Case Number(s): 07-O-14196
In the Matter of: Arlene Kock, Bar #80276 A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Robin Brune, Office of the Chief Tdal Counsel, 180 Howard Street, San Francisco, California 9415, Bar # 149481
Counsel for Respondent: David McMonigle, Long and Levitt, 465 Californa Street Suite 500, San Francisco, California 94104, Bar # 258980
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
Filed: August 17, 2010
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 23, 1978.
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 10 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 are added to membership fee for calendar year following effective date of discipline.
<<not>> checked. Costs are 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.) 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: Arlene Kock
CASE NUMBER(S): ET AL. 07-O-14196
FACTS AND CONCLUSIONS OF LAW.
In May, 2006, Laura Kessler hired respondent to represent her in her ongoing divorce and domestic violence matters, Laura Kessler v. Michael Kessler, ease no. FFL09494, and Michael Kessler v. Laura Kessler, ease no. FFL90911, both filed in Superior Court, County of Solano. The eases were eventually consolidated, with ease no. FL90911 (dissolution) as the lead ease. The matters in this stipulation involve ease no. FL90911.
May 15, 2006 hearing
Just prior to respondent’s representation of her, Kessler appeared in Court with prior counsel, Heron, on May 15 2006. The Court ordered Heron to prepare the Order After Hearing (OAH). This obligation passed on to respondent when she assumed representation of Kessler.
Respondent did not prepare an OAH for the May 15, 2006 hearing.
June. 19, 2006 hearing
Respondent appeared in court on behalf of Kessler for a hearing on June 19, 2006. At that time, respondent recited to the Court that the parties had agreed to file income and expense affidavits by the next hearing and provide each other with up-to-date pay stubs. Respondent also told the Court that the parties had agreed to psychiatric testing and an evaluation for custody purposes. At the June 19, 2006 hearing, the Court ordered respondent to file a formal substitution of attorney, substituting herself into the ease, within the next ten days. Respondent indicated to the Court that she would prepare the Order After Hearing (OAI-1) for the June 19, 2006 hearing. The Court also advised respondent to use form FL 327 for the order for the psychological evaluator. The minute order for the Court’s June 19, 2006 hearing slated that both parties shall file updated income and expense affidavits, with paystubs, and that respondent would prepare the OAH.
Respondent did not file her substitution of attorney within the ten day time frame (respondent filed it in November, 2006). Respondent did not file an OAH for the June 19, 2006 hearing. Respondent did not use or submit form FL 327 for the order for the psychological evaluator. Respondent did not submit an income and expense affidavit for her client by "the next hearing date." There were hearing dates on September 11, 2006 and October 26, 2006. Respondent did not file the income and expense affidavit for her client until November, 2006.
Respondent did not prepare and submit an OAH for the June 19, 2006 hearing.
September 11, 2006 hearing
On September 11, 2006, the parties again returned to court on the Kessler matter. The parties discussed the psychological evaluation and the Court again advised the parties to use the FL 327 form. The Court provided respondent with the form for the OAH for the September 11, 2006 hearing, indicating that respondent would prepare the OAH.
Respondent did not use or submit the FL 327 form in response to the Court’s advisement on September 11, 2006. Respondent did not prepare an OAH for the September 11, 2006 hearing.
October 26, 2006 hearing
On October 26, 2006, the parties again returned to Court on the Kessler matter. The Court requested the parties to file preliminary disclosure documents by the next hearing, set for November 16, 2006. The Court also told respondent to prepare and submit a response to the petition for divorce filed by the husband.
Respondent did not file the preliminary disclosure documents by the next hearing. Respondent did not prepare and submit a response to the petition for divorce prior to the next hearing. Respondent did not prepare an OAH for the October 26, 2006 hearing.
November 16, 2006 hearing
On November 16, 2006 the parties again returned to Court. The Court then formally ordered that the preliminary disclosure documents be filed no later than December 6, 2006. The Court also asked respondent to go out and complete the substitution of attorney and the response to the divorce.
Respondent then handwrote the substitution of attorney and response to the divorce and filed these documents at the courthouse on that same date. Respondent did not prepare an OAH for the November 16, 2006 hearing.
On or about December, 2006, Kessler terminated respondent’s services. Kessler disputed respondent’s fees. Pursuant to this stipulation between the State Bar and respondent, respondent agrees that $11,364.50 is due and payable as unearned fees, plus the rate of ten per cent per annum from the date of May 1, 2008. Respondent failed to refund these unearned fees to Kessler until May, 2010.
Conclusions of Law
1. By failing to file the OAH’s for the Court hearings for May 15, 2006; June 19, 2006; September 11, 2006 and November 16, 2006; by failing to promptly file a substitution of attorney, which was ordered on June 19, 2006 but not filed until November, 2006; by failing to promptly file the income and expense affidavits after advising the Court on June 19, 2006 that she world do so; by failing to file the preliminary disclosure documents as requested by the Court on October 26, 2006, to be filed by the next hearing date of November 16, 2006; by failing to use the FL-327 form as requested by the Court; and by failing to file a response to the divorce until November, 2006, respondent failed to maintain respect to the Court, in violation of Business and Professions Code, section 6068(b).
2. By failing to refund $11,364.50 to Kessler until May, 2010, when the representation concluded in December, 2006, respondent failed to promptly refund earned fees, in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(6), was July 29, 2010.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of April 27, 2010, the prosecution costs in this matter are $2,339.16. 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.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.6 (a) 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 (protection of the public, the courts, and the legal profession). Standard 1.7(a). specifies that when there is prior discipline, successive discipline should be greater than the prior. If the period of misconduct of the prior discipline overlaps the same time frame as the period of discipline in the current discipline, then the Court should take the overlapping time frame into consideration, and address the totality of the findings in the two eases to determine what the discipline would have been had all the charged misconduct in this period been brought in one ease. In the Matter of Sldar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602, at 618-619; In the Matter of Hagen, (1992) 2 Cal. State Bar Ct. Rptr. 153, at 171. In this ease, respondent’s first disciplinary matter, 05-O-03912 et al., is a stipulation which was signed by the parties in April, 2010, (filed date stamped May 4, 2010) and which is erectly not yet approved by the Supreme Court. The time frame in the present ease, May-November 2006, overlaps the same time frames as in the Khav, Orosco, and Luis matters identified in 05-O-03912 et. al. Thus, it is appropriate for this Court to consider the totality of the two eases to determine what the discipline would have been had all the charged misconduct been brought in one ease.
In ease no. 05-O-03912, the State Bar stipulated as follows (page 6): "This stipulation will not be considered a prior record of discipline with respect to any pending eases that occurred during the same time period as the cases set forth in this stipulation."
These precedents were taken into consideration in reaching the settlement in this matter.
Case law demonstrates that the level of discipline for failing to show respect to the Court ranges from reprimand to actual suspension Moesian v. State Bar (1972) 8 Cal.3d 60; Hogan v. State Bar (1951) 36 Cal.2d 807; Ramirez v. State Bar (1980) 28 Cal.3d 402. In Moesian, the attorney gave false testimony to the Court in an adversarial proceeding which involved family members. The Court found he failed to maintain respect to the Court, in violation of Business and Professions Code, section 6068Co), and imposed a public reprimand. In Hogan, the attorney made disparaging remarks against the Court in his pleadings. He was found culpable of violation of Business and Professions Code sections 6103, 6068(f) and 6068(b) and given a three month actual suspension. In Ramirez, the attorney made disparaging remarks against the Court and was found to be in violation of Business and Professions Code sections 6068(0, 6068(b) and 6067, and received thirty days of actual suspension.
STATE BAR ETHICS SCHOOL EXCLUSION.
It is not recommended that respondent attend State Bar Ethics School since respondent was recently ordered to attend Ethics School in case no. 05-O-03912 et.al, filed May 4, 2010.
OTHER CONDITIONS NEGOTIATED BY THE PARTIES (FINANCIAL CONDITIONS,
Restitution).
Respondent made full payment of restitution in the amount of $11,364.50 plus the rate of ten percent per annum from May 1, 2008, as a condition precedent to this stipulation.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION EXCLUSION..
It is recommended that respondent not be required to take the Multistate Professional
Responsibility Examination because the parties anticipate that she will be ordered to take and pass the examination pursuant to the stipulation in case nos. 05-O-03912, et.al, which was approved by this Court on May 4, 2010.
Respondent admits that the aforementioned facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case Number(s): 07-O-14196
In the Matter of: Arlene Kock
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: Arlene Kock
Date: August 2, 2010
Respondent’s Counsel: David Mc Monigle
Date: August 4, 2010
Deputy Trial Counsel: Robin Brune
Date: August 5, 2010
Case Number(s): 07-O-14196
In the Matter of: Arlene Kock
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.
1. On page 2, the prior case number is 05-O-3912, and not 05-O391.
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: Patrice E. McElroy
Date: August 17, 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 San Francisco on August 17, 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 San Francisco, California, addressed as follows:
DAVID S. MCMONIGLE
LONG & LEVIT LLP
465 CALIFORNIA ST STE 500
SAN FRANCISCO, CA 94104
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ROBIN BRUNE, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on August 17, 2010.
Signed by:
Bernadette C.O.Molina
Case Administrator
State Bar Court