Case Number(s): 12-O-18196
In the Matter of: WILLARD PHILLIP MCCRONE, Bar # 74763, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Steven F. Egler, Bar #226227,
Counsel for Respondent: Willard Phillip McCrone, Bar #74763,
Submitted to: Settlement Judge.
Filed: August 12, 2013.
<<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 28, 1977.
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. 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.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: two 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.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: WILLARD PHILLIP MCCRONE, State Bar No. 74763
STATE BAR COURT CASE NUMBER: 12-O-18196
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are tree and that he is culpable of violations of the specified Statutes and/or Rules of Professional Conduct.
WILLARD PHILLIP MCCRONE
12-O-18196
Case No. 12-O-18196 (Complainant: Lindell Irwin)
FACTS:
I. Effective July 3, 2012, Respondent was placed on Not Entitled status for failure to comply with his MCLE requirements. At all relevant times, Respondent knew he was enrolled inactive and not entitled to practice law.
2. In mid-November 2012, Thomas DiMaggio ("DiMaggio") sought Respondent’s advice about a legal matter involving loans DiMaggio had secured for .the purchase of two properties. At no point, did Respondent advise DiMaggio that he was no longer entitled to practice law.
3. Respondent reviewed the loan notes and correspondence between DiMaggio and the lender, Lindell Irwin ("Irwin"). Respondent then gave DiMaggio legal advice.
4. On November 30, 2012, Respondent sent a demand letter to Irwin on behalf of DiMaggio. On the letterhead, Respondent used the designation "Willard P. McCrone Counsellor at Law". In the body of the letter, Respondent stated that he represented DiMaggio and discussed the probability of DiMaggio’s bankruptcy and the nature of the loans as purchase money. Respondent also addressed legal issues raised by Irwin in correspondence and proposed a settlement.
CONCLUSIONS OF LAW:
5. By giving legal advice to DiMaggio regarding a potential settlement and by sending a settlement demand letter to Irwin on attorney letterhead, Respondent held himself out as entitled to practice law and actually practiced law on DiMaggio’s behalf when respondent was not an active member of the State Bar in wilful violation of Business and Professions Code, sections 6125 and 6126, and thereby failed to support the laws of the State of California, in willful violation of Business and Professions Code, section 6068(a).
6. By holding himself out as entitled to practice law and by actually practicing law when. Respondent knew that he was not entitled to do so, and by concealing his inactive status from his client, Respondent committed an act involving moral turpitude or dishonesty in willful violation of Business and Professions Code, section 6106.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Pretrial Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of Chief Trial Counsel prior to filing formal charges, thereby saving State Bar Court time and resources. (In the Matter of Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 151, 156; In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 993-994.)
No Prior Record of Discipline: Although Respondent’s misconduct is serious, he is entitled to some mitigation for having practiced law for approximately 35 years without discipline. (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49.)
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." (ln re Morse (1995) I 1 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 Brown (1995) 12 Cal.4th 205, 220 and In re Young (1989) 49 Cal.3d 257, 267, fn. 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.)
Here, Respondent admits to two acts of professional misconduct. Standard 1.6(a) requires that where a Respondent acknowledges two or more acts of misconduct, and different sanctions are prescribed that apply to those acts, the sanction imposed shall be the more or most severe prescribed in the applicable standards. In this case, the controlling standard is 2.3, which applies to the violation of Business and Professions Code section 6106.
Standard 2.3 calls for actual suspension to disbarment depending upon the extent to which the victim was harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law. Here, Respondent’s misconduct was serious and directly related to Respondent’s practice of law. Respondent concealed his inactive status from his client, gave legal advice, and negotiated with the opposing party. However, the misconduct is limited to assisting one client over a short period.
In mitigation, Respondent has practiced for 35 years and has no prior record of discipline. He is also entitled to mitigation for entering into a pretrial stipulation. There are no aggravating factors present.
Balancing the facts, mitigation and lack of aggravation, Respondent’s misconduct warrants a 30-day actual suspension under Standard 2.3.
In the Matter of Wells [Review Dept. 2006] 4 Cal. State Bar Ct. Rptr. 896) is instructive. In Wells, the attorney represented two clients in South Carolina even though she was not licensed in that state. The Review Department found that she engaged in the unauthorized practice of law in another jurisdiction, failed to return unearned fees, failed to maintain funds in trusts and committed acts of moral turpitude (unrelated to the unauthorized practice of law). (Wells, supra, 4 Cal. State Bar Ct. Rptr. at p. 901.) The Review Department recommended an actual suspension of six months.
Respondent’s misconduct is less egregious than that of the attorney in Wells. First, Respondent has no prior record of discipline and there are no other acts of wrongdoing in this matter. Moreover, Respondent did not charge fees to his client. Therefore, a lower level of discipline is appropriate.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of July 26, 2013 the prosecution costs in these matters are $2860.00. 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.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-18196
In the Matter of: WILLARD PHILLIP MCCRONE
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: Willard P. McCrone
Date: 7/26/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Steven F. Egler
Date: 7/29/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-O-18196
In the Matter of: Willard Phillip McCrone
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.
On page 1 of the stipulation, in the last line of paragraph A(3) the number "11" is CHANGED to the number "10."
On page 3 of the stipulation, an "X" is INSERTED in box B(8) to reflect that "No aggravating circumstances are involved."
On page 8 of the stipulation, near the top of the page, in the second line in the paragraph labeled "No Prior Record of Discipline," the word "some" is CHANGED to the words "very significant."
On page 8 of the stipulation, near the top of the page, at the end of the paragraph labeled "No Prior Record of Discipline," the following sentence is ADDED:
See also In the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn. 13, citing Rodgers v. State Bar (1989) 48 Cal.3d 300, 317; Cooper v. State Bar (1987) 43 Cal.3d 1016, 1029 and noting that, under standard 1.2(e)(i), the Supreme Court has repeatedly given mitigation for no prior record of discipline in cases involving serious misconduct.
On page 9 of the stipulation, immediately following the third paragraph, which begins "Respondent’s misconduct is less," the following paragraph is ADDED:
In the Matter of Trousil (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 229 is also instructive on the level of discipline. In Trousil, the attorney, in a single client matter, engaged in the unauthorized practice of law while suspended for nonpayment of State Bar membership fees and, later, during a disciplinary suspension.
In aggravation, the attorney had three prior records of discipline. In mitigation, there was no client harm, the attorney displayed candor and cooperated with the State Bar, the attorney suffered from emotional or physical disabilities, and there was no further misconduct in six years. The attorney in Trousil was placed on two years’ stayed suspension and two years’ probation on conditions, including a 30-day (actual) suspension
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: Pat McElroy
Date: 8/12/13
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 San Francisco, on August 12, 2013, 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 San Francisco, California, addressed as follows:
WILLARD PHILLIP MCCRONE
587 HARTNELL ST.
MONTEREY, CA 93940
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
STEVEN F. EGLER, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on August 12, 2013.
Signed by:
Mazie Yip
Case Administrator
State Bar Court