Wednesday, January 7, 2004
Suspension Recommended for Laywer Whose Employees Stole From Client Trust Fund
By a MetNews Staff Writer
The Review Department of the State Bar Court has recommended a five-year stayed suspension, rather than disbarment, for a lawyer whose employees stole an estimated $1.7 million from her client trust account.
Presiding Judge Ronald Stovitz, in an opinion filed Dec. 26, said the State Bar proved that Monica Malek-Yonan failed to adequately supervise the employees who managed her Orange County personal injury office or to establish procedures to safeguard the trust account.
But Stovitz said the bar never introduced evidence about how much of the money involved belonged to Malek-Yonan and how much belonged to her clients.
The attorney said she discovered the problems in August of 1998 after becoming suspicious about the employees who wrote checks on the account and rubber-stamped them with her name. She reported her suspicions to police when she received a call from her bank manager informing her that three individuals, whose names she did not recognize as those of clients, were trying to cash settlement checks drawn on the account.
Hearing Judge Stanford E. Reichert recommended she be disbarred.
But Stovitz said the State Bar did not meet its burden of proving by clear and convincing evidence what portion of the stolen money was due to clients and what portion Malek-Yonan was entitled to keep as attorney fees.
“We find no merit to the State Bar’s argument that money in a client trust account is presumed to belong to the clients and that it was respondent’s burden to prove otherwise. The State Bar cites no authority for this proposition and we are aware of none. The State Bar alleged in the notice of disciplinary charges that client money was stolen and it had the burden to present clear and convincing evidence proving that allegation….The State Bar failed to do so.”
Many of the aggravating circumstances found by Reichert were “based on the hearing judge’s conclusion that client funds were stolen,” Stovitz explained. The fact Malek-Yonan acted promptly to report the misconduct when she discovered it was entitled to “some weight in mitigation,” he added.
The case was “reasonably comparable” to In the Matter of Jones, 2 Cal. State Bar Ct. Rptr. 411, in which a lawyer who allowed a non-attorney to conduct a personal injury practice involving fraudulent practices in his name was suspended for two years, Stovitz said.
The panel concluded that in Malek-Yonan’s case, actual suspension for 18 months—the length of time she has spent on involuntary inactive status—is sufficient.
Copyright 2004, Metropolitan News Company