Case Number(s): 10-O-11373
In the Matter of: Edward Griffin Duree, Bar # 116569, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Sherrie B. McLetchie, Deputy Trial Counsel
180 Howard Street
San Francisco CA 94105
(415) 538-2297
Bar # 85447
Counsel for Respondent: Edward Griffin Duree In Propria Persona
622 Jackson Street
Fairfield, California 94533
(707) 422-8933
Bar # 116569
Submitted to: Settlement Judge at 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 December 3, 1984.
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.
Case Number(s): 10-O-11373
In the Matter of: Edward Griffin Duree
a. Restitution
<<not>> checked. 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.
1. Payee:
Principal Amount:
Interest Accrues From:
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. 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
<<not>> checked. 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.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. 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.
<<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:
i. 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,
iv. 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.
2. 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. 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.
IN THE MATTER OF: Edward Griffin Duree, State Bar No. 116569
STATE BAR COURT CASE NUMBER: 10-O-11373
VARIANCE BETWEEN THE NDC AND STIPULATION
Any variance between the language of the Notice of Disciplinary Charges filed November 9, 2011 and the language of this Stipulation is waived.
FACTS AND CONCLUSIONS OF LAW
10-O-11373
Facts
1. At all relevant times herein, respondent maintained a client trust funds account at Bank of the West account no. 255-059354 ("CTA").
2. Between October 20, 2010, and May 16, 2011, respondent repeatedly issued checks or otherwise authorized transfers from his CTA against insufficient funds, including:
Check number 1114 Date Issued 10/20/10 Check Amount $57.29
Check number 1114 Date Presented October 21, 2010 Account Balance $26.85
Check number 1112 Date Issued 10/22/10 Check Amount $16.71
Check number 1112 Date Presented October 25, 2010 Account Balance -$56.44
Check number 1120 Date Issued 11/18/10 Check Amount $15
Check number 1120 Date Presented January 11, 2011 Account Balance $14.91
Check number 1120 Date Issued 11/18/10 Check Amount $300
Check number 1120 Date Presented May 10, 2011 Account Balance $137.42
Check number 1120 Date Issued 11/18/10 Check Amount $300
Check number 1120 Date Presented May 16, 2011 Account Balance $67.43
3. Respondent issued the cheeks or transfers identified in the paragraph above when he knew or should have known that there were insufficient funds in his CTA to pay them.
4. By letter dated November 8, 2010, the State Bar advised respondent that Bank of the West had notified the State Bar that respondent’s CTA cheek numbers 1114 and 1112 had been issued against insufficient funds and requested respondent’s written explanation for the reported insufficient funds activity.
5. Respondent received the State Bar’s November 8, 2010 letter shortly after November 8, 2010, but did not respond to it in any way.
6. By letter dated December 9, 2010, the State Bar notified respondent that it had not received a response to its November 8, 2010 letter and requested a response by December 23, 2010.
7. Respondent received the State Bar’s December 9, 2010 letter shortly after December 9, 2010, but did not respond to it in any way.
8. By letter dated March 28, 2011, State Bar Investigator Laura Sharek ("Sharek’) requested respondent’s written explanation for the issuance of CTA cheek numbers 1112, 1114, and 1120 against insufficient funds ("NSF checks"). Additionally, Sharek notified respondent that he was being investigated for failure to cooperate with the State Bar investigation because of his failure to respond in any way to the November 8, and December 9, 2010 letters from the State Bar. Among other things, Sharek requested that respondent provide copies of the front and reverse sides of the NSF checks, all
items deposited to the Bank of the West CTA and accompanying deposit slips, and all cheeks written against that account from and including July 1, 2010 to March 28, 2011, monthly bank statements from July 1, 2010 to March 28, 2011, all client trust ae, ootmt ledger cards which relate to the NSF cheeks, and a written trust account journal and each monthly reconciliation from July 1, 2010, to March 28, 2011.
9. Respondent received Sharek’s March 28,-2011 letter shortly after March 28, 2011, but did not respond to it in any way.
10. By letter dated April 22, 2011, Sharek notified respondent that she had not received a response to her March 28, 2011 letter and requested a response by May 6,
2011.
11. By letter dated April 29, 2011, respondent aeknowiedged his "tardy response" and estimated that he could provide all the documentation Sharek requested in her March 28, 2011 letter by May 20, 2011.
12. By letter dated May 4, 2011, Sharek acknowledged respondent’s April 29, 2011 letter and granted his request for an extension of time to respond until May 20, 2011.
13. Thereafter and to date, respondent did not contact Sbarek in any way, nor did he provide the documentation requested by Sharek in the March 28, 2011 letter.
14. By letter dated August 2, 2011, Sharek requested- no later than August 13, 2011 respondent’s written explanation for the "overdrafts" that occurred in the Bank of the West CTA on May 10, and May 16, 2011, respectively, both in the amount of $300. Among other things, Sharek specifically requested a written explanation "as to why there were insufficient funds to cover the withdrawals". Sharek also requested that if the overdrafts were the result of checks being issued, copies of the front and reverse sides of the each check, all items deposited to the Bank of the West CTA and accompanying deposit slips, and all checks written against that account from and including February 1, 2011, through August 2, 2011, monthly bank statements from February 1,2011, through August 2, 2011, alI client trust account ledger cards which relate to the cheeks, and a written trust account journal and each monthly reconciliation from February 1,2011, through August 2, 2011.
15. Respondent received Sharek’s August 2, 2011 letter shortly after August 2, 2011, but did not respond to it in any way.
11-O-13908
Facts
16. Respondent did not withdraw funds from his CTA at the earliest reasonable time afar his interest in the funds became fixed such that during the period between October I, 2010, and August 3I, 2011, respondent repeatedly issued cheeks or authorized transfers from his CTA to pay his personal expenses, including, but not limited to:
Check number 1156 Date Issued 10/5/10 Payee SPM (Solano Prop. Mgmt.)
Check number 1156 Check Amount $1,425.00 Date Paid 10/7/10
Check number 1130 Date Issued 10/10/10 Payee Chase ("Maxima")
Check number 1130 Check Amount $620 Date Paid 10/12/10
Check number 1157 Date Issued 10/07/10 Payee Titan (Auto Insurance)
Check number 1157 Check Amount $317 Date Paid 10/12/10
Check number 1157 Date Issued 10/18/10 Payee Raleys Store #33
Check number 1157 Check Amount $61.88 Date Paid 10/18/10
Check number 1157 Date Issued 10/18/10 Payee Raleys Store #33
Check number 1157 Check Amount $58.98 Date Paid 10/18/10
Check number 1157 Date Issued 10/21/10 Payee Raleys Store #33
Check number 1157 Check Amount $57.29 Date Paid 10/21/10
Check number 1157 Date Issued 10/21/10 Payee Raleys Store #33
Check number 1157 Check Amount $16.71 Date Paid 10/21/10
Check number 1115 Date Issued 11/12/10 Payee Postmaster
Check number 1115 Check Amount $40.00 Date Paid 11/16/10
Check number 1115 Date Issued 11/17/10 Payee Raleys Store #33
Check number 1115 Check Amount $79.92 Date Paid 11/17/10
Check number 1115 Date Issued 11/19/10 Payee Raleys Store #33
Check number 1115 Check Amount $72.30 Date Paid 11/19/10
Check number 1115 Date Issued 11/21/10 Payee Raleys Store #33
Check number 1115 Check Amount 438.72 Date Paid 11/21/10
Check number 1120 Date Issued 11/18/10 Payee Solano Youth Theater
Check number 1120 Check Amount $15.00 Date Paid 1/11/11
Check number 1120 Date Issued 3/7/11 Payee Raleys Store #33
Check number 1120 Check Amount $47.10 Date Paid 3/7/11
Check number 1134 Date Issued 3/4/11 Payee Comcast
Check number 1134 Check Amount $459.96 Date Paid 3/7/11
Check number 1134 Date Issued 3/8/11 Payee Raileys Store #33
Check number 1134 Check Amount $35.00 Date Paid 3/8/11
Check number 1137 Date Issued 3/6/11 Payee Railey’s
Check number 1137 Check Amount $104.78 Date Paid 3/8/11
Check number 1137 Date Issued 3/10/11 Payee VZ Wireless
Check number 1137 Check Amount $250.00 Date Paid 3/10/11
Check number 1139 Date Issued 3/07/11 Payee Solano Property Management
Check number 1139 Check Amount $1,425.00 Date Paid 3/10/11
Check number 1139 Date Issued 3/11/11 Payee Sprint
Check number 1139 Check Amount $133.96 Date Paid 3/11/11
Check number 1176 Date Issued 3/14/11 Payee Titan (Auto Insurance)
Check number 1176 Check Amount $234.00 Date Paid 3/28/11
Check number 1159 Date Issued 4/04/11 Payee Solano Property Management
Check number 1159 Check Amount $1,425.00 Date Paid 4/6/11
Check number 1161 Date Issued 4/05/11 Payee Fairfield Municipal Utilities
Check number 1161 Check Amount $363.17 Date Paid 4/06/11
Check number 1161 Date Issued 4/11/11 Payee Raleys Store #33
Check number 1161 Check Amount $38.69 Date Paid 4/11/11
Check number 1161 Date Issued 4/16/11 Payee Wal-Mart Stores
Check number 1161 Check Amount $105.12 Date Paid 4/16/11
Check number 1179 Date Issued 4/24/11 Payee Safeway
Check number 1179 Check Amount $46.08 Date Paid 4/26/11
Conclusions of Law
1. By failing to withdraw funds which belonged to him from his CTA at the earliest reasonable time, and thereafter issuing client trust account checks against insufficient funds when he knew or should have known that there were insufficient funds, respondent wilfully violated rule 4-I 00(A), Rules of Professional Conduct.
2. By failing to withdraw funds which belonged to him from his CTA at the earliest reasonable time: but instead using those funds in his CTA to pay personal expenses, respondent wilfully violated rule 4-100(A), Rules of Professional Conduct.
3. By not responding in any way to the State Bar’s letters of November 8, December 9, 2010, and August 2, 2011, and by failing to provide the documentation requested by the State Bar in its letter of March 28, 2011, respondent failed to cooperate and participate in disciplinary investigations pending against him.
PENDING PROCEEDINGS
The disclosure date referred to on page 2, paragraph A(7), is December 27, 2011.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Offioe of the Chief Trial Counsel has informed respondent that as of December 27, 2011, the prosecution costs in this matter are approximately $4,161. 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 MITIGATING CIRCUMSTANCES
Cooperation
Respondent cooperated with the State Bar by entering into this stipulation.
No Harm
Because respondent had a check-covering arrangement with Bank of West, no clients or third parties were harmed.
AUTHORITIES SUPPORTING DISCIPLINE
Standards for Attorney Sanctions for Professional Misconduct
2.2 Offenses Involving Entrusted Funds or Property
(b) Culpability of a member of commingling of entrusted funds or property with personal property or the commission of another violation of rule 4-100, Rules of Professional Conduct, none of which offenses result in the willful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances.
Case Law
In Bernstein v. State Bar (1972) 6 Cal.3d 909, 919, the Supreme Court stated
The imposition of penalty does not issue from a fixed formula but from a balanced consideration of the relevant factors. We start at least from the premise that petitioner’s infractions of commingling the funds and concomitant misuse of funds compel discipline.
¯.. [S]ince no one involved suffered any financial loss, we hold that the offense of
commingling should call for an actual suspension of 30 days.
In Heavey v. State Bar (1976) 17 Cal.3d 553, the attorney comingled and misappropriated $350.
Heavey’s CTA was overdrawn 13 times in one year. Heavey practiceed 30 years with no prior discipline.
The Supreme Court imposed a 30-day suspension.
WAIVER OF REFERRAL TO STATE BAR COURT PROGRAM FOR RESPONDENTS
WITH SUBSTANCE ABUSE AND/OR MENTAL HEALTH CONDITIONS
In signing this stipulation, respondent hereby acknowledges that the State Bar Court’s separate program for respondents with substance abuse or mental health conditions has been fully explained to him, that he has had an opportunity to request to be considered for that program, and that he has specifically waived any such consideration.
Case Number(s): 10-O-11373
In the Matter of: Edward Griffin Duree
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: Edward Griffin Duree
Date: 12/29/11
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Sherrie B. McLetchie
Date: 1/13/12
Case Number(s): 10-O-11373
In the Matter of: Edward Griffin Duree
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: Pat Mc Elroy
Date: January 18, 2012
[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:
EDWARD GRIFFIN DUREE
622 JACKSON ST
FAIRFIELD, CA 94533
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Sherrie McLetchie, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on January 18, 2012.
Signed by:
George Hue
Case Administrator
State Bar Court