Case Number(s): 09-O-10959
In the Matter of: Kenneth L. Kiddy, Bar # 85060, 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: State Bar Court Clerk’s Office San Francisco
Filed: February 10, 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 March 6, 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 10 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.
<<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.) 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 waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
FACTS AND CONCLUSIONS OF LAW
Facts
1. On October 13, 2008, respondent was hired by Maiyini Gaye ("Gaye") to draft and file a bankruptcy petition on her behalf ("bankruptcy matter"). On the same date, Gaye paid respondent advanced fees in the amount of $1,300 for the bankruptcy matter.
2. As of January 8, 2009, respondent drafted the bankruptcy petition on behalf of Gaye. On January 8, 2009, Gaye signed the bankruptcy petition at respondent’s office. Thereafter, respondent failed to file the bankruptcy petition on behalf of Gaye.
3. From January 12, 2009, through February 2009, Gaye repeatedly called the telephone number provided to her by respondent and left numerous messages for respondent inquiring whether respondent filed the bankruptcy petition. Respondent received the messages, but failed to respond to them and failed to advise Gaye whether the bankruptcy petition had been filed.
4. On February 5, 2009, Gaye sent a letter to respondent terminating his services and requesting a full refund. Soon thereafter, respondent received the letter, but failed to refund any portion of the $1,300 to Gaye.
5. Respondent never filed the bankruptcy petition on behalf of Gaye and never provided a copy of the bankruptcy petition to Gaye. Respondent did not perform any legal services of value for Gaye and did not earn the $1,300 advanced by Gaye.
6. It was not until January 2010, that respondent refunded the $1,300 to Gaye.
Conclusions of Law
1. By failing to file the bankruptcy petition after January 8, 2009, respondent intentionally, recklessly, and repeatedly failed to perform legal services with competence in willful violation of rule 3-110(A) of the Rules of Professional Conduct.
2. By failing to respond to Gaye’s numerous messages inquiring about the status of the bankruptcy petition, respondent failed to respond promptly to reasonable status inquiries of a client, in willful violation of section 6068(m) of the Business and Professions Code.
3. By not refunding the $1,300 paid by Gaye as advanced fees until January 2010, and only after the State Bar became involved in the matter, respondent willfully failed to promptly refund unearned fees in violation of rule 3-700(D)(2) of the Rules of Professional Conduct.
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A (7) was January 7, 2010.
STATE BAR ETHICS SCHOOL AND CLIENT TRUST ACCOUNTING SCHOOL
Because respondent has agreed to attend State Bar Ethics School and Trust Accounting School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School Client Trust Accounting School.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
AGGRAVATING CIRCUMSTANCES
There are no aggravating circumstances in this matter.
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(i). Respondent has been in practice since March 6, 1979. He has no prior record of discipline.
SUPPORTING AUTHORITY
Standard 2.4(b) requires reproval or suspension for a respondent who has wilfully failed to perform services in which he was retained.
Standard 2.6 requires that violations of Business and Professions Code sections 6068(m) 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 requires that a violation of any provision of the Rules of Professional Conduct not specified in the standards (e.g., rule 3-700(D)(2)) 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.
Generally, discipline for failing to perform ranges from reproval to suspension. (See In the Matter of Aguiluz (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 32 [one-year stayed suspension for abandonment in single client matter; no prior record of discipline]; Van Sloten v. State Bar (1989) 48 Cal.3d 921 [six-month stayed suspension for abandonment in single client matter; no prior record of discipline]; Harris v. State Bar (1990) 51 Cal. 3d 1082 [90-day actual suspension for abandonment in single client matter; no prior record of discipline].)
Based on the standards and case law, a one-year stayed suspension is the appropriate level of discipline in this matter.
Case Number(s): 09-O-10959
In the Matter of: Kenneth L. Kiddy A Member of the State Bar
a. Restitution
<<not>> checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee:
Principal Amount:
Interest Accrues From:
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. 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.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3.
The requirements
of this condition are in addition to those set forth in rule 4-100, Rules of
Professional Conduct.
checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
SIGNATURE OF THE PARTIES
Case Number(s): 09-O-10959
In the Matter of: Kenneth L. Kiddy
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: Kenneth L. Kiddy
Date: 1-19-10
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Susan I. Kagan
Date: 1/25/10
Case Number(s): 09-O-10959
In the Matter of: Kenneth L. Kiddy
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.
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: February 10, 2010
[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 February 10, 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:
KENNETH LEE KIDDY
WILSON & KIDDY
2522 GRAND CANAL BL, STE 11
STOCKTON, CA 95207
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN I. KAGAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on February 10, 2010.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court