Case Number(s): 07-H-11874-2
In the Matter of: Scott C. McKee, A Member of the State Bar of California, (Respondent), Bar # 154077
Counsel For The State Bar: Elina Kreditor, Bar # 250641
Counsel for Respondent: Thomas R. Bradford, Bar # 110230
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
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 October 17, 1991.
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.
<<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.)
checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
Case Number(s): 07-H-11874
In the Matter of: Scott C. McKee A Member of the State Bar
a. Restitution
checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee: Elaine A. Rogers, Wertz, McDade, Wallace, Moot & Brower, APC obo Holland Silver, Inc. 945 Fourth Ave San Diego, CA 92101
Principal Amount: $4,682.25
Interest Accrues From: May 23, 2006
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than 15 days prior to the expiration of the period of probation.
checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable) Elaine A. Rogers, Wertz, McDade, Wallace, Moot & Brower, APC obo Holland Silver, Inc. 945 Fourth Ave San Diego, CA 92101
Minimum Payment Amount $150.00
Payment Frequency monthly
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. 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.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3.
The requirements
of this condition are in addition to those set forth in rule 4-100, Rules of
Professional Conduct.
<<not>> checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
IN THE MATTER OF: Scott C. McKee
CASE NUMBER(S): 07-H-11874
FACTS AND CONCLUSIONS OF LAW
Scott C. McKee ("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.
I. Facts
1. On or about August 1, 2005, the Hearing Department of the State Bar Court filed an order approving a stipulation regarding facts, conclusions of law and disposition in State Bar Court case no. 04-O-15360 and imposing a private reproval with conditions set forth in the stipulation (the "reproval order").
Respondent received a copy of the reproval order. The reproval became effective on August 23, 2005.
3. Pursuant to the reproval order, Respondent was required to comply with specific terms and conditions including, but not limited to, the following:
a. to comply with the conditions attached to the reproval for a period of one (1) year;
b. to make restitution within nine (9) months from the effective date of discipline (by on or about May 23, 2006), in the principal amount of $4,682.25;
c. to submit to the Office of Probation written quarterly reports each January 10, April 10, July 10 and October 10, of the condition period attached to the reproval, certifying under penalty of perjury whether he had complied with the State Bar Act, the Rules of Professional Conduct, and all conditions of the reproval during the preceding calendar quarter;
d. to submit to Probation a final report no earlier than twenty (20) days before the last day of the condition period and no later than the last day of the condition period.
4. Respondent failed to comply with all conditions of the aforementioned private reproval, as follows:
a. Respondent failed to timely file the first quarterly report. Respondent filed his October 2005 quarterly report on or about October 27, 2005.
b. Respondent failed to timely file his second, third and fourth quarterly reports due on January 10, April 10 and July 10, 2006 respectively. Respondent filed all three reports on August 3, 2006.
c. Respondent failed to file his final report due by August 23, 2006.
d. Respondent failed to provide satisfactory proof of restitution by May 23, 2006.
e. To date, Respondent failed to pay restitution.
II. Conclusions of Law
By failing to comply with all conditions of the private reproval, Respondent violated rule 1-110 of the Rules of Professional Conduct.
PENDING PROCEEDINGS
The disclosure date referred to, on page 2, paragraph A(7), was November 23, 2009.
PARTIAL WAIVER OF COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 23, 2009, the costs in this matter are $4,569.00. 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.
Respondent further acknowledge that the Office of the Chief Trial Counsel has informed respondent that the Office of the Chief Trial Counsel will partially waive costs in this matter in light of Respondent’s financial and medical condition.
Respondent’s costs have been reduced to $1,983.00. Respondent is to pay such costs in equal amounts over the three membership billing cycles following the effective date of discipline in this matter.
CONDITIONS OF PROBATION
Should Respondent file a petition for early termination of Probation, the Office of the Chief Trial Counsel will not oppose such a petition, provided the following conditions are met:
a) Respondent has completed a minimum of three years of the five year Probation term;
b) Respondent has fully paid the principal restitution amount of $4,682.25 and all interest accrued since May 23, 2006;
c) Respondent has complied with all conditions of Probation;
d) Respondent has paid all disciplinary costs associated with this matter.
MITIGATING CIRCUMSTANCES
In January 2003, Respondent was diagnosed with a terminal illness. Although the condition is terminal, Respondent and his physicians have been managing the illness with medication. Since the diagnosis, Respondent has been suffering from severe depression. As a result of his illness, Respondent’s primary source of income is social security assistance of approximately $900 per month. Respondent also receives food stamps and renter’s assistance. Respondent’s mental and physical conditions has made it impossible to maintain a full time law practice and earn the funds necessary to timely pay restitution as contemplated by the conditions of the private reproval in State Bar Case No. 04-0-15360.
AGGRAVATING CIRCUMSTANCES
Standards 1.2(b)(i) and 1.7(a):
Standard 1.2(b)(i) provides that the existence of prior record of discipline and the nature and extent of that record must be considered in aggravation. Respondent was privately reproved on August 1, 2005 pursuant to a stipulation resolving State Bar Case No. 04-0-15360.
Standard 1.7(a) provides. "[T]he 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."
AUTHORITIES SUPPORTING DISCIPLINE
A. STANDARDS
Standard 2.9 provides that a willful violation of rule 1-110, Rules of Professional Conduct, shall result in suspension.
Standard 1.7(a) provides that where a member has previously been found culpable of any misconduct, the degree of discipline imposed shall be greater than that imposed in the prior proceeding.
B. CASELAW
In Conroy v. State Bar (1990) 51 Cal 3d. 799, Respondent was disciplined for failure to take and pass the California Professional Responsibility Examination within one year of the private reproval period. Respondent did take and pass the examination at the next available opportunity, which was about two months before the State Bar initiated a second disciplinary proceeding against him. In aggravation, the Court considered Respondent’s prior record (the private reproval stemmed from misconduct in three client matters); his failure to participate in disciplinary proceedings and his failure to acknowledge the wrongfulness of his actions. The Supreme Court adopted the Review Department’s recommendation of one year stayed suspension and one year probation, conditioned on 60 days actual suspension.
SIGNATURE OF THE PARTIES
Case Number(s): 07-H-11874
In the Matter of: Scott C. McKee
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: Scott C. McKee
Date: 12-1-09
Respondent’s Counsel: Thomas R. Bradford
Date: 12/1/09
Deputy Trial Counsel: Elina Kreditor
Date: 12/3/09
Case Number(s): 07-H-11874
In the Matter of: Scott C. McKee
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.
<<not>> checked. All Hearing dates 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 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 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 12-21-09
[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 December 22, 2009, 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:
THOMAS ROBERT BRADFORD, ESQ.
PETERSON & BRADFORD LLP
100 N 1ST ST STE 300
BURBANK, CA 91502
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ELINA KREDITOR, ESQ., Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 22, 2009.
Signed by:
Rose Luthi
Case Administrator
State Bar Court