Case Number(s): 05-O-03452
In the Matter of: Cynthia A. Thomas, Bar # 96180, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Manuel Jimenez, Bar # 218234
Counsel for Respondent: Bar #
Submitted to: settlement judge State Bar Court Clerk’s Office San Francisco
<<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 16, 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 13 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 284, Rules of Procedure.
checked. costs to be paid in equal amounts prior to February 1 for the following 3 billing cycles following the effective date of the Supreme Court Order. (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: CYNTHIA A. THOMAS
CASE NUMBER(S): 05-0-03452
FACTS AND CONCLUSIONS OF LAW.
Respondent acknowledges that she violated Business and Professions Code section 6068(m), as set forth below:
On or about May 21, 2004, Mark Anthony Jones was sentenced by the Superior Court to state prison for a term of 25 years to life. This sentencing was after the Court of Appeal had affirmed Mr. Jones’ conviction. While affirming the conviction, the Court of Appeal vacated Mr. Jones’ sentence and remanded the matter to the Superior Court for re-sentencing. The California Supreme Court denied Mr. Jones’ petition for review.
Respondent represented Mr. Jones in that original appeal to both the Court of Appeal and the California Supreme Court.
Prior to being re-sentenced, Mr. Jones filed a motion before the Superior Court for a new trial alleging that Mr. Jones’ constitutional rights under the sixth amendment to the U. S. Constitution were violated, citing to Crawford v. Washington (2004) 541 US 158. This motion was denied. Respondent also filed a motion with the Superior Court to strike his prior convictions. It was also denied.
Consequently, on or about May 21, 2004, Mr. Jones was sentenced by the Superior Court to state prison for a term of 25 years to life. Mr. Jones appealed that sentence.
On or about June 30, 2004, Respondent was appointed to represent Mr. Jones in the appeal after the re-sentencing, entitled, People v. Jones, California Court of Appeal, First Appellate District, Division Three, Appeal No. A106690.
Mr. Jones requested that Respondent raise in the appeal the motion for a new trial as well as the request to strike his prior convictions.
Respondent researched the application of Crawford v. Washington, a United States Supreme Court case that seemed to be applicable Mr. Jones’ case. (Crawford v. Washington, (2004) 124 S. Ct. 1354.) The Crawford decision was decided after her client’s, Mark Anthony Jones, initial appeal was over. Although as appointed counsel, respondent was not obligated to research the applicability of Crawford to Mr. Jones’ case for a possible habeas petition, (In re Clark (1993) 5 Cal.4th 750, 783, fn. 20), counsel accepted the responsibility to provide some assistance in this matter. However, respondent uncovered decisions that held that Crawford did not apply to the admission of "adoptive admission" evidence, which was the issue in Mr. Jones’ case. (See, People v. Roldan (2005) 35 Cal.4th 646
On or about October 28. 2004, Respondent sent Mr. Jones a letter and a copy of the opening brief she was filing in this new appeal. In her letter, Respondent informed Mr. Jones that in the appeal she had only raised the issue of his re-sentencing as cruel and unusual punishment. She wrote that she did this because her research revealed that on remand a trial court does not have the authority to hear a second motion for a new trial, but that if Proposition 66, which was attempting to narrow California’s three strikes rule, was approved by the voters in California in November 2004, she w file a supplemental brief in the Court of Appeal arguing that the case must be remanded for a new sentencing hearing. She also informed Mr. Jones that if Proposition 66 is not approved by the voters in California, she expects that she will file a petition for writ of habeas corpus addressing the motion for a new trial based on Crawford v. Washington.
On or about October 29, 2004, the Court of Appeal filed Respondent’s opening brief on behalf of Mr. Jones.
In or about early November 2004, the voters in California rejected Proposition 66.
On or about November 23, 2004, the State Attorney General’s Office filed its responsive brief in this matter.
Subsequent to in or about October 29, 2004, Respondent performed no further services in this matter. Respondent failed to file a supplemental brief or a petition for a writ of habeas corpus to address the motion for a new trial and Crawford v. Washington (2004) 541 US 158 or advise Mr. Jones that she was not going to do so. She failed to address the issues Mr. Jones asked her to address. Respondent also failed to provide Mr. Jones with a copy of the Attorney General’s brief, despite Mr. Jones’ numerous requests for that document. Respondent in effect withdrew from representing Mr. Jones without informing him of this or obtaining court permission.
Subsequent to on or about October 28, 2004. Respondent failed to communicate with Mr. Jones, despite Mr. Jones’ numerous attempts to contact Respondent and ascertain the status of his appeal and his request that a writ of habeas corpus be filed. Respondent also failed to deliver to Mr. Jones a copy of his file. the Attorney General’s brief, and the sentencing transcripts, despite Mr. Jones’ numerous requests for those papers. Despite not being required to do so under the court of appeal appointment, once she chose to undertake the task of researching the matter, counsel should have promptly communicated her findings to her client, and turned over all materials to him so that he could pursue the matter on his own.
On or about January 18, 2005, Mr. Jones attempted to file his own supplemental brief in the Court of Appeal, addressing the motion for a new trial based on Crawford v. Washington. He did so because he had not heard from Respondent, despite his numerous attempts to contact her. On or about January 25, 2005, the Court of Appeal rejected the filing of Mr. Jones’ supplemental brief because Mr. Jones was not in pro per but represented by Respondent.
On or about February 8, 2005, the Court of Appeal affirmed Mr. Jones’ sentence. Subsequently, Respondent failed to communicate with Mr. Jones, including failing to inform Mr. Jones of the Court of Appeal decision. Respondent also failed to advise Mr. Jones of his legal options. On or about April 20, 2005, Mr. Jones attempted to file a pleading in this matter with the California Supreme Court addressing the sentencing issues. He did so because he had not heard from Respondent, despite his numerous attempts to contact her. On or about April 25, 2005, the Supreme Court returned Mr. Jones’ pleading, which it designated a petition for review. The Clerk of the Supreme Court informed Mr. Jones that the Court of Appeal had affirmed the judgment against him on February 8, 2005 and that the Supreme Court lost jurisdiction to act on the petition for review on April 11, 2005. Until he received the April 25, 2005 notice from the Supreme Court, Mr. Jones did not know that the Court of Appeal had rendered a decision in his matter.
Counsel has stated that she had hoped to assist Mr. Jones, but as time passed she failed to communicate his options with him. While not abandoning her responsibility to complete the second appeal, and not interfering with Mr. Jones’ ability to pursue any federal claim by way of habeas corpus petition based on similar issues contained in the first appeal, counsel failed to properly communicate with Mr. Jones in a timely manner so that he could seek other recourse.
Counsel failed to transmit the record and file to Mr. Jones as he requested in a timely manner. Although respondent thought this had been done, due to personal problems, she failed to follow up and as a result Mr. Jones never received the file.
PENDING PROCEEDINGS.
As of August 29, 2006, Respondent has no pending investigations/proceedings not resolved by this stipulation necessitating disclosure as required, on page one, paragraph A.(7).
COSTS OF DISCIPLINARY PROCEEDINGS.
Costs to be paid in equal amounts prior to February 1 for the following three (3) billing cycles following the effective date of the Supreme Court order. Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of August 29, 2006, the estimated prosecution costs in this matter are approximately $2,296.00. 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.
AUTHORITIES SUPPORTING DISCIPLINE.
Standards
In determining the appropriate level of discipline, the court should look to the Standards for Professional Misconduct. In In re Morse (1995) 11 Cal App 184, 206, the California Supreme Court stated:
"’To determine the appropriate level of discipline ... we... must first look to the standards for guidance. ’These guidelines are not binding on us, but they promote the consistent and uniform application of disciplinary measures. Hence we have said that ’we will not reject a recommendation arising from application of the standards unless we have grave doubts as to the propriety of the recommended discipline.(Citation Omitted.)’"
Case Law
The Court should look at case authority in determining the appropriate level of discipline to determine whether the discipline is consistent or disproportional to prior decisions on the same set of facts. (In re Morse, supra, I 1 Cal.4th at pp. 207-208; Snyder v. State Bar (1990) 49 Cal.3d 1302, 1310-1311.) Similar cases can indicate appropriate discipline. Id.
Because an incarcerated client has a limited ability to assist an attorney or to stay apprized of the attorney’s efforts, the abandonment of an incarcerated client is a serious matter warranting substantial discipline. In the Matter of Nees (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 266.
Where respondent did not believe his client had a strong case and thought more evidence was needed in order to prevail, he had a choice: proceed diligently in advancing the client’s legitimate claims, or promptly advise the client that she had no meritorious claims and withdraw from representation if the client insisted on pursuing her claim. He could not simply let excessive time pass, lead his client to believe he would advance her claim and neither do so nor take appropriate action to withdraw so the client might consult other counsel. This course of action warranted a finding that respondent was culpable of incompetent representation. In the Matter of Rodriguez (Review Dept. 1993)2 Cal. State Bar Ct. Rptr. 480.
In a case where the Respondent had a prior discipline, including thirty (30) days actual suspension, Respondent was suspended for six months actual suspension for failing to act competently. The court held that an attorney has an obligation to perform services diligently and if the attorney knows he or she does not have or will not acquire sufficient time to do so, the attorney must not continue representation in the matter. Reckless or repeated inattention to client needs need not involve deliberate wrongdoing or purposeful failure to attend to duties in order to constitute wilful violation of duty to perform competently. Fact that respondent performed some services for a probate estate did not excuse his misconduct in delaying closure of the estate, especially where respondent’s asserted justification for delay was that he was busy on other matters. In the Matter of Layton (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 366.
In matters involving abandonment of a single client by an attorney with no prior record of discipline, discipline imposed by Supreme Court has ranged from no actual suspension to 90 days of actual suspension. Where respondent’s misconduct was serious, harmed client, and included trust account violation as well as abandonment and failure to communicate, but respondent presented impressive mitigating evidence, including services to disadvantaged clients and to minority community, and respondent expressed sincere aspiration not to be involved in disciplinary proceedings again, review department recommended actual suspension of 30 days, with stayed suspension of six months and one year of probation. In the Matter of Nunez (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 196.
AGGRAVATING CIRCUMSTANCES.
Harm (Standard 1.2(b)(iv). Because Respondent never advised her client about his legal options and never filed or discussed filing an appeal to the California Supreme Court, the time by which such an appeal had to be filed, never filed for a write of habeas corpus, nor any other actions on his behalf, the client lost the right to pursue his appeal because of Respondent.
MITIGATING CIRCUMSTANCES.
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
No Prior Discipline (Standard 1.2(e)(i)). Respondent was admitted to practice on December 16. 1980, and has no prior disciplinary record.
Extreme Emotional Difficulties. (Standard 1.2(e)(iv). Respondent, at the relevant time in question, was involved with the medical and emotional problems associated with the hospitalization and institutionalization of her mother.
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.
Respondent admits that the following facts are true and that he/she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-03452
In the Matter of: Cynthia A. Thomas
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: Cynthia A. Thomas
Date: 9/26/06
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Manuel Jimenez
Date: September 27, 2006
Case Number(s): 05-O-03452
In the Matter of: Cynthia A. Thomas
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.
Costs to be paid in 2008, 2009 and 2010.
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(b), 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 953(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Joann M. Remke
Date: 10/16/06
[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 San Francisco, on October 16, 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 San Francisco, California, addressed as follows:
CYNTHIA ANN THOMAS
5050 LAGUNA BLVD #112-329
ELK GROVE, CA 95758
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MANUEL JIMENEZ, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on October 16, 2006.
Signed by:
Laine Silber
Case Administrator
State Bar Court