State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 10-O-00258
In the Matter of: Terry Richard Kolkey, Bar # 71528, A Member
of the State Bar of California, (Respondent).
Counsel For The State Bar: Dane C. Dauphine, Supervising
Trial Counsel
1149 South Hill St.
Los Angeles, CA 90015-2299
Tel. (213) 765-1293
Bar # 121606,
Counsel for Respondent: <<start redacted text>>
Zachler D. Wheesler
6060 Center Dr. #825, Los Angeles, CA 90045
Tel. (310) 642-4600
Bar #198354 <<end redacted text>>
Submitted to: Assigned Judge – State Bar Court Clerk’s
Office. Los Angeles.
Filed: January 11, 2011.
<<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 22, 1976.
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):
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.
<<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.
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. Respondent was unable to account to his client in 2009 for
the funds received on his behalf in 1999.
<<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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(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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(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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(5)
Restitution: Respondent paid $ 30,000 on during the period from June 2009
to June 2010 in restitution to Melquiades Lopez 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.
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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.
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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:
Respondent has no prior discipline since
his admission in 1976. At the time of the stipulated act or acts of
professional misconduct, in 1998 or 1999, Respondent was in the process of
relocating his practice to Northern California and Oregon in search of a slower
pace of life. However, due to a shortage of experienced criminal defense
attorneys in the region, Respondent was assigned to three death penalty cases
that absorbed his time and attention. Respondent believes that he lost track of
Lopez’s funds during this period.
D.
Discipline:
checked.
(1) Stayed
Suspension:
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(a) Respondent must be suspended from the practice of law for a period of one
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.
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checked. iii. and until Respondent does the following: .
checked.
(b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on probation
for a period of two 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 six months.
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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: .
E. Additional Conditions of Probation:
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checked. (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.
checked.
(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.
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(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.
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(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.
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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: .
checked.
(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.
<<not>> checked. (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.
<<not>> checked. (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: 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 State Bar’s Client Trust Accounting School,
within the same period of time, and passage of the test given at the end of
that session.
Attachment language (if any):
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION
IN THE MATTER OF: Terry Richard
Kolkey, State Bar No. 71528
STATE BAR COURT CASE NUMBER:
10-O-00258
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.
FACTS
I. On or
about February 19, 1998, Respondent was employed by Melquiades Lopez
("Lopez") to represent him in seeking to withdraw Lopez’s guilty plea
in a criminal matter and to obtain the return of $38,000 seized from Lopez by
the Sheriff’s Department upon his arrest.
2. Respondent
made a motion for the release of the $38,000 belonging to Lopez. On or about
April 10, 1998, the court granted the motion. Thereafter, the funds were
released to Respondent.
3. In or
about May 1998, Respondent made a motion to withdraw Lopez’s guilty plea. It
was not granted. On or about June 12, 1998, Lopez was sentenced to thirteen
(13) years in prison, In June 1998. Respondent filed an appeal on behalf of
Lopez which was later denied.
4. Between in
or about June 1999 and September 1999, Respondent sent a letter to Lopez at the
prison where Lopez was incarcerated. He advised in relevant part that he was
sending Lopez a copy of the opening brief in Lopez’s appeal and promised to
file in the Supreme Court if the appeal was lost. Respondent also stated that
his fee for the appeal was $5,000. Respondent also requested that Lopez inform
him what to do with the funds he was maintaining for his client.
5. From and
after that date, Respondent did not disburse all of Lopez’s funds to Lopez or
on his behalf. Respondent recalls that he disbursed approximately $8,000 of the
funds at Lopez’s direction to Lopez’s brother, Taurino Lopez. In or about 2002,
Respondent relocated to Folsom in Northern California and in 2003, he relocated
again to Ashland Oregon.
6. In or
about 2009, Lopez was released from prison and was deported to Mexico. In March
2009. Lopez sent a letter to Respondent requesting his funds. Respondent
received the letter. At that time, Respondent did not have any funds deposited
in a trust account on behalf of Lopez or any records to account for the funds.
He recalled that he owed Lopez a portion of the funds. Respondent contacted
Lopez to confirm his identity. During the period from June 2009 through June
2010, Respondent made payments to Lopez totaling $30.000 to resolve Lopez’s
claim for the missing funds.
CONCLUSIONS
OF LAW:
7. By not
maintaining the funds received on behalf of Lopez in a trust account,
Respondent failed to maintain client funds in trust in willful violation of the
Rules of Professional Conduct, rule 4-100(A).
PENDING
PROCEEDINGS.
The disclosure
date referred to on page 2, paragraph A(7), was Nov ember 15, 2010.
AUTHORITIES
SUPPORTING DISCIPLINE.
The Standards
for Attorney Sanctions for Professional Misconduct provide, at Standard 2.2,
provides for a range of discipline for offenses involving entrusted funds.
Standard 2.2(a) calls disbarment or actual suspension of at least one year for
willful misappropriation. Standard 2.2(b) calls for actual suspension of at
least three months irrespective of mitigating circumstances for a trust account
violation which does not result in the willful misappropriation of entrusted
funds or property. Due to the passage of time and the fact that bank records
for the period from 1999 to 2003 are no longer available the State Bar is
unable to determine what happened to the funds received by Respondent on behalf
of Lopez and Respondent s candor and cooperation with Lopez and the Stale Bar
mitigates against a finding of willful misappropriation. Therefore, the State
Bar believes that the stipulated disposition under Standard 2.2 serves to
protect the public.
SIGNATURE OF THE PARTIES
Case Number(s): 10-O-00258
In the Matter of: Terry R. Kolkey, State Bar No. 71528
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:
Terry R. Kolkey
Date:
December 10, 2010
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Dane C.Dauphine
Date:
December 14, 2010
ACTUAL SUSPENSION ORDER
Case Number(s): 10-O-00258
In the Matter of: Terry R. Kolkey, State Bar No. 71528
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:
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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 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: Richard A. Honn
Date: January
1, 2010
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 January 11, 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:
TERRY RICHARD KOLKEY ESQ
LAW OFC TERRY KOLKEY
2305 ASHLAND ST STE C #510
ASHLAND, OR 97520
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
Dane C. Dauphine, Enforcement, Los
Angeles
I hereby
certify that the foregoing is true and correct. Executed in Los Angeles, California,
on January 11, 2011.
Signed by:
Julieta E.
Gonzales
Case
Administrator
State Bar
Court