Case Number(s): 09-O-16661[10-O-3754]
In the Matter of: JULIA P. GIBBS, Bar # 102072, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan Chan, Deputy Trial Counsel
180 Howard Street
San Francisco, CA 94105
Bar # 233229
Counsel for Respondent: In Pro Per Respondent
Julia P. Gibbs
1329 Howe Ave., Ste. 205
Sacramento, CA 95825
Bar # 102072
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
Filed: February 15, 2011.
<<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 1, 1981.
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):
<<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, 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: JULIA P. GIBBS, State Bar No. 102072
STATE BAR COURT CASE NUMBER: 09-O-16661[10-O-3754]
FACTS AND CONCLUSIONS OF LAW.
Facts: Case No. 10-O-3754 ("Yingling"): Count One:
1. At all times mentioned, Randy Yingling was pursuing a wrongful termination lawsuit against his former employer, SK Foods LP. Yingling was represented by counsel other than respondent in the wrongful termination lawsuit. However, SK Foods LP declared bankruptcy. Yingling employed respondent to handle the bankruptcy aspects of the ease.
2. On or about July 15, 2009, Randy Yingling employed respondent to file a bankruptcy claim against SK Foods LP. Yingling paid respondent $300.00 for this service.
3.On or about August 5, 2009, Yingling employed respondent to (1) file and pursue a motion for relief from the automatic stay resulting from the banla’uptey case, thus allowing the wrongful termination lawsuit to proceed and (2) gather copies of Employment Practices Liablity Insurance policies maintained by SK Foods LP. Respondent promised to file the motion within two weeks. On or about August 5, 2009, Yingling paid respondent $1,500 for these services.
4. Respondent filed the bankruptcy claim on September 9, 2009, but never provided Yingling with a copy.
5.
Respondent failed to file motion for relief from the stay and failed to perform any further legal services for Yingling.
Conclusions of Law: Case No. 10-O-3754 ("Yingling"): Count One:
By failing to provide Yingling a copy of the bankruptcy claim and by failing to file the motion for relief from the stay, respondent intentionally, recklessly and repeatedly failed to perfoma legal services with competence in willful violation of Rules of Professional Conduct, role 3-110(A).
Facts: Case No. 10-O-3754 ("Yingling"): Count Two:
6. The allegations contained in Count One are hereby incorporated by this reference.
7. Beginning on or about October 6, 2009, Yingling sent several e-mails to respondent requesting a status update.on the motion for relief from the stay. Respondent received the e-mails on or about the date they were sent, but did not respond to all of Yingling’s e-mails.
8. Between August 11, 2009 and December 7, 2009, Yingling left several telephonic messages for respondent. Respondent received these messages, but did not respond to all of Yingling’s telephone messages.
Conclusions of Law: Case No. 10-O73754 ("Yingling"): Count Two:
By failing to respond to the e-mails and telephone messages, respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services. By failing to send Yingling a copy of the bankruptcy claim she had filed on behalf of Yingling, respondent failed to keep a client reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code section 6068(m).
Facts: Case No. 10-O-3754 ("Yingling"): Count Three:
9. The allegations contained in Counts One and Two are hereby incorporated by this reference.
10. By failing to perform legal services and failing to respond to status inquiries, respondent effectively withdrew from employment.
11. Respondent has never earned any part of the $1,500.00 attorney fee she received to file the motion for relief from stay.
12. Respondent failed to return any part of the $1,500.00 fee until on or about December 23, 2010. Respondent made this refund of $1,500.00 with 18 months interest at 10% per annum to Yingling approximately 16 months from the date she was hired to perform legal services on behalf of Yinigling.
Conclusions of Law: Case No. 10-O-3754 (",yingling"): Count Three:
By failing to refund any part of the $1,500.00 fee until December 23, 2010, respondent failed to refund any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, role 3-700(D)(2).
Facts: Case No. 10-O-3754 ("Yingling"): Count Four:
13. On or about May 10, 2010 and June 7, 2010, a State Bar investigator mailed letters to respondent, at respondent’s official membership records address, requesting (1) a written response to the allegations generally set forth in Counts One and Three of the Notice of Disciplinary Charges and (2) copies of specified documentation pertinent to the investigation. Respondent failed to respond to the letters and failed to otherwise cooperate with and failed to participate in the State Bar investigation.
Conclusions of Law: Case No. 10-O-3754 ("Yingling"): Count Four:
By failing to respond to the letters inquiry, respondent failed to cooperate and participate in a disciplinary investigation pending against her in willful violation of Business and Professions Code section 6068(i).
Facts: Case No. 09-O-16661 ("KIC Retirement Plan"): Count Five:
14. KIC Retirement Plan, by and through Roger Kahn (hereafter referred to as "KIC"), was pursuing a foreclosure proceeding concerning real property held by its debtor, Avila Sodano Development Corporation. However, Avila Soriano Devblopment Corporation declared bankruptcy.
15. On or about July 14, 2009, KIC employed respondent to file and pursue a motion for relief from the automatic stay resulting from the bankruptcy ease, thus allowing the foreclosure proceeding to continue. On the same date, KIC paid respondent $1,500.00 for these services.
16. Thereafter, respondent failed to file motion for relief, made no appearance in the ease, and failed to perform any legal services for KIC.
17. On or about August 20, 2009, Kahn sent respondent an e-mail, requesting a status report concerning the representation. Respondent received the e-mail soon after it was Lent, but did not respond.
18. On or about September 2, 2009, Kahn sent respondent an e-mail informing respondent that the debtor had filed a motion to convert the bankruptcy case from Chapter 7 to Chapter 11. The e-mail asked whether this would affect the motion for relief from the stay. Respondent received the e-mail soon after it was sent, but did not respond.
19. On or about September 8, 2009, Kahn sent respondent an e-mail, again requesting a status report concerning the representation. Respondent received the e-mail soon after it was sent, but did not respond.
Conclusions of Law: Case No. 09-O-16661 ("KIC Retirement Plan"): Count Five:
By failing to file a motion for relief from the automatic stay in the bankruptcy ease, for which she was employed, respondent intentionally, recklessly and repeatedly failed to perform legal services with competence in violation of Rules of Professional Conduct, rule 3-110(A).
Facts: Case No. 09-O-16661 ("KIC Retirement Plan"): Count Six:
20. The allegations contained in Count Five are hereby incorporated by this reference. Conclusions of Law: 09-O-16661 ("KIC Retirement Plan"): Count Six: By failing to respond to Kahn’s e-mails of August 20, September 2, and September 8, 2009, respondent failed to respond promptly to reasonable status inquiries of a client in willful violation of Business and Professions Code section 6068(m).
Facts: Case No. 09-O-16661 ("KIC Retirement Plan"): Count Seven:
2I. The allegations contained in Counts Five and Six are hereby incorporated by this reference.
22. By failing to perform legal services and failing to respond to status inquiries, respondent effectively withd.rew from employment.
23. On or about September 10, 2009, Kahn sent respondent an e-mail terminating KIC RetirementPlan~ s employment and demanded a refund of the $1,500.00 fee. Respondent received the e-mail soon after it was sent, but did not respond.
24. Respondent has never earned any part of the $1,500.00 attorney fee.
25. Respondent failed to return any part of the $1,500 fee until on or about November 23, 2009. Respondent made this refund only after receiving a letter of inquiry from the State Bar concerning the matter.
Conclusions of Law: 09-O-16661 ("KIC Retirement Plan"): Count Seven:
By failing to refund any part of the $1,500 fee until November 23, 2009, respondent failed to promptly refund any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
Facts: Case No. 09-O-16661 ("KIC Retirement Plan"): Count Eight:
The parties request a dismissal of Count Eight. (See Dismissals, pg. 11).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was January 21,2011.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of, justice:
Case No.: 09-O-16661,Count: Eight, Alleged Violation: Business and Profession Code section 6068(i)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of January 21, 2011, the estimated prosecution costs in this matter are approximately $2,831.38. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any 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.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.4(b) specifies culpability of a member of willfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of willfully failing to communicate with a client shall result in reproval or suspension depending on the extent of the misconduct and the degree of harm to the client.
Standard 2.6(a) specifies culpability of a member of a violation of sections 6067 and 6068 of the Business and Professions Code 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.
Lydon v. State Bar (1988) 45 Cal.3d 1181, "willfulness does not require actual knowledge of the provision violated."
In the Mattter of Taggart (Review Dept. 2001) 4 Cal. State Bar Ct. Rptr. 302, 309, "Thus, the term willful does not require a showing that respondent intended the consequences of his acts or omissions, it simply requires proof that he intended the act or omission itself."
In the Matter of Nees (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 459 (respondent received two years stayed suspension, two years probation conditioned on six months actual suspension and until restitution completed, compliance with rule 955 of the California Rules of Court, Multistate Professional Responsibility Examination, and other probation conditions for misconduct involving one client matter: failure to perform legal services [rule 3-110(A)]; failure to respond to client’s status inquiries [section 6068(m)]; failure to refund $7,000 in advanced legal fees [rule 3-700(D)(2)]; failure to cooperate [section 6068(i)]; failure to return client papers [rule 3-700(D)(1)].
In the Matter of Sullivan, II (Review Dept. 1997) 3 Cal. State Bar Ct: Rptr. 608 (respondent received one year suspension stayed, three years probation including 60 days actual suspension, Multistate Professional Responsibility Examination, and other probation conditions for misconduct involving four client matters: failure to perform legal services, failure to respond to client inquiries and to keep clients informed of significant development in their cases).
Colangelo v. State Bar of California (1991) 53 Cal.3d 1255 (respondent received one year stayed suspension, eighteen months probation to include Multistate Professional Responsibility Examination, and other probation conditions for misconduct involving four client matters: failure to perform legal services, failure to keep clients informed of significant development in their cases, failure to return unearned fees).
AGGRAVATING CIRCUMSTANCES.
FACTS SUPPORTING AGGRAVATING CIRCUMSTANCES.
Pursuant to 1.2(b)(ii): Respondent’s misconduct in two separate client matters evidences multiple acts of wrongdoing for failure to perform legal services, failure to promptly return unearned fees, failure to respond to client inquiries, and failure to cooperate with the State Bar. investigation in case no. 10-O-3754.
MITIGATING CIRCUMSTANCES.
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
Standard 1.2(e)(i): Respondent has been admitted to the practice of law since 1981 without a prior record of discipline.
Standard 1.2(e)(v): Respondent has cooperated with the State Bar since the Notice of Disciplinary Charges was filed.
Standard 1.2(e)(vii): Respondent took objective steps to atone for any consequences of her misconduct by repaying unearned fees plus 18 months interest at 10% annum owed to former client Randy Yingling and by repaying unearned fees to KIC Retirement four and one-half months after receipt of those fees.
STATE BAR ETHICS SCHOOL.
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
Case Number(s): 09-O-16661[10-O-3754]
In the Matter of: JULIA P. GIBBS
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: Julia P. Gibbs
Date: February 24, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Susan Chan
Date: February 25, 2011
Case Number(s): 09-O-16661[10-O-3754]
In the Matter of: JULIA P. GIBBS
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 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: Pat McElory
Date: February 15, 2011
[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 February 15, 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 San Francisco, California, addressed as follows:
JULIA PATRICIA GIBBS
1329 HOWE AVE STE 205
SACRAMENTO, CA 95825
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN CHAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on February 15, 2011.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court