Case Number(s): 07-O-11143-RAP, 07-O-13856-RAP, 07-O-14730-RAP
In the Matter of: James Stuart Lochead, Bar #146932, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erin McKeown Joyce, Deputy Trial Counsel, State Bar of California, 1149 South Hill Street, Los Angeles, CA 90015-2299, Telephone: (213) 765-1356, Facsimile: (213) 765-1319, Bar # 149946
Counsel for Respondent: David Alan Clare, 444 West Ocean Blvd., Suite 800, Long Beach, CA 90802, Telephone: (562) 624-2837, Facsimile: (562) 624-2838, Ba’r # 44971
Submitted to: Assigned Judge, State Bar Court Clerk’s Office, Los Angeles.
Filed: August 27, 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 11, 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.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: 2012 and 2013. (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.
In the Matter of James Stuart Lochead
Case Nos. 07-O-11143, 07-O-13856 and 07-O-14730
PENDING PROCEEDINGS:
The disclosure date referred to on page two, paragraph A.(7), was August 3, 2010.
Case No 07-O-11143
FACTS
Respondent admits that the following facts are true and that he is culpable of a violation of Rule of Professional Conduct 4-100(B)(3) as follows:
1. On December 18, 2006, Eleuterio Sanchez ("Sanchez") hired Respondent to
process several eviction matters. Sanchez met with Rose Urbina (Respondent’s paralegal) in Respondent’s law office, and Urbina provided Sanchez with Respondent’s business card. Sanchez paid Urbina $5,000 as Respondent’s legal fee. The receipt Sanchez received reflected that the $5,000 fee was paid for a "civil lawsuit/court representation." Sanchez noted on the memo line of the check that the payment was for Respondent’s services.
2. On February 2, 2007, Sanchez met Respondent in person for the first time and
employed Respondent to prepare six eviction matters and one civil matter. Sanchez paid Respondent $11,000 in advanced fees.
3. A few days later, no later than February 5, 2007, Sanchez terminated
Respondent, and demanded a refund of his advanced fees.
4. Despite receiving Sanchez’ notice of termination and Sanchez’ request for a
refund of unearned fees, Respondent did not account to Sanchez for the advanced fees paid by Sanchez until the State Bar intervened.
CONCLUSIONS OF LAW
By failing to provide an accounting to Sanchez after Sanchez terminated Respondent and requested a refund of unearned fees, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession in wilful violation of Rule of Professional Conduct 4-100(B)(3).
Case No. 07-O-13856
FACTS
Respondent admits that the following facts are true and that he is culpable of a violation of Rule of Professional Conduct 4-100(B)(3) as follows:
5. On June 13, 2006, the husband of Ince Arias ("Arias") filed a petition for marital
dissolution.
6. On July 26, 2006, Arias went to Respondent’s office for a consultation about her
dissolution matter. Arias met with Urbina for the purpose of obtaining legal advice concerning her dissolution matter. Arias provided Urbina with a post-dated check for $2,500 made payable to Urbina to prepare an answer, OSC, declarations and translations in pro per in Arias’ dissolution matter entitled Sanchez v. Sanchez, filed in Los Angeles County Superior Court on June 13, 2006, case no. MD032103.
7. In August 2006, Urbina met with Arias, her husband and her husband’s attorney,
in an attempt to negotiate a settlement agreement in the dissolution matter. Respondent was not present. No settlement was reached by the parties.
8. On September 11, 2006, Arias met with Urbina in Respondent’s office and
provided Urbina with a check payable to Respondent in the amount of $5,000 for Respondent to undertake representation of Arias in her dissolution matter.
9. In late June 2007, Urbina sent a letter to Arias on Respondent’s letterhead
notifying her that Respondent’s office had been attempting to contact Arias, but that she had not returned her calls.
10. After receiving Urbina’s June 2007 letter, in July 2007, Arias terminated
Respondent. At that time Arias demanded a refund from Respondent of all advanced attorney fees.
11. Despite Arias’ demand for a refund of unearned fees, Respondent did not
provide any accounting to Arias for her advanced fees until the State Bar intervened.
CONCLUSIONS OF LAW
By failing to account to Arias for the advanced fees she paid to Respondent, Respondent failed to render appropriate accounts to a client regarding all funds coming into Respondent’s possession in wilful violation of Rule of Professional Conduct 4-100(B)(3).
Case No. 07-O-14730
FACTS
Respondent admits that the following facts are true and that he is culpable of a violation of Rule of Professional Conduct 3-110(A) as follows:
12. On August 22, 2007, Dana Evans ("Evans") met with Urbina and Respondent
and paid Respondent $300 to prepare a bankruptcy filing.
13. On October 5, 2007, Evans paid an additional $2,200 to Respondent to handle
the bankruptcy matter. Pursuant to the attorney-client agreement, Respondent agreed to provide all legal services related to Evan’s bankruptcy for $2,500. Respondent specifically did not agree to advance the costs for filing fees.
14. Evans paid Respondent in full pursuant to the attorney-client agreement.
15. At the time of retention, Evans explained the importance of promptly filing the
bankruptcy petition for Evans to Respondent. Evans was trying to delay a foreclosure on her home. Respondent understood the urgency of Evans’ legal matter and agreed to act quickly on Evans’ legal matter. Respondent told Evans he planned to relocate his office in the near future, but he failed to notify her at that time of his new office address.
16. From August 2007 until November 2007, Evans left multiple telephone messages
for Respondent requesting a status report on her legal matter. Respondent received Evans’ messages but failed to return them.
17. Respondent failed to provide any legal services of value to Evans.
CONCLUSIONS OF LAW
By failing to perform the legal services he was employed to perform for Evans, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in wilful violation of Rule of Professional Conduct 3-110(A).
AUTHORITIES SUPPORTING DISCIPLINE
STANDARDS FOR ATTORNEY SANCTIONS
To determine the appropriate level of discipline, the standards provide guidance. Drociak v. State Bar (1991) 52 Cal.3d 1085; In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119. A disciplinary recommendation must be consistent with the discipline in similar proceedings. See Snyder v. State Bar (1990) 49 Cal.3d 1302. Moreover, the recommended discipline must rest upon a balanced consideration of relevant factors. In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119.
Pursuant to Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession. Rehabilitation of a member is a permissible object of a sanction imposed upon the member but only if the imposition of rehabilitative sanctions is consistent with the above-stated primary purposes of sanctions for professional misconduct.
Pursuant to Standard 1.5 of the Standards for Attorney Sanctions for Professional Misconduct:
Reasonable duties or conditions fairly related to the acts of professional misconduct and surrounding circumstances found or acknowledged by the member may be added to a recommendation or suspension or; pursuant to rule 9.19, California Rules of Court, to a reproval. Said duties may include, but are not limited to, any of the following:
1.5(b): a requirement that the member take and pass an examination in
professional responsibility;
1.5(d): a requirement that the member undertake educational or rehabilitative
work at his or her own expense regarding one or more fields of substantive
law or law office management;
1.5(0: any other duty or condition consistent with the purposes of imposing a
sanction for professional misconduct as set forth in standard 1.3.
Pursuant to Standard 2.10 of the Standards for Attorney Sanctions for Professional
Misconduct:
Culpability of a member ... of a wilful violation of any Rule of Professional Conduct not specified in these standards shall result in reproval of suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3
Pursuant to Standard 1.6(a) of the Standards for Attorney Sanctions for Professional Misconduct:
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 or acknowledged. If two or more acts of professional misconduct are found or acknowledged 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.
When more than one act of professional misconduct is acknowledged in a single disciplinary proceeding, and different sanctions are prescribed by these standards for said acts, the sanction imposed shall be the most severe of the different applicable standards. Standard 1.6(a).
Respondent also has one other matter which was in the Alternative Discipline Program, which is currently being effectuated. The discipline imposed is a public reproval. The misconduct in these matters took place shortly after the misconduct occurred in case No. 05-C-1740. Accordingly, the Court should consider all of the charges brought in all cases as though they had been brought together to determine the appropriate discipline. In the Matter of Freydl, 4 Cal. State Bar Ct. Rptr. 349 (2001); see In the Matter of Sklar, 2 Cal. State Bar Ct. Rptr. 602, 619 (1993). The stipulated discipline is sufficient when considering all of Respondent’s misconduct.
DISMISSALS
The State Bar dismisses Count One, Count Three, Count Four and Count Seven in the
interests of justice.
COSTS OF DISCIPLINARY PROCEEDINGS:
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of August 3, the prosecution costs in this matter are $3,582.81. 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.
Case Number(s): 07-O-11143-RAP, et al.
In the Matter of: James Stuart Lochead
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: James Stuart Lochead
Date: August 3, 2010
Respondent’s Counsel: David Alan Clare
Date: August 3, 2010
Deputy Trial Counsel: Erin McKeown Joyce
Date: August 3, 2010
Case Number(s): 07-O-11143-RAP, et al.
In the Matter of: James Stuart Lochead
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 DISCIPLINE RECOMMENDED to the Supreme Court.
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.
Page 2- B. (2)- Delete “not yet effective” Add “8-26-10”
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.) 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. Platel
Date: August 27, 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 27, 2010, 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:
DAVID ALAN CLARE
DAVID A CLARE, ATTORNEY AT LAW
444 W OCEAN BLVD STE 800
LONG BEACH, CA 90802
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Erin M. Joyce, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 27, 2010.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court