Case Number(s): 07-O-12116
In the Matter of: Terry R. Collins, Bar # 22567, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Manuel Jimenez, Bar # 218234
Counsel for Respondent: Howard R. Melamed, Bar # 40962
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
Filed: July 31, 2008
<<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 9, 2003.
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 14 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 5.132, 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.
Respondent is to notify the Department of Probation of the State Bar of California of any outstanding judgments against him on behalf of either Herece Tuggles, pay said judgments within one year of the effective date of this stipulation, and provide proof of satisfaction of said judgment, in any form required by the department of probation by the end of the probationary period.
I. Misconduct
Case No. 07-0-12116
On October 23, 2006, Herece Tuggles employed respondent to represent her juvenile son, Anthony Hooker, in connection with a juvenile criminal matter. At the time she employed respondent, she executed a fee agreement which stated that "Herece Tuggles has paid for the services, but has been advised that [her son] is the actual client."
Respondent did not have a fee agreement with Tuggles’s son, Anthony Hooker, and did not obtain his signature on the fee agreement.
The fee agreement required Tuggles to pay respondent an advanced fee of $2,500. The fee agreement stated that respondent’s hourly rate was $300 per hour.
On October 23, 2006, Tuggles paid respondent $1,500.
On October 24, 2006, respondent appeared in court, Department 401, on behalf Anthony Hooker, Herece Tuggles’ son.
On October 27, 2006, Tuggles paid respondent $1,000.
At the time respondent was terminated, respondent had not earned all of the $2,500 since he had not performed 8 1/3 hours of services on behalf of Tuggles’s son.
At the time respondent was terminated, respondent owed Tuggles approximately $1,300 in unearned fees.
On November 7, 2006, Collins appeared in Department 503 and represented Anthony Hooker. Hooker was placed on Home Supervision.
On November 9, 2006, Tuggles’s son was arrested in connection with a second separate matter.
On November 10, 2006, Collins visited and conferred with Anthony Hooker at Juvenile Hall.
On November 10, 2006, Tuggles contacted respondent to inform him of the new charges against her son. At that time, respondent declined to represent Tuggles’s son in connection with the second matter. Respondent suggested that Tuggles obtain a public defender for her son.
On November 11, 2006, Collins interviewed Oakland police officers, K. Rush and R. Johnson, as part of his representation of Anthony Hooker.
On November 13, 2006, Collins interviewed Oakland police officers, A. Jones and L. Armstrong, as part of his representation of Anthony Hooker.
On November 13, 2006, Tuggles employed another attorney to represent her son in connection with the second case.
On November 15, 2006, a hearing took place at in the second matter. At that time, the court consolidated the two pending matters.
On November 16, 2006, Tuggles sent respondent an email terminating his representation.
Respondent received the November 16, 2006 email soon after it was sent.
On December 12, 2006, Tuggles sent respondent a letter to his official membership records address requesting that respondent provide her with an accounting and a refund.
Respondent received the December 12, 2006 letter soon after it was sent. Collins asserts that he mailed Tuggles an accounting on December 11, 2006, which Tuggles denies. Respondent did not return the unearned fees.
On January 22, 2007, Tuggles sent respondent a letter (dated January 19, 2007) to his official membership records address via certified mail. On January 23, 2007, respondent received the January 22, 2007.
The January 19, 2007 letter requested that respondent provide Tuggles with an accounting and a refund of the unearned fees.
Thereafter, respondent failed to respond to the January 19, 2007 letter, failed to provide Tuggles with an accounting and failed to refund the unearned fees.
On March 7, 2007, Tuggles filed a claim against respondent in small claims court in the matter Tuggles v. Collins, Alameda Superior Court Case Number WS-07314276. The court set the matter for trial on April 11, 2007.
On March 15, 2007, Tuggles properly served her claim on respondent.
Respondent received the claim soon after it was served.
On April 11, 2007, respondent failed to appear at the trial. As a result, the court entered a default judgment award in Tuggles’s favor in the amount of $1,300 plus $30.00 in costs.
On April 11, 2007, the court properly served respondent with the Notice of Entry of Judgment, indicating that the court had entered judgment against respondent for $1,300 plus $30.00 in costs.
On June 1, 2007, Tuggles sent respondent a letter to his official membership records address requesting that respondent pay the judgment. Respondent received the June 1, 2007 letter soon after it was sent.
Thereafter, respondent failed to respond to the June 1, 2007 letter and failed to pay Tuggles any money in satisfaction of the judgment.
Tuggles acted as her son’s representative regarding respondent’s representation of her son.
Respondent recognized Tuggles as her son’s representative since respondent accepted fees from Tuggles and entered into a fee agreement with Tuggles.
On November 16, December 12, 2006 and January 19, 2007, Tuggles requested that respondent provide her with an accounting of the advanced fees she paid.
Respondent received each of Tuggles’s requests, but failed to respond to them and failed to provide Tuggles with an accounting.
Respondent accepted fees from Tuggles to represent her juvenile son.
At all relevant times mentioned herein, the State Bar was conducting a disciplinary investigation concerning respondent’s conduct in case number 07-O-12116.
The State Bar requested that respondent cooperate and participate in the investigation by providing a response to the allegations under investigation.
The State Bar notified respondent of its request for cooperation and participation by means of letters dated June 12, 2007 and June 30, 2007.
The letters were sent to respondent by first class mail fully prepaid, addressed to respondent’s address as maintained by the State Bar in accordance with Business and Professions Code section 6002.1 subdivision (a). The letters were not returned to the State Bar by the postal authorities.
The State Bar gave respondent a reasonable period of time to respond to the letters.
Thereafter, respondent willfully failed to comply with the State Bar’s request for cooperation and participation in the disciplinary investigation by failing to respond to the letters and failing to cooperate with the State Bar or participate in its investigation.
Respondent did not raise may statutory or constitutional privilege in failing to cooperate and participate in the State Bar investigation.
Conclusions of Law
Respondent wilfully violated Rules of Professional Conduct, rule 3-700(D)(2), by failing to refund promptly any part of a fee paid in advance that has not been earned. To date, respondent has not refunded any of the unearned fees to Tuggles. By failing to refund any unearned fees to Tuggles, respondent failed to refund promptly any part of a fee paid in advance that has not been earned.
Respondent wilfully violated Rules of Professional Conduct, rule 4-100(B)(3), by failing to render appropriate accounts to a client regarding all funds coming into respondent’s possession. Respondent accepted compensation for representing Tuggles’s son from Tuggles, who was not the client, without complying with the requirement that respondent obtain Tuggles’s son informed written consent.
Respondent wilfully violated Rules of Professional Conduct, rule 4-100(B)(3), by failing to render appropriate accounts to a client regarding all funds coming into respondent’s possession.
Respondent wilfully violated Business and Professions Code, section 6068(i), by failing to respond to the State Bar’s letters of June 12, 2007 and June 30, 2007, respondent failed to cooperate with and participate in a State Bar investigation.
II. Pending Proceedings
The disclosure date referred to on page 1, paragraph A(7), is July 14, 2008. As of this date, the respondent is aware that there are two investigation matters (case numbers 08-O-11054 and 08-O-10113), not covered by this stipulation and pending regarding alleged misconduct.
III. Costs of Disciplinary Proceedings
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent (with this stipulation) that as of April 29, 2008, the estimated prosecution costs in this matter or approximately $2,296.00. 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
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 2.10 provides that culpability of a member of a violation of any provision of the Business and Professions Code not specified in these standards or of a wilful violation of any rule of Professional Conduct not specified in these standards shall result in reproval or 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.
Standard 2.6 provides that culpability of a member of a violation of...[Business and Professions Code section 6068]...shall result in disbarment or suspension depending on 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.
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." (ln re Morse, supra, 11 Cal.4th at p. 205; In re Nancy (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." (ln 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.)
Matter of Lindmark (Review Dept. 2004) 4 Cal. State Bar Ct. Rptr. 668. Respondent was publicly reproved for respondent’s failure to promptly refund unearned fees.
Case Number(s): 07-O-12116
In the Matter of:
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: Herece Tuggles
Principal Amount: $1,330.00
Interest Accrues From: 4/11/2007
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 the end of the probationary period starting covered by this stipulation.
<<not>> 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)
Minimum Payment Amount
Payment Frequency
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.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-12116
In the Matter of: Terry R. Collins
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: Terry R. Collins
Date: 7/15/08
Respondent’s Counsel: Howard R. Melamed
Date: 7/15/08
Deputy Trial Counsel: Manuel Jimenez
Date: 7/29/08
Case Number(s): 07-O-12116
In the Matter of: Terry R. Collins A Member of the State Bar
Nolo Contendere Plea Stipulations to Facts, Conclusions of Law, and Disposition
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a Notice of Disciplinary Charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere shall be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court shall find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based. (Added by Stats. 1996, ch. 1104.) (emphasis supplied)
Rule 133, Rules of Procedure of the State Bar of California STIPULATION AS TO FACTS, CONCLUSIONS OF LAW AND DISPOSITION
(a) A proposed stipulation to facts, conclusions of law, and disposition must set forth each of the following:
(5) a statement that Respondent either
(i) admits the facts set forth in the stipulation are true that he or she is culpable of violations of the specified statutes and/or Rules of Professional Conduct or
(ii) pleads nolo contendere to those facts and violations. If the Respondent pleas nolo contendere, the stipulation shall include each of the following:
(a) an acknowledgement that the Respondent completely understands that the plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his or her culpability of the statutes and/or Rules of Professional Conduct specified in the stipulation; and
(b) if requested by the Court, a statement by the Deputy trial counsel that the factual stipulations are supported by evidence obtained in the State Bar Investigation of the matter (emphasis supplied)
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 133(a)(5) of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent: Terry R. Collins
Date: July 16, 2008
Case Number(s): 07-O-12116
In the Matter of: Terry R. Collins
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: 7-29-08
[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 July 31, 2008, 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:
HOWARD RICHARD MELAMED
319 LENNON LN
WALNUT CREEK, CA 94598 - 2418
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 July 31, 2008.
Signed by:
Laine Silber
Case Administrator
State Bar Court