Case Number(s): 08-O-12847; 08-O-13982
In the Matter of: Karen L. McKinney, Bar # 168614, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Elina Kreditor, Bar # 250641,
Counsel for Respondent: James R. DiFrank, Bar # 105591,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
<<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 December 20, 1993.
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. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: three billing cycles following the effective date of this stipulation. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.)
<<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: KAREN L. McKINNEY, State Bar No. 168614
STATE BAR COURT CASE NUMBER: 08-O-12847; 08-O-13982
FACTS AND CONCLUSIONS OF LAW
Karen L. McKinney ("Respondent") admits that the following facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
I. Facts
A. Case No. 08-O-12847
1. On November 13, 2006, Gordon Burrows ("Burrows") employed Respondent to represent him in an uncontested dissolution matter, specifically to prepare a default dissolution and marital settlement agreement.
2. Burrows paid Respondent a fee of $900.
3. Respondent filed the initial pleadings and prepared a Marital Settlement Agreement.
4. Respondent thereafter did not include all necessary documents with court filings.
5. Respondent attempted to file a Judgment on behalf of Burrows on July 15, 2008. The filing was rejected. Respondent took no further action on the case.
6. Respondent did not complete the dissolution. Respondent did not refund the $900 fee paid by Burrows.
7. Respondent failed to advise Burrows that she did not complete the dissolution and that she ceased working on the case.
8. Respondent did not return several voicemail messages left by Burrows requesting an update on his case.
9. Respondent did not pick up and respond to a letter sent certified mail by Borrows on June 20, 2008, to Respondent’s membership records address at the time. The letter, terminating Respondent and requesting a return of his fee, was returned unclaimed to Burrows.
B. Case No. 08-O-13982
10. On May 7, 2007, Victor Simeone ("Simeone") employed Respondent to represent him in a civil suit arising out of his purchase of a vehicle from a car dealership owned by Mike Vietra ("Vietra").
11. Simeone paid Respondent a deposit of $2500.00 for legal fees.
12. On May 31, 2007, Respondent filed a complaint on Simeone’s behalf in Orange County Superior Court entitled Victor T. Simeone v. Mike Vietro, Case No. 07CC06495.
13. On February 13, 2008, counsel for Vietra filed a cross-complaint against Simeone entitled M.V. Marketing, Inc., a California Corporation DBA Corvette Mike v. Victor T. Simeone, Case No. 07CC06495 ("the cross-complaint").
14. Respondent did not thereafter file an answer to the cross-complaint.
15. On March 12, 2008, counsel for Vietra filed a Request for Entry of Default on the cross-complaint.
16. On May 27, 2008, a member of Respondent’s staff drafted and caused to be filed, without Respondent’s knowledge, a "Notice of Motion and Motion to Set Aside Default," and a purported "Declaration of Karen L. McKinney," bearing Karen L. McKinney’s signature.
17. Without Respondent’s knowledge, a member of Respondent’s staff arranged for another attorney to specially appear at the hearing on Respondent’s Motion to Set Aside Default. Attorney Randy Model appeared at the hearing on June 26, 2008. The court denied the motion, without prejudice and set trial for September 22, 2008.
18. Respondent was unaware of the hearing on the Motion to Set Aside Default, Attorney Model’s special appearance or that a default had been entered against Simeone.
19. On September 22, 2008, Respondent filed a Request for Dismissal of the Complaint in Simeone’s case. Respondent did not request a dismissal of the cross-claims against Simeone. Respondent did not inform Simeone that a default had been entered on the cross-complaint. Further, Respondent did not advise Simeone that following the court’s dismissal of the complaint, the court would conduct a prove- up hearing on the default.
20. On September 22, 2008, following the court’s dismissal of Simeone’s complaint, Respondent left the courtroom. Following the dismissal, the court conducted a prove-up hearing on the defaulted cross- complaint. Respondent was not present and did not represent Simeone’s interests during this hearing.
21. On September 23, 2008, counsel for Vietra filed a Memorandum of Costs. The calculation of costs included the amount allegedly owed to the dealership for the vehicle purchase, as well as attorney’s fees. On October 2, 2008, the Court issued a Judgment against Simeone in the amount of $21,175.35.
II. Conclusions of Law
By not (1) responding to Burrows’ inquiries; (2) informing Burrows that she ceased working on his case; and (3) advising Burrows that she did not complete the marital dissolution in his case, Respondent violated rule 3-700(A)(2) of the Rules of Professional Conduct which imposes a duty to properly withdraw form a client’s representation.
By not (1) responding to the cross-complaint filed by Vietra; (2) keeping apprised of the events of the case, including the Notice for Entry of Default, the subsequent Motion to Set Aside Default, and the Court’s denial of said Motion; (3) properly supervising the activities of her office staff, specifically the filing of documents bearing Respondent’s purported signature without her knowledge; (4) seeking a release of all cross-claims prior to a dismissal of Simeone’s claims; and (5) remaining in court for the prove-up hearing on the default, Respondent failed to perform with competence, in willful violation of 3-110(A), Rules of Professional Conduct. Further, by not advising Simeone of the entry of default on the cross-complaint, Respondent failed to inform her client of a significant development in the case, in willful violation of section 6068(m) of the Business and Professions Code.
PENDING PROCEEDINGS
The disclosure date referred to, on page 2, paragraph A(7), was October 8, 2009.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 8, 2009, the costs in this matter are $4,011.00. 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.
MITIGATING CIRCUMSTANCES
During the time period of the misconduct, Respondent’s infant grand-daughter and adult daughter were diagnosed with Congenital Myotonic Dystrophy, a degenerative and terminal genetic disorder. Respondent’s grand-daughter passed away from the disorder during the time period of the misconduct. At the same time, Respondent’s adult daughter’s physical condition was steadily and rapidly deteriorating. Respondent provided constant care to her daughter, which prevented her from dedicating an adequate amount of time to her law practice. As a result, Respondent was unable to properly supervise her office staff, stay informed of developments in her clients’ cases and respond to client inquiries. Her daughter and grand-daughter’s illness placed an extreme amount of emotional and financial stress on Respondent. Respondent no longer maintains her own law practice. Instead, Respondent now practices under the supervision of other attorneys allowing her to better balance the needs of her family and her professional obligations.
AGGRAVATING CIRCUMSTANCES
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 January 7, 2003 pursuant to a stipulation resolving State Bar Case Nos. 02-O-11180 and 02-O-12539.
Standard 1.2(b)(iv) provides that whether the member’s misconduct harmed significantly a client, the public or the administration of justice, must also be considered in aggravation. As a result of Respondent’s misconduct, Burrows’ marital dissolution was delayed and he paid $900 for a service which was not completed.
As a result of Respondent’ s misconduct, a default judgment in the amount of $21,175.35 was entered against Simeone.
AUTHORITIES SUPPORTING DISCIPLINE
A. STANDARDS
Standard 2.4(b) of the Standards for Attorney Sanctions for Professional Misconduct ("Standard(s)") provides that "Culpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
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.
Standard 2.6(a) of the Standards provides that violations of section 6068 shall result in disbarment or suspension depending upon the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline.
B. CASELAW
In In the matter of Kennon (1997) 1 Cal. State Bar Ct. Rptr. 267, the Respondent was actually suspended for 30 days and received two years stayed suspension where he abandoned two clients in less than three years and retained $2000 in unearned fees from one of the clients. In mitigation, the Court considered that Respondent had no prior discipline in his eleven years of practices. However, the Court declined to consider the breakup of Respondent’s marriage and the illness and death of his mother in mitigation citing that Respondent failed to demonstrate that these were causal factors in his misconduct.
In In re Sullivan, (1997) 3 Cal. State Bar Ct. Rptr. 608, Respondent was actually suspended for 60 days and received one year stayed suspension. Respondent’s secretary hid a number of notices of various dates and proceedings in her desk prior to leaving for a vacation from which she did not return. She was terminated and a subsequent search of her desk revealed the missing documents. In two client matters, the client’s cases were dismissed due to Respondent’s failure to appear. Respondent was later able to set aside both dismissal. Unrelated to the secretary’s conduct, Respondent’s office inadvertently closed a client’s case and placed it in storage. As a result, the client’s action was dismissed. Respondent did not learn of the dismissal or notify the client until approximately a year and a half later. In yet another client matter, where the Respondent did not context culpability on appeal, the client’s matter was dismissed and Respondent was unable to set aside the dismissal. The Court found violations of rule 3-110(A) of the Rules of Professional Conduct and section 6068(m) of the Business and Professions Code, noting that: "[t]he fact that the file was misplaced, or that there was misconduct by an employee, cannot excuse the failure to maintain an information system that permits a lawyer to periodically check the status of his or her cases." In re Sullivan, (1997) 3 Cal. State Bar Ct. Rptr. 608,612. In aggravation the Court considered the harm to Respondent’s clients, specifically the dismissal of their cases. In mitigation, the Court considered Respondent’s 21 years of unblemished practice.
SIGNATURE OF THE PARTIES
Case Number(s): 08-O-12847; 08-O-13982
In the Matter of: Karen L. McKinney
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: Karen L. McKinney
Date: November 5, 2009
Respondent’s Counsel: James R. DiFrank
Date: November 9, 2009
Deputy Trial Counsel: Elina Kreditor
Date: October 8, 2009
Case Number(s): 08-O-12847; 08-O-13982
In the Matter of: Karen L. McKinney
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: Donald F. Miles
Date: November 16, 2009
[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 November 23, 2009, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL SUSPENSION
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:
JAMES RICHARD DIFRANK
12227 PHILADELPHIA ST
WHITTIER, CA 90601-3931
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ELINA KREDITOR, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 23, 2009.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court