Case Number(s): 12-N-13353-DFM; 12-O-15837; 12-O-13476
In the Matter of: Kevin Patrick Kelley Bar # 140462 A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: William Todd, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, California 90015
213-765-1491
Bar #259194
Counsel for Respondent: In Pro Per Respondent
Kevin Patrick Kelley
P.O. Box 1781
Santa Ana, California 92702
310-227-1260
Bar # 140462
Submitted to: Settlement Judge, State Bar Court Clerk’s Office Los Angeles
Filed: September 27, 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 6, 1989.
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. Costs are awarded to the State Bar.
<<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.
9.
ORDER OF INACTIVE ENROLLMENT:
The parties are aware that if this stipulation is approved, the judge will issue
an order of inactive enrollment under Business and Professions Code section
6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule
5.111(D)(1).
IN THE MATTER OF: KEVIN PATRICK KELLEY
CASE NUMBER(S): 12-N-13353, 12-O-15837, 12-O-13476
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY.
The parties waive any variance between the Notice of Disciplinary Charges filed on June 5, 2012 and the facts and/or 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.
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. 12-N- 13353 (State Bar Investigation)
FACTS:
1. On January 10, 2012, the California Supreme Court filed Order No. S197507 (hereinafter "9.20 Order"). The 9.20 Order included a requirement that Respondent comply with rule 9.20, California Rules of Court, by performing the acts specified in subdivisions (a) and (c) within 30 and 40 days, respectively, after the effective date of the 9.20 Order. 2. On January 10, 2012, the Clerk of the Supreme Court of the State of California properly served upon Respondent a copy of the 9.20 Order. Respondent received the 9.20 Order. 3. The Supreme Court Order became effective on February 9, 2012, thirty days after the 9.20 Order was filed. Thus, Respondent was ordered to comply with subdivision (a) of rule 9.20 of the California Rules of Court no later than March 10, 2012, and was also ordered to comply with subdivision (c) of rule 9.20 no later than March 20, 2012.
4. Respondent failed to file with the clerk of the State Bar Court a satisfactory declaration of compliance with rule 9.20 (a), California Rules of Court, as required by rule 9.20 (c).
CONCLUSIONS OF LAW:
5. By not filing a satisfactory declaration of compliance with rule 9.20 in conformity with the requirements of rule 9.20 (c), Respondent failed to timely comply with the provisions of Supreme Court Order No. S 197507 requiring compliance with rule 9.20, California Rules of Court. By the foregoing conduct, Respondent willfully violated rule 9.20, California Rules of Court. Case No. 12-O- 15837 (State Bar Investigation)
FACTS:
6. On January 10, 2012, the California Supreme Court filed Order No. S 197507 ("Disciplinary Order") regarding discipline of Respondent. On January 10, 2012, the Clerk of the Supreme Court of the State of California properly served a copy of the Disciplinary Order by mail on Respondent. Respondent received the Disciplinary Order. 7. The Disciplinary Order placed Respondent on a three-year probation subject to certain conditions. On January 20, 2012, a probation deputy of the Office of Probation mailed a letter to Respondent at his member records address reminding him of the conditions of probation. Respondent received the letter from the probation deputy.
8. Thirty days after filing, on February 9, 2012, the Disciplinary Order became effective.
9. As a condition of probation, Respondent was required to provide to the Office of Probation proof of a minimum $1070.00 quarterly restitution payment to either a set of individual payees (described within the stipulation as to facts and conclusions of law applicable in that matter) or to the State Bar Client Security Fund ("CSF"). Such proof was due on each January 10, April 10, July 10 and October 10 during the period of probation, with the first proof due by April 10, 2012. Despite this requirement, Respondent did not provide satisfactory proof of payment by April 10, 2012. Respondent also failed to provide satisfactory proof of payment due by July 10, 2012.
10. As a condition of probation, Respondent was required to contact and schedule a meeting with his assigned probation deputy by March 10, 2012. Respondent failed to do so.
11. As a condition of probation, Respondent was required to respond fully, promptly and
truthfully to any inquiries of the Office of Probation. On March 14, 2012, a probation deputy from the Office of Probation attempted to contact Respondent via telephone. A voicemail message was left for Respondent, but Respondent did not respond to the message.
12. Respondent did not contact the Office of Probation until March 27, 2012.
CONCLUSIONS OF LAW:
13. By the foregoing, Respondent failed to provide proof of minimum quarterly restitution payments by the required dates, failed to contact the Office of Probation by March 10, 2012 and failed to respond to an inquiry from the Office of Probation on March 14, 2012, and thus Respondent failed to comply with conditions attached to his disciplinary probation in willful violation of Business and Professions Code section 6068(k).
Case No. 12-O-13476 (David Guillen) (Unfiled Matter)
FACTS:
14. In July 2009, David Guillen ("Guillen") retained Respondent to complete a loan
modification, and later a chapter 13 bankruptcy.
15. Between July 2009 and March 2010, Guillen paid Respondent $7,800.00 in fees.
16. In February 2012, Respondent was suspended from the practice of law due to his misconduct in another matter, and Respondent had not completed any of the legal services for which he was hired by Guillen.
17. Respondent never completed a loan modification on Guillen’s behalf.
18. Respondent never filed a chapter 13 bankruptcy petition on Guillen’s behalf.
19. Respondent performed no other services of value on Guillen’s behalf.
20. Respondent refused to offer any refund of unearned fees to Guillen.
CONCLUSIONS OF LAW:
21. By failing to complete a loan modification or bankruptcy petition in accordance with the purpose of his representation, Respondent failed to perform in willful violation of Rules of Professional Conduct rule 3-110 (A).
22. By failing to refund any of the $7,800.00 in fees paid to Respondent by Guillen, Respondent failed to refund unearned fees in willful violation of Rules of Professional Conduct rule 3-700 (D)(2). ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Discipline (Standard 1.2 b (i)): Respondent’s prior misconduct is an aggravating circumstance here. As set forth in his prior stipulations, Respondent has multiple instances of prior discipline, as follows:
Case no. 99-0-12183 resulted in a private reproval for this Respondent following his stipulation to a single violation of Rules of Professional Conduct rule 4-100 (A) (requiring client funds be maintained in a client trust account). In a stipulation filed October 5, 2000, Respondent admitted that he issued multiple checks from his client trust account unrelated to client matters, and that he deposited his own personal funds into his client trust account.
Case 01-O-02822 resulted in a one-year suspension, stayed, with a two-year probation and a thirty-day actual suspension following Respondent’s stipulation to two violations of Rules of Professional Conduct rule 4-100 (A). In a stipulation filed March 20, 2003, Respondent admitted his failure to maintain client funds within his client trust account. He also admitted commingling funds in his client trust account.
Case nos. 11-O-13376, 11-O-13389, 11-O-14018 and 11-O-14054 resulted in a two-year suspension, stayed, with a three-year probation and a six-month actual suspension for fourteen (14) violations of Rules of Professional Conduct rule 1-300 (B) (unauthorized practice of law), 4-100(A) and 4-200 (A) (illegal fee). In a stipulation filed September 6, 2011, Respondent admitted acquiring clients living in four states in which he was neither licensed nor permitted by law to engage in law practice. He also admitted to collecting the related illegal fees. Respondent also admitted commingling funds in his client trust account by failing to remove his own attorney fees from the account at the earliest possible time after his interest became fixed. Harm (Standard 1.2 (b)(iv)): Respondent’s failure to promptly refund unearned fees to a Guillen after Respondent failed to perform caused significant harm Guillen as he received neither his funds nor his promised services. In the Matter of Casey (Review Dept. 2008) 5 Cal. State Bar Ct. Rptr. 117.
Indifference (Standard 1.2 (b)(v)): Respondent’s rule 9.20 declaration was originally due on March 20, 2012, a date by which Respondent failed to file a conforming declaration. To date, six-months beyond the original due date, Respondent has failed to file a conforming 9.20 declaration. In the Matter of Lynch (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 287.
Multiple Acts of Misconduct (Standard 1.2 (b)(ii)): Respondent’s admissions demonstrate multiple acts of misconduct. See In the Matter of Malek-Yonan (Review Dept. 2003) 4 Cal. State Bar Ct. Rptr. 627.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Mitigating Circumstances: Respondent did agree to enter into a stipulation with the State Bar involving his misconduct, though it is also true that the facts here are easily provable (see In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 50), and cooperation in State Bar proceedings is a duty of California attorneys (Business and Professions Code section 6068 (i). Therefore, this mitigation is entitled to only limited weight.
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipline" pursuant to a set of written principles to "better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to standards are to this source).) The primary purposes of disciplinary proceedings and of the sanctions imposed 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." (In re Morse (1995) 11 Cal.4th 184, 205; std 1.3.)
Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible" in determining level of discipline. (ln re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal.4th 205, 220 and In re Young (1989) 49 Cal.3d 257, 267, fla. 11.) Adherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (In re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should clearly explain the reasons for the deviation, (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
Standard 1.7(b) 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 two prior impositions of discipline as defined by Standard 1.2(0, the degree of discipline in the current proceeding shall be disbarment unless the most compelling mitigating circumstances clearly predominate. Here, Respondent has three prior records of discipline, and is currently stipulating to violations of California Rules of Court rule 9.20, which governs the duties of disbarred, resigned or suspended attorneys, Business and Professions Code section 6068 (k), which requires attorneys to comply with the terms of any disciplinary probation applicable to them, Rules of Professional Conduct rule 3-110(A), which prohibits an intentional, reckless, or repeated failure to perform legal services with competence, and Rules of Professional Conduct rule 3-700(D)(2), which requires the prompt return of any unearned fee upon an attorney’s termination of employment. Respondent’s only mitigation is his cooperation in completing this stipulation, mitigation which is not entitled to the compelling weight necessary to prevent disbarment. Therefore, consistent with the applicable standard, disbarment is appropriate here to protect the public, the courts and the legal profession.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was September 20, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of September 20, 2012, the prosecution costs in this matter are $6,944.00. 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-N-13353-DFM; 12-O-15837; 12-O-13476
In the Matter of: Kevin Patrick Kelley
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: Kevin Patrick Kelley
Date: 9-24-12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: William Todd
Date: 9-24-12
Case Number(s): 12-N-13353-DFM; 12-O-15837; 12-O-13476
In the Matter of: KEVIN PATRICK KELLEY
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.)
Respondent is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herein, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Richard A. Platel
Judge of the State Bar Court
Date: 9-26-12
[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 27, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
AND ORDER APPROVING; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
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:
KEVIN P. KELLEY
PO BOX 1781
SANTA ANA, CA 92702
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
William Todd, Office of Probation, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 27, 2012.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court