Case Number(s): 03-0-04622; 04-O-14514; 05-0-00144; 05-O-01513
In the Matter of: Kathleen McCasey, Bar # 170303, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Maria J. Oropeza, Bar # 182660
Counsel for Respondent: Jonathan Arons, Bar # 111257
Submitted to: Assigned 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 June 7, 1994.
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 14 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 284, Rules of Procedure.
<<not>> checked. costs to be paid in equal amounts prior to February 1 for the following membership years: (hardship, special circumstances or other good cause per rule 284, Rules of Procedure
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
IN THE MATTER OF: Kathleen McCasey
CASE NUMBER(S): 03-0-04622; 04-0-14514; 05-0-00144; 05-0-01513 ET
AL.
FACTS AND CONCLUSIONS OF LAW.
Statement of Facts: (Count One) Case No. 03-0-04622 (The Weakland Matter)
1. Kathleen McCasey ("respondent") was admitted to the practice of law in the State of California on June 7, 1994, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California.
2. Respondent wilfully violated Rules of Professional Conduct, rule 3-700(A)(2), by failing, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to her client, as follows:
3. On August 4, 2003, Paul Weakland ("Weakland") filed a motion in propia persona for reconsideration of a restraining order issued against him on May 28, 2002.
4. On August 14, 2003, Weakland hired respondent to represent him. The fee agreement prepared by respondent states, in pertinent part, that "The legal services to be provided by Attorney to Client are as follows: "Representation on an appeal of a restraining order. Representation to include all court filings, appearances, negotiations, and any necessary motions, arguments and hearings to resolve the case." At the time respondent was hired, a hearing on the motion had already been calendared for September 2, 2003, and Weakland advised respondent of the hearing date. Weakland paid her $3,500 in cash.
5. Thereafter respondent took no action of any value to Weakland.
6. On September 2, 2003, Weakland appeared at the motion hearing, but respondent did not. The court continued the motion hearing to October 2, 2003.
7. Between August 13, 2003, and September 20, 2003, respondent did not respond to numerous telephone messages from Weakland and did not appear for two meetings with Weakland.
8. On September 20, 2003, Weakland submitted a complaint against respondent to the State Bar, and requested fee arbitration through the Bar Association of San Francisco.
9. On October 9, 2003, Weakland complained to the San Francisco Police regarding respondent and an incident report was prepared.
10. By letter dated October 21, 2003, a State Bar Complaint Analyst advised respondent of Weakland’s complaint and requested her written response to it no later than November 4, 2003. Respondent received the October 21, 2003 letter, but did not respond to it in any way.
11. On December 16, 2003, a fee arbitration panel issued an advisory award in favor of Weakland ($3,500), respondent having failed to appear or submit any written material.
12. Weakland obtained a civil judgment against respondent based on the fee arbitration award. On May 13, 2004, respondent was ordered to appear and produce a statement of assets. Respondent did not produce anything or appear for examination on May 13, 2004. Respondent’s examination was continued by the court to June 17, 2004.
13. In May 2004 respondent transmitted a check in the amount of $3,500 to Weakland with the notation "arb award." On several occasions Weakland attempted to negotiate the check, but the account on which it was drawn did not contain sufficient funds.
14. On or about June 15, 2004, Weakland submitted another police report regarding respondent and the "bounced" check for $3,500.
15. In mid-June 2004 respondent transmitted a cashier’s check in the amount of $3,500 to Weakland. Weakland alleges that a transcript was missing from the file. Respondent alleges that she provided Weakland with the entire file.
16. On June 17, 2004, respondent did not appear for her continued examination, and the court ordered respondent to pay an additional $1,000 to Weakland for her failure to appear at her examination.
17. On July 20, 2004, respondent transmitted a personal check in the amount of $1,000 to Weakland. The bank account on which the check was drawn did not contain sufficient funds to cover $1,000 when the check was first presented for payment. Thereafter, in or about early August 2004 Weakland was able to negotiate the check.
Conclusions of Law: Count One (Case No. 03-O-04622) (The Weakland Matter)
18. By failing to appear at Weakland’s motion hearing, failing to provide any significant legal services on Weakland’s behalf, respondent wilfully failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client, a wilful violation of Rule 3-700(A)(2) of the Rules of Professional Conduct.
Statement of Facts: Count Two (Case No. 03-0-04622) (The Weakland Matter)
19. Respondent wilfully violated Rules of Professional Conduct, rule 3-700(D)(2), by failing to refund promptly any part of a fee paid in advance that has not been earned, as follows:
20. The allegations contained in Count One of this stipulation are incorporated by reference, as if set forth in full.
Conclusions of Law: Count Two (Case No. 03-0-04622) (The Weakland Matter)
21. By failing to refund to Weakland’s $3,500.00 in advanced attorney’s fees or any portion of the $3,500.00, until mid-June 2004, and then only after Weakland filed a State Bar complaint, requested fee arbitration, twice submitted police reports, and obtained a civil judgment against her, respondent wilfully failed, to refund promptly a fee paid in advance that had not been earned, a wilful violation of Rule 3-700(D)(2) of the Rules of Professional Conduct.
Statement of Facts: Count Three (Case No. 04-O-14514) (The Appleton Matter)
22. Respondent wilfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, or repeatedly failing to perform legal services with competence, as follows:
23. On December 6, 2003, Derrick Appleton ("Appleton") was arrested and charged for driving under the influence. Appleton received his citation (1) stating that his formal arraignment would take place on December 8, 2003 and that he had to present in court, and (2) that he had to request a Department of Motor Vehicle hearing within 10 days of the citation. At the time of his arrest Appleton’s driver’s license was taken from him and he was given a temporary license that would remain in effect for 30 days.
24. On December 8, 2003, Appleton retained respondent to represent him in a driving under the influence criminal proceeding in San Francisco County and the Department of Motor Vehicle hearing (DMV).
25. Appleton paid respondent the sum of $1,500.00 in advanced attorney’s fees.
26. Between December 8, 2003 and May 7, 2004 Appleton’s criminal matter proceeded through the criminal court system.
27. Between December 12 and December 16, 2003, Appleton left several messages on respondent’s answering machine, regarding the DMV hearing and if it had been requested.
28. On December 16, 2003 respondent advised Appleton that she has requested the DMV hearing.
29. Respondent never requested a DMV hearing on Appleton’s behalf.
30. On January 5, 2004, the DMV suspended Appleton’s driving privilege.
Conclusions of Law: Count Three (Case No. 04-O-14514) (The Appleton Matter)
31. By failing to request and schedule a DMV hearing in Appleton’s matter, respondent intentionally, recklessly, or repeatedly failing to perform legal services with competence, a wilful violation of Rule 3-110(A) of the Rules of Professional Conduct.
Statement of Facts: Count Four (Case No. 04-0-14514) (The Appleton Matter)
32. Respondent wilfully violated Business and Professions Code, section 6068(m), by failing to keep a client reasonably informed of significant developments in a matter in which respondent had agreed to provide legal services, as follows:
33. On February 20, 2004, respondent submitted to the criminal court a Plea in Abstentia, delineating the terms of the plea bargain and anticipated sentence for Appleton, stating that he would receive a fine of $524 including penalties and assessments, imposition of sentence to be suspended, credit for time served and 18 months court probation, that he would serve 2 days in county jail with 2 days credit for time served. Respondent did not attend the plea and disposition hearing and sent another attorney in her place. At the proceeding, Judge Dekreon deviated from the plea agreement and instead sentenced Appleton to 90 days in county jail, execution suspended, three years of court probation, two days county jail, with two days credit time served, a fine of $728 with penalty assessment, a fine of $200, which was suspended, and 3 months in the First Offender program, and Appleton was issued a restricted license for 3 months. Neither the attorney who respondent sent in her place nor the District Attorney, who entered into the plea agreement with respondent objected or inquired of the court why it was deviating from the plea agreement.
34. Respondent failed to inform Appleton of the changes in his sentencing that occurred on February 20, 2004.
35. On March 10, 2004, respondent filed a motion to withdraw Appleton’s guilty plea, without informing Appleton of her actions.
36. On March 31, 2004, Appleton contacted the court clerk’s office to find out about his paperwork and fees. The clerk advised Appleton that his matter was still pending. Appleton requested that the clerk fax him portions of his case and that is when he first knew about the change in his sentencing.
Conclusions of Law: Count Four (Case No. 04-0-14514) (The Appleton Matter)
37. By failing to promptly inform Appleton about the change in his sentencing, and by failing to inform Appleton that she had filed a motion to withdraw his guilty plea, respondent failed to keep a client reasonably informed of significant developments in a matter in which respondent had agreed to provide legal services, a wilful violation of Business and Professions code section 6068(m).
Statement of Facts: Count Five (Case No. 05-O-00144) (The Vera/Ortega Matter}
38. Respondent wilfully violated Rules of Professional Conduct, rule 3-310(F), by accepting compensation for representing a client from one other than the client without complying with the requirement(s) that there was no interference with respondent’s independence of professional judgment or with the client-lawyer relationship; and information relating to representation of the client was protected as required by Business and Professions Code section 6068(e); and respondent obtained the client’s informed written consent, as follows:
39. On April 21, 2003, respondent agreed to represent Alejandro Ortega in his murder trial, for the sum of $30,000.00.
40. On April 21, 2003, respondent met with Alejandro’s sisters Candice Vera and Giselle Ortega and received from them the sum of $5,000.00 as attorney’s fees. Candice Vera and Giselle Ortega executed the fee agreement despite the fact that respondent was fully aware that Alejandro was her client.
41. Respondent never obtained Alejandro’s written consent to accept fees from someone other than him in his criminal law matter.
42. Respondent never advised Alejandro in writing that while she was accepting fees from someone other than her client that there would be no interference with respondent’s independence of professional judgment or with the attorney-client relationship.
43. Respondent never advised Alejandro in writing that while she was accepting fees from someone other than her client that any and all information relating to representation of the client was protected as required by Business and Professions Code section 6068(e).
44. On April 23, 2003, the public defender’s office filed a motion to substitute private counsel in Alejandro’s matter.
45. On May 5, 2003, respondent was formally substituted in as Alejandro’s counsel.
46. On May 6, 2003, Candice Vera telephoned respondent and terminated her services. Vera believed she had the authority to terminate respondent, because Vera had paid the attorney’s fees.
47. On May 7, 2003, respondent spoke with Giselle Ortega and informed her that respondent needed to speak with Alejandro prior to withdrawing.
48. On May 12, 2003, Candice Vera called the respondent and requested an itemized bill and an accounting. Candice Vera again stated that respondent was terminated from representing Alejandro effective immediately.
49. On May 14, 2003 Candice Vera and Giselle Ortega sent a fax to respondent requesting an itemized bill and stating that she had failed to return their calls.
50. On May 24, 2003, respondent spoke with Alejandro who informed her that he no longer wanted her services.
51. On June 11, 2003, respondent filed a motion to withdraw as counsel and the court scheduled the heating on the motion for June 27, 2003. Respondent remained attorney of record for Alejandro and continued to work on his matter until she was relieved of her representation on June 28, 2003.
Conclusions of Law: Count Five (Case No. 05-0-00144) The Vera/Ortega Matter)
52. By accepting fees from Candice Vera and Giselle Ortega for the representation of Alejandro Ortega, failing to insure that the attorney-client relationship would not be interfered upon and failing to obtain written consent from Alejandro Ortega to accept fees from Candice Vera and Giselle Ortega, respondent wilfully violated Rule 3-310(f) of the Rules of Professional Conduct.
Statement of Facts: Count Six (Case No. 05-O-01513) (The Wong Matter)
53. Respondent wilfully violated Business and Professions Code, section 6068(m), by failing to respond promptly to reasonable status inquiries of a client, in which respondent had agreed to provide legal services, as follows:
54. On February 16, 2004, respondent was hired by Raymond Wong ("Wong") to file an appeal to his sentencing in his criminal case for a violation of penal code section 422, which he plead guilty to on February 9, 2004. Wong was sentenced to 2 days in county jail, with credit for time served, placed on 5 year probation, was ordered to stay away from his ex-wife, and his children, ordered to pay a fine of $200.00, ordered to attend anger management counseling and had the standard probation conditions. Wong’s desired outcome was to have the stay away order removed so that he could see his children.
55. On February 16, 2004, respondent received from Wong the sum of $3,500.00 as a flat fee for her legal services.
56. Wong informed respondent that he would be leaving for China and inquired whether she could proceed without him.
57. Subsequently, Wong left for China and provided respondent with his brother’s phone number, a cell phone number for himself in China.
58. From February 16, 2004 through April 11, 2005, respondent never filed an appeal on Wong’s behalf.
59. In August 2004, Wong filed a formal complaint with the State Bar against respondent, alleging a failure to perform.
60. On August 2, 2004, Wong wrote to respondent and requested that she provide him with a copy of his appeal, and requested a status update.
61. Respondent received Wong’s August 2, 2004 letter and did not respond to his request.
62. On February 17, 2005, respondent wrote to Wong and informed him that she would be unavailable from February 25, 2005 through April 1, 2005. Respondent stated the following:
"I have not spoken to you in over one year. We need to discuss your P.C. 422 conviction and the modification of the restraining order as it relate to your visitation with your children."
63. On March 21, 2005, Wong wrote to respondent and requested that she provide him with a copy of his appeal and requested a status update. Wong provided respondent with his address and phone number.
64. Respondent received Wong’s March 21, 2005 letter and did not provide Wong with a copy of the appeal.
65. On April 11, 2005, respondent wrote to Wong and informed him that she had set a court date for a motion to modify his Oakland probation. She informed Wong that the court date was April 26, 2005.
66. On or about April 26, 2005, respondent wrote to Wong and stated the following:
"Yesterday we appeared in Alameda County, Department 11 before Judge Thomas Reardon seeking modification for your probation to change the restraining order currently in place as to your daughters, Samantha and Tiffany."
67. After May 24, 2005, respondent did not perform any legal services on Wong’s behalf, and did not communicate with him with respect to his matter.
68. Wong alleges that his family law attorney entered into a stipulation to allow him to see his children, sometime in 2006.
Conclusions of Law: Count Six (Case ~o. 05-0-01513 (The Wong Matter)
69. By failing to respond to Wong’s request of August 2, 2004, and March 21, 2005, respondent failed to respond promptly to reasonable status inquiries of a client, in which respondent had agreed to provide legal services, a wilful violation of Business and Professions Code section 6068(m).
Respondent admits that the aforementioned facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was May 26, 2006.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of May 26, 2006, the estimated prosecution costs in this matter are approximately $7,197.25. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court Costs which will be included in any final cost assessment. 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.
AGGRAVATING CIRCUMSTANCES.
Prior Discipline: Respondent received a public reproval in January 2001.
STATE BAR ETHICS SCHOOL.
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
SIGNATURE OF THE PARTIES
Case Number(s): 03-O-04622; 04-0-14514; 05-O-00144; 05.-O-01513
In the Matter of: Kathleen McCasey
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: Kathleen McCasey
Date: June 6, 2006
Respondent’s Counsel: Jonathan Arons
Date: June 6, 2006
Deputy Trial Counsel: Maria J. Oropeza (not signed)
Date:
Case Number(s): 03-O-04622; 04-0-14514; 05-O-00144; 05.-O-01513
In the Matter of: Kathleen McCasey
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.
Page 1, Section A-(3)- Delete 14, add 15.
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 135, 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 9.53(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard Platel
Date: 6/19/06
[Rule 62(b), Rules Proc.; 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 June 22, 2006, 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:
JONATHAN IRWIN ARONS
LAW OFC JONATHAN I ARONS
101 HOWARD ST #310
SAN FRANCISCO, CA 94105
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MARIA J. OROPEZA, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in Los Angeles , California, on June 22, 2006.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court