Case Number(s): 03-O-00782-RAP
In the Matter of: Timothy Lee Mc Candless, Bar # 147715, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kevin B. Taylor, Bar # 151715,
Counsel for Respondent: David A. Clare, Bar # 147715,
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted July 30, 1990.
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 13 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. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. 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.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
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.
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: . (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
IN THE MATTER OF: Timothy Lee McCandless, State Bar No. 147715
STATE BAR COURT CASE NUMBER: 03-O-00782
FACTS AND CONCLUSIONS OF LAW
Respondent was admitted to the practice of law in the State of California on July 30, 1990.
In or about September 2000, Carlos and Olga Vera ("Veras") employed Respondent to represent them as defendants in a personal injury matter entitled Hamilton v. Vera, Los Angeles Superior Court case number BC 236860 ("Hamilton action").
Respondent timely filed an answer on behalf of the Veras.
Thereafter, Respondent began serving a 60 day actual suspension from the practice of law. The suspension ran from October 22, 2000 to December 21, 2000. Respondent contends that he arranged for another attorney to supervise his cases while he was on suspension.
Respondent never informed the Veras of the above-mentioned suspension or that he would not be able to represent them from October 22, 2000 to December 21, 2000.
On or about October 31, 2000, while Respondent was out of his office, the plaintiff in the
Hamilton action served Respondent with interrogatories propounded upon the Veras. The interrogatories were not responded to in a timely fashion.
Respondent became aware of the subject interrogatories when he returned to his office on or about December 28, 2000. Respondent contends that he prepared responses to the interrogatories on behalf of the Veras, but that the responses were lost due to flooding in his office. Respondent received interrogatory verification forms executed by the Veras, but never served the Veras’ responses to the subject interrogatories.
On or about February 5, 2001, the plaintiff n the Hamilton action filed and properly served upon Respondent a motion to compel the Veras to answer the subject interrogatories. Respondent did not respond to the motion. Therefore, on or about March 16, 2001, the Court in the Hamilton action issued an order compelling the Veras to answer the interrogatories. The plaintiff in the Hamilton action properly served Respondent with notice of the Court’s order.
As stated above, Respondent never served the Veras’ responses to the subject interrogatories. Therefore, on or about June 26, 2001, the plaintiff n the Hamilton action filed and properly served upon Respondent a motion seeking terminating sanctions against the Veras. Respondent did not respond to the motion. Therefore, on or about July 24, 2001, the Court in the Hamilton action issued an order striking the Veras’ answer to the Hamilton complaint. The plaintiff in the Hamilton action properly served Respondent with notice of the Court’s order.
On or about October 18, 2001, Respondent filed a motion seeking relief from the terminating sanction imposed upon the Veras. In that motion, Respondent accepted responsibility for the Veras’ failure to respond to discovery. However, the Court denied the motion for relief.
Thereafter, the Veras terminated Respondent and employed new counsel to resolve the Hamilton action.
On or about March 22, 2002, the Veras filed a malpractice action against Respondent. That action resulted in a stipulated judgment against Respondent.
Legal Conclusions
By failing to serve the Veras’ responses to Hamilton’s interrogatories, respond to Hamilton’s motion to compel or respond to Hamilton’s motion for terminating sanctions, Respondent failed to perform the legal services for which he was employed, in wilful violation of rule 3-110(A) of the California Rules of Professional Conduct.
By failing to inform the Veras of the fact that he would not be able to practice law from October 22, 2000 to December 21, 2000, a period of time during which discovery in the Hamilton action would be ongoing, Respondent failed to keep his clients reasonably informed of significant developments in a matter with regard to which he had agreed to provide legal services, in wilful violation of Business and Professions Code, section 6068(m).
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed on January 6, 2005, and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
PENDING PROCEEDINGS
The disclosure date referred to, on page one, paragraph A.(6), was November 16, 2005.
DISMISSALS
The parties respectfully request that the Court dismiss the following alleged violations in the interest of justice:
Case No.: 03-0-00782, Count: THREE, Alleged Violation : RPC 3-700(A)(2)
Case No.: 03-0-00782, Count: FOUR, Alleged Violation B&P 6068(o)(2)
Case No.: 03-0-00782, Count: FIVE, Alleged Violation B&P 6103
Case No.: 03-0-00782, Count: SIX, Alleged Violation B&P 6106
AUTHORITIES SUPPORTING STIPULATED DISCIPLINE
Standard 2.4(b) of the Standards For Attorney Sanctions For Professional Misconduct provides that a reproval or suspension is the appropriate discipline for the wilful failure to perform legal services where the misconduct does not demonstrate a pattern or involve a failure to communicate with a client. The degree of discipline also turns on the extent of the misconduct and degree of harm to the client.
Standard 2.6 (a) provides that Culpability for violations of Business and Professions Code, section 6068 shall result in disbarment or suspension depending on the gravity of the offense or harm, if any, to the victim, with due regard to the purpose of imposing discipline as set forth in Standard 1.3.
Standard 1.3 provides that the primary purpose of discipline is the protection of the public, the courts and legal profession; maintenance of high professional standards; and the preservation of public confidence in the legal profession.
Standard 1.7(a) provides that where a respondent has suffered prior discipline, subsequent discipline shall be greater than the earlier discipline unless the earlier discipline is remote in time or minimal in severity.
Comment on Stipulated Discipline
As explained below, the gravamen of the misconduct addressed herein is similar in nature to, and occurred during the same time period as, the misconduct addressed in Respondent’s January 2004 discipline in case number 02-O-11346.
Disciplinary case 02-O-11346 involved three client matters. The misconduct addressed in that case consisted of eight violations, involving rules 3-100(A), 3-700(A)(2) and (D)(1) of the Rules of Professional Conduct and section 6068(m) of the Business and Professions Code. The misconduct occurred from April 1999 to October 2002.
The discipline imposed in 02-O-11346 included a six months actual suspension.
As set forth above, this stipulation addresses one client matter and violations of rule 3-110(A) of the Rules of Professional Conduct and section 6068(m) of the Business and Professions Code. The rule 3-110(A) violation occurred from February 2001 to July 2001. The section 6068(m) violation occurred in or about October 2000.
The parties submit that discipline in this matter should be considered in terms of what this matter would have added to the discipline imposed in the prior matter had the two cases been consolidated. See In the Matter of Sklar, (Rev. Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602 at page 619.
The Supreme Court in Farnham v. State Bar (July 1976) 17 C.3d 605, imposed a six month actual suspension for respondent’s failure to perform legal services, failure to communicate and engaging in the unauthorized practice of law in two client matters over a 14 month period of time. The respondent in Farnham had suffered a prior discipline of 30 days actual suspension.
Considering the within case and 02-O-11346 as one matter, Respondent has. four client matters with misconduct occurring over a period of approximately 3 ½ years. Respondent also has three prior disciplines: two of 30 days actual suspension and one of 60 days actual suspension. Based upon the number of acts of misconduct, period of time over which the misconduct occurred and the prior record of discipline, the parties submit that a 12 month actual suspension in this matter is consistent with Farnham and the Standards For Attorney Sanctions For Professional Misconduct.
The patties further submit that the intent and goals of Standards 1.3 and 1.7(a) are met by the imposition of a 12 month actual suspension when Respondent’s January 2004 discipline matter and the within matter are considered as a single period of misconduct involving four client matters.
AGGRAVATING CIRCUMSTANCE: RESPONDENT’S RECORD OF PRIOR DISCIPLINE
1.) Case number 02-O-11346
Effective February 11, 2004
Violations: RPC 3-110(A), RPC 3-700(A)(2) and RPC 3-700(D)(1), B&P 6068(m)
Discipline: Six months actual suspension, three years stayed suspension
2.) Case number 96-O-07376
Effective October 22, 2000
Violations: RPC 3-110(A), RPC 4-200 and B&P 6103
Discipline: 60 days actual suspension and until restitution is paid, two years stayed suspension
3.) Case number 95-O-11810
Effective November 14, 1998
Violations: B&P 6068(c) & (d)
Discipline: 30 days actual suspension, 18 months stayed suspension
4.) Case number 93-O-10364
Effective August 12, 1995
Violations: RPC 4-100(A), 4-100(B) and B&P 6068(o)
Discipline: 30 days actual suspension, 12 months stayed suspension
SIGNATURE OF THE PARTIES
Case Number(s): 03-O-00782-RAP
In the Matter of: Timothy Lee McCandless
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: Timothy Lee McCandless
Date: November 16, 2005
Respondent’s Counsel: David A. Clare
Date: November 21, 2005
Deputy Trial Counsel: Kevin B. Taylor
Date: November 22, 2005
Case Number(s): 03-O-00782-RAP
In the Matter of: Timothy Lee McCandless
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.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
Page 6, F(3) – Delete Box Check
Page 6. F(2) – Check Box.
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 A. Platel
Date: December 1, 2006
[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 December 6, 2005, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
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:
DAVID ALAN CLARE
4675 MACARTHUR CT #1250
NEWPORT BEACH, CA 92660
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
KEVIN TAYLOR, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 6, 2005.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court