Case Number(s): 06-O-13115; 07-O-11508; 07-O-11886; 07-O-13321
In the Matter of: Daniel M. Davis, A Member of the State Bar of California, (Respondent), Bar # 65589
Counsel For The State Bar: Robin B. Brune, Bar # 149481
Counsel for Respondent: Bar #
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
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 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 284, Rules of Procedure.
<<not>>checked. costs to be paid in equal amounts prior to February 1 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.
See attachment.
Attachment language begins here (if any):
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW & DISPOSITION
IN THE MATTER OF: Daniel M. Davis
CASE NUMBERS: 06-0-13115; 07-O-11508; 07-0-11886; 07-0-13321
FACTS & CONCLUSIONS OF LAW
1. Case Number 06-O-13115 (Richard Gutzke)
Statement of Facts
In April 2004, Richard Gutzke hired respondent to represent him in his ongoing child support and custody matters. Carole Gutzke, Richard Gutzke’s mother, paid respondent the sum of $2,500 by way of check on April 4, 2004. The parties did not execute a written fee agreement. Respondent did not get a written waiver from Richard Gutzke for his mother to pay for his legal representation. Carole Gutzke, on behalf of Richard Gutzke, wrote to respondent on May 8, 2004, and again on May 30, 2004, and again on July 6, 2004 and July 22, 2004 asking questions about various aspects of the representation, such as the amount of child support, complaints regarding back child support, and requesting court records and other information. In the July 22, 2004 letter, Carole Gutzke complained that respondent has not sent a bill for her review (referring to his legal services). She also stated" You’re fired!". On or about July 25, 2004, respondent wrote directly to Richard Gutzke, addressing several of the concerns raised by Carol Gutzke. In addition, respondent advised Richard Gutzke, that he, Richard Gutzke, and not Carol Gutzke, was the client, and that respondent would thereafter only discuss the case with Richard Gutzke, and not Carol Gutzke.
In or about January 30, 2005, Richard Gutzke telephoned respondent. In response, on or about February 5, 2005, respondent wrote to Richard Gutzke, again advising that he, not Carole Gutzke, is respondent’s client. The parties terminated their relationship and respondent, in the letter, enclosed a Substitution of Attorney.
Both Carole and/or Richard Gutzke requested that respondent provide monthly invoice statements regarding an ongoing accounting of the attorney’s fees.
Respondent failed, at any time, to provide the Gutzke’s with an accounting of his fees.
Conclusions of Law
1. By failing to obtain a written waiver whereby Richard Gutzke agreed that Carole Gutzke could pay his legal fee, respondent failed to obtain the client’s informed written consent to receive compensation from someone other than the client, in willful violation of Rules of Professional Conduct, rule 3-310(F).
The word wilfully implies simply a purpose or willingness to commit the act or make the omission - it does not require any intent to violate the law or to injure another, or to acquire any advantage. Only a general purpose or willingness to commit the act or permit the omission is necessary. Durbin v. State Bar (1979) 23 Cal.3d 461.
2. By failing to provide an accounting of his fees in the Gutzke matter to Richard Gutzke, respondent failed to account for his fees, in willful violation of Rules of Professional Conduct, rule 4-100(B)(3).
2. Case Number 07-0-11508 (Reyna Gunter)
Statement of Facts
In 2007, respondent represented Mark D. Gunter (hereinafter "Mr. Gunter") In re the Marriage of Reyna Gunter v. Mark D. Gunter, Case Number 06FL08111, filed in Sacramento County Superior Court. Respondent filed a Responsive Declaration to Order Show Cause dated March 6, 2007, signed under penalty of perjury with the purported signature of Mr. Gunter. In fact, respondent signed in his own handwriting, "Mark Gunter." Respondent did not sign his own name, as representative for Mr. Gunter, nor did he identify when he signed "Mark Gunter" that he was signing for Mr. Gunter as Mr. Gunter’s counsel. Reyna Gunter brought this matter to the attention of the State Bar. Mr. Gunter confirmed that respondent had his authority to sign pleadings on his behalf.
Cal. Code Civ. Proc. § 446 (2006) which requires the verification of all pleadings states, in relevant part, as follows:
Every pleading shall be subscribed by the party or his or her attorney.
In all cases of a verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true; and where a pleading is verified, it shall be by the affidavit of a party, unless the parties are absent from the county where the attorney has his or her office, or from some cause unable to verify it, or the facts are within the knowledge of his or her attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person except one of the parties, he or she shall set forth in the affidavit the reasons why it is not made by one of the parties.
Conclusions of Law
1. By signing Mr. Gunter’s name, without identifying that he, himself was signing on behalf of Mr. Gunter, respondent failed to properly notify the court that he was signing on behalf of Mr. Gunter, and failed to set forth the reasons why it was not signed by Mr. Gunter, and thereby violated the law, in violation of Business & Professions Code § 6068(a), for failure to abide by Cal. Code Civ. Proc. § 446.
3. Case Number 07-0-11886 (Jose Ramirez)
Statement of Facts
In May 2006, Veronica Gonzalez (hereinafter "Gonzalez") retained respondent on behalf of her son, Jose Juan Ramirez (hereinafter "Ramirez") to bring a petition for writ of habeas corpus on behalf Ramirez. Gonzalez paid respondent $200 on May 1, 2006 and thereafter paid $6,600 towards the total fee of $7,500. Gonzalez signed a written retainer agreement with respondent which stated that the written agreement was between respondent and Gonzalez, and the services were for Ramirez. The written retainer agreement also stated that the "client’s mother" (referring to Gonzalez) has retained respondent for both herself and Ramirez in a dissolution of marriage and visitation matter. In fact, Ramirez was a client, and respondent did not obtain Ramirez’s informed written consent for receiving compensation from Gonzalez.
On February 24, 2006, respondent wrote to Ramirez stating, "as you know, your mom hired me to represent you on your appeal." Respondent requested additional information from Ramirez.
Thereafter, respondent failed to communicate with Ramirez. On June 13, 2006, respondent filed an application for writ of habeas corpus on behalf of Ramirez. On August 24, 2006, the Attorney General filed a response to the petition. Respondent failed to advise Ramirez that he had filed a petition on Ramirez’s behalf. Respondent failed to provide Ramirez with a copy of the petition he filed. Respondent failed to advise Ramirez that the Attorney General had responded to the petition, and he failed to provide Ramirez with a copy of the response.
Ramirez wrote from prison to respondent on August 21, 2006 and again on January 23, 2007, inquiring about his case and requesting copies of all pleadings. Respondent sent one response on February 8, 2007. Respondent did not send Ramirez a copy of the pleadings in his case. As of the date of this stipulation, there has been no additional action taken on the case by the court. The last action on the case was when the Attorney General filed its brief on August 24, 2006.
Conclusions of Law
1. By failing to obtain a written waiver whereby Ramirez agreed that Gonzalez could pay his legal fee, respondent failed to obtain the client’s informed written consent to receive compensation from someone other than the client, in willful violation of Rules of Professional Conduct, rule 3-310(F).
2. By failing to advise Ramirez that he had filed a petition for habeas corpus, and that he had received a response, and by failing to respond to Ramirez’s written request of August 21, 2006 and January 23, 2007, for copies of his pleadings, respondent failed to keep his client reasonably informed in a matter in which he agreed to perform legal services and respondent failed to respond to the reasonable status inquiries of his client, all in violation of Business & Professions Code § 6068(m).
4. Case Number 07-0-13321 (Romel V. White)
Statement of Facts
In May 2000, client Romel V. White (hereinafter "White") hired respondent to represent him in his pending criminal matters, first, to argue for a new trial, and when that was unsuccessful, to pursue his appeal, in the matter of People v. Romel White et. al., Case Number C035663 (Superior Court Number 96F07937) filed in the Court of Appeal, Third Appellate District (hereinafter "Court"). White had been convicted of 30 counts of committing lewd acts by force or fear on his nephew, in violation of Penal Code § 288 (b). White’s parents, Joan Mouton & Willie White, were also convicted at the same trial of related charges. The White family paid respondent a $10,000 fiat tee for the representation.
On September 15, 2000, respondent substituted in as White’s counsel in the appellate matter. On January 11,2001, the Court issued an order, ordering respondent to submit his opening brief on behalf of White no later than February 13,2001. Respondent received this order and all subsequent orders of the Court in this matter. Respondent requested and obtained four extensions of time to file his opening brief. The last extension dated October 15,2001, gave respondent until November 14, 2001 to file his brief. The Court stated that no further requests would be granted.
Respondent failed to meet the November 14, 2001 deadline. On November 20, 2001, the court clerk notified respondent that the matter would be dismissed if the brief was not received by December 20, 2001. Respondent filed his opening brief on behalf of White on December 20, 2001.
On May 15, 2002, the Attorney General filed a responsive brief. On May 15, 2002, respondent requested and was granted the opportunity to file an (optional) reply brief. The Court ordered that respondent’s reply brief be filed no later than June 4, 2002. Respondent requested and obtained two extensions to file his reply brief. The last extension dated June 24, 2002, gave respondent until July 15, 2002 to file his reply brief. On July 15, 2002, respondent requested additional time to submit a reply brief. The Court denied his request. Respondent did not submit a reply brief.
On July 26, 2002, the Court sent a letter directly to client White, in response to White’s request regarding the status of his case. On August 12, 2003, respondent filed some additional cites for oral argument. On October 24, 2003, respondent gave oral argument on behalf of White. On December 4, 2003, the Court ordered respondent to submit a supplemental brief on behalf of White regarding specific, enumerated questions by the Court. The Court ordered respondent’s brief due no later than January 5, 2004. Respondent requested and obtained, an extension to March 15, 2004 to file his supplemental brief.
Respondent failed to submit a supplemental brief on behalf of White.
Respondent did net advise his client of his failure to file a reply brief or a supplemental brief. Respondent did not advise his client of the Court’s request for supplemental briefing.
On July 28, 2004, the Court denied White’s appeal.
Respondent did not advise White of the ruling on his appeal.
On September 7, 2004, respondent filed a Petition for Review with the California Supreme Court, on behalf of White.
On September 8, 2004, White wrote directly to the Court advising the Court that respondent did not inform him that his conviction was affirmed.
On September 14, 2004, the Court returned the letter to White.
On October 13, 2004, the Supreme Court denied review.
Conclusions of Law
1. By failing to file a reply brief and a supplemental brief on behalf of White, respondent failed to perform, in willful violation of Rules of Professional Conduct, rule 3-110(A).
2. By failing to advise his client of the Court’s orders for reply and supplemental briefs and the Court’s decision, respondent failed to keep his client reasonably informed in a matter in which he agreed to provide legal services, in willful violation of Business & Professions Code § 6068(m).
3. By failing to timely file his appellant’s opening brief and by failing to file his supplemental brief, respondent failed to abide by orders of the Court, in willful violation of Business & Professions Code § 6103.
PENDING PROCEEDINGS.
The disclosure date referred to on page one, paragraph A.(7), was December 11, 2008.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 3, 2008, the costs in this matter are $4,118. 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.
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct call for disbarment upon the third disciplinary offense unless there are compelling mitigating circumstances (Standard 1.7(b)). The Standards also call for successive discipline indicating that each discipline should be greater than the prior (Standard 1.7(a)). Willful failure to communicate or perform shall result in reproval or suspension (Standard 2.4(b)). Violation of Court orders and failures to communicate warrant disbarment or suspension (Standard 2.6(b) and (a)).
Case law also demonstrates that the abandonment of an incarcerated client merits a strong response. In respondent’s case, in White, respondent failed to contact the client, complete the appropriate pleadings and notify the client of the results of the appeal.
He did appear for oral argument and argued the case; and he subsequently filed a Petition for Review to the Supreme Court on behalf of the client.
There is no case law directly on point, involving failure to communicate and partial failure to perform on a criminal matter. Most of the case law addresses a complete abandonment of the criminal case, and ranges from stayed suspension up to actual suspension for two years for abandoning criminal appellate matters. Borre v. State Bar (1991) 52 Cal.3d 1047 (two year actual suspension for abandonment of an incarcerated client’s criminal appeal, fabricated exculpatory letter); Harris v. State Bar (1990) 51 Cal. 3d. 1082 (ninety day actual suspension for failure to perform over a four year period); In the matter of Nees (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 459 (six month actual suspension for abandoning a habeas corpus petition, failure to return file and failure to refund $7,000 in fees and failure to cooperate in State Bar investigation); In the matter of Thomas Riordan (Review Dept. 2007) 5 Cal. State Bar Ct Rptr. 41 (stayed suspension for abandonment of criminal appeal).
While respondent’s other violations might not be deemed to be serious, they must be considered in light of his extensive record of discipline. This will be respondent’s fifth disciplinary matter, and it involves four client matters.
AGGRAVATING CIRCUMSTANCES.
Standard 1.2(b)(i) prior record of discipline
Standard 1.2(b)(ii) multiple acts of wrongdoing
PRIOR DISCIPLINE.
Respondent has four incidents of prior discipline.
Respondent received an admonition in 1990.
Respondent received a public reproval in 1991 (90-0-12625) for violation of the Rules of Professional Conduct, rules 3-110(B), 3-200(B), 3-500, 3-700(D)(2) and violations of Business & Professions Code §§ 6068(a) and 6068(m).
Respondent received another public reproval in 1995 (93-O- 12950) for violations of Rules of Professional Conduct, rule 3-700(A)(2) and violations of Business & Professions Code § 6068(m).
Respondent received a stayed suspension in 2004 (02-0-12174) for failure to perform (rule not specified, presumably Rule 3-110(A)) and failure to communicate in violation of Business & Professions Code § 6068(m).
FACTS SUPPORTING AGGRAVATING CIRCUMSTANCES.
There are four client matters that are the subject of discipline in this case, representing multiple acts of wrongdoing.
MITIGATING CIRCUMSTANCES.
Standard 1.2(v) candor and cooperation
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
Respondent has been candid and cooperative in reaching a stipulation in this matter.
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.
SIGNATURE OF THE PARTIES
Case Number(s): 06-O-13115; 07-O-11508; 07-O-11886; 07-O-13321
In the Matter of: Daniel M. Davis
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: Daniel M. Davis
Date: 12/15/08
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Robin B. Brune
Date: 12/29/08
Case Number(s): 06-O-13115; 07-O-11508; 07-O-11886; 07-O-13321
In the Matter of: Daniel M. Davis
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 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.
<<not>> checked. All Hearing dates 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 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 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Lucy Armendariz
Date: January 13, 2009
[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 January 15, 2009, 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:
DANIEL MARTIN DAVIS
816 ALHAMBRA BLVD
SACRAMENTO, CA 95816 - 4413
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ROBIN BRUNE, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco , California, on January 15, 2009.
Signed by:
Laine Silber
Case Administrator
State Bar Court