Case Number(s): 06-O-12150
In the Matter of: Keith Edwin Herron, Bar # 147280, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Djinna M. Gochis, Assistant Chief Trial Counsel
1149 South Hill Street
Los Angeles, California 90015
(213) 765-1000
Bar #108360,
Counsel for Respondent: In Pro Per Respondent
Keith Edwin Herron
1956 Sunset Cliffs Boulevard
San Diego, California 92107
Bar # 147280
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
Filed: August 13, 2010.
<<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 16, 1990.
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 11 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. 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: three billing cycles following the effective date of the public reproval . (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.
IN THE MATTER OF: Keith Edwin Herron
CASE NUMBER(S): ET AL. 06-O-12150
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
1. On March 28, 2005, Respondent filed an appeal of a default judgment on behalf of his client, Vern D. Blanchard ("Blanchard") (In re Vern D. Blanchard, Debtor et al.; James L. Kennedy, Plaintiff v. Vern D. Blanchard et al. Defendants and Vern D. Blanchard, Appellant v. James L. Kennedy, Chapter 7 Trustee, Civil No. 05cv0717-L (JFS), BAP No. SC 05-1112, Bankruptcy No. 96-12037-H7, Bankruptcy
Adversary No. 99-90357). This was one of several interrelated appeals in the debtor’s matter between the Bankruptcy and the District Court.
2. On June 7, 2005, the Bankruptcy Court filed a Notice of Unperfected Appeal. On June 10, 2005, it issued an Order to Show Cause why appellant Blanchard’s appeal should not be dismissed for lack of prosecution. The hearing date set for the Order to Show Cause was July 5, 2005.
3. When neither Blanchard nor Respondent appeared on July 5, 2005 for the Order to Show Cause, the appeal was dismissed.
4. On July 13, 2005, Respondent filed a motion on Blanchard’s behalf to set aside the dismissal and reset the briefing schedule.
5. Respondent advised in his motion that he did not have notice of the hearing on the Order to Show Cause filed by the attorney for James L. Kennedy, Scott McMillan, ("McMillan") the briefing schedule regarding the motion, or the brief by McMillan regarding dismissal of the appeal.
3. In August 2005, the Court granted McMillan’s ex parte application to obtain Respondent’s PACER records for docket access to the case. In response to the motion, Respondent, in part, stated that his access to PACER related to the case had been unsuccessful.
4. The PACER records demonstrated that the docket related to the case and the related orders had been accessed successfully by someone in Respondent’s office.
5. Based upon that access to Respondent’s PACER records, the court found that Respondent’s office did have notice and thus the representations to the court were, factually, untrue.
6. On February 6, 2006, the Court denied Respondent’s motion to set aside or vacate the dismissal and pursuant to a motion by McMillan for sanctions under Rule 11 and Federal Rule of Bankruptcy
Attachment Page 1
Procedure, as well as the Court’s inherent authority, Respondent was sanctioned in the sum of $16,872.00. Respondent did not oppose the sanctions~.
7. The Court reported the sanctions. Respondent failed to do so.
CONCLUSIONS OF LAW
8. By his conduct, Respondent failed to employ means consistent with truth and failed to report the sanctions against him in willful violation of section 6068(d) and 6068(0)(3) of the California Business and Professions Code.
FACTS AND CIRCUMSTANCES BEARING UPON THE DISPOSITION
Respondent offers the following statement/explanation regarding to the events which led the court’s sanction:
"In late 2004, my partnership terminated and I took on a case entitled In re Blanchard, which was being worked on by other attorneys in the partnership. I had previously worked on this case dealing with procedural issues and I felt I could handle the litigation. I assembled a team of paralegals to research and prepare necessary documents. My client, Vern Blanchard, was one of those paralegals. The case was complex with two sets-of defendants and another attorney working for the second defendant. We shared the paralegals and supervised the case. The clients of the other attorney passed away and left the case with me to handle. Since the issues went hand-in-hand I believed I needed to take more of a part and keep the other attorney informed. A judgment was entered as a Discovery sanction against the client and appeals needed to be filed, a total of four (4). The appeals were transferred from the BAP to the District Court. The information came in on three of the appeals, but I could not find information on the fourth appeal. When judgment was entered as a default, I filed for reconsideration and indicated that I was unaware of the fourth appeal and believe it was not received by my office. I discovered that the information was available regarding the fourth appeal; however, I relied on information provided by my paralegals which resulted in the Court determining that I had made a misrepresentation and imposed sanctions."
The Respondent has been an attorney in the State of California since 1990, over twenty years, without prior disciplinary contact with the State Bar. In that the underlying issue was the representations made to the court, it cannot be said that this matter is not serious, but it can be said that the matter was adequately resolved by the sanction of the court with substantial sanctions. Although he is in financial straits, Respondent has been slowly paying the sanctions to McMillan. He has an agreement with McMillan to pay $250.00 per month. There is no complaint from either McMillan or Respondent’s own client, Blanchard, related to the underlying matter.
The gravamen of the court’s sanction was that Respondent’s statements regarding notice were not true, and were known to be untrue, in large part because Respondent’s PACER records showed access to the docket by someone in Respondent’s office. Respondent represents to the State Bar Court and to the is also accepted for purposes of this stipulation only that Respondent misunderstood a telephonic message from McMillan and believed that the sanction motion was being taken off calendar, and that
this was the reason Respondent did not respond to the sanction motion.
Attachment Page 2
Office of the Chief Trial Counsel that it was in fact his staff, including at that time, his client Vim Blanchard who accessed the records and Respondent made his inaccurate representations to the court based upon what they told him. Accepting this rendition of event by Respondent for purposes of the Stipulation only, Respondent understands that he should not then have made the statements to the court as if he had personal knowledge when he did not and had made no effort to verify their truth. It is not a
defense that he relied on the representations to him or that he was rushed to get the motion to set aside the dismissal filed.
AUTHORITIES IN SUPPORT OF THE DISPOSITION
Respondent posits (and it is being accepted for purposes of stipulation), therefore, that his conduct was the result of haste and negligence and that he did not "intend" to misrepresent anything to the court. As well, he was trying to act in his client’s best interests and was in good faith. However, gross carelessness and negligence constitute a violation of the oath and duties of an attorney, and Respondent’s assertion of good faith does not immunize him from culpability and/or discipline. (see for example, Doyle v. State Bar 15 Cal.3d 973 where the lawyer made misrepresentations to both a client and to the State Bar; In the Matter of Regan (Review Dept. 2005) 4 Cal. State Bar Ct. Rptr. 844).His failure of care had an effect on, if nothing else, the administration of justice.
If the Standards for Attorney Sanctions for Professional Conduct, Standard 2.3 were strictly applied, Respondent’s conduct toward the court could result in actual suspension to disbarment depending upon the magnitude of the misconduct and the degree to which it related to the practice of law. Failure to report a sanction, also, has a range under standard 2.6 between disbarment and suspension.
Case law, in the area of an attorney’s isolated misrepresentation to, or concealment of a material fact from a court, has been known to allow for what is a significant deviation from the standard, a public reproval as proffered by the parties in this case. Much of this case law is admittedly pre-standards, e.g. DiSabatino v. State Bar (1980) 27 Cal.3d 159; Mushrush v. State Bar (1976) 17 Cal.3d 487; Mosesian v. State Bar (1972) 8 Cal3d 60. At least one post standards case, In Matter of Paysanos (Review Dept.
2005) 4 Cal. State Bar Ct. Rptr. 746, where the attorney prior to admission to practice failed to update her Application for Determination of Moral Character to advise of a criminal misdemeanor matter, also resulted in a public reproval. Given the range of discipline possible, the main concern in protecting the public and maintaining high professional standards is not only what the member did, but what discipline
will best address it and will act to deter the attorney from future misconduct. For purposes of this stipulation, it is accepted that the public reproval should be sufficient to meet the protection of the public and to deter the member, both.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(6), was July 6, 2010.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of May 4, 2010, the prosecution costs in this matter are $1,983. 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.
Attachment Page 3
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.
Attachment Page 4
Case Number(s): 06-o-12150
In the Matter of: Keith Edwin Herron
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 REPROVAL IMPOSED.
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 box for paragraph B (8) [“no aggravating circumstances are involved”] is deemed checked and that finding included in the stipulation.
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 5.58 (E) & (F), 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: Donald F. Miles
Date: August 12, 2010
Case Number(s): 06-O-12150
In the Matter of: Keith Edwin Herron
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: Keith Edwin Herron
Date: July 29, 2010
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Djinna M. Gochis
Date: August 3, 2010
[Rules Proc. of State Bar; Rule 5.27(B); 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 13, 2010, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING PUBLIC REPROVAL
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:
KEITH E. HERRON
KEITH E HERRON & ASSOCIATES
4870 SANTA MONICA AVE STE 2D
SAN DIEGO, CA 92107
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DJINNA GOCHIS, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 13, 2010.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court