Case Number(s): 11-O-19540
In the Matter of: Walter Roy Mitchell, Bar # 165834, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Agustin Hernandez, Deputy Trial Counsel
1149 South Hill St.
Los Angeles, CA 90015-2299
(213) 765-1713
Bar # 161625,
Counsel for Respondent: Richard R. Hurley, 2801 W. Coast Hwy., Ste. 270
Newport Beach, CA 92663
(949) 275-2556
Bar # 183440,
Submitted to: Settlement Judge – 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.
1. Respondent is a member of the State Bar of California, admitted September 17, 1993.
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 11 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.
ATTACHMENT TO STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: WALTER ROY MITCHELL
CASE NUMBERS: 11-O-19540
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. 11-O- 19540 (State Bar Investigation):
FACTS:
1. Respondent failed to pay his State Bar membership fees as required by February 1, 2011.
2. On March 9, 2011, the Office of Membership Billing Services of the State Bar of California ("Membership Billing") properly mailed to Respondent at Respondent’s membership records address a Final Delinquent Notice informing him that his continued failure to pay his State Bar membership fees will result in his suspension from the practice of law. The Final Delinquent Notice stated that the effective date of this suspension would be July 1, 2011. These documents were also e-mailed to Respondent on April 11, 2011.
3. On June 3, 2011, Membership Billing properly mailed to Respondent at his State Bar membership records address a Notice of Entry of Order of Suspension for Nonpayment of Fees. The Notice of Entry of Order of Suspension for Nonpayment of Fees stated that Respondent’s name had been placed on a list of members that had been delinquent in their payment of membership fees, and that the delinquent list had been transmitted to the California Supreme Court. The Notice of Entry of Order of Suspension for Nonpayment of Fees further stated that on May 26, 2011, the California Supreme Court entered an order of suspension for those members on the delinquent list. The Notice of Entry of Order of Suspension for Nonpayment of Fees informed Respondent that the suspension order would become effective July 1, 2011.
4. The May 26, 2011 Supreme Court Order ordering that Respondent be suspended from the practice of law effective on July 1, 2011, due to nonpayment of fees under the State Bar Act, was properly served on Respondent at his State Bar membership record address. Respondent received the order.
5. Effective on July 1, 2011, Respondent was placed on not entitled status for failing to pay his State Bar membership fees.
6. At all relevant times, Respondent represented Jamar Lee Bryant ("Bryant") in two criminal matters pending in Orange County Superior Court entitled People v. Bryant, case no. 11NM04252 A, and People v. Bryant, case no. 11NM08349 M A (collectively referred to as the "Bryant matters").
7. On August 2, 2011, when Respondent was not entitled to practice law, he appeared in court on behalf of Bryant on the Bryant matters regarding a continuance of Bryant’s matters due to Bryant being out of state due to military commitments.
8. Respondent’s August 2, 2011 court appearances on the Bryant matters constituted the practice of law.
9. On August 2, 2011, when Respondent appeared in court on behalf of Bryant on the Bryant matters he was grossly negligent in not knowing that he was suspended from the practice of law. The court raised the issue of Respondent’s suspension at that time.
10. On August 3, 2011, Respondent sent his State Bar membership fees for the year 2011 to Membership Billing. As a result of Respondent’s State Bar membership fees being paid, on August 3, 2011, Respondent was returned to active status.
11. From July 1, 2011 to August 3, 2011, Respondent was ineligible to practice law because he failed to pay his State Bar membership fees. Respondent was grossly negligent in not knowing that he was ineligible to practice law during this period.
CONCLUSIONS OF LAW:
12. By engaging in acts constituting the practice of law while he was not entitled to practice law, Respondent held himself out as entitled to practice law and actually practiced law when he was not entitled to do so, in willful violation of Business and Professions Code sections 6125 and 6126, and thereby failed to support the Constitution and laws of the United States and of this state, in willful violation of Business and Professions Code, 6068(a).
13. By practicing law when Respondent was grossly negligent in not knowing that he was not entitled to practice law, Respondent committed an act involving moral turpitude, dishonesty or corruption, in willful violation of Business and Professions Code, section 6106.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES:
A mitigating circumstance is "an event or factor established clearly and convincingly by the member subject to a disciplinary proceeding as having caused or underlain the member’s professional misconduct and which demonstrates that the public, courts and legal profession would be adequately protected by a more lenient degree of sanction than set forth in these standards for the particular act of professional misconduct found or acknowledged." (Standard 1.2(e).)
Respondent has no prior record of discipline in 19 years of practice. Standard 1.2(e)(i) states that mitigation credit shall be given to a member who has no record of prior discipline over a period of many years of practice coupled with misconduct that is not deemed serious. Although Respondent’s present misconduct is serious and therefore Respondent does not meet the requirements of Standard 1.2(e)(i), Respondent is entitled to some limited mitigation. (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49; and In the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn.13.) Respondent has acknowledged his wrongdoing and cooperated with the State Bar in these proceedings by entering into a stipulation of facts, conclusions of law and disposition without the necessity of having a trial on this matter. (In the Matter of Johnson (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 190.)
AUTHORITY SUPPORTING LEVEL OF DISCIPLINE:
The primary purposes of disciplinary system and of sanctions imposed on an attorney for misconduct are the protection of the public, the courts and the legal profession, the maintenance of high professional standards by attorneys, and the preservation of public confidence in the legal profession. (Standard 1.3.) In this matter, the primary purposes of attorney discipline are accomplished by a 30-day actual suspension.
In determining the appropriate level of discipline, the Supreme Court has emphasized the importance of the standards and has held that great weight should be given to the application of the standards in determining the appropriate level of discipline. (In re Silverton (2005) 36 Cal. 4th 81, 89-94; In re Brown (1995) 12 Cal. 4th 205, 220.) Unless there are "grave doubts as to the propriety of the recommended discipline," it will uphold the application of the standards. (In re Silverton, supra, 36 Cal. 4th at p. 91-92.) The standards must be followed unless there is a compelling reason justifying a deviation from the standards. (In the Matter of Bouyer (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 404.)
Pursuant to Standard 1.6(a), if a member commits two or more acts of professional misconduct in a single disciplinary proceeding, and different sanctions are prescribed by the standards for each act, the sanction that calls for the most severe sanction shall be imposed.
In this case, the standard that imposes the most severe sanction is Standard 2.3 which mandates discipline ranging from actual suspension to disbarment for acts of moral turpitude, fraud, or intentional dishonesty. The actual level of discipline is dependent upon the extent to which the victim of the misconduct is harmed or misled, the magnitude of the act of misconduct, and the degree to which it relates to the practice of law.
Respondent committed an act of moral turpitude in willful violation of Business and Professions Code §6106 by appearing in court when was not entitled to practice law. Respondent was grossly negligent in not knowing that he had been enrolled in not entitled status. There is insufficient evidence to establish that Respondent knowingly committed this misconduct. There was no harm to Respondent’s client who was actually out of state at the time of the hearing due to military commitments. Both his client, who thought Respondent was able to appear on his behalf, and the court conducting the proceeding were to some degree misled. Securing a continuance was directly related to the practice of law but an act of relatively minor magnitude. Appearing in court while not entitled is significant, although not as severe as when done through gross negligence. In mitigation, though this is an act of moral turpitude, Respondent has practiced 19 years without a record of prior discipline. Further, Respondent has cooperated in the investigation, admitted his culpability and entered into this stipulation.
Therefore, in light of the facts, conclusions and mitigation described above, a 30-day actual suspension, which is within the range of discipline within Standard 2.3, is an appropriate and sufficient level of discipline to protect the public, the courts and the integrity of the legal profession.
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CONCLUSIONS OF LAW
The parties waive any variance between the Notice of Disciplinary Charges filed on May 22, 2012, and the facts and conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
PENDING PROCEEDINGS:
The disclosure date referred to on page 2, section A.(7), was on August 7, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS:
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of August 8, 2012, the prosecution costs in this matter are $6,944. 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): 11-O-19540
In the Matter of: Walter Roy Mitchell
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: Walter Roy Mitchell
Date: August 21, 2012
Respondent’s Counsel: Richard R. Hurley
Date: August 21, 2012
Deputy Trial Counsel: Agustin Hernandez
Date: August 22, 2012
Case Number(s): 11-O-19540
In the Matter of: Walter Roy Mitchell
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 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: September 10, 2012
[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 September 11, 2012, 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:
RICHARD R. HURLEY
2801 W COAST HWY STE 270
NEWPORT BEACH, CA 92663
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
AGUSTIN HERNANDEZ, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 11, 2012.
Signed by:
Rose Luthi
Case Administrator
State Bar Court