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In the Matter of Kaveh Ardalan

August 10, 2011

IN THE MATTER OF KAVEH ARDALAN, A MEMBER OF THE STATE BAR, NO. 188775.


The opinion of the court was delivered by: Remke, P. J.

PUBLIC MATTER - NOT DESIGNATED FOR PUBLICATION

OPINION

Respondent Kaveh Ardalan appeals from a State Bar Court hearing judge's recommendation that he be actually suspended for one year. Ardalan, who was admitted to practice law in 1997 and has two prior records of discipline, failed to respond to the State Bar Office of The Chief Trial Counsel (State Bar) during its investigation into an insufficient funds check he issued from his client trust account (CTA). Ardalan contends that the recommended suspension is excessive. The State Bar asks us to affirm.

Upon independent review of the record (Cal. Rules of Court, rule 9.12), we adopt the hearing judge's culpability finding. We also recommend a one-year suspension, although we find less mitigation and different aggravation than the hearing judge. While a single count of failure to cooperate generally would not warrant such a lengthy suspension, Ardalan was on disciplinary probation when he committed the misconduct and this is his third discipline case.

Opinion_Frm (03/11)

Guided by the Standards for Attorney Sanctions for Professional Misconduct *fn1 and relevant case law, we find a one-year suspension is appropriate under the facts unique to this case.

I. FACTUAL FINDINGS

The parties stipulated to most of the facts. This matter started with Ardalan's inattention to his CTA. In 2009, he agreed to refund a $2,500 retainer to a former client and to provide the money to the client's new attorney, Alan Armstrong. In exchange, Ardalan would receive $600 from the client for work he had performed. On May 27, 2009, Ardalan issued a $2,500 check from his CTA to Armstrong. The client's representative picked up the $2,500 check, and in exchange, gave Ardalan a $600 check. Ardalan needed to deposit the $600 check immediately to cover the $2,500 check, but he failed to do so. As a result, the $2,500 check was returned for insufficient funds (NSF) on June 1, 2009. Upon learning of his error, Ardalan deposited the $600 check on June 5, 2009, and reissued a check for $2,500 to Armstrong. The second check was honored.

The State Bar opened an investigation after Bank of America notified it of the NSF check. On October 7, 2009, and again on October 30, 2009, a State Bar investigator sent letters to Ardalan. The first letter asked Ardalan to respond in writing to allegations of CTA misconduct and warned him that failure to cooperate with the investigation was a violation of Business and Professions Code section 6068, subdivision (i).*fn2 The second letter enclosed a copy of the first letter, again asked for a response, and reminded Ardalan again about his duty to cooperate. Ardalan admits he received these letters, but did not respond. He offers several reasons for these failures, including procrastination, embarrassment, lack of concern for his professional future, and disregard of the State Bar.

On January 11, 2010, State Bar Deputy Trial Counsel Monique Miller sent Ardalan a letter stating that the State Bar would file a Notice of Disciplinary Charges (NDC) against him if he did not contact her by January 28, 2010. Ardalan received this letter, but did not contact Miller. On February 1, 2010, the State Bar filed the NDC. From the time Ardalan issued the NSF check through the time he failed to respond to the State Bar, Ardalan was on disciplinary probation.

II. CULPABILITY

The hearing judge properly found Ardalan culpable of the single count at issue: his failure to cooperate with a State Bar investigation in violation of section 6068, subdivision (i). *fn3

This section requires attorneys to "cooperate and participate in any disciplinary investigation or other regulatory or disciplinary proceeding pending against himself or herself." As charged, Ardalan violated this duty when he received and ignored the two October 2009 letters from the State Bar investigator asking for his response. He is culpable even though he ultimately participated in these proceedings after the NDC was filed. (In the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631, 644 [§ 6068, subd. (i) "contemplates that attorneys may be found culpable of violating their duty to cooperate if they fail to participate either in the investigation or in the formal proceedings" (italics in original)].)

III. AGGRAVATION AND MITIGATION

We determine the appropriate discipline in light of the relevant circumstances, including mitigating and aggravating factors. (Gary v. State Bar (1988) 44 Cal.3d 820, 828.) Ardalan must establish mitigation by clear and convincing evidence (std. 1.2(e)), while the State Bar ...


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