Case Number(s): 12-H-12371-RAP
In the Matter of: Kimberly Sue Daniels, Bar #195839, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Lara Bairamian, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1338
Bar # 253056
Counsel for Respondent: In Pro Per Respondent
Kimberly Sue Daniels
1234 Ramona Avenue
Grover Beach, CA 93433
(805)459-0889
Bar# 195839
Submitted to: Assigned Judge State Bar Court Clerk’s Office Los Angeles.
Filed: September 6, 2012
<<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 June 5, 1998.
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):
<<not>> checked. Costs are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: two (2) 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.
<<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.
IN THE MATTER OF: Kimberly Daniels
CASE NUMBER(S): 12-H-12371
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case No. 12-H-12371
FACTS:
1. On January 5, 2011, the Hearing Department of the State Bar Court of California filed an order in case number 09-0-10245 imposing a public reproval on Respondent.
2. As a condition of the reproval, Respondent was required to submit to the Office of Probation a final report no later than the last day of the reproval or January 26, 2012. Respondent submitted the final report to the Office of Probation on May 17, 2012.
3. As a condition of the reproval, Respondent was required to provide to the Office of Probation satisfactory proof of attendance at a session of Ethics School, and the passage of the test given at the end of that session, within one (1) year of the effective date of the Reproval Order or January 26, 2012. Respondent did not attend Ethics School until March 22, 2012 and did not provide proof of attendance and completion of the test to the Office of Probation until May 17, 2012.
4, As a condition of the reproval, Respondent was required to provide proof of passage of the Multistate Professional Responsibility Examination ("MPRE") administered by the National Conference of Bar Examiners, to the Office of Probation within one (1) year of the effective date of the Reproval Order or January 26, 2012. Respondent did not pass the MPRE or provide proof of passage to the Office of Probation within one (1) year or at any time to date. Respondent did take the MPRE on November 5, 2011 and March 17, 2012, but was unable to obtain a passing core.
CONCLUSIONS OF LAW:
5. By failing to timely submit a final report to the Office of Probation, failing to attend and pass Ethics School within one (1) year of the effective date of the Reproval Order and failing to attend and pass the MPRE within one (1) year of the effective date of the Reproval Order, Respondent failed to comply with conditions attached to the public reproval in wilful violation of rule 1-110 of the Rules of Professional Conduct.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
In Matter of Downey (Rev. Dept. 2009) 5 Cal. State Bar Ct. Rptr. 151, 156, the court found that Respondent was entitled to mitigation for cooperating with the State Bar by entering into a fairly comprehensive pretrial stipulation of facts. Although the stipulated facts were not difficult to prove, and Respondent did not admit culpability, the stipulation was relevant and assisted the State Bar’s prosecution of the case. The court accorded Respondent limited mitigation under standard 1.2(e)(v). Similar to Downey, Respondent cooperated with the State Bar and agreed to enter into a pretrial stipulation of facts. Unlike Downey, Respondent admitted culpability. Under the circumstances, Respondent is entitled to limited mitigation.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was August 1, 2012.
AUTHORITIES SUPPORTING DISCIPLINE.
The court looks first to the Standards when setting discipline; the Standards are to be given great weight and followed wherever possible. (In re Silverton (2005) 36 Cal. 4th 81, 91-92; In the Matter of Sullivan (Rev. Dept. 2010) 5 Cal. State Bar Ct. Rptr. 189, 195.)
Standard 1.3 provides that the primary purposes of attomey discipline are, "the protection of the public, the courts and the legal profession; the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession."
Standard 1.7(a) provides that if a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one prior imposition of discipline as defined by standard 1.2(f), the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior discipline imposed was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust.
Standard 2.9 provides that culpability of a member of a willful violation of rule 1-110, Rules of Professional Conduct, shall result in suspension.
In Conroy v. State Bar (1990) 51 Cal. 3d 799, the Respondent was publicly reproved and then failed to take and pass the MPRE within one year as required. Respondent defaulted in the matter before the Hearing Department, but participated in the Review Department and Supreme Court proceedings. The court found Respondent’s subsequent passage of the MPRE was mitigating but was outweighed by aggravating factors. In aggravation the court considered Respondent’s prior discipline, Respondent’s default at the Heating Department level and Respondent’s lack of remorse for the present violation. The discipline imposed in light of the aggravation was one year suspension, stayed, two years of probation and sixty-days actual suspension.
Similar to Conroy, Respondent belatedly complied with the conditions attached to her public approval and has a prior record of discipline. However, unlike Conroy, Respondent has participated and agreed to resolve the matter prior to trial, did not default before the Hearing Department and did not display a lack of remorse during the disciplinary proceedings. These mitigating factors suggest that unlike Conroy, actual suspension is not required.
Although untimely, Respondent made efforts to satisfy the terms of her probation. Based on the above-described standards, a two (2) year stayed suspension accompanied by a one (1) year probationary period serves the purpose of State Bar discipline.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of July 30, 2012, the prosecution costs in this matter are $3,349. 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.
Case Number(s): 12-H-12371
In the Matter of: Kimberly Sue Daniels
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: Kimberly Sue Daniels
Date: 7-15-12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Lara Bairamian
Date: 8-22-12
Case Number(s): 12-H-12371
In the Matter of: Kimberly Sue Daniels
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
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. Platel
Date: 9-4-12
[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 6, 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:
KIMBERLY S. DANIELS
LAW OFC KIMBERLY DANIELS
1234 RAMONA AVE
GROVER BEACH, CA 93433
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 6, 2012.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court