State
Bar Court of California
Hearing
Department
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 09-O-12848
In the Matter of: David H. Loomis, Bar # 110940, A Member of
the State Bar of California, (Respondent).
Counsel For The State Bar: Kimberly G. Anderson The State
Bar of California
1149 S. Hill Street
Los Angeles, CA 90015
Bar # 150359
Counsel for Respondent: In Pro Per Respondent
David H. Loomis
2800 Montrose Ave. Apt. 74
La Crescenta, CA 91214
Bar # 110940
Submitted to: Settlement Judge
Filed: June 23, 2011 State Bar Court Clerk’s Office Los Angeles
<<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.
A. Parties' Acknowledgments:
1.
Respondent is a member of the State Bar
of California, admitted December 12, 1983.
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 9 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):
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checked. Until costs are paid in full, Respondent will remain actually
suspended from the practice of law unless relief is obtained per rule 5.130,
Rules of Procedure.
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Costs are to be paid in equal amounts prior to February 1 for the following
membership years: Costs to be paid in equal amounts prior to February 1 for the
following three billing cycles following the effective date of the Supreme Court
order. (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.
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checked. Costs are waived in part as set forth in a separate attachment
entitled "Partial Waiver of Costs".
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checked. Costs are entirely waived.
B.
Aggravating Circumstances [for definition, see
Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)].
Facts supporting aggravating circumstances are required.
<<not>> checked. (1) Prior record of discipline [see
standard 1.2(f)]
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(a) State Bar Court case
# of prior case
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(b) Date prior discipline
effective
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(c) Rules of
Professional Conduct/ State Bar Act violations:
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(d) Degree of prior
discipline
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(e) If Respondent has two
or more incidents of prior discipline, use space provided below.
<<not>> checked. (2) Dishonesty: Respondent's
misconduct was surrounded by or followed by bad faith, dishonesty, concealment,
overreaching or other violations of the State Bar Act or Rules of Professional
Conduct.
checked. (3) Trust Violation: Trust funds or property were
involved and Respondent refused or was unable to account to the client or
person who was the object of the misconduct for improper conduct toward said
funds or property.
<<not>> checked. (4) Harm: Respondent's misconduct
harmed significantly a client, the public or the administration of justice.
<<not>> checked. (5) Indifference: Respondent
demonstrated indifference toward rectification of or atonement for the
consequences of his or her misconduct.
<<not>> checked. (6) Lack of Cooperation: Respondent
displayed a lack of candor and cooperation to victims of his/her misconduct or
to the State Bar during disciplinary investigation or proceedings.
<<not>> checked. (7) Multiple/Pattern of Misconduct:
Respondent's current misconduct evidences multiple acts of wrongdoing or
demonstrates a pattern of misconduct.
<<not>> checked. (8) No aggravating circumstances are involved.
Additional aggravating circumstances:
C. Mitigating Circumstances [see standard 1.2(e)]. Facts
supporting mitigating circumstances are required.
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checked. (1) No Prior Discipline: Respondent has no
prior record of discipline over many years of practice coupled with present
misconduct which is not deemed serious.
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checked. (2) No Harm: Respondent did not harm the
client or person who was the object of the misconduct.
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checked. (3) Candor/Cooperation: Respondent displayed
spontaneous candor and cooperation with the victims of his/her misconduct and
to the State Bar during disciplinary investigation and proceedings.
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checked. (4) Remorse: Respondent promptly took
objective steps spontaneously demonstrating remorse and recognition of the
wrongdoing, which steps were designed to timely atone for any consequences of
his/her misconduct.
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checked. (5) Restitution: Respondent paid $ on in
restitution to without the threat or force of disciplinary, civil or criminal
proceedings.
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checked. (6) Delay: These disciplinary proceedings were
excessively delayed. The delay is not attributable to Respondent and the
delay prejudiced him/her.
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checked. (7) Good Faith: Respondent acted in good
faith.
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checked. (8) Emotional/Physical Difficulties: At the
time of the stipulated act or acts of professional misconduct Respondent
suffered extreme emotional difficulties or physical disabilities which expert
testimony would establish was directly responsible for the misconduct.
The difficulties or disabilities were not the product of any illegal conduct by
the member, such as illegal drug or substance abuse, and Respondent no longer
suffers from such difficulties or disabilities.
checked.
(9)
Severe Financial Stress: At the time of the misconduct, Respondent
suffered from severe financial stress which resulted from circumstances not
reasonably foreseeable or which were beyond his/her control and which were
directly responsible for the misconduct. See, Additional mitigating
circumstances on page 4 of this Stipulation.
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checked. (10) Family Problems: At the time of the misconduct, Respondent
suffered extreme difficulties in his/her personal life which were other than
emotional or physical in nature.
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checked. (11) Good Character: Respondent's good character is attested to
by a wide range of references in the legal and general communities who are
aware of the full extent of his/her misconduct.
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checked. (12) Rehabilitation: Considerable time has passed since the acts
of professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
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checked. (13) No mitigating circumstances are involved.
Additional
mitigating circumstances:
Although the misconduct in this
matter is serious, Respondent has no prior record of discipline since being
admitted to practice law in 1983.
Respondent’s misconduct was an isolated and aberrational incident. Although
Respondent acknowledges it was improper for him to withdraw the entrusted funds
in this case, he did so during a business dispute with du Plessis and Sequoia,
after he had been terminated, which caused him significant financial and
emotional distress. Respondent has been a member of the California bar for
approximately 28 years and has no prior record of discipline and no record of
discipline following the events in this case. (See, McKnight v. State Bar
(1991 ) 53 Cal.3d 1025, 1037-1038.)
D.
Discipline:
checked.
(1) Stayed
Suspension:
checked.
(a) Respondent must be suspended from the practice of law for a period of two
(2) years.
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checked. i. and until Respondent shows proof satisfactory to the State Bar
Court of rehabilitation and present fitness to practice and present learning
and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney
Sanctions for Professional Misconduct.
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following:
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checked. (b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on probation
for a period of three (3) years, which will commence upon the effective date of
the Supreme Court order in this matter. (See rule 9.18, California Rules
of Court.)
checked. (3) Actual Suspension:
checked.
(a) Respondent must be actually suspended from the practice of law in the State
of California for a period of one (1) year.
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checked. i. and until Respondent shows proof satisfactory to the State Bar Court
of rehabilitation and present fitness to practice and present learning and
ability in the law pursuant to standard 1.4(c)(ii), Standards for Attorney
Sanctions for Professional Misconduct
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
checked. iii. and until
Respondent does the following: pays restitution as set forth in the Other
Conditions listed in paragraph F. (5) of this Stipulation on page 6.
E. Additional Conditions of Probation:
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(1)
If Respondent is actually suspended for two years or more, he/she must remain
actually suspended until ** he/she proves to the State Bar Court his/her
rehabilitation, fitness to practice, and learning and ability in the general
law, pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for
Professional Misconduct.
checked.
(2)
During the probation period, Respondent must comply with the provisions of the
State Bar Act and Rules of Professional Conduct.
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(3)
Within ten (10) days of any change, Respondent must report to the Membership
Records Office of the State Bar and to the Office of Probation of the State Bar
of California ("Office of Probation"), all changes of information,
including current office address and telephone number, or other address for
State Bar purposes, as prescribed by section 6002.1 of the Business and
Professions Code.
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(4)
Within thirty (30) days from the effective date of discipline, Respondent must
contact the Office of Probation and schedule a meeting with Respondent's
assigned probation deputy to discuss these terms and conditions of probation.
Upon the direction of the Office of Probation, Respondent must meet with the
probation deputy either in-person or by telephone. During the period of
probation, Respondent must promptly meet with the probation deputy as directed
and upon request.
checked.
(5)
Respondent must submit written quarterly reports to the Office of Probation on
each January 10, April 10, July 10, and October 10 of the period of probation.
Under penalty of perjury, Respondent must state whether Respondent has complied
with the State Bar Act, the Rules of Professional Conduct, and all conditions
of probation during the preceding calendar quarter. Respondent must also state
whether there are any proceedings pending against him or her in the State Bar
Court and if so, the case number and current status of that proceeding. If the
first report would cover less than 30 days, that report must be submitted on
the next quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same
information, is due no earlier than twenty (20) days before the last day of the
period of probation and no later than the last day of probation.
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checked. (6) Respondent must be assigned a probation monitor. Respondent must
promptly review the terms and conditions of probation with the probation monitor
to establish a manner and schedule of compliance. During the period of
probation, Respondent must furnish to the monitor such reports as may be
requested, in addition to the quarterly reports required to be submitted to the
Office of Probation. Respondent must cooperate fully with the probation
monitor.
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(7)
Subject to assertion of applicable privileges, Respondent must answer fully,
promptly and truthfully any inquiries of the Office of Probation and any
probation monitor assigned under these conditions which are directed to
Respondent personally or in writing relating to whether Respondent is complying
or has complied with the probation conditions.
checked.
(8)
Within one (1) year of the effective date of the discipline herein, Respondent
must provide to the Office of Probation satisfactory proof of attendance at a
session of the Ethics School, and passage of the test given at the end of that
session.
No Ethics School recommended. Reason:
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checked. (9) Respondent must comply with all conditions of probation imposed in
the underlying criminal matter and must so declare under penalty of perjury in
conjunction with any quarterly report to be filed with the Office of Probation.
checked.
(10)
The following conditions are attached hereto and incorporated:
<<not>> checked. Substance
Abuse Conditions.
<<not>> checked. Law Office
Management Conditions.
<<not>> checked. Medical
Conditions.
<<not>> checked. Financial
Conditions.
F. Other Conditions Negotiated by the Parties:
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(1)
Multistate Professional Responsibility Examination: Respondent must
provide proof of passage of the Multistate Professional Responsibility Examination
("MPRE"), administered by the National Conference of Bar Examiners,
to the Office of Probation during the period of actual suspension or within one
year, whichever period is longer. Failure to pass the MPRE results in
actual suspension without further hearing until passage. But see rule 9.10(b),
California Rules of Court, and rule 5.162(A) & (E), Rules of Procedure.
<<not>> checked. No MPRE recommended. Reason:
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(2)
Rule 9.20, California Rules of Court: Respondent must comply with the
requirements of rule 9.20, California Rules of Court, and perform the acts
specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar
days, respectively, after the effective date of the Supreme Court's Order in
this matter.
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(3) Conditional Rule 9.20,
California Rules of Court: If Respondent remains actually suspended for
90 days or more, he/she must comply with the requirements of rule 9.20,
California Rules of Court, and perform the acts specified in subdivisions (a)
and (c) of that rule within 120 and 130 calendar days, respectively, after the
effective date of the Supreme Court's Order in this matter.
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(4) Credit for Interim
Suspension [conviction referral cases only]: Respondent will be credited
for the period of his/her interim suspension toward the stipulated period of
actual suspension. Date of commencement of interim suspension:
checked.
(5)
Other Conditions: Respondent must pay restitution (including the principle
amount, plus interest of 10% per annum) to Roy C. du Plessis. The principle
amount of restitution to be paid is $13,155.56 and the interest accrues from
September 17, 2004. If the Client Security Fund ("CSF") has
reimbursed the du Plessis for all or any portion of the principle amount listed
below, Respondent must also pay restitution to CSF in the amount paid, plus the
applicable interest and costs. Respondent is entitled to an offset against his
restitution payments for any amounts collected pursuant to the February 25,
2008 judgment or any renewal of the judgment obtained against Respondent by Roy
C. du Plcssis and Sequoia Financial in the case entitled David H. Loomis ct. al
v. Sequoia Concepts, Inc. ct. al., Los Angeles Superior Court Case No.
EC041390.
ATTACHMENT
TO
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER
OF: David H. Loomis
CASE
NUMBER(S): 09-0-12848
FACTS AND
CONCLUSIONS OF LAW.
Respondent
admits that the following facts are true and that he is culpable of violations of
the specified statutes and/or Rules of Professional Conduct.
Case No. 09-0-12848 (Complainant: Roy C. du Plessis)
FACTS:
1. At all relevant times herein, Respondent had a client trust funds account at
Bank of America (Account Number xxxxx-x3006; hereinafter "trust
account" or "respondent’s trust account").
2. In or around September, 2002, Sequoia Financial Services
("Sequoia") retained Respondent.
3. From and in between November 17, 2003 through February 19, 2004, Sequoia
issued five checks totaling $42,000 to respondent to be used to pay costs
associated with his employment.
4. On or about September 1, 2004, Sequoia terminated Respondent.
5. On or about September 1, 2004, there was $13,155.56 in respondent’s trust
account, all belonging to Sequoia.
6. On or about September 3, 2004, Roy Carroll du Plessis (" du
Plessis"), Chief Executive Officer of Sequoia wrote a letter to
respondent, and mailed it via express, certified mail. Respondent received the
letter. In the letter, du Plessis demanded that respondent refund to Sequoia
$13,100.00.
7. On or about September 10, 2004, Respondent withdrew $8,000 from the trust
account, without permission or authorization. That same day, respondent made a
cash withdrawal from the trust account of $1,500.00.
8. On or about September 13, 2004, Respondent withdrew $3,600.00 from the trust
account, without permission or authorization.
9. On or about September 17, 2004, Respondent withdrew $55.46 from the trust
account, leaving a balance of $0.00.
10. Respondent withdrew the $13,155.46 while involved in a business dispute
with du Plessis and Sequoia.
11. On or about September 29, 2004, Edmond B. Siegel, an attorney representing
Sequoia sent Respondent an email, that in part, demanded the return of
$13,100.00 to Sequoia. Respondent received the email.
12. Respondent neither returned the aforementioned funds to the trust account,
nor returned the funds to Sequoia.
CONCLUSIONS OF LAW:
13. By failing to maintain the $13,155.46 in his trust account, Respondent
willfully violated Rule 4-100(A) of the Rules of Professional Conduct.
PENDING
PROCEEDINGS.
The
disclosure date referred to, on page 2, paragraph A(7), was June 2, 2011.
AUTHORITIES
SUPPORTING DISCIPLINE.
Standard 2.2(a)
of the Standards for Attorney Sanctions for Professional Misconduct and
McKnight v. State Bar (1991) 53 Cal.3d 1025.
DISMISSALS.
The parties
respectfully request the Court to dismiss the following alleged violations in
the interest of justice:
Case Number
09-0-12848 Count Two Alleged
Violation 4-100(b)(4)
Case
Number 09-0-12848 Count Three Alleged Violation
6106
Case Number
09-O-12848 Count Four Alleged Violation
6068(i)
COSTS OF
DISCIPLINARY PROCEEDINGS.
Respondent acknowledges
that the Office of the Chief Trial Counsel has informed respondent that as of
June 2, 2011, the prosecution costs in this matter are $4,950.50. 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.
SIGNATURE
OF THE PARTIES
Case Number(s): 09-O-12848
In the Matter of: David H. Loomis
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:
David Loomis
Date:
June 2, 2011
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Kimberly G. Anderson
Date:
June 7, 2011
ACTUAL
SUSPENSION ORDER
Case Number(s): 09-O-12848
In the Matter of: David H. Loomis
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.
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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 5.58 (E) & (F), 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: Richard A. Honn
Date: 6-22-11
CERTIFICATE
OF SERVICE
[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 Los Angeles, on June 23, 2011, 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 Los
Angeles, California, addressed as follows:
DAVID H. LOOMIS
12545 IRONSTONE COURT
VICTORVILLE, CALIFORNIA 92392
checked. by interoffice mail
through a facility regularly maintained by the State Bar of California
addressed as follows:
KIMBERLY ANDERSON, Enforcement, Los Angeles
I hereby
certify that the foregoing is true and correct. Executed in Los Angeles,
California, on June 23, 2011.
Signed by:
Angela
Carpenter
Case
Administrator
State Bar
Court