Case Number(s): 07-N-13233
In the Matter of: Karla D. Henderlong, A Member of the State Bar of California, (Respondent), Bar # 100899
Counsel For The State Bar: Manuel Jimenez, Bar # 218234
Counsel for Respondent: Steven A. Lewis, Bar # 63488
Submitted to: Assigned Judge State Bar Court Clerk’s Office San Francisco
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 1, 1981.
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):
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.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
State Bar Court Case No. 04-O-14239 [Supreme Court Case No. $148040]
Date Prior Discipline Effective: January 18, 2007 Rules of Professional Conduct/State Bar Act Violations: rule 4-100(A) and section 6068(i). Degree of Prior discipline: 90-day actual suspension
Attachment language begins here (if any):
I. Findings of Fact and Conclusions of Law
Facts:
1. On January 18, 2007, the Supreme Court of California filed a disciplinary order in case number S 148040 (State Bar case number 0.4-0-14239).
2. The January 18, 2007 order required respondent to comply with California Rule of Court 955 (hereinafter "rule 955") and to perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 days, respectively, after the effective date of the order.
3. Notice of the order was duly and properly served upon respondent in the manner prescribed by California Rule of Court 8.532(a) at respondent’s address as maintained by the State Bar in accordance with Business and Professions Code section 6002.1.
4. The January 18, 2007 order became effective on or about February 17, 2007, and at all times thereafter remained in full force and effect.
5. The deadline for respondent to comply with rule 955 subdivision (c) expired on or about March 29, 2007.
6. Respondent failed to comply with rule 955(c) prior to the March 29, 2007 deadline. (As Respondent had not practiced law since 2003, her failure to comply was a failure to file a compliance statement confirming she had no clients to notify of her suspension.)
7. Respondent did not comply with rule 955(c) until October 12, 2007. At that time, respondent filed her notice indicating she had not clients, courts or other counsel to notify as she had not been practicing law for several years.
8. Respondent’s father was diagnosed with advanced cancer in late 2006 and had major cancer surgery on April 1, 2007.
Legal Conclusions
By failing to file the compliance affidavit within the time specified in the January 18, 2007 order, respondent failed to obey the court in willful violation of Business and Professions Code section 6103 and California Rule of Court 955 subdivision (c).
Aggravating Circumstances
See Above paragraph B(1 ).
Mitigating Circumstances
No Harm (see paragraph C(2) above): Respondent had not practiced law since 2003 and had no clients, courts or other counsel to notify of her suspension.
Emotional/Physical Difficulties (see paragraph C(8) above):
In 2000, respondent was diagnosed with Adult Attention Deficit Disorder. At the time, she began treatment at a clinic specializing in ADD and was put on a medication regimen. When respondent entered into her settlement with the State Bar in August 2006, she believed her ADD, which had led to the office management deficiencies giving rise to her suspension, was under control. However, when respondent’s father became very ill in late 2006, and when he was later diagnosed with stomach cancer in early 2007, respondent began suffering from depression that caused her to become lethargic and fatigued. In the fall of 2007 respondent started the LAP program and has more recently commenced cognitive therapy with a licensed therapist, recommended by LAP. She has also been working with her physician to find a medication regimen that works more effectively in treating her ADD and depression.
Family Problems (see paragraph C(10) above:
Respondent, who is unmarried and has no children, has had a very close relationship with her aging parents. Her mother, who is over 80 years old, has had long-term serious health problems. Her father had historically been physically healthy and had always been an important pillar in respondent’s life. In late 2006, respondent’s father, who was 82 years old at the time, became very ill, and in early 2007 he was diagnosed with advanced stomach cancer. On or about April 1, 2007, three days after respondent’s rule 955 compliance was due, respondent’ s father had surgery in which one-half of his stomach was removed. Thereafter, he underwent chemotherapy and radiation therapy that made him very ill. From the onset of her father’s illness and through his surgery, cancer treatments and death, respondent devoted a great deal of her time and energy to taking care of her parents. Since her father’s death, she has continued to devote a great deal of her time to caring for her mother.
Good Character (see paragraph C(11) above):
Respondent has provided the State Bar with letters from two members of the State Bar and two members of the public who attest to respondent’s good character.
II. Pending Proceedings
With the faxing and mailing of this proposed stipulation on December 12, 2008, the disclosure date is made as referred to on page 2, paragraph A(7),. As of December 12, 2008, there are no pending investigations or proceedings not covered by this agreement.
III. Costs of Disciplinary Proceedings
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent (with this stipulation) that as of December 12, 2008, the estimated prosecution costs in this matter are approximately $1,641. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in a 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.
IV. Authorities in Support of Discipline
A. The Standards
The Standards provide for a broad range of sanctions ranging from reproval to disbarment, depending upon the gravity of the offenses and the harm to the client. (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, std. 2.6(a), and 2.10).
Standard 1.3 provides that the primary purposes of attorney discipline are, "the protection of the public, the courts and the legal profession, the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession."
Standard 1.6(a) provides that the sanction imposed shall be the most severe of the different applicable sanctions. Standard 1.6(a) provides in pertinent part that:
"The appropriate sanction for an act of professional misconduct shall be that set forth in the following standards for the particular act of misconduct found. If two or more acts of professional misconduct are found.., in a single disciplinary proceeding, and different sanctions are prescribed by these standards for said acts, the sanction imposed shall be the more or most severe of the different applicable sanctions."
Standard 1.7(a) provides that if a member is found culpable of professional misconduct in any proceeding which discipline may be imposed and the member has a record of one prior imposition of discipline as defined by standard 1.2(0, the degree of discipline imposed in the current proceedings shall be greater than that imposed in the prior proceedings unless the prior proceeding 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.
Standard 1.7(b) requires disbarment if a member has a record of two prior impositions of discipline unless the most compelling mitigating circumstances clearly predominate.
B. Case Law
The Court should also 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. Snyder v. State Bar (1990) 49 Cal.3d 1302.
In determining the appropriate level of discipline, the court should look to the Standards for Professional Misconduct. In In re Morse (1995) 11 Cal.4th 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.’"
Despite the need to examine cases on an individual basis, it is a goal of disciplinary proceedings that there be consistent recommendations as to discipline, a goal that has been largely achieved through the application of the Standards of Attorney Sanctions for Professional Misconduct. (In the Matter of Marsh (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 291.)
The standards provide guidance and deserve "great weight." (In re Morse, supra, 11 Cal.4th at p. 205; In re Naney (1990) 51 Cal.3d 186, 190; Van Sloten v. State Bar (1989) 48 Cal.3d 921,933, fn. 5.) "[A]dherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct." (In re Naney, supra, 51 Cal.3d at p. 190; see also In re Brown (1995) 12 Cal.4th 205,220.) The California Supreme Court accepts a disciplinary recommendation resulting from application of the standards unless it has "grave doubts" about the recommendation’s propriety. (In re Morse, supra, 11 Cal.4th at p. 206; In re Lamb (1989) 49 Cal.3d 239, 245.)
In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, the court found that while the Standards for Attorney Sanctions for Professional Misconduct are to be afforded great weight, they do not mandate a specific discipline. The standards are guidelines that are not to be followed in a talismanic fashion. The letter of the law is tempered with considerations peculiar to the offenses and the offender, and the proper recommendation requires a balanced consideration of the unique factors of each case. (See also, Howard v. State Bar (1990) 51 Cal.3d 215.)
Shapiro v. State Bar (1990)51 Cal.3d 251: A respondent, with a prior discipline, was suspended for two (2) years, stayed, one (1) year actual. He had been ordered to comply with Rule 955 pursuant to an order of suspension, referred all of his clients to a law firm before the date of his suspension. Respondent was unclear whether it was necessary to file an affidavit under Rule 955 and sought advice of his probation monitor. The monitor gave respondent inaccurate information, which he later corrected. Respondent attempted to file a 955 affidavit, but the affidavit was rejected by the Court due to form. (The form was suggested by the probation monitor.) Thereafter, Respondent delayed three months before hiring counsel who filed a proper 955 affidavit. In a consolidated matter, the respondent was found culpable of abandoning a client in a civil matter which resulted in a default being entered against the client. Although the default was later set aside by new counsel, the client had to pay $1,500 sanction to reinstate the lawsuit.
Unlike the instant case, the Court did not recognize any factors in aggravation, including the prior discipline because the "incidents of client misconduct occurred within a fairly narrow time frame..." The Court in Shapiro viewed as mitigation the lack of prior discipline over sixteen years; the fact that the respondent received inadequate guidance from the probation department; and, found that respondent’s act of hiring an attorney to assist him in properly filing the affidavit. Further mitigation included the fact that respondent suffered from physical and psychological difficulties during the relevant period.
In the Matter of Friedman (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 527: An attorney who was minimally late to file his 955 certificate, filing it before the State Bar Court’s referral order was issued, and accepted responsibility for his own error, participated in the disciplinary proceeding and cooperated with the State Bar, suggested that disbarment is not the appropriate level of discipline in a 955 violation.
In the Matter of Pierce (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 382: A respondent, with a prior discipline, was disbarred, after the respondent filed her 955 affidavit 21 days late, stating that she had not practiced in three years and had no clients. She then failed to appear at trial or to oppose Trial counsel on review. In mitigation, there was no harm to clients. In aggravation, Respondent had a prior stayed suspension for a single abandonment and a failure to cooperate with the State Bar investigation, a prior probation revocation which lead to the rule 955 requirement and a second pending probation revocation proceeding. Her repeated demonstration of indifference to disciplinary orders of the Supreme Court was considered as aggravating. This case illustrates the extreme risk involved in repeatedly ignoring disciplinary proceedings and related Supreme Court orders." (Emphasis added.)
In the Matter of Grueneich (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 439: Respondent, with a prior discipline, was disbarred in a Rule 955, probation revocation proceeding. Respondent was found to have substantially failed to comply with rule 955 and to have failed to file probation reports, prepare a law office plan, or make restitution as required by conditions of probation. He did not file a 955 affidavit for one year after it was due despite repeated warning. His misconduct was found to have resulted from chronic disorganization rather than dishonesty. In mitigation, the Court found that respondent had engaged in numerous pro bono activities, had severe personal problems, and had presented character references. In aggravation, the Court found that the respondent had a prior discipline, had failed to take the PRE as ordered, only sporadically participated in the State Bar proceedings and was determined to present a continuing risk of harm to the public.
In the Matter of Rose (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 192: Respondent, with two prior disciplines, and additional aggravation and mitigation was disciplined on two matters - the first for revocation of probation and the second for violation of rule 955(c). As to the revocation or respondent’s probation, the respondent’s probation order was revoked, the stay of execution of the previous five-year suspension (with two-year actual suspension) was lifted, and respondent was again suspended for five years with execution of that suspension stayed and with credit for the time he was inactively enrolled. In connection with the violation of rule 955(c), respondent was suspended for two years with that suspension stayed, two years probation and nine months actual suspension stayed, two years probation and nine months actual suspension. The discipline for rule 955(c) violation run concurrently with the discipline for the probation revocation.
In Durban v. State Bar (1979) 23 Cal.3d 461, the attorney had informed his clients of his suspension, arranged for substitutions of all pending matters, returned all files and unearned fees and closed his office. However, the attorney did not comply with rule 955(c) in that he failed to report his compliance under the role. The Supreme Court concluded that the recommendation of one year additional suspension was too severe and ordered actual suspension for the longer of six months or full compliance by the attorney with the reporting requirements of rule 955(c).
In the Matter of Anderson (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 2008, respondent was disciplined based upon his fourth and fifth drunk driving convictions. While the respondent had been disciplined on two prior occasions, the court did not apply standard 1.7 because it found (as in the case here) no direct harm to clients’ interests. Instead, the court suspended the respondent for one year with a 60-day actual suspension.
SIGNATURE OF THE PARTIES
Case Number(s): 07-N-13233
In the Matter of: Karla D. Henderlong
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: Karla D. Henderlong
Date: 12/27/08
Respondent’s Counsel: Steven A. Lewis
Date: 12/29/08
Deputy Trial Counsel: Manuel Jimenez
Date: 12/30/08
Case Number(s): 07-N-13233
In the Matter of: Karla D. Henderlong
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.
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: Pat McElroy
Date: January 12, 2009
[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 January 12, 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 San Francisco, California, addressed as follows:
MATTHEW PLANT GUICHARD
GUICHARD TENG & PORTELLO APC
1800 SUTTER ST #730
CONCORD, CA 94520
STEVEN ALLAN LEWIS
LEWIS & BACON
1050 FULTON AVE #125
SACRAMENTO, CA 95825
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 January 12, 2009.
Signed by:
George Hue
Case Administrator
State Bar Court