Case Number(s): 04-O-15336-RMT
In the Matter of: Thomas Kenneth Garcia, Bar # 68919, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eric H. Hsu, Bar # 213039,
Counsel for Respondent: John W. Nelson, Bar # 73958,
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: March 8, 2006.
<<not>> 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 June 25, 1976.
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 14 pages, not including the order. (The original signature of the parties appear on two (2) separate pages, both identified as page “12”.)
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. Costs are added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. Case ineligible for costs (private reproval).
<<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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
Case Number(s): 04-O-15336
In the Matter of: Thomas Kenneth Garcia
<<not>> checked. a. Within days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s
checked. b. Within days/ 12 months/ years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than 3 hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Other:
IN THE MATTER OF: Thomas Kenneth Garcia, State Bar No.
STATE BAR COURT CASE NUMBER: 04-O-15336-RMT
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violating the specified rule of the California Rules of Professional Conduct.
I. Facts.
1. Respondent THOMAS KENNETH GARCIA ("Respondent") was admitted to the practice of law in the State of California on June 25, 1976, 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 September 14, 2000, Shirley A. Wentworth ("Wentworth") employed Respondent to assist her with matters concerning her deceased husband’s estate.
3. Although no written fee agreement was executed by Wentworth and Respondent for this employment, Respondent was to assist Wentworth with her donating two (2) parcels of real property which were in the decedent’s name, to St. Juliana Church in Fullerton, California ("St. Juliana Church"). Both parcels were located in California: one parcel was located in the County of Riverside (Assessor’s Parcel Number 375124017, "the Riverside County parcel"); the other was located in the County of Kern (Assessor’s Parcel Number 352-191-01-00-2, "the Kern County parcel").
4. To transfer title of the parcels from the decedent’s name to Wentworth, Respondent submitted for filing with the Orange County Superior Court an "Inventory and Appraisal" and an "Affidavit re Real Property of Small Value." Both documents were filed on December 18, 2000, and title was transferred to Wentworth on that date.
5. Respondent contacted St. Juliana Church and was referred to the Diocese of Orange County regarding the donation. Respondent was informed by the Diocese of Orange County that it was not interested in Wentworth’s donation. Respondent communicated to Wentworth that her donation was declined by the Diocese of Orange County.
6. On or about December 27, 2000, at Wentworth’s request, Respondent contacted the Diocese of San Bernardino regarding the donation. The Diocese of San Bernardino also declined the donation. Respondent communicated that information to Wentworth.
7. Subsequently, Wentworth informed Respondent that she decided to give the Riverside County parcel to her son-in-law and that she would handle that transfer on her own. Thereafter, Respondent was only to handle the donation of the Kern County parcel.
8. On or about December 27, 2000, with Wentworth’s authorization, Respondent wrote the Diocese of Fresno regarding the Kern County parcel. Respondent enclosed with his December 27, 2000 letter a "Grant Deed" executed by Wentworth, conveying title of the Kern County parcel to the Diocese of Fresno.
9. Respondent did not provide to the Diocese of Fresno a copy of the Affidavit re Real Property of Small Value filed on December 18, 2000.
10. By letter dated April 11,2001, the Diocese of Fresno confirmed its acceptance of the donation, by writing Wentworth to thank her for donating the Kern County parcel.
11. By letter dated April 15,2001, the Kern County Assessor-Recorder informed the Diocese of Fresno that the Assessor could not change title from Wentworth to the Diocese of Fresno, because the title was still vested in the name of the decedent. To change title, the Assessor needed proof showing that the Kern County parcel was transferred to Wentworth. The Affidavit re Real Property of Small Value would provide that information.
12. Respondent never advised Wentworth that she needed to provide the Affidavit re Real Property of Small Value to the Diocese of Fresno, nor did he provide that Affidavit re Real Property of Small Value to the Diocese of Fresno, in order to complete the donation of the Kern County parcel from Wentworth to the Diocese of Fresno. Respondent ceased work.
13. Respondent never informed Wentworth that he was ceasing work on her donating the Kern County parcel or that she should seek new counsel.
II. Conclusion of Law.
By ceasing representation of Wentworth without providing the Affidavit re Real Property of Small Value to the Diocese of Fresno, which was needed to transfer title of the Kern County parcel from Wentworth to the Diocese of Fresno, or advising Wentworth to provide the Affidavit re Real Property of Small Value to the Diocese of Fresno, Respondent failed to take reasonable steps upon termination of employment to avoid reasonably foreseeable prejudice to the fights of Wentworth and the Diocese of Fresno, in willful violation of rule 3-700(A)(2) of the Rules of Professional Conduct.
WAIVERS.
By this stipulation, the parties hereby waive any variance between the Notice of Disciplinary Charges that was filed on September 7, 2005, and the findings of fact and/or conclusions of law contained in this Stipulation.
Additionally, the parties hereby waive the issuance of an amended Notice of Disciplinary Charges and waive the fight to have a formal hearing on any charge not included in the current Notice of Disciplinary Charges.
DISMISSALS.
The parties respectfully request this court to dismiss the following alleged violations, in the interest of justice:
Case Number: 04-O-15336, Count: Two, Alleged Violation: and Professions Code section 6068, subdivision (m); and
Case Number: 04-O-15336, Count: Three, Alleged Violation: Three Business and Professions Code section 6068, subdivision (i).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A(7), was February 2, 2006.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.7(a) provides that, Where a member has a record of one prior imposition of discipline, the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding, unless the prior discipline imposed was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust.
Standard 2.10 provides that a violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension, according to the gravity of the offense or harm to any victim, with due regard to the purposes set forth in standard 1.3.
In the Matter of Hanson (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 703. The Review Department recommended public reproval with condition for Hanson’s misconduct in a single client matter involving the failure to return an unearned fee and improper withdrawal from representation. No significant weight in aggravation was given to Hanson’s prior record of a private reproval imposed some 19 years ago. Although the client was harmed by the delay in refund, no aggravation was found because the harm was not significant.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-15336-RMT
In the Matter of: Thomas Kenneth Garcia
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: Thomas Kenneth Garcia
Date: February 23, 2006
Respondent’s Counsel: John W. Nelson
Date: February 21, 2006
Deputy Trial Counsel: Eric H. Hsu
Date: February 27, 2006
Case Number(s): 04-O-15336-RMT
In the Matter of: Thomas Kenneth Garcia
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:
checked. The stipulated facts and disposition are APPROVED AND THE REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department are vacated.
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 125(b), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Robert M. Talcott
Date: March 6, 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 March 8, 2006, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING PUBLIC REPROVAL
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:
John William Nelson
Weisenberg & Nelson
12399 Lewis St #103
Garden Grove, CA 92840-4643
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERIC H. HSU, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 8, 2006.
Signed by:
Tammy R. Cleaver
Case Administrator
State Bar Court