Case Number(s): 02-O-11231-RAH, 02-O-14222
In the Matter of: Bettye Jewel Barnard, Bar # 65129, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Jeannie J. Park, Bar # 167409
Counsel for Respondent: Marilyn Plunkett Quail, Bar # 118602
Submitted to: settlement judge State Bar Court Clerk’s Office Los Angeles
<<not>> checked. PREVIOUS STIPULATION REJECTED
1. Respondent is a member of the State Bar of California, admitted December 18, 1975.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 12 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
7. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
<<not>> checked. until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. costs to be paid in equal amounts prior to February 1 for the following membership years: 2004, 2005, 2006, and 2007 (hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
Note: All information required by this form and any additional information which cannot be provided in the space provided, shall be set forth in the text component of this stipulation under specific hedings, i.e. “Facts”, “Dismissals,” “Conclusions of Law.”
IN THE MATTER OF: BETTYE JEWEL BARNARD
CASE NUMBER(S): 02-0-11231; 02-0-14222
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
02-0-11231
Facts
1. BETTYE JEWEL BARNARD ("Respondent") was admitted to the practice of law in the State of California on December 18, 1975, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California.
2. On or about June 6, 2000, Claudia Ellis ("Ellis") hired Respondent to represent her in a marital dissolution action and to obtain a restraining order against her husband.
3. Ellis paid Respondent an initial consultation fee of $100.00; a retainer of $2,500.00; and later $1,500.00 for Respondent to set and proceed with a divorce trial.
4. On or about June 16, 2000, Respondent filed a Petition for Dissolution of Marriage on behalf of Ellis in Los Angeles Superior Court, Claudia M. Ellis vs. Larry B. Ellis, case number BD325210.
On the same day, Respondent also filed an Order to Show Cause why Claudia Ellis should not be granted exclusive use of the house and why a restraining order should not be issued against Larry Ellis. The Order to Show Cause Hearing was set for July 18, 2000.
5. On or about July 18, 2000, Respondent filed an Application and Order for Reissuance of Order to Show Cause, because Larry Ellis had not been served yet. The new hearing date was August 15, 2000.
6. On or about August 15, 2000, Respondent notified the court that she was unable to serve the defendant Larry Ellis and requested a continuance. The court continued the matter to September 27, 2000.
7. The court file reflects that Respondent failed to appear at the September 27, 2000 hearing and that Larry Ellis had not been served. No appearances being made at the September 27, 2000 hearing, the court placed the matter off calendar. Respondent alleges that she telephoned the court and advised the court that service had not been effected. Since the court had previously stated that it would not continue the case again, Ms. Barnard had no objection to the matter being taken off calendar, as an appearance would have been useless.
8. Despite Respondent’s efforts to have a process server serve Larry Ellis, Larry Ellis was not served. Sometime in 2000, Claudia Ellis spent $300.00 and had Larry Ellis served. Respondent received the proof of service from Ellis but failed to file it with the court.
9. On or about August 28, 2001, Respondent obtained a copy of an abstract of judgment recorded against Larry Ellis.
10. On or about October 26, 2001, Ellis wrote Respondent a letter requesting that Respondent respond to her telephone messages and letters. Ellis asked Respondent to at least let her know if Respondent was no longer representing her and to send her a refund. After this October 26, 2001 letter, Respondent alleges that she spoke with Ellis regarding her case and advised Ellis that Respondent was not well so another attorney had been assisting on the case. The other attorney then was diagnosed with cancer and was unable to continue.
12. On or about February 20, 2002, Ellis wrote Respondent another letter requesting that Respondent respond to her letters and telephone messages. Ellis asked Respondent to at least let her know if Respondent was no longer representing her and to send her a refund.
13. Respondent failed to respond to Ellis’ February 20, 2002 letter. Respondent did not inform Ellis that she was withdrawing from employment. After February 20, 2002, Respondent did not respond to Ellis’ telephone messages or letters requesting status of the case.
14. Ellis hired a new attorney to complete the divorce. Ells’ new attorney filed a First Amended Petition on or about May 21, 2002, and a new application for restraining order on June 10, 2002.
15. On or about May 13, 2002, Respondent sent State Bar Investigator Sherri Carter a letter in response to the allegations of misconduct against her. Respondent stated in the letter that she believed Ellis was due a $1,500.00 refund.
16. Respondent has not refunded any money to Ellis.
Conclusions of Law
1. By failing to file the proof of service with the court and by failing to take any further action in the Ellis matter after February 20, 2002, Respondent intentionally, recklessly or repeatedly failed to perform legal services with competence in wilful violation of Rules of Professional Conduct, rule 3-110(A).
2. By not informing Ellis of her intent not to file to file the proof of service, not to do any further work and withdraw from employment, Respondent failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to her client in wilful violation of Rules of Professional Conduct rule 3-700(A)(2).
3. By failing to respond to Ellis’ February 20, 2002 letter and telephone calls regarding the status of her case, Respondent failed to promptly respond to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services in wilful violation of Business and Professions Code Section 6068(m).
4. By failing to refund to Ellis any portion of the $2,500.00 in advance fees paid to Respondent, which Respondent had not earned, Respondent wilfully failed to refund unearned fees.
02-0-14222
Facts
1. On or about January 10, 2002, James Williams ("Williams") hired Respondent to clear title to a property located at 1433 East 49th Street in Los Angeles, California. Williams signed a retainer agreement for $10,000.00 and paid $5,000.00, with the remaining $5,000.00 to be paid within 45 to 60 days.
2. On or about May 17, 2002, Williams advised Respondent that he would not meet with Respondent to pay the remaining attorneys fees because Respondent was too slow. Respondent alleges that the purpose of the meeting was to confer regarding legal and factual research that Respondent had completed and to review drafts of a petition and complaint Respondent prepared on Williams’ behalf.
3. In June 2002, Williams’ wife left a voice mail message for Respondent requesting a refund of the $5,000.00 paid.
4. On or about June 27, 2002, Respondent sent Williams a letter acknowledging receipt of the voice mail message from his wife requesting a refund. Without providing an accounting of the $5,000.00 in advanced fees, Respondent merely stated that she put "quite a bit of work" into his matter.
5. On or about August 25, 2002, Williams filed a complaint with the State Bar stating that Respondent failed to provide any billing statements, failed to advise Williams the status of his case, and failed refund his $5,000.00.
6. Respondent failed to provide Williams with an accounting.
7. Respondent failed to show that she did any work on Williams’ case to earn the $5,000.00 in advanced fees.
8. Title has not been cleared on the property located at 1433 East 49th Street in Los Angeles, California.
9. Respondent has not returned any portion of the $5,000.00 in advanced fees to Williams.
Conclusions of Law
1. By failing to provide a detailed accounting of the $5,000.00 paid to Respondent by Williams, Respondent failed to render appropriate accounts to a client in wilful violation of Rules of Professional Conduct, role 4-100(B)(3).
2. By failing to return to Williams any portion of the $5,000.00 in advanced fees paid to Respondent, which Respondent had not earned, Respondent wilfully violated Rules of Professional Conduct, role 3-700(D)(2).
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.2(b)
Circumstances which shall be considered aggravating are:
(i) prior discipline;
(ii) multiple acts of wrongdoing;
(iii) member’s conduct surrounded by bad faith, dishonesty, overreaching, or, if trust funds were involved, refusal to account;
(iv) significant harm to client, public or administration of justice;
(v) member’s indifference toward rectification or atonement for the consequences of his misconduct; or
(vi) lack of candor and cooperation during the course of the disciplinary proceedings.
Standard 2.2
(b) Culpability of a member of commingling of entrusted funds or property with personal property or the commission of another violation of rule 4-100, Rules of Professional Conduct, none of which offenses result in the wilful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances.
Standard 2.4 provides:
(b) Culpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.6
Culpability of a member of a violation of any of the following provisions of the Business and Professions Code shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3:
(a) Sections 6067 and 6068;
(b) Sections 6103 through 6105...
In In the Matter of Sullivan II (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 608, 611-613, the respondent was found culpable of two violations of failing to communicate with clients and four violations of failing to perform competently. Despite "21 years of blemish-free practice," it was recommended that respondent be suspended for 60 days actual, one year stayed, and given three years of probation, ld. At pp. 613,614.
In In the Matter of Aguiluz (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 32, the attorney was found to have ignored the clients’ instructions and abandoned their case in violation of former rules 6-10 l(A)(2) and 211 l(A)(2). The court recommended the respondent be suspended for one year, with the execution of the suspension stayed, with two years of probation with conditions.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(6), was July 31, 2003.
FINANCIAL CONDITIONS, RESTITUTION.
1. Within THREE YEARS from the effective date of discipline in this matter, respondent must make restitution to CLAUDIA ELLIS or the Client Security Fund if it has paid, in the principal amount of $2,500.00 and furnish satisfactory evidence of restitution to the Probation Unit. Respondent shall include in each quarterly report required herein satisfactory evidence of all restitution payments made by her during that reporting period.
2. Within THREE YEARS from the effective date of discipline in this matter, respondent must make restitution to JAMES WILLIAMS or the Client Security Fund if it has paid, in the principal amount of $5,000.00 and famish satisfactory evidence of restitution to the Probation Unit. Respondent shall include in each quarterly report required herein satisfactory evidence of all restitution payments made by her during that reporting period.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of July 31, 2003, the estimated prosecution costs in this matter are approximately $2,915.00. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
STATE BAR ETHICS SCHOOL EXCLUSION.
It is not recommended that respondent be ordered to attend State Bar Ethics School since respondent was ordered to attend Ethics School by February 23, 2004 in connection with the discipline pursuant to California Supreme Court Case number S 111161 [State Bar Court case number 00-O-15638].
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION EXCLUSION.
It is recommended that respondent not be required to take the Multistate Professional Responsibility Examination because he or she was ordered to take and pass the examination by February 23, 2004 in connection with the discipline pursuant to California Supreme Court Case number S111161 [State Bar Court case number 00-O-15638].
Date: 8/27/03
Respondent’s Signature: Bettye Jewel Barnard
Date: 8-26-03
Respondent’s Counsel Signature: Marilyn Plunkett Quail
Date: 8-28-03
Deputy Trial Counsel’s Signature: David T. Sauber
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
Not checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 135(b), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 953(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard Platel
Date: 9/24/03
[Rule 62(b), Rules Proc.; 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 25, 2003, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL SUSPENSION, filed September 25, 2003
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:
MARILY PLUNKETT QUAIL, ESQ.,
3350 SHELBY ST., SUITE 200
ONTARIO, CA 91764
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DAVID T. SAUBER, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 25, 2003.
Signed by:
Tammy R. Cleaver
Case Administrator
State Bar Court