five counts of misconduct in two matters.

Plummer prepared a trust for a client's grandmother and was given $13,000 to hold in trust. At the client's request, he also purchased and made payments for a used van for the grandmother. The van was repossessed after two years because Plummer stopped making the payments.

At that time, the clients asked for an accounting for the $13,000, which Plummer never provided. He stipulated that he failed to account for client funds and committed an act of moral turpitude by misappropriating client funds.

The same client also hired Plummer to obtain a division of real property, half of which was owned by the grandmother as a tenant in common with two people. Although he filed the complaint against the other property owners, he did not respond within the required time to any discovery requests and he did not fulfill a later agreement with opposing counsel to respond to discovery.

Plummer did not oppose other motions and ultimately the court granted summary judgment in favor of the defendants. Plummer did not file an objection to the proposed judgment, did not appear in court, and did not provide the file to his client, who fired him. A referee sold the property to the defendants.

Plummer stipulated that he failed to perform legal services competently. He also did not cooperate with the bar's investigation.

In a bankruptcy matter, Plummer admitted he failed to perform legal services competently, keep proper records of client funds or cooperate with the bar's investigation and he committed an act of moral turpitude.

Although he filed a Chapter 13 petition, he did not file the required summary and declaration until six days late and foreclosure proceedings were allowed to begin. He then waited six months to file a motion to set aside the dismissal.

Plummer also was disciplined in 1996 and 1997.

The previously ordered probation of JEFFREY ALLAN TEPPER [#96176], 49, of San Jose was extended for two years, beginning Sept. 30, 2001.

Tepper was suspended and placed on probation in April 2000, but filed two quarterly probation reports late. He was disciplined for failing to perform legal services competently or to cooperate with the bar's investigation.

In mitigation, he participated in the investigation and upon learning the probation unit would accept late reports, he promptly filed two probation reports.

BRENDA ELIZABETH VARGAS [#153230], 36, of Chino Hills was suspended for two years, stayed, placed on three years of probation with a nine-month actual suspension, and was ordered to make restitution, take the MPRE within one year and comply with rule 955. The order took effect Sept. 30, 2001.

Vargas stipulated to misconduct in 10 consolidated cases.

Seven counts resulted from practicing law while suspended from practice.

Four more counts stemmed from her efforts to obtain a sentence modification for a criminal  defendant. Vargas did not file any motions before the deadline or inform her client she was suspended. She later filed a request for the court to reconsider her client's sentence without his knowledge, listing her client as in propria persona.

After the court denied reconsideration of the case, Vargas sent the client a letter implying she had filed a request to modify the sentence and stating the judge denied the request because the client understood the consequence of his guilty plea. In fact, her request was denied because it was filed late.

She refunded $500 of the $1,500 advance fee, but her check bounced.

In another criminal matter, Vargas did not appear at her client's trial, requesting a continuance that day by phone. The judge denied the request, because it did not comply with local court rules, and appointed a public defender.

Vargas began a jury trial for another client but then advised her client to waive trial by jury. At the conclusion of the court trial, her client was found guilty and sentenced to six years in prison.

The client filed a petition for a writ of habeas corpus on the grounds that Vargas was ineffective at trial and said she would appeal his conviction and sentence and then did nothing.

In opposing her client's petition, Vargas signed an affidavit stating that the client had pleaded guilty, that his sentence was the result of a plea bargain and that no trial had taken place. Making those incorrect statements amounted to an act of moral turpitude.

Vargas was disciplined in 1998 for failing to properly maintain client funds, improperly withdrawing from representation and failing to refund unearned fees.

In mitigation, she cooperated with the bar's investigation.

FRANK WALKER WHITE [#98487], 63, of Simi Valley was suspended for two years, stayed, placed on three years of probation with a nine-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 Sept. 30, 2001.

White stipulated to misconduct in two matters.

He settled a personal injury case for $100,000. Of that, $30,000 went to the client, more than $35,000 was to be held in his client trust account to pay medical providers and White took the remainder as his fee.

The client's medical bills exceeded the amount held in the trust account, and while White negotiated with doctors and other claimants, the balance in the trust account fell below the required amount on numerous occasions over a three-year period.

He stipulated that he misappropriated client funds, an act of moral turpitude, failed to promptly pay medical providers and failed to maintain client funds in his client trust account.

In a second personal injury matter he settled for about $15,000, White again allowed the balance to fall below the required amount. He stipulated that he did not pay his client's doctors promptly, failed to maintain client funds in his trust account and misappropriated client funds, an act of moral turpitude.

In mitigation, White has practiced for almost 20 years without discipline and handled hundreds of personal injury settlements during that time. His conduct was aberrational. He was under extreme stress during the time of the misconduct due to his longtime partner's cancer.

White also has performed extraordinary pro bono services, has been a judge pro tem in Ventura County for 16 years, and is very active in charitable and public service organizations.

The probation of JOHNNY E. MOSQUEDA [#162225], 54, of Chino Hills was revoked, the previously ordered stay of suspension was lifted, and he was actually suspended for 75 days and placed on probation for two years. The order took effect Oct. 5, 2001.

Mosqueda stipulated to misconduct in 1999 and was placed on probation with conditions that included filing quarterly probation reports, submitting written statements showing his compliance with his criminal probation, and attendance at ethics school.

He failed to submit one probation report and did not provide three criminal probation reports or proof of attendance at ethics school. Although Mosqueda said he could not comply with probation conditions because of financial difficulties, the bar court rejected his excuse except in relation to ethics school.

The underlying discipline was the result of offering to split fees with a referring non-attorney in a sting operation. He pleaded guilty to three misdemeanor counts of violating the insurance code.

EUGENE BUTTON [#43263], 68, of Commerce was suspended for two years, stayed, placed on two years of probation with an actual 30-day suspension and was ordered to take the MPRE within one year. The order took effect Oct.10, 2001.

The State Bar Court found that Button practiced law while not entitled, committed an act of moral turpitude and failed to cooperate with the bar's investigation.

Button became embroiled in a membership fee dispute with the State Bar when he wrote a letter in 1996 asking to be placed on inactive status. The letter went astray and he was not put on inactive status, but instead was suspended. He did not receive notice of the suspension because he had moved but not provided his new address to the bar. However, he later received a courtesy letter, at an alternative address, which explained the reinstatement process.

Seven months later he contacted the bar about his suspension but never took any action.

In 1998, considering returning to work, he contacted the bar again and said he should have been placed on inactive status in 1996. The bar sent him a reinstatement form and a corrected fee statement showing he owed $842 for back fees and penalties and $1,605 in discipline costs from a 1997 disciplinary matter. He eventually paid the full amount and was reinstated in April 1999.

The previous year he was employed to represent a couple in a civil action. When the opposing counsel learned Button was not entitled to practice, she questioned him and he said he had a fee dispute with the bar but was entitled to practice. About a month later, the attorney again consulted the bar's website and found Button listed as not entitled to practice.

A letter from her firm put in writing Button's assertion that he was an active member of the bar in good standing. Button did not respond to the letter.

The bar court rejected Button's arguments that the bar was to blame for his troubles, pointing out that he closed his office and left the state without changing his address. It also said Button knew he had not been reinstated when he was handling the civil action.

ERIC LEIMSEIDER [#69116], 53, of Oakland was suspended for two years, stayed, placed on four years of probation with a 90-day actual suspension and was ordered to make restitution, take the MPRE within one year and comply with rule 955. The order took effect Oct. 10, 2001.

Leimseider stipulated to misconduct in four consolidated matters.

In handling a personal injury case, he lodged a demand for arbitration, but did not send the demand by certified mail, as required, did no further work on the case and the statute of limitations expired. He did not inform his client, who hired a lawyer to file a malpractice case against Leimseider. He did not provide the client's file to the lawyer or ever contact the client again.

In another matter which he settled for $7,000, he withheld $1,239 for payment of medical expenses, but he did not disburse the money until after the State Bar intervened.

Another client who hired Leimseider to represent her in a civil rights case and then discharged him asked for a refund of unearned fees. Leimseider did not reply to her request or return the money. In addition, although he no longer represented the client, he was served with a motion for summary judgment in the case, but did not respond or properly withdraw from the case.

In the final matter, Leimseider received a $2,000 advance payment to file an appeal in a case involving a taxi permit. He filed the notice of appeal but did no further work. When the client sought a refund, Leimseider returned $500 and promised to repay the remainder in payments of $100. He did not make any further payments.

Leimseider stipulated to one count of failure to communicate with a client, three counts of failing to refund unearned fees, one count of failing to distribute client funds and one count of improperly withdrawing from employment.

In mitigation, Leimseider has no record of discipline in 25 years of practice, he cooperated with the bar's investigation, he was forced to move his office twice because of financial reversals, and he suffered from depression because of his reduced financial circumstances.

CLARIFICATIONS
Recently disciplined attorney JOHN ROBERT FUCHS [#82032], 56, of Los Angeles, whose discipline summary was published in the January California Bar Journal, should not be confused with JOHN PAUL FUCHS [#89524], 47, of John Hill & Associates in Torrance, who has no record of discipline and is a member in good standing of the State Bar.