State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND
DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 10-O-04546
In the Matter of: David Kyle, Bar # 55821, A Member of the
State Bar of California, (Respondent).
Counsel For The State Bar: Kristin L. Ritsema, Supervising
Trial Counsel
Office of the Chief Trial Counsel
1149 South ttill Street
Los Angeles, CA 90015-2299
(213) 765-1235
Bar #149966,
Counsel for Respondent: In Pro Per Respondent
David Kyle
Law Offices of David Kyle
3941 S. Bristol, Suite D520
Santa Aria, CA 92704
(714) 444-2522
Bar# 55821
Submitted to: Settlement Judge, State Bar Court clerk’s
Office Los Angeles .
Filed: June 29, 1973.
<<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 29, 1973.
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):
<<>> 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.
<<not>> checked. Costs are
to be paid in equal amounts prior to February 1 for the following membership
years: (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.
<<>> checked. (1) Prior record of discipline [see standard
1.2(f)]
<<>>
checked. (a) State Bar Court case # of prior case 95-O-11454.
<<>>
checked. (b) Date prior discipline effective February 7,
2001.
<<>>
checked. (c) Rules of Professional Conduct/ State Bar Act
violations: Failure to promptly provide accounting, in violation of rule
4-100(B) (3) of the Rules of Professional Conduct; and failure to promptly pay
out funds to which a client was entitled, in violation of rule 4-100 (B) (4) of
the Rules of Professional Conduct
<<>>
checked. (d) Degree of prior discipline Private reproval
<<not>>
checked. (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.
<<not>> checked. (8) No aggravating circumstances are
involved.
Additional aggravating circumstances: **.
C.
Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating
circumstances are required.
<<not>>
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. **
<<not>>
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. Respondent has been candid
and cooperative with the State Bar during the pendency of the disciplinary
matter and is entering into tjis stipulation as to facts, conclusions of law
and disposition to resolve this matter without the necessity of a trial.
<<not>>
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.
<<not>>
checked. (5) Restitution: Respondent paid $
on in restitution to without the threat or
force of disciplinary, civil or criminal proceedings.
<<not>>
checked. (6) Delay: These disciplinary proceedings were
excessively delayed. The delay is not attributable to Respondent and the
delay prejudiced him/her.
<<not>>
checked. (7) Good Faith: Respondent acted in good
faith.
<<not>>
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.
<<not>>
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.
<<not>>
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.
<<not>>
checked. (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.
<<not>>
checked. (12) Rehabilitation: Considerable time has passed since the acts
of professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
<<not>>
checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances:
According
to Respondent, on April 3, 2008, when he transferred funds from his client
trust account to his personal account, Respondent had a subjective belief that
he was owed additional costs reimbursement from the Junie Aguirre case as
authorized by the court’s approval of the minor’s compromise in that matter,
and a portion of the transfer from the client trust account to the personal
account was for the additional reimbursement in the Junie Aguirre case. This
subjective belief is supported by Respondent’s notation on March 19, 2008 on
the memo line of client trust account check 2295, made payable to Respondent in
the amount of $75,000, that the check represented reimbursement for "partial
costs." Unfortunately, Respondent has been unable to produce records that
he is required to maintain pursuant to the rule 4-100(B)(3} and the Standards
following rule 4-100(C) of the Rules of Professional Conduct and has
acknowledged herein that he failed to maintain the required client ledger for
the Junie Aguirre matter. However, Respondent had promised Junie Aguirre’s
mother, Felicia Valdez, that he would make every effort to have $100,000 placed
into an annuity for the benefit of Junie, even if it meant adjusting his fees
and
costs.
When Respondent determined that insufficient funds remained in his client trust
account to place $100,000 into an annuity for Junie and additional funds were
needed for that purpose, Respondent deposited funds from his personal account
back into the client trust account to satisfy that need and keep his promise to
Ms. Valdez. At the time that Respondent placed the $100,000 in an annuity for
Junie, he was only required to be maintaining $97,007.78 in his client trust account
on Junie’s behalf as this was the
amount
remaining after the documented disbursements. So, Respondent paid $2,992.22 of
his own funds towards the purchase of the annuity for Junie. Ultimately,
Respondent’s client, Junie, was not harmed by Respondent’s misconduct, and in
fact Junie received an additional $2,992.22 from Respondent for the
purchase
of the annuity.
D. Discipline:
<< >> checked.
(1) Stayed Suspension:
<<>> checked. (a) Respondent must be suspended from the
practice of law for a period of .
<<not>> 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.
<<not>> checked. ii. and until Respondent pays restitution
as set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the
following: .
<<not>> checked. (b) The above-referenced suspension is
stayed.
<<>> checked. (2) Probation: Respondent must be
placed on probation for a period of two (2) 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 ninety (90) days.
<<not>> 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
<<not>> checked. ii. and until Respondent pays restitution
as set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the
following: **.
E. Additional Conditions of Probation:
<<not>>
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.
<<>>
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.
<<not>>
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.
<<t>>
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:
<<not>>
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.
<<>>
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.
<<>> 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:
<<>> 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:
Financial Conditions
In the Matter of: DAVID KYLE
Case Number(s): 10-O-04546
a.
Restitution
Respondent
must pay restitution (including the principal amount, plus interest of 10% per
annum) to the payee(s) listed below. If the Client Security Fund
("CSF") has reimbursed one or more of the payee(s) for all or any
portion of the principal amount(s) listed below, Respondent must also pay
restitution to CSF in the amount(s) paid, plus applicable interest and costs.
Payee
Principal Amount Interest Accrues From
<<not>>
checked
Respondent
must pay above-referenced restitution and provide satisfactory proof of payment
to the Office of
Probation
not later than
b.
Installment Restitution Payments
Respondent
must pay the above-referenced restitution on the payment schedule set forth
below. Respondent must provide satisfactory proof of payment to the Office of
Probation with each quarterly probation report, or as otherwise directed by the
Office of Probation. No later than 30 days prior to the expiration of the
period of probation (or period of reproval), Respondent must make any necessary
final payment(s) in order to complete the payment of restitution, including
interest, in full.
Payee/CSF
(as applicable) Minimum Payment Amount Payment Frequency
<<not>>
checked
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.
c.
Client Funds Certificate
<<not>>
checked 1.
If
Respondent possesses client funds at any time during the period covered by a
required quarterly report, Respondent must file with each required report a
certificate from Respondent and/or a certified public accountant or other
financial professional approved by the Office of Probation, certifying that:
a.
Respondent
has maintained a bank account in a bank authorized to do business in the State
of California, at a branch located within the State of California, and that
such account is designated as a "Trust Account" or "Clients’
Funds Account";
b.
Respondent
has kept and maintained the following:
A
written ledger for each client on whose behalf funds are held that sets forth:
1.
the name of such client;
2.
the date, amount and source of all funds received on behalf of such client;
3.
the date, amount, payee and purpose of each disbursement made on behalf of such
client;
and,
4.
the current balance for such client.
ii.
a
written journal for each client trust fund account that sets forth:
1.
the name of such account;
2.
the date, amount and client affected by each debit and credit; and,
3.
the current balance in such account.
iii.
all
bank statements and cancelled checks for each client trust account; and,
each
monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there
are any
differences
between the monthly total balances reflected in (i), (ii), and (iii), above,
the
reasons
for the differences.
c.
Respondent
has maintained a written journal of securities or other properties held for
clients that specifies:
i.
each item of security and property held;
ii.
the
person on whose behalf the security or property is held;
iii.
the
date of receipt of the security or property;
iv.
the
date of distribution of the security or property; and,
v.
the
person to whom the security or property was distributed,
If
Respondent does not possess any client funds, property or securities during the
entire period covered by a report, Respondent must so state under penalty of
perjury in the report filed with the Office of Probation for that reporting
period. In this circumstance, Respondent need not file the accountant’s
certificate described above.
3.
The
requirements of this condition are in addition to those set forth in rule
4-100, Rules of Professional Conduct.
Checked:
d. Client Trust Accounting School
Within
one (1) year of the effective date of the discipline herein, Respondent must
supply to the Office of Probation satisfactory proof of attendance at a session
of the Ethics School Client Trust Accounting School,
within
the same period of time, and passage of the test given at the end of that
session.
SIGNATURE OF THE PARTIES
Case Number(s): 10-O-04546
In the Matter of: DAVID KYLE
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: David Kyle
Date: December 21, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Kristin L.
Ritsema
Date: December 22, 2011
ACTUAL SUSPENSION ORDER
Case Number(s): 10-O-04546
In the Matter of: January 11, 2012
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: Richard A. Platel
Judge of the State Bar Court
Date: January 1, 2012
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 Los
Angeles, on, 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:
DAVID KYLE
LAW OFC DAVID
KYLE
3941 S
BRISTOL ST STE D520
SANTA ANA, CA
92704
checked. by
interoffice mail through a facility regularly maintained by the State Bar of California
addressed as follows:
KRISTIN
RITSEMA, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct.
Executed in Los Angeles, California, on January 11, 2012
Signed by: Angela Carpenter
Case Administrator
State Bar Court