ii

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PUBLIC MATTER—NOT DESIGNATED FOR PUBLICATION

FILED

STATE BAR COURT OF CALIFORNIA

REVIEW DEPARTMENT

SEP 2 12018 STATE BAR COUR CLERiCS OFFICE

LOS ANGELES

In the Matter of ) Case No. 15-0-14554 )

ALBERT MIKLOS KUN, ) OPINION AND ORDER ON ) SUMMARY REVIEW

A Member of-the State Bar, No. 55820. )

Albert Miklos Kun appeals a hearing judge's recommendation of disbarment in this,

Kun' s fourth, disciplinary matter. The judge found Kun culpable of six of the 12 counts charged

in the Notice of Disciplinary Charges (NDC): (1) misleading a judge, in violation of

section 6068, subdivision (d) of the Business and Professions Code;' (2) moral turpitude, in

violation of section 61062; (3) failure to report judicial sanctions, in violation of section 6068,

subdivision ()(3);3 and (4) failure to obey a court order, in violation of section 6103. The judge

found five aggravating circumstances and no mitigating factors, and recommended disbarment as

the appropriate discipline. The judge emphasized that Kun's failure to acknowledge his current

1 All further references to sections are to the Business and Professions Code unless otherwise noted. Section 6068, subdivision (d), provides, in relevant part, that "It is the duty of an attorney to... never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law."

2 Section 6106 provides that "The commission of any act involving moral turpitude, dishonesty or corruption. . . constitutes a cause for disbarment or suspension."

Section 6068, subdivision (o)(3), provides, in relevant part, that "It is the duty of an attorney... [t]o report to the [State Bar], ... within 30 days of the time the attorney has knowledge of. . . [t]he imposition of judicial sanctions against the attorney, except for. monetary sanctions of less than. . . one thousand dollars ($1,000)."

"Section 6103 provides that "A wilful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, [constitutes a cause] for disbarment or suspension."

and prior misconduct created an unacceptably high risk that Kim would repeat his misconduct.

The judge, therefore, concluded that disbarment was necessary to protect the public, the courts,

and the legal profession.

Kun seeks summary review, contending that he is not culpable of any charges. The

Office of Chief Trial Counsel of the State Bar (OCTC) asks us to affirm the hearing judge's

decision. Upon our independent review of the record (Cal. Rules of Court, rule 9.12), we agree

with the judge's culpability findings and discipline recommendation; we thus recommend that

Kun be disbarred.

I. PROCEDURAL HISTORY OF SUMMARY REVIEW

On January 4, 2018, we granted Kim's unopposed request for summary review under

rule 5.157 of the Rules of Procedure of the State Bar.5 In summary review proceedings, the

hearing judge's material findings of fact are final and binding upon the parties. (Rule 5.157(B).)

As such, the issues here are limited to (1) whether the facts support conclusions of law different

from those reached by the judge; (2) the appropriate degree of discipline; or (3) other questions

of law. (Ibid.) If the parties do not raise an issue or contention, it is waived. (Rule 5.157(C).)

II. KUN IS CULPABLE OF SIX COUNTS OF MISCONDUCT'

A. Count Three: Section 6068, subd. (d) (Seeking to Mislead a Judge) Count Two: Section 6106 (Moral Turpitude—Misrepresentation)

The hearing judge found that Kim filed an Application and Order for Appearance and

Examination (Application) with the San Mateo County Superior Court on August 15, 2012, in

All further references to rules are to the Rules of Procedure of the State Bar of -

California unless otherwise noted. 6 Before trial commenced in this matter, counts one and 11 were dismissed without

prejudice. In his decision, the hearing judge dismissed with prejudice counts eight through 10, and 12. This, in effect, dismissed the entirety of the correlated case heard at trial, Case No. 16-0-12726.

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David Stone v. Jan-Pro International, Inc. (the Stone matter)7, a case alleging breach of contract

and fraud wherein Kun had obtained a default judgment against the defendant on November 6,

2009. The Application asked that Fulton Connor be ordered to appear for examination, not Jan-

Pro International, Inc.8 The superior court issued an order on August 15, 2012, requiring Connor

to appear for examination as the judgment debtor. According to the hearing judge, Kun was

aware at the time he filed the Application that Connor was not synonymous with Jan-Pro

International, Inc., and Kun "affirmatively misrepresented and misled" the superior court into

believing that Connor was the judgment debtor.9

The facts found by the hearing judge show that Kun intentionally sought to mislead the

superior court because he knew that Connor was not a party to the lawsuit and the judgment was

not against Connor, yet Kun filed the Application for an order for Connor to appear as the C&

San Mateo County Case No. CIV-477401 8 Fulton Connor had an interest in a company named Connor-Nolan, Inc., dba Jan-Pro of

Silicon Valley, which was a master franchisee of Jan-Pro Franchising International, Inc. (JPFI). (Italics added.)

The record demonstrates Kun knew that Connor was not synonymous with Jan-Pro International, Inc., because JPFI wrote a letter to Kun, dated February 16, 2012, informing him that (1) no company named Jan-Pro International, Inc., existed; (2) service of process in the Stone matter had not been made on JPFI; (3) JPFI had no business operations in California; and (4) JPFI never had a business relationship with Stone or had ever been aware of him before Connor-Nolan, Inc. advised JPFI of Kun's actions. Further, on June 7, 2013, JPFI sent a letter to the superior court clerk, with a copy to Kun, complaining that Kun was "erroneously pursuing execution of a judgment against [it] or against one of [its] master franchisees," and making the same points it had made to Kun in the February 16, 2012 letter. Despite receiving both letters, Kun continued in his legal actions against Connor.

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judgment debtor. 10 We find that the judge's factual findings support the charge in count three

that Kim intentionally sought to mislead the superior court, in violation of section 6068,

subdivision (d).

Count two, charging Kim with moral turpitude under section 6106, is based on the same

facts as count three. The California Supreme Court has long considered that a violation of

section 6068, subdivision (d), necessarily involves moral turpitude, and thus also constitutes a

willful and intentional violation of section 6106. (Bach v. State Bar (1987) 43 Ca1.3d 848, 855

[attorney has duty never to seek to mislead judge and, as matter of law; "[a]cting otherwise

constitutes moral turpitude"]; Grove v. State Bar (1965) 63 Ca1.2d 312, 315 [misleading judge

constitutes "act involving moral turpitude" condemned by § 6106].)

Since the same misconduct underlies the violations of sections 6106 and 6068,

subdivision (d), we also find culpability for count two, but consider both counts as a single

offense involving moral turpitude (Bates v. State Bar (1990) 51 Cal.3d 1056, 1060; In the Matter

of Jeffers (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 211, 221). We thus assign "no

additional weight to such duplication in determining the appropriate discipline." (In the Matter

of Katz (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 430, 435, fn. 4.)

B. Count Four: Section 6106 (Moral Turpitude—Misrepresentation) Count Five: Section 6068, subd. (d) (Seeking to Mislead a Judge)

The hearing judge found that Kun filed an Ex Parte Application for Order for Sale of

Dwelling and Issuance of Order to Show Cause (OSC) (Ex Parte Application) on July 16, 2013,

'° Kim argues that no judge was misled because the Application bore only the stamp of the clerk, even though the superior court judge signed the order located on the same page as the Application. We reject Kun's contention as it contravenes the hearing judge's finding of fact. By requesting summary review, Kun acknowledged the finality of the facts found by the hearing judge. (Rule 5.157(B).) Also, Kim's assertion erroneously assesses the evidence. Lastly, the law is well settled that a violation of section 6068, subdivision (d), occurs when an attorney presents a false statement of fact; culpability does not require proof that the court was actually misled. (See, e.g., In the Matter of Chesnut (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 166, 174.)

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in the Stone matter. The Ex Parte Application indicated that Stone had obtained a judgment

against the judgment debtor and sought an order to sell all of the judgment debtor's "right, title,

and interest in the real property commonly known as 1551 Winchester Boulevard, Los Gatos,

California," which, in fact, belonged to Connor and not the named defendant. Kim's proposed

OSC, signed by the superior court the same day, was specifically addressed to Connor and

required him to show cause why his property should not be sold to satisfy the default judgment

in the Stone matter.

According to the hearing judge, while the Ex Parte Application itself never expressly

stated that Fulton Connor was the judgment debtor, it never disclosed that he was not. The judge

also found that, because the Ex Parte Application identified Connor as an owner of the property

and the proposed OSC was specifically directed at him, Kun improperly implied that the

judgment was against Connor when it was not. This OSC was then executed and filed by the

superior court on July 16, 2013. When the judge determined that Kun failed to disclose that the

default judgment was only against Jan-Pro International, Inc., and not Connor, he concluded that

the proposed OSC finding that Connor was the judgment debtor was a "knowing and intentional

concealment of a material fact."

The facts as found show that Kun intentionally sought to mislead the superior court when

he filed a document seeking the sale of Connor's property to satisfy a default judgment when

Connor was not the judgment debtor. Therefore, we find that the hearing judge's factual

findings support the charge in count four that Kun intentionally committed an act involving

moral turpitude, dishonesty, or corruption, in violation of section 6106.

Count five, charging Kun with seeking to mislead a judge under section 6068,

subdivision (d), is based on the same facts as found in count four. As discussed above, such a

violation necessarily involves moral turpitude, and thus also constitutes a willful and intentional

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violation of section 6106. (Bach v. State Bar, supra, 43 Cal.3d at p. 855; Grove v. State Bar,

supra, 63 CaI.2d at p. 315.)

Since the same misconduct underlies the violations of sections 6106 and 6068,

subdivision (d), we find culpability for count five, but, again, treat both counts as a single offense

involving moral turpitude (Bates v. State Bar, supra, 51 Cal.3d at p. 1060; In the Matter of

Jeffers, supra, 3 Cal. State Bar Ct. Rptr. at p. 221), and assign no additional weight. (In the

Matter of Katz, supra, 3 Cal. State Bar Ct. Rptr. at p. 435, fn. 4.)

C. Count Six: Section 6068, subd. (o)(3) (Failure to Report Judicial Sanctions) Count Seven: Section 6103 (Failure to Obey Court Order)

The hearing judge also found culpability for Kun's failure to report judicial sanctions, as

alleged in count six, and failure to comply with the sanctions order, as alleged in count seven.

The judge found that Kun and his client were sanctioned $3,000, jointly and severally, by a San

Mateo County superior court judge in the Stone matter on August 14, 2015. The sanction was to

be payable to Connor within 10 days of the notice of entry of the order, which was served by

mail on Kun and Stone on August 24, and filed on August 25, 2015. Neither Kun nor his client

paid the sanctions, nor did Kun report the sanctions to the State Bar. However, on September 1,

he appealed the sanctions order, but only on behalf of his client. In November 2015, Kun filed

for bankruptcy. Stone's appeal was denied by the Court of Appeal on February 15, 2017.

Kim argues four points regarding count six, all of which are unpersuasive. First, he

contends that the sanctions order was stayed by the appeal, and, thus, he was not required to

report it within 30 days of becoming aware of it. This argument is unsuccessful for two reasons.

As the hearing judge noted, the appeal was made on Kun's client's behalf only, and not for Kim

himself. Therefore, it had no effect on Kun's obligations under the order. (Kentfield v. KentfIeld

(1935) 4 Cal.2d 585, 587.) Further, under our case law, even if Kun had appealed on his own

behalf, he was still required to notify the State Bar of the sanctions. (In the Matter of

an

Respondent Y(Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 862, 866-867 [sanctions against

attorney must be reported even if appealed].) Second, Kun contends that the sanctions were to

be paid to a private party rather than the court, but cites no authority establishing that this fact

relieves him of the obligation to report the sanctions, nor can we find any supporting authority

for his contention. Third, his argument that he was not required to report the sanctions because

he filed bankruptcy is simply untenable factually as Kun filed for bankruptcy long after his duty

to report the sanctions arose. Finally, Kun argues that the superior court was required to notify

the State Bar of the sanctions under section 6086.7, subdivision (a), and under California Rules

of Court, rule 10.1017, which replaced his independent duty to notify the State Bar. His

interpretation of the relevant statutes and rule is wholly inaccurate and unsupported by case law.

(In the Matter of Riordan (Review Dept. 1994) 5 Cal. State Bar Ct. Rptr. 41, 47-48 [attorney has

independent duty to report judicial sanctions under § 6068, subd. (o)(3)}.) We therefore affirm

the judge's culpability findings on this count as supported by the facts.

As to count seven, the hearing judge found that Kun violated a court order by not paying

the $3,000 sanctions. Kun argues that his bankruptcy discharged his duty to pay the sanctions

and, thus, he cannot be disciplined for failing to comply with the order. Kun' s argument is based

on In re Scheer (9th Cir. 2016) 819 F.3d 1206)," which is inapplicable here for two reasons

discussed in count six: he appealed the sanctions order only on behalf of his client Stone, and his

11 In Scheer, the court found that the recommendation of suspension until Scheer made full restitution to her client was not a non-dischargeable government fee exception under Title 11 United States Code section 523, subdivision (a)(7). (Id. at pp. 1209-1211.) Since the restitution could be discharged via bankruptcy, the State Bar could not refuse Scheer' s reinstatement solely on the basis that she did not pay that debt. (Id. at p. 1212 [citing U.S.C. § 525(a)].)

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deadline to comply occurred well before he ever filed for bankruptcy. 12 We affirm the judge's

culpability findings on this count as supported by the facts.

III. KUN'S LEGAL DEFENSES TO ALL COUNTS HAVE NO MERIT

As Kun states in his appeal, the primary issue here is whether any disciplinary proceeding

against him, based on the hearing judge's factual findings, is time-barred by the statute of

limitations set forth in section 340.6, subdivision (a), of the Code of Civil Procedure. Kun also

argues two additional points: (1) his misconduct in an action involving an adverse party cannot

be the basis for discipline; and (2) the counts for which he was found culpable in this case should

have been charged in Kun 111,13 and the failure to do so violates his due process rights under the

Fifth and Fourteenth Amendments to the United States Constitution. None of these arguments is

successful, as we explain below.

A. The Limitations Period for Disciplinary Proceedings Is Governed by Rule 5.21

Kun argues that the limitations period in section 340.6, subdivision (a), of the Code of

Civil Procedure'4 governs State Bar Court disciplinary proceedings, and thus "mandates the

dismissal" of any charges for which he was found culpable by the hearing judge. This argument

is without merit. The statute's wording makes clear that its limitations period applies only to

civil litigation matters: "[a]n action against an attorney" in which there is a "plaintiff." As

OCTC correctly points out, disciplinary proceedings do not resolve actions, but are regulatory

matters intended to protect the public. The Supreme Court recognizes that State Bar Court

12 We note that the hearing judge found only that Kun filed for bankruptcy protection, not that he received an order of discharge from a bankruptcy court.

' In the Matter of Kun (Review Dept. 2017) Case No. 14-0-05418.

- 14 Section 340.6, subdivision (a), of the Code of Civil Procedure provides, in relevant

part, that "An action against an attorney for a wrongful act or omission.. . arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first."

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disciplinary proceedings are different from proceedings in other courts. (Emslie v. State Bar

(1974) 11 Cal.3d 210, 225-226 [State Bar disciplinary proceedings not governed by rules of

procedure that apply to civil or criminal litigation].)

Contrary to Kun's contention, rule 5.21 determines when a disciplinary proceeding is

time-barred.15 As all of his misconduct occurred on or after August 14, 2012, and the NDC was

filed on November 14, 2016, Kim's charges are not time-barred.

B. Discipline May Be Imposed for Misconduct Arising from Action Involving Adverse Parties

Kun contends that the State Bar's purpose in protecting the public precludes it from

disciplining attorneys for misconduct against adversaries. He bases this claim on his belief that

"The law says an attorney has no duty at all to an adverse party." Kun cites no authority for this

position, and he is mistaken. (See generally Wasmann v. Seidenberg (1988) 202 Cal.App.3d

752, 756 ["As officers of the court, attorneys enjoy both privileges and responsibilities, among

which is the duty to deal honestly and fairly with adverse parties and counsel"].)

Standard 1.1 states that, together with protecting the public, the purposes of discipline are

to protect "the courts and legal profession; . . . [maintain] the highest professional standards;

and... [preserve] public confidence in the legal profession." (In re Silverton (2005) 36 Cal.4th

81, 91.) The charges of moral turpitude by misrepresentation, seeking to mislead a judge, failure

to report judicial sanctions, and failure to obey a court order do not affect only Kun's adverse

party in the Stone matter. Dishonesty to the court and the legal system requires discipline to

protect the court's integrity, apprise those in the profession that such conduct will not be

tolerated, and foster trust and confidence in the legal profession. (See In re Morse (1995)

11 Ca1.4th 184,208-209.)

'5 Generally, rule 5.21 provides that a disciplinary proceeding must begin within five years from the date of the violation if based solely on a complainant's allegations of a violation of the State Bar Act or Rules of Professional Conduct.

C. Kun's Due Process Rights Were Not Violated by Bringing This Case Separate from Kun III

Kun claims that the Fifth and Fourteenth Amendments to the United States Constitution

prohibit OCTC from "[i]ndiscriminate charging," and specifically contends that these

constitutional rights were violated when some of the misconduct alleged in the November 14,

2016 NDC took place in 2012 and 2013 and the misconduct in his previous discipline, Kun III,

took place in 2014. Kun's argument falls short, considering his lack of citation to either case law

or specific constitutional language. We are unpersuaded since Kun fails to cite specific legal

authority as to how his due process rights were violated. (See Van Sloten v. State Bar (1989)

48 Cal.3d 921, 928 [Supreme Court has "long recognized the regulatory ability of the State Bar,

and found that the procedural safeguards provided by the Rules of Procedure of the State Bar are

adequate to ensure that administrative due process will be observed"].)

IV. AGGRAVATION AND MITIGATION

Standard 1.516 requires OCTC to establish aggravating circumstances by clear and

convincing evidence; 17 standard 1.6 requires Kun to meet the same burden to prove mitigation.

The hearing judge found five aggravating circumstances: prior discipline, multiple acts of

misconduct, significant harm, lack of insight and remorse, and lack of candor. He found no

mitigating circumstances.

On review, Kim seeks only less aggravation for his prior discipline. OCTC does not

dispute the hearing judge's aggravation findings. As discussed below, we affirm the findings of

the judge, except that we do not find a lack of candor.

16 Rules of Procedure of-the State Bar, title IV, Standards for Attorney Sanctions for Professional Misconduct. All further references to standards are to this source.

17 Clear and convincing evidence leaves no substantial doubt and is sufficiently strong to command the unhesitating assent of every reasonable mind. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 552.)

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A. Prior Discipline (Std. 1.5(a))

Standard 1.5(a) provides that a prior record of discipline may be an aggravating

circumstance. Kim has been disciplined on three prior occasions for his misconduct spanning

from 1997 to 2014. The hearing judge found his discipline record to be an "extremely serious

aggravating circumstance," and we agree.

In Kun 1,18 Kim stipulated to five violations: (1) failure to respond to his client's requests

for information, in violation of section 6068, subdivision (m); (2) willful failure to maintain his

client's confidentiality by disclosing personal information about his client to a member of the

client's family, in violation of section 6068, subdivision-(e); (3) conditioning a fee arbitration

settlement on dismissal of the client's State Bar complaint against him, in violation of

section 6090.5, subdivision (a)(2); (4) failure to return his client's file and medical photographs

after the client terminated his services, in violation of rule 3-700(D)(1) of the Rules of

Professional Conduct; and (5) failure to avoid prejudice to his client when he promised to file an

appeal, abandoned his client, and attempted to mislead him, in violation of rule 3-700(A)(2) of

the Rules of Professional Conduct. One aggravating circumstance (multiple acts of wrongdoing)

and one mitigating circumstance (no prior discipline) were established. The NDC in this matter

was filed on August 29, 2002, alleging misconduct that occurred between April 1997 and

February 2002. Kim stipulated to a private reproval, which was ordered on September 30, 2002.

In Kun H, 19 the Supreme Court entered an order (S 123260) on July 10, 2004, suspending

Kun for one year, stayed, and placing him on probation for one year, subject to conditions

including a 30-day actual suspension. Kim stipulated to culpability on four counts: (1) for failing

to perform legal services with competence by not filing pleadings in his client's case, in violation

of rule 3-110(A) of the Rules of Professional Conduct; (2) for failing to keep his client informed

IS In the Matter of Kun (2002) Case Nos. 01-0-04505 and 01-0-04646.

19 In the Matter of Kun (2003) Case No. 02-0-14481.

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of significant developments, in violation of section 6068, subdivision (m); (3) for acts involving

moral turpitude, dishonesty, or corruption, by misleading his client into believing that her appeal

was pending when it had been dismissed, in violation of section 6106; and (4) for failing to

provide any services of value and failing to refund unearned fees after he was terminated, in

violation of rule 3-700(D)(2) of the Rules of Professional Conduct. Aggravating circumstances

included a prior record of discipline, dishonesty, significant harm, and multiple acts of

misconduct. No mitigating circumstances were established. The NDC in this matter was filed

on September 5, 2003, and most of the misconduct underlying this case occurred between April

2001 and July 2002. Kun's client requested, and was paid, a refund of unearned fees in January

2003.

In Kun III, the Supreme Court filed an order (S242289) on August 9, 2017, suspending

Kun for three years, stayed, and placing him on probation with conditions inch ding a period of

actual suspension for a minimum of two years and until he made restitution to a former client

and provided proof of his rehabilitation, fitness, and present learning and ability in the general

law. Kun was found culpable of three violations: (1) failing to maintain funds in his client trust

account, in violation of rule 4-100(A) of the Rules of Professional Conduct; (2) misappropriation

of $459.99 in filing fees, in violation of section 6106; and (3) commingling, in violation of

rule 4-100(A) of the Rules of Professional Conduct. The misconduct in this matter began in

2014, and the NIDC was filed on October 2, 2015. Four aggravating circumstances were found:

prior record of discipline, multiple acts of misconduct, indifference, and failure to make

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restitution of misappropriated funds. Mitigating circumstances were limited to candor and

cooperation in providing pretrial factual stipulations. 20

We agree with the hearing judge regarding the serious nature of this prior record,

particularly the fact that both Kun II and Kun III involved moral turpitude. (In the Matter of

Sklar, supra, 2 Cal. State Bar Ct. Rptr. at p. 619 ["part of the rationale for considering prior

discipline as having an aggravating impact is that it is indicative of a recidivist attorney's

inability to conform his or her conduct to ethical norms [citation]"].) Notwithstanding the

diminished aggravating weight of Kun III, we assign substantial weight to this aggravating

circumstance.

Multiple Acts of Misconduct (Std. 1.5(b))

Kun's multiple (i.e., six) acts of misconduct are an aggravating factor. (See In the Matter

of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631, 646-647 [three wrongful acts

considered multiple acts].) We assign moderate weight to this aggravating circumstance.

Significant Harm (Std. 1.5(j))

Kun's misconduct significantly harmed Connor, a non-party to the Stone matter. Connor

had to hire an attorney to resist Kun's inappropriate efforts to collect the default judgment

against Jan-Pro International, Inc., from Connor through an attempt to sell his residence. (See In

the Matter of Casey (Review Dept. 2008) 5 Cal. State Bar Ct. Rptr. 117, 126 [significant harm to

client occurred when client had to hire another attorney, and incur additional attorney fees, in

20 As Kun argues in his opening brief, and as the hearing judge provided in his disciplinary discussion, the aggravating effect of Kun III as a prior record of discipline should be diminished because Kun's actions in Kun III began in 2014, which is after Kun committed his 2012 and 2013 misconduct in the present case. While we consider a prior discipline to be aggravating "[w]henever discipline is imposed" (Lewis v. State Bar (1973) 9 Cal.3d 704, 715), diminished weight is appropriate here because Kun did not have an opportunity to heed the import of misconduct in Kun III before he committed the misconduct in the present case. (In the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602, 619).

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attempt to fix legal problem created by first attorney's misconduct].) We assign substantial

weight to this aggravating circumstance.

Lack of Insight and Remorse (Std. 1.5(k)

Kun has demonstrated indifference toward rectification of, or atonement for, the

consequences of his misconduct. As the hearing judge noted, Kun "remains defiant and has no

insight regarding his unethical behavior." We also note with concern that this aggravating

circumstance was also found in Kun III, his most recent disciplinary case. "The law does not

require false penitence. [Citation.] But it does require that a respondent accept responsibility for

his acts and come to grips with his culpability. [Citation.]" (In the Matter of Katz (Review Dept.

1991) 1 Cal. State Bar Ct. Rptr. 502, 511.) We assign substantial weight to this aggravating

circumstance.

Lack of Candor (Std. 1.5(1))

Lack of candor and cooperation can be an aggravating factor. Although the hearing

judge stated that Kun made "numerous representations and assertions of fact to this court that

were demonstrably inaccurate," the judge failed to identify those representations and assertions.

The facts indicate Kun's attempts at misleading the superior court, but we can find no evidence

in the proceeding below that shows any effort by Kun to mislead the judge or the State Bar in its

investigation. Therefore, we find that this circumstance does not apply.

V. DISBARMENT IS WARRANTED

The purpose of attorney discipline is not punishment, but to protect the public, the courts,

and the legal profession; to preserve public confidence in the profession; and to maintain high

professional standards for attorneys. (Std. 1.1; In re Silverton, supra, 36 Cal.4th at p. 91.) Kun

contends that his misconduct warrants, at most, a public reproval, while OCTC requests that the

hearing judge's disbarment recommendation be upheld.

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In determining the appropriate level of discipline, we look first to the standards for

guidance. (Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090; In the Matter of Koehler (Review

Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615, 628.) We then consider the decisional law. (Snyder

v. State Bar (1990) 49 Cal. 3d 1302, 1310-1311; In the Matter of Taylor (Review Dept. 199 1)

1 Cal. State Bar Ct. Rptr. 563, 580.) As we noted more than two decades ago in In the Matter of

Bouyer (Review Dept. 199 1) 1 Cal. State Bar Ct. Rptr. 404, 419, even though the standards are

not to be applied in a talismanic fashion, they are to be followed unless a compelling reason

justifies not doing so. (Cf. In re Silverton, supra, 36 Cal.4th at p. 91; Aronin v. State Bar (1990)

52 Cal. 3d 276, 291.) Ultimately, in determining the appropriate level of discipline, each case

must be decided on its own facts after a balanced consideration of all relevant factors. (Connor

v. State Bar (1990) 50 Cal.3d 1047, 1059; Gary v. State Bar (1988) 44 Cal.3d 820, 828; In the

Matter of Oheb (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 920, 940.)

Standard 1.7(a) provides that the most severe sanction must be imposed when two or

more acts of misconduct are found in a single disciplinary proceeding and different sanctions are

specified for each act. The presumed sanction for five of Kun's six acts of misconduct is

disbarment or actual suspension under standard 2.12(a) (violations of section 6068,

subdivision (d) (seeking to mislead a judge), and section 6103(failure to obey court order))2' and

standard 2.11 (violation of section 6106 (moral turpitude—misrepresentation).22

21 Kun argues that standard 2.12(a) cannot apply to him because he discharged his debt to Connor in bankruptcy, and is not culpable of failure to pay the sanctions order. We reject his argument for the same reason discussed earlier—that his duty to comply with the sanctions order arose well before he filed for bankruptcy. Kun also argues that standard 2.12(a) does not apply because he was not found culpable of count five (§ 6068, subd. (d)). However, his argument overlooks the fact that he was found culpable of count three, which is the same section, but based on different facts.

22 The presumed sanction for Kun's fifth act of misconduct (violation of § 6068, subd. (o)(3)—failure to report judicial sanctions) is reproval.

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p Notwithstanding those presumed sanctions, standard 1.8(b)23 is most pertinent in

determining the appropriate discipline in this case.24 This standard applies to Kun's disciplinary

proceeding as he was previously disciplined with an actual suspension in Kun II and Kun 11125

The record here shows four aggravating factors and none in mitigation, which clearly fails to

establish the most compelling mitigation necessary to avoid a disbarment recommendation.

Despite its language, disbarment is not always mandated under standard 1.8(b), even

when no compelling mitigating circumstances predominate. (Conroy v. State Bar (1991)

53 Cal.3d 495, 506-507 (citing Arm v. State Bar (1990) 50 Cal.3d 763,778-779, 781).)

Additionally, we may depart from the standard where clear reasons to do so can be shown.

(Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.) The ultimate disposition of the charges

varies according to the proof. (In the Matter of Tady (Review Dept. 1992) 2 Cal. State Bar Ct.

Rptr. 121, 125.) Ultimately, we are guided by the Supreme Court, which has not applied the

standards in a rote fashion. Rather, we "examine the nature and chronology of respondent's

record of discipline. [Citation.] Merely declaring that an attorney has [two prior] impositions of

23 Standard 1.8(b) provides, in relevant part, that where "a member has two or more prior records of discipline, disbarment is appropriate. . . unless the most compelling mitigating circumstances clearly predominate, [where an a]ctual suspension was ordered in any one of the prior disciplinary matters."

24 We note that Kun did not raise any issue in this appeal regarding the hearing judge's application of standard 1.8(b). (Rule 5.157(C) [issue or contention not raised by party is waived].) Nonetheless, we may review an issue under our authority of independent review. (Std. 5.157(J)( 1) [summary review does not restrict authority to independently review full record of State Bar proceeding].) We choose to review the judge's standard 1.8(b) analysis as it is necessary to determine the proper discipline to recommend.

25 However, for discipline purposes, we treat Kun's current disciplinary proceeding and Kun III as one since they could have been brought as a single case. (In the Matter of Skiar, supra, 2 Cal. State Bar Ct. Rptr. at p. 619 [if misconduct underlying prior discipline occurred during same time period as misconduct in present proceeding, State Bar Court "consider[s] the totality of the findings in the two cases to determine what the discipline would have been had all the charged misconduct. . . been brought as one case"].) Thus, we consider the present proceeding as Kim's third discipline case.

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discipline, without more analysis, may not adequately justify disbarment in every case." (In the

Matter of A 1711cr (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 131, 136.)

We see no reason to depart from the standards. Over the years, Kun has engaged in a

plethora of ethical misconduct, including, but not limited to, multiple acts of very serious

misconduct that include disclosing client secrets, misappropriation of client funds, four counts of

moral turpitude, two counts of seeking to mislead a judge, and failing to obey a court order. We

find that his overall record of misconduct presents an unacceptably high risk that future

misconduct will recur. Therefore, we recommend that Kun be disbarred.

VI. RECOMMENDATIONS

We recommend that Albert Miklos Kun be disbarred from the practice of law and that his

name be stricken from the roll of attorneys admitted to practice in California.

We further recommend that Kun comply with rule 9.20 of the California Rules of Court

and perform the acts specified in subdivisions (a) and (c) of that rule, within 30 and 40 days,

respectively, after the effective date of the Supreme Court order in this matter.

We further recommend that costs be awarded to the State Bar in accordance with

section 6086. 10, such costs being enforceable as provided in section 6140.7 and as a money

judgment.

We further recommend that Kun be required to make payment to Fulton Connor of the

$3,000 sanctions award issued on August 14, 2015, by the Superior Court of San Mateo County

in case number CIV-477401, plus 10 percent interest per year from October 1, 2015.

VII. ORDER OF INVOLUNTARY INACTIVE ENROLLMENT

The order that Albert Miklos Kun be involuntarily enrolled as an inactive member of the

State Bar pursuant to Business and Professions Code section 6007, subdivision (c)(4), effective

-17-

September 29, 2017, will remain in effect pending consideration and decision of the Supreme

Court on this recommendation.

McGILL, J.

WE CONCUR:

PURCELL, P. J.

HONN, J.

-18-

CERTIFICATE OF SERVICE

[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]

I am a Court Specialist of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on September 21, 2018, I deposited a true copy of the following document(s):

OPINION AND ORDER ON SUMMARY REVIEW FILED SEPTEMBER 21, 2018

in a sealed envelope for collection and mailing on that date as follows:

by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:

ALBERT MIKLOS KUN 517 GREEN ST SAN FRANCISCO, CA 94133

by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

Kevin B. Taylor, Enforcement, San Francisco

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 21, 2018.

J4%4;Jf. )G4 ,4ulieta E. GonzØes 9

f/Court Specialis't (/ LI State Bar Court

Lf

FILED SEP26 2017,

STATE BAR COURT STATE BAR COURT OF CALIFORNIA CLERK'S OFFICE LOS ANGELES

HEARING DEPARTMENT - SAN FRANCISCO

In the Matter of ) Case Nos.: 15-0-14554, 16-O-12726-DFM )

ALBERT MIKLOS KUN, ) ) DECISION AND ORDER OF

A Member of the State Bar, No. 55820. INVOLUNTARY INACTIVE ENROLLMENT

INTRODUCTION

Respondent Albert Miklos Kun (Respondent) is charged here with willfully violating:

(1) section 6106 of the Business and Professions Code' (moral turpitude - misrepresentation)

[three counts]; (2) section 6068, subdivision (d) (seeking to mislead a judge) [two counts]; (3)

section 6068, subdivision (o)(3) (failure to report judicial sanctions); (4) section 6103 (failure to

obey court order); (5) rule 3-I 10A(A) of the Rules of Professional Conduct2 (failure to act with

competence); (6) rule 3-700(D)(2) (failure to refund unearned fees); and (7) rule 4-100(13)(3)

(failure to render accounts of client funds). In view of Respondent's misconduct and the

aggravating factors, the court recommends, inter a/ia, that Respondent be disbarred from the

practice of law.

Unless otherwise noted, all future references to section(s) will be to the Business and Professions Code. 2 Unless otherwise noted, all future references to rule(s) will be to the Rules of

Professional Conduct.

PERTINENT PROCEDURAL HISTORY

The Notice of Disciplinary Charges (NDC) was filed in this matter by the State Bar of

California on November 14, 2016, and was originally assigned to Judge Patrice McElroy of this

court. After Judge McElroy recused herself at the request of Respondent, the matter was

reassigned to the undersigned on November 29, 2016.

On December 7, 2016, Respondent filed a motion to dismiss counts 1-7 of the NDC. On

December 8, 2016, the State Bar filed an response to that motion, not opposing the dismissal of

Count I of the NDC but opposing the motion with regard to all of the remaining six counts

addressed in the motion. Thereafter, on December 12, 2016, Respondent filed a motion to

dismiss all of the remaining counts of the NDC. On December 15, 2016, the State Bar filed an

opposition to that motion.

On December 20, 2016, the initial status conference in the case was held. At that time

the parties informed the court that the underlying civil matter was on appeal and still pending,

resulting in the case being abated by the court until the appeal was decided.

On March 27, 2017, after the court was informed that the pending appeal had been

resolved, these cases were unabated and scheduled to commence trial on May 9, 2017, with a

two-day trial estimate. In the same order, the pending motions to dismiss were submitted for

decision.

On March 28, 2017, notwithstanding the pendency of his motions to dismiss, Respondent

filed an Answer to the NDC, responding to Counts 2 through 12 and denying all of the

allegations thereof and alleging eight affirmative defenses.

On March 30, 2017, this court issued an order dismissing Count 1 of the NDC but

denying the motion to dismiss the remaining counts.

_\ \ -2-

On April 10, 2017, Respondent filed a motion to amend his response to the NDC to

include an affirmative defense that portions of it were barred by the statute of limitations set

forth in Code of Civil Procedure section 340.6(a) and Lee v. Hanley (2015) 61 Cal. App. 4th

1225. Thereafter, on April 12, 2017, Respondent filed separate motions (1) to sever case No.

15-0-14554 from case No. 16-0-12726, based on claims that severance would be conducive "to

both expedition and economy;" and (2) to compel the State Bar to produce the felony conviction

record of Diane Restani, the complaining witness in case No. 16-0-12726.

On April 17, 2017, the State Bar filed a consolidated opposition to each of Respondent's

motions.

On April 20, 2017, this court issued an order allowing the requested amendment of

Respondent's response to the NDC but denying the remaining two motions.

On April 24, 2017, the State Bar filed a request for judicial notice of a number of

identified documents. At the commencement of trial, that requested judicial notice was taken.

On May 4, 2017, the State Bar filed a motion to amend the NDC by dismissing Count 11

without prejudice and striking subsection (C) of paragraph 9 in Count 8. No opposition to the

motion being filed by Respondent, the motion was granted by the court when the case was called

for trial on May 9, 2017.

Trial was commenced on May 9, 2017, but was not completed by the end of May 10,

2017. As a result, a final day of trial was scheduled and completed on June 29, 2017. The State

Bar was represented at trial by Senior Trial Counsel Manuel Jimenez. Respondent acted as

counsel for himself

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The following findings of fact are based on the documentary and testimonial evidence

admitted at trial.

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Jurisdiction

Respondent was admitted to the practice of law in California on June 28, 1973, and has

been a member of the State Bar at all relevant times.

Case No. 15-0-14554 (Stone Matter)

In April 2007, David Stone (Stone) entered into a franchisee contract with Connor-Nolan,

Inc., dba Jan-Pro of Silicon Valley, entitling Stone to do janitorial services under the trade name

Jan-Pro. Connor-Nolan was then owned, in whole or in part, by Fulton Connor, and it was a

"master franchisee" of Jan-Pro Franchising International, Inc. (JPFI), a Massachusetts

corporation with its principal place of business in Georgia. Under the agreement entered into by

Stone, janitorial work was to be channeled by Connor-Nolan to Stone's operation as one of the

sub- franchisees of Connor-Nolan. When Stone eventually received his fee for doing the work

channeled to it pursuant to this agreement, the funds would come in the form of a check issued

from a Connor-Nolan bank account.

After Stone operated his janitorial business as a Jan-Pro sub-franchisee for a number of

months, he became disillusioned with the arrangement, coming to the conclusion that Connor-

Nolan and Fulton Connor were channeling profitable work away from his business, rather than to

it. Stone then hired Respondent, who had been Stone's attorney for a number of years, to file

suit.

Respondent filed suit on behalf of Stone on October 14, 2008, in the San Mateo County

Superior Court. The complaint, however, did not name Connor-Nolan, Inc.; Jan-Pro of Silicon

Valley; JPFI; or Fulton Connor as a defendant. Instead, the only defendant named in the

complaint was "Jan-Pro International, Inc." The complaint included (1) a breach of contract

claim, in which it was alleged that Stone paid $19,000 to "defendant" in exchange for a

franchisee agreement and defendant's commitment to supply janitorial accounts to Stone; and (2)

a fraud claim, in which it was alleged that "Jan-Pro International, Inc." defrauded Stone by

representations that it would provide viable accounts generating monthly net income for Stone of

$7,000 to $8,000.

In this disciplinary proceeding, Respondent has asserted that Jan-Pro International, Inc.

was a California corporation at the time Stone contracted to act as a sub-franchisee. No evidence

has been presented in either the underlying Stone lawsuit or this proceeding that would justify

any such finding. To the contrary, counsel for JPFI provided letters to both Respondent and the

San Mateo court during the pendency of the Stone lawsuit, indicating that there was no corporate

entity with the name "Jan-Pro International, Inc." Consistent with that assertion is the fact that,

when Respondent did a search of the California Secretary of State's records to identify any agent

for service of process for Jan-Pro International, Inc., this search revealed only the name of

Sylvia Piceno, who was listed only as the agent for service of process of "Quality 1St Commercial

Cleaning LLC dba Jan-Pro."

On December 4, 2008, Respondent sought to serve Jan-Pro International, Inc. with

process in the Stone lawsuit by having a summons and complaint served personally on Fulton

Connor. Respondent then filed a proof of service of the complaint with the San Mateo Superior

Court in December 2008.

A Case Management Conference (CMC) was conducted in the Stone matter on February

20, 2009. Although Respondent did not file the required case management conference statement

before that scheduled conference, he appeared for the conference and informed the court that the

defendant had been served with process on December 4, 2008. The court then continued the

CMC to March 20, 2009; ordered Respondent to provide an updated CMC statement before that

date, including the "status of default proceedings;" and sanctioned Respondent $250 for his

failure to file the required CMC statement prior to the February 20, 2009 session.

-5-

On February 25, 2009, when Jan-Pro international, Inc. had still not filed an appearance

in the Stone lawsuit, Respondent went personally to the San Mateo court to seek to have its

default entered. According to a declaration he subsequently filed with the court, the "clerk

handling the matter told me she would have to hold the matter for 24 hours. Two days later, I

received a copy of the Request to Enter Default indicating the default was not entered because

'Proof of Service filed on 12/15/08 served a non-party." (Ex. 1, pp. 36-37; see also Ex. 1,

p. 131.)

The second CMC in the Stone matter was held on March 20, 2009. Respondent was in

attendance. Prior to that CMC, Respondent filed a declaration, dated March 4, 2009, in which he

reported: "On or about February 10, 2009, I contacted the office of the Secretary of State and

obtained the name of the agent for Service of Process of Jan-Pro International, Inc. [] Agent for

Service of Process is Sylvia Piceno, residing at 2157 Corte Anacapa, Chula Vista, CA 91914.

(See Exhibit 'A')." (Ex. 1, pp. 36-38.) This representation by Respondent to the court, under

penalty of perjury, was not accurate. As previously noted, Ms. Piceno was not listed in the

documents of the Secretary of State's office as the designated agent for service of process for

Jan-Pro International, Inc. Instead, as made clear in "Exhibit A" attached to Respondent's

declaration, Ms. Piceno was the designated agent for service of process for only "Quality 1st

Commercial Cleaning LLC dba Jan-Pro." In his March 2009 declaration, Respondent requested

that the court continue the Stone matter for an additional 30 days because he was having

difficulty locating Ms. Piceno to serve Jan-Pro International, Inc.

According to the minute order issued by the court after the March 20, 2009 conference,

"Mr. Kun advised the Court he has been unable to locate the agent for service of process for this

defendant." The court further recorded in its minute order, "The Court notes that proof of

Eel

service as to Fulton Connor is incomplete, as Mr. Connor is not a party to this action." (Ex. 1,

p. 134.)

In June 2009, and again in July 2009, Respondent sought and obtained permission to

serve Jan-Pro International, Inc. by publication. Respondent then made arrangements for notice

of the pending action, directed to "Jan-Pro International, Inc.," to be published in the local San

Mateo County Times newspaper. This notice was not addressed to Fulton Connor,

notwithstanding a subsequent representation by Respondent that it had been.

On or about October 22, 2009, Respondent filed a new request for entry of the default of

Jan-Pro International, Inc. This request indicated that a copy of the request had been mailed to:

Fulton Connor Janpro International Inc. 92 North Bascom Ave. San Jose, CA 95128

On October 22, 2009, the court filed a copy of this request, with the notation that the

requested default had been denied because "The defendant has not been served." (Ex. 1, pp.

306-308.

In conjunction with a CMC conducted on November 6, 2009, Respondent informed the

court that he had completed service by publication on defendant Jan-Pro International, Inc., and

that he intended to proceed by way of default. (Ex. 1, pp. 2, 142.) On the same day, Respondent

successfully secured the entry of Jan-Pro International, Inc.'s default.

Respondent then scheduled a prove-up hearing, which was conducted on December 1,

2009. As a result of that hearing, a judgment for $45,000, plus costs, was entered by the court.

On January 14, 2010, after costs were added, a judgment against Jan-Pro International, Inc., in

the amount of $45,891.00 was filed by the San Mateo County Superior Court. (Ex. 1, pp. 146-

147.)

-7-

On February 16, 2012, Kathryn Shipe, a representative of JPFI, wrote a letter to

Respondent, indicating (1) that it was "Jan-Pro Franchising International, Inc." [underlining in

original], not Jan-Pro International, Inc., that authorizes independent businesses to operate under

the Jan-Pro marks and system under master franchisee agreements; (2) that JPFI does not have

operations in California, although it has several master licensees in California who have

authority to contract with sub licensees; (3) that JPFI had never been served with process in the

Stone matter and, in any event, would not have any potential liability to Stone; and (4) that it

"appears likely that Mr. Stone is intending to make a claim against a Jan-Pro master franchisee

that operates under the Jan Pro brand in California." During the course of her letter, Ms. Shipe

indicated that she was unaware of any company named Jan-Pro International, Inc., and she

invited Respondent to telephone her.

A judgment against a non-existent entity is just a piece of paper unless it can be

appropriately enforced against some other entity or individual having assets. More than two

years after Respondent had secured the default judgment against "Jan-Pro International, Inc.,"

but had not obtained any money for his client as a result of it, Respondent sought to enforce that

judgment against Fulton Connor, despite the many prior instances when the court had indicated

to him that it did not regard Connor and Jan-Pro International, Inc. to be synonymous.

On August 15, 2012, Respondent filed an Application and Order with the San Mateo

County Superior Court in the Stone matter, asking that Fulton Connor be ordered to appear for

examination. In this application, signed by Respondent on August 14, 2012, Respondent

represented that Fulton Connor was being requested to appear for examination because he was

the "Judgment Debtor" in the Stone matter." This application resulted in an order being issued

by the court on the August 15, 2012, requiring Connor to appear for examination as the judgment

debtor in the Stone matter on September 17, 2012. This order, requested by Respondent,

subsequently issued by the court, and addressed to Connor, reads, "You are ordered to appear

personally before this court, or before a referee appointed by the court, to furnish information to

aid in enforcement of a money judgment against you." (Underlining added for emphasis.)

Attached to the order was a warning that Connor's failure to appear at the time and place

specified in the order could subject him to arrest, punishment for contempt, and being required to

pay reasonable attorney's fees to the judgment creditor (Stone). (Ex. 1, pp. 291-292.)

There was no direct evidence received by this court as to whether Connor was ever

personally served with the Order to Appear for Examination. However, Respondent testified that

when Connor failed to appear at the time specified in the order, the matter was taken off

calendar.

On June 7, 2013, Kathryn Rookes, Vice President and General Counsel of JPFI, sent the

following letter to the Clerk of the San Mateo County Superior Court, with a copy also going to

Respondent, complaining that Respondent and Stone were "erroneously pursuing execution of a

judgment against us or against one of our master franchisees:" This letter set forth, in pertinent

part, the following:

The plaintiff previously obtained a default judgment against a non-existent defendant. The named defendant, Jan-Pro International, Inc. is a non-existent entity. Notwithstanding, Mr. Stone proceeded to serve Fulton Connor, a California resident, with the summons in this suit. The Court then acknowledged that service on Mr. Connor was incomplete, as neither Mr. Connor nor his company, Connor-Nolan, Inc. were named defendants in this action.

Mr. Stone then proceeded to make service of process against Jan-Pro International, Inc., the non-existent entity, by publication, which the court later accepted. The Court later entered a default judgment against Jan-Pro International, Inc.

We became aware of this matter in February 2012, when we were notified of a problem by Fulton Connor, whose company, Connor-Nolan, is one of our master franchisees. In response, we attempted to contact the plaintiffs attorney, Albert M. Kun by telephone to correct any misconception that proper service had ever been made on us, or on any of our independent master franchisees. After several messages were not returned, we wrote a letter to Mr. Kun, advising him of the problems and letting him know that he needed to

0

correct his mistakes. A copy of this letter is attached. Subsequent follow-up calls to Mr. Kun also were not returned.

Notwithstanding the fact that Mr. Kun was notified of the improper service and the improper party, Mr. Stone has continued to pursue collection of his default judgment against Mr. Connor's business and/or against the non-existent Jan-Pro International, Inc. Please note that Jan-Pro Franchising International, Inc. [underlining in originafl has never had any relationship or contact with Mr. Stone, and is not the proper party to any claim that Mr. Stone may feel that he has. We are nonetheless concerned that Mr. Stone may attempt to execute his erroneous judgment against our company. Mr. Stone may have had some relationship with one of our independent California master franchisees, however, we are not certain of which one, as Mr. Kun has never returned any of our calls.

Given that valid service in this matter was never made, please let me know what steps I need to take to prevent this erroneous judgment from being executed against our assets or the assets of any of our California master franchisees.

(Ex. 1, pp. 152-153.)

On July 16, 2013, just slightly more than one month of Respondent's receipt of the above

letter - and clearly undeterred by it - Respondent filed an ex parte application with the San Mateo

County Superior Court, seeking to enforce the default judgment against property owned by

Connor. In this application, Respondent stated that Stone had obtained a $45,891.00 judgment

against the "Judgment Debtor" and asked for an order to be able to sell all of the "Judgment

Debtor's right, title, and interest in the real property commonly known as 1551 Winchester

Boulevard, Los Gatos, California[.]" The application then went on to report that the property

was held in the name of "Fulton, Connor and Cynthia L. Fae-Nolan." The ex parte application

further requested that the court order "the Judgment Debtor" to show cause why an order for sale

of the dwelling should not be made in accordance with this application." The Order to Show

Cause, prepared by Respondent and presented to the court for execution pursuant to the ex parte

application, was specifically addressed to Fulton Connor and required him to show cause why

his property in Los Gatos should not be listed for sale. While the application itself never

expressly stated that Fulton Connor was the "Judgment Debtor," at no point in the application

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did it disclose that he was not - and every implication in the application and the attached order

was that he was.

This requested order, putting the burden on Connor to show cause why his home should

not be sold to pay the default judgment against Jan-Pro International, Inc., was signed by a judge

of the San Mateo court and filed on July 16, 2013, making clear that the court had been misled

into believing that Connor was the judgment debtor against whom the application for an OSC

was sought. Connor, who had previously hired counsel to deal with Stone's efforts to collect the

judgment against him, retained attorney Elise Vasquez to oppose this effort.

On August 23, 2013, the San Mateo court denied Respondent's application for the sale of

Connor's property in Los Gatos. In reaching that decision, the court first noted that the property

was located in Santa Clara County, not in San Mateo County. Hence, Respondent had filed the

application in the wrong county. In addition, the court, in its minute order, concluded: "In

addition, judgment creditor has not established that the subject property or any property

belonging to Fulton Connor is subject to levy. The default judgment is against Jan-Pro

International only." (Ex. 1, p. 149.)

On February 18, 2015, Respondent, on behalf of Stone, filed a motion to amend the

default judgment to name Fulton Connor as a party for the purpose of enforcing the judgment

against him. Connor again retained Elise Vasquez to oppose this effort. In the opposition papers

she subsequently filed on March 16, 2015, she not only opposed the motion but also asked that

sanctions be awarded pursuant to Code of Civil Procedure section 128.5. (Ex. 2, pp. 87-88.)

That section authorizes the court to "order a party, the party's attorney, or both to pay reasonable

attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are

In his opening statement in this proceeding, Respondent told this court that Connor's request for sanctions was procedurally defective because it was not made in the original opposition to the motion to amend, but instead was only made in Connor's "reply." That statement by Respondent was also factually inaccurate. (See Ex. 2, pp. 87-88.)

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frivolous or solely intended to cause unnecessary delay." "Frivolous" is defined in the statute as

meaning "totally and completely without merit or for the sole purpose of harassing an opposing

party."

In response to Connor's opposition to the motion to amend, Respondent filed a reply on

March 20, 2015. Attached to this reply was a declaration, executed by Respondent under penalty

of perjury, in which he stated, inter alia: "After filing the Complaint, I instructed my process

server to serve Fulton Connor at his business address. Fulton Connor evaded the process server

several times, and was subsequently served by publication." (Ex. 1, pp. 161-162.) That

statement is factually unjustified. As previously noted, the court-ordered service by publication

was directed only at Jan-Pro International, Inc. and was not directed at Connor. In addition,

during his testimony at trial, Respondent was unable to point to any evidence that Connor had

ever attempted to evade service.4

The hearing of the motion to amend was scheduled to be held on March 30, 2015. On

March 27, 2015, the court issued its tentative decision in the matter, denying both the motion to

amend and Connor's request for sanctions. Pursuant to the San Mateo court's tentative ruling

procedures, no scheduled hearing will go forward on a matter in which an advance tentative

decision has been rendered unless one of the parties gives timely notice to both the court and

opposing counsel of the continuing desire to have the hearing. Neither Respondent nor Vasquez

gave any such notice after receiving the San Mateo court's tentative decision on March 27, 2015.

Notwithstanding the court's procedural requirements, Respondent nonetheless appeared in the

San Mateo court on March 30, 2015, to argue the court's tentative decision. When the court

noted that the court had not received advance notice of Respondent's intent to argue the matter

Respondent's reaction during trial, when confronted about these unfounded statements, was to state that they were "no big deal."

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and that no opposing attorney was present, Respondent acknowledged that he had not provided

the required notice to either the court or attorney Vasquez of his intent to go forward with the

hearing. The court then continued the hearing to May 2015.

On April 9, 2015, Vasquez, after learning that the resolution of the motion had been

continued to May because of Respondent's actions, filed a Motion Requesting the Tentative

Ruling on Plaintiff's Motion to Amend Judgment Become the Order of this Court and for

Sanctions Pursuant to Code Civil Procedure Section 128.5.

On May 27, 2015, the hearing was held on the motion to amend the judgment. At the

conclusion of that hearing, the court adopted its tentative decision, in which it found:

None of the statements in Mr. Stone's declaration [in support of his motion to amend] show that Fulton Connor is the alter ego of (or was even involved with) Jan-Pro International, Inc. At most, Mr. Stone has shown that Connor was somehow involved with an entity Stone refers to as "Jan-Pro" and that Connor was most likely involved with an entity called "Connor-Nolan, Inc. dba Jan-Pro of Silicon Valley". Mr. Stone has not shown that either the "Jan-Pro" or "Connor-Nolan, Inc. dba Jan-Pro of Silicon Valley" entities are the same as Jan-Pro International, Inc., the entity against whom he has a judgment.

The only modification the court made to its prior tentative ruling after the May 27, 2015,

hearing was to grant Connor's request for sanctions and to order $3,000 to be paid to Connor. A

formal order, including the award of sanctions, was signed by the court on August 12, 2015, and

was issued by the San Mateo County Superior Court on August 14, 2015. This written order

specifically stated that Respondent and his client, David Stone, were jointly and severally

required to pay $3,000 of sanctions to Fulton Connor within ten (10) days after Notice of Entry

of the order. That Notice of Entry of the order was served by mail on Respondent and his client

on August 24, 2015, and was filed on August 25, 2015. (Ex. 2, pp. 107-110.) Neither

Respondent nor his client paid the sanction order by the deadline imposed by the court.

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On September 1, 2015, Respondent filed a notice of appeal of the sanction order. That

appeal, however, was filed only on behalf of David Stone and not on behalf of Respondent. On

February 15, 2017, the California Court of Appeal rendered its decision, denying Stone's appeal

of the denial of his motion to amend the judgment and of the $3,000 sanctions order.5

Count 2 - Section 6106 [Moral Turpitude - Misrepresentation] Count 3 - Section 6068, subd. (d) [Seeking to Mislead Judge]

Section 6106 prohibits an attorney from engaging in conduct involving moral turpitude,

dishonesty or corruption. In Count 2, the State Bar alleges:

On or about August 15, 2012, respondent flied with the Superior Court for the County of San Mateo, an Application and Order for Appearance and Examination form in the matter of Stone v. Jan-Pro, case no. IV-4 77401, in which respondent requested the court issue an order requiring Fulton Connor to appear before the court and furnish information to aid in the enforcement of a money judgment against Connor, when respondent knew that there was no judgment against Fulton Connor, and thereby committed an act involving moral turpitude, dishonesty or corruption in willful violation of Business and Professions Code, section 6106.

Section 6068, subdivision (d), makes it a duty of an attorney never to seek to mislead a

judge by an artifice or false statement of fact or law. In Count 3, the State Bar alleges:

On or about August 15, 2012, respondent flied with the Superior Court for the County of San Mateo, an Application and Order for Appearance and Examination form in the matter of Stone v. Jan-Pro, case no. CIV-477401, in which respondent requested the court issue an order requiring Fulton Connor to appear before the court and furnish information to aid in the enforcement of a money judgment against Connor, when respondent knew that there was no judgment against Fulton Connor, and thereby sought to mislead the judge or judicial officer by an artifice or false statement of fact or law, in willful violation of Business and Professions Code section 6068(d).

As is made clear by their identical factual allegations, italicized above, Counts 2 and 3

are duplicative of one another. If this court finds culpability for either, the other is either

Stone, who was called by Respondent as a witness at trial on May 9, 2017, testified that he was still waiting for the court of appeal to render a decision, apparently unaware that it had already done so months before.

-14-

dismissed as duplicative or not given any weight in determining the appropriate discipline. (See,

e.g., In the Matter ofMaloney and Virsik (Review Dept. 2005) 4 Cal. State Bar Ct. Rptr. 774,

786-787 [dismissing section 6068, subd. (d), count on finding of violation of section 6106]; In

the Matter of Chesnut (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 166, 175 [not giving

section 6106 violation any weight after finding of violation of section 6068, subd. (d)].)

Turning to the merits of Count 3, the evidence is clear and convincing that Respondent,

on August 15, 2012, filed an Application and Order with the San Mateo County Superior Court

in the Stone matter, asking that Fulton Connor be ordered to appear for examination. In this

application, signed by Respondent on August 14, 2012, Respondent affirmatively misrepresented

and misled the court into believing that Fulton Connor was being requested to appear for

examination because he was the "Judgment Debtor." This application resulted in an order being

issued by the court on the August 15, 2012, requiring Connor to appear on September 17, 2012,

for examination as the judgment debtor in the Stone matter.

Respondent was aware at the time that he prepared and signed this application that

Connor was not the judgment debtor in the Stone matter. This court finds that Respondent's

conduct in knowingly misrepresenting to the court that Connor was the judgment debtor in the

Stone matter was a willful violation by him of the prohibition of section 6068, subdivision (d).

During the trial of this disciplinary matter, Respondent repeatedly denied that he had ever

listed Connor as the judgment debtor in the application (despite the clear language in the

application to the contrary);6 sought to justify the application by testifying that Connor was the

"possible president or someone who would know about the business;" described the situation as

a "dime a dozen routine matter;"and complained that the State Bar was making "a big issue out

6 See Caption, Ex. 1, p. 291; see also Respondent's Ex. 1002. -15-

of nothing." None of these efforts by Respondent at trial either provided a defense against his

being held culpable of misconduct or are a mitigating factor.

Because this court finds that Respondent's conduct violated section 6068, subdivision

(d), it declines to give any weight in determining discipline to the duplicative Count 2, which

alleges that the same conduct also violated section 6106.

Count 4 - Section 6106 [Moral Turpitude - Misrepresentation] Count 5 - Section 6068, subd. (d) [Seeking to Mislead Judge]

In Count 4, the State Bar alleges:

On or about July 16, 2013, respondent filed with the Superior Court for the County of San Mateo, an Ex Parte Application for Order for Sale of Dwelling, in the matter of Stone v. Jan-Pro, case no. CIV-4 77401, in which respondent requested the court to issue an order to show cause requiring Fulton Connor, as ajudgnient debtor, to appear before the court and show cause why Connor 's residence should not be sold to satisj5' a judgment, when respondent knew that there was no judgment against Fulton Connor, and thereby committed an act involving moral turpitude, dishonesty or corruption in willful violation of Business and Professions Code, section 6106.

In Count 5, the State Bar alleges:

On or about July 16, 2013, respondent filed with the Superior Court for the County of San Mateo, an Ex Parte Application for Order for Sale of Dwelling, in the matter of Stone v. Jan-Pro, case no. CIV-4 77401, in which respondent requested the court to issue an order to show cause requiring Fulton Connor, as a judgment debtor, to appear before the court and show cause why Connor 's residence should not be sold to satisfy a judgment, when respondent knew that there was no judgment against Fulton Connor, and thereby sought to mislead the judge or judicial officer by an artifice or false statement of fact or law, in willful violation of Business and Professions Code, section 6068(d).

As again shown by the italicized factual allegations, Counts 4 and 5 are duplicative of

one another.

Turning to the merits of Count 4 and 5 and as previously noted, Respondent filed an ex

parte application with the San Mateo County Superior Court on July 16, 2013, indicating that

Stone had obtained a $45,891.00 judgment against the "Judgment Debtor" and asking for an

-16-

order to be able to sell all of "Judgment Debtor's right, title, and interest in the real property

commonly known as 1551 Winchester Boulevard, Los Gatos, California[.]" This property

belonged to Connor. The ex parte application further requested that the court order "Judgment

Debtor" to show cause why an order for sale of the dwelling should not be made in accordance

with this application." The Order to Show Cause, prepared by Respondent and presented to the

court for execution pursuant to the ex parte application asking for an OSC directed at the

Judgment Debtor, was specifically addressed to Fulton Connor and required him to show cause

why his property in Los Gatos should not be listed for sale to satisfy the default judgment in the

Stone matter.

While the application itself never expressly stated that Fulton Connor was the "Judgment

Debtor," at no point in the application did it disclose that he was not. That the property

identified in the application was said to be owned by Connor and the proposed OSC was

specifically directed at him certainly improperly implied that the judgment was against him.

This order was then executed and filed by the San Mateo court on July 16, 2013, making clear

that the court had been successfully misled into believing that Connor was the judgment debtor

against whom the application for an OSC was sought and issued.

The evidence is also clear and convincing that Respondent was well-aware that the

default judgment he had previously secured was only against Jan-Pro International, Inc. and was

not against Fulton Connor. His failure to disclose that fact in the context of an application

implying, and proposed OSC finding, that Connor was the judgment debtor was a knowing and

intentional concealment by him of a material fact and an act of moral turpitude, in willful

violation of section 6106. (In the Matter of Chesnut, supra, 4 Cal. State Bar Ct. Rptr. 166, 174-

175; In the Matter of Harney (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 266, 280-281

-17-

["concealment of material facts is just as misleading as explicit false statements and constituted

misconduct warranting discipline"].)

Respondent seeks to avoid culpability for his disingenuous action by arguing that no

harm resulted from the misleading application because it was eventually determined to have been

filed in the wrong county. This court declines to adopt his theory that two wrongs here make a

right.

Respondent also argues that the court was not mislead by the application. That argument

lacks both factual and legal merit. The judge who executed the requested order to show cause,

directed only at Fulton Connor, was clearly misled into believing that Connor was the "Judgment

Debtor" against whom the ex parte application was directed. Further, the law is well-settled that

a violation of section 6106 and/or section 6068, subdivision (d), does not require proof that the

court was actually mislead. (See, e.g., In the Matter of Chesnut, supra, 4 Cal. State Bar Ct. Rptr.

at p. 174, and cases cited therein.)

Because this court finds that Respondent's conduct violated section 6106, it declines to

give any weight in determining discipline to the duplicative Count 5, which alleges that the same

conduct also violated section 6068, subdivision (d).

Count 6 - Section 6068, subd. (o)(3) [Failure to Report Judicial Sanctionsi

In this count, the State Bar alleges that Respondent failed to report to the State Bar that he

had been sanctioned $3,000 by the San Mateo Superior Court on August 14, 2015, in violation of

section 6068, subdivision (o)(3).

Section 6068, subdivision (o)(3), requires an attorney to report to the State Bar any

imposition of judicial sanctions against the attorney, except for sanctions for failure to make

discovery or monetary sanctions of less than one thousand dollars ($1,000). That report must be

in writing and must be made within 30 days of the time the attorney has knowledge of the

sanctions. The sanctions order must be reported even though it is or will be appealed. (In the

Matter of Respondent Y(Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 862, 866-867.) The

willful violation of this duty does not require a bad purpose or an evil intent. (Id.)

Respondent makes no contention that he reported the San Mateo County Superior Court's

sanction order to the State Bar within'the 30-day period set forth in section 6068, subdivision

(o)(3). Instead, in a brief he filed with this court on June 23, 2017, just prior to the last day of

trial, he argues that only the courts have a duty to report such sanctions to the State Bar, not the

disciplined attorney. Hence, he contends that he never had any duty to report the sanctions to the

State Bar. In support of that contention he cites statutes requiring the courts to notify the State

Bar of such sanction orders and various cases in which it was reported that the courts had

ordered staff to provide such notifications.

Respondent's contention is completely specious. It is well-settled that the fact that the

court's also have an obligation to notify the State Bar of sanctions imposed on an errant attorney

does not eliminate the disciplined attorney's independent duty to also provide notice of the

sanction order to the State Bar. Nor does it excuse the attorney's failure to provide that

notification. (See In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41,

47-48; In the Matter of Blum (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 170, 176.)

Accordingly, this court finds that Respondent's failure to timely report the San Mateo County

Superior Court's sanction order, filed on August 14, 2015, and obviously known by him prior to

his filing of a notice of appeal on September 1, 2015, was a willful violation by him of section

6068, subdivision (o)(3).

Count 7 - Section 6103 [Failure to Obey Court Order]

Section 6103 provides, in pertinent part: "A willful disobedience or violation of an order

of the court requiring him to do or forbear an act connected with or in the course of his

-19-

profession, which he ought in good faith to do or forbear, ... constitute causes for disbarment or

suspension."

In this count, the State Bar alleges that Respondent violated section 6103 by failing to

pay the $3,000 sanction order issued by the San Mateo County Superior Court on August 14,

2015, by the deadline set forth in that order.

The sanction order stated that Respondent and his client, David Stone, were jointly and

severally required to pay $3,000 to Fulton Connor within ten (10) days after Notice of Entry of

the order. That order was signed by Judge Lee on August 12, 2015, and filed on August 14,

2015. The Notice of Entry of the order was executed and filed on August 25, 2015. The

attached proof of service indicated that the notice was served by mail on Respondent and his

client on August 24, 2015. (Ex. 2, pp. 107-110.) Neither Respondent nor his client paid the

sanction order by the deadline imposed by the court.

Respondent seeks to explain his non-compliance with the court's order by reliance on the

fact that on September 1, 2015, Respondent filed a notice of appeal of the sanction order. That

notice of appeal, however, was filed only on behalf of David Stone and not on behalf of

Respondent. It is well-settled that where a judgment or order is severable, as is explicitly the

case here, an appeal by one party subject to the order does not stay the effectiveness of the

appealed matter as to a non-appealing party also subject to the order. (See, e.g., Kentfield v.

KentjIeld (1935) 4 Cal.2d 585, 587; see generally California Practice Guide, Civil Appeals and

Writs, § 7.46, pp. 7-19.) In addition, there is no evidence that any undertaking was provided to

stay the enforceability of the court's order requiring the payment of money as sanctions. As set

forth in section 917.1 of the Code of Civil Procedure, "Unless an undertaking is given, the

perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the

judgment or order is for any of the following: (1) Money or the payment of money, whether

-20-

consisting of a special fund or not, and whether payable by the appellant or another party to the

action." (See also Banks v. Manos (1991) 232 Cal.App.3d 123, 127.)

While Respondent's bankruptcy, filed in November 2015, may have operated to stay the

enforcement of the order at that time, that stay was not retroactive and does not negate the fact

that Respondent had long before violated the payment deadline in the court's order, in willful

violation of section 6103.

Case No. 16-0-12726 (Restani Matter)

In 1990, Diane Restani became an employee of United Airlines. For 17 years she worked

for the company, during which time she was never disciplined. As part of her job, she was

required to purchase and wear specialized shoes, for which she was reimbursed by her employer.

In November 2016, Restani submitted receipts for having purchased two pairs of safety

shoes from Sears, each pair valued at $92. When her reimbursement request was reviewed for

payment, it was noticed that the receipts indicated that the shoes had actually been returned for a

refund. United Airlines then initiated disciplinary charges against Restani, seeking to have her

fired for "attempted fraud."

Restani was a member of the International Association of Machinists and Aerospace

Workers and her employment relationship was the subject of a collective bargaining agreement.

This agreement provided that defrauding or attempting to defraud the Company "will result in

discharge unless mitigating factors are considered applicable."

Grievance procedures were initiated by Restani and her union as a result of United

Airlines' decision tb terminate Restani for attempted fraud. Restani was represented throughout

these proceedings by union representatives. The grievance process itself was governed by the

terms of the collective bargaining agreement and ultimately by the Railway Labor Act (RLA).

(45U.S.C.S. § 151 etseq.)

-21-

Pursuant to the collective bargaining agreement, there were a number of procedural steps

available to Restani to challenge the United decision. These steps started with what was defined

as a "prompt, fair and impartial investigative review hearing," which generated a written decision

by a member of the employer's management, either upholding or overturning the proposed

discipline; included an intermediate "Third Step Hearing," which also generates a written

decision; and ends with a possible appeal to the "System Board." The System Board is made up

of three members: a company member, a union member, and a neutral member "selected in a

manner agreeable to the Company and Union." This neutral member is the designated Chairman

of the Board and in cases involving the discharge of an employee is the sole member of the board

deciding, the case. According to the contract, the System Board's decision will be "final and

binding" on all involved parties, including the employee.

Restani went through each of these steps in seeking to grieve her discharge. At each of

the first two procedural steps, the rendered decision upheld her discharge. When the matter was

appealed by Restani and her union to the System Board the individual selected as the neutral

chairman was Thomas Gibbons. A hearing was then held on November 18, 2008, during which

both sides were allowed to present and cross-examine witnesses, including Restani, and to

present documentary evidence. On December 16, 2008, Chairman Gibbons issued a lengthy

decision rejecting the union's challenges to the conduct of the underlying investigation and

upholding the discharge decision.

Restani's union then encouraged her to hire an outside attorney to challenge the

disciplinary action and arbitration decision in federal court and directed her to Respondent, who

was on the union's panel of approved attorneys.

Respondent was hired by Restani on June 2, 2009, "to provide legal services in

connection with judicial review of the arbitration between [Restani] and United Airlines."

-22-

Restani paid a fixed fee of $5,000 to Respondent to seek judicial review of the adverse

arbitration result.

Judicial review of the outcome of arbitrations conducted pursuant to collective bargaining

agreements is very limited. In the case of arbitrations subject to the Railway Labor Act, the

grounds set forth in the statute for setting aside an arbitration are especially narrow, being limited

to cases of fraud or corruption by one of the members of the arbitration board or when the

arbitration board has violated the statute or exceeded its contractual or statutory authority.

Respondent was aware of the narrow RLA statutory grounds for challenging an

arbitration award but promised Restani that he would give the matter his best effort. He viewed

her discharge as unjustified and unfair; believed that a sympathetic federal court might well have

the same reaction; and understood that he needed to fashion a rationale that the court could seize

on to seek to do justice in the situation. He then filed an action on behalf of Restani in the

United States District Court for the Northern District of California on July 28, 2009, seeking to

reverse that arbitration decision. In his attack on the arbitration decision, he attempted to have

the federal courts extend the Ninth Circuit's decision in Comedy Club, Inc. v. Improv West

Associated 553 Fed.3d 1277 (9th Cir. 2009) to arbitrations subject to the RLA. In the Comedy

Club decision, the federal appellate court had concluded that an arbitration award could be set

aside on the ground of "manifest disregard of the law." (Ex. 15, p. 5.) Respondent argued that

the Restani discharge and arbitration decisions had manifested disregard of the law because they

had arguably not followed civil tort law definitions of "fraud," which required a "material"

misrepresentation. Given the relatively small amount of the value of the shoes, Respondent

argued that Restani's actions resulting in her discipline failed to meet this standard.

In addition, Respondent found cases in other parts of the country which he interpreted as

adopting as a defense the ancient legal maxim, "De minimis non curat lex" [Black's Dictionary:

-23-

"The law does not concern itself with trifles."] By arguing that a federal court in Illinois had

even concluded that this doctrine "was applicable even to constitutional issues," Respondent

again sought to provide a legal rationale to the federal courts to enable them to expand their

power to reject adverse employment decisions in RLA matters that appeared to be petty.

When Respondent's action on behalf of Restani was filed in the district court, it was

assigned to a particular federal judge well known to Respondent and viewed by him as not likely

to be receptive to Respondent's theories. As a result, he concluded that his best chance at success

would be on appeal with the Ninth Circuit.

Soon after the federal action was filed, attorneys for United Airlines filed a motion for

summary judgment, arguing that the attacks on the arbitration decision fell outside of the

statutory grounds of the RLA for judicial attack on the decision. On or about October 19, 2009,

the assigned federal district court judge granted summary judgment against Restani and

dismissed her action. Respondent then filed an appeal in November 2009 of that decision with

the United States Court of Appeals for the Ninth Circuit, and subsequently prepared and filed an

opening brief on January 11, 2010. In July 2011, a three-judge panel of the Ninth Circuit issued

a "Memorandum" decision, without oral argument, concluding that the district court had properly

granted summary judgment in the matter and that the contentions on appeal were "unpersuasive."

Shortly after receiving the adverse appellate court decision, Respondent informed Restani

of the decision and indicated that he was sorry that they had lost. He then indicated that he

would continue to think about whether there was "another angle" or a way to "take it to civil." In

subsequent conversations, he indicated that he was "still working" on the matter.

It is clear that Respondent continued to look for cases and legal theories that might be of

assistance to Restani. He was also responsible for her applying for and receiving unemployment

benefits and for her subsequently obtaining an extension of those benefits. In addition, he had

-24-

provided her with free advice in handling a small claims matter in which she was involved.

Then, in 2015, Respondent sent to Restani a proposed civil complaint in which he drafted

various theories of tort liability on her behalf against United Airlines. Restani declined to go

forward with this proposed tort action on her conclusion that the theories were not supported by

the actual facts.

In 2016, five years after the federal litigation had ended, Restani decided that she wanted

a refund of all of the money she had paid Respondent to seek to challenge her adverse

employment decision, both in the district court and on appeal. Having apparently become aware

that Respondent had been previously disciplined by the State Bar, she filed a complaint against

him with the State Bar, demanding that he return the fee she had previously paid.

Count 8 - Rule 3-110(A) [Failure to Perform with Competence]

In this count, the State Bar alleges:

On or about May 22, 2009, Diane Restani employed respondent to perform legal services, namely to represent her in an employment termination matter, which respondent intentionally, recklessly, and repeatedly failed to perform with competence, in willful violation of Rules of Professional Conduct, rule 3-1 10(A), by the following:

Filing a frivolous, inadequate and unwarranted application on his client's behalf, i.e. Petition for Order Vacating Arbitration Award;

Filing a frivolous appeal when the Petition for Order Vacating Arbitration Award was dismissed on summary judgment; and

7

D. Failing to give truthful responses to his client's reasonable status inquiries.

Rule 3-110(A) provides that an attorney "shall not intentionally, recklessly, or repeatedly

fail to perform legal services with competence." While this rule applies to attorneys' duty to

communicate correct legal advice to their clients, negligent legal representation does not

'As previously noted, subparagraph C was stricken at the request of the State Bar prior to the commencement of trial.

-25-

necessarily establish a violation. (See In the Matter of Torres (Review Dept. 2000) 4 Cal. State

Bar Ct. Rptr. 138, 149.)

While Respondent's efforts to have the adverse decision against Restani be set aside, the

evidence fails to provide clear and convincing evidence that this lack of success resulted from

any intentional, reckless or repeated failure by him to perform services with competence. The

State Bar offered no expert testimony or any other evidence even suggesting that there was a way

for Respondent to have set aside the adverse Restani arbitration decision that Respondent failed

to see or argue. Nor did it present any evidence that Respondent was not competent to handle

the RLA legal issues or that he failed to exercise diligence in doing so. Those are the classical

reasons for which violations of rule 3-1 10(A) have been found.

The essence of the State Bar's argument is that Respondent should have refused to even

attempt to set aside the arbitration award and that his willingness to try to do so violated his

ethical obligations.

This court declines to reach any such decision in this case. Neither the district court nor

the appellate court held that Respondent's actions were frivolous. In fact, the district court did

not even reject Respondent's contention that the Comedy Club decision could be extended to

RLA arbitrations. It merely found that the amount of the shoes was "material" and, hence, the

Comedy Club standard was not violated. Nor did the appellate court conclude that Respondent's

arguments on appeal were frivolous. It only found that they were "unpersuasive."

Nor is there any basis for concluding that Respondent's efforts on behalf of his client

were disingenuous or not in good faith. This court is persuaded that Respondent was truly

offended by the fact that Restani had been fired by United Airlines, notwithstanding what he

viewed as compelling mitigating factors, and he was genuinely looking for a theory and/or new

case law that support a more favorable outcome on her behalf

-26-

In an adversary system, there will always be winners and losers at trial. That an attorney

gave his best in what proved to be an unsuccessful effort on behalf of a subsequently ungrateful

client does not signify that the attorney was unethical for ever agreeing to make that effort. That

conclusion is especially applicable to situations where the attorney is seeking in good faith to

create new law or modify old ones. The most important court decisions in the history of this

country have resulted from attorneys willing to challenge existing laws or to argue for innovative

or controversial new approaches. In many of those cases, history has applauded the dogged

determination of the ultimately successful attorneys, who were not deterred by initial setbacks or

rejections. For the attorney disciplinary process in this state to now adopt a different approach,

to now brand attorneys as unethical if their efforts at effecting change are not immediately

successful, would have an unacceptable chilling effect on the evolution of our laws and judicial

process. The stated purpose of the California attorney disciplinary process is to protect the

public, not necessarily the status quo.

This count is dismissed with prejudice.

Count 9 - Rule 3-700(D)(2) [Failure to Refund Unearned Fees] Count 10 - Rule 4-100(B)(3) [Failure to Render Accounts of Client Funds]

In count 9, the State Bar alleges:

On or about May 22, 2009, respondent received advanced fees of $5,000 from Diane Restani to represent her in an employment termination matter. Respondent filed a frivolous, inadequate and unwarranted application on his client's behalf, i.e. Petition for Order Vacating Arbitration Award, and, after the application was dismissed on summary judgment, respondent filed a frivolous appeal. Respondent perform [sic] no legal services of value for the client, and therefore earned none of the advanced fees paid. Respondent failed to refund promptly, upon respondent's termination of employment, any part of the $5,000 fee to the client, in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).

-27-

Rule 3-700(D)(2) provides in pertinent part: "A member whose employment has

terminated shall: . . .(2) Promptly refund any part of a fee paid in advance that has not been

earned."

In count 10, the State Bar alleges:

On or about May 22, 2009, respondent received from respondent's client, Diane Restani, the sum of $5,000 as advanced fees for legal services to be performed. Respondent thereafter failed to render an appropriate accounting to the client regarding those funds upon the termination of respondent's employment on or about January 8, 2016, in willful violation of the Rules of Professional Conduct, rule 4-100(B)(3).

Rule 4-1 00(B)(3) requires a member to "maintain complete records of all funds,

securities, and other properties of a client coming into the possession of the member or law firm

and render appropriate accounts to the client regarding them{.J"

The evidence fails to provide clear and convincing proof of any violation by Respondent

of his obligation under rule 3-700(D)(2) or rule 4-100(B)(3).

Restani paid Respondent a fixed fee of $5,000 to seek judicial review of the arbitration

decision adverse to her. Respondent worked energetically and innovatively to accomplish that

objective, including challenging the arbitration decision both at the trial court level and on

appeal. His work, although unsuccessful, was not frivolous. Even after the adverse federal

appellate decision became final, he continued to seek to find a way for Restani to obtain redress

from United Airlines for what he viewed as an unjustified termination.

In 2016, years after the judicial attack Restani had commissioned proved unsuccessful,

she decided that she wanted back the money she had invested in that attack. Her complaint to

the State Bar was clearly for that purpose and was motivated by her knowledge that he had

previously been disciplined by the State Bar. In response to her complaint, Respondent prepared

and provided to the State Bar for Restani an accounting of the time he had spent on Restani's

behalf. It showed that the time he had spent seeking to set aside her adverse employment

-28-

decision, if charged at his normal billable rate, would have far exceeded the amount of the fixed

fee he had received. He also used portions of that fee to pay the filing fees and costs associated

with the two legal proceedings.

Restani testified in this proceeding. During her testimony, she indicated that she had

never asked for an accounting and that she had never terminated Respondent's services. She just

wanted him to return all of the money she had previously paid him.

These two counts are dismissed with prejudice.

Count 12 - Section 6106 [Moral Turpitude - Misrepresentation]

In this count, the State Bar alleges:

Between August 1, 2011 and July 2015, respondent repeatedly stated to his client, Diane Restani, that Restani's case was ongoing and that respondent continued to work on the matter, when respondent knew that the statements were false, and thereby committed an act involving moral turpitude, dishonesty or corruption in willful violation of Business and Professions Code, section 6106.

The evidence fails to provide clear and convincing evidence of any misrepresentation by

Respondent to Restani as alleged in this count.

Respondent was hired by Restani on June 2, 2009, "to provide legal services in

connection with judicial review of the arbitration between [Restani] and United Airlines." He

filed an action on behalf of Restani in the United States District Court for the Northern District

of California, seeking to reverse that arbitration decision. Then, after the federal district court

granted summary judgment against Restani and dismissed the action, Respondent appealed that

decision to the Ninth Circuit.

During the trial of this disciplinary matter, Restani testified that Respondent informed her

of the adverse Ninth Circuit decision shortly after it was received, and he indicated that he was

sorry that they had lost. He then indicated that he would continue to think about whether there

-29-

was "another angle" or a way to "take it to civil." In subsequent conversations, he indicated that

he was "still working" on the matter.

There is no clear and convincing evidence that Respondent was being dishonest with

Restani when he indicated that he was still "working" on figuring out a way to seek redress on

her behalf from United Airlines. After the federal case was "lost" and Restani had been informed

of that fact, there was no reason for Respondent to have lied to Restani about trying to find

another way for her to seek redress for her prior termination. He had already been paid for and

earned the fee for the unsuccessful federal action and appeal. Moreover, although he had already

done all of the work for which he had been paid, this court is persuaded that he was truly

offended by the fact that she had been fired by United Airlines and he was genuinely looking for

a theory or new case that would support a more favorable outcome on her behalf Along those

lines, in 2015, Respondent sent to Restani a proposed civil complaint in which he drafted various

theories of tort liability on her behalf against United Airlines. Restani declined to go forward

with this proposed tort action on her conclusion that the theories were not supported by the actual

facts.

This count is also dismissed with prejudice.

Aggravating Circumstances

The State Bar bears the burden of proving aggravating circumstances by clear and

convincing evidence. (Rules Proc. of State Bar, Stds. for Atty. Sanctions for Prof. Misconduct,8

std. 1.5.) The court finds the following with respect to aggravating circumstances.

Prior Discipline.

Respondent has been disciplined on three prior occasions. This is an extremely serious

aggravating circumstance. (Std. 1.8(b).)

All further references to standard(s) or std. are to this source. -30-

Kun J(Case Nos. 01-0-04505 and 01-0-04626)

On September 9, 2002, Respondent stipulated to a public reproval in connection with an

NDC filed August 29, 2002, charging 10 counts of misconduct in two client matters. In case

number 01-0-04505, Respondent stipulated to culpability under section 6068, subdivision (m),

for not responding to his client's requests for information, and under rule 3-700(D)(1) for failing

to return his client's file and medical photographs after the client terminated his services. The

misconduct underlying this case occurred between July 1998 and October 2001.

In case number 0 1-0-04626, Respondent stipulated to culpability for three counts. The

first was for a violation of section 6068, subdivision (e), for willfully failing to maintain his

client's secrets when he disclosed personal information about his client to a member of the

client's family. The second was for a violation of section 6090.5, subdivision (a)(2), for

conditioning settlement of a fee arbitration on the client's dismissal of his State Bar complaint.

The third was for a violation of rule 3-700(A)(2) for failing to avoid prejudice to his client when

he promised to file an appeal and then abandoning his client and attempting to mislead him. The

misconduct underlying this case occurred between April 1997 and February 2002.

Kun II (Case No. 02-0-1448 1)

On June 10, 2004, the Supreme Court entered an order (No. S 123260) suspending

Respondent for one year, stayed, and placing him on probation for one year, subject to conditions

including a 30-day actual suspension. In this disciplinary matter, based on a single client matter,

Respondent stipulated to culpability on four counts: (1) a violation of rule 3-1 10(A) for failing to

perform legal services with competence by not filing pleadings in his client's case; (2) a violation

of section 6068, subdivision (m), for failing to keep his client informed of significant

developments; (3) a violation of section 6106, for acts involving moral turpitude, dishonesty, or

corruption, for misleading his client into believing that her appeal was pending when it had been

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dismissed; and (4) a violation of rule 3-700(D)(2) for failing to provide any services of value and

failing to refund unearned fees after he was terminated by the client. Most of the misconduct

underlying this case (failing to file pleadings and to keep his client informed and misleading his

client about the status of the case) occurred between April 2001 and July 2002. Respondent's

client requested, and Kun paid, a refund of unearned fees in January 2003.

Kun III (Case No. 14-0-05418)

On August 9, 2017, the Supreme Court filed an order (No. S242289) suspending

Respondent for three years, stayed, and placing him on probation with conditions including a

period of actual suspension for a minimum of two years and until he makes restitution to a

former client and provides proof to this court of his rehabilitation, fitness, and present learning

and ability in the general law.9

In that matter, Respondent was found culpable of violations of (1) rule 4-100(A) for

failing to maintain funds in his client trust account; (2) section 6106 for misappropriation of the

client's $460 filing fee; and (3) rule 4-100(A) for commingling. The misconduct in this matter

began in 2014. Aggravating factors identified by the Review Department in its decision included

Respondent's prior record of discipline, multiple acts of misconduct, indifference, and

Respondent's continued failure to make restitution of the misappropriated funds. Mitigating

factors were limited to Respondent's candor and cooperation in providing pretrial factual

stipulations.

Multiple Acts of Misconduct

Respondent's multiple acts of misconduct in the Stone/Connor matter are an aggravating

factor. (Std. 1.5(b).)

During the trial of this matter, the State Bar presented evidence of the Review Department's decision recommending the discipline in case No. 14-0-05418. This court now takes judicial notice that the Supreme Court has now issued its order imposing the recommended discipline.

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Significant Harm

Respondent's misconduct significantly harmed Fulton Connor, who had to hire an

attorney to resist his inappropriate efforts to collect from Connor the default judgment against

Jan-Pro International, Inc. (Std. 1.50).)

Lack of Insight and Remorse

Respondent has demonstrated indifference toward rectification of or atonement for the

consequences of his misconduct. (Std. 1.5(k).) He remains defiant and has no insight regarding

his unethical behavior. This is a significant aggravating factor. "The law does not require false

penitence. [Citation.] But it does require that a respondent accept responsibility for his acts and

come to grips with his culpability. [Citation.]" (In the Matter of Katz (Review Dept. 1991) 1

Cal. State Bar Ct. Rptr. 502, 511.)

Lack of Candor

As noted through the factual discussion, above, Respondent made numerous

representations and assertions of fact to this court that were demonstrably inaccurate. This is a

significant aggravating factor. (Std. 1.5(1).)

Mitigating Circumstances

Respondent bears the burden of proving mitigating circumstances by clear and

convincing evidence. (Standard 1.6.) No mitigating factors were shown by the evidence

presented to this court.

DISCUSSION

The purpose of State Bar disciplinary proceedings is not to punish the attorney but to

protect the public, the courts, and the legal profession; to maintain the highest possible

professional standards for attorneys; and to preserve public confidence in the legal profession.

(Std. 1.1; Chadwick v. State Bar (1989) 49 Cal.3d 103, 111.)

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In determining the appropriate level of discipline, this court looks first to the standards

for guidance. (Drociak v. State Bar (1991) 52 Cal. 3d 1085, 1090; In the Matter ofKoehler

(Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615, 628.) The court then looks to the decisional

law. (Snyder v. State Bar (1990) 49 Cal. 3d 1302, 1310-1311; In the Matter of Taylor (Review

Dept. 1991) 1 Cal. State Bar Ct. Rptr. 563, 580.) As the Review Department noted more than

two decades ago in In the Matter of Bouyer (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 404,

419, even though the standards are not to be applied in a talismanic fashion, they are to be

followed unless there is a compelling reason that justifies not doing so. (Accord, In re Silverton

(2005) 36 Cal.4th 81, 91; Aronin v. State Bar (1990) 52 Cal.3d 276, 291.) Ultimately, in

determining the appropriate level of discipline, each case must be decided on its own facts after a

balanced consideration of all relevant factors. (Connor v. State Bar (1990) 50 Cal.3d 1047,

1059; Gary v. State Bar (1988) 44 Cal.3d 820, 828; In the Matter of Oheb (Review Dept. 2006) 4

Cal. State Bar Ct. Rptr. 920, 940.)

Standard 1.7(a) provides that, when two or more acts of misconduct are found in a single

disciplinary proceeding and different sanctions are prescribed for those acts, the recommended

sanction is to be the most severe of the different sanctions.

In the present proceeding, the most severe sanction for Respondent's misconduct is found

in standard 1.8(b), which provides:

If a member has two or more prior records of discipline, disbarment is appropriate in the following circumstances, unless the most compelling mitigating circumstances clearly predominate or the misconduct underlying the prior discipline occurred during the same time period as the current misconduct:

Actual suspension was ordered in any one of the prior disciplinary matters; The prior disciplinary matters coupled with the current record demonstrate a pattern of misconduct; or

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3. The prior disciplinary matters coupled with the current record demonstrate the member's unwillingness or inability to conform to ethical responsibilities."10

This will be Respondent's fourth discipline. While the weight of that fact is reduced

pursuant to the rationale of In the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr.

602, due to the fact that the misconduct in this matter all occurred prior to Respondent's third

discipline, standard 1.8(b) is nonetheless applicable and states that disbarment is appropriate

unless "the most compelling mitigating circumstances clearly predominate." Here, as noted

above, no mitigating factors have been established.

Notwithstanding its unequivocal language to the contrary, disbarment is not always

mandated under this standard even if there are no compelling mitigating circumstances that

predominate in a case. (Conroy v. State Bar (1991) 53 Cal.3d 495, 506-507, citing Arm v. State

Bar (1990) 50 Cal.3d 763, 778-779, 781.) That is because the ultimate disposition of the charges

varies according to the proof. (In the Matter of Tady (Review Dept. 1992) 2 Cal. State Bar Ct.

Rptr. 121, 125.) Ultimately, we are guided by the Supreme Court, which has not applied this

standard in a rote fashion. Rather, we "examine the nature and chronology of respondent's

record of discipline. [Citation.] Merely declaring that an attorney has [two prior] impositions of

discipline, without more analysis, may not adequately justify disbarment in every case." (in the

Matter ofMiller (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 131, 136.)

10 The most severe standards of discipline applicable to Respondent's actual misconduct here are standards 2.11 and 2.12. Standard 2.11 provides: "Disbarment or actual suspension is the presumed sanction for an act of moral turpitude, dishonesty, fraud, corruption, intentional or grossly negligent misrepresentation, or concealment of a material fact. The degree of sanction depends on the magnitude of the misconduct; the extent to which the misconduct harmed or misled the victim, which may include the adjudicator; the impact on the administration of justice, if any; and the extent to which the misconduct related to the member's practice of law." In turn, standard 2.12 provides, in pertinent part: "Disbarment or actual suspension is the presumed sanction for disobedience or violation of a court order related to the member's practice of law[.]"

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The nature and duration of Respondent's misconduct in the Stone/Connor matter, and his

ongoing failure to recognize the inappropriateness of his prior misconduct, causes this court to

conclude that disbarment is both appropriate and necessary to protect the public, the courts, and

the profession.

During the course of this case, Respondent argued that the "de minimis non curat lex"

concept has now been adopted by the United State Supreme Court as a constitutionally-based

defense and precludes the State Bar or this court from disciplining him for his ethical violations

here - which Respondent characterize as "de minimis" and "no big deal." In support of this

argument, he relies on the Supreme Court's 2017 decision in Endrew F. v. Douglas County

School District RE-], 137 S.Ct. 988, 197 L.Ed. 2d 335 (Ex. 1006).

Respondent's contention, that his ethical misconduct now enjoys constitutional immunity

from discipline or other legal consequence, is a source of enormous concern to this court. In the

first instance, any reading of the Endrew F. decision quickly reveals that the Supreme Court did

not find any broad-based constitutional defense based on the maxim "de minimis non curat lex."

In fact, the court never discussed or even used that expression at any time during the course of its

decision. The closest the court came to using that maxim was to quote the words "de minimis"

in reciting the standard of review of individualized education programs (IEP) previously used by

the Tenth Circuit in that same case. ("The Tenth Circuit also affirmed. That court interpreted

Rowley to establish a rule that a child's IEP is adequate as long as it is calculated to confer an

'educational benefit [that is] merely . . .more than de rninimis[.]" (Ex. 1006, p. 2.) The court

then concluded in its decision that such a low standard of review was not sufficiently demanding,

given the statutory scheme and purpose of the Individuals with Disabilities Act. (Ex. 1006, p. 3.)

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In sum, that decision by the United States Supreme Court has absolutely no application

whatsoever to Respondent's misconduct here or to this disciplinary proceeding."

More distressing is Respondent's demonstrated and strongly-held belief that he may now

violate his ethical obligations with impunity, so long as those violations are "de minimis." When

that belief is coupled with his demonstrated lack of recognition of the "non-de minimis" nature

of much of his prior misconduct, the risk of future misconduct by him becomes unacceptably

high. As repeatedly stated by this court, an errant attorney's continued insistence that his

conduct was justified is "particularly troubling" because it suggests that the misconduct may

recur. (In the Matter of Davis (Review Dept. 2003) 4 Cal. State Bar Ct. Rptr. 576, 595.) see also

In the Matter of Taylor (Review Dept. 2012) 5 Cal. State Bar Ct. Rptr. 221, 235; In the Matter of

Duxbury (Review Dept. 1999) 4 Cal. State Bar Ct. Rptr. 61, 68; In the Matter ofKatz (Review

Dept. 1995) 3 Cal. State Bar Ct. Rptr. 430, 438.)

For all of the above reasons, this court concludes that a recommendation of disbarment is

both necessary and appropriate to protect the public, the profession, and the courts.

RECOMMENDED DISCIPLINE

Disbarment

The court recommends that respondent Albert Miklos Kun, State Bar No. 55820, be

disbarred from the practice of law in the State of California and that his name be stricken from

the Roll of Attorneys of all persons admitted to practice in this state.

California Rules of Court, Rule 9.20

The court further recommends that Respondent be ordered to comply with California

Rules of Court, rule 9.20 and to perform the acts specified in subdivisions (a) and (c) of that rule

" The same conclusion applies to Respondent's contention that any discipline for his misconduct in the Stone/Connor matter is barred by the statute of limitations set forth in Code of Civil Procedure section 340.6(a) and as interpreted in Lee v. Hanley (2015) 61 Cal. App. 4th 1225.

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within 30 and 40 calendar days, respectively, after the effective date of the Supreme Court order

in this matter.

Costs

The court further recommends that costs be awarded to the State Bar in accordance with

Business and Professions Code section 6086.10 and that such costs be enforceable both as

provided in Business and Professions Code section 6140.7 and as a money judgment.

Respondent must also reimburse the Client Security Fund to the extent that the misconduct in

this matter results in the payment of funds, and such payment is enforceable as provided under

Business and Professions Code section 6140.5.

ORDER OF INVOLUNTARY INACTIVE ENROLLMENT

In accordance with Business and Professions Code section 6007, subdivision (c)(4), it is

ordered that Albert Miklos Kim, State Bar No. 55820, be involuntarily enrolled as an inactive

member of the State Bar of California, effective three calendar days after service of this decision

and order by mail. (Rules Proc. of State Bar, rule 5.111(D)(1).)'2

Dated: September 066' , 2017. DONALD F. MILES Judge of the State Bar Court

12 An inactive member of the State Bar of California cannot lawfully practice law in this state. (Bus. & Prof. Code, § 6126, subd. (b); see also Bus. & Prof. Code, § 6125.) It is a crime for an attorney who has been enrolled inactive (or disbarred) to practice law, to attempt to practice law, or to even hold himself or herself out as entitled to practice law. (Ibid.) Moreover, an attorney who has been enrolled inactive (or disbarred) may not lawfully represent others before any state agency or in any state administrative hearing even if laypersons are otherwise authorized to do so. (Benninghoffv. Superior Court (2006) 136 Cal.App.4th 61, 66-73.)

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CERTIFICATE OF SERVICE

[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]

I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on September 26, 2017, 1 deposited a true copy of the following document(s):

DECISION AND ORDER OF INVOLUNTARY INACTIVE ENROLLMENT

in a sealed envelope for collection and mailing on that date as follows:

by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:

ALBERT MIKLOS KUN 517 GREEN ST SAN FRANCISCO, CA 94133

by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

MANUEL JIMENEZ, Enforcement, San Francisco

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 26, 2017.

7naP- Mazie Yip Case Administrator State Bar Court

AuDj A C

SUPREME COURT FLED

State Bar Court- No. 15-0-14554 DEC 12 2018

Jorge Navarrete Clerk S252154

Deputy IN THE SUPREME COURT OF CALIFORNIA

En Banc

In re ALBERT MIKLOS KUN on Discipline.

The petition for review is denied. The court orders that Albert Miklos Kun, State Bar Number 55820, is disbarred from the practice of law in California and that his name is stricken from the roll of attorneys.

Albert Miklos Kun must make payment to Fulton Connor of the sanctions award of $3,000 issued on August 14, 2015, by the Superior Court of San Mateo County in case number CIV-477401, plus 10 percent interest per year from October 1, 2015.

Albert Miklos Kun must also comply with California Rules of Court, rule 9.20, and perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar days, respectively, after the effective date of this order.

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.