Case Number(s): 11-J-16750-PEM
In the Matter of: Richard Kiernan Griffith, Bar # 41807 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Rosalba L. Gutierrez
Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
(213) 765-1671
Bar#270469
Counsel for Respondent: Evan R. Shirley
(Pro Hac Vice-HI Bar #1220)
Shirley & Associates
Davies Pacific Center
841 Bishop Street, Suite 1615
Honolulu, HI 96813
Submitted to: Settlement Judge at State Bar Court Clerk’s Office San Francisco
Filed: January 24, 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 February 23, 1968.
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):
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.
Respondent cooperated with the State Bar, acknowledged his wrongdoing, and agreed to the imposition of discipline without requiring a hearing.
Attachment language (if any):
IN THE MATTER OF: Richard K. Griffith, State Bar No. 41807
STATE BAR COURT CASE NUMBER: 11-J-16750-PEM
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case No. 11-J-16750
PROCEDURAL BACKGROUND IN OTHER JURISDICTION:
1. Respondent was admitted by the Hawaii Supreme Court to practice law in the State of Hawaii on May 1, 1975.
2. On March 14, 2011, Respondent entered into a Stipulation for Discipline with the Hawaii State Bar in case numbers ODC 06-089-8429 and ODC 07-170-8630 admitting that Respondent committed violations of rules 1.15(a)(1), 1.15(c), 1.15(d), 1.15 (f)(3), 1.15(f)(4), 1.15(g), 1.16(d), 8.4(a), 8.4(c) and 8.4(d) of the Hawaii Rules of Professional Conduct.
3. On or about September 21, 2011, the State Disciplinary Board of the Supreme Court of the State of Hawaii approved the stipulation and ordered that Respondent be placed on a thirty-day actual suspension from the practice of law. The decision of the foreign jurisdiction has become final.
FACTS:
McLaughlin" Matter - ODC 06-089-8429
4. On April 1, 2005, Timothy J. McLaughlin ("McLaughlin") retained Respondent to represent him in a vehicular property damage matter. McLaughlin paid Respondent $1,000 as advance attorney fees.
5. On March 31, 2005, Respondent’s Hawaii National Bank Client Trust Account number xxx6699 ("trust account") contained a beginning balance of $73.48 and on April 29, 2005, the trust account contained the ending balance of $43.48. Respondent’s trust account statement showed no deposit made during this period for the $1,000 paid to him by McLaughlin.
6. On June 10, 2005, McLaughlin terminated Respondent’s services and asked for a refund of the $1,000, stating that Respondent had not "pursued the lawsuit they agreed upon." On June 17, 2005, Respondent issued Hawaii National Bank Trust Account check number 1727 in the amount of $1,000 to McLaughlin. There were no funds maintained in the trust account for McLaughlin on that date. As of July 12, 2005 McLaughlin had not presented the check for payment. At that point, Respondent placed a stop payment order directing Hawaii National Bank to stop payment on check number 1727. When McLaughlin attempted to negotiated the check, the stop payment was in effect and McLaughlin’s account was debited $2.
7. On September 13, 2005, Hawaii’s Office of Disciplinary Counsel ("ODC"), mailed Respondent a letter requesting that he provide a detailed written response to the McLaughlin’s complaint and reminded Respondent of his duty to cooperate in ethics investigation; ODC requested a response by September 27, 2005. Respondent asked for extension, which ODC granted with a new deadline of October 4, 2005. ODC received Respondent’s response on October 5, 2005. Respondent stated that he deposited the $1,000 into his client trust account. Respondent represented that although his statement that the $1,000 "was deposited into [his] trust account"
was false, he subjectively believed it to be true.
8. On May 1, 2006, ODC sent a further inquiry to Respondent asking for additional information and that Respondent respond by May 15, 2006. Respondent did not timely reply. On July 13, 2006, ODC sent a second letter to Respondent reminding him of his duty to cooperate in ethics investigations and asked for a response by July 27, 2006. Respondent did not timely reply. On August 23, 2006, ODC sent a third letter asking for a response by August 31, 2006. Respondent did not timely reply. On September 14, 2006, ODC sent Respondent a letter memorializing the prior letters and a telephone message left for Respondent stating that Respondent’s lack of cooperation was an issue in the matter and asked for a response to be submitted by September 21, 2006. On September 26, 2006, ODC received Respondent’s partial written response dated September 25, 2006.
9. Between September 14, 2006 through January 9, 2007, ODC sent Respondent four letters asking for additional information and Respondent’s cooperation. Respondent did not timely reply. On January 25, 2007, Respondent requested an extension, which was granted for a new deadline of February 2, 2007.
10. On February 1, 2007, Respondent issued check number 1767 in the amount of $1,000 from his Hawaii National Bank Client Trust Account to McLaughlin. Respondent did not reimburse McLaughlin for the $2 debit to his account for the stop payment. There were no funds maintained in the trust account for McLaughlin on that date.
11. On February 5, 2007, ODC received Respondent’s written response dated February 1, 2007.
12. On July 25, 2007, ODC wrote to Respondent stating that a review of Respondent’s bank statements showed that there were overdrafts on the following dates: June 3, 2005, June 6, 2005, December 2, 2005, December 30, 2005, January 31, 2006, February 28, 2006, and April 6, 2006. ODC requested that Respondent provide documentation relating to those overdrafts and his written response by August 17, 2007. ODC requested an extension, which was granted with a new deadline of August 31, 2007. On September 7, 2007, ODC received Respondent’s written reply dated September 6, 2007.
CONCLUSIONS OF LAW
13. The disciplinary proceeding in the other jurisdiction provided Respondent with fundamental constitutional protection.
14. Respondent’s conduct in the other jurisdiction as set forth above would warrant the imposition of discipline in California as violations of the following:
15. By falsely stating that Respondent had deposited the $1,000 into his trust account when in fact Respondent deposited the $1,000 into his general business account, Respondent made a misrepresentation to ODC that would constitute an act of moral turpitude in willful violation of section 6106 of the Business and Professions Code if committed by an attorney in California.
16. By repeatedly issuing checks drawn upon his trust account when he knew, or was grossly negligent in not knowing, that the checks were issued against insufficient funds, Respondent committed acts that would constitute moral turpitude, dishonesty, or corruption, in willful violation of Business and Professions Code section 6106, if committed by an attorney in California.
17. By failing to issue McLaughlin a refund for a period of approximately 20 months after McLaughlin terminated his services and asked for a refund, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned. Such conduct would constitute a violation of rule 3-700(D)(2) of the Rules of Professional Conduct if committed by an attorney in California.
18. By not providing timely written responses to ODC during the investigative process, Respondent failed to cooperate and participate in the disciplinary investigation pending against Respondent, which would constitute a willful violation of section 6068(i) of the Business and Professions Code, if committed by an attorney in California.
IOLTA Matter - ODC 07-170-8630
19. June 3, 2005, Respondent issued check number 1725 in the amount of $30, from his trust account to the Clerk of the First Circuit Court, which resulted in an overdraft and a negative balance of-$16.52 on that date.
20. On June 6, 2005, a special handling fee of $20 was charged to Respondent’s trust account for the overdraft caused by check number 1725, resulting in an overdraft and a negative balance of -$36.52 on that date. On June 10, 2005, Respondent deposited $50.00 into the trust account, making the balance $13.48 on that date.
21. On December 2, 2005, Respondent issued check number 1748 in the amount of $13.65 to the U.S. Postmaster from his trust account, which resulted in an overdraft on the trust account and a negative balance of-$5.16 on that date.
22. On December 5, 2005, a special handling fee of $20 was charged to Respondent’s trust account for the overdraft caused by check number 1748. On that same date, Respondent transferred $30 from his general business account into his trust account to cover bank fees, such that the balance in the account on December 5, 2005, was $4.84.
23. On December 30, 2005, an advance funds fee of $15 was charged to Respondent’s trust account due to the overdraft which occurred during the previous month’s cycle, resulting in a negative balance of-$10.16 on that date.
24. On January 5, 2006, Respondent deposited $11 into the trust account, such that the balance was $.84 on that date. On January 31, 2006, an advance funds fee of $15 was again charged to Respondent’s trust account due to the overdraft which occurred during the previous month’s cycle, resulting in a negative balance of-$14.16 on that date.
25. On February 2, 2006, Respondent deposited $15 into the trust account, such that the balance was $.84 on that date. On February 28, 2006, an advance funds fee of $15 was charged to Respondent’s trust account due to the overdraft which occurred during the previous month’s cycle, resulting in a negative balance of-$14.16 on that date.
26. On April 5, 2006, Respondent’s trust account showed a balance of $9,283.74. On April 6, 2006, Respondent issued check number 1750 in the amount of $9,292.90 to effect a disbursement of settlement proceeds from his trust account, which resulted in an overdraft on his trust account and a negative balance of-$9.16 on that date. On April 7, 2006, a special handling fee of $20 was charged to Respondent’s trust account for the overdraft caused by check number 1750; Respondent deposited $30 into the trust account, resulting in a balance of $.84 on that date.
CONCLUSIONS OF LAW
27. The disciplinary proceeding in the other jurisdiction provided Respondent with fundamental constitutional protection.
28. By repeatedly issuing checks drawn upon his trust account when he knew, or was grossly negligent in not knowing, that the checks were issued against insufficient funds, Respondent committed acts involving moral turpitude, dishonesty, or corruption that would constitute a willful violation of Business and Professions Code section 6106, if committed by an attorney in California.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was December 28,2011.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.3 provides that the primary purposes of attorney discipline are, "the protection of the public, the courts and the legal profession; the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession."
Standard 2.3 provides that culpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client or another person or of concealment of a material fact to a court client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law.
Standard 2.6 provides that culpability of a member of a violation of certain provisions of the Business and Professions Cod, including section 6068, shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
Standard 2.10 provides that culpability of a member of a violation of any provision of the Business and Professions Code not specified in these standards or a willful violation any Rule Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
A 30-day day actual suspension, accompanied by a one-year stayed suspension and one-year probationary period is appropriate to protect the public, courts and the profession.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of Chief Trial Counsel has informed Respondent that as of, December 28, 2011, the prosecution costs in this matter are approximately $3,269. 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.
Case Number(s): 11-J-16750
In the Matter of: Richard Kiernan Griffith
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: Richard K. Griffith
Date: 1-6-12
Respondent’s Counsel: Evan R. Shirley
Date: 1-5-12
Deputy Trial Counsel: Rosalba L. Gutierrez
Date: 1-10-12
Case Number(s): 11-J-16750-PEM
In the Matter of: Richard Kiernan Griffith
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
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: Richard A. Honn
Date: 1/23/12
MODIFICATIONS TO STIPULATION
1. On page 1 of the stipulation, in the pleading-title "box," following the phrase
"Submitted to:," the words "Assigned Judge" are DELETED and the words
"Settlement Judge" are INSERTED in their place.
2. On page 4 of the stipulation, an "X" is inserted in box D(1)(b) so that the
stipulated one-year suspension will be stayed.
3. On page 6 of the stipulation, an "X" is inserted in box F(5), and the following
two "Other Conditions" are ADDED to the stipulation:
Within one year after the effective date of the Supreme Court order in this
matter, Richard Kiernan Griffith must to: (1) attend and satisfactorily
complete the State Bar of California Ethics School’s Client Trust
Accounting School and (2) provide satisfactory proof of his completion of
that school to the State Bar’s Office of Probation in Los Angeles. This
condition is in addition to and separate from all statutory continuing legal
education requirements with which Richard Kiernan Griffith must comply;
accordingly, he is ordered not to claim any type of continuing legal
education credit for attending and completing this school. (Accord, Rules
Proc. of State Bar, rule 3201.)
Within the period of his probation, Richard Kiernan Griffith must make
restitution to Timothy J. McLaughlin in the amount of $2.00 plus 10
percent interest per year from July 12, 2005 (or reimburse the Client
Security Fund, to the extent of any payment from the fund to Timothy J.
McLaughlin, in accordance with Business and Professions Code section
6140.5) and furnish satisfactory proof thereof to the State Bar’s Office of
Probation in Los Angeles.
-X-X-X
[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:
EVAN R. SHIRLEY
SHIRLEY & ASSOCIATES
DAVIES PACIFIC CENTER
841 BISHOP ST STE 1615
HONOLULU, HI 96813
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Rosalba Gutierrez, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on January 24, 2012.
Signed by:
George Hue
Case Administrator
State Bar Court