Case Number(s): 09-O-16004
In the Matter of: Duane DíRoy Dade, Bar #140379, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Jean Cha
Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
Counsel for Respondent: In Pro Per Respondent
Duane DíRoy Dade
PO Box 1111
Rancho Cucamong, CA 91730
Bar # 140379
Submitted to: Settlement Judge,
<<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 .
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 ßß6086.10 & 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: 2012, 2013 & 20] 4 which is three Billing Cycles Following the Effective Date of the Supreme Court Order.(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: DUANE DíROY DADE, 140379
CASE NUMBER: 09-0-16004
Respondent admits the facts set forth in the stipulation are true and that he is culpable of violations of the specified statutes and Rules of Professional Conduct.
09-0-16004 - Millender Matter
1. In December 2005, Elbert D. Millender ("Millender") employed Respondent to represent him in a civil matter.
2. On September 28, 2006, Respondent filed a Civil complaint on Millenderís behalf entitled Elbert Millender v. Cardio Fascular Plus lnc. et. al., in Riverside County Superior Court, case no. RIC457734 (the "civil action").
3. On December 28, 2006, the court in the civil action set an Order to Show Cause for March 14, 2007 regarding why sanctions of $150 should not be ordered for plaintiffís failure to file a proof of service of summons. On January 26, 2007, the court in the civil action served Respondent with the December 28, 2006 minute order. Respondent received the minute order.
4. On January 3, 2007, the State Bar Court of California properly served Respondentís counsel with an order notifying Respondent that he would be enrolled as an inactive member of the State Bar of California effective February 13, 2007 pursuant to Business and Professions Code section 6233. Respondent received notice of his enrollment to inactive status but did not inform Millender that he would be enrolled inactive on February 13, 2007.
5. On February 13, 2007, Respondent was enrolled as an inactive member of the State Bar of California. Respondent was on inactive status from February 13, 2007 to September 21, 2007.
6. At no time did Respondent notify Millender that he was enrolled as an inactive member of the State Bar of California. At no time did Respondent notify Richard D. Roth ("Roth"), the opposing counsel in the civil action, or the court in the civil action that he had been enrolled as an inactive member of the State Bar of California.
7. From February 20, 2007 to May 2007, Roth served Respondent with documents filed with the court in the civil action, including defendantís answer to the complaint. Respondent received the documents but did not inform opposing counsel that he was inactive.
8. In April 2007, Millender telephoned Respondentís law office and found the telephone number disconnected. Thereafter, Millender went to Respondentís law office and found the office closed. Millender subsequently learned that Respondent had moved from his law office. Respondent did not provide Millender with a new address.
9. On March 12, 2007, Respondent, on behalf of Millender and while on inactive status, filed the proof of service of summons in the civil action. On the proof of service, Respondent held himself out as "Duane D. Dade, ESQ." and as the attorney for Millender.
10. On May 17, 2007, Respondent updated his membership records information with the State Bar of California but did not update Millender.
11. In May 2007, Roth attempted to serve a Notice of Deposition on Respondent, but the notice was returned by the post office. On May 23, 2007, Rothís law office checked Respondentís membership information or the State Bar website and discovered that Respondent had been placed on inactive status effective February 13, 2007.
12. On Mary 24, 2007, Roth wrote Millender informing him that Respondent was inactive status and told Millender that he needed to obtain new counsel.
13. On June 5, 2007, Roth filed a Notice to Plaintiff to Secure Representation or to Appear In Pro Per with the court in the civil action based on Respondentís inactive status.
14. On August 7, 2007, Millender filed a substitution removing Respondent as counsel and appearing pro per. On September 10, 2007, Attorney Bradley White, substitution into Millenderís civil action.
CONCLUSION OF LAW
15. By not informing Millender that he was on inactive status and therefore was unable to represent Millender in the civil action, by disconnecting his telephone without providing a new number to Millender and by moving from his law office without providing Millender with updated contacted information, Respondent ceased representing Millender in the civil action and failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client in willful violation of Rules of Professional Conduct rule 3-700(A)(2).
16. By filing a document with the court in the civil action when he was not an active member of the State Bar of California and by holding himself as an attorney entitled to practice law in California when he was not entitled, Respondent failed to support the Constitution and laws of the United States and of this state in willful violation of Business and Professions Code section 6068(a).
The purpose of State Bar disciplinary proceedings is not to punish the attorney but to protect the public, to preserve public confidence in the profession, and to maintain the highest possible professional standards for attorneys. (Chadwick v. State Bar (1989) 49 Cal.3d 103, 1 ! 1 ; Cooper
v. State Bar (1987) 43 Cal.3d 1016, 1025; Std. 1.3.) Standard 2.4(b) of the Standards for Attorney Sanctions for Professional Misconduct, Rules
Proc. Of State Bar, Title IV, provides for reproval or suspension for a failure to perform, in this case an improper withdrawal. Standard 2.6 provides for suspension or disbarment for a violation of Business and Professions Code section 6068(a). Standard 1.7(b) provides for deviation from disbarment where compelling mitigating circumstances clearly predominate or where disbarment would be unduly harsh. The standards are guidelines (Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090; In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615,628) and afforded great weight (In re Silverton (2005) 36 Cal.4th 81, 91-92), they are not applied in a talismanic fashion (In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 994).
Here, the aggravating force of Respondentís prior discipline is diminished because the underlying misconduct occurred during the same time period and contemporaneous with the misconduct in the prior case. (In the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602, 619.) Had the present misconduct addressed by this stipulation been heard and tried in the same disciplinary proceeding as State Bar Case Nos. 05-0-02787 & 07-0-10783, and in consideration of the totality of the findings, the purposes of attorney discipline does not necessitate imposing discipline in the current proceeding greater than 2 years actual suspension.
The disclosure date referred to, on page two, paragraph A.(7), was March 23,2011.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that he was informed that as of March 23, 2011, the estimated prosecution costs in this matter are approximately $3.269.00. Respondent acknowledges that this figure is an estimate only and that it might not include State Bar Court costs (see Bus. & Prof. Code section 6068.10(c)) or taxable costs (see C.C.P. section 1033.5(a)), which will be included in any final cost assessment. Respondent further acknowledges that if this stipulation is rejected or if relief from the stipulation is granted, the costs may increase due to further proceedings. Note that if Respondent fails to pay any installment of disciplinary costs within the time provided herein or as may be modified by the State Bar Court pursuant to section 6086.10, subdivision(c), the remaining balance of the costs is due and payable immediately unless relief has been granted under the Rules of Procedure of the State Bar of California (Rules Proc. of State Bar, rule 5.130 (old rule 286)). Payment of costs is enforceable as provided in Business and Professions Code section 6140.7 and as a money judgment.
Because Respondent has agreed to attend State Bar of California Ethics School as part of this stipulation, Respondent will receive Minimum Continuing Legal Education credit upon the satisfactory completion of these courses and submission of proof of completion to the Office of
Case Number(s): 09-O-16004
In the Matter of: Duane DíRoy Dade
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.
Respondent: Duane DíRoy Dade
Date: March 24, 2008
Deputy Trial Counsel: Jean Cha
Date: March 28, 2011
By DECLARATION OF SERVICE BY REGULAR MAIL
CASE NUMBER: 09-0-16004
I, the undersigned, over the age of eighteen (18) years, whose business address and place of employment is the State Bar of California, 1149 South Hill Street, Los Angeles, California 90015, declare that I am not a party to the within action; that I am readily familiar with the State Bar of Californiaís practice for collection and processing of correspondence for mailing with the United States Postal Service; that in the ordinary course of the State Bar of Californiaís practice, correspondence collected and processed by the State Bar of California would be deposited with the United States Postal Service that same day; that I am aware that on motion of party served,
service is presumed invalid if postal cancellation date or postage meter date on the envelope or package is more than one day after date of deposit for mailing contained in the affidavit; and that in accordance with the practice of the State Bar of California for collection and processing of mail, I deposited or placed for collection and mailing in the City and County of Los Angeles, on the date shown below, a true copy of the within
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING - Actual Suspension
in a sealed envelope placed for collection and mailing at Los Angeles, on the date shown below, addressed to:
Duane DíRoy Dade
P.O. Box 1111
Rancho Cucamonga, CA 91730
in an inter-office mail facility regularly maintained by the State Bar of California addressed to:
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed at Los Angeles, California, on the date shown below.
DATED: March 29, 2011 Signed: Lupe Pacheco-Granados
Case Number(s): 09-O-16004
In the Matter of: Duane D-Roy Dade
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, section, B(1)(a): include Supreme Court order no. S 180413 (State Bar Court case no. 07-012622);
2. On page 2, section, B(1)(d): include "and until restitution" to the actual suspension; and
3. On page 2, section, B.(1)e), regarding discipline effective May 29, 2010: include Supreme Court order no. S180413.
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.)
Judge of the State Bar Court: Pat McElroy
Date: April 14, 2011
[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., ß 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 April 14, 2011, 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:
DUANE D. DADE
PO BOX 1111
RANCHO CUCAMONGA, CA 91730
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Jean Cha, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on April 14, 2011.
State Bar Court