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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## 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..

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0730%3A2. Public record. Not legal advice.