Metropolitan News-Enterprise


Wednesday, October 12, 2011


Page 1


State Bar Court Judge Recommends Disbarment for San Fernando Lawyer




A State Bar Court judge has recommended that a San Fernando lawyer be disbarred for misappropriating funds from two clients and other ethical violations.

In an order filed Sept. 19 and scheduled to take effect Oct. 19, Hearing Judge Patrice McElroy directed that Howard Roy Levine, 55, be placed on involuntary inactive status pending further disciplinary proceedings.

Levine, a graduate of the State University of New York and Southwestern Law School, has been a member of the State Bar since December 1982.

The State Bar initiated formal proceedings in February, following investigation of complaints against Levine by Virginia Gamboa Ayon and Jose Gonzalez.

Ayon had hired Levine to represent her son, who was charged with a crime after a fatality involving Ayon’s new car. She paid the attorney $42,000.

Following a three-day hearing in July, McElroy found that Levine agreed to assist Ayon in obtaining insurance benefits resulting from the damage to her car. Where the testimony was in conflict, McElroy found Ayon credible and Levine not.

She found that there was no separate fee agreement for the insurance matter; that Ayon did not agree, as Levine asserted, to pay Levine $400 per hour to obtain an insurance settlement; and that Ayon never gave Levine permission to sign her name to a settlement check.

Settlement Check

Levine received a settlement check for nearly $40,000, signed Ayon’s name to it, and deposited in his trust account. The hearing judge found, contrary to Levine’s testimony, that Ayon repeatedly asked about the check, but was unable to speak directly to Levine, and that Levine did not disclose his receipt of the funds to her until after she called the police, about nine months after the check was received.

From those funds, Levine eventually paid nearly $20,000, with Ayon’s approval, to satisfy the lender’s lien on the car. Of the remaining $20,000, Ayon testified, the attorney asked for $6,000 to cover his fees for negotiating the settlement, plus another $10,000 to complete work on the criminal case.

Ayon said she was willing to pay a total of $5,000 to get the matter resolved, but Levine refused. Levine claimed that Ayon then offered an even split of the $20,000, but Ayon denied this and said she demanded the entire sum after Levine refused her $5,000 offer.

The judge found Ayon’s version to be the believable one. She concluded that Levine violated the Rules of Professional Conduct by failing to notify his client that he had received funds on her behalf, dishonestly signing her name to a check, failing to maintain the funds in his trust account, failing to pay the money over promptly, and misappropriating funds.

There was also a technical violation of the rule against accepting fees from a non-client without permission, because Ayon’s son never consented to having his mother pay the attorney, McElroy concluded.

Second Matter

In the Gonzalez matter, McElroy found that the client had more than $25,000 in his possession when arrested, which was held by the Los Angeles Police Department pending the outcome of his case; that he pled no contest to a misdemeanor and agreed to pay fines and penalties of about $20,000; and that the court ordered the LAPD to release the money to Levine, who was to pay the fines and penalties out of it.

Levine, however, waited nearly six months to pay the court; repeatedly allowed his trust account balance to drop below the amount he was supposed to be holding on the matter; and did not pay his client anything for several weeks, McElroy found.

The judge further found that Levine charged Gonzalez a fee of more than $1,700, based on an hourly rate of $400, merely for picking up a check from the LAPD, on top of having been paid an agreed-upon $5,000 for services that included only two court appearances.

This conduct violated the trust accounting rule, constituted misappropriation, and breached the rule against charging unconscionable fees, the judge found.

McElroy found in mitigation that Levine had “a very chaotic life” and suffered from depression as his marriage was failing, he and his wife had a newborn child and were taking care of her three grandchildren, and he had been in therapy for several years because of family problems. She also found that he had been cooperative with the State Bar, and had strong character references—including attorneys who said they would continue to refer clients to him despite knowledge of the case.

Aggravating Circumstances

But there were also aggravating circumstances, the judge found—prior discipline in the form of a stayed suspension and three years’ probation for failing to supervise an officer manager and failing to promptly pay client funds, multiple acts of misconduct in the current case, and the significant financial harm to his clients.

McElroy rejected the argument that the mitigating circumstances were of sufficient weight to support a sanction of three years’ suspension rather that disbarment.

When the amount of money involved is substantial, the judge explained, it will only be under the “most compelling” of mitigating circumstances that an attorney will avoid disbarment for misappropriation. And while Levine did make restitution in full after trial, she noted, that is neither a defense to misappropriation nor a mitigating circumstance.

The judge offered sympathy for Levine’s emotional difficulties, but said “disbarment is the only adequate means of protecting the public from further wrongdoing by respondent.”

The State Bar was represented by Deputy Chief Trial Counsel Eli Morgenstern, while Arthur Margolis represented Levine.

The case is Matter of Levine, 09-O-17404.


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