Aug. 1, 2017
Discipline Report - August 2017
Recent attorney disbarments, suspensions, probations, and public reprovals in California.
Patricia Joan Barry, Los Angeles
James Allen Bascue, Los Angeles
Jane L. Schooler, Del Mar
Gerard Nicholas Casale, Jr., Santa Monica
James Patrick Kleier, San Francisco
Steven Mark Klugman, Torrance
Douglas Anthony Parigian, Lowell, Massachusetts
Joshua Lee Phelps, Lakewood
Mary Frances Prevost, San Diego
Jonathan Edward Roberts, Norwalk
Benjamin Yu, New York, New York
Leon Emmanuel Jew, Pleasanton
Donald Stephen Lucien, Encino
Patricia Joan Barry
State Bar # 59116, Los Angeles (June 28, 2017)
Barry was disbarred after being found culpable of four counts of professional misconduct in two matters: failing to comply with probation conditions imposed in an earlier discipline order, failing to obey court orders, and failing to report court-imposed sanctions to the State Bar as required.
The hearing judge below recommended six months of actual suspension as appropriate disciple. Barry appealed.
On review, the State Bar Court panel requested supplemental briefing to determine whether increased discipline—including disbarment—might be appropriate, and whether the matter should be remanded to receive further evidence on the issue.
Specifically, in the probation violation matter, Barry failed to timely submit several written quarterly reports as well as a final written report and failed to submit proof of completing Ethics School, in-person ethics legal education instruction, and passage of the Multistate Professional Responsibility Exam.
On appeal, Barry raised a “defense of necessity,” arguing that she “was late on reports and other requirements of probation like the invalid and unreliable MPRE because she put the safety of her clients ahead of meeting the Bar probation deadlines.” The State Bar Court panel rejected the defense as meritless.
In the other matter, Barry had filed a legal malpractice and fraud lawsuit against a client’s former lawyer. However, she failed to file any opposition to three separate discovery motions the former lawyer filed in the case; ultimately, a court imposed two sanctions orders against Barry, which she neither paid nor reported to the State Bar.
On appeal, she argued that the State Bar lacked jurisdiction in the sanctions matter, as it can decide only matters related to client complaints. The State Bar Court rejected this claim, underscoring that the California Supreme Court empowered it to “conduct the preliminary investigation, hearing, and determination of complaints” in disciplinary proceedings. It also rejected her claims that the sanctions orders were improperly issued and that financial problems prevented her from paying the sanctions—noting that she failed to offer supporting evidence for these contentions or to seek other relief.
In aggravation, Barry committed multiple acts of misconduct, had two prior records of discipline for wrongdoing similar to the present misconduct charges, and demonstrated little insight or understanding of her misconduct.
In mitigation, she offered testimony by two character witnesses—a client and her daughter. That evidence was given nominal weight, however, since the witnesses did not represent “a wide spectrum of the legal and general communities” as preferred, and one of them demonstrated a limited understanding of the discipline charges at issue.
James Allen Bascue
State Bar # 47433, Los Angeles (June 30, 2017)
Bascue was disbarred by default after he failed to appear for the trial and decision of the disciplinary charges against him, despite having adequate notice and opportunity to do so. He did not move to have the default order that was entered set aside or vacated.
In the underlying matter, Bascue was convicted of one count of assault with a firearm (Cal. Penal Code §245(a)(2)), a felony that may or may not involve moral turpitude. He had summoned police to his home, claiming he was being attacked. Responding officers stationed themselves around the outside of the home and observed Bascue inside—loading a handgun and pointing it aimlessly around the living room. He then fired two shots in the direction of the officers in the yard, but did not hit anyone.
The State Bar Court judge found that the circumstances surrounding the misconduct did not involve moral turpitude, but warranted professional discipline.
Jane L. Schooler
State Bar # 131676, Del Mar (June 28, 2017)
Schooler was disbarred from the practice of law after being found culpable of four counts of professional misconduct in handling her parents’ trusts and estates, including failing to fulfill her fiduciary duties and maintaining unjust legal actions by filing frivolous appeals. Two additional charges involved moral turpitude: repeatedly breaching her fiduciary duties as trustee and personal representative and intentionally violating courts orders and making misrepresentations to courts and third parties.
The hearing judge below recommended a two-year actual suspension; the Office of the Chief Trial Counsel of the State Bar appealed, seeking disbarment.
Schooler was designated as trustee of her family’s trusts and as personal representative of her mother’s estate. The combined value of the two trusts and estate property transferred by will was estimated at more than $7 million in 2007—and all instruments provided that the assets should be divided equally and distributed to Schooler and her four siblings: three brothers and a sister.
When their mother died, Schooler and one of her brothers were living in the family’s beach house, with the lower level of the home rented to tenants who were paying $2,200 per month. A short time later, Schooler told her brother and the tenants to move out so she could make repairs to the home in preparation for its sale. However, she continued to live in the home for more than two years, using income from the trusts to repair and maintain it at a cost of $106,800. She also failed to list or sell the property, rejecting cash offers, and ultimately defaulted on the mortgage. In addition, she failed to pay taxes on several parcels of real estate in Las Vegas held in trust; three of the parcels were scheduled to be sold at a public foreclosure auction.
Despite repeated requests from her siblings, Schooler did not distribute assets to the named beneficiaries for nearly eight years after her mother’s death, when she was removed as trustee and executor and an interim successor was appointed. By then, the estate and trust holdings had dwindled substantially. And despite the appointment of the successor, Schooler falsely continued to hold herself out as trustee and personal representative to courts and financial institutions. She then embarked on filing a series of appeals challenging probate court rulings and the successor trustee and executor’s actions. Several appeals were dismissed as meritless, with sanctions imposed, which Schooler has not paid.
On appeal, Schooler argued her misconduct should be excused because she was acting as a trustee, not as an attorney, and because she relied on advice of counsel for her actions—claims disputed and rejected by the State Bar Court panel.
In aggravation, Schooler committed multiple acts of misconduct over a number of years, significantly harmed the other trust and estate beneficiaries, and demonstrated indifference toward rectifying or atoning for her misconduct.
In mitigation, she had been a member of the California bar for 17 years without a discipline record, though she had practiced law for only a short time.
In recommending disbarment rather than suspension, the panel highlighted Schooler’s “long-running, extremely harmful and serious misconduct, along with the aggravating factors.”
Gerard Nicholas Casale, Jr.
State Bar # 161735, Santa Monica (June 30, 2017)
Casale was suspended from the practice of law in the interim pending final disposition of his convictions of contempt (18 U.S.C. §401(3)) and conspiracy (18 U.S.C. § 2(b)), felonies that may or may not involve moral turpitude.
James Patrick Kleier
State Bar # 88554, San Francisco (June 5, 2017)
Kleier was suspended from the practice of law pending proof of passing the Multistate Professional Responsibility Exam—one of the requirements imposed in an earlier disciplinary order.
Steven Mark Klugman
State Bar # 53902, Torrance (June 9, 2017)
Klugman was suspended from practicing law for six months and placed on probation for two years. Both he and the Office of the Chief Trial Counsel of the State Bar appealed that order of discipline, which was affirmed on appeal.
Klugman was charged with three counts of professional misconduct: failing to maintain client funds in trust, failing to obey a court order, and breaching his fiduciary duties as escrow agent. In the underlying matter, he had represented a client in a dispute with his ex-wife over unpaid child support. A court had ordered Klugman to hold $108,377 in disputed funds, then nine months later, orally indicated it would order him to disburse the funds—directing the ex-wife’s counsel to prepare the order. Before the court issued a written order, Klugman disbursed the funds to his client. The court subsequently issued a written order dissolving its initial order to hold the funds and directing their distribution.
After conducting a final audit, the California Child Support Service Department (CSSD) had determined that the client owed nearly $12,000 less than it had originally determined, and it was agreed that CSSD would issue two checks, which Klugman was to hold until the issue was resolved. There was confusion about the court’s directive, but at his client’s insistence, Klugman issued him the check for $11,872, the “overage amount,” which had been deposited in his client trust account.
On review, he argued the court’s oral order authorized him to disburse the funds—an argument the State Bar Court judge rejected, finding he had voluntarily assumed fiduciary responsibility for holding the funds until the court issued its signed written order. The judge also found Klugman willfully violated the court’s initial order, noting he was obligated to obey it “unless he took steps to have it modified or vacated, which he did not do.”
In aggravation, Klugman had a prior record of discipline including actual suspension, and demonstrated a lack of insight and failure to accept responsibility for his wrongdoing,
He was allotted mitigation credit for entering into an extensive factual stipulation prior to trial, though the credit was minimal since the facts were easily provable.
Douglas Anthony Parigian
State Bar # 156312, Lowell, Massachusetts (June 5, 2017)
Parigian was suspended from practicing law in the interim pending final disposition of his convictions of conspiracy to commit offenses against the United States (18 U.S.C. §371) and securities fraud (15 U.S.C. §§78j(b) and 78ff(a)). Both offenses are felonies. However, the Office of the Chief Trial Counsel of the State Bar has not provided authority or argument establishing they involve moral turpitude; neither the California Supreme Court nor the State Bar Court has classified the conspiracy conviction to date.
Joshua Lee Phelps
State Bar # 259067, Lakewood (June 5, 2017)
Phelps was suspended in the interim pending final disposition of his conviction of possessing more than 600 images of pornography involving children or youth (Cal. Penal Code §311.11(c)(1)). The offense is a felony involving moral turpitude.
Mary Frances Prevost
State Bar # 157782, San Diego (June 12, 2017)
Prevost was suspended from practicing law pending proof of passing the Multistate Professional Responsibility Examination as required in the terms of a previous disciplinary order.
Jonathan Edward Roberts
State Bar # 166043, Norwalk (June 5, 2017)
Roberts was suspended from practicing law pending his passage of the Multistate Professional Responsibility Exam as mandated by the California Supreme Court in an earlier disciplinary order.
State Bar # 243005, New York, New York (June 12, 2017)
Yu was suspended in the interim pending final disposition of his convictions of one count of conspiracy in the fourth degree (NY Penal Law §105.10(1), two counts of bribery in the second degree (NY Penal Law §200.03), and 13 counts of rewarding official misconduct in the second degree (NY Penal Law §200.20). All the offenses are felonies, but the determination of whether they involve moral turpitude was reserved until evidence of finality of the convictions has been filed.
Leon Emmanuel Jew
State Bar # 219298, Pleasanton (June 29, 2017)
Jew was publicly reproved after he stipulated to two acts of professional misconduct related to mishandling client trust account funds: depositing and commingling funds into the account, and then issuing several checks from it for personal expenses.
In aggravation, Jew committed multiple acts of wrongdoing.
In mitigation, he entered into a stipulation before disciplinary charges were filed against him, had practiced law for approximately 14 years without a record of discipline, fully cooperated with the State Bar investigation into the matter, and did not harm any clients through his misconduct. In addition, he presented letters from 15 character witnesses from both the legal and general communities—all of whom were aware of the facts and circumstances of his wrongdoing, and all whom attested to his good character.
Donald Stephen Lucien
State Bar # 101069, Encino (June 21, 2017)
Lucien was publicly reproved after being found culpable of two counts of professional misconduct in a single client matter: failing to notify a client of settlement funds received on her behalf and failing to promptly pay the client the funds that were received.
Lucien represented a woman who had sustained injuries in a car accident; their fee agreement entitled him to 40% of the recovery amount if the case was resolved after litigation was filed. The client accepted a $2,500 settlement offer the month after Lucien filed a lawsuit in the matter; that amount fell more than $6,000 short of the medical expenses, legal fees, and costs incurred. A chiropractor also had a lien against the settlement for $2,215 in medical expenses.
The settlement check was made payable to the client, Lucien, and Medi-Cal—which also had a statutory lien on the settlement for an undisclosed amount—so could not be negotiated without the consent of all three payees. Lucien instructed his secretary to inform the client that the check had been received; she left a single voice message with a request for a callback, but there was no follow-up effort to inform the client. Two years later, the check remained uncashed, and the competing liens and claims in the case remained unsolved.
In aggravation, Lucien committed multiple acts of misconduct.
In mitigation, he had practiced law for approximately 32 years without a record of discipline. He was also allotted limited mitigation credit for entering into a stipulation as to facts in the case, though not to culpability, as well as for performing pro bono work, which was established only by his own testimony and not verified by outside sources.