Appendix — Allegrino v. State Bar of California (No. 07-1174)

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

; OF TLED

071 174 JAN & - 2008

OFFICE OF THE CLERK

Q)

No.

In The

Supreme Court Of The United States

Anthony J. Allegrino II, Petitioner,

V.

The State Bar of California, Resp.

On Petition for Writ of Certiorari To

The California Supreme Court

APPENDIX

Anthony J. Allegrino II

367 Windsor Highway, PMB 149

New Windsor, NY 12553

(914) 837-1765

Counsel for Petitioner Pro Se

Dated: March 11, 2008

LIST OF DOCUMENTS

Dec. of California Supreme Court

Dec. of State Bar of California State

Bar Court Review Department

Dec. of State Bar of California State

Bar Court Hearing Department

Trans. May 3-5, 2005

Ronald Mag. uson E-mail

Bar Complaiat Magnuson

Bar Complaint Byer

Bar Correspondence

Request for Review — Petitioner

Request for Review — Byer

Request For Reconsideration

Dec. of Federal Court

Dec. of Linda Giordano

Pages

App. A.

App. B

App. C

App. I

App. F

App. H

App. H

App. H

App. E

App. G

App. D

App. J

App. K

Appendix A

BEST AVAILABLE COPY

(State Bar Court Case No. 04-0-

12846)

SUPREME COURT

$154342

IN THE SUPREME COURT

OF CALIFORNIA

OCT 1 0 2007

EN BANC

Frederick K. Ohlrich Clerk

IN RE ANTHONY JOSEPH ALLEGRINO, II

ON DISCIPLINE

The peition for writ of review is denied.

It is hereby ordered that Anthony Joseph

Allegrino, II State Bar No. 200905 be disbarred

from the practice of law and that his name be

stricken from the roll of attorneys. Respondent is

ordered to make restitution within 30 days

2

following the effective date of this order or within

30 days following the Client Security Fund (CSF)

ayment, whichever is later (Rules Proc. of State

ar, rule 291), to

Muhamat Kabashi in the amount of $41,500 plus 10%

interest per annum from May 15, 2004, (or to the CSF

to the extent of any payment from the fund to Muhamat

Kabashi, plus interest and costs, in accordance with

Business and Professions Code section 6140.5). Any

restitution to the CSF is enforceable as provided in

Business and Professions Code _ section 6140.5,

subdivisions (c) and (d). Respondent is also ordered to

comply with rule 9.20 of the California Rules of Court.

and to perform the acts specified in subdivisions (a) and

(c) of that rule within 30 and 40 days, respectively, after

the date this order is effective.* Costs are awarded to

the State Bar in accordance with Business and

Professions Code _ section 6086.10 and_= are

enforceable both as provided in Business and

Professions Code section 6140.7 and as a money

judgment.

*(See Bus. & Prof. Code, § 6126, subd. (c).)

Case No. 04-0-12846

OPINION ON REVIEW

REVIEW DEPARTMENT OF THE STATE BAR

COURT

In the Matter of ANTHONY JOSEPH ALLEGRINO,

Il,

A Member of the State Bar

In this original disciplinary proceeding, the

State Bar's Office of Chief Trial Counsel (State Bar)

requested review of a hearing judge's decision

recommending a five-year stayed suspension and five

years' probation on various conditions including actual

suspension for three years and until payment of

specified restitution and compliance with standard

1.4(c)(ii).1 The hearing judge determined that, ina

single matter involving two clients, respondent

Anthony Joseph Allegrino, II, was culpable of 19 counts

of misconduct, including failing to perform competently,

charging and collecting illegal and unconscionable fees,

4

misappropriating $40,000, making numerous

misrepresentations, failing to return unearned fees,

and improperly withdrawing from representation. On

review, the State Bar asserts that the appropriate

sanction pursuant to the standards is disbarment.

Although he participated in the hearing department

proceedings below, respondent failed to participate on

review.

Upon our independent review of the record (Cal.

Rules of Court, rule 9.12; Rules Proc. of State Bar, rule

305(a); In re Morse (1995) 11 Cal.4th 184, 207), we

adopt most of the hearing judge's findings and

conclusions and modify others, as more fully set forth

below. However, as we discuss post, we determine that

in order to protect the public, the courts, and the legal

‘The standards are found in the Rules of Procedure of the

State Bar, title IV, Standards of Attorne’ Sanctions for

Professional Misconduct. All further references to standards are to

this source.

profession, maintain high professional standards, and

preserve public confidence in the legal profession,

disbarment is the only suitable disciplinary

recommendation.

I. Significant

Procedural History

Respondent was admitted to practice law on

June 1, 1999. He has one prior record of discipline. In

three immigration law matters, respondent was found

culpable of serious misconduct, including three counts

of charging and collecting unconscionable fees, failing

to perform and to return unearned fees, and

committing acts of moral turpitude in all three cases

by making unauthorized charges to clients' credit cards

and billing substantially more than the original

agreed-upon flat fee. On September 28, 2005, the

Supreme Court filed an order suspending respondent |

from the practice of law for two years and until he

complied with standard 1.4(c)(ii), execution stayed,

and placing him on five years' probation with

conditions including one year of actual suspension.

II. Statement of Facts

On May 5, 2004, Kujtim Gjokaj (Gjokaj), Berat

Kabashi (Kabashi) and Fatmir Gashi (Gashi) were

detained in Laredo, Texas, by the United States

Border Patrol on charges of attempted illegal entry

into the United States from Mexico. Gjokaj, Kabashi

and Gashi are Albanians from Kosovo, who were

seeking political asylum in the United States.' Kabashi

and Gashi are cousins, and they met Gjoka)j on the

trip.

After he was detained, Kabashi telephoned his

cousin Muhamat "Mike" Kabashi (Mike) in New York.

Mike immediately began working to obtain Kabashi's

and Gashi's release from

*Kabashi and Gashi testified that their families were

persecuted by Serbian authorities because of their Albanian

ethnicity. They recounted specific incidents from 1998 to 2004

when family members were jailed, beaten and/or killed.

Because of their fear of persecution in Kosovo, Kabashi and

Gashi sought the help of a travel network to be smuggled out of

their country and eventually to Mexico. From Mexico, Kabashi,

Gashi and Gjokaj waded across the Rio Grande River and were

caught in the desert by the Border Patrol a few miles inside the

Texas border.

custody. Their bail was set at $20,000 each. Kabashi

asked Mike to telephone Gjokaj's relative, Burim

Gjokaj (Burim), who also lived in New York. Mike

telephoned Burim and told him about Gjokaj's arrest.

On about May 6, 2004, Burim hired respondent to

represent Gjokaj. Shortly thereafter, respondent flew

from New York to Texas to meet with Gjokaj.

Around May 10, 2004, Kabashi was approached

to serve as an interpreter between Gjokaj and

respondent.‘ After his meeting with Gjokaj, respondent

told Kabashi that he could obtain his and Gashi's

release and a change of venue to New York where

their relatives lived. Kabashi gave respondent his

cousin Mike's telephone number.

About May 10, 2004, respondent called Mike to

offer his services to represent Kabashi and Gashi. He

proposed to post bail and file motions for a change of

venue for a fee of $2,500 for each of them, plus $20,000

each for their bail. Mike told respondent that he

thought the price was too high, that he already had an

attorney he intended to use for the change of venue,

and that he planned to post bail himself at the

Immigration and Customs Enforcement (ICE) office

in New York as soon as he was able to raise the funds.

Mike contacted numerous bonding companies in

his effort to raise funds for bail. He obtained a trust

deed on a co-operative owned by one of his brothers to

post as collateral for the bail bond only to find out later

that a co-operative was not acceptable collateral. Mike

eventually contacted an uncle in Kosovo to seek help in

finding someone with money or enough credit to pledge

as collateral for the bonds. The uncle put Mike in touch

with Gjon Lleshaj (Llesha)), a

3Respondent lives in New York, but is not licensed to

practice law in New York or Texas. Whether respondent's practice

in New York, or his representation of clients in Texas, constituted

the unauthorized practice of law in those jurisdictions was not

pursued by the State Bar. (Rules Prof. Conduct, rule 1-300(B)

{member shall not practice law in a jurisdiction where to do so

would be a violation of regulations of the profession in that

jurisdiction].)

‘At the time, Kabashi spoke only limited English and could

not read it at all. Gjokaj and Gashi neither syoke nor read English.

fellow S4lbanian who owned a construction company in

Manhattan. Lleshaj agreed to lend Mike the money.'

On Friday, May 14, 2004, Mike drove from his

residence in the White Plains area of New York to

Lleshaj's Manhattan office to pick up a check for

$40,000. He drove back to White Plains and deposited

the $40,000 check into his bank, Sound Federal

Savings Bank. Mike obtained two bank checks in the

sum of $20,000 each for Kabashi's and Gashi's bail.6

He then drove back to Manhattan to take the checks to

the ICE office. Although he arrived at about 1:50 p.m.,

Mike was told by the ICE staff that it was too late to

have the bail bonds processed that day. He was given

blank applications and told to return with the

completed applications and the checks on Monday,

May 17, 2004.

As Mike was leaving the ICE office at about 2:10

p.m., he received a telephone call from respondent

asking if he had obtained the bail money. Mike

12

confirmed that he had the money and related the

events at the ICE office. Respondent offered to reduce

his fee to represent both Kabashi and Gashi for a total

of $1,500, and promised to obtain their release the

following day (Saturday, May 15, 2004) if Mike

deposited $41,500 in certified funds into respondent's

Citibank account. That sum represented the $20,000

bail for each detainee plus $1,500 for respondent's fees

to post bail and to seek a change of venue to New York.

‘At trial, respondent attempted to cast aspersions on

Lleshaj by insinuating that he was a recently-indicted criminal.

He further sought to attack the credibility of Mike, Kabashi

arid Gashi by asserting that they were associated with or

employed by Lleshaj for criminal purposes. The hearing judge

found, and we agree, that respondent's unsupported contentions

were successfully refuted by the more credible testimony of Burim

and Glenn H. Bank, an experienced immigration attorney in New

York who represented Lleshaj in his immigration matter and who

ultimately represented Kabashi and Gashi in their asylum

petitions.

$Mike was able to withdraw these funds the same day as

the deposit because he had approximately $90,000 in a corporate

account at the same bank from a recent business sale. However,

the funds from the sale of the business were still under review by

an accountant and could not be released for a couple of weeks.

13

While consulting with other attorneys, Mike had

learned that a change of venue alone would cost around

$1,000. He decided the extra $500 respondent was

charging was worth it to secure Kabashi's and Gashi's

earlier release on Saturday rather than Monday.

Although Mike had misgivings about dealing with

someone he did not know, the prompt release of

Kabashi and Gashi induced him to retain respondent.

Mike told respondent that he would require a written

agreement before he deposited the funds, and directed

respondent to fax the document to a travel agency Mike

had recently used. Upon contacting the travel agency

later that day, Mike learned that respondent's fax

agreement had not arrived. When he reached

respondent in Texas, respondent claimed to have

already faxed the agreement, but agreed to fax it again.

In one of their conversations that same day, respondent

14

told Mike he would bring some forms for Kabashi and

Gashi to sign that were necessary for the change of

venue.

On May 14, shortly after talking with Mike,

respondent met with Kabashi and Gashi, and informed

them that Mike had hired him to represent them.

Respondent provided documents for Kabashi and Gashi

to sign, asserting that they pertained to their release

and the change of venue.' The men refused to sign

anything until they talked with Mike. Kabashi and

Gashi left the meeting room and telephoned Mike

from a phone in the detention center. Mike explained

that, if they agreed, he was prepared to pay respondent

$1,500 to post their bail, obtain their release on

Saturday, and then seek a change of venue.

Kabashi and Gashi agreed to hire respondent.

Believing that the papers related to the change of

venue, Mike advised them to sign the papers. Kabashi

and Gashi rejoined respondent, and despite being

unable to read any portion of the documents other than

15

his own name, Kabashi signed two documents — one

for himself and one on behalf of Gashi. Although

Kabashi informed respondent that neither he nor Gashi

could read English, respondent neither translated the

documents nor explained the contents.

‘Respondent also falsely stated that their bail could be

between $20,000 and $50,000 because they were of the Muslim

religion, and that their bail would increase the longer they were

detained.

16

Contrary to respondent's representations, the

documents Kabashi signed were not for their release or

a change of venue, but, instead, were fee agreements.

Other than each client's name, the two agreements

were identical: three pages with no handwriting, and

neither agreement was dated nor signed by

respondent. The agreements provided, in relevant

part, that:

(1) "All flat fees are earned immediately

after

Client tenders a payment to Attorney,"

(2) "If additional work is required beyond

the normal amount in a similar matter,

Client agrees to pay Attorney at a rate of

$325.00 Per Hour;"

(3) “Attorney Fees: 91

(4) There will be an administrative charge

of no less than $295 to copy a complete

case file.

Clients who owe any Attorney fees

must pay the balance plus the $295.00

in order to

obtain a copy of the case file;"

"There are No Refunds of Flat Rated

Attorney Fees or Hourly Attorney's

Fees

Once Earned or Time Expended

On

Client's Legal Matter. The Non-

Refundable Retainer is to ensure

Attorney Availability;"

(6) "Client grants Attorney a lien on any

real, personal or intellectual property

that Client has an interest in for all

monies owed from this agreement;" and

(7) "Chient hereby grants and conveys full

release to Attorney as to any financial

disputes under this Agreement and all

those associated with Attorney upon the

presentation of an invoice detailing

charges to Client and upon Client signing

such invoice acknowledging such services

as rendered and correct. However, an

unsigned invoice or an unjustified refusal

to sign an invoice shall not be deemed a

protest of such invoice by such Client.

Additionally, after 30 days of presentment

of such invoice to Client by Attorney,

Client will be deemed to have ratified and

accepted such invoice as if signed by such

Client. Furthermore, Chent hereby agrees

to be limited to the remedy of arbitration,

which shall be binding or nonbinding at

the noncomplaining party's option, which

costs shall be borne at the losing party's

expense, in the event of a dispute under

this Agreement in a venue mutually

agreeable to both or all parties to this

Agreement."

At the time Kabashi signed the documents, they

did not set forth the scope of representation or a flat

fee amount. This information was handwritten into

the agreements later by respondent without Kabashi's,

Gashi's or Mike's knowledge or consent. Specifically,

respondent subsequently added the following terms and

conditions: (1) under services to be performed:

"Evaluate bail situation/modification if needed to

obtain release from custody, if possible, and transfer

case to New York District, if recommended and if

needed and if possible, and prepare asylum petition, if

warranted under law, and obtain asylum status, if

19

Needed and if possible possible and if warranted under

law;" (2) under attorney fees: "$27,750;" and (3)

directly above the signature line: "Invoice

acknowledged as received and any and all charges

reflect charges for flat fees for services rendered as

agreed for flat fee of $27,750." Respondent never

provided Mike with copies of these agreements.’

Kabashi and Gashi did not know they were fee

agreements, and never consented to the terms and

conditions set forth therein.

On Saturday morning, May 15, Mike

redeposited the two $20,000 checks he had previously

drawn, and had a bank check issued for $40,000

payable to respondent and a separate check for $1,500

also payable to respondent. The $1,500 check bore the

typed-in notation: "Legal fees at Laredo, Texas, paid in

full." Although Mike still had not received any written

agreement from respondent, he nevertheless deposited

the checks into respondent's account as directed

because he was anxious to secure the release of

Kabashi and Gashi that same day.

After depositing the money into respondent's

account, Mike drove immediately to the tra el agency

and found two identical faxes from respondent. In the

faxes, respondent promised to "post immigration

bonds" for Kabashi and Gashf upon receipt of the

funds.® After reading the faxes, Mike telephoned

respondent to tell him that the deposit had been made

to his account.

8The hearing judge found respondent's testimony as to the

circumstances surrounding the execution of the fee agreements not

to be credible. More specifically, the hearing judge determined that

respondent was not credible when he contended, among other

things, that his services were to be rendered for a flat

2!

fee of $27,750 each; the fee was payment solely to

reserve his time; he was retained to represent

Kabashi and Gashi on May 6, 2004; he had worked

over 100 hours by May 20, 2004; and the $325 per hour

rate set forth in the retainer agreement was for extra

work not usually included as part of the representation,

and was in addition to the $27,750 flat fee to reserve

his time. Conversely, the hearing judge found Mike to

be a credible witness. These credibility determinations

are supported by overwhelming evidence, and we thus

find no reason to reject or modify them on review.

(Rules Proc. of State Bar, rule 305(a) [review

department gives great weight to hearing judge's

findings resolving issues of credibility]; Franklin v.

State Bar (1986) 41 Ca1.3d 700, 70.8.)

9As discussed post, respondent subsequently altered this

document to reflect that the entire $41,500 was for attorney fees.

requested that respondent call him immediately upon

the release of Kabashi and Gashi as Mike had already

made their travel arrangements to New York.

That same morning, respondent checked out of

his hotel in Laredo, visited Kabashi and Gashi in

custody for 10 to 15 minutes, and apprised them of the

deposit made on their behalf. He mentioned that he

was having "some trouble with the judge," and

thus, they would not be released that day as he had

hoped. He further told them that he would obtain their

release on Monday, May 17, 2004. However,

respondent knew that he was not going to be in

Texas on May 17 to secure their release because he

had a mandatory court appearance in Los Angeles on

that date in his prior disciplinary matter before the

State Bar Court. Later on Saturday, Kabashi told Mike

that respondent had visited briefly that morning and

had told them that they would not be released until

Monday. After the brief meeting on May 15, 2004,

respondent had no further contact with Kabashi or

Gashi.

On May 17, 2004, Mike attempted

unsuccessfully to reach respondent several times on

his cell phone. Kabashi and Gashi were still being held

in Laredo and were awaiting their release that day as

respondent had promised. After respondent failed to

return Mike's calls, Mike called once more, this time

leaving a message that he was going to alert law

enforcement unless he heard from respondent by 10

a.m. on Tuesday. On Tuesday morning, May 18, 2004,

respondent called Mike and informed him that

Kabashi and Gashi would be released that day and

asked him not to contact the police. He assured Mike

that he was taking care of everything. However,

Kabashi and Gashi were not released on May 18, 2004,

and respondent stopped returning Mike's telephone

calls.

On May 19, 2004, Mike filed a criminal

complaint against respondent with Joseph Crispino of

the New York State Police. Mike gave Crispino copies of

the faxed agreement from respondent, the checks he

had deposited into respondent's account, and the

deposit slip for $41,500.

Crispino contacted respondent, who agreed to

meet for an interview. During their discussion,

respondent gave Crispino the agreement that he had

altered after faxing it to Mike. The alterations included:

(1) adding the words "by power of attorney" after the

words "as you [Mike] are financially responsible for

their case," and (2) adding the words "to handle matter

- legal fees" at the end of the sentence instructing Mike

to deposit $41,500. By making the second change,

respondent endeavored to falsely characterize the

entire $41,500 as his attorney fees. When Crispino

showed respondent the fax agreement furnished by

Mike, respondent alleged that he added the additional

language after Mike notified him that the first fax had

not been received in an effort to clarify their

agreement. Mike never received a version of the

agreement respondent provided to the police.

Respondent admitted to Crispino that he did not

meet or know of Kabashi and Gashi until he arrived in

26

Laredo to represent Gjokaj around May 10, 2004. He

told Crispino that he had decided to withdraw as

counsel for Kabashi and Gashi on May 15, 2004, before

leaving Laredo because he was unwilling to act

unethically as Kabashi and Gashi had wanted."°

Respondent also told Crispino that Kabashi and Gashi

were suspected terrorists who had asked him to concoct

a fraudulent basis for their asylum claims. However,

Kabashi and Gashi never fully discussed with

respondent the facts upon which their asylum

applications would be based." Nor did Kabashi or Gashi

ever ask respondent to tabricate grounds for their

asylum claims. Kabaghi and Gashi were never told by

the authorities or respondent that they were suspected

terrorists.

When Crispino questioned respondent as to why

he did not return the fees when he decided to withdraw,

respondent claimed that he had earned all the money.

He claimed that he had performed a lot of research.

However, respondent was unable to provide Crispino

27

'°Respondent's remarks to Crispino are

inconsistent with the billing statements respondent

subsequently submitted to Mike, which indicate that he started

working on the cases on May 6, 2004, and continued until May 20,

2004.

‘Respondent had never prepared an asylum petition for

any client prior to May 6, 2004.

billing sheets, research results, or any other

documentation to support his claim. When

respondent was asked to justify charging $41,500,

respondent stated that it was a flat-rate fee and that he

was entitled to it even if he only worked one hour.

As a result of Crispino's investigation, criminal

charges were filed against respondent in New York for

grand theft, and his bank account containing

approximately $38,000 at the time was frozen. The

criminal matter was still pending at the time of the

hearing below.

On May 21, 2004, respondent called Mike and

told him: "I told you to trust me. You did not. You went

to the police, so, therefore, I quit. When I get around to

it, I will send you a final bill." Sometime thereafter,

Mike received from respondent a letter dated May 20,

2004, and two billing statements. In the statements,

respondent represented that Kabashi and Gashi had

each

paid only $20,750 of a $27,750 nonrefundable flat fee,

and therefore owed him an additional $7,000 each. In

the letter accompanying the statements, respondent

declared that he had fulfilled his obligations under the

agreements and was withdrawing from representation

because: (1) Kabashi and Gashi did not have valid

asylum claims; (2) they had made statements and

requests necessitating withdrawal; (3) Mike had not

met his financial obligations; and (4) Mike had engaged

in outrageous, uncooperative and unacceptable conduct.

The letter stated that the flat fee was nonrefundable.

Respondent did not communicate his intent to

withdraw to Kabashi or Gashi.

At the time respondent withdrew from

representation, he had performed no services of value.

He filed no documents on behalf of Kabashi and Gashi,

and made no court appearances. He neither posted bail

nor secured their release. Respondent never returned

any portion of the advanced fees he was paid to

30

represent Kabashi and Gashi. His failure to return the

$41,500 humiliated and frustrated Mike, who remains

indebted to Lleshaj for that amount.

When respondent did not appear in court on

Kabashi's and Gashi's behalf on May 20, 2004, they

employed another lawyer from Texas who represented

them at a bail reduction hearing on May 27, 2004, for a

fee of $1,000 each. Kabashi's and Gashi's bail was

reduced to

31

$4,000 each and both were released shortly after the

bail reduction hearing. Mike paid for the bail and

attorney fees in both cases. Glenn H. Bank (Bank)

ultimately took over the cases and his flat fee for the

removal proceedings, including an asylum petition

and change of venue, was less than $5,000 each for

Kabashi and Gashi.

III. Culpability

A. Jurisdiction

Although the misconduct in this matter occurred

in Texas and New York, we have jurisdiction to

regulate misconduct even when it occurred in another

state. (Einslie v. State Bar (1974) 11 Cal.3d 210.) -

Although the State Bar has discretion whether to

pursue allegations of alleged misconduct in other

states, there is simply no jurisdictional requirement

that the alleged misconduct must occur in this state in

order to be prosecuted by the State Bar of California."

32

(In the Matter of Respondent V (Review Dept. 1995) 3

Cal. State Bar Ct. Rptr. 442, 447; see also Bus. & Prof.

Code, § 6049.1(e) [permitting disciplinary proceedings

against a California attorney based on conduct in

another jurisdiction].)

B. Failure to Perform Services with

Competence (Counts One and Two)

Respondent was charéed in counts one and two of

the Notice of Disciplinary Charges (NDC) with

violating rule 3-110(A) of the Rules of Professional

Conduct by intentionally,

‘Bank, an attorney who has practiced immigration law in

New York since 1979 and who has handled 200-250 cases for

people from Kosovo over the last five years, testified as an expert

33

in immigration practices. Based on Bank's credible testimony, the

hearing judge adopted, as do we, the following findings: (1) an

hourly rate of $325 exceeds the prevailing rate in immigration

matters; (2) a $27,500 flat fee for representation in any

immigration matter is unprecedented; (3) change of venue motions

are routinely granted where, as in this case, the detainees have

family living near another immigration court; and (4) Kabashi and

Gashi had valid grounds for political asylum petitions based on the

requirement to demonstrate subjective fear of persecution due to

ethnic identity or political opinion in their home country and that

such fear must be objectively reasonable.

34

recklessly andor repeatedly failing to perform legal

services competently.’ 3 Respondent was hired to post

bond to obtain Kabashi's and Gashi's release and to

seek a change of venue to New York. However, he failed

to post bond, file any papers, make any court

appearances or take any action to obtain his clients’

release or a change of venue. Respondent had only two

very brief meetings with Kabashi and Gashi on May 14

and 15 during which no substantive legal issues were

discussed. The hearing judge concluded, and we agree,

that respondent intentionally and repeatedly failed to

perform with competence by not taking any steps to

resolve Kabashi's and Gashi's matters prior to

withdrawing from their representation in wilful

violation of rule 3- 110(A).

C. Illegal and Unconscionable Fees (Counts

Three through Seven)

35

Rule 4-200(A) prohibits an attorney from

entering into an agreement for, charging or collecting

an illegal or unconscionable fee. The State Bar alleges

that respondent violated this rule in five different ways

by charging unconscionable fees, by collecting those

fees, and by entering into an agreement for illegal fees.

We agree with the hearing judge that respondent

wilfully violated rule 4-200(A) by charging

unconscionable fees. However, as discussed below, we

dismiss count five, which alleges that respondent

collected unconscionable fees, because we find that

count to be inconsistent with the more serious finding

that the funds were misappropriated. We also dismiss

counts six and seven, which allege that respondent

entered into agreements for illegal fees, finding that

there were no valid or enforceable fee agreements.

1. Charging unconscionable fees

36

(counts three and four)

We agree with the hearing judge that respondent

violated rule 4-200(A) by charging $27,750 as a flat fee

($41,500 total) for his proposed services. Our

determination of unconscionability is not based on the

written fee agreements respondent had Kabashi sign

unknowingly, since, as we explain below, we conclude

they are not valid or enforceable fee

37

agreements. Rather, the finding is based on

respondent's repeated claim to $41,500 in fees despite

the fact that he failed to perform any services of value.

In the absence of a valid fee a*treement, we

measure an attorney's compensation based on a theory

of quantum meruit, rather than the full contract price.

(Spires v. American Bus Lines (1984) 158 Cal.App.3d

211, 216.) Here, however, respondent failed to perform

any services of value. He was hired to post bond and

seek a change of venue. He did neither. Instead,

respondent immediately left town without performing

any legal work on behalf of Kabashi and Gash’.

According to respondent's own testimony, his fee did

not include an asylum petition, and if he decided that

one was appropriate, he would charge an additional

$325 an hour to prepare it. As an experienced

immigration lawyer, Bank testified that a $27,000 flat

fee for representation in any immigration matter is

unprecedented and incredibly high. Bank subsequently

charged Kabashi and Gashi less than $5,000 each for

his services, which included seeking changes of venue

and preparing asylum petitions. Additionally, Mike

could have hired other attorneys to resolve the venue

matter for as little as $1,000. As for posting bail, Mike

was prepared to handle it himself and only hired

respondent because he was misled into believing that

respondent could expedite their release.

"(In general, the negotiation of a fee

agreement is an arm's-length transaction.

[Citations.]" (Ramirez v. Sturdevant (1994) 21

Cal.App.4th 904, 913.) However, the right to practice

law "is not a license to mulct the unfortunate. . ." (Recht

v. State Bar (1933) 218 Cal. 352, 355.) "The test is

whether the fee is 'so exorbitant and wholly

39

disproportionate to the services performed as to shock

the conscience." [Citations.]" (Bushman v. State Bar

(1974) 11 Cal.3d 558, 563.) Under the facts and

circumstances of this case, respondent's claim to a flat

fee of $41,500 is "so exorbitant and wholly

disproportionate to the services performed as to shock

the conscience."

Thus, his attempt to charge $41,500 in fees is

indisputably unconscionable. Accordingly, we find that

respondent wilfully violated rule 4-200(A) by charging

unconscionable fees.

40

2. Collecting unconscionable fees

(count five)

We decline to find that respondent also violated

rule 4-200(A) by collecting the $41,500 in

unconscionable fees. Collection of a fee implies consent

on the part of the client to pay that fee, which consent

was absent in this case. (See Most v. State Bar (1967)

67 Cal.2d 589, 597 [attorney may not unilaterally

determine his fee and withdraw funds held in trust for

his client as payment without knowledge or consent of

client].) The $40,000 collected from Mike was not

intended as fees. The $40,000 was specifically intended

as bail money. Respondent unilaterally decided to keep

the money and claim it as his fees. Under the facts of

this case, we find respondent's conversion of the bail

money to fall within the purview of misappropriation

rather than collection of unconscionable fees.

41

Accordingly, we dismiss count five with prejudice.

3. Entering into an agreement for

illegal fees (counts six and seven)

Respondent argued below that the fee

agreements prove his position that Kabashi and Gashi

agreed to pay him $27,750 each as a flat fee for his

services. However, respondent obtained the signatures

on the fee agreements only by fraudulently

representing to Kabashi and Gashi that the documents

related to their release and change of venue. Neither

Kabashi nor Gashi knew that the papers were in fact

fee agreements. Furthermore, respondent added the

key provisions regarding the fee amount and the scope

of services after the agreements were signed. As a

result, Kabashi and Gashi never knew about, and could

not have agreed to, the terms and conditions of the fee

agreements. It was neither their understanding nor

their intent to pay a flat fee of $27,750 each. They

agreed to pay respondent $1,500 as his fee.

While fraud in the execution of a contract may

result in a finding that mutual assent is lacking, it does

not mean that the contract is automatically void. The

rule in California, as clarified by the Supreme Court in

Rosenthal v. Great Western Fin. Securities Corp. (1996)

14 Cal.4th 394, is that fraud in the execution does not

render a written contract void where the defrauded

party had a reasonable opportunity to discover the real

terms of the contract before signing it. Therefore, lo}ne

party's misrepresentations as to the nature or

character of the

43

writing do not negate the other party's apparent

manifestation of assent, if the second party had

‘reasonable opportunity to know of the character or

essential terms of the proposed contract." (Id. at p.

423, citing Rest.2d Contracts, § 163, p. 443.) In

Rosenthal, two plaintiffs declared they were unable to

read the documents presented to them because they

knew very little English and one asserted she could not

read the documents because she was legally blind. The

Supreme Court held that these facts, assuming they

were true, deprived the plaintiffs "of a reasonable

opportunity to learn the character and essential

terms of the documents they signed" (id. at p. 428,

citation omitted) and "would suffice to establish

reasonable reliance for purposes of showing fraud in

the execution of the agreement." (Jd. at p. 429.) Thus,

44

"{a] party does not have ‘a reasonable opportunity’ to

discover the true nature of the writing if the party is

prevented from doing so by some physical or other

impairment." (Jones v. Adams Financial Services

(1999) 71 Cal.App.4th 831, 837 [contract void where 79-

year-old woman, who was legally blind and suffered

from dementia and hypothyroidism, was tricked into

signing loan agreement by being told that papers

merely authorized defendants to obtain payoff

information on her existing mortgage].)

In the instant case, respondent clearly

misrepresented the nature and character of the

documents. However, as set forth in Rosenthal v. Great

Western Fin. Securities Corp., supra, 14 Cal.4th 394,

the analysis does not stop with a finding of

respondent's fraud. The issue is whether - the

defrauded party had a "reasonable opportunity” to

45

learn about the nature of the document before it was

signed. If the answer is in the affirmative, "such

‘negligence’ precludes a finding the contract is void for

fraud in the execution. [Citation.]" (Id. at p. 423.) Here,

Kabashi and Gashi were detained in custody in Texas

at the time the agreements were signed. Neither of

them could read English, and Kabashi's English

speaking was limited. Gashi neither spoke nor read

English. Despite knowing this, respondent failed to

provide any translation of the documents. Kabashi and

Gashi declined to sign the documents and contacted

Mike, who confirmed what respondent had previously

told him, i.e., the documents were for their release and

change of

46

venue. Kabashi and Gashi had already been in custody

for nine days, and respondent promised that he was

going to be able to obtain their release the next day,

Saturday. Respondent also told them thas their bail

would increase the longer they remainedan custody. He

repeatedly urged Kabashi and Gashi to trust him

because he was their attorney. Under the

circumstances, the court finds that neither Kabashi nor

Gashi acted in an objectively unreasonable manner in

signing the papers. Accordingly, based on respondent's

fraud in the execution of the agreements, and his

clients' complete lack of consent to enter into the

agreements, mutual assent was lacking and the

agreements are void.

Although we dismiss with prejudice counts six

and seven, we find respondent's unilaterally modified

written contract is evidence of overreaching, which we

consider a serious factor in aggravation. (See

discussionpost, § IV., A.)

D. Misappropriation of Funds (Counts

Eight and Nine)

Business and Professions Code section 6106"

makes it a cause for disbarment or suspension to

commit any act involving moral turpitude, dishonesty

or corruption, whether the act is con-unitted in the

course of his or her relations as an attorney or

otherwise, and whether the act is a felony or

misdemeanor or not.

We agree with the hearing judge that there is

clear and convincing evidence that respondent violated

section 6106 by misappropriating the $40,000 advanced

for Kabashi's and Gashi's bail. We note that "an

attorney's failure to use entrusted funds for the purpose

for which they were entrusted constitutes

misappropriation." (Baca v. State Bar (1990) 52 Cal1.3d

294, 304, citing Copren v. State Bar (1944) 25 Cal.2d

129, 134.) Rather than post bail as promised,

respondent kept the money, falsely claiming it as his

fees. Respondent's misappropriation of these funds

48

violates basic notions of honesty and endangers public

confidence in the legal confession.

All further references to section are to the Business and

Professions Code unless otherwise indicated

49

E. Moral Turpitude Based on

Misrepresentations (Counts Ten through

Sixteen)

Section 6106 expressly states that moral

turpitude includes acts of dishonesty, and it has long

been established such dishonesty includes an

attorney's false or misleading statements. (Bach v.

State Bar (1987) 43 Cal1.3d 848, 855; Chefsky v. State

Bar (1984) 36 Cal1.3d 116, 124; In the Matter of

Johnson (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr.

179, 184.) In counts ten through sixteen of the NDC,

respondent was charged with seven separate counts of

moral turpitude based on multiple allegations of

misrepresentations.

We agree with the hearing judge that there is

clear and convincing evidence that respondent made

the following misrepresentations:

(1) to Mike, that he would post immigration

50

bonds for Kabashi and Gashi upon receipt of the funds

(count ten);

(2) to Kabashi and Gashi that their bail was

going to be between $20,000 and $50,000 because of

their Muslim religion (count eleven);

(3) to Mike, that respondent could obtain

Kabashi's and Gashi's release from custody on

Saturday, May 15, if Mike deposited $41,500 into

respondent's bank account immediately;

(4) to Kabashi and Gashi, that he was having

trouble with the judge on their cases, but that they

would be released on Monday, May 17 (count thirteen);

(5) to Mike, that Kabashi and Gashi would be

released on May 18 (count fourteen);

(6) to Mike, that the reason for respondent's

withdrawal from representation of Kabashi and Gashi

was that they had asked him to concoct false claims for

their asylum petitions (count fifteen); and

- $.

ee"

(7) to agents of the New York State Police, that

Kabashi and Gashi were suspected terrorists, that they

had asked respondent to concoct false claims for their

asylum applications, and that he had decided to

withdraw from representing them on May 15 (count

sixteen). He also provided the police with a version of

the agreement faxed to Mike that had been altered to

allot the entire $41,500 as respondent's fees.

$2

The hearing judge found, and we agree, that

respondent knew at the time he made the

representations that they were false. We adopt the

hearing judge's findings, and accordingly, conclude that

respondent's multiple misrepresentations are acts of

dishonesty constituting moral turpitude within the

meaning of section 6106. (In the Matter of Moriarty

(Review Dept. 1999) 4 Cal. State Bar Ct. Rptr. 9, 15; In

the Matter of Teinkin (Review Dept. 1991) 1 Cal. State

Bar Ct. Rptr. 321, 330.)

F. Failing to Return Unearned Fees

Promptly (Count Seventeen)

The hearing judge found respondent violated

rule 3-700(D)(2), which requires an attorney whose

employment has terminated to promptly return any

part of a fee paid in advance that has not been earned.

53

After he withdrew as their counsel, respondent did

not return the $1,500 fee paid to him to represent

Kabashi and Gashi, which was unearned, as

discussed above. Respondent's failure to return

the unearned fee is a clear violation of rule 3-

700(D)(2). However, as discussed post, we also find

that respondent violated rule 3-700(A)(2) as charged.

Since rule 3-700(A)(2) is more comprehensive and

mandates compliance with rule 3-700(D)(2), we decline

to find a separate violation of rule 3-700(D)(2), and

dismiss with prejudice count seventeen as duplicative.

(In the Matter of Dahlz (Review Dept. 2001) 4 Cal.

State Bar Ct. Rptr. °

269, 280.)

G. Improper Withdrawal from

Representation (Counts Eighteen and

Nineteen)

The hearing judge found that respondent

54

violated rule 3-700(A)(2), which prohibits an attorney

from withdrawing from employment until he has taken

reasonable steps to avoid reasonably foreseeable

prejudice to the rights of a client. This includes giving

due notice to the client, allowing time to retain other

counsel, complying with rule 3-700(D) and complying

with other applicable laws and rules. We agree.

Respondent effectively withdrew from

employment on May 15, 2004, when he left Texas

haviné done nothing to seek or obtain Kabashi's

and Gashi's release. Respondent never informed

Kabashi and Gashi of his intent to withdraw from their

representation and, indeed,

54

never again communicated with them after his brief

initial meeting. On May 20, 2004, they had to request a

continuance of the hearing in order to obtain new

counsel, and as a result, they remained in custody

until after May 27, 2004. Furthermore, as discussed

above, respondent failed to return the unearned fee of

$1,500. By not informing the clients of his intent to

withdraw as their attorney and by not returning the

unearned fee, respondent failed to take reasonable

steps to avoid reasonably foreseeable prejudice to

Kabashi and Gashi in wilful violation of rule

3-700(A)(2).

IV. Discipline

In determining the appropriate level of

discipline, we consider the aggravating and mitigating

factors.

A. Aggravation

56

Respondent has a prior record of discipline.

(Std. 1.2(b)(i).) As noted ante, on September 28, 2005,

the Supreme Court filed an order suspending

respondent from the practice of law for two years and

until he complied with standard 1.4(c)(ii), execution

stayed, and placing him on five years' probation

with conditions including one year of actual

suspension. In three immigration law matters,

respondent was found culpable of making unauthorized

charges to clients’ credit cards and billing substantially

over the original agreed-upon flat fee. Discipline was

imposed for three violations of rule 4-200 (charging and

collecting unconscionable fees), one violation each of

rule 3-100(A) (failure to perform) and rule 3-700(D)(2)

(failure to return unearned fees), three violations of

sections 6106 (moral turpitude, dishonesty or

corruption) and two violations of section 6068,

subdivision (c) (maintaining an illegal or unjust action).

No mitigating circumstances were found in the

prior disciplinary matter. In aggravation, respondent

committed multiple acts of misconduct. There also was

significant client harm, including loss of funds,

additional expenditures to participate in the fee

arbitration process, the defense against an unjust

lawsuit, and out-of-state travel to participate in State

Bar Court proceedings. Indifference toward atonement

for or rectification of the consequences of his

58

misconduct was also an aggravating circumstance.

Respondent failed to demonstrate remorse or

recognize his wrongdoing.

In the case at hand, the hearing judge found that

the misconduct in the prior matter started shortly

after respondent was admitted to practice and

continued into 2004, and that the misconduct in

the present case took place in 2004. Based on the

timing of the misconduct in both matters, the hearing

judge determined that the aggravating effect of the

prior discipline was diminished as it was not

indicative of respondent's inability to conform to

ethical norms. Thus, he .considered the totality of the

findings in both cases to ascertain the appropriate

discipline had the matters been brought as one case.

We disagree with the hearing judge's decision to

diminish the aggravating effect of the prior record of

discipline. The misconduct in the instant case teok

$9

place during the trial of respondent's prior disciplinary

matter. We are also very concerned about the

similarities between the misconduct in the prior and

current cases, particularly the charging of

unconscionable fees and respondent's dishonesty. The

fact that respondent was participating in 'the prior

proceeding for similar misconduct should have

amplified respondent's sensibilities to his ethical

responsibilities. Thus, we find respondent's prior record

of discipline to be a serious aggravating factor.

We adopt the hearing judge's finding that

respondent committed multiple acts of wrongdoing

based on our determination that respondent is culpable

of 15 counts of misconduct in two client matters. (Std.

1.2(b)(ii).)

We find additional uncharged misconduct in

aggravation as the result of respondent's dishonesty

and overreaching of his clients, constituting additional

40

acts of moral turpitude in violation of section 6106.

(Std. 1.2(b)(iii).) Knowing of his clients' English

language limitations, respondent falsely told his

clients that the documents they were signing were for

their release and change of venue, concealing that

they were actually fee agreements. "The essence of a

fiduciary or confidential relationship is that the parties

dc not deal on equal terms, because the person in whom

trust and confidence is reposed .. . is in a superior

position to exert unique

61

influence over the dependent party.' [Citation.]" (Beery

v. State Bar (1987) 43 Ca1.3d 802, 813.) Respondent's

exploitation of his position of trust to the detriment of

his vulnerable clients clearly constitutes moral

turpitude within the meaning of section 6106. (In the

Matter of Johnson (Review Dept. 1995) 3 Cal. State Bar

Ct. Rptr. 233, 243-244.)

Furthermore, as noted ante, "{aJlthough void for

lack of mutual assent, the agreement nevertheless is

strong evidence of respondent's overreaching, since it

contains express provisions that are anathema to

respondent's fiduciary relationship with his client, and

indeed are against the public policy of this state." (In

the Matter of Van Sickle (Review Dept. 2006) 4 Cal.

State Bar Ct. Rptr. 980, 989.) For example, the fee

agreement included a provision that the flat fee was

earned immediately upon payment and was

nonrefundable. Such “earned immediately"

provisions are contrary to public policy because they

impair a client's "absolute" power to discharge an

attorney, with or without cause. (FSLIC v. Angell,

Holmes & Lea (9"* Cir. 1988) 838 F.2d 395, 397; see

also In the Matter of Lais (Review Dept. 1998) 3 Cal.

State Bar Ct. Rptr. 907, 923 [where fee was not a true

retainer, respondent must comply with rule 3-700(D)(2)

and refund any unearned fee promptly].) The

objectionable nature of this type of provision is more

than evident in the case at hand where respondent

claims he was entitled to retain the entire $41,500 as

a nonrefundable flat fee even if he worked only

one hour. Other problematic provisions in the fee

agreement that provide further evidence of

respondent's overreaching include: (1) the clients are

not entitled to copies of their case files until they pay

any balance due on attorney fees and/or until they pay

an administrative charge of no less than $295 (see In

63

the Matter of Myrdall (Review Dept. 1995) 3 Cal. State

Bar Ct. Rptr. 363, 377 [return of file is mandatory and

not conditional on clients' signing a substitution of

attorney]); (2) respondent is granted a full release "as to

any financial disputes under this Agreement and all

those associated with Attorney" upon the presentation

of an invoice and the invoices are deemed ratified and

accepted after 30 days (see rule 3-400 [attorney must

not contract with a client prospectively hmiting

attorney's liability to the client for the attorney's

professional malpractice}); and (3) the

client agrees to be limited to the remedy of arbitration,

which shall be binding or nonbinding at the

noncomplaining party's option (see § 6204, subd. (a)

[parties may agree in writing to be bound by arbitration

after the fee dispute has arisen]). It is settled that an

attorney-client relationship is of the highest fiduciary

character and always requires utmost fidelity and fair

dealing on the part of the attorney. (Beer)’ v. State Bar,

supra, 43 Cal.3d at p. 813.) Here, respondent

flagrantly breached his fiduciary duties to his clients

through his dishonesty and overreaching — a

significant factor in aggravation.

We agree with the hearing judge that

respondent's misconduct significantly harmed his

clients. (Std. 1.2(b)(iv).) The funds Mike borrowed to

give respondent have not been refunded and he

——

65

remains indebted for those funds. Other counsel had to

be retained to represent Kabashi and Gashi, incurring

further expenses. Most significantly, as a result of

respondent's failure to perform, Kabashi and Gashi |

remained in custody longer than necessary.

We also agree with the hearing judge's

conclusion that respondent has demonstrated

indifference toward rectification of or atonement for the

consequences of his misconduct. (Std. 1.2(b)(v).)

Respondent has shown no remorse or recognition of

wrongdoing. Despite overwhelming evidence to the

contrary, respondent maintains that he has not

engaged in misconduct, and as of the date of the

hearing below, he had not refunded the

misappropriated funds or unearned fees.

Finally, we find that not only did respondent lie

to Mike, his clients and the New York State Police, he

66

continued to provide false testimony during the State

Bar Court proceedings. Disregarding the abundance of

evidence in c« ntradiction, respondent testified that he

entered into valid fee agreements with Kabashi and

Gashi, to which Mike agreed, for a flat fee of $27,750

each. Respondent's lack of candor during the

proceedings is a serious factor in aggravation. (Std.

1.2(b)(vi).)

67

B. Mitigating Circumstances

Respondent bears the burden of establishing

mitigation by clear and convincing evidence. (Std.

1.2(e).) As in the prior disciplinary matter, respondent

offered no evidence in mitigation, and based on our

independent review of the record, we find none. |

C. Discussion

The purposes of disciplinary proceedings and of

sanctions are to protect the public, the courts and the

legal profession. (In re Silverton (2005) 36 Cal.4th 81,

91, quoting Jn re Morse, supra 11 Cal.4th 184, 205,

quoting std. 1.3.) In determining the appropriate level

of discipline, we first consider the standards applicable

to this case. While we are "not compelled to strictly

follow {the standards] in every case," we look to them

for guidance (In re Young (1989) 49

Cal.3d 257, 267, fn. 11), and they should generally be

given great weight in order to assure consistency in

attorney disciplinary cases. (In re Brown (1995) 12

68

Cal.4th 205, 220.) The standards applicable to this

case are 1.7(a), 2.2(a), 2.3, 2.4(b), and 2.7. Standard

1.6(a) provides in part that "[iJf two or more acts of

professional misconduct are found... and

different sanctions are prescribed .. . the sanction

imposed shall be the more or most severe of the

different applicable sanctions."

The most severe sanction is found in standard

2.2(a), providing that the "{c]ulpability of a member of

wilful misappropriation of entrusted funds or

property shall result in disbarment. Only if the

amount of funds or property misappropriated is

insignificantly small or if the most compelling

mitigating circumstances clearly predominate, shall

disbarment not be imposed.""

‘Standard 1.7(a) provides that if an attorney has a prior

record of discipline, the degree of discipline imposed in the current

proceeding shall be greater unless the prior discipline imposed was

so remote in time and the offense for which it was imposed was so

minimal in severity that imposing greater discipline would be

manifestly unjust.

Standard 2.3 provides that culpability of moral turpitude

69

and intentional dishonesty toward a court or a client shall result in

actual suspension or disbarment.

Standard 2.4(b) provides that failing to perform services,

which does not demonstrate a pattern of misconduct, shall result

in reproval or suspension.

70

This case involves the misappropriation of $40,000,

which is a substantial sum, and there are no

compelling mitigating circumstances.

Our discipline analysis is tempered by the

decisional law. A review of similar cases leads us to

conclude that the three-year actual suspension

recommended by the hearing judge is insufficient

under the circumstances presented here. In

recommending three years' actual suspension, the

hearing judge cited to Jn the Matter of Tindall (Review ©

Dept. 1991) 1 Cal. State Bar Ct. Rptr. 652, finding that

respondent's misconduct "resulted more from his lack

of understanding or recognition of his conduct

measured against an attorney's duties rather than

from innate venality." (Id. at p. 665.) The henson

judge concluded that he believes respondent can be

rehabilitated by a lengthy suspension. Based on

respondent's serious prior misconduct that virtually

71

mirrors his present widespread dishonesty and

overreaching, we do not agree that the facts of this

case allow for such a generous interpretation of

respondent's serious misconduct. The State Bar

recommends disbarment, and we agree.

The intentional misappropriation of client funds

is a grievous breach of an attorney's ethical

responsibilities, violates basic notions of honesty and

endangers public confidence in the legal profession. In

all but the most exceptional cases, it requires the

imposition of the harshest discipline — i.e.,

disbarment. (Grim v. State Bar (1991) 53 Ca1.3d 21,

29.)

In Chang v. State Bar (1989) 49 Cal1.3d 114, the

Supreme Court disbarred an attorney who had

misappropriated $7,898.44 in attorney fees that should

have been paid to the attorney's former law firm. The

attorney had no record of prior discipline in

approximately eight years of practice. The Supreme

Court noted that the attorney had made

72

misrepresentations to the State Bar during its

investigation of the matter and to the hearing panel

that heard the proceeding. Noting that "fraudulent and

contrived misrepresentations to the State Bar may

perhaps constitute

15(...continued)

Standard 2.7 provides that a violation of rule 4-200 shall

result in at least a six-month actual suspension, irrespective of

mitigating circumstances.

73

a greater offense than misappropriation," the Supreme

Court ordered the attorney's disbarment. (Id. at p. 128,

citation omitted.)

In Kaplan v. State Bar (1991) 52 Cal1.3d 1067,

the Supreme Court disbarred an attorney who

intentionally misappropriated $29,000 from his law

firm. The attorney had been admitted to practice for 12

years at the time of his misconduct and had no prior

record of discipline. Even though the attorney

promptly made full restitution upon being

confronted with the misappropriation and despite

the existence of mitigating circumstances, which

included marital stress and the terminal illness of his

mother-in-law, the Supreme Court concluded that the

attorney's behavior was "grievously improper" and

warranted his disbarment.

In Grim v. State Bar, supra, 53 Cal.3d 21, the

Supreme Court disbarred an attorney who

74

misappropriated the client's share of a judgment in the

amount of about $5,500 after the client had moved to

another state. The attorney had been admitted to

practice for 20 years prior to his misconduct in this

proceeding, although he had previously received a

private reproval for commingling funds by depositing

approximately $960 of client funds in his general

office account. The Supreme Court found that the

"misappropriation. . . was not the result of carelessness

or mistake; [respondent] acted deliberately and with

full knowledge that the funds belonged to his client.

Moreover, the evidence supports an inference that

[respondent] intended to permanently deprive his

client of [his] funds . . ." (Jd. at p. 30.) The attorney

presented mitigating factors, including cooperation

with the State Bar and ten character witnesses. In

rejecting the attorney's financial stress as a mitigating

factor because it was neither unforeseeable nor beyond

75

his control, the Supreme Court stated: "It is precisely

when the attorney's need or desire for funds is greatest

that the need for public protection afforded by the rule

prohibiting misappropriation is greatest. [Citations.]"

(Id. at p. 31.)

The misconduct in the present case is as serious

as in the cases discussed above, and in many ways,

even more egregious. Respondent's clients were

incarcerated, did not speak English, and faced

deportation. Respondent is culpable of

misappropriating $40,000 from these

76

vulnerable clients, in addition to numerous other

serious acts of misconduct, including failing to provide

any services of value, making misrepresentations

to his clients and to the police, charging

unconscionable fees, and improperly withdrawing from

representation.' * Respondent neither acknowledges

that his conduct was wrongful nor expresses any

remorse for the harm that he has caused. Instead of

contrition, respondent went to great lengths during his

testimony to justify his behavior and deny any

wrongdoing. As the Supreme Court has repeatedly

noted, “deception of the State Bar may constitute an

even more serious offense than the conduct being

investigated [Citations.]." (Franklin v. State Bar

(1986) 41 Cal.3d 700, 712 (dis. opn. of Lucas, J.).)

Respondent's dishonest testimony before the court is

"misconduct of a serious nature, calling into question

his fitness to practice law." (Ibid.) Furthermore, unlike

the cases discussed above, respondent has a serious

17

prior record of discipline for similar misconduct.

Shortly after being admitted in 1999, and continuing

through the trial below, respondent has repeatedly

shown his “disdain and contempt for the orderly

process and rule of law and clearly demonstrate that

the risk of future misconduct is great." (In the Matter of

Taylor (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr.

563, 581.) We thus conclude that "respondent is also

not a good candidate for suspension and/or probation.”

(Ibid.) Finally, not only did respondent fail to establish

"the most compelling mitigating circumstances," he

offered no evidence in mitigation. Consequently, there

is no evidence before us to support a finding that

respondent is capable of and willing to conform to the

ethical responsibilities of an attorney.

‘These other acts of misconduct alone would justify

significant discipline. (In the Matter of Berg (Review Dept. 1997)

3 Cal. State Bar Ct. Rptr. 725 [disbarment for moral turpitude

based on charging and collecting an unconscionable fee through

78

extensive fraudulent billing and withdrawing disputed

funds]; In the Matter of Burckhardt (Review Dept.

1991) 1 Cal. State Bar Ct. Rptr. 343 [one-year actual

suspension for misconduct including the collection of an

illegal fee for services not performed and moral

turpitude for lying to his client on several occasions];

Borre v. State Bar (1991) 52 Cal.3d 1047 [two years'

actual suspension for deceiving the State Bar by

fabricating a letter, abandoning an incarcerated client,

and deceiving the client about the status of the case].)

79

Respondent "is not entitled to be recommended

to the public as a person worthy of trust, and

accordingly not entitled to continue to practice law."

(Restier v. State Bar (1960) 53 Cal.2d 605, 615.) Asa

result, we conclude that the protection of the public

requires that respondent be disbarred from the practice

of law in the State of California.

V.

Recommendation

We recommend that respondent Anthony J.

Allegrino II be disbarred from the practice of law in this

state and that his name be stricken from the roll of

attorneys licensed to practice.

We further recommend that respondent make

restitution within 30 days following the effective date of

80

the Supreme Court order in this matter or within 30

days following the Client Security Fund (CSF)

payment, whichever is later (Rules Proc. of State Bar,

rule 291), to Muhamat Kabashi in the amount of

$41,500 plus 10% interest per annum from May 15,

2004 (or to the CSF to the extent of any payment from

the fund to Muhamat Kabashi, plus interest and costs,

in accordance with Business and Professions Code

section 6140.5). Any restitution to the CSF is

enforceable as provided in Business and Professions

Code section 6140.5, subdivisions (c) and (d).

We further recommend that costs be

awarded to the State Bar in accordance with

Business and Professions Code section 6086.10, such

costs being enforceable both as provided in section

6140.7 of that code and as a money judgment.

We further recommend that respondent be

ordered to comply with the requirements of rule 9.20 of

the California Rules of Court and to perform the acts

specified in paragraphs (a) and (c) of that rule within

30 and 40 calendar days, respectively, after the

effective date of the Supreme Court order in this matter

Pursuant to Business and Professions Code

Order of Inactive Enrollment

83

Pursuant to section 6007, subdivision (c)(4), and rule

220(c) of the Rules of Procedure of the State Bar,

respondent is ordered enrolled inactive. The order of

84

inactive enrollment is effective three days after service

of this opinion.

“S/REMKE, P. J.” REMKE, P.J.

We concur: EPSTEIN, J. WATAI, J.

Appendix C

STATE BAR COURT OF CALIFORNIA

HEARING DEPARTMENT - LOS ANGELES

PUBLIC MATTER FILES NOV 22 2005 STATE BAR ‘CLERKS

OFFICE LOS ANGELES

In the Matter of ) Case No.

04-0-12846-RMT

)

ANTHONY JOSEPH ALLEGRINO, IT,) DECISION

)

Member No. 200905 )

)

A Member of the State Bar. )

INTRODUCTION

In this disciplinary matter, Timothy G. Byer

appeared for the Office of the Chief Trial Counsel of the

State Bar of California ("State Bar"). Respondent

Anthony Joseph Allegrino, II, represented himself in

these proceedings.

After considering the evidence and the law, the

court recommends, among other things, that respondent

be suspended for five years and until he makes specified

restitution and complies with standard 1.4(c)(ii), Rules

89

Proc. of State Bar, tit. [V, Stds. for Atty. Sanctions for

Prof. Misconduct’, and that the suspension be stayed

on conditions including five years' probation and

actual suspension for three years and until he makes

specified restitution and complies with standard

1.4(c)(ii), among other things.

FINDINGS OF FA D CONCLUSIONS OF

LAW

urisdiction

Respondent was admitted to the practice of law

in California on June 1, 1999, and has been a member

of the State Bar at all times since.

‘Future references to standard or std. are to this source.

Facts

On May 5, 2004, Kujtim Gjokaj (Gjokaj), Berat

Kabashi (Berat) and Fatmir Gashi (Fatmir) were

detained in Laredo, Texas, by the United States Border

Patrol on charges of attempted illegal entry into the

United States from Mexico. Gjokaj, Berat and Fatmir

are Albanians from Kosovo. They were attempting to

enter the United States to seek political asylum.

Around May 10, 2004, Berat was approached to

serve as an interpreter between Gjokaj and his

attorney, respondent. Respondent told Berat that he

could obtain his and Fatmir's release and a change of

venue to New York where their relatives lived. Berat

gave respondent the telephone number for his cousin

Muhamat "Mike" Kabashi (Mike) in New York.

About May 11, 2004, respondent called Mike,

offering his services to represent Berat and Fatmir. He

91

proposed to obtain their release on bail and file motions

for a change of venue for a fee of $2,500 each plus

$20,000 for each detainee's bail. Mike told respondent

that he had already retained an attorney for this

purpose and that he did not yet have the funds to post

bail for Berat and Fatmir. He told respondent that he

intended to post the bonds himself at the Immigration

and Customs Enforcement (ICE) office in New York as

soon as he was able to raise the funds to do so.

Mike contacted many bonding companies and

tried to raise the bail money. He obtained a trust deed

on a co-op owned by one of his brothers which he

intended to post as collateral for the bail bond only to

find out later that a co-op was not acceptable collateral.

He had no other options to raise the funds, so he

contacted an uncle in Kosovo seeking help in finding

someone with enough credit to pledge as collateral for

the bonds. He put Mike in touch with Gjon Lleshaj, a

fellow Albanian who was a construction executive in

Manhattan, who lent him the money?

?Respondent attempted to cast aspersions on Lle shaj by

insinuating that he was an alleged criminal, recent.y indicted, and

on Mike, Berat and Fatmir by suggesting that they were aseociated

or employed by him. Respondent claimed that someone known as

Gjelosh Lelgaj, nicknamed Joey, as well as Alex Rudaj, also known

as Sandro Rudovic, were Albanians who were indicted in New York

on charges of racketeering and attempted murder, and who were

present during a May 6 meeting between himself and Gjokaj's

relatives, Sam and Burim.

wi

On Friday, May 14, 2004, Mike drove into

Manhattan from the White Plains area of New York

where he was to pi4 trp a check for $44000. IR drove

back to White Plains and obtained two bank checks in

the sum of $20,000 each from Sound Federal Savings

Bank in Mohegan Lake, New York. He then drove back

to Mqnhattan and took the checks to ICE. Although he

arrived at about 1:50 p.m., Mike was told that it was

too late to have the bail bonds processed that day. He

was given blank applications and was told to return

with the completed applications and the checks on

Monday, May 17, 2004.

While Mike was in the process of raising the bail

funds, respondent continued to call him to see if he had

done so. On May 14 at about 2:10 p.m., just after his

unsuccessful visit to ICE, Mike received a telephone call

from respondent asking if Mike had obtained the bail

94

money. Mike admitted that he had but noted that

respondent's fees were too high and that he was

skeptical of dealing with an unfamiliar attorney.

Respondent told Mike that he needed to trust him and

that he would reduce his fee to a total of $1,500 for

representing both Berat and Fatmir. Respondent also

told Mike that he could obtain their release the next

day, Saturday, May 15, if Mike deposited a total of

$41,500' into respondent's Citibank account. The

prompt release of Berat and Fatmir on Saturday,

May 15,.was one of the inducements for Mike to

retain respondent.

Mike told respondent that he would require a

written agreement. Mike told him to fax the document

to a travel agency he knew since he did not have a fax

machine himself. He later contacted the travel agency

and found that respondent's fax had not arrived. He

told respondent

New York pizzeria.

Glenn H. Bank, a very experienced immigration

attorney in New York who represented Berat and

Fatmir in their asylum petitions, successfully refuted

respondent's contentions. He represented Lleshaj in his

own immigration case. To his knowledge, Lleshaj has

never had criminal allegation asserted against him or

has he been known as "Gjelosh Lelgaj" or the nickname

"Joey." Furthermore, Burim credibly testified that

those persons were not present at the May 6meeting

and that respondent was retained on May 6 only to

represent Kujtim.

'This amount consisted of $20,000 bail for each

detainee plus $1,500 for respondent's fees. The court

found Mike to be a credible witness.

Oo oOo nN NW

to send it again. Respondent faxed Mike a one-page

agreement instructing Mike to deposit the funds into

respondent's account at the Mohegan Lake branch of

Citibank.

During a May 14 meeting with Berat and Fatmir,

respondent told them that their bail would be between

$25,000 and $50,000 because they were of the Muslin

religion. He also had some documents for them to sign

but did not do so at this time. After this meeting, the’

detainees called Mike. Mike told Berat about

respondent's intention to take them the "change of

venue" forms for their signature and that they should

sign them. They went back and found respondent still in

the meeting room. They signed the forms, which turned

out to be retainer agreements. Respondent presented

Berat documents for his signature without telling him

that they were retainer agreements for himself and

97

Fatmir or what the retainer agreements said. Berat

signed both retainer agreements although he was

unable to read any portion of the documents other than

to recognize the spelling of his name.’ The two-page

document had no handwriting on it and was not signed

or dated by respondent. Mike had previously informed

respondent that Berat could not read English. Mike

and Berat believed that these documents were needed

to pursue the change of venue of their cases to New

York.

The retainer agreements provided, in relevant

part, that:

(1) “All flat fees are earned immediately after

Client tenders a payment to Attorney";

(2) "If additional work is required beyond the

normal amount in a similar matter, Client agrees to pay

Attorney at a rate of $325 Per Hour (sic)";

(3) “Attorney Fees: $27,750.00";

(4) "There will be an administrative charge of no

less than $295 to copy a complete case file. Clients who

98

owe any Attorney fees must pay the balance plus the

$295.00 in order to obtain a copy of the case file”;

(5) "REFUNDS: There are No Refunds of Flat

Rated (sic) Attorney's Fees or Hourly Attorney's

Fees Once Earned or Time Expended On Client's

Lega! Matter. The Non-

'The court does not find respondent credible in his assertion

that Berat was fully familiar with the terms of the retainer

agreement and that he had explained the terms to Berat. Berat

spoke limited English but could not read the English language.

Fatmir neither spoke nor read English.

99

Refundable Retainer is to ensure Attorney

Availability." (Emphasis in original.);

(6) "WITHDRAWAL: Attorney may withdraw for

any breach under paragraph 2 upon written notice to

Client's last known address.""

The retainer agreements did not set forth the

scope of representation or the flat fee charged. These

items of information were handwritten in the

agreements later by respondent.6 Mike never received a

copy of these agreements.

Respondent's agreement faxed to Mike promised

to "post immigration bonds" for Berat and Fatmir upon

receipt of the funds. On Saturday morning, May 15,

Mike went to his bank, returned the checks he had

previously drawn, and had a bank check drawn for

$40,000 payable to respondent and a separate check in

the sum of $1,500 also payable to respondent. The check

for $1,500 bore the typed-in notation: "Legal fees at

100

Laredo, Texas, paid in full." He deposited these checks

into respondent's account that same morning.

On May 15, Mike told respondent that the

deposit had been made to his account and asked him to

call him as soon as Berat and Fatmir had been released

since Mike had already

‘Paragraph two of the retainer agreements provided that

“Client shall be truthful with attorney, cooperate with Attorney,

keep Attorney informed of any changes in circumstances

surrounding Client's case, abide by this Agreement, pay Attorney

in a timely manner, and keep Attorney informed of client's address,

telephone number, and whereabouts at all times."

SAfter the agreements were signed, respondent handwrote on

the forms certain terms in an attempt to claim the $41,500 Mike

gave him was a true retainer for representing Berat and

Fatmir. Accordingly and for reasons set forth throughout this

decision, the court does not give any weight to respondent's claim

that those funds were a true retainer or nonrefundable flat fee to

which respondent was entitled for representing Berat and Fatmir.

The court also does not find credible or give any weight to

respondent's billing sheets.

The court does not find credible respondent's claims that

his services were to be rendered for a flat fee. Respondent also

falsely claimed that he had been retained to represent Berat and

Fatmir on May 6, 2004, rather than May 14, and that the 100

hours had been consumed around May 20 (around the time Mike

alerted law enforcement about respondent, which is discussed

later). According to respondent, his obligation to provide services

was fulfilled.

The court also does not find credible respondent's claim

101

that the $325 per hour rate set forth in the retainer agreement was

for extra work not usually performed as part of the representation

and was over and above the $27,500 flat fee for each Berat and

Fatmir. He unsuccessfully contended that such additional work

included the preparation of asylum petitions, even though the

retainer agreements noted this as an included service.

made travel arrangements for them to New York.

That same morning, respondent checked out of

his hotel in Laredo, visited Berat and Fatmir for 10 to

15 minutes in custody and told them of the deposit

made on their behalf. He said that he was having "some

trouble with the judge" and would not be able to get

them out that day as he had hoped. He told them that

they would be released on Monday, May 17. In reality,

respondent knew that the detainees could not be

released on Saturday because bonds were not processed

on that day. He also knew that he was not going to be

in Texas on May 17 because he had a court appearance

on his prior disciplinary matter in the State Bar Court

on that day. After this meeting, respondent took no

further steps to further Berat's and Fatmir's causes

before abruptly withdrawing from representation the

following week without returning any of the $41,500 to

103

Mike. He filed no documents in Texas on behalf of the

detainees or made any court appearances.

Respondent had never prepared an asylum

petition prior to May 6, 2004. While in custody, Berat

and Fatmir never fully discussed with respondent the

facts upon which asylum applications would be based.'

Berat never told respondent that he only wanted to

come to the United States for economic opportunity.

During his detention, Berat was never told that there

was an allegation that he was a terrorist, as respondent

later claimed.

After this May 15 meeting, respondent drove at

least three hours to the airport in San Antonio, Texas,

and traveled to Newark by way of Chicago. He then

traveled to Los Angeles

7 For example, Berat had received a bullet wound in Kosovo in

2002. His family had been persecuted by Serbian authorities,

including one incident in which 90-100 members of the family were

rousted from their homes by the authorities and were herded

together. One of Berat's cousins was pulled aside by the

authorities, and, in front of everyone, including Berat,

was shot. The family dispersed from their homes for

104

fear of further persecution. Eventually, there was an

upsurge in the violence which resulted in Berat's being

shot in the knee while out for an evening with friends in

a car marked with the insignias of a political

organization, the Democratic League of Kosovo (LDK),

to which Fatmir also belonged. After that, he became

more frightened and, with the help of a travel network,

was smuggled out of the country and, eventually, to

Mexico. He, Fatmir and Gjokaj waded across the Rio

Grande and were caught in the desert by the Border

Patrol a few miles inside the Texas border. Fatmir had

had similar experiences in Kosovo because of his

Albanian ethnicity and because some members of his

family were politically active.

105

Co fe NN

where he appeared before this court on May 17, 2004, to

participate in the trial of his prior disciplinary matter,

which will be discussed later.

Later on Saturday, May 15, Berat told Mike that

respondent had visited briefly earlier that morning and

had told them that they would not be released that day

but, instead, on Monday, May 17.

On May 17, 2004, at about 2:00 p.m. (EST), Mike

tried to speak to respondent on his cell telephone but

the call transferred immediately to respondent's

voicemail. Berat and Fatmir were still being held in

Laredo and were awaiting their release that day as

respondent promised. Respondent did not answer

Mike's voicemail so Mike called him again to tell him

that he was going to alert law enforcement. On

Tuesday, May 18, respondent called Mike and informed

him that Berat and Fatmir would be released that day

106

and not to proceed with a police report. He assured

Mike that he was taking care of everything.

Mike waited until after 5:00 p.m. on Tuesday,

May 18, to file a criminal complaint against respondent

with Joseph Crispino of the New York State Police. He

gave Crispino a copy of the faxed retainer agreement he

had received from respondent.

Respondent made misrepresentations to Crispino

by:

(1) Giving him a version of the faxed agreement

with Mike that had been altered to reflect the entire

deposit that Mike made into respondent's account as

fees to which respondent was entitled; and

(2) Telling him that Berat and Fatmir had asked

him to concoct a fraudulent basis for their respective

asylum claims and that they were suspected terrorists.

As to the altered fax, respondent admitted to

Crispino that he had added the additional language

after Mike had contacted him to report that the first fax

had not been received. The alterations were: (1) Adding

107

the words “by power of attorney" after the words "... as

you [Mike] are financially responsible for their case"

and (2) Adding the words "to handle matter - legal fees-

" at the end of the sentence giving Mike instructions to

deposit $41,500 by 10:00 a.m. New York time on

Saturday, May 15. This addition falsely characterized

all of the funds as respondent's attorney's fees.

Respondent told Crispino that he had decided to

withdraw as counsel for Berat and Fatmir on May 15

before leaving Laredo. He further stated that he did not

return the funds because he had earned the money,

noting that it was a flat-rate fee and that he was

entitled to it even if he only worked one hour.

Respondent did not produce any billing sheets to

Crispino.

The police filed a criminal charge against

respondent for grand theft and his bank account, which

contained approximately $38,000, was frozen. The

matter was still pending at the time of the hearing in

the instant case.

Several days later, FBI agents visited Berat and

Fatmir and asked them about their reasons for entering

the United States. The agents did not say anything

about allegations of terrorism.

109

When respondent did not appear in court on

Berat and Fatmir's behalf on Thursday, May 20, they

employed another lawyer who represented them at a

bail hearing on May 27, 2004, for fees of $1000 each.

Berat was released that day on $4,000 bail. Fatmir was

released on $4,000 bail on June 1, 2004. Mike paid for

the bail and attorney fees.

On May 21, 2004, respondent called Mike and

told him: "I told you to trust me. You did not. You went

to the police, so, therefore, I quit. When I get around to

it, I will send you a final bill."

Before withdrawing from representation,

respondent had done nothing of value or benefit to

Berat and Fatmir in furtherance of the matters in

which he had been retained.

Respondent sent Mike a letter dated May 20,

2004, and two billing statements. In the statements,

respondent represented that Berat and Fatmir had each

paid only $20,750 of the $27,750 that respondent

characterized as the nonrefundable flat fee for

110

representing them and that they owed an additional

$7,000. In the letter accompanying the statements,

respondent claimed that he was withdrawing from

representation because Berat and Fatmir did not have

asylum claims and had made statements and requests

necessitating withdrawal’ and because Mike had not

met his financial obligations and engaged in

outrageous, uncooperative and

‘Presumably that respondent concoct a false basis for their

asylum applications.

unacceptable conduct. The letter stated that they were

being charged flat, nonrefundable fees for the

representation. Respondent did not communicate his

intent to withdraw to Berat and Fatmir.

Respondent also did not return the unearned

portion of the advanced fees he was paid to represent

Berat and Fatmir. Respondent's failure to return the

$41,500 has unduly humiliated and stressed Mike who,

for well over a year, has been indebted to a stranger

who has ties to his family. The loan of the funds was

intended to be for a short time.

Glenn H. Bank, an attorney who has practiced

immigration law in New York City since 1979, credibly

testified as an expert in immigration practice, procedure

and fees, particularly regarding asylum petitions.® He

asserted and the court believes, among other things,

that:

(1) A detainee's bail being set at $20,000 does

not indicate that he or she represents a threat nor does

it invoke provisions of the USA PATRIOT Act;

(2) A letter request is sufficient to seek a bail

reduction. A noticed motion is not required;

(3) Change of venue motions are routinely

granted where, as here, a detainee has family living

near another immigration court;

(4) An hourly rate of $325 exceeds the prevailing

112

rate in immigration matters, with the possible exception

of large firms whose practice consists of bringing

highly-skilled and specialized workers to the United

States;

(5) A $27,500 flat fee for representation in any

immigration matter is unprecedented. He had never

heard of such a fee for an individual in New York. The

fee for full removal proceedings, including an asylum

petition and change of venue, was between $3500 and

$4000 per person. His flat fee for preparing each of the

asylum petitions for Berat and Fatmir was less than

$5,000;

(6) A political asylum petition must

demonstrate that the petitioner subjectively fears

‘Bank is a member of the American Immigration Lawyers

Association as well as the New York City Lawyers Association

Committee on Immigration and Naturalization Law. He has been

approved as an expert in the United States District Court for the

Southern District of New York.

113

persecution due to ethnic identity or political opinion in

his or her home country and that such fear is objectively

reasonable. He opined that Berat's and Fatmir's beliefs

were reasonable. He has handled between 200 and 250

cases from people from Kosovo in the last five years ;

(7) Even before September 2004, it has been

common knowledge among immigration practitioners in

New York that those wishing to post bonds for

detainees arrive early in the morning because staff is

often short-handed and, therefore, less willing to

commence the application process as the day

progresses. This was common practice even before the

New York ICE local rule was changed in September

2004 prohibiting bond postings after 1:00 p.m.

Banks successfully refuted all of respondent's

contentions to the contrary.

Conclusions of Law_

It is the prosecution's burden to establish

culpability of the charges by clear and

convincing evidence. (In the Matter of Glasser (Review

Dept. 1990) 1 Cal. State Bar Ct. Rptr.

163, 171.)

Counts 1 and 2 - Rule of Professional Conduct' 3-

110(A) (Failing to Perform Competently) Rule

3-110(A) prohibits an attorney from intentionally,

recklessly or repeatedly failing to perform legal

services competently.

By not taking steps in furtherance of the Berat

and Fatmir matters prior to withdrawing from

employment, respondent intentionally, recklessly or

repeatedly did not perform competently in wilful

violation of rule 3-110(A).

Counts 3 through 7 - Rule 4-200 (Illegal or

Unconscionable Fee)

Rule 4-200(A) prohibits an attorney from

entering into an agreement for, cherging or collecting

an illegal or unconscionable fee.

Respondent wilfully violated rule 4-200(A). He

charged Berat and Fatmir an unconscionable fee by

charging each of them $27,750 for the services described

in the retainer agreement. He entered into an

agreement for an unconscionable fee by seeking an

hourly fee of $325 for additional work. He collected an

unconscionable fee of $41,500 from Mike on behalf

of Berat and Fatmir. He also entered into illegal fee

agreements with Berat and Fatmir by including

provisions that the flat fee was nonrefundable and to

ensure respondent's availability; and that they were not

entitled to copies of their case files until they paid any

balance due on attorney fees and/or until they paid

an administrative charge of no less than $295.

Counts 8 and 9- Section 6106 (Dishonesty or

Moral Turpitude: Misappropriation)

Section 6106 makes it a cause for disbarment or

suspension to commit any act involving moral

turpitude, dishonesty or corruption, whether the act is

committed in the course of his relations as an attorney

or otherwise, and whether the act is a felony or

misdemeanor or not.

There is clear and convincing evidence that

respondent violated section 6106 of the Business and

117

Professions Code. He misappropriated $20,000

advanced for each of Berat's and Fatmir's bail.

Accordingly, he committed acts of moral turpitude,

dishonesty or corruption in wilful violation of section

6106.

Counts 10 through 16 - Section 6106 (Dishonesty

or Moral Turpitude: Misrepresentation) There

is clear and convincing evidence that respondent

violated section 6106 of the Business and

Professions Code by making the following false

representations:

(1) In Berat's and Fatmir's retainer agreements,

that he would post immigration bonds for them upon

receipt of the funds;

(2) To Berat, Fatmir and Gjokaj, that their bail

was going to be between $25,000 and $50,000 because

of their Muslim religion;

(3) To Mike, that respondent could obtain

Berat's and Fatmir's release from custody on Saturday,

May 15, if Mike deposited $41,500 into respondent's

118

bank account;

(4) To Berat and Fatmir, that he was having

trouble with the judge in their cases;

(5) To Berat and Fatmir, that they would be

released on May 17;

(6) To Mike, that Berat and Fatmir would be

released on May 18;

(7) To Mike, that the reason for respondent's

withdrawal from representing Berat and Fatmir was

that they had asked him to concoct false bases for their

asylum applications; and

(8) To agents of the New York State Police, that

Berat and Fatmir were suspected terrorists and had

asked him to concoct false bases for their asylum

applications; that he had

5

6

7

8

9

10

+ decided to withdraw from representing them on May

1 15. He also provided the police with a version of the

13 faxed agreement with Mike that had been altered to

144 ‘eflect the entire $41,500 deposit that Mike made into

15§ respondent's account as fees.

16 As to the foregoing matters, respondent knew at

17 the time he made the representations that they were

18§ false. Accordingly, he committed acts of moral

19 turpitude, dishonesty or corruption in wilful violation of

20 section 6106.

21 unt 17 - Rule 3-700(D)(2) (Failure to Return

22% Unearned Fees)

23 Rule 3-700(D)(2) requires an attorney whose

24 employment has terminated to promptly return any

25 part of a fee paid in advance that has not been earned.

26] This rule does not apply to true retainer fees paid solely

for the purpose of ensuring the availability of an

attorney to handle a matter.

120

After his employment was _ terminated.

respondent did not return the advanced, unearned fees

of $1,500 paid to him to represent Berat and Fatmir in

wilful violation of rule 3-700(D)(2). Counts 18 and 19 -

Rule 3-700(A)(2) (Improper Withdrawal from

R entation

Rule 3-700(A)(2) prohibits an attorney from

withdrawing from employment until he has taken

reasonable steps to avoid reasonably foreseeable

prejudice to the rights of a client, including giving due

notice to the client, allowing time for employment of

other counsel, complying with rule 3-700(D) and with

other applicable laws and rules.

Respondent did not inform Berat and Fatmir of

his intent to withdraw from their representation. He

effectively withdrew from employment. By not

informing the clients of his intent to withdraw from

employment, respondent failed to take reasonable steps

to avoid reasonably foreseeable prejudice to the client

in wilful violation of rule 3-700(A)(2).

LEVEL OF DISCIPLINE

Aegravating Circumstances

It is the prosecution's burden to establish

aggravating circumstances by clear and convincing

evidence. (Std. 1.2(b).)

Respondent has one prior instance of discipline.

(Std. 1.2(b)(a).) In Supreme Court order no. $132789

(State Bar Court case nos. 02-0-13815, 02-0-13919 and

03-0-00065 (Cons.)),

effective October 28, 2005, discipline was imposed

consisting of stayed suspension for two years and

until respondent complied with standard 1.4(c)(ii);

and five years' probation with conditions including

one year of actual suspension. Discipline was imposed

for violations, in three immigration law matters, of

rules 4-200 (charging and collecting unconscionable

fees), 3-100(A) (failure to perform) and 3-700(D)(2)

(failure to return unearned fees) and sections 6106

(moral turpitude, dishonesty or corruption) and

6068(c) (maintaining an illegal or unjust action).

No mitigating circumstances were found in the

prior disciplinary matter. In aggravation, the court

found multiple acts of misconduct and significant

client harm, including loss of funds, additional

expenditures to participate in the fee arbitration

process, defending against an unjust lawsuit and

traveling out of state to participate in State Bar

Court proceedings. Indifference toward atonement for

or rectification of the consequences of his misconduct

was also an aggravating circumstance. The court

noted that respondent did not demonstrate remorse

or recognize his wrongdoing. He maintained that he

had not engaged in any misconduct.

The court further notes that the misconduct in

the prior matter commenced less than two and one-

half years after respondent was admitted to practice

law" and lasted into 2004. The misconduct in the

present case took place in 2004. Accordingly, the

aggravating effect of this prior discipline is

diminished as it is not indicative of respondent's

inability to conform to ethical norms and the court

will consider the totality of the findings in both cases

to ascertain what the discipline would have been had

124

the matters been brought as one case. (In the Matter

of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct.

Rptr. 602, 619.)

The court notes and is very concerned about

the similarities between the misconduct in the prior

and current cases, particularly the charging and

collecting unconscionable fees and the moral

turpitude and dishonesty. As to the latter charges, in

the prior case, respondent was found culpable of

making unauthorized charges to clients' credit cards

and overbilling substantially over the original agreed-

upon flat fee. Including both disciplinary matters,

respondent's conduct

125

presents misconduct involving five clients during a

period of about three years. Respondent's multiple

acts of misconduct are an aggravating factor. + (Std.

1.2(b)(ai).)

Respondent's misconduct significantly harmed

clients. (Std. 1.2(b)({iv).) Mike, Berat and Fatmir

traveled from out of state to participate in these

proceedings. The funds Mike borrowed to give

respondent have not been refunded. Mike remains

indebted for the funds he borrowed to help Berat and

Fatmir. Other counsel had to be retained to represent

them and further expenses incurred in that regard.

Mike, Berat, Fatmir and Burim traveled to California

to participate in these proceedings.

Respondent has demonstrated indifference

toward rectification of or atonement for the

consequences of his misconduct. (Standard 1.2(b)(v).)

126

Respondent has shown no remorse or recognition of

wrongdoing. He stridently maintains that he has not

engaged in misconduct. Further, and more

importantly, the misconduct in the instant case took

place during the trial in this court of respondent's

prior disciplinary matter. If nothing else, the fact that

he was participating in the prior proceedings for

similar misconduct should have made him be doubly

cautious in dealing with Berat's and Fatmir's cases.

Mitigating Circumstances

Respondent bears the burden of establishing

mitigation by clear and convincing evidence. (Std.

1.2(e).) As in the prior disciplinary matter, he

offered no evidence in mitigation. Discussion

The purpose of State Bar disciplinary

proceedings is not to punish the attorney, but to

protect the public, to preserve public confidence in the

profession, and to maintain the highest possible

professional standards for attorneys. (Chadwick v.

State Bar (1989) 49 Cal1.3d 103, 111; Cooper v. State

127

Bar (1987) 43 Cal1.3d 1016, 1025; std. 1.3.)

Standard 1.6 provides that the appropriate

sanction for the misconduct found must be balanced

with any mitigating or aggravating circumstances,

with due regard for the purposes of imposing

discipline. If two or more acts of professional

misconduct are found in a single disciplinary

proceeding, the sanction imposed shall be the most

severe of the applicable sanctions. (Std. 1.6(a).) The

level of discipline is progressive. (Std. 1.7(b).) The

standards,

however, are guidelines from which the court may

deviate in fashioning the most appropriate discipline

considering all the proven facts and circumstances of a

given matter. (In re Young (1989) 49 Cal.3d 257, 267

(fn. 11); Howard v. State Bar (1990) 51 Cal.3d 215.)

They are "not mandatory 'sentences' imposed in a blind

or mechanical manner." (Gary v. State Bar (1988) 44

Cai1.3d 820, 828.)

Standards 2.2(a), 2.3, 2.4(b), 2.7 and 2.10 apply

in this matter. The most severe sanction is found at

standard 2.2(a) which recommends disbarment for

wilful misappropriation of entrusted funds unless the

amount misappropriated is insignificantly small or

unless the most compelling mitigating circumstances

clearly predominate, in which case the minimum

discipline recommended is one year actual suspension.

Respondent has been found culpable, in the

129

present and prior disciplinary matters, of violations, in

five immigration law matters, of rules 4-200 (charging

and collecting unconscionable fees), 3-100(A) (failure to

perform) and 3-700(D)(2) (failure to return unearned

fees) and sections 6106 (moral turpitude, dishonesty or

corruption). He was also found culpable in some

matters of violating section 6068(c) (maintaining an

illegal or unjust action) and rule 3- 110(A). Aggravating

circumstances included multiple acts of misconduct,

significant client harm, lack of remorse and

indifference to the consequences of misconduct. There

are no mitigating circumstances.

The State Bar recommends disbarment.

Respondent seeks dismissal. Considering the totality of

the findings in both cases to ascertain what the

discipline would have been had the matters been

brought as one case, the court recommends three years

of actual suspension to remain in effect until

respondent makes restitution to Mike (or the Client

Security Fund, if it has paid) of the $41,500 plus 10%

130

interest from May 15, 2004, and until he complies with

standard 1.4(c)(ii).

The court notes that, as of the time of the

hearing in this matter, respondent's bank account was

frozen by the New York State Police and contained

approximately $38,000 of Mike's money. The court will

also recommend that, if the account is still frozen,

respondent take all necessary steps to have those funds

released to Mike forthwith, commencing upon the

131

effective date of the Supreme Court's order in the

instant case. The court is concerned with returning as

much of the funds to Mike as quickly as possible.

Whether or not respondent is successful in having the

funds released, it is intended that he is still personally

liable to Mike for the $41,500 plus interest as more

fully set forth above.

The court is offended by respondent's

characterization of this matter as a billing dispute at

most. He has engaged in grave misconduct that

resulted in harm to Mike, Berat and Fatmir and it

occurred during the trial of his prior disciplinary

matter, when his sensibilities to unethical behavior

should have been heightened.

Respondent charged and collected money from

inexperienced, vulnerable people as payment for

services in an area of law in which he had no

experience. The services were not rendered and the bail |

was not paid, yet he kept the money. He was dishonest__

in his dealings with Mike, Berat and Fatmir as well as

the New York State Police. He engaged in this course of

conduct while he was engaged in a trial in this court for

unethical conduct in three other immigration cases. He

is unable or unwilling to admit that he acted

inappropriately.

However, in the instant case, respondent's

misconduct resulted "more from his lack of

understanding or recognition of his conduct measured

against an attorney's duties rather than from innate

venality." (In the Matter of Tindall (Review Dept. 1991)

1 Cal. State Bar Ct. Rptr. 652, 665.) The court believes

that he can be rehabilitated by a lengthy suspension to

last until he makes restitution and complies with

standard 1.4(c)(ii) and with strict probation conditions.

Accordingly, having considered the evidence and the

law, the court so recommends as adequate to protect the

public.

133

DISCIPLINE RECOMMENDATION

Therefore, it is recommended that respondent

Anthony Joseph Allegrino, II, be suspended from the

practice of law for five years and until he pays

restitution to Muhamat "Mike" Kabashi (or the Client

Security Fund, if it has already paid) in the amount of

$41,500, plus ten per cent (10%) interest per annum,

accruing from May 15, 2004, and provides satisfactory

proof of such payment to the State Bar Office of

Probation; and until he provides proof satisfactory to

the State Bar Court of his rehabilitation, fitness to

practice and present learning and ability in the general

134

yy DA WA

law pursuant to standard 1.4(c)(ii), Standards for

Attorney Sanctions for Professional Misconduct; that

execution of that suspension be stayed, and that

respondent be placed on probation for five years, with

the following conditions:

1. Respondent shall be actually suspended from

the practice of law for the first three years of probation

and until he pays restitution to Muhamat "Mike"

Kabashi (or the Client Security Fund, if it has already

paid) in the amount of $41,500 plus ten per cent (10%)

interest per annum, accruing from May 15,2004, and

provides satisfactory proof of such payment to the State

Bar Office of Probation; and until he provides proof

satisfactory to the State Bar Court of his rehabilitation,

fitness to practice and present learning and ability in

the general law pursuant to standard 1.4(c)(ii),

Standards for Attorney Sanctions for Professional

Misconduct. Respondent shall take all necessary steps

135

to have the funds in his bank account frozen by the New

York State Police released to Muhamat "Mike" Kabashi

(or the Client Security Fund, if it has already paid)

forthwith and shall set forth all such efforts in each

quarterly report submitted to the State Bar Office of

Probation as described below;

2. During the period of probation, respondent

shall comply with the State Bar Act and the Rules of

Professional Conduct;

3. Within ten (10) days of any change,

respondent shall report to the Membership Records

Office of the State Bar, 180 Howard Street, San

Francisco, California, 94105-1639, and to the State Bar

Office of Probation, all changes of information, including

current office address and telephone number, or if no

office is maintained, the address to be used for State

Bar purposes, as prescribed by section 6002.1 of the

Business and Professions Code;

4. Respondent shall submit written quarterly

reports to the Probation Unit on each January 10, April

136

10, July 10, and October 10 of the period of probation.

Under penalty of perjury, respondent shall state

whether respondent has complied with the State Bar

Act, the Rules of Professional Conduct, and all

conditions of probation during the preceding calendar

quarter. If the first report will cover less than thirty

(30) days, that report shall be submitted on the next

following quarter date, and cover the extended period.

In addition to all quarterly reports, a final

report, containing the same information, is due

137

no earlier than twenty (20) days before the last day of

the probation period and no later than the last day of

the probation period;

5. Subject to the assertion of applicable

privileges, respondent shall answer fully, promptly, and

truthfully, any inquiries of the State Bar Office of

Probation which are directed to respondent personally

or in writing, relating to whether respondent is

complying or has complied with the conditions

contained herein;

6. Within one (1) year of the effective date of the

discipline herein, respondent shall provide to the State

Bar Office of Probation satisfactory proof of attendance

at a session of the Ethics School and of the Ethics

School Client Trust Accounting School, given

periodically by the State Bar at either 180 Howard

Street, San Francisco, California, 94105-1639, or 1149

138

South Hill Street, Los Angeles, California, 90015-2299,

and passage of the test given at the end of that session.

Arrangements to attend these sessions must be made

in advance by calling (213) 765- 1287, and paying the

required fee. This requirement is separate from any

Minimum Continuing Legal Education Requirement

(MCLE). Respondent shall not receive MCLE credit for

attending Ethics School or Client Trust Accounting

School. (Rule 3201, Rules of Procedure of the State

Bar.).

7. Reporting requirements.

a. If respondent possesses client funds at any

time during the period covered by a

required quarterly report, respondent shall

file with each required report a certificate

from respondent and a certified public

accountant or other financial professional

approved by the State Bar Office of

Probation, certifying that: respondent has

maintained a bank account in a bank

139

authorized to do business in the State of

California, at a branch located within the

State of California, and that such account

is designated as a "Trust Account" or

"Client's Funds Account"; and respondent

has kept and maintained the following:

‘ a written ledger for each client on

whose behalf funds are held that

sets forth:

:. the name of such client,

140

iV.

2 the date, amount, and source of all

funds received on behalf of such

client,

3. the date, amount, payee and

purpose of each disbursement made

on behalf of such client, and

4. the current balance for such client;

a written journal for each client trust fund

account that sets forth:

1. the name of such account,

2. the date, amount, and client

affected by each debit and credit, and

3. the current balance in such account.

all bank statements and canceled checks

for each client trust account; and

each monthly reconciliation (balancing) of

(1), (ii), and (iii) above, and if there are any

differences between the monthly total

141

balances reflected in (i), (ii), and (i) above,

the reason for the differences, and that

respondent has maintained a written

journal of securities or other properties

held for a client that specifies:

: each item of security and property

held;

2. the person on whose behalf the

security or property is held;

3. the date of receipt of the security or

property;

4. the date of distribution of the

security or property; and

5. the person to whom the security or

property was distributed.

b. If respondent does not possess any client funds,

property or securities during the entire period

covered by a report, respondent must so state

under penalty of perjury in the report filed with

the State Bar Office of Probation for that

reporting period. In this circumstance,

respondent need not file the accountant's

certificate described above.

c. The requirements of this condition are in addition to

those set forth in rule 4-100, Rules of

Professional Conduct;

8. Within three years ol the effective date of the

discipline herein, respondent shall

submit to the State Bar Office of Probation satisfactory

evidence of completion of no less than four hours each of

MCLE.-approved courses in attorney-client relations and

general legal ethics. This requirement is separate from

any MCLE requirement, and respondent shall not

receive MCLE credit for attending these classes. (Rule

3201, Rules of Procedure of the State Bar.).

9. The period of probation shall commence on the

effective date of the order of the Supreme Court

imposing discipline in this matter.

10. At the expiration of the period of this

probation, if respondent has complied with all the terms

of probation, the order of the Supreme Court

suspending respondent from the practice of law for five

years and until he makes restitution and until he

complies with standard 1.4(c)(ii) shall be satisfied and

that suspension shall be terminated.

It is further recommended that respondent take

144

and pass the Multistate Professional Responsibility

Examination (MPRE) administered by the National

Conference of Bar Examiners, Multistate Professional

Responsibility Examination Application Department,

P.O. Box 4001, Iowa City, lowa, 52243, (telephone 319-

337-1287) and provide proof of passage to the State Bar

Office of Probation, during the period of actual

suspension. Failure to pass the Multistate

Professional Responsibility Examination within the

specified time results in actual suspension by the

Review Department, without further hearing,

until passage. But see rule 951(b), California

Rules of Court, and rule 321(a)(1) and (3), Rules

of Procedure of the State Bar.

It is further recommended that respondent be

ordered to comply with rule 955, California Rules of

Court, and perform the acts specified in subdivisions (a)

and (c) of that rule, within thirty (30) and forty (40)

days, respectively, from the effective date of the

Supreme Court order herein. Wilful failure to comply

145

with the provisions of rule 955 may result in

revocation of probation; suspension; disbarment;

denial of reinstatement; convictionof contempt;

or criminal conviction.

COSTS

The court recommends that costs be awarded to

the State Bar pursuant to Business and

///

///

November 22, 2005 “S/Robert M. Talcott”

Judge of the State Bar Court

146

STATE BAR OF CALIFORNIA

August 18, 2005

Anthony Allegrino

1001 Maggie Drive

Newburgh, New York 12550

RE: Respondent: Timothy Byer and Ron Magnuson

Case No.: 05-7402

Dear Mr. Allegrino:

Your complaint against Mr. Magnuson has been

reexamined as part of the internal review process of the

Office of the Chief Trial Counsel. At the same time,

your concomitant complaint against Mr. Byer has been

reviewed. We have examined the matter to determine

whether there are grounds to conduct an investigation

for forwarding to an outside Special Deputy Trial

Counsel pursuant to Rule 2201 (g) of the Rules of

Procedure.

The allegations arise from a discipline matter against

you presently pending before a State Bar Court

Judge. You have alleged:

e That matter 04-0-12846 before Judge Talcott has

been prosecuted "without merit."

e That Mr. Byer (and his supervisor) suppressed

and falsified evidence

e Submitted false evidence

e Assisted the complainant in committing perjury

e All of which is a felony

It is also alleged that Mr. Byer intimidated a witness.

In considering whether grounds exist to conduct an

investigation, the Chief Trial Counsel, or his designee is

to consider both the specificity of the information

received and the credibility of the source of the

information.

After review of the documentation you provided, your

arguments to the court, the arguments of the State Bar

prosecutors, on a case still pending before the jur ge, it

is our evaluation that there is insufficient credible

evidence to warrant this matter be forwarded toa

Special Deputy Trial Counsel. We disagree with you

that exculpatory evidence was withheld or altered or

that false evidence has been submitted against you.

149

Anthony Allegrino August 18, 2005 Page 2

In order to seek review of this decision, you must file a

verified accusation against the attorney with the

Cal:fornia Supreme Court, pursuant to rule 952,

subsection (d) through (0, California Rules of Court,

within 60 days of the date of this letter.

The Clerk of the Supreme Court has instructed us to

advise you that no specific form is used by the Supreme

Court for the filing of a verified accusation against an

attorney. You may obtain specific information by

contacting the Clerk's office in Los Angeles or in San

Francisco. The addresses and phone numbers of the

respective offices are listed below.

Please be aware that if you file a verified accusation

against the attorney, the Office of the Chief Trial

Counsel will only reopen its file in this matter if the

California Supreme Court issues an order granting

your request.

You may also wish to consult with legal counsel for

advice regarding any other civil, criminal, or

administrative remedies which may be available to you.

You may contact your local or county bar association to

obtain the names of attorneys who might assist you

further in this matter.

Very truly yours,

*“S/M. Gochis”

Assistant Chief Tria] Counsel

CALIFORNIA CODES PENAL CODE

SECTION 132-141

132. Every person who upon any trial, proceedin;

inquiry, or -investigation whatever, authorized or

permitted by law, offers in. evidence, as genuine, or

,53

BEST AVAILABLE COPY

EE

true, any book,-, paper, document, record, or other

instrument in writing, knowing the same to have

been forged or fraudulently altered or ante-dated., is

guilty of felony.

134. Every person guilty of preparing any false

or ante-dated book, paper, record, instrument in

writing, or other matter or thing, with intent to

produce it, or allow it to be produced for any

fraudulent or deceitful purpose, as genuine or true,

upon any trial, proceeding, or inquiry whatever,

authorized by law, is guilty of felony.

INS

46

Appendix I

16]

STATE BAR

COURT OF

Page

CALIFORNIA Case No. 04-0-12846 Transcribed May 5,

2005

Hearing of May 5. 2005

Ron Magnuson:

Judge Talcott:

noticed it. It's also described as

No. 8 with particularity. And we

spent a considerable length here

yesterday talking about how it

didn't have that caption "No bonds

accepted after 1:00 P.M." He was well

aware of the document I'm talking

about. And Mr. Magnuson is

telling him not to disclose it.

That's what's happening, you

know.

Your Honor, I don't.

I don't believe Mr. Magnuson is

advising an attorney not. to

162

AJA:

disclose a document. He would

have no reason to do that.

I have an email here, from

Mr. Magnuson to Mr. Byer.

After court yesterday. I will be

willing to show it to the court right

now as an offer of proof. It's entitled

"The Allegrino Evidence

Problem." And it's talking about

how into get altered evidence into

evidence. Citing some section of the

Evidence Code. And the last line

says that "the alteration only

becomes material when the

document is offered into evidence."

So I guess they can falsify whatever

they want”.

163

ATTESTATIO

N

¢ I, Madeleine Lewis, 2409- N.. Sepulveda #102,

Manhattan Beach, California 90266, hereby state

under penalty of perjury of the laws of the State of

California that I have, to the best of my ability;

accurately transcribed the proceeding identified

ona

tape Vey ae

marked "State 'Bar Court, Case No. 0470-

12,846r" which

165

STATE BAR COURT Page

OF CALIFORNIA

Case No. 04-0-12846 Transcribed May 5, 2005

Hearing of May 5. 20Q5

Judge Talcott: That would be the bond application

without the deletion.

AJA: I did not. I didn't get anything. Mr. Byer

gave-

me a couple of exhibits in between

running. from the conférence on. the

fourth’ floar’ up'to' see Mr. Magnuson’

upstairs. He showed me, showed me, the

band

Sheet that we were locking yesterday

which

said "No bond may be posted after one

o'clock," which is the new sheet. On that

—_

sheet was some — markngs at the top

166

that

had been whited out. I spent at

least 20 minutes here yesterday

identifying a document was

completely

in Spanish. My declaration to

this court, Number 8, describes

with

particularity a sheet was entirely in Spanish and did not

contain the word "No bonds accepted after 1:00 P.M." in

Spanish. We

spent twenty minutes here yesterday discussing this. He

admitted he had it. He did not show me that document at

all. He daims now he doesn't have it, but didn't tell me he didn't

have till after he spoke with Mr. Magnuson.

167

ATTESTATION

I, Madeleine Lwis, 2409: N.. Sepulveda #102,

Manhattan Beach, California 90266, hereby state

under penalty Of perjury of the laws of the State ¢ .of

California that I have, to the best of my ability;

accurately transcribed the proceeding identified

on a.tape marked "State 'Bar Court, Case No.

Ll ey ty pean /

‘

168

AJA: Yes.

Judge Talcott: These events were occurring?

AJA: Yes. This bond sheet is the

new bond sheet that went

into effect September 30th, 2004.

And the new bond sheet says,

at the top here, "No bonds will

be accepted after 100 P.M."

This bond sheet was got when

Mr. Byer was in New York, slipped

in so that he can show it to the

witness to say, "Is this the bond

sheet that you got," to prove the

time was one o'clock. On the top

of a stack of mail that came from

the State Bar with a bond sheet,

which I saw at this

170

distance entirely

documents, it was a stack of

documents approximately this

thick, and he told me he needed 30

days to copy them, and then he

claimed he never got a discovery

demand from me. He said discovery

was over.

Judge Talcott: Mhm.

171

STATE BAR COURT OF Page 6

CALIFORNIA Case No.

04-0-12846 Transcribed

May 5, 2005

AJA:

And this is how the

subject came up. So I want

to go back on the record, I handwrote

a note to him saying turn over to me

whatever you have, including that,

and give it to me, and I want it by

April 30th, since you need 30 days

to copy a stack of documents this

thick. We came out here for the

settlement conference, I asked him

for the same stack of documents

again, I‘ve been talking about

this document with

handwriting on it for the past

couple of weeks, and he keeps saying

172

Judge Talcott:

Timothy Byer:

Judge Talcott:

Timothy Byer:

produced.

Judge Talcott:

of that?

Timothy Byer:

Judge Talcott:

Why are you...

it doesn't exist and he's not turning it

over.

all right?

Is there such a document that is

referred to?

In the course of our conversation

before this...

Is there a document?

It is the document that is

But is your handwriting on the top

Originally yes. And this was

improper. I apolcgize. It was

nothing

other than

What are you going to tell me.

173

AJA: There was a fax lying at the top

from the

witness who faxed it to me.

Judge Talcott: And what did you do?

Timothy Byer: And I whited the fax line out just

to use the...

Judge Talcott: Why did you white it out?

Timothy Byer: Just to clean it up as an exhibit.

There was nothing... There was

nothing there to hide.

AJA: Judge...

I know, but we don't know that and

you can't

documents.

Timothy Byer: Well, I will go back and see if I can

find the versions from which 4

whited out, you know, “To Tim Byer

from Mohamed Kabashi" and the fax

line from his restaurant. And I'll

174

be happy to provide it, if I can. I

apologize, I should not have done

it that way but that's how I did

it.

Judge Talcott: Well, you can't take a document

and change it in any way and

then offer that as evidence.

175

STATE BAR COURT OF CALIFORNIA

Case No. 04-0-12846

Transcribed May 5, 2005

AJA: Judge, if I may...

Judge Talcott:

Timothy Byer:

|: a

Judge Talcott:

had to say

had to say.

AJA: I'm sorry...

Judge Talcott:

And if a document has a fax line

or something on it or it has a filing

stamp, you know, like a filing stamp

and you don't like the filing stamp,

you can't white those things out. I

mean, where does that come

from?

I'm sorry, Your Honor. I just...

he listened to everything you

I’m not going to have...

AJA: I waited my turn.

176

Judge Talcott: I'm not going to have crazy

conduct.

AJA; There is no crazy conduct. I just...

Judge Talcott: All right, well, just relax.

You're...

AJA: He just admitted that he fabricated a piece

of evidence. He altered a

piece of evidence. This is my

key piece of... This is an

exculpatory piece of evidence. This

is very severe, because what it

proves is, he obtained his new bond

sheet so he could show it to the

witness to prove that the...

177

ATTESTATION

I, Madeleine Lewis, 2409 N. Sepulveda #102, Manhattan

Beach, California 90266, hereby state under penalty of perjury of

the laws of the State of California that I have, to the best of

my ability, accurately transcribed the proceeding

identified on a tape marked "State Bar Court,

Case No. 04-0-12846," which hearing was held ...May 3,

2005, as marked on the tape.

lin At lan~_. |

178

BEST AVAILABLE COPY

STATE BAR COURT OF CALIFORNIA

Case No. 04-0-12846

Transcribed May 5, 2005

AJA: I'm just bringing it to the Court's attention.

Judge Talcott: All right. So you've brought it to

my

attention.

AJA: It goes to prosecutorial

misconduct.

Judge Talcott: Well, there hasn't been any in

this court yet. I mean, this is...

AJA: He's just admitted that he changed the

document.

Judge Talcott: Yeah, I...

AJA: And I filed a discovery

demand, which was _ not

complied with, and when I filed

my- declaration stating that he

had a United States Supreme

179

Judge Talcott:

Court Brady v. Maryland duty to

disclose the stuff, I identified the

documents. Just two minutes ago

he denied the existence of this

document. Now he's admitted it to

the Court. Before the Court, I asked

him and he said that he didn't have

it. He said that I was imagining

it. "I can't explain what you saw."

Now he's just admitted. .I mean,

you know...

All right. Let's...

Mr. Byer, you're walking on thin ice. You could lose this

case very, very easily if you do not

180

STATE BAR COURT OF CALIFORNIA

Case No. 04-0-12846

Transcribed May 5, 2005

comply with your obligation to

attorney, and by the Supreme

Court ruling. It is absolutely

established that you are under

ongoing obligation to turn over

exculpatory material to

Mr. Allegrino. If you don't do

that, and if you misinterpret the

document, since in your mind it's

not exculpatory, and it turns out

that it is, then sanctions could be

made against you as an attorney.

You understand that?

Timothy Byer: I understand that, and, Your Honor,

there

181

is nothing that is at issue...

Judge Talcott: But you can't make that

Timothy Byer:

-

Judge Talcott: °

statement because it’s viewed

through your eyes. You thought

there was nothing wrong with

whiting out something from a

document. You can't do that. I

mean, where were you educated?

Where were you trained? « [I

mean, people go

to jail for that. So I just don't

think

it's terribly material whether you

whited that out or not, but you

can't do that.

I understand that, Your Honor.

so when you say to me you don't

have anything, I have to look at

that with jaundiced eye, because

I don't know that.

182

Judge Talcott: You're making that judgment realistically.

If

you don't take it

properly, then your case in jeopardy.

Timothy Byer: Okay. I understand that.

Judge Talcott: Well, I don't know that you ‘do

understand it.

You keep saying you understood it.

Well, I

understand it... You just stood there

two minutes ago...

Timothy Byer: I didn't...I didn't understand, Your Honor,

truthfully, and...

Judge Talcot: Well, why don't you understand

it?

That's...

Timothy Byer: Your Honor, ifI may finish my responses. All

183

isa

it was

before

this

to

right. When I tell you I understand it, it

refinement of my

education, I'm receiving in this courtroom. If

something that I should have understood

and didn't, that's my fault and I will take that

with my supervisor immediately upon leaving

hearing. And if there is any further

information in that regard, I will bring it back

you whichever way it goes.

184

STATE BAR COURT Page 17

OF CALIFORNIA

Case No. 04-

0-12846

Transcribed May 5, 2005

Judge Talcott: I don't understand What that last

statement means. What are you

going to bring back? Is there a

document that you haven't turned -

over?

Timothy Byer: No, no, I'm going to bring that.

I've

Already told this Court that I will

make an effort to find that

document.

Judge Talcott: I that. I'm talking about...

Certainly

that.

But, you

know, I'm not going to be happy

185

that

helpful

to

- not

expedition

document

you

At all if you have

adocument in your possession

Mr. Allegrino. wants and believes is

to him, that my instruction to you

turn it over.’ If you have a document

that he could go on a fishing

and say, "Give me _ every

you have, from whatever source

received it and I'll look at it and Il

make the decision" - You make that

decision. But if you're wrong, then

there is a consequence for being wrong.

So I'm... to veer on the side of

caution and turn over the

186

document that he's requested.

Because if you can identify a

document that he wants, then

you see that he gets it.

Attestation: || Madeline Lewis, hereby state under penalty af

pexjury of the laws of the State of California that I have, to the best

of my ability, accurately transcribed the proceeding identified

on a tape marked "State Bar Court, Case No. 040-

12846," which hearing was held on May 3, 2005, as marked on

the tape. (S/MADELINE LEWIS’)

12Q

STATE BAR COURT

OF CALIFORNIA alg

Case No. 04-0-12846 Transcribed May 5, 2005

Hearing of May 5, 2005

AJA: Yes. Second point...

Judge Talcott: you're talking about Brady V.

Maryland.

AJA: Yes Brady V. Maryland

exactly Second point, Judge,

you asked us to stipulate to facts

yesterday. And during this

meeting with Mr. Byer we went

downstairs and we had an

agreement when I left. Well, I

received a fax at my. hotel

yesterday, which is_ not the

agreement that we had. He minced

words. I then came in to day and

got a second version of the

190

stipulation, where he added some

stuff we didn't agree to. Now, I asked

him to see his notes, because

when we had made the agreement

and it was all settled, he wrote

down what was stipulated to. In

his own handwriting, we went

through all the documents, the jail

records from Texas, and _ he

stipulated to the visits and the

times. It was only a couple of things

we stipulated to, and he took

notes. So I received a version one,

which is untrue, version two, which

is untrue, and I just asked him to see

his notes so we could see what we

decided

191

STATE BAR COURT OF CALIFORNIA Case No. 04 Page :::

0-12846 Transcribed May 5, 2005

Hearing of May 5, 2005

to, and he said, "You're not entitled to

seemy notes." Well, if that reflects

the agreement, a prosecutor has

made an agreement for

stipulation, then certainly that

prosecutor, should honor

the stipulation. It was all settled

when I left here the other day, and

now we're still arguing about what

was stipulated to. He's got it in

writing in hist notes. So...

Judge Talcott: Well, the court is not here asa referee

in your dispute. This is Something

that you should be able to work.

.Now, one way. of working it out is

192

for you to draft a ‘stipulation as

you understood it.

AJA: Judge, he took the notes. He gave me his

Judge Talcott:

AJA: I have.

Judge Talcott:

word. He s the prosecutor. We're

all

gentlemen here. He is

intentionally

misrepresenting what the

stipulation is that's my point to

the court.

Take it up with Mr. Byer.

And if he's not willing to accede to

that, then there is not a

stipulation.

ATTESTATION

I, Madeleine Lewis, 2404 N.. Sepulveda

#102, Manhattan Beach, California 90266.

hereby state under penalty Of perjury of the

laws of the State ofCalifornia that I have, to

the best of my _ ability; accurately

transcribed the proceeding identified on

a tape marked "State Bar Court,

Case” “S/MADELINE LEWIS” 5/5/05

194

STATE BAR COURT

OF CALIFORNIA

Case No. 04-0-12846 Transcribed May 5, 2005

AJA: [ would also like him to

identify the fax number for

this Pasta Cuccina. If he can do that.

Timothy Byer: 914 788 7882.

You ordered that

Timothy Byer: It's one digit different than the

phone number and I called the

witness at that number many,

many times.

Judge Talcott: Did you get that?

AJA: Yes, Judge. 788 7882.

Judge Talcott: All right.

AJA: Aside from the

withholding of the

exculpatory evidence, I would just

like to point out to the Court, just so

196

Juge Talcott:

AJA:

the Court is aware. He just pointed

out that he narrowed

his discovery

demand

from 324

interrogatories down to 26. The

Court committed 35. He made me go

through a whole motion citing

complex issues so the court could

cut it down to 35 and he could ask 26.

Okay, for what purpose? Then he

dragged me to New York, after I

told him...

I read your documents. really I

did. I

know that...

] just wanted...

197

198

200

I, Madeline Lewis, of Manhattan Beach, Califorma 90266, hereby state

under penalty of perjury of the laws of the State of California. that I

have, to the best of my ability, accurately transcribed the

proceeding Identified on a tape marked "State Bar

Court, Case No. 04-0-12846," which hearing was held on May 3,

2005, as marked on the tape.

202

MR. BAYER:

Well, Mr... Mr. Allegrino has, uh, uh, served a

subpoena...civil subpoena for my personal

appearance in production of the, uh, documents

and things at the trial. Um, he has not served it,

uh, with, uh, in conformity with the rules, but

that's a issue for Your Honor to address later.

Um, he has addre....he has, uh, attached a letter,

uh, dealing with a resolution to our discovery

issue, um, that we addressed in our telephone

and status conference back in March.. .mid-

March. Uh, he has attached illy letter to him

proposing that we stipulate to, uh, certain

exhibits and to certain facts, um, which I have

not heard back from him on. And, uh, he has

also...I guess this is a second copy... no this is

another, uh, civil subpoena on myself. The first

one that I referred to was for documents. This

one is for my personal appearance and for

documents. Uh, is.. .this includes an amendment

to the pretrial statement listing additional

witness, and that is myself. There is nothing in

here about Mr. Lelcaj. Um, and then there's a

declaration by Mr. Allegrino dealing with, uh,

his purported, uh, um, what he purports is, uh,

my failure to comply with discovery. Um, none

of this, although it was faxed this morning._ I'm

sorry. It was faxed yesterday, and I received it

this morning. None of this has, uh, any of the

additional witness information that.. that he

said is on its way by FedEx. I think, uh, despite

the, urn, inconvenience of, uhi, compiling it all

203

and meeting again, uh, tomorrow or another

day, it would be very helpful to have this

information, uh, in front of us when we.. .when

we go through.. .get ready for the trial.

JUDGE:I'm going to take a look at my calendar

and see if,

uh, I can't, uh,

conduct another one of these. Oh, thank you

Can you be out here

tomorrow by one-thirty?

MR. ALLEGRINO: Yes.

JUDGE: All right. Then, uh, uh, I'll order another

continuing, uh, pretrial conference for one-

thirty

on Tuesday, the third of May. All right?

MR. ALLEGRINO: Okay. Thanks for your time.

JUDGE: Yeah, but I'm not hanging up yet.

I'm not hanging up.

I'm just giving you notice, uh, that

you're to be here

tomorrow, May third, at one-thirty,

Courtroom C in

Los Angeles.

MR. ALLEGRINO: Okay.

JUDGE: All right. Uh, May third at one-

thirty. All right. Uh, go ahead, Mr.

Bayer.

MR. BAYER: « There were some...

JUDGE: And please, uh, uh, you know, you

can't serve documents by fax in this

court. You know that.

205

DECLARATION.

1, Julie Cremeans, do hereby declare and

certify under penalty of perjury that I have

transcribed one CD, covering a total of 14 pages

numbered 1-14, provided to me by Anthony

Allegrino, labeled "Anthony Allegrino— 04-0-12846

transcription of aforementioned CD to the best of

my ability. I hereby ceitify that lama

disinterested party in this mattcrandhaveno

interest inthe outcome of this meeting.

Dated this 5** day of May 2004 at

Torrance, California.

Judge Talcott:

AJA: Yes, I do.

Judge Talcott:

near that arbitration. They all

backed out of it. I didn't have to

offer it. Mr. Kabachi was never

my client. I bent the rules and f

said fine, okay? I've done my

damndest to settle this whole

thing. He's got dirty witnesses and he

doesn't want them anywhere near

this proceeding. And that's

why I want to question him. The

dirty witnesses identified by that

check he withheld. The other issue

is this missing piece of evidence.

I'm not inclined to allow you to

call Mr. Byer as a witness. , This is

not... If you have a complaint

against Mr. Byer for

misconduct...

File it.

AJA: I

Judge Talcott:

Bar.

AJA:

Judge Talcott:

Not in this court but with the State

Maybe Mr. Byer should

recuse himself from this

proceeding. Then I can call him as

a witness.

That's up to Mr. Byer. But in terms

of spending the time of this court

outside of the parameters of the notice

of disciplinary

I, Madeleine Lewis, 2409 N. Sepulveda #102,

Manhattan Beach, California 90266, hereby state under penalty

of perjury of the laws of the State of California that I have,

to the best of my ability, accurately transcribed the

proceeding identified on a tape marked "State Bar

Court, Case No. 04-0-12846," which hearing was held on

210

May 3, 2005, as marked on the tape.

“S/MADELINE

LEWIS”

5/5/05

PA

Today's date is May the 5th,

2005.

Judge Talcott: Good morning, everyone. Please be

seated. This is the matter of

Anthony J. Allegrino II, this is

2004-0-Case 12846. Counsels,

please state your names for the

record.

Timothy Byer: Timothy Byer for the Office of

the Chief Trial Counsel.

Ronald Magnuson: Ronald Magnuson for the Office of the

Chief Trial Counsel.

AJA: Anthony Allegrino for Anthony

Allegrino.

Judge Talcott: It's Cinco de Mayo day today.

Timothy Byer; It's not quite the festive nature of

the holiday, but I do want to

bring to the court's attention a

212

few more details concerning our

last discussion. Since we spoke at

the last hearing, I told the court that

I would make a search for the

bond application that had the fax

transmittal line and the "To

Tim" from " where I whited it

out from that I'd given

Mr. Allegrino. I did find them

and I did give that to him. That was

a four-page, one of the pages was a

duplicate, so it was a three-page

application. I gave him all four

pages. I also had cleaned up a dirty fax so that when I say dirt, with

some extraneous dot markings to make ' it look more

presentable, as well as a fax transmittal line and a "To Tim -

Byer" at my New York hOtel room also been whited out from that.

And I found that original and gave that original to Mr.

Allegrino as ell. It is now one of the State Bar’s exhibits. It is a

copy of the check that I had given to him at the last hearing that I

realized after the hearing was also realized after the hearing

was also one of the documents I cleaned up. I also made a

search for another document, which tumed out to be two

documents, that I also whited out the fax transmittal line off of I

dont have those but I believe they are in the court's angmal

document file as State Bar Exhibits 11 and 12. These are silent

petitions and motions for change of venue, prepared by

Glenn Banks for Bark Kabashi and Satmir Gash. The

Bark's papers are Exhibit 11 and Satmir's papers are Exhibit

12. I weated to

bring this to the court's attention so there wasnt any

issue

about further alterations such as it

is.

Judge Talcott: With respect to Exhibits 11 and 12,

are you suggesting that they have

some

markings on then, or don't have

markings on them.

Timothy Byer- The court's copy is the original fax that I

received, with the white-out tape at the top

edge

taking off the fax transmittal from

Mr. Banks’ office in New York. I did

not submit a copy of that whiteodd

exhibit to the court. I submitted the one

that I put the white-out tape on. So Mr.

215

Judge Talcott:

Allegrino and the other exhibit

books, binders, have nothing at that

top ime. The court has the original with

the whited out obscuring the fax

transmittal line.

I'm looking at Exhibit 7. And I'm

looking at the top of this exhibit

to see if anything is whited out.

There is no whiteout strip as it

appears. Now, I may be looking in

the wrong place. I'm going to ask

counsel to approach the bench and take a

STATE BAR COURT OF CALIFORNIA Case N. 04-0-page

12846

Transcribed May 5, 2005

Hearing of May 5. 2005

Timothy Byer:

Judge Talcott:

Timothy Byer:

Judge Talcott:

look and find what's wrong

with it. Exhibit 11.

I don't know why it's not on Exhibit 11

but 'I definitely did it on Exhibit

12.

There has not been any change or

alteration to Exhibit-11-.

Your Honor, [ don't know. I

thought I did the same thing to

Exhibit 11 but I may not have done

that. So I may have just altered

the fax and another original.

So is Mr. Banks going to be here

as a witness?

IV7

Timothy Byer:

Judge Talcott;

Timothy Byer:

Judge Talcott:

Timothy Byer:

Yes, absolutely. I put whiteout on

Exhibit 12.

And what do you claim is under

that if I were to see that?

Just "Law Office Glenn H. Banks"

and his New York fax address and

the page number of the fax.

This awfully short for this

amount of information.

Your Honor, the letters are small

and they. run across the top edge.

PIR

ATTESTATION

I, Madeleine Lewis, 2409 N. Sepulveda 41102, Manhattan

Beach, Califormia 90266, hereby state under penalty of perjury of the

laws of the State of California that I have, to the best of my

ability, accurately transcribed the proceeding identified on a

tape marked "State Bar Court, Case No. 04-0-12846,"

219

which hearing was held on May 5, 2005, as marked on the

tape. (‘S7MADELINE LEWIS’) 5505

220

STATE BAR

COURT OF

CALIFORNIA .Case No. 04-0-12846. Transcribed May 5,

2005

Page

Fearing of May 5, 2005

Ron Magnuson;

Judge Talcott:

Ron Magnuson:

Judge Talcott;

Well, Your Honor, of I may address

this, first of all, part of the reason

that I'm here is to make sure the

court understands that if the court

believes that anybody here has done

anybody here has done anything

Wrong...

No, I thought

The court should direct its all its

comments to me because I'm the one

that directed that this be done. Hell,

I've been doing this for years but

never had a problem from state

courts to federal courts.

Timothy Byer:

Now that's beside the point, Your

221

Honor.

AJA: Judge, I'm outraged.

Ron Magnuson:

First of all, Exhibit 9. I asked Mr.

Byer to cure that document, because

it's relevant

to his. Not that it says anything

in particular, but that it

demonstrate in general the

kind of information that Mr.

Kabashi would have had to provide at

the time he went to the bond

office and he filled this out. And

then there is also a piece of evidence

that says that after three

222

STATE BAR COURT OF CALIFORNIA Case No: 04-0-12846

Transcribed May 5, 2005

Hearing af May 5, 2005

o'clock they

won't accept

these anymore.

Now; it came as a

total surprise to

us that the

document had

been changed, if .

it had been, at

some time, to

have the thing

say that no

bonds will be

accepted after

one oclock- We

Timothy Byer.

Ron Magnuson;

First of all Mr. Kabashi, when we

asked for him to send -us the

document to use for that purpose,

said he didn't have it anymore

because, since he didn't have to fill it

out, he threw it away.

I don't remember if he threw it away or

gave it... If it's in Detective Crispino’ file,

then he gave it to Inveshgator Crispin®. I

don't remember

At any rate, I directed Mr. Byer to

have him get another one

because the relevance, however slight,

the relevance is not really anything

that's is on the document but what the

requirements

what the requirements are that

necessity based on take some

time to sit down to sit down, fill it out

224

Hearing of Mav 5. 2005

and then go stand in

some line. Corroboratio1

Bridge testimony that when he wenr

there a few minutes before tw:

o'clock or something like that.

that he was told they could nor

process it that day because _they

were out of-time

Judge Talcott: So you're offering Exhibit 9, but it's

clearly not the document that Was in

use at the time Kabachi actually

went down there. To have the court

draw the conclusion that it

contained certain requirements. But

why would the court do that when it

doesn't know whether it was

changed from what was in

eexistence two months earlier or three months earlier,

whtever it is, or a year earlier. I

225

BEST AVAILABLE COPY

mean, you're offering a document

that had no relevance unless you

could show that it really duplicated,

except in minor

e respects, the document that you relied upon?

Ron Magnuson: Well, I think that M. Kabashi could so

testify that this document appears

to ask for the very same

information that the document

that he got in May of 2004. But

anyway...

Hearing of May 5, 2005

Timothy Byer:

Judge Talcott:

Your Honor, if I may just briefly.

We did, I did not know at the time

that I included it among my

exhibits that it was gotten by Mr.

Kabashi so long after the fact.

I understand that. You know

something? The court is not even

suggetting that you sat there and

decided you're going to keep

evidence from the respondent. The

court is more concerned with the

fact that, in the court exhibit you

don't alter documents because

you never can get, you can't

substitute your judgment for what

the other

* side might consider important in

Explaining that document.

right?

Ron Magnuson;

Judge Talcott:

Ron Magnuson:

Judge Talcott:

it

The very source of the

document might be significant. All

All right. I understand that, Your

Honor, and I...

No, I'm the

...1n court.

So that's where we are. And so if

potentially can be

material, and

Mr. Allegrino has made an

argument that the source of the

document is material, he

STATE BAR COURT OF CALIFORNIA

Case No. 04-0-12846 Page

Transcribed May 5, 2005

Hearina of May 5, 2005

is entitled to see the document in

pristine ad

form as it

existed when it was received.

I mean, any more than you

That is you wouldn't take a

white-out on the printed

page, white out something

“This isn't important to this case,

im just

go to white that out." I mean, that

doesn't happen in real life. All

right, so where are we? Exhibit 9

has been withdrawn.

Ron Magnuson: Yes, Sur.

Judge Talcott: So very, purposes for which you want

to use it you're going to have to

get that in otherwise. With respect

to Exhibit 11, the court doesn't see

any alteration, so I have no

problem with that. With respect

to Exhibit 12, clearly all of us here

today- have seen the little

whiteout strip on various pages,

and...

AJA: Judge; may I be heard?

Judge Talcott: When the ‘court is done. And I'm

not, sure how to deal with it. I

supposed if it could be held up to

the light and we could see what it

says on there, and I'm not going to do

that right now, it would mean

taking

¢ I, Madeleine Lewis, 2409 N. Sepulveda #102,

Manhattan Beach, California 90266, hereby state

under penalty of perjury of the laws of the State

of California that I have, to the best of my

ability, accurately transcribed the proceeding

identified on a tape marked "State Bar

Court, Case No. 04-0-12846," which hearing

was held on May 5, 2005, as marked on the tape.

“S/MADELINE LEWIS” 5/5/05

STATE BAR COURT OF CALIFORNIA

Case No. 04-0-12846

Transcribed May 5, 2005

Timothy Byer: But let me clarify further. I did not know,

or didn't remember, at the time

that [ had that with me on what

date Mr. Kabashi said he got it. I

asked him that question last week

belatedly. I said the bond

application you faxed to me, when

did you get that? Did you get

around the time of these events or

recently? He said about a month

ago. I had no... I don't have and I

never had a bond application that

came from the time period that

clearly the statement about

nothing after 1:00 P.M. would be

dynamite had that been on a bond

application from the time period

in question. But I was never offered

232

Judge Talcott:

occurred. AJA:

Judge Talcott:

that and I have no evidence of

what was at the time.

Well obviously the

form that is Exhibit 9 was not in

existence

at the time that these events

that way.

I don't think you have to be

concerned about that. Secondly, im

no sure of the

raateriality and the relevance in

significant way of whether they stop

taking bonds after one o'clock or

they stop taking

eas

STATE BAR COURT OF CALIFORNIA

Case No. 04-0-12846

Transcribed May 5, 2005

Hearing of May 5, 2005

showed Mr. Allegrino. I have

never had anything in Spanish. |

don't know what he's talking

about.

Judge Talcott: It is very peculiar that Mr.

Allegrino has described with some

particularity

document that was at the

deposition.

Timothy Byer: Your Honor, we took the

deposition in

the office of an immigration:

pracutioner in

New York.

I don't know if the document he

235

is

referring to was on the table

somewhere

and it was not part of my stack of

documents. I don't remember any

such

document. I don't remember seeing

it, [

certainly have no idea what he's

referring to.

AJA: Judge, I witnessed him remove it from the

It was in a FedEx envelope. It was

on top. I noticedthis. I witnessed

him remove it from the

FedEx

envelope

from the State Bar and included stuff

had submitted to him and other

exhibits from Mr. Kabashi and it

placed nght on top

eof the table. That document was on top, on top of all

the other documents. That's how I

noticed it. Otherwise I would

not have

I, Madeleine Lewis, 2409 N. Sepulveda #102, Manhattan

Fal Beyer crSeli idea

best of my ability, accurately transcribed the proceeding

identified on a tape marked "State Bar Court,

Case No. 04-0-12846," “S/MADELINE LEWIS” 5/5/05

239

BEST AVAILABLE COPY

Appendix J

242

Case 3:06-cv-05490-MJJ Document 78 Filed

10/23/2006 Page 1 of 1

Appendix J

442

Case 3:06-cv-05490-MJJ Document 78 Filed

10/23/2006 Page 1 of 1

243

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

NO. CV 06-05490 MJ

AMENDED CLERK'S NOTICE

ANTHONY J. ALLEGRINO II

STATE BAR OF CALIFORNIA Defendant.

244

Default is entered as to defendants City of Los

Angeles, Los Angeles Police Department, and William

Bratton on October 23, 2006.

“S/SHELIA RASH” Clerk

Dated: October 23, 2006

245

INTRODUCTION

Pending before the Court are four motions in

these two related matters.

Three motions pertain to Case No. 06-05490:

(1) Defendants Justices of the California Supreme

Court and Chief Justice Ronald M. George's Motion

to Dismiss (Docket No. 57); and (2) Defendants

State Bar of California, Ronald Magnuson, and

Timothy Byer's Motion to Dismiss (Docket No. 55),

and (3) Plaintiff Anthony J. Allegrino II's Motion

for Preliminary Injunction (Docket No. | 49)

Oppositions and replies have been filed in

connection with all three motions.

A fourth motion pertains to related Case

No. 07-00301: a Motion to Dismiss brought by

Defendants State Bar of California, Alan Bloom, Jill

A. Sperber, Aren Werchick, Pat McElroy, Timothy

G. Byer, and Ronald E. Magnuson. (Docket No. 3.)

Plaintiff has not filed a separate opposition to the

247

this motion.

Oral argument in this matter took place on

April 10, 2007. On May 4, 2007, Plaintiff filed a

supplemental declaration providing additional

evidentiary materials, which this Court has

reviewed and

248

FACTUAL

BACKGROUND

Mr. Allegrino's federal complaints filed in both

se No. 06-05490 and Case No. 07-00301 center

und two disciplinary actions taken against Plaintiff

the State Bar of California and the California

SWpreme Court.

The first disciplinary proceeding, S.B.C. No. 02-0-

15, resulted in a recommendation to the California

reme Court that Mr. Allegrino be suspended from the

ctice of law for five years, stayed on conditions of a five-

r probationary period, a one-year actual suspension,

until Mr. Al legrino could demonstrate rehabilitation

fitness. Mr. Allegrino sought review of the

mmendation with the California Supreme Court,

claiming that the State Bar committed several due

prpcess violations, including conspiracy, falsification of

evadence, perjury, witness tampering, prosecutorial

mfsconduct, and fraud. The Supreme Court denied Mr.

Affegrino's Petition, and instituted the recommended

pension. On October 28, 2006, Allegrino concluded his

NM

249

BEST AVAILABLE COPY

one-year suspension and was reinstated to active status

with the State Bar. Allegrino's actual suspension was

lifted even though he had not yet complied with the

other conditions of his disciplinary order. On September 6,

2006, the State Bar Court granted Allegrino's request for

an extension of time to pay costs and make restitution.

On January 5, 2007, the California Supreme Court

modified its probation order to reflect the same.

The second disciplinary proceeding, S.B.C. No. 04-0-

12846, resulted in a recommendation from the State Bar

Court Hearing Department tat Mr. Allegrino be

suspended for five years, stayed on conditions of a five-

year probationary period and a three-year actual

suspension. The Office of the Chief Trial Counsel for the

State Bar thereafter sought review of the recommendation

with the State Bar Court Review Department. On

April 18, 2007, the Review Department issued an

opinion recommending the disbarment of Plaintiff, a

more severe discipline than the hearing judge had

originally recommended.

Mr. Allegrino was also involved in an arbitration

proceeding with a former client over a fee dispute, in

which the client was awarded a refund. When the client

sought enforcement of the award with the State Bar's

Office of Mandatory Fee Arbitration, the State Bar filed a

motion with the State Bar Court to place Allegrino on

involuntary inactive status. Before the hearing on the

matter, Mr. A llegrino

paid the outstanding debt owed to the client and the

State Bar withdrew the motion.

On September 7, 2006, Mr. Allegrino filed his complaint

in Case No. C06-05490 against the State Bar of

California, the City of Los Angeles, Timothy G. Byer,

Ronald Magnuson, the City of Los Angeles Police

Department, Chief of the Los Angeles Police Department,

William Bratton; Chief Justice of the California Supreme

Court Ronald M. George; and the Justices of the

California Supreme Court.

Mr. Allegrino alleges that the defendants engaged in

prosecutorial misconduct, conspired against him,

violated his federal civil rights and state constitutional

rights, and otherwise committed numerous

tortuous wrongdoings.

On January 17, 2007, Mr. Allegrino filed his complaint in

Case No. C07-00301 against the State Bar of California,

Alan Bloom, Jill A. Sperber, Arne Werchick, Pat McElroy,

Timothy G. Byer, Ronald E. Magnuson, and Arild

Rossavik. In this matter, Mr. Allegrino brings claims

alleging misconduct relating to the State Bar Court proceedings

252

to enforce the arbitration award.' Mr. Allegrino alleges that the

defendants engaged in prosecutorial misconduct and

otherwise conspired against him and forced him

to pay the fee arbitration award or face suspension.

In both actions, Mr. Allegrino seeks both monetary and

injunctive relief.

LEGAL STANDARD

A. Rule 12(b)(1)

Rule 12(b)(1) of the Federal Rules of Civil

Procedure authorizes a party to move to dismiss

a

claim for lack of subject matter jurisdiction.

Federal courts are courts of limited jurisdiction;

thus, the Court presumes lack of jurisdiction,

and the party seeks to invoke the court's

jurisdiction bears the burden of proving that

subject matter jurisdiction exists. See

Kokkonen v. Guardian Life Ins. Co., 22 U.S.

375, 377 (1994). A party challenging the court's

jurisdiction under Rule 12(b)(1) may do so by

raising either a facial attack or a factual attack.

See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.

2000).

A facial attack is one where "the challenger

253

asserts that the allegations contained in a

complaint are /5 insufficient on their face to

invoke federal jurisdiction." Safe Air for

Everyone v. Meyer, 373 F.3d 1035,

Plaintiffs Complaint in C07-0030 I rehashes

many

of the factual allegations regarding his two

state

bar disciplinary proceedings that were

contained in

his C06-05490 Complaint, and also names

three of

the same defendants. At oral

argument. Defendant clarified that his

claims in

C07-00301 relate solely to improper conduct

in

connection with the fee arbitration

proceeding,

but that he included the overlapping factual

allegations to provide the Court with context.

1039 (9th Cir. 2004). In evaluating a facial attackjto

jurisdiction, the Court must accept the factual

allegations in plaintiffs complaint as true.

See Miranda v. Reno, 238 F.3d 1156, 1157 ?

1 (9th Cir. 3 2001). For a factual attack, in

contrast, the Court may consider extrinsic

evidence. See Roberts v. Corrothers, 812 F.4d

1173, 1177 (9th Cir.1987). Further, the couft

does not have to assume the

truthfulness of the allegations, and may

resolve any factual disputes. See White, 227

F.3d at 1242.

Thus, "[o]nce the moving party has converted

the motion to dismiss into a factual motion by

presenting affidavits or evidence properly

before the court, the party opposing the motipn

must furnish affidavits or other evidence

necessary to satisfy its burden of enemas

subject matter jurisdiction." Savage v.

Glendale Union High Sch., 343 F.3d 1036,

1039 n.2 (9th Cir. 2003).

B. Rule 12(b)(6)

A motion to dismiss pursuant to Rule 12(b'

the Federal Rules of Civil Procedure «ests t

iat) sufficiency of a claim. Navarre v. Bi

0}).

- motion ¥, a the fA eP pee Oe Cie BOC Eins the '

Phan of Cat Te, BSE Sa TO be ule

18 Balisteri v. Pacifica Police Dep't, 901 F

696, 699 (9th Cir. 1988); Robertson v. Dea

Witter

19 Reynolds, Inc., 749 F.2d 530, 534 (9th C

1984). Further, dismissal is appropriate on

it appears

20 beyond a doubt that the plaintiff can p1

no set of facts in support of a claim. See

Abramson uv.

21 Brownstein, 897 F.2d 389, 391 (9th Cir. :

In considering a Rule 12(b)(6) motion, the C

accepts

22 the plaintiffs material allegations in the

complaint as true and construes them in the

most favorable

23 to the plaintiff. See Shwartz v. United

States, 234 F.3d 428, 435 (9th Cir. 2000).

ANALYSIS

A. Grounds Asserted In The Motions -

Dismiss.

In Case No. C06-05490, the Justices of the

California Supreme Court, and Ronald M.

George,

Chief Justice of the California Supreme Co

(collectively "Supreme Court Justices"), wh

sued

solely in their official capacities, move to

dismiss on several theories. First, they arg

that they are

immune from liability for Plaintiff's § 1983 claims

Eleventh Amendment. Second, they argue

that they are not "persons" for purposes of § 1983

liability. Third, they argue that they are protectec

from Plaintiffs claims by judicial immunity. Fourt.

they argue that the Court lacks jurisdiction over

this matter under the Rooker-Feldman Doctrine. Fi

they contend that dismissal is appropriate under

Younger abstention doctrine.

Also in Case No. C06-05490, the State Bar of Calif

Magnuson (who is sued in both his

official and individual capacities), and Byer (who

also sued in both his official and individual

capacities), move to dismiss Plaintiffs Complaint

the same five theories as the Supreme Court

Justices. In addition, they also move to dismiss

Plaintiffs complaint on two additional grounds: the

application of res judicata and collateral estoppel, .

state tort claim immunity.

In Case No. C07-0301, Bloom, Sperber, Werchick, Mck

Byer and Magnuson (all of whom are sued in their offici:

I States District Court

the Northem Distinct of California

258

individual capacities) and the State Bar of California move

dismiss

Plaintiffs Complaint on eight grounds: (1) Young

abstention, (2) Eleventh Amendment immunity, |

judicial immunity, (4) failure to state a claim under

Section 1983, (5) state tort claim immunity, (6)

arbitral immunity, (7) failure to state a conspiracy

claim under Section 1985, and (8) state law immu

for acts relating to mandatory fee arbitration

procedures.

1. Eleventh Amendment Immunity.

a. The State Bar of California.

In the absence of consent, a suit in federal court

against a state or one of its agencies or departments

proscribed by the Eleventh Amendment. Pennhurst State §

& Hospital v.Halderman, 465 U.S. 89. 100 (1984). The St

Bar of California is an “arm of the state" for the purposes

Eleventh Amendment immunity. Hirsh v. Justices 0}

Supreme Court of California, 1723 F.3d 708, 715 (9tk

1995); Lupert v. California State Bar, 761 F.2d 1328,

(9th Cir. 1985). For

a state or agency that is considered arm of the stat

259

Eleventh Amendment bar to suit applies regardle:

the nature of the relief sought. Pennhurst, 465 U.S

100-101.

Plaintiff contends the State Bar has consented to su

virthe of its designation as a "public agency’ for pur

of the California Torts Claim Act, and attaches a 1

from the State Bar referencing the California

Government Code provisions governing suits agains

such public agencies.

BEST AVAILABLE COPY

United States District Court

For the Northem District of California

ON ST

Plaintiffs’ argument, however, conflates the pot

for liability of the State Bar in state court with Ele

Amendment immunity issues raised when a li

sues a state in federal court. The classification

State Bar as a public agency under the California

Claim Act does not affect the State Bar's stati

purposes fo sovereign immunity.

Accordingly, all claims against the State I

California in both federal actions will be dismiss

their entirety.

b. The Supreme (

Justices.

Plaintiff has sued the Supreme Court Justi

their official capacities in Case No. C06-05490. The

of sovereign immunity bars a federal action for dan

or other retroactive relief, against a state official act

his or her official capacity. Edelman v. Jordan, 41£

651, 663 (1974); Pena v. Gardner, 976 F.2d 469, 47:

Cir. 1992). However, the Eleventh Amendment doe

bar a request for prospective injunctive relief agai

261

state officiai in his or her official capacity in order

a continuing violation of federal law. Pena, 976 F

472 n.5, Edelman, 415 U.S. at 664. Plaintiff cor

these points in his opposition. (Opposition at 10.)

Plaintiffs Complaint in Case No. C06-05490

both monetary damages against the Supreme

Justices and an injunction preventing them

imposing ay discipline against [Plaintiff] or othe

taking any action against [Plaintiffs] license to pr

law and the updating of [Plaintiffs] public recc

reflect 'no discipline in good standing[.]' (Compla:

& 67.) Plaintiffs' request for monetary damages a;

the Supreme Court Justices is barred by the Ele

Amendment. To the extent that Plaintiff is se

prospective injunctive relief against the Supreme

Justices for a violation of federal law, such claim:

proceed under the Eleventh Amendment. 7d. at

However, all state law cl

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.