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Office of Disciplinary Counsel v. Au6/7/2005
monetary gain by the use of a runner and in depositing unearned fees into his Office Account . . . .
[2.] A Pattern of misconduct (ABA Standard 9.22(c)). Respondent has engaged in a pattern of misconduct in his accounting practices. In addition, Respondent has also a pattern of misrepresentation in his citation of the Sherry2 decision, his denial of the accuracy and completeness of the tapes and transcripts of the August 16 and 29, 1994 conversations, his filing false annual registration statements, and his false testimony regarding payment to his clients prior to negotiating the settlement checks.
[3.] Multiple offenses (ABA Standard 9.22(d)). Respondent There are multiple, unrelated instances of unethical conduct in this matter.
[4.] Submission of false evidence, false statements, or other deceptive practices during the disciplinary process (ABA Standard 9.22(f)). As stated above, Respondent falsely testified at the Formal Hearing (1) that he first paid his clients, then deposited the settlement checks into his Office account; (2) that he had no illicit referral agreement with Mr. Yoshimoto; and (3) that he paid Mr. Yoshimoto investigation fees for services rendered to Ms. Labrador. [5.] Refusal to acknowledge wrongful nature of conduct (ABA Standard 9.22(g)). Although Respondent has acknowledged that he committed certain acts, he has denied that those acts were unethical. Respondent falsely denied hiring Wayne Yoshimoto as a runner and paying him illicit referral fees. When given opportunities to recant this false testimony, he refused. Instead of addressing the issues in good faith, he repeatedly made baseless arguments and attempted to divert attention from his misconduct to irrelevant issues, such as the qualifications of the person who transcribed the tapes and his dealings with other lawyers.
[6.] Substantial experience in the practice of law (ABA Standard 9.22(i)). Respondent was admitted to practice in 1963 and has practiced for most of the past 40 years.
b. Mitigating Factors
Under ABA Standard 9.31, mitigating factors or circumstances " ay justify a reduction in the degree of discipline to be imposed." American Bar Association Center for Professional Responsibility, Standards for Imposing Lawyer Sanctions 9.31, at 15 (1991). Of the thirteen possible mitigating factors that ABA Standard 9.32 recognizes, the hearing committee found only two with respect to Au:
[1.] Absence of prior disciplinary record (ABA Standard 9.32(a)). Respondent has no prior discipline.
[2.] Correction of Accounting Practices; Lack of Material Economic Harm to Clients Due to Accounting Practices. When Respondent learned that his accounting/bookkeeping practice were improper, he corrected them. His improper practices do not appear to have caused any material economic harm to any client or third party.
IV. CONCLUSION
Based on the forgoing analysis, we hereby accept the hearing committee's findings of fact and conclusions of law. However, we reject (a) the hearing committee's recommendation to publicly censure and disbar Au and (b) the Board's recommendation to suspend Au from the practice of law for two years. Under the circumstances of this case, disbarrment would be too severe a sanction, and yet a suspension of less than five years would be insufficient to reflect our concern for the protection of the public, the legal profession, and the courts from Au's unprofessional conduct. Therefore, an order suspending Au from the practice of law for a period of five years will be entered contemporaneously with the filing of this opinion.
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