State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 09-O-16931
In the Matter of: Diddo Clark, Bar # 79876, A Member of the
State Bar of California, (Respondent).
Counsel For The State Bar: Susan I, Kagan, Deputy Trial
Counsel
180 Howard Street
San Francisco, CA 94105
(415) 538-2037
Bar # 214209,
Counsel for Respondent: Carol M. Langford, 100 Pringle Ave
#570
Walnut Creek, CA 94596
(925) 938-3870
Bar # 124812,
Submitted to: Settlement Judge – State Bar Court Clerk’s
Office San Francisco.
Filed: November 29, 2010 .
<<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.
A. Parties' Acknowledgments:
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):
<<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 and
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.
B.
Aggravating Circumstances [for definition, see
Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)].
Facts supporting aggravating circumstances are required.
<<not>> checked. (1) Prior record of discipline [see
standard 1.2(f)]
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(a) State Bar Court case # of prior case .
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(b) Date prior discipline effective .
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(c) Rules of Professional Conduct/ State Bar Act violations:
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(d) Degree of prior discipline
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(e) If Respondent has two or more incidents of prior
discipline, use space provided below. .
<<not>> checked. (2) Dishonesty: Respondent's
misconduct was surrounded by or followed by bad faith, dishonesty, concealment,
overreaching or other violations of the State Bar Act or Rules of Professional
Conduct.
<<not>> checked. (3) Trust Violation: Trust funds or
property were involved and Respondent refused or was unable to account to the
client or person who was the object of the misconduct for improper conduct
toward said funds or property.
<<not>> checked. (4) Harm: Respondent's misconduct
harmed significantly a client, the public or the administration of justice.
<<not>> checked. (5) Indifference: Respondent
demonstrated indifference toward rectification of or atonement for the
consequences of his or her misconduct.
<<not>> checked. (6) Lack of Cooperation: Respondent
displayed a lack of candor and cooperation to victims of his/her misconduct or
to the State Bar during disciplinary investigation or proceedings.
<<not>> checked. (7) Multiple/Pattern of Misconduct:
Respondent's current misconduct evidences multiple acts of wrongdoing or
demonstrates a pattern of misconduct.
checked. (8) No aggravating circumstances are involved.
Additional aggravating circumstances: .
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
checked.
(1)
No Prior Discipline: Respondent has no prior record of discipline over
many years of practice coupled with present misconduct which is not deemed
serious. See page 8.
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checked. (2) No Harm: Respondent did not harm the
client or person who was the object of the misconduct.
checked.
(3)
Candor/Cooperation: Respondent displayed spontaneous candor and
cooperation with the victims of his/her misconduct and to the State Bar during
disciplinary investigation and proceedings. See page 8.
checked.
(4)
Remorse: Respondent promptly took objective steps spontaneously
demonstrating remorse and recognition of the wrongdoing, which steps were
designed to timely atone for any consequences of his/her misconduct. See page
8.
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checked. (5) Restitution: Respondent paid $
on in restitution to without the threat or
force of disciplinary, civil or criminal proceedings.
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checked. (6) Delay: These disciplinary proceedings were
excessively delayed. The delay is not attributable to Respondent and the
delay prejudiced him/her.
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checked. (7) Good Faith: Respondent acted in good
faith.
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checked. (8) Emotional/Physical Difficulties: At the
time of the stipulated act or acts of professional misconduct Respondent
suffered extreme emotional difficulties or physical disabilities which expert
testimony would establish was directly responsible for the misconduct.
The difficulties or disabilities were not the product of any illegal conduct by
the member, such as illegal drug or substance abuse, and Respondent no longer
suffers from such difficulties or disabilities.
checked.
(9)
Severe Financial Stress: At the time of the misconduct, Respondent
suffered from severe financial stress which resulted from circumstances not
reasonably foreseeable or which were beyond his/her control and which were
directly responsible for the misconduct. See page 9.
checked.
(10) Family Problems: At the time of the misconduct, Respondent suffered
extreme difficulties in his/her personal life which were other than emotional
or physical in nature. See page 9.
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(11) Good Character: Respondent's good character is attested to by a wide
range of references in the legal and general communities who are aware of the
full extent of his/her misconduct. See page 9.
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checked. (12) Rehabilitation: Considerable time has passed since the acts
of professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
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checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances:
D.
Discipline:
checked.
(1) Stayed
Suspension:
checked.
(a) Respondent must be suspended from the practice of law for a period of two
(2) years.
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checked. i. and until Respondent shows proof satisfactory to the State Bar
Court of rehabilitation and present fitness to practice and present learning
and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney
Sanctions for Professional Misconduct.
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following: .
checked.
(b) The above-referenced suspension is stayed.
checked.
(2) Probation: Respondent must be placed on probation for a period of
three (3) years, which will commence upon the effective date of the Supreme
Court order in this matter. (See rule 9.18, California Rules of Court.)
checked. (3) Actual Suspension:
checked.
(a) Respondent must be actually suspended from the practice of law in the State
of California for a period of thirty (30) days.
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checked. i. and until Respondent shows proof satisfactory to the State Bar Court
of rehabilitation and present fitness to practice and present learning and
ability in the law pursuant to standard 1.4(c)(ii), Standards for Attorney
Sanctions for Professional Misconduct
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following: .
E. Additional Conditions of Probation:
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checked. (1) If Respondent is actually suspended for two years or
more, he/she must remain actually suspended until he/she proves to the
State Bar Court his/her rehabilitation, fitness to practice, and learning and
ability in the general law, pursuant to standard 1.4(c)(ii), Standards for
Attorney Sanctions for Professional Misconduct.
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checked. (2) During the probation period, Respondent must comply
with the provisions of the State Bar Act and Rules of Professional Conduct.
checked.
(3)
Within ten (10) days of any change, Respondent must report to the Membership
Records Office of the State Bar and to the Office of Probation of the State Bar
of California ("Office of Probation"), all changes of information,
including current office address and telephone number, or other address for
State Bar purposes, as prescribed by section 6002.1 of the Business and
Professions Code.
checked.
(4)
Within thirty (30) days from the effective date of discipline, Respondent must
contact the Office of Probation and schedule a meeting with Respondent's assigned
probation deputy to discuss these terms and conditions of probation. Upon the
direction of the Office of Probation, Respondent must meet with the probation
deputy either in-person or by telephone. During the period of probation,
Respondent must promptly meet with the probation deputy as directed and upon
request.
checked.
(5)
Respondent must submit written quarterly reports to the Office of Probation on
each January 10, April 10, July 10, and October 10 of the period of probation. Under
penalty of perjury, Respondent must state whether Respondent has complied with
the State Bar Act, the Rules of Professional Conduct, and all conditions of
probation during the preceding calendar quarter. Respondent must also state
whether there are any proceedings pending against him or her in the State Bar
Court and if so, the case number and current status of that proceeding. If the
first report would cover less than 30 days, that report must be submitted on
the next quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same
information, is due no earlier than twenty (20) days before the last day of the
period of probation and no later than the last day of probation.
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checked. (6) Respondent must be assigned a probation monitor.
Respondent must promptly review the terms and conditions of probation with the
probation monitor to establish a manner and schedule of compliance. During the
period of probation, Respondent must furnish to the monitor such reports as may
be requested, in addition to the quarterly reports required to be submitted to
the Office of Probation. Respondent must cooperate fully with the probation
monitor.
checked.
(7)
Subject to assertion of applicable privileges, Respondent must answer fully,
promptly and truthfully any inquiries of the Office of Probation and any
probation monitor assigned under these conditions which are directed to
Respondent personally or in writing relating to whether Respondent is complying
or has complied with the probation conditions.
checked.
(8)
Within one (1) year of the effective date of the discipline herein, Respondent
must provide to the Office of Probation satisfactory proof of attendance at a
session of the Ethics School, and passage of the test given at the end of that
session.
No Ethics School recommended. Reason:
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checked. (9) Respondent must comply with all conditions of
probation imposed in the underlying criminal matter and must so declare under
penalty of perjury in conjunction with any quarterly report to be filed with
the Office of Probation.
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checked. (10) The following conditions are attached hereto and incorporated:
<<not>> checked. Substance
Abuse Conditions.
<<not>> checked. Law Office
Management Conditions.
<<not>> checked. Medical
Conditions.
<<not>> checked. Financial
Conditions.
F. Other Conditions Negotiated by the Parties:
checked.
(1)
Multistate Professional Responsibility Examination: Respondent must
provide proof of passage of the Multistate Professional Responsibility
Examination ("MPRE"), administered by the National Conference of Bar
Examiners, to the Office of Probation during the period of actual suspension or
within one year, whichever period is longer. Failure to pass the MPRE
results in actual suspension without further hearing until passage. But see
rule 9.10(b), California Rules of Court, and rule 5.162(A) & (E), Rules of
Procedure.
<<not>> checked. No MPRE recommended. Reason:
<<not>> checked. (2) Rule 9.20, California
Rules of Court: Respondent must comply with the requirements of rule
9.20, California Rules of Court, and perform the acts specified in subdivisions
(a) and (c) of that rule within 30 and 40 calendar days, respectively, after
the effective date of the Supreme Court's Order in this matter.
<<not>> checked. (3) Conditional Rule 9.20,
California Rules of Court: If Respondent remains actually suspended for
90 days or more, he/she must comply with the requirements of rule 9.20,
California Rules of Court, and perform the acts specified in subdivisions (a)
and (c) of that rule within 120 and 130 calendar days, respectively, after the
effective date of the Supreme Court's Order in this matter.
<<not>> checked. (4) Credit for Interim
Suspension [conviction referral cases only]: Respondent will be credited
for the period of his/her interim suspension toward the stipulated period of
actual suspension. Date of commencement of interim suspension:
<<not>> checked. (5) Other Conditions:
Attachment language (if any):
FACTS AND
CONCLUSIONS OF LAW
Facts
1. In 2005,
respondent filed a complaint against her mother, Louise Clark, in the matter,
Clark v. Clark, Contra Costa Superior Court Case No. C05-02007. On April 27,
2007, the court entered a judgment in Case No. C05-02007. After the judgment
was entered, respondent filed a motion JNOV which was granted, in part, by the
court. Thereafter, respondent’s mother filed an appeal of the post-judgment
order granting the partial JNOV in Clark v. Clark, California Court of Appeal,
First Appellate District A118811.
2. On October
21, 2008, respondent filed an application for extension of time to the file the
appellate brief. On or about October 21, 2008, the court granted the extension
and ordered her to file the brief by November 24, 2008. Soon thereafter,
respondent received the court’s order. On November 24, 2008, respondent filed a
second application for extension of time to file the brief. On December 1,
2008, the court granted the second extension and ordered her to file the brief
by December 24, 2008. Soon thereafter, respondent received the court’s order,
but failed to file the brief by December 24, 2008, and failed to file an application
for an extension of time to file the brief.
3. On
December 29, 2008, five days after the due date, the court received
respondent’s brief for filing. On January 7, 2009, the court issued an order
directing the clerk not to file the brief and to return it to respondent as a
consequence of her noncompliance with the Rules of Court. The court ordered
respondent to file a corrected brief by January 21, 2009. Soon thereafter,
respondent received the court’s January 7, 2009 order, but failed to file a corrected
brief by January 21, 2009, and failed to file an application for an extension
of time to file the brief.
4. On January
23, 2009, respondent sent a letter to the clerk of court by facsimile. In the
January 23, 2009 letter, respondent falsely stated as follows:
"I
mailed my brief, with supplementary pleadings, by Priority Mail. I hope that
you have received it and that it is deemed timely.
There were 2
envelopes. I screwed up the bar code / zip code on one of them so I bound the 2
together with rubber bands. I hope that that was not a problem for the Post
Office or for your office. I so, I apologized [sic]."
5. In truth
and in fact, as of January 23, 2009, respondent had not mailed the brief to the
court. In truth and in fact, as of January 23, 2009, respondent had not
completed the brief. At the time of making the statement in her January 23,
2009 letter, respondent knew her statement was false.
6. On January
27, 2009, the clerk of the court left a voicemail message for respondent advising
that the court had not yet received her corrected brief. Soon thereafter,
respondent received the voicemail message. On January 28, 2009, respondent sent
a letter to the clerk of the court by facsimile. In the January 28, 2009
letter, respondent admitted to lying about mailing the brief and apologized for
lying to the court. She also requested additional time to file the brief.
Respondent’s request for an extension was later denied by the court.
Conclusions
of Law
1. By making
knowingly false statements to the clerk of the court in her letter of January
23, 2009, respondent sought to mislead the judge or judicial officer by an
artifice or false statement of fact or law in willful violation of section
6068(d) of the Business and Professions Code.
2. By making
knowingly false statements to the clerk of the court in her letter of January
23, 2009, respondent intentionally or by gross negligence, committed an act or
acts involving moral turpitude, dishonesty or corruption, in willful violation
of section 6106 of the Business and Professions Code.
PENDING
PROCEEDINGS
The
disclosure date referred to on page two, paragraph A (7) was October 25, 2010.
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.
COSTS OF
DISCIPLINARY PROCEEDINGS
Respondent
acknowledges that the State Bar has informed respondent that as of October 25,
2010, the estimated prosecution costs in this matter are approximately
$1,983.00. Respondent acknowledges that this figure is an estimate only and
that it does not include State Bar Court costs which will be included in 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.
FACTS
SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
AGGRAVATING
CIRCUMSTANCES
There are no
aggravating circumstances.
MITIGATING
CIRCUMSTANCES
Standard
1.2(e)(i). Respondent has been practicing law since 1978, and has no prior
record of discipline.
Standard
1.2(e)(v). Respondent displayed spontaneous candor and cooperation to the State
Bar during the disciplinary proceedings.
Standard
1.2(e)(vi). Respondent demonstrated good character.
Standard 1.2(e)(vii).
Respondent displayed remorse for her misconduct.
Respondent
claims that she is the victim of hostile siblings who have misappropriated all
of her assets and rendered her indigent with post-traumatic stress disorder.
SUPPORTING
AUTHORITY
Standard 2.3
requires an actual suspension or disbarment for a respondent that has committed
an act of moral turpitude.
Standard
2.6(a) requires that a violation of Business and Professions Code section
6068(d) shall result in disbarment or suspension depending on the gravity of
the offense or harm, if any, to the victim, with due regard to the purpose of
imposing discipline set forth in standard 1.3
The proper
discipline for a violation of section 6068(d) is a period of actual suspension.
(See Drociak v. State Bar (1991) 52 Cal.3d 1085 [30 days’ actual suspension; no
prior record of discipline]; Bach v. State Bar (1987) 43 Cal.3d 848 [60 days’
actual suspension; prior public reproval]; see also In the Matter of Chesnut
(Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 166 [six months’ actual
suspension; prior record of discipline]; In the Matter of Farrell (Review Dept.
1991) 1 Cal. State Bar Ct. Rptr. 490 [six months’ actual suspension; prior
record of discipline].)
Based on the
mitigation and lack of aggravating circumstances in this matter, a 30-day
actual suspension is appropriate.
SIGNATURE OF THE PARTIES
Case Number(s): 09-O-16931
In the Matter of: Diddo Clark
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:
Diddo Clark
Date:
November 2, 2010
Respondent’s
Counsel: Carol Langford
Date: November
3, 2010
Deputy Trial
Counsel: Susan I. Kagan
Date:
November 18, 2010
ACTUAL SUSPENSION ORDER
Case Number(s): 09-O-16931
In the Matter of: Diddo Clark
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.
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checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set
forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
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: Lucy Armendariz
Date: November
28, 2010
CERTIFICATE OF SERVICE
[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 November 29, 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:
CAROL LANGFORD
100 PRINGLE AVE #570
WALNUT CREEK, CA 94596
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
SUSAN I. KAGAN, Enforcement, San
Francisco
I hereby
certify that the foregoing is true and correct. Executed in San Francisco,
California, on November 29, 2010.
Signed by:
Bernadette
C.O. Molina
Case
Administrator
State Bar
Court