Case Number(s): 10-O-05378
In the Matter of: THEODORE A. PINNOCK , Bar # 153434 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Bar # 214209, Deputy Trial Counsel, 180 Howard Street, San Francisco, CA 94105, 415-538-2037
Counsel for Respondent: In Pro Per Respondent, Theodore A. Pinnock, 712 Bancroft Rd #419, Walnut Creek, CA 94598, (858) 206-7931, Bar # 153434
Submitted to; Assigned Judge, State Bar Court Clerk’s Office San Francisco.
<<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 10, 1991.
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):
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.
(Effective January 1, 2011)
IN THE MATTER OF: THEODORE A. PINNOCK, Bar # 153434
STATE BAR COURT CASE NUMBER: 10-O-05378
FACTS AND CONCLUSIONS OF LAW
1. In 1996, Respondent was hired by Nenette and Ray Wyatt to administer the Eric Wyatt Trust ("Trust") on behalf of their minor child, Eric Wyatt, who was confined to a wheelchair due to injuries sustained at birth. At all relevant times herein, Eric Wyatt was sole beneficiary of the Trust.
2. Prior to 2001, Respondent was appointed as Trustee of the Trust. As Trustee of the Trust, Respondent was authorized to maintain and manage the funds held on behalf of the Trust at Bank of America (Account No. xxxxx-xx522; hereinafter "Trust Account;" the account number has been excluded to protect the account from identity theft.) At all relevant times herein, Respondent was a fiduciary of the funds in the Trust Account held on behalf of the Trust.
3. On January 17, 2006, respondent was grossly negligent in withdrawing $4,000.00 from the Trust Account for his own use and benefit, thereby misappropriating the funds.
4. Prior to May 11, 2006, Eric Wyatt reached the age of maturity. On May 11, 2006, Eric Wyatt’s court appointed attorney filed a petition for termination of the Trust and for final accounting and distribution of the assets of the Trust in the matter, Eric Wyatt Trust, San Diego County Superior Court Case No.P-170033. On September 13, 2006, the court in Case No. P-170033 issued an order terminating the Trust and requiring Respondent to deliver all of the assets of the Trust and provide a final accounting of the assets of the Trust. Soon thereafter, Respondent received a copy of the court’s September 13, 2006 order.
5. On October 18, 2006, Respondent filed a verified account and report of Trustee ("October 18, 2006 report") in Case No. P-170033. Under the disbursements section, Respondent falsely represented that the $4,000.00 withdrawn from the Trust Account on January 17, 2006, was paid to Ray Wyatt as "Attendant Care and Expenses." In truth and in fact, Respondent misappropriated the $4,000.00 from the Trust Account and did not pay any portion of those funds to Ray Wyatt. At the time of making the statement in the October 18, 2006 report, respondent knew it to be false.
6. On March 12, 2007, Eric Wyatt filed an objection to Respondent’s accounting in Case No. P-170033. In the objection, Eric Wyatt noted that the $4,000.00 withdrawn from the Trust Account on January 17, 2006, was not received by him or his family. Soon thereafter, Respondent received a copy of Eric Wyatt’s objection.
7. On May 27, 2007, Respondent returned the $4,000.00 to the Trust Account.
8. On May 30, 2008, Respondent filed a verified supplemental account and report of Trustee ("supplemental report") in Case No. P-170033. In the supplemental report, Respondent falsely stated as follows: "On January 17, 2006, $4,000.00 was erroneously deposited in Petitioner’s [Respondent’s] account by a Bank of America Employee." In truth and in fact, Respondent misappropriated $4,000.00 from the Trust Account. It was not caused by a bank employee’s error. At the time of making the statement in the supplemental report, respondent knew it to be false.
1. By misappropriating $4,000.00 from the funds held on behalf of the Trust in the Trust Account by gross negligence for his own use and benefit in violation of his fiduciary duties, respondent committed an act involving moral turpitude, dishonesty or corruption in willful violation of Business and Professions Code section 6106.
2. By making knowingly false statements in the October 18, 2006 report and supplemental report, Respondent sought to mislead the judge or judicial officer by an artifice or false statement of fact or law in willful violation of Business and Professions Code section 6068(d).
The disclosure date referred to on page two, paragraph A (7) was August 10, 2011.
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 August 10, 2011, the estimated prosecution costs in this matter are approximately $3,082.06. 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
Standard 1.2(b)(iv). Respondent’s misconduct caused significant harm to his client.
Standard 1.2(e)(i). Respondent has been practicing law since 1991, and has no prior record of discipline.
Standard 1.2(e)(iv). Respondent suffered from extreme physical disabilities which expert testimony would establish were directly responsible for the misconduct and have since been resolved.
Standard 1.2(e)(v). Respondent displayed spontaneous candor and cooperation to the State Bar during the disciplinary proceedings.
Standard 1.2(e)(vii). Respondent displayed remorse for his misconduct.
Standard 2.3 requires an actual suspension or disbarment for a respondent that has committed an act of moral turpitude.
Standard 2.6 requires that a violation of Business and Professions Code section 6068(d) shall result in disbarment or suspension according to 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.
Misappropriations due to gross negligence generally result in a long actual suspension, even with an extensive showing of mitigation. (Howard v. State Bar (1990) 51 Cal.3d 215) [six months’ actual suspension; mitigation including restitution and a history of alcohol and chemical dependency and psychological problems]; McKnight v. State Bar (1991) 53 Cal.3d 1025 [one year actual suspension; mitigation including a history of manic depression].)
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, which outweighs the one aggravating circumstance, as well as the standards and case law, a 90-day actual suspension is the appropriate level of discipline in this matter.
Case Number(s): 10-O-05378
In the Matter of: THEODORE A. PINNOCK, Bar # 153434
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: THEODORE A. PINNOCK, Susan I. Kagan
Respondent: THEODORE A. PINNOCK
Deputy Trial Counsel: Susan I. Kagan
Case Number(s): 10-0-05378
In the Matter of: Theodore A. Pinnock
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: Lucy Armendariz
Judge of the State Bar Court: Lucy Armendariz
Date: August 30, 2011
(Effective January 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 August 30, 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:
THEODORE A. PINNOCK
712 BANCROFT RD #419
WALNUT CREEK, CA 94598
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 August 30, 2011.
Signed by: Laine Silber
Case Administrator: Laine Silber
State Bar Court