Case Number(s): 10-O-04315
In the Matter of: Sean C. Hickey, Bar # 159116 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Mark Hartman, Deputy Trial Counsel
180 Howard Street, 7th Floor
San Francisco, California 94105
Telephone: (415) 538-2558
Bar # 114925
Counsel for Respondent: In Pro Per Respondent
Sean C. Hickey
38871 Viento Court
Fremont, California 94536
Telephone: (650) 218-8838
Bar# 159116
Submitted to:
<<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 June 8, 1992.
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 12 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, 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: Sean Hickey
Membership No.: 159116
State Bar Case No.: 10-O-04315
WAIVERS
The parties waive all variances between (1) the facts and conclusions of law asserted in the Notice of Disciplinary Charges ("NDC") for State Bar case number 10-0-04315 ("the current case") and (2) the facts and conclusions of law contained in this Stipulation.
FACTS AND CONCLUSIONS OF LAW
Respondent admits that the following are true:
COUNT ONE
Case No. 10-O-04315
Rules of Professional Conduct, rule 3-110(A)
[Failure to Perform with Competence]
1. Respondent willfully violated Rules of Professional Conduct, rule 3-110(A), by intentionally, recklessly, or repeatedly failing to perform legal services with competence, as follows:
2. On or about February 15, 2006, Sheila Bost (hereinafter, "Bost") hired respondent to recover the value of her lost jewelry and other property from Britannia, Inc. On or about February 15, 2006, the parties executed a Fee Agreement. The Fee Agreement specified that respondent would either submit the matter to binding arbitration on behalf of Bost, or bring suit in San Mateo County. Respondent charged $275 per hour. Bost gave respondent a $4,000 advanced fee.
3. Thereafter, respondent reviewed the written material and met with the client. He also conversed with one "Mr. Dunn" of Safeco, and discussed, with Bost, the possibility of meeting with Mr. Durra.
4. Thereafter, respondent performed no services of any value to Bost. Respondent did not bring suit in San Mateo County on behalf of Bost. Respondent did not prepare or bring the matter to arbitration on behalf of Bost. Respondent prepared a demand letter on behalf of Bost, but he did not forward the demand letter to Britannia, Inc.
5. On or about December 22, 2006, Bost terminated respondent’s services.
6. By failing to take substantive action on Bost’s behalf, to bring suit or bring the matter to arbitration between February 2006 and December 2006, a period of approximately ten months, respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence, in willful violation of Rules of Professional Conduct, rule 3-110(A).
COUNT TWO
Case No. 10-0-04315
Rules of Professional Conduct, rule 3-700(D)(2)
[Failure to Refund Unearned Fees]
7. Respondent willfully violated Rules of Professional Conduct, rule 3-700(D)(2), by failing to refund promptly any part of a fee paid in advance that has not been earned, as follows:
8. The allegations of Count One are hereby incorporated by reference.
9. On or about September 8, 200.6, respondent sent Bost an accounting of his fee, claiming he had earned all but $1,016.25 of his $4,000 fee.
10. Respondent’s fee was not earned. His $2,983.75 in charges consisted of meeting with the client, reviewing the file, having one conversation with a "Mr. Dunn", and drafting a demand letter, which was not sent. These services were preliminary in nature and provided no benefit to Bost. Respondent did not earn any of the $4,000 fee.
11. On or about January 11, 2007, Bost send respondent a letter via certified mail, terminating the attorney-client relationship and requesting a full accounting of her fee and a refund of any unearned fee. Bost also requested the return of her file. Bost had sent similar letters on December 14, 2006 and also on December 22, 2006.
12. Respondent received Bost’s January 11, 2007 letter and was aware of the contents.
13. On or about April 18, 2007, respondent sent Bost a check for $1,016.25, which represented the remaining funds owed to Bost according to his accounting provided on September 8, 2008. Bost brought this check to the issuing bank, Borel, but was unable to cash it as there were insufficient funds in respondent’s account.
14. On or about December 16, 2007, Bost wrote a letter to respondent advising him of the insufficient funds check and asking respondent to either send her a new check or notify her when there would be sufficient funds to cover the check.
15. Respondent received Bost’s December 16, 2007 letter and failed to respond or otherwise make good on the check for $1,016.25.
16. By failing to refund $4,000 to Bost in unearned fees, and by failing to make good on the insufficient check for $1,016.25 in funds that respondent sent to Bost, respondent failed to refund promptly 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).
COUNT THREE
Case No. 10-0-04315
Rules of Professional Conduct, rule 3-700(D)(1)
[Failure to Release File]
17. Respondent willfully violated Rules of Professional Conduct, rule 3-700(D)(1), by failing to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property, as follows:
18. The allegations of Counts One and Two are hereby incorporated by reference.
19. Respondent failed to return Bost’s file to her.
20. By failing to return Bost’s file to her, respondent failed to release promptly, upon termination of employment, to the client, at the request of the client, all the client papers and property, in willful violation of Rules of Professional Conduct, rule 3-700(D)(1).
AGGRAVATION
Prior Record of Discipline: Although respondent has a record of discipline in case numbers 08-0-13173 and 08-0-13265 ("the prior cases"), this record warrants diminished weight in the current case because his current ethical violations overlapped his misconduct in the prior cases. (In the Matter of Hunter (Review Dept 1994) 3 Cal. State Bar Ct. Rptr 63, 80.)
Multiple Acts of Wrongdoing: Respondent committed multiple acts of wrongdoing in the current case.
Significant Harm to a Client: Respondent significantly harmed Bost by failing to repay her advance fee of $4,000.00 and to return her file.
MITIGATION
Candor/Cooperation: Respondent has displayed candor to, and cooperation with, the State Bar in resolving the current case by entering into this Stipulation
SUPPORTING AUTHORITY
The supporting authority for the stipulated discipline includes:
(1) standards 1.3, 2.4(b), and 2.10 and
(2) In the Matter of Kennon (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 267 [actual suspension for 30 days where an attorney who had no prior record of discipline failed to provide competent legal services, to communicate with his client, to return his client’s file, and to return an unearned advance fee].
ESTIMATED PROSECUTION COST
The estimated prosecution cost of the current cases is $2,296.00. This sum is only an estimate, and the final cost may differ from the estimated cost. If this Stipulation is rejected or if relief from this Stipulation is granted, the prosecution cost of the current case may increase because of the cost of further proceedings.
DATE OF DISCLOSURE OF ANY PENDING INVESTIGATION OR PROCEEDING
On May 4, 2011, the State Bar sent a disclosure letter by e-mail to respondent. In this letter, the State Bar advised him of any pending investigations or proceedings against him other than the current case.
Case Number(s): 10-O-04315
In the Matter of: Sean C. Hickey State Bar Number 159116
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: Sean C. Hickey
Date: 5-5-11
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Mark Hartman
Date: 5-11-11
Case Number(s): 10-O-04315
In the Matter of: Sean C. Hickey State Bar Number 159116
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.
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: Patricia McElroy
Date: June 1, 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 June 1, 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:
SEAN C. HICKEY
LAW OFFICE SEAN C. HICKEY
38871 VIENTO COURT
FREMONT, CALIFORNIA 94536
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MARK HARTMAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on June 1, 2011.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court