Case Number(s): 06-O-12390
In the Matter of: Matthew Vincent Brady, Bar # 65273, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Bar # 214209
Counsel for Respondent: Bar #
Submitted to: Settlement Judge
Filed: March 1, 2007
<<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 December 15, 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 8 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. costs 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 to be paid in equal amounts for the following membership years: (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.
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.
FACTS AND CONCLUSIONS OF LAW
Facts
1. On August 14, 2004, Jack Kellum ("Kellum") employed respondent to provide legal services with respect to a failed purchase of a home. The fee agreement stated that respondent would represent Kellum on an hourly basis, with a stated hourly rate of $275.00, and required an advanced attorneys fee of $550.00, which Kellum paid. Soon after signing the fee agreement, Kellum requested that respondent handle the matter on a contingency basis, however, respondent declined to do so.
2. The parties had a difference of opinion with respect to the scope of representation. Kellum believed that respondent would file a complaint against the seller of the house he attempted to purchase for breach of contract for the advanced fee of $550.00. Respondent claims that the representation only included review of the matter and
consultation with Kellum.
3. On October 5 and 17, December 16, 2004 and February 10, 2005, Kellum wrote respondent letters requesting the status of his case. Respondent received the letters. Respondent did not respond to Kellum’s letters.
4. It was not until February 21, 2005, that respondent responded to Kellum’s status inquiries. In a letter to Kellum dated February 21, 2005, respondent advised that he did not agree to handle the matter on a contingency basis and would take no further any action without additional advanced attorneys fees. Kellum denies receiving respondent’s February 21, 2005 letter.
5. On January 8, 2006, Kellum again wrote to respondent to request the status of his case. Respondent received the letter, but did not respond to it.
6. On January 9, 2006, Kellum filed a State Bar complaint against respondent. Sometime after January 2006, Kellum filed a small claim action against respondent seeking $750.00 in damages arising from the representation.
7. On May 30, 2006, a State Bar investigator wrote a letter to respondent regarding Kellum’s complaint. Respondent received this letter and thus, was aware that Kellum filed a complaint against him. Thereafter, respondent replied to the request of the State Bar, providing the requested documentation pertaining to the Kellum matter.
8. After becoming aware that Kellum had filed a State Bar complaint against him, respondent discussed settling the small claims action with Kellum. Respondent prepared a draft settlement agreement wherein he would pay Kellum the sum Kellum requested in his complaint. The settlement agreement was drafted by respondent and contained language that Kellum would notify the State Bar that the case was resolved. As part of the agreement, respondent attached a letter to the settlement agreement that he drafted and addressed to the State Bar from Kellum. The letter stated: "This is to advise you that I have settled my lawsuit with [respondent]. I am thus withdrawing my complaint." Although Kellum signed the letter, respondent never submitted the letter to the State Bar.
Conclusions of Law
By not responding to Kellum’s letters until February 2005, respondent failed to respond promptly to reasonable status inquiries of a client in willful violation of Business and Professions Code section 6068(m). By negotiating a settlement whereby Kellum was required to withdraw his State Bar complaint, respondent sought an agreement that a plaintiff would withdraw a disciplinary complaint in wilful violation of Business and Professions Code section 6090.5(a)(2).
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 November 15, 2006, 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 the filing of a Notice of Disciplinary Charges and 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 two, paragraph A (7) was January 19, 2007.
STATE BAR ETHICS SCHOOL
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
SUPPORTING AUTHORITY
Standard 2.6(a) suggests that violation 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 set forth in standard 1.3. Standard 2.10 suggests that violation of any provision of the Business and Professions Code not specified in the standards shall result in reproval or suspension according to the gravity of the offense or harm, if any, to the victim, with due regard to the purpose of imposing discipline set forth in standard 1.3.
Based on the length of respondent’s of discipline-free practice and the lack of aggravating circumstances, a public reproval is the appropriate level of discipline.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(i). Respondent has been in practice since 1975. He has no prior record of discipline.
Standard 1.2(e)(ii). Respondent represents that he acted in good faith since he claims to have been unaware that it was a violation to negotiate a settlement whereby Kellum was required to withdraw his State Bar complaint.
SIGNATURE OF THE PARTIES
Case Number(s): 06-O-12390
In the Matter of: Matthew Vincent Brady
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: Matthew Vincent Brady
Date: 2/6/07
Respondent’s Counsel: N/A
Date:
Deputy Trial Counsel: Susan I. Kagan
Date: 2/26/07
Case Number(s): 06-O-12390
In the Matter of: Matthew Vincent Brady
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: George Scott
Date: 3/1/07
[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 San Francisco, on March 1, 2007, 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 San Francisco, California, addressed as follows:
MATTHEW V BRADY
2339 GOLD MEADOW WAY #230
GOLD RIVER CA 95670-6328
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN KAGAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on March 1, 2007.
Signed by:
George Hue
Case Administrator
State Bar Court