Case Number(s): 05-J-04095
In the Matter of: Robert Daniel Simcoe, Bar # 96696, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Rizamari C. Sitton, Bar # 138319,
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles
Filed: March 20, 2006.
<<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 23, 1980.
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 28 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." See Attachment 1.
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law". See Attachment 2
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority." See Attachment 3
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 added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. Case ineligible for costs (private reproval).
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: . (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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
[l] Respondent shall comply with all terms and conditions, if any, imposed in the underlying disciplinary orders of the Supreme Court of the State Of Oregon in Case No. 99-29 (issued on 05/23/00) and Case No. 05-97 (issued on 08/26/05). Certified copies of the orders are attached as Exhibits 1 and 3. Respondent shall declare his compliance under penalty of perjury in conjunction with any reporting to the Probation Unit of the State Bar of California.
[2]Within one (I) year of the effective date of the discipline herein, Respondent must provide to the Probation Unit (formerly known as Office of Probation) satisfactory proof of attendance and completion of at least six (6) hours of continuing legal education (CLE) in legal ethics in Oregon.
IN THE MATTER OF: Robert Daniel Simcoe, State Bar No. 96696
STATE BAR COURT CASE NUMBER: 05-J-04095
ATTACHMENT 1: FACTS
STIPULATED FACTS
Respondent admits and stipulates that the following facts are true and that he/she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Discipline in Other Jurisdiction
1. On August 26, 2005, the Supreme Court of the State of Oregon issued an order in its Case no. 05-97, imposing attorney discipline of public reprimand on Respondent, upon findings that Respondent had committed professional, disciplinable misconduct in that jurisdiction. Its findings were based on a stipulation between Respondent and the Oregon State Bar. The Oregon Supreme Court order is now final. A certified copy of the order is attached as Exhibit 1.
2. Based on the facts set forth below, the Supreme Court of the State of Oregon concluded that Respondent committed a single act of misconduct. Specifically, it found that Respondent "neglect[ed] a legal matter entrusted to the lawyer." A copy of the pertinent Oregon rule of professional conduct is attached as Exhibit 2.
3. In determining the sanctions to impose, the Oregon Supreme Court considered Respondent’s prior record of discipline in its jurisdiction (see Attachment 4).
Facts Supporting Discipline in Other Jurisdiction
Respondent stipulated to the following facts in the underlying disciplinary Case no. 05-97 in the Supreme Court of the State of Oregon. Respondent now reasserts pertinent facts for purposes of this Stipulation.
4. On August 21, 2002, Respondent was employed to represent a wife in claiming various benefits due to her following her husband’s death. The client’s claims included a claim on an annuity account from the National Electrical Annuity Plan (NEAP) and accidental death insurance benefits from Southern Oregon Credit Union (SOCU). On August 22, 2002, using account information supplied by his client, Respondent sent letters to NEAP and SOCU requesting claim forms to collect benefits due to the client.
5. In October 2002, Respondent received a letter from NEAP requesting a signed authorization from his client and a copy of the death certificate for his client’s deceased husband. The letter from NEAP was stamped with a telephone number and the statement "PLEASE CALL THE OFFICE AT YOUR EARLIEST CONVENIENCE TO DISCUSS THIS MATTER."
6. In February 2003, the client provided Respondent a copy of her husband’s death certificate.
7. Respondent took no further action to collect the NEAP annuity after February 2003.
8. In June 2003, Respondent delivered an Accidental Death Benefits claim form to his client with instructions to complete the form and return the form to Respondent. The client immediately returned the form to Respondent with a request that Respondent complete the form on her behalf.
9. After June 2003, Respondent took no further action to assure that the Accidental Death Benefits claim form was completed and submitted to the insurer.
10. Respondent’s services were terminated in May 2004.
ATTACHMENT 2: CONCLUSIONS OF LAW
IN THE MATTER OF: Robert Daniel Simcoe, California Bar no. 96696
CASE NUMBER(S): 05-J-04095
CONCLUSIONS OF LAW
Respondent admits that he is culpable of violations of the following statutes and/or Rules of Professional Conduct,
1. By not pursuing his client’s claim on an annuity account from the National Electrical Annuity Plan and by not pursuing her claim for accidental death insurance benefits from Southern Oregon Credit Union, Respondent repeatedly failed to perform the legal services for which he was hired. By repeatedly failing to perform the legal services for which he was hired, Respondent wilfully violated California Rules of Professional Conduct, rule 3-110(A).
FURTHER STIPULATED CONCLUSIONS PURSUANT TO BUSINESS AND PROFESSIONS CODE SECTION 6049.1.
2. A certified copy of a final order made by any court authorized by law or by rule of court to conduct disciplinary proceedings against attorneys of the United States, determining that a member of the California State Bar committed professional misconduct in such other jurisdiction, shall be conclusive evidence that the member is culpable of professional misconduct in this state. California Business and Professions Code section 6049.1(a).
3. Respondent’s culpability determined in the disciplinary proceedings in In re: Complaint as to the Conduct of Daniel Simcoe, Case no. 05-97, in the Supreme Court of the State of Oregon, warrants the imposition of discipline in the State of California under the laws or rules in effect in this State at the time the misconduct was committed. California Business and Professions Code section 6049.1(b)(2).
4. The proceedings in the other jurisdiction provided respondent with fundamental constitutional protection. California Business and Professions Code section 6049.1(b)(3).
ATTACHMENT 3: SUPPORTING AUTHORITY
IN THE MATTER OF: Robert Daniel Simcoe, California Bar no. 96696
CASE NUMBER(S): 05-J-04095
SUPPORTING AUTHORITY
1. Culpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client. Standards for Attorney Sanctions for Professional Misconduct, Standard 2.4(b).1 [Footnote: 1. All references to "’Standards" are references to the Standards for Attorney Sanctions for Professional Misconduct in the Rules of Procedure of the State Bar of California.]
2. 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(0, 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 1.7(a).
3. "Prior record of discipline" is a previous imposition or recommendation of discipline of the member as defined by rule 216, Rules of Procedure of the State Bar. Standard 1.209. A prior record of discipline may include records from any jurisdiction stated in Business and Professions Code section 6049.1. Rules of Procedure of the State Bar of California, rule 216(a).
4. California Rules of Professional Conduct shall govern the activities of members in and outside of California. California Rules of Professional Conduct, rule 1-100(D)(1).
[Footnote: 1. All references to "’Standards" are references to the Standards for Attorney Sanctions for Professional Misconduct in the Rules of Procedure of the State Bar of California.]
ATTACHMENT 4: PRIOR DISCIPLINE
IN THE MATTER OF: Robert Daniel Simcoe, California Bar no. 96696
CASE NUMBER(S): 05-J-04095
PRIOR RECORD OF DISCIPLINE IN OTHER JURISDICTION
1. On May 23, 2000, the Supreme Court of the State of Oregon issued an order in its Case no. 99-79, imposing attorney discipline of public reprimand on Respondent. Specifically, the Court found that Respondent "violated a duty owed to his client to properly handle her property", and "also violated a duty to his client to refrain from situations involving conflicts of interest." Its findings were based on a stipulation between Respondent and the Oregon State Bar. A certified copy of the order is attached as Exhibit 3.
2. The facts and circumstances that supported the discipline in Respondent’s prior record of discipline in Oregon are as follows.
In 1997, Respondent represented the owner ("Client") of a dance studio in legal matters, including the preparation of contracts with student dance teachers. The contracts had a non-competition clause.
A parent ("Adverse Party") of one of the student dance teachers telephoned Respondent to discuss the implications of the non-competition clause. The Adverse Party asked Respondent whether the clause was legal. Respondent informed the Adverse Party that he represented the owner of the studio, and that he could not say anything about the contract itself. However, Respondent also informed the Adverse Party that any contract signed by a minor is voidable.
The Adverse Party’s interests were, or had a reasonable possibility of being, in conflict with the interests of the Client. Respondent’s statement about the voidability of minor contracts constituted advice to an unrepresented person whose interests were, or had a reasonable possibility of being, in conflict with the interests of the Client.
Respondent’s employment terminated in December 1997 or early 1998. In April 1998, the client asked Respondent for the release of the unexecuted wills that Respondent had prepared for her. Respondent did not release the documents to the client.
IN THE SUPREME COURT OF THE STATE OF OREGON
In Re:
Compliant as to the Conduct of Daniel Simcoe, Accused.
Case No. 05-97
ORDER APPROVING STIPULATION FOR DISCIPLINE
RECEIVED: August 31, 2005 – Disciplinary Counsel
This matter having been heard upon the Stipulation for Discipline entered into by the Accused and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the stipulation between the parties is approved and the Accused is publicly reprimanded, for violation of DR 6-10103).
DATED this 26 day of August, 2005.
Signed by:
Michael C. Zusman, Esq.
State Disciplinary Baord Chairperson
Signed by:
R. Paul Frasier, Esq., Region 3
Disciplinary Board Chairperson
IN THE SUPREME COURT OF THE STATE OF OREGON
In Re:
Complaint as to the Conduct of DANIEL SIMCOE, Accused.
Case No. 05-97
STIPULATION FOR DISCIPLINE
Daniel Simcoe, attorney at law, (hereinafter, "the Accused") and the Oregon State Bar (hereinafter, "the Bar"), hereby stipulate to the following matters pursuant to Oregon State Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9, relating to the discipline of attorneys.
2.
The Accused was admitted by the Oregon Supreme Court to the practice of law in Oregon on April 13, 1981, and has been a member of the Oregon State Bar continuously since that time, having his office and place of business in Josephine County, Oregon.
3.
The Accused enters into this Stipulation for Discipline freely and voluntarily. This Stipulation for Discipline is made under the restrictions of Bar Rule of Procedure 3.6(h).
4.
On July 16, 2005, the State Professional Responsibility Board authorized formal disciplinary proceedings against the Accused for an alleged violation of DR 6-101(B) of the Code of Professional Responsibility, The parties intend that this stipulation set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of this proceeding.
Facts
5.
On August 21, 2002, the Accused undertook to represent a wife in claiming various benefits due to her following her husband’s death. The client’s claims included a claim on an annuity account from the National Electrical Annuity Plan (NEAP) and accidental death insurance benefits from Southern Oregon Credit Union (SOCU). On August 22, 2002, using account information supplied by his client, the Accused sent letters to NEAP and SOCU requesting claim forms to collect benefits due to the client.
6.
On or about October 7, 2002, the Accused received a letter from NEAP requesting a signed authorization from his client and a copy of the death certificate for his client’s deceased husband. The letter from NEAP was stamped with a telephone number and the statement PLEASE CALL THE OFFICE AT YOUR CONVENIENCE TO DISCUSS THIS MATTER". Thereafter, in February 2003, the client provided a copy of her husband’s death certificate to the Accused. The Accused took no further action to collect the NEAP annuity between that date and the termination of his representation in May 2004.
7.
On or about June 3, 2003, the Accused delivered an Accidental Death Benefits Claim Form to his client with instructions to complete the form and return the form to the Accused. The Accused’s client immediately returned the form to the Accused with a request that the Accused complete the form. The Accused took no further action to assure that the form was completed and submitted to the insurer between that date and the termination of his representation in May 2004.
Violations
8.
The Accused admits that, by engaging in the conduct described in this stipulation, he violated DR 6-101(B) of the Code of Professional Responsibility.
Sanction
9.
The Accused and the Bar agree that in fashioning an appropriate sanction in this case, the Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions (hereinafter, "Standards"). The Standards require that the Accused’s conduct be analyzed by considering the following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or potential injury; and (4)the existence of aggravating and mitigating circumstances.
a. Duty Violated. The Accused violated his duty to diligently represent his client. Standards § 4.4
b. Mental State. The Accused negligently confused his client’s claim to a NEAP annuity with another pension claim which had been denied and the Accused negligently believed that his client possessed but failed to complete the insurance claim form.
c. Injury. The Accused’s client suffered actual injury since the resolution of her claims and collection of benefits were substantially delayed.
d. Aggravating Factors. Aggravating factors include:
1. The Accused was publicly reprimanded on May 23, 2000 for violation of DR 7-104(A)(2) and DR 9-101(C)(4) of the Code of Professional Responsibility. Standards § 9.22(a).
2. The Accused had substantial experience in the practice of law. Standards § 9.22(i).
e. Mitigating Factors. Mitigating factors include:
1. The Accused did not act from a dishonest or selfish motive. Standards § 9.32(b).
10.
The Standards provide that reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. Standards § 4.43.
11.
Oregon case law is in accord. In re Brown, 18 DB Rptr 147 (2004) (lawyer with prior 16 unrelated disciplinary history publicly reprimanded for one violation of DR 6-101(B)); In re Fox, 17 DB Rptr 169 (2003) (lawyer previously admonished for neglect was publicly reprimanded for a single violation of DR 6-101(B)).
12.
Consistent with the Standards and Oregon case law, the parties agree that the Accused 21 shall be publicly reprimanded for violation of DR 6-101(B) of the Code of Professional Responsibility.
13.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Oregon State Bar and to approval by the State Professional Responsibility Board (SPRB). If approved by the SPRB, the parties agree the stipulation is to be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 17 day of August, 2005.
Signed by:
Daniel Simcoe
OSB No. 81024
EXECUTED this 22 day of August, 2005.
OREGON STATE BAR
Signed by:
Linn D. Davis
OSB No. 03222
Assistant Disciplinary Counsel
I, Daniel Simcoe, being first duly sworn, say that I am the Accused in the above-entitled proceeding and that I attest that the statements contained in the stipulation are true and correct as I verily believe.
Subscribed and sworn to before me this 17th day of August, 2005.
NOTARY PUBLIC for OREGON
Signed by:
Cheryl Bishop
Commission Expires: November 4, 2007
I, Linn D. Davis, being first duly sworn, say that I am Assistant Disciplinary Counsel for the Oregon State Bar and that I attest that I have reviewed the foregoing Stipulation for Discipline and that the sanction was approved by the SPRB for submission to the Disciplinary Board on the 16th day of July, 2005.
Signed by:
Linn D. Davis
Subscribed and sworn to before me this 22nd day of August, 2005.
Notary Public For Oregon
Singed by:
Raya J. Levin
Commission Expires: April 16, 2008
Oregon Code of Professional Responsibility (02/03)
DR 5-110 Sexual Relations with Clients
(A) A lawyer shall not have sexual relations with a current client of the lawyer unless a consensual sexual relationship existed between them before the lawyer/client relationship commenced.
(B) A lawyer shall not have sexual relations with a representative of a current client of the lawyer if the sexual relations would, or would likely, damage or prejudice the client in the representation.
(C) For purposes of DR 5-110 "sexual relations" means:
(1) Sexual intercourse; or
(2) Any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the lawyer for the purpose of arousing or gratifying the sexual desire of either patty.
(D) For purposes of DR 5-I 10 "lawyer" means any lawyer who assists in the representation of the client, but does not include other firm members who provide no such assistance.
Disciplinary Rule 6
Competence and Diligence
DR 6-101 Competence and Diligence
(A) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
(B) A lawyer shall not neglect a legal matter entrusted to the lawyer. DR 6-102 Limiting Liability to Client
(A) A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith. (B) A lawyer shall not enter into any agreement with a client regarding arbitration of malpractice claims without full disclosure.
Disciplinary Rule 7
Zealously Representing Clients within the Bounds of the Law
DR 7-101 Representing a Client Zealously
(A) A lawyer shall not intentionally:
(1) Fail to seek the lawful objectives of the lawyer’s client through reasonably available means permitted by law and these disciplinary rules except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of the lawyer’s client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
(2) Fail to carry out a contract of employment entered into with a client for professional services but the lawyer may withdraw as permitted under DR. 2-110, DR 5-102 and DR 5-105.
(3) Prejudice or damage the lawyer’s client during the course of the professional relationship except as required under DR 7-102(B).
(B) In the lawyer’s representation of a client, a lawyer may:
(1) Where permissible, exercise the lawyer’s professional judgment to waive or fail to assert a right or position of the lawyer’s client.
Electronic copies of all current master documents are maintained on the OSB website: http://www.osbar.org
IN THE SUPREME COURT OF THE STATE OF OREGON
In Re:
Complaint as to the Conduct of DANIEL SIMCOE, Accused.
Case No. 99-97
ORDER APPROVING STIPULATION FOR DISCIPLINE
This matter having been heard upon the Stipulation for Discipline entered into by the Accused and the Oregon State Bar, and good cause appearing,
IT IS HEREBY ORDERED that the terms of the stipulation between the parties are approved. The Accused is publicly reprimanded for violation of DR 7-104(A)(2) and DR 9-101(C)(4).
DATED this 23 day of May, 2000.
Signed by:
Derek C. Johnson
State Disciplinary Board Chairperson
Signed by:
Paul E. Meyer, Region 3
Disciplinary Board Chairperson
Dated: May 18, 2000
IN THE SUPREME COURT OF THE STATE OF OREGON
In Re:
Complaint as to the Conduct of DANIEL SIMCOE, Accused.
Case No. 99-97
STIPULATION FOR DISCIPLINE
Daniel Simcoe, attorney at law, (hereinafter, "the Accused") ahd the Oregon State Bar (hereinafter, "the Bar"), hereby stipulate to the following matters pursuant to Oregon State Bar Rule of Procedure 3.6(c).
1.
The Bar was created and exists by virtue of the laws of the State of Oregon and is, and at all times mentioned herein was, authorized to carry out the provisions of ORS Chapter 9, relating to the discipline of attorneys.
2.
The Accused, Daniel Simcoe, was admitted by the Oregon Supreme Court to the practice of law in Oregon on April 13, 1981, and has been a member of the Oregon State Bar continuously since that time, having his office and place of business in Josephine County, Oregon.
3.
The Accused enters into this Stipulation for Discipline freely and voluntarily. This Stipulation for Discipline is made under the restrictions of Bar Rule of Procedure 3.6(h).
On January 15, 2000, the State Professional Responsibility Board authorized formal disciplinary proceedings against the Accused for alleged violations of DR 7-104(A)(2) and DR 9-101(C)(4) of the Code of Professional Responsibility. The parties intend that this stipulation set forth all relevant facts, violations and the agreed-upon sanction as a final disposition of this proceeding.
Facts
5.
The Accused represented the owner of a dance studio ("the client"). The Accused’s son took lessons from the client’s studio in exchange for the Accused’s legal services. A dispute arose in the dance studio between the client and a choreographer who worked for her. The latter was fired and threatened to set up a competing business. Concerned about competition, the client drafted contracts to be signed by her student dance teachers that included non-competition clauses. The father of one of these student teachers was concerned about the implications of the non-competition clause and called the Accused to ask whether the clause was legal. The father advised the Accused that he had told his daughter she would not sign the contract. The Accused informed the father that he represented he client and could not say anything about the contract itself. However, the Accused then informed the father that any contract signed by a minor is voidable.
6.
The father’s interests were, or had a reasonable possibility of being, in conflict with the interests of the Accused’s client. The Accused’s statement about the voidability of contracts signed by minors constituted advice to an unrepresented person whose interests were, or had a reasonable possibility of being, in conflict with the interests of the client.
7.
The Accused’s representation of the client terminated in December 1997 or early 1998. In April 1998, the client asked the Accused to return unexecuted wills he had prepared for her and her husband. The Accused failed to do so promptly.
Violations
8.
The Accused admits that, by engaging in the conduct described in this stipulation, he violated DR 7-104(A)(2) and DR 9-101(C)(4).
Sanction
9.
The Accused and the Bar agree that in fashioning an appropriate sanction in this case, the Disciplinary Board should consider the ABA Standards for Imposing Lawyer Sanctions (hereinafter, "Standards"). The Standards require that the Accused’s conduct be analyzed by considering the following factors: (1) the ethical duty violated; (2) the attorney’s mental state; (3) the actual or potential injury; and (4) the existence of aggravating and mitigating circumstances.
a. Duty Violated. The Accused violated a duty owed to his client to properly handle her property. Standards § 4.1. He also violated a duty to his client to refrain from situations involving conflicts of interest. Standards § 4.3.
b. Mental State. The Accused’s mental state was negligent, in that he failed to heed a substantial risk that circumstances existed or that a result would follow, which failure was a deviation from the standard of care that a reasonable lawyer would have exercised under the circumstances. See ABA Standard at 17.
c. Injury. The client was potentially injured when the Accused gave legal advice to someone whose interests were adverse to her own. She was also inconvenienced by the Accused’s failure to turn over her documents promptly.
d. Aggravating Factors. Aggravating factors to be considered include:
1. Substantial experience in the practice of law (Standards § 9.22(i)).
e. Mitigating Factors. Mitigating factors include:
1. Absence of a prior disciplinary record (Standards § 9.32(a));
2. Absence of a dishonest or selfish motive (Standards § 9.32(b)); and
3. Cooperative attitude toward the disciplinary process (Standards § 9.32(e)).
10.
In the following cases, attorneys were publicly reprimanded for failing to return client files promptly: In re Brownlee, 9 DB Rptr. 85 (1995); [n re Melkonian, 12 DB Rptr. 224 (1998).
11.
There is very little case law applying DR 7-104(A)(2). In In re Jeffery, 321 Or 360, 898 P2d 752 (1995), an attorney who violated this rule by giving legal advice to his client’s girlfriend (who was also a criminal informant against his client) was held to violate DR 7-104(A)(2). However, Jeffery was also charged with (and found to have violated) several other disciplinary rules, including multiple client conflicts of interest, conflicts of interest involving his own self-interest, and conduct prejudicial to the administration of justice, Jeffery was suspended for nine months. DR 7-104(A)(2) is analogous, however, to the ethical rule prohibiting multiple client conflicts of interest, in that it is meant to insure undivided loyalty to the client. Cases involving violations of DR 5-105(E) that resulted in public reprimands include the following: In re Cohen, 316 Or 657, 853 P2d 286 (1993); In re Taub, 7 DB Rptr 77 (1993); In re Vaughn, 12 DB Rptr. 179 (1998).
12.
Consistent with the Standards and Oregon case law, the parties agree that the Accused shall be publicly reprimanded for violation of DR 7-104(A)(2) and DR 9-101(C)(4).
13.
This Stipulation for Discipline is subject to review by Disciplinary Counsel of the Oregon State Bar and to approval by the State Professional Responsibility Board (SPRB). If approved by the SPRB, the parties agree the stipulation is to be submitted to the Disciplinary Board for consideration pursuant to the terms of BR 3.6.
EXECUTED this 11 day of May,2000.
Signed by:
Daniel Simcoe, OSB No. 81024
EXECUTED this 15th day of May ,2000.
Oregon State Bar
Signed by:
Mary A. Cooper OSB No. 91001
Assistant Disciplinary Counsel
I, Darnel Simcoe, being first duly sworn, say that I am the Accused in the above-entitled proceeding and that I attest that the statements contained in the stipulation are true and correct as I verily believe.
Signed by:
DANIEL SIMCOE
Subscribed and sworn to before me this 11 day of May, 2000.
Notary Public For Oregon
Signed by:
Sherree L. Farmer
Commission Expires: September 4, 2001
I, Mary A. Cooper, being first duly sworn, say that I am Assistant Disciplinary Counsel for the Oregon State Bar and that I attest that I have reviewed the foregoing Stipulation for Discipline and that the sanction was approved by the SPRB for submission to the Disciplinary Board on the 15th day of January, 2000.
Signed by:
Mary A. Cooper
Subscribed and sworn to before me this 15 day of May, 2000.
Notary Public for Oregon
Signed by:
SANDY L GERBISH
Commission Expires: February 22, 2003
SIGNATURE OF THE PARTIES
Case Number(s): 05-J-04095
In the Matter of: Robert Daniel Simcoe
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: Robert Daniel Smcoe
Date: February 20, 2006
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Rizamari C. Sitton
Date: February 23, 2006
Case Number(s): 05-J-04095
In the Matter of: Robert Daniel Simcoe
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department 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 125(b), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: March 20, 2006
[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 March 20, 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:
ROBERT DANIEL SIMCOE
242 NW “E” ST
GRANTS PASS, OR 97526 2031
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Rizamari Sitton, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 20, 2006.
Signed by:
Milagro del R. Salmeron
Case Administrator
State Bar Court