Case Number(s): 05-O-03286
In the Matter of: David Alexander Welch, Bar # 177443, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erin McKeown Joyce, Bar # 149946
Counsel for Respondent: Erica A. Tabachnick, Bar # 94324
Submitted to: assigned judge State Bar Court Clerk’s Office Los Angeles
Filed: August 22, 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 July 18, 1995.
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 12 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 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 to be paid in equal amounts 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.
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.
Respondent fully cooperated in the investigation of this matter and was candid with the State Bar throughout the investigation.
Respondent submitted to the State Bar several letters attesting to his good character. The individuals who submitted character letters stated that the misconduct set forth in this stipulation was aberrational.
IN THE MATTER OF: DAVID ALEXANDER WELCH
CASE NUMBER: 05-0-03286
FACTS AND CONCLUSIONS OF LAW
Respondent admits that the following facts are true and that he is culpable of violating rule 3-110(A) of the Rules of Professional Conduct.
Facts
1. In late 2003, Brent Hoag, an experienced real estate broker, employed Respondent to remove a restriction on the title era home that Hoag had recently purchased in a small subdivision of San Diego called Fenelon Heights. Hoag planned to add a second level to the existing house. However deed restrictions on the property prevented Hoag from building a second story.
2. Prior to undertaking the Hoag representation, Respondent concentrated his practice on criminal law. The Hoag representation was one of the first real property matters Respondent ever handled.
3. Hoag paid Respondent $3,000.00 s a flat fee to quiet title and remove the cloud on the title of the property.
4. At the time Hoag met initially with Respondent, Hoag provided "Declaration of Restrictions" which had been prepared by "Southern Title and Trust Company, a corporation formerly called Southern Title Guaranty Company" in 1949.
5. Respondent believed the proper defendants in Hoag’s contemplated quiet title action were the drafters of the restrictions on his property. Respondent assigned to his paralegal the task of locating the drafters of the restrictions. Respondent’s paralegal conducted a search for the entities which drafted the official restrictions. He searched the records of the California Secretary of State, Department of Real Estate, Department of Insurance as well as conducting a general internet search. By conducting the search, Respondent discovered that the two entities that drafted the restrictions were no longer in existence. Accordingly, Respondent determined that service should be effected by publication and the defendants should be named as DOES.
6. Respondent should have known that Hoag’s neighbors in the Fenelon Heights subdivision were proper parties to the quiet title action and that with the exercise of reasonable diligence in performing basic legal research, Respondent would have discovered that Hoag’s neighbors were proper defendants to the quiet title action.
7. On December 18, 2003, Respondent filed a Complaint for Declaratory Relief, Quiet Title, Partial Cancellation of Instrument and to Remove Cloud on Title on behalf of Hoag, in San Diego Superior Court entitled Brent Hoag v. John Doe, and all persons unknown, claiming any legal or equitable rights, title, estate, lien or interest in the property described in the complaint adverse to Plaintiff’s tile, or any cloud on Plaintiff’s title thereto [and DOES 1-50 inclusive], case number GIC 823019.
8. Respondent alleged in paragraph 2 of the complaint that:
All Defendants JOHN DOE and DOES 1-50, inclusive, are sued herein under fictitious names. Their true names and capacities are unknown to Plaintiff. When their true names and capacities are ascertained, Plaintiff will amend this complaint by inserting their true names and capacities herein. Plaintiff is informed and believes and thereon alleges that each of these fictitiously named defendants claim some right, title, estate, lien or interest in the hereinafter described property adverse to Plaintiff’s title .... "
9. On February 2, 2004, Respondent filed a declaration under penalty of perjury, dated January 15, 2004, in support of an Ex Parte Application for Order For Publication of Summons. In his declaration, Respondent declared that he was unable to identify or locate the DOE defendants. Specifically, in paragraph 5 of his declaration, Respondent averred that I have been unable to identify nor locate said defendants, within or without the State of California, despite reasonable efforts and diligence.
10. In paragraph 6 of his January 15, 2004 declaration, Respondent averred that:
It is important to note that the restrictions Plaintiff desires to remove from the title were placed on it in 1949, and all entities from that time are either no longer in existence or have transmuted into forms unknown.
11. On February 4, 2004, Judge John S. Meyer granted Respondent’s Application for Publication.
12. On May 7, 2004, Respondent filed a Declaration under penalty of perjury, dated May 7, 2004, in Support of Application for Default Judgment declaring that "the defendants’ true identities are unknown to plaintiff’ and that "the defendants were served by publication and the time for an answer to be filed has expired."
13. On May 11, 2004, Judge Meyer issued a Judgment by Court After Default.
14. Once the default judgment was obtained, Hoag attempted to use the default judgment to prevent his neighbors from contesting the construction of a second story on his property. His neighbors were successful in obtaining an order vacating the default judgment, since they were proper parties to the quiet title action who did not receive notice of the quiet title action.
Conclusions of Law
By failing to do the reasonable legal research as to the proper parties to the quiet title action, failing to name as defendants Hoag’s neighbors in the Fenelon Heights subdivision in the quiet title action, and failing to properly serve notice on Hoag’s neighbors, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in violation of Rule of Professional Conduct 3-110(A).
AUTHORITIES SUPPORTING DISCIPLINE
STANDARDS FOR ATTORNEY SANCTIONS
To determine the appropriate level of discipline, the standards provide guidance. Drociak v. State Bar (1991) 52 Cal.3d 1085; In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119. A disciplinary recommendation must be consistent with the discipline in similar proceedings. See Snyder v. State Bar (1990) 49 Cal.3d 1302. Also, the recommended discipline must rest upon a balanced consideration of relevant factors. In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119.
Pursuant to Standard 1.3 o f the Standards for Attorney Sanctions for Professional Misconduct:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the protection of public confidence in the legal profession.
Pursuant to Standard 2.4(b) of the Standards for Attorney Sanctions for Professional Misconduct:
Culpability of a member of a violation of role 3-110(A) of the Rules of Professional Conduct shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Where the extent of the misconduct is relatively small, and Respondent fully cooperated with the State Bar’s investigation, imposition of a reproval is warranted. In the Matter of Respondent G (Review Dept. 1992) 2 Cal State Bar Ct. Rptr. 175 (private reproval imposed where violation was deemed minor incident of failure to perform services with competence which was followed by the respondent’s candor and cooperation). In this case the imposition of a public reproval complies with the standards and adequately protects the public and the profession.
PENDING PROCEEDINGS
The disclosure date referred to, on page one, paragraph A(7), was July 31, 2006.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-03286
In the Matter of: David Alexander Welch
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: David Alexander Welch
Date: 8-7-06
Respondent’s Counsel: Erica A. Tabachnick
Date: 8/8/06
Deputy Trial Counsel: Erin McKeown Joyce
Date: 8-10-06
Case Number(s): 05-O-03286
In the Matter of: David Alexander Welch
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: Robert M. Talcott
Date: 8/18/06
[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 August 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:
ERICA TABACHNICK, A/L
900 WILSHIRE BLVD #1000
LOS ANGELES CA 90017
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERIN JOYCE, A/L, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 22, 2006.
Signed by:
Rose M. Luthi
Case Administrator
State Bar Court