FILED JANUARY 20, 2015

with competence; (2) failing to promptly refund unearned fees; (3) moral turpitude; and

(4) failing to cooperate in a State Bar investigation. He failed to participate either in person or

through counsel, and his default was entered. The State Bar of California, Office of the Chief

Trial Counsel (State Bar), filed a petition for disbarment under rule 5.85 of the Rules of

Procedure of the State Bar.

Rule 5.85 provides the procedure to follow when an attorney fails to participate in a

disciplinary proceeding after receiving adequate notice and opportunity. The rule provides that if

court, in the interest of justice, will apply in this matter former rules 5.80 through 5.86 of the

Rules of Procedure of the State Bar which were in effect from January 1, 2011, through June 30,

2014.

and the attorney fails to have the default set aside or vacated within 180 days, the State Bar will

file a petition requesting the court to recommend the attorney’s disbarment.

In the instant case, the court concludes that the requirements of rule 5.85 have been

satisfied and, therefore, grants the petition and recommends that respondent be disbarred from

the practice of law.

Respondent was admitted to practice law in this state on May 7, 2011, and has been a

member since then.

Thereafter, the State Bar sent a copy of the NDC to respondent by regular first-class mail

NDC was returned to the State Bar by the USPS.

Respondent left a voicemail for the senior trial counsel assigned to this matter, Manuel

Jimenez (STC Jimenez), sometime between December 24, 2013, and approximately January 3,

2014.

STC Jimenez telephoned respondent twice at a telephone number contained within the

State Bar files on February 19, 2014. However, STC Jimenez did not reach respondent. STC

adequate notice to the attorney, it must deny the petition for disbarment and take other

appropriate action to ensure that the matter is promptly resolved. (Rule 5.85(E)(2).)

Jimenez also called directory assistance on that same day for the area which includes

respondent’s membership records address. However, directory assistance did not have any

listing for respondent other than those at which STC Jimenez had already attempted to reach

respondent. STC Jimenez also emailed respondent at two email addresses contained in the State

Bar’s files.

With the email, STC Jimenez attached documents, including the NDC.

official membership records telephone number. However, the number belongs to the Kerosky,

Purves & Bogue firm. A receptionist informed STC Jimenez that respondent is no longer

Muller in Orangevale, but when he telephoned the number, it was disconnected.

Jimenez received a return email from respondent. In the email, respondent (a) indicated he was

ill and had not been present at the status conference due to poor health; (b) set forth that he could

be reached at that email address; (c) that by the end of the day, he would have a specified number

California for correspondence.

STC Jimenez returned respondent’s email on that same date.

address to facilitate communications with the State Bar. (Cal. Rules of Court, rule 9.7(a)(2).)

Exhibit 1. The court notes that the number that was to be activated with a voicemail box and the

address that respondent is using for correspondence have been redacted from this exhibit.

STC Jimenez attached, among other things, the NDC filed in this matter. STC Jimenez (a)

advised respondent of the assigned judge and case administrator; (b) gave respondent the

assigned case administrator’s telephone number; (c) suggested that respondent call the court and

ask to have the matter put back on calendar; (d) stated that the State Bar would not oppose such a

request; and (e) that prior to respondent’s email, he had filed a default motion that day.

filed and properly served a motion for entry of default on respondent by certified mail, return

receipt requested, at his membership records address. The motion complied with all the

requested.

The court also ordered respondent’s involuntary inactive enrollment as a member of

the State Bar under Business and Professions Code section 6007, subdivision (e), effective three

days after service of the order, and he has remained inactively enrolled since that time.

Respondent also did not seek to have his default set aside or vacated. (Rule 5.83(C)(1)

[attorney has 180 days to file motion to set aside default].) On October 3, 2014, the State Bar

filed and properly served the petition for disbarment on respondent by certified mail, return

State Bar reported in the petition that: (1) the State Bar has not had any communication with

respondent since his default was entered; (2) there is another matter pending against respondent

which is currently abated; (3) respondent does not have a prior record of discipline; and (4) the

Client Security Fund has not made any payments resulting from respondent’s conduct.

Respondent did not respond to the petition for disbarment or move to set aside or vacate the

default. The case was submitted for decision on October 28, 2014.

admitted and no further proof is required to establish the truth of such facts. (Rule 5.82.) As set

forth below in greater detail, the factual allegations in the NDC support the conclusion that

Case Number 13-O-14148 (Ashton Matter)

that respondent violated this rule “by performing no legal services of value on behalf of the

client.” (Italics added.) This allegation is vague, ambiguous and arbitrary and does not

establish, by clear and convincing evidence, that respondent intentionally, recklessly, or

repeatedly failed to perform competent legal services. Lack of value does not establish a rule

3-110(A) violation. (Cf. Berk v. Twenty-Nine Palms Ranchos, Inc. (1962) 201 Cal.App.2d 625,

637 [A “client cannot escape full payment [in accordance with the terms of a fee agreement]

when they entered into the [fee agreement].”].) This count is therefore dismissed with prejudice.

/ / /

/ / /

Count Two – Respondent willfully violated rule 3-700(D)(2) of the State Bar Rules of

Professional Conduct (failure to return unearned fees) by failing to promptly refund, upon his

constructive termination of employment, the $1,250 fee paid by his client that was not earned.

Count Three – Respondent willfully violated Business and Professions Code section 6106

(moral turpitude) by stating in writing to his client that he had filed a notice of intent with the

was grossly negligent in not knowing the statement was false.

Count Four – Respondent willfully violated Business and Professions Code section 6068,

(1) the NDC was properly served on respondent under rule 5.25;

entry of his default, as the State Bar (a) filed and properly served the NDC on respondent at his

membership records address by certified mail, return receipt requested, and by regular mail; (b)

sent a copy of the NDC to respondent by regular first-class mail to another address;

(c) telephoned respondent three times at a telephone number contained within the State Bar files,

and also telephoned respondent at his official membership records telephone number;

attaching documents, including the NDC; (f) conducted an internet search for respondent’s name

in the Orangevale, California area; and (g) after receiving a return email from respondent, STC

among other things, that a default motion had been filed that day. Respondent also had actual

notice of the proceeding prior to the entry of his default, as (a) respondent left a voicemail for the

assigned senior trial counsel in this matter sometime between December 24, 2013, and

default, STC Jimenez received a return email from respondent at which he notes why he was nt

present at the status conference;

recommends disbarment.

The court recommends that respondent Matthew D. Muller be disbarred from the practice

of law in the State of California and that his name be stricken from the roll of attorneys.

The court recommends that respondent be ordered to make restitution to John A.

Fitzgerald Ashton in the amount of $1,250, plus 10 percent interest per year from September 26,

2012.

/ / /

Any restitution owed to the Client Security Fund is enforceable as provided in Business

and Professions Code section 6140.5, subdivisions (c) and (d).

The court also recommends that respondent be ordered to comply with the requirements

of California Rules of Court, rule 9.20, and to perform the acts specified in subdivisions (a) and

order in this proceeding.

Costs

inactive member of the State Bar of California, effective three calendar days after the service of

this decision and order. (Rule 5.111(D).)