Case Number(s): 07-O-11100
In the Matter of: Kay Del Carmen Holley, Bar # 87549, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Maria J. Oropeza, Bar #182660,
Counsel for Respondent: Ephraim Margolin, Bar # 32582,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
Filed: February 9, 2010.
<<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 October 23, 1979.
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 11pages, 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 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.
IN THE MATTER OF: Kay D. Holley, State Bar No. 87549
STATE BAR COURT CASE NUMBER: 07-O-11100
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts arc true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Statement of Facts: Count One (Case No. 07-0-I 1100)
1. Kay D. Holley (respondent) was admitted to the practice of law in the State of California on October 23, 1979, and was a member at all times relevant to these charges and is currently a member of the State Bar of California.
2. Respondent willfiflly violated Business and Professions Code § 6068(m) by failing to respond promptly to reasonable status inquiries of a client in a matter in which respondent trod agreed to provide legal services as follows:
3. On March 25, 1999, a fire occurred at the Chevron refinery in Richmond, California.
4. At the time of the fire, Maurice Barrow was incarcerated at the West County Detention Facility, which is in dose proximity to the Chevron refinery.
5. On May 5, 1999, one of the inmates at the detention facility passed out respondent’s fee agreements to other inmates, including Barrow.
6. On May 5, 1999, Barrow sent respondent the executed fee agreement and a completed questionnaire regarding his potential damages.
7. On May 6, 1999, Barrow sent respondent a letter requesting that respondent confirm that she received the completed questionnaire.
8. Soon after May 6, 1999, respondent received Barrow’s letter, but failed to respond to it and failed to confirm to Barrow that she received the completed questionnaire.
9. On May 16, 1999, Barrow wrote respondent a letter requesting that respondent provide him with a status update regarding her receipt of the questionnaire.
10. Soon after May 16, 1999, respondent received the letter, but failed to respond to it and fated to confirm to Barrow that she had received the completed questionnaire.
11. On March 27, 2000, respondent fried a lawsuit on behalf of 13,476 plaintiffs who suffered damages as a result of the fire.
12. On June 6, 2000, the cases involving the fire were consolidated into the Judicial Council Coordinated Proceedings Chevron Fire Cases, CJC-00-4102.
13. In September 2000, Barrow telephoned respondent several times to obtain a status update on his matter.
14. On October 2, 2000, Barrow wrote respondent a letter requesting that respondent provide him with a status update regarding the settlement of his case.
15. Soon after October 2, 2000, respondent received the letter, but failed to respond to it and failed to provide Barrow with a status update on his matter.
16. On November 11, 2000, Barrow sent respondent a letter informing respondent that he had written respondent letters, but that she had failed to respond to the letters. The letter also requested that respondent provide him with a status update regarding the settlement of his case and provide him with an accounting if the ease settled.
17. Soon after November 11, 2000, respondent received the letter, but failed to respond to it and failed to provide Barrow with a status update.
18. On February 26, 2001, Barrow wrote respondent a letter indicating that he had written respondent several letters, but she failed to respond to them. Barrow also requested a status update regarding the settlement of his matter.
19. Soon after February 26, 2001, respondent received Barrow’s letter, but failed to respond to it and failed to provide Barrow with a status update on this matter.
20. On March 12, 2001, Barrow wrote respondent letter complaining that respondent had not returned his telephone calls and had not responded to his letters. Barrow requested that respondent immediately provide him with a stares update.
21. Soon after March 12, 2001, respondent received Barrow’s letter but failed to respond to it and failed to provide Barrow with a status update on his matter.
22. On July 30, 2001, respondent sent out a letter to all incarcerated clients requesting that they fill out an enclosed questionnaire. The letter apologized for respondent’s failure to answer individual letters from her incarcerated clients and provided them with a brief status of the case.
23. On August 6, 2001, Barrow sent respondent a letter inquiring why respondent was asking him to complete another questionnaire. Barrow also inquired whether respondent received the questionnaire he completed in May 1999.
24. Soon after August 6, 2001, respondent received the letter, but failed to respond to it and failed to inform Barrow whether she had received the May 1999 questionnaire.
25. Between June 2005 and April 2006, Barrow’s sister, Loretta Barrow, attempted to reach respondent by telephone to determine the status of Barrow’s case.
26. Ms. Barrow was unable to reach respondent by telephone because respondent did not allow clients to leave messages. Instead, the recorded telephone message indicated that respondent was in her Richmond office very limited hours, which varied week by week, and requested that the clients stop by the office if they desired to speak with respondent regarding their matters.
27. In April 2006, Ms. Barrows wrote respondent a letter indicating that she was having difficulty reaching respondent because respondent failed to reply to letters and failed to answer the telephone and failed to accept telephone messages.
28. On April 23, 2006, respondent’s employee wrote a letter to Ms. Barrows stating that if clients call during office hours, staff answers the telephone. However, it informed Ms. Barrows that she needed to check the recorded message week by week, since the office hours varied week by week. It also stated that generally, the office was open on Mondays from 9-12 and 1:30-4:30.
29. Respondent failed to respond to Barrow’s letters of May 6, 1999, May 16, 1999, October 2, 2000, November 11, 2000, February 26, 2001, March 12, 2001, and August 6, 2001 requesting a status update on his hatter.
30. Respondent failed to respond to Barrow’s telephone messages in September 2000 requesting that respondent provide him with a status update on his matter.
Conclusions of Law: Count One (Case No. 07-O-11100)
31. By failing to respond promptly to Barrow’s letters and telephone messages requesting a status update on his matter, respondent failed to respond to reasonable status inquiries of a client in a matter in which respondent had agreed to provide legal services, a willful violation of Business and Professions Code §6068(m).
Statement of Facts: Count Two (Case No. 07-O-11100)
32. Respondent willfully violated Business and Professions Code § 60680) by failing to comply with the requirements of Business and Professions Code §6002.1, which requires a member of the State Bar to maintain on the Official membership records of the State Bar, the member’s current office address and telephone number, or if no office is maintained, the address to be used for State Bar purposes or purposes of the agency charged with attorney discipline, as follows:
33. On September 9, 2005, respondent changed her official membership records address to 711 Van Ness Avenue #440, San Francisco, CA 94102.
34. On October 200’6, respondent relocated her office at 711 Van Ness Avenue to an office in Richmond, California.
35. Thereafter, respondent no longer regularly reviewed the mail addressed to the Van Ness Avenue Address.
36. On December 1, 2006, the State Bar opened an investigation with the assigned case number of 07-O-11100.
37. On January 22, 2007 and February 28, 2007, State Bar Complaint Analyst Karen Illich wrote to respondent regarding respondent’s conduct in this matter by placing the letter in a sealed envelope correctly addressed to respondent at her address as maintained by the State Bar in accordance with Business and Professions Code section 6002.1. The letter was properly mailed by first class mail, postage prepaid, by deposition for collection by the United States Postal Service in the ordinary course of business on or about the date on the letter.
38. Thereafter, respondent failed to receive the January 22, 2007 and February 28, 2007 letters because respondent failed to review the mail sent to 711 Van Ness Avenue.
39. On March 28, 2007 and April 13, 2007, State Bar investigator Dolores Ziegler wrote to respondent regarding respondent’s conduct in this matter by placing the letter in a sealed envelope correctly addressed to respondent at her address as maintained by the State Bar in accordance with Business & Professions Code section 5002.1. The letter was properly mailed by first class mail, postage prepaid, by depositing for .collection by the United States Postal-Service in the ordinary course of business on or about the date of the letter.
40. Thereafter, respondent failed to receive the March 28, 2007 and April 13, 2007 letters because respondent failed to review the mail sent to 711 Van Ness Avenue.
41. On April 25, 2007, Ziegler was able to reach respondent by telephone. During the telephone conversation, respondent stated that she had not been to her San Francisco office since October 2005 and had not seen the letters Ziegler sent respondent. Respondent stated that she would have to look through her mail from 711 Van Ness in order to locate the letters.
42. On April 26, 2007, respondent sent Ziegler a letter indicating that she would change her official membership records address to an address at which she regularly reviewed the mail.
43. Thereafter, respondent failed to change her official membership records address.
44. Respondent failed to maintain a current office address at which respondent received State Bar mail by failing to change her official membership records address when respondent relocated her office from Van Ness to Richmond.
Conclusions of Law: Count Two (Case No. 07-0-11100)
45. By failing to maintain a current address at which respondent received State Bar marl, respondent failed to maintain on the official membership records of the State Bar her current office address, a willful violation of Business and Professions Code § 6068(j).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(6), was December 1, 2009.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of December I, 2009, the prosecution costs in this matter are $$2,296.00. 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.
In Re Ronald Robert Silverton (2005) Supreme Court Order S 123042, the Supreme Court stated that the standards are entitled to great weight and that the State Bar Court should follow the guidance of the Standards for Attorney Sanctions whenever possible (Supra. Slip opinion pg. 14).
Standard 2.4)(b) states in pertinent part culpability of a member of wilfully failing to perform services in an individual matter or matters demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reprovaI or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.6 states in pertinent part 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 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.
Case Law Relevant to Respondent’s Misconduct
In the Matter of Nees (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 459, 465-466 the attorney abandoned an incarcerated client by failing to competently perform, failing to respond to the client’s status inquiries for approximately three years, failing to return the client’s file, failing to return unearned fees, as well as failing to cooperate with the State Bar. The discipline imposed was six months and until restitution was paid, Nees had no prior record of discipline.
In the Matter of Valinoti(Review Dept. 2002) 4 Cal State Bar Ct. Rptr. 498, by maintaining a post office box as his State Bar address of record, respondent violated statute requiring attorneys to maintain, on the State Bar’s official membership records, their current office addresses and telephone numbers. It is only when an attorney does not have offices that he is permitted to maintain some other address and telephone number as his official State Bar address. In addition to multiple State Bar administrative and investigative purposes, purpose of the statute and State Bar roles and regulations requiring attorneys to maintain their current office addresses and telephone numbers on State Bar’s official membership records is to establish a bar wide database of every attorney’s office address and telephone number from which clients may locate their attorneys should they lose contact with them.
In the Matter of Petilla (Review Dept. 2001) 4 Cal. State Bar Ct. Rptr. 231, the Review Department imposed a sixty-day actual suspension. The Review Department found that unless no office is maintained every attorney has a statutory duty to maintain his or her current office address on State Bar’s official membership records. Petilla violated this duty by maintaining his home address on the State Bar’s official membership records instead of maintaining his office address. Petilla had an office but only listed his home address as his official membership records address. The Review Department imposed a sixty days actual suspension, Petilla had also been found culpable of other violations of the Rules of Professional Conduct.
MITIGATING CIRCUMSTANCES.
Respondent has no prior history of discipline over many years of practice.
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): 07-O-11100
In the Matter of: Kay Del Carmen Holley
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: Kay Del Carmen Holley
Date: January 12, 2010
Respondent’s Counsel: Vicki H. Young c/o Ephraim Margolin
Date: January 15, 2010
Deputy Trial Counsel: Maria J. Oropeza
Date: January 20, 2010
Case Number(s): 07-O-11100
In the Matter of: Kay Del Carmen Holley
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: Pat E. McElroy
Date: February 9, 2010
[Rules Proc. of State Bar; Rule 5.27(B); 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 February 9, 2010, 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:
EPHRAIM MARGOLIN
LAW OFFICE OF EPHRAIM MARGOLIN
240 STOCKTON STREET, 4TH FL.
SAN FRANCISCO, CA 94108-5318
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Maria J. Oropeza, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on February 9, 2010.
Signed by:
George Hue
Case Administrator
State Bar Court