Case Number(s): 13-O-10128
In the Matter of: SCOTT GARRETT LYON, Bar # 199800, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Steve Egler, Bar # 226227,
Counsel for Respondent: Scott Garrett Lyon, Bar # 199800,
Submitted to: Settlement Judge.
Filed: November 26, 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 December 15, 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. 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 from 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: SCOTT GARRETT LYON, State Bar No. 199800
STATE BAR COURT CASE NUMBER: 13-O-10128
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.
SCOTT GARRETT LYON
13-O-10128
Case No. 13-O-10128 (Complainant)
FACTS:
1. On May 6, 2011, Respondent was hired by Naana Yeboah ("Yeboah") to handle a bankruptcy matter. Yeboah paid Respondent advanced attorney’s fees in the mount of $1,000.00 and advanced costs in the amount of $75.00.
2. From May 7, 2011, through June 23, 2011, Yeboah sent text messages and left telephone messages for Respondent requesting an update on the status of the bankruptcy matter. Respondent received Yeboah’s text messages and telephone messages, but failed to respond to them.
3. As of May 7, 2011, Respondent ceased communicating with Yeboah. As of May 7, 2011, Respondent effectively withdrew from representing Yeboah in the bankruptcy matter.
4. Respondent did not perform any services of value on behalf of Yeboah, Respondent did not earn any portion of the advanced fees paid by Yeboah. Respondent failed to promptly refund any portion of the $1,000.00.
5. On or about March 27, 2012, Respondent signed an agreement in lieu of discipline ("ALD") with the State Bar regarding the Yeboah matter in which Respondent agreed to comply with duties specified in the agreement for a period of one (1) year.
6. The ALD became effective April 3, 2012, and remained in full force and effect until April 3, 2013.
7. Pursuant to the ALD, Respondent agreed to comply with the following conditions:
a. Submit written quarterly reports to the Office of Probation on July 10, 2012, October 10, 2012, January 10, 2013, and April 3, 2013;
b. Attend State Bar Ethics School and take and pass the test given at the end of such session within one (1) year of the effective date of the ALD;
c. Pay restitution (including the principal amount of $1,075.00, plus interest of 10% per annum) to Yeboah within six months of the effective date of the ALD.
8. Respondent failed to submit quarterly reports due to the Office of Probation on July 10, 2012, October 10, 2012, January 10, 2013, and April 3, 2013. To date, Respondent has failed to submit the four quarterly reports.
9. Respondent failed to attend State Bar Ethics School and take and pass the test given at the end of such session within one (1)year of the effective date of the ALD. Respondent belatedly attended State Bar Ethics School on June 20, 2013.
10. Respondent failed to pay restitution to Yeboah within six months of the effective date of the ALD. Respondent belatedly paid Yeboah f-all restitution on February 14, 2013.
CONCLUSIONS OF LAW:
11. By failing to perform any services of value on behalf of Yeboah in the bankruptcy matter, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
12.. By failing to respond to Yeboah’s text messages and telephone calls requesting an update on her bankruptcy matter, Respondent failed to respond promptly to reasonable status inquiries era client in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code section 6068(m).
13. By failing to refund $1,000 in unearned fees to Yeboah, Respondent failed to refund promptly any part era fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
14. By failing to submit quarterly reports due no later than July 10, 2012, October 10, 2012, January 10, 2013 and April 3, 2013, by failing to attend the State Bar Ethics School within one year of the effective date of the ALD, and by failing to pay restitution to Yeboah and provide proof of payment to the Office of Probation within six months of the effective date of the ALD, Respondent failed to keep all agreements made in lieu of disciplinary prosecution in willful violation of Business and Professions Code section 6068(1).
AGGRAVATING CIRCUMSTANCES.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent’s misconduct in Yeboah’s bankruptcy matter, and violating numerous conditions of his ALD represent multiple acts of misconduct.
Indifference Toward Rectification (Std. 1.2(b)(v)): Respondent’s failure to come into compliance with the reporting requirement of his ALD demonstrates indifference toward rectification of or atonement of the consequences of his misconduct.
Harm (Std. 1.2(b)(iv)): Respondent’s failure to promptly refund unearned fees to his client caused significant harm to the client.
MITIGATING CIRCUMSTANCES.
No Prior Discipline: Although his misconduct is considered serious, Respondent is entitled to mitigation for having no prior record of discipline over 15 years of practice. (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49.)
Pretrial Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of Chief Trial Counsel prior to trial, thereby saving State Bar Court time and resources. (In the Matter of Downey (Review Depart. 2009) 5 Cal. State Bar Ct. Rptr. 151,165.)
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) 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. (In 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, fn. 11.) Adherence to the standards in the great majority of eases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (ln re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should dearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
Respondent admits to committing four 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 by the standards that apply to those acts, the sanction imposed shall be the more or most severe prescribed in the applicable standards.
The most severe sanction applicable to Respondent’s misconduct is found in standard 2.6, which applies to Respondent’s violation of Business and Professions Code section 6068(l) based on his failure to keep agreements made in lieu of discipline. Standard 2.6 provides that culpability of a member of section 6068(l) shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
Here, Respondent failed to perform in a bankruptcy matter, failed to communicate with his client and failed to refund unearned fees to a client in financial distress, causing significant harm to the client. In addition, Respondent failed to comply with the three conditions of an ALD by failing to file four quarterly reports, failing to timely pay restitution and failing to timely attend State Bar Ethics School. In aggravation, Respondent committed multiple acts of misconduct, caused harm to his client and demonstrated indifference by failing to come into compliance with his reporting requirements. In mitigation, Respondent has 15 years of discipline-free practice and entered into this stipulation.
Although disbarment is not warranted in this matter, based on the gravity of Respondent’s misconduct and factors in aggravation, most significantly, harm to Respondent’s client for failing to refund unearned fees and promptly pay restitution, a 60-day actual suspension is appropriate.
Bach v. State Bar (1991) 52 Cal.3d 1201, is instructive. In Bach, the Supreme Court imposed a 30-day actual suspension for an attorney with 26 years of discipline-free practice for misconduct in one client matter, including failure to perform, failure to communicate, withdrawal from representation without client consent or court approval, failure to refund unearned fees and failure to cooperate in the State Bar’s investigation.
Here, Respondent’s misconduct is similar to, yet more egregious, than the misconduct in Bach since Respondent also failed to comply with the conditions of an ALD. In addition, there are more aggravating circumstances and less mitigation in this matter.
Balancing all of the appropriate factors, and consistent with the purposes of standard 1.3, a 60-day actual suspension with two-year stayed suspension and two years of probation is appropriate.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of Chief Trial Counsel has informed Respondent that as of October 23, 2013, the prosecution costs in this matter are $5,418.00. 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 proceeding.
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): 13-O-10128
In the Matter of: Scott Garrett Lyon
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: Scott Garrett Lyon
Date: 11/18/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Steven F. Egler
Date: 11/18/13
ACTUAL SUSPENSION ORDER
Case Number(s): 13-O-10128
In the Matter of: SCOTT GARRETT LYON
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.
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: Lucy Armendariz
Date: 11/26/13
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 November 26, 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:
SCOTT G. LYON
LAW OFFICES OF SCOTT G. LYON
1256 W LATHROP RD #123
MANTECA, CA 95336
<<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 November 26, 2013.
Signed by:
Mazie Yip
Case Administrator
State Bar Court