Case Number(s): 10-O-03748-2
In the Matter of: Victor M. Comstock, Bar # 232078, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Margaret P. Warren, 1149 S. Hill Street, Los Angeles, CA 90015-2299, (213) 765-1342, Bar # 108774
Counsel for Respondent: Victor M. Comstock, 5017 Marathon St., Los Angeles, CA 90029, (323) 422-2452, Bar # 232078
Submitted to: Settlement Judge – State Bar Court Clerks’s Office Los Angeles.
Filed: March 8, 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 October 1, 2004.
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 13 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: Costs to be paid in equal amounts prior to February 1 for the following three billing cycles following the effective date of the Supreme Court order: 2012, 2013, and 2014. (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: Victor M. Comstock, State Bar No. 232078
STATE BAR COURT CASE NUMBER: 10-O-03748
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY.
The parties hereby waive any variance between the Notice of Disciplinary Charges filed in this matter on December 22, 2010 in Case No. 10-O-03748, and the facts and conclusions of law contained in this stipulation.
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case No. 10-O-03748 (Complainants: Elizabeth Courtenay and Reginald Ware)
FACTS (Count One (C)):
1. On March 16, 1998, Reginald Eugene Ware ("Ware") was found guilty as charged of four felony offenses with various enhancements, in the matter entitled People v. Ware, case no. KA035871, filed in the Los Angeles Superior Court. The order of judgment was entered on March 17, 1998.
2. Mr. Ware had absented himself from the proceedings held on March 16, 1998 in People v. Ware. Sometime between March 1998 and December 2008, Mr. Ware was arrested.
3. In April 2009, Ware hired Respondent to represent him through sentencing in People v. Ware, and to file a motion for new trial. Ware’ s family (on behalf of Ware) paid Respondent a total of $2500 of Respondent’s $3500 retainer for these services. Respondent completed these services on behalf of Ware.
4. On June 19, 2009, Ware was sentenced to 108 years to life in prison.
5. On June 25, 2009, Respondent filed a timely Notice of Appeal on behalf of Ware in case no. KA035871, to preserve Ware’s appellate rights. The Notice of Appeal identified Respondent as "attorney for Defendant, Reginald Eugene Ware."
6. The Notice of Appeal was lodged with the appellate court on July 13, 2009. The appellate court records listed Respondent as counsel of record in Ware’s appeal.
7. The appellate record was filed on August 14, 2009 and mailed to Respondent. Respondent received the appellate record shortly thereafter, and was thus put on notice that the appellate court showed Respondent as Ware’s counsel of record on appeal. Respondent did not inform Ware he had received the appellate record; did not forward the appellate record to Ware; did not advise Ware of dates of upcoming events such as the briefing schedule; did not perform any work on Ware’s appeal; and did not take any steps to properly remove himself as Ware’s attorney of record in his appeal by substituting out or obtaining the appellate court’s leave to withdraw.
8. Ware’s opening brief on appeal was due within 40 days of August 14, 2009. On September 30, 2009, the appellate court sent Respondent a letter reminding him that the opening brief had not been filed, and that if the opening brief was not on file within 30 days of September 30, 2009, or good cause not shown for relief from default, the appeal would be dismissed. Respondent received the appellate court’s letter. Respondent did not inform Ware of his receipt of this letter; performed no work on Ware’s appeal; and took no steps to properly remove himself as Ware’s attorney of record in his appeal by substituting out or obtaining the appellate court’s leave to withdraw.
9. On November 5, 2009, Ware’s appeal was dismissed. Respondent received notice of the dismissal, but did not inform Ware that his appeal had been dismissed. Nor did Respondent take any steps to set aside the dismissal or otherwise attempt to reinstate Ware’s appeal. 10. Elizabeth Courtenay ("Courtenay"), an attorney with California Appellate Project in Los Angeles ("CAP/LA"), wrote to Respondent on three occasions between late January and early March of 2010. In her letters, Courtenay requested information on behalf of Ware; advised Respondent that he was listed as attorney of record in the Ware appeal; informed Respondent that the appeal had been dismissed; and suggested to Respondent that he should either contact the court seeking to be removed as attorney of record or seek to reinstate the appeal. Respondent received Courtenay’s letters, but did not respond to any of them in any manner; took no steps to contact the appellate court to be removed as Ware’s counsel of record; and took no steps to try to reinstate Ware’s appeal.
11. In May of 2010, CAP/LA and Courtenay accepted representation of Ware on appeal and sought to reinstate the appeal. On May 12, 2010, Courtenay filed a motion on behalf of Ware in the Court of Appeal to recall remittitur and reinstate appeal in People v. Ware. By the Court of Appeal’ s order filed on May 14, 2010 in People v. Ware, Ware’s motion was granted; the remittitur recalled; the order of dismissal of the appeal vacated; and the appeal reinstated.
12. After Respondent filed the Notice of Appeal on behalf of Ware on June 25, 2009, he and Ware had some discussions regarding Respondent representing Ware in the appeal. However, Ware never entered into a written retainer agreement with Respondent to represent Ware in his appeal; nor did Ware (or anyone acting on Ware’s behalf) ever pay Respondent any monies to represent Ware in the appeal.
13. Though Respondent filed the Notice of Appeal on Ware’s behalf, he did so solely for the purpose of preserving Ware’s appellate rights. At no time after filing the Notice of Appeal, however, did Respondent write to Ware and advise Ware that Respondent did not intend to represent Ware in the appeal; that Respondent’s act of filing of the Notice of Appeal to preserve Ware’s rights was not to be construed as an agreement by Respondent to represent Ware in the appeal; that significant events in the appeal would be coming up on the court calendar (e.g., the timing of the due date of Ware’s opening brief); and that Ware needed to secure appellate representation as soon as possible.
LEGAL CONCLUSIONS:
14. By failing to take any steps to obtain leave of the court to withdraw as Ware’s counsel of record in Ware’s appeal; by failing to make clear to Ware, after filing the Notice of Appeal in Ware’s case, that he would not be representing Ware in his appeal; by failing to deliver to Ware the record on appeal as soon as practicable after receiving it; by failing to inform Ware of important upcoming events in his appeal upon receipt of the record of appeal; by failing to respond to Ware’s and Courtenay’s communications requesting information concerning Ware’s appeal; by not informing Ware of the dismissal of his appeal; and by failing to take any action to set aside (or assist in setting aside) the dismissal of Ware’s appeal, Respondent withdrew from employment without taking reasonable steps to avoid reasonably foreseeable prejudice to the rights of his client, in willful violation of rule 3-700(A)(2) of the Rules of Professional Conduct.
FACTS (Count One (D)):
15. On February 25, 2010, the State Bar opened an investigation pursuant to a complaint against Respondent filed by Courtenay and later joined by Ware ("Ware complaint").
16. On April 20, 2010, and May 10, 2010, a State Bar Investigator mailed letters to Respondent regarding the Ware complaint. The State Bar Investigator’s letters requested Respondent to respond in writing to specified allegations of misconduct being investigated by the State Bar in the War complaint. Respondent received the letters.
17. On May 11, 2010, the State Bar Investigator telephoned Respondent, who confirmed receipt of the Investigator’s April 20, 2010, letter and stated that he would respond to it by the end of the week. Thereafter, Respondent at no time provided a response to the Investigator, in writing or otherwise, to the allegations of misconduct in the Ware complaint.
LEGAL CONCLUSIONS:
18. By not providing a written response to the investigator’s letters regarding the allegations in the Ware complaint or otherwise cooperating in the investigation of the Ware complaint, respondent failed to cooperate and participate in a disciplinary investigation pending against respondent in willful violation of Business and Professions Code section 6068(i).
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was March 2, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
The duty to take reasonable steps to avoid foreseeable prejudice to the rights of a client when a member withdraws from employment continues until a court grants leave to withdraw and applies whether or not prejudice actually occurs. In the Matter of l/Vo/ff(Review Dept. 2006) 5 Cal. State Bar Ct. Rptr. 1. If an attorney is essentially withdrawing from employment he is obligated to give due notice to the client. In the Matter of Brock~ay (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 944.
The attorney of record in pending litigation remains counsel of record, and continues to have a duty to take actions essential to avoid foreseeable prejudice to client’s interests, until a substitution of counsel is filed or court grants leave to withdraw. There is no requirement that prejudice actually occur. In the Matter of Riley (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91.
An attorney’s failure to communicate with a client may also constitute incompetent legal practice or abandonment of the client when the facts demonstrate that the attorney’s failure to communicate resulted in the effective cessation of work on the client’s case or indicated a withdrawal from employment. In the Matter of Hindin (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 657.
In the Matter of Nees (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 459 ( abandonment of a criminal client is a serious matter warranting greater discipline than abandonment in other situations; such abandonment-type cases (primarily in the context of civil, not criminal litigation) typically involve a range of no actual suspension to 90 days’ actual suspension.
Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct provides:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession. Rehabilitation of a member is a permissible object of a sanction imposed upon the member but only if the imposition of rehabilitative sanctions is consistent with the above-stated primary purposes of sanctions for professional misconduct.
The parties submit that the protection of the public, the courts and the legal profession, and the preservation of public confidence in the legal profession, will be served by the disposition in this matter, which focuses on the rehabilitation of Respondent through the imposition of a one-year period of probation with conditions. The parties submit that the disposition herein is consistent with the fundamental purpose of disciplinary proceedings, as articulated in Standard 1.3; and submit that the stipulated discipline in this matter are sufficient assurance that Respondent will conform his future conduct to ethical standards and will adequately protect the public, the courts and the profession.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No.:10-O-03748, Count: One(A), Alleged Violation: rule 3-110(A), Rules of Professional Conduct;
Case No.:10-O-03748, Count: One.(B), Alleged Violation: section 6068(m), Bus. & Prof. Code
AGGRAVATING FACTORS.
Respondent’s actions resulted in harm to the administration of justice in that valuable court time had to be expended on addressing and ruling on Ware’s motion to recall the remittitur and reinstate the appeal in People v. Ware.
MITIGATING FACTORS.
Respondent fully cooperated with the assigned Deputy Trial Counsel in this matter.
Respondent was admitted to the practice of law in the State of California on October 1, 2004, and has no prior record of discipline.
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. The MCLE credit for Ethics School will be in addition to Respondent’s regular MCLE requirement.
Case Number(s): 10-O-03748
In the Matter of: Victor M. Comstock, #232078
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: Victor M. Comstock
Date: March 2, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Margaret P. Warren
Date: March 2, 2011
Case Number(s): 10-O-03748
In the Matter of: Victor M. Comstock, #232078
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.
<<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: RICHARD A. PLATEL
Date: March 8, 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 Los Angeles, on March 8, 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:
VICTOR M.COMSTOCK, ESQ
5017 MARATHON ST
LOS ANGELES, CA 90029
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Margaret p. Warren, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 8, 2011.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court