Case Number(s): 06-O-10112
In the Matter of: Arthur G. Dudley, Bar # 56921, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Bar # 214209
Counsel for Respondent: Bar #
Submitted to: Settlement Judge
Filed: February 23, 2007
<<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 19, 1973.
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 9 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 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.
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.
FACTS AND CONCLUSIONS OF LAW
Facts
1. On June 29, 2000, respondent was appointed by the Sixth District Appellate Program to represent Tai Quoc Dang in an appeal of his criminal conviction in People v. Dang, Santa Clara Superior Court Case number C9927769. At the time of his appointment, Dang was in prison for a murder conviction.
2. On May 11, 2001, respondent filed appellant’s opening brief in the case People v. Dang, Court of Appeal, Sixth Appellate District, Case number H021681.
3. On September 12, 2002, the court heard oral argument and the case was submitted.
4. On September 24, 2002, the appellate court affirmed the conviction.
5. On November 1, 2002, respondent filed a petition for review with the California Supreme Court.
6. On December 11, 2002, the California Supreme Court entered an order denying Dang’s petition for review. Respondent received the order denying Dang’s petition for review soon after it was entered. However, it was not until February 2, 2003, that respondent sent a letter to Dang in which he provided a copy of the order and informed Dang of the process for seeking a petition of habeas corpus and the deadline for filing the petition. Dang never received respondent’s letter.
7. In March 2004, having not received respondent’s February 2, 2003 letter, Dang wrote to respondent to determine the status of his petition for review.
8. Respondent received Dang’s March 2004 letter soon after it was sent, but did not respond to it.
9. On May 31, 2004, Dang wrote a letter to the clerk of the Sixth District Court of Appeal to determine the status of his petition for review.
10. Prior to June 16, 2004, Dang received a copy of the December 11, 2002 order from the clerk of the Sixth District Court of Appeal,
11, On June 16 and June 17, 2004, Dang wrote letters to respondent requesting that respondent inform him of his legal options.
12, Respondent received Dang’s June 16 and June 17, 2004 letters soon after they were sent, but did not respond to them.
13. On August 18, 2004, Dang filed a complaint with the State Bar regarding respondent’s failure to communicate and failure to perform.
14. Prior to September 21, 2004, the time in which to file a habeas corpus petition had expired.
15. On September 21, 2004, respondent offered to assist Dang with filing a late habeas corpus petition in response to a letter from a State Bar complaint analyst.
16. On September 28, 2004, based upon respondent’s representation that he would prepare the paperwork for the habeas corpus petition, the State Bar closed Dang’s complaint.
17. On November 7, 2004, respondent sent Dang a letter offering to prepare the paperwork for a late federal habeas corpus petition within two weeks of the date of his letter.
18. Thereafter, respondent prepared and mailed a copy of the habeas corpus petition to Dang. However, Dang never received the petition.
19. On June 20, 2005, Dang wrote to respondent to inform him that Dang had not received any materials from respondent regarding the federal habeas corpus petition. He requested that respondent provide those materials to him.
20. Respondent did not respond to Dang’s June 20, 2005 letter and did not provide Dang with another copy of the federal habeas corpus petition.
21. On September 14, 2005, Dang wrote to respondent to inform respondent once again that he had not received the federal habeas corpus petition and to request that respondent provide him with the documents contained in his client file.
22. Respondent received the September 14, 2005 letter soon after it was sent.
23. On October 13, 2005, respondent sent the client file to Dang. However, at that time, he did not provide another copy of the federal habeas corpus petition.
24. On August 16, 2006, Dang renewed his complaint with the State Bar because respondent had failed to communicate with Dang since the State Bar closed his previous complaint.
25. On January 17, 2006, in response to a letter from a State Bar complaint analyst, respondent wrote in a letter to the State Bar that he would initiate contact with Dang to assist him with his late federal habeas corpus petition. However, respondent took no action. However, it was not until January 17, 2007, one year later, that respondent provided Dang with another copy of the federal habeas corpus petition.
Conclusions of Law
By failing to timely inform Dang that his petition for review was denied, which triggered the time in which Dang had to file a habeas corpus petition, failing to timely advise Dang about the deadlines regarding the federal habeas corpus petition and failing to timely assist Dang with filing a request to file a late federal habeas corpus petition, after agreeing to do so, respondent recklessly and repeatedly failed to perform with competence in violation of rule 3-110(A) of the Rules of Professional Conduct.
By failing to timely inform Dang about the California Supreme Court’s denial of his petition for review, respondent failed to inform Dang of a significant matter in which respondent had agreed to provide legal services in violation of Business and Professions Code section 6068(m). By failing to respond to Dang’s letters of March 2004, June 16, 2004, June 17, 2004, June 20, 2005 and September 14, 2005, respondent failed to respond to reasonable status update requests in violation of Business and Professions Code section 6068(m).
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed on October 26, 2006, and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A (7) was January 25, 2007.
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.
SUPPORTING AUTHORITY
Standard 2.4(b) suggests reproval or suspension for a respondent who has wilfully failed to perform services in which he was retained. Standard 2.6(a) suggests that a violation of Business and Professions Code section 6068 shall result in disbarment or suspension depending on the gravity of the offense or harm, if any, to the victim, with due regard to the purpose of imposing discipline set forth in standard 1.3.
Based on the mitigation in this matter, particularly respondent’s 33 years’ of discipline-free practice, which, in totality, outweighs the aggravating circumstance, a public reproval is the appropriate level of discipline,
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
AGGRAVATING CIRCUMSTANCES
Standard 1,2(b)(iv). Although respondent provided Dang with another copy of the federal habeas corpus petition, his failure to timely perform services on behalf of Dang caused Dang to miss the deadline for timely filing a federal habeas corpus petition, significantly harming Dang.
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(i). Respondent has been in practice since 1973. He has no prior record of discipline.
Standard 1.2(e)(v). Respondent displayed spontaneous candor and cooperation to the State Bar during the disciplinary proceedings.
SIGNATURE OF THE PARTIES
Case Number(s): 06-O-10112
In the Matter of: Arthur G. Dudley
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: Arthur G. Dudley
Date: 2/5/07
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Susan I. Kagan
Date: 2/6/07
Case Number(s): 06-O-10112
In the Matter of: Arthur G. Dudley
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: George Scott
Date: 2/22/07
[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 February 23, 2007, 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:
ARTHUR GUILFORD DUDLEY
PAGE SALISBURY & DUDLEY
605 CENTER ST
SANTA CRUZ, CA 95060
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN KAGAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on February 23, 2007.
Signed by:
Laine Silber
Case Administrator
State Bar Court