Case Number(s): 10-O-11270-RAP, (11-O-18100)
In the Matter of: Byron Edwin Congdon, Bar # 123286, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Jean Cha, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1000
Bar # 228137
Counsel for Respondent: David A. Clare, Attorney at Law
444 W Ocean Blvd Ste 800
Long Beach, CA 90802
(562) 624-2837
Bar # 44971
Submitted to: Assigned Judge of State Bar Court Clerk’s Office Los Angeles
Filed: January 25, 2012
<<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, 1986.
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 11 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: 2013, 2014 & 2015. (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.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: BYRON EDWIN CONGDON, 123286
CASE NUMBERS: 10-O-11270 & (11-O-18100)
Respondent Byron Edwin Congdon, admits the facts set forth in the stipulation are true and that he is culpable of the specified violations.
THE BYRD MATTER - Case No. 10-O-11270
FACTS
1. In June 2006, Edith Byrd ("Byrd") retained Respondent for modification of child support and spousal support in a family law matter, San Bernardino Superior Court Case No. SBFSS40166, Edith D. Byrd v. Andy R. Byrd (the "Byrd matter").
2. On September 21, 2006, Respondent filed an Order to Show Cause re Modification of Child Support/Spousal Support ("OSC") on behalf of Byrd.
3. On June 20, 2008, an evidentiary hearing was held, during which both parties in the Byrd matter testified. Respondent appeared on behalf of Byrd at the evidentiary hearing.
4. On May 21, 2009, Respondent appeared on behalf of Byrd at a hearing re Decision on Child Support/Spousal Support in the Byrd matter. At the conclusion of the hearing, the action was complete. The court ordered the parties to submit trial briefs by June 5, 2009, supplemental arguments, if any, by June 12, 2009, and set the next non-appearance hearing date for June 26, 2009, for the matter to be taken under submission.
5. On June 5, 2009, Respondent did not file a trial brief on behalf of Byrd. According to Respondent, he believed that a brief was not necessary and that the matter should be submitted on the existing record. Opposing counsel did submit a trial brief. Respondent received opposing counsel’s trial brief. Respondent did not inform Byrd of his decision not to file a brief.
6. On June 26, 2009, the court continued the submission date to July 31, 2009, giving Respondent more time to file a brief by July 31, 2009. The court also warned Respondent that it would render its decision based only on the opposing party’s brief if Respondent did not file a brief by July 31, 2009. Respondent received the notice and did not inform Byrd of the court’s extension and warning.
7. Respondent did not submit a brief on behalf of Byrd by July 31, 2009. The court rendered its decision and found that child support should continue until the minor child reaches the age of majority and that spousal support shall terminate. Respondent informed Byrd of the court’s decision.
8. Between September 2009 and December 2009, Byrd tried to reach Respondent and left several voicemails to request that Respondent file a new order to show cause re modification for spousal support based on a change in Byrd’s circumstances. Respondent received Byrd’s communications but did not respond.
9. On September 4, and October 10, 2009, Byrd mailed letters to Respondent, and enclosed a substitution of attorney for Respondent’s signature. Respondent received Byrd’s letters but did not respond and did not sign and return the substitution of attorney to Byrd.
10. On March 12, 2010, Byrd filed a notice of motion and motion to relieve counsel because she was unable to speak to Respondent. On April 14, 2010, the court granted Byrd’s motion to relieve counsel. Thereafter, Byrd represented herself in pro per and obtained an order of spousal support commencing January 11, 2011.
CONCLUSIONS OF LAW
11. By failing to return Byrd’s calls and respond to her letters, Respondent failed to respond promptly to reasonable status inquiries of a client in a matter which Respondent had agreed to provide legal services in wilful violation of Business and Professions Code section 6068(m).
12. By failing to inform Byrd that Respondent decided not to file a trial brief on her behalf, and failing to inform Byrd that he declined to continue to represent her in further requests for modification of spousal support, Respondent failed to keep Byrd reasonably informed of significant developments in a matter in which Respondent had agreed to provide legal services in willful violation of Business and Professions Code section 6068(m).
THE UPL MATTER-(Case No. 11-O-18100)
FACTS
13. On July 19, 2011, a Notice of Disciplinary Charges ("NDC") was filed in State Bar Court Case No. 10-O- 11270. A response to the NDC was due no later than August 13, 2011. The State Bar filed a notice of motion for entry of default on August 23, 2011 but Respondent failed to file a response. On September 8, 2011, the State Bar Court filed an order entering Respondent’s default and enrolling Respondent inactive effective September 11, 2011, in accordance with Business and Professions Code section 6007(e). Respondent received actual notice of his inactive enrollment on the afternoon of September 15, 2011.
14. Respondent made appearances in the San Bernardino Superior Court before the Honorable Douglas M. Elwell on September 15, 2011, September 16, 2011, September 19, 2011, September 20, 2011, September 26, 2011, and September 30, 2011. Respondent did not inform opposing counsel, his clients or the Court that he was not an active member of the State Bar and was not entitled to practice law in California.
15. On September 15,2011, Respondent retained counsel. On September 15, 16 and 19, 2011, Respondent made the appearances solely for the purposes of obtaining continuances. On September 19, 2011, Respondent provided his counsel with a declaration in support of a motion to set aside his default in the State Bar matter. According to Respondent, he believed that once he provided his declaration, his counsel would promptly file a motion to set aside his default, the default would be set aside promptly, and his inactive enrollment would be terminated, nunc pro
tunc. On September 30, 2011, Respondent learned that he was still enrolled inactive and that he would remain inactive until after his default was set aside. Respondent, therefore, stopped making appearances. Respondent acknowledges his wrongdoing and understands that he should not have assumed that he could continue to make appearances while on inactive status.
Respondent now acknowledges that his belief was both mistaken and unreasonable.
16. On October 13, 2011, Respondent, through his counsel, filed a motion to set aside the default, in accordance with Business and Professions Code section 6007(e)(2). On October 24, 2011, the motion to set aside default was granted and Respondent’s inactive enrollment was terminated.
CONCLUSION OF LAW
17. By appearing before the Honorable Douglas M. Elwell of the San Bernardino
’Superior Court on September 15, 16, 19, 20, 26, and 30, 2011, while not entitled to practice law, Respondent engaged in the unauthorized practice of law in wilful violation of Business and Professions Code sections 6125 and 6126(a), and thereby failed to support the Constitution and laws of the United States and of this state in wilful violation of Business and Professions Code section 6068(a).
SUPPORTING AUTHORITY
The purpose of State Bar disciplinary proceedings is not to punish the attorney, but to protect the public, to preserve public confidence in the profession, and to maintain the highest possible professional standards for attorneys. (Chadwick v. State Bar (1987) 43 Cal.3d 1016, 1025; Std. 1.3)
Standard 2.4(b), (The Standards for Attorney Sanctions for Professional Misconduct, Rules Proc. Of State Bar, Title IV.) provides for a reproval or suspension for a failure to communicate.
Standard 2.6 provides for suspension for a failure to communicate and a violation of 606g(a), 6125, and 6126. (Business and Professions Code section 6126(a) states that any person holding himself out as practicing or entitled to practice law or otherwise practicing law, who is not an active member of the State Bar, is guilty of a misdemeanor.) Standard 1.7(a) provides for a greater degree of discipline where there is a prior record of discipline. Standard 1.6 provides for the more severe sanction where different sanctions apply.
The standards are guidelines (4 Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090; In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615, 628.) and are afforded great weight ( In re Silverton (2005) 36 Cal.4th 81, 91-92.)
but they are not applied in a talismanic fashion. ( In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 994. The determination of discipline involves an analysis of the standards on balance with the aggravation, mitigation, facts, and circumstances surrounding the misconduct. (Std. 1.6(b); Segal v. State Bar (1988) 44 Cal.3d 1077, 1089; Snyder v. State Bar (1990) 49 Cal.3d 1302, 1310-11.)
Here, a ninety-day actual suspension is consistent with the standards and is sufficient to protect the public, courts, and legal profession. (¯ In the Matter of Aguiluz (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 32 - appropriate range is from no actual suspension to 90 days actual suspension for abandoning a single client matter. The attorney in Aguiluz was disciplined with one year stayed suspension. In the Matter of Mason (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 639 - attorney was disciplined with ninety days of actual suspension for holding himself out as entitled to practice law, practicing law and moral turpitude during a 75-day suspension. In the Matter of Trousil (Review Dept. 1990) 1 Cal.State Bar Ct. Rptr. 229 - an attorney was suspended for thirty days for accepting employment from a client and appearing in the bankruptcy court while suspended.)
DISMISSALS
The parties respectfully request the Court dismiss two alleged violations from the NDC in the interest of justice:
Case No. 10-O-11270 Count One
Case No. 10-O-11270 Alleged Violation Rules of Professional Conduct, rule 3-110(A)
Case No. 10-O- 11270 Count Four
Case No. 10-O- 11270 Business and Professions Code section 6068(i)
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A.(7), was December 27, 2011.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent was informed that as of December 27, 2011, the estimated costs in this matter are approximately $4,161.00. This figure is an estimate and additional costs may exist, ( See Bus. & Prof. Code section 6068.10(c), Code Civil Procedure section 1033.5(a). which will be included in any final cost assessment. (Respondent acknowledges that if this stipulation is rejected or if relief from the stipulation is granted, the costs may increase due to further proceedings. Failure to pay any installment of disciplinary costs within the time provided or as may be modified by the State Bar Court pursuant to section 6086.10, subdivision(c), triggers the remaining balance of the costs to be due and payable immediately unless relief has been granted under the Rules of Procedure of the State Bar of California. Rules Proc. of State Bar, rule 5.130 (old rule 286); Payment of costs is enforceable as provided in Business and Professions Code section 6140.7 and as a money judgment.)
Case Number(s): 10-O-11270-RAP, (11-O-18100)
In the Matter of: Byron Edwin Congdon
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: Byron Congdon
Date: 1/12/12
Respondent’s Counsel: David Clare
Date: 1/18/12
Deputy Trial Counsel: Jean Cha
Date: 1/18/12
Case Number(s): 10-O-11270-RAP, (11-O-18100)
In the Matter of: Byron Edwin Congdon
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:
Judge of the State Bar Court: Richard A. Platel
Date: 01-25-12
[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 January 24, 2012, 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 CLARE
ATTORNEY AT LAW
444 W OCEAN BLVD STE 800
LONG BEACH, CA 90802
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Jean Cha, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 25, 2012.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court