State
Bar Court of California
Hearing
Department
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 11-N-11115
In the Matter of: Thomas Scott Simons Bar #226484 A Member of
the State Bar of California, (Respondent).
Counsel For The State Bar: Mark Hartman, Deputy Trial
Counsel
180 Howard Street, 7th Floor
San Francisco, CA 94105
Telephone: (415) 538-2558
Bar #114925
Counsel for Respondent: In Pro Per Respondent
Thomas Scott Simons
3721 Hearst Castle Way
Piano, TX 75025
Telephone: (415) 548-0344
Bar # 226484
Submitted to: Assigned Judge
Filed: June 10, 2011 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.
A. Parties' Acknowledgments:
1.
Respondent is a member of the State Bar
of California, admitted October 9, 2003.
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 9 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.
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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.
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checked. Costs are waived in part as set forth in a separate attachment
entitled "Partial Waiver of Costs".
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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 06-O-14505 and 06-O1-5080.
checked.
(b)
Date prior discipline effective May 30, 2010.
checked.
(c) Rules of Professional Conduct/ State Bar Act violations: Rule 4-200(A) of the
Rules of Professional Conduct and sections 6068(a) and 6]06 of the Business and
Professions Code
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(d) Degree of
prior discipline: Stayed suspension for three years and actual suspension
for ninety days and until a motion to terminate his actual suspension is
granted. If respondent remains actually suspended for two years or more, he
must prove his rehabilitation, fitness to practice law, and learning and ability
in the general law pursuant to standard 1.4(c)(ii) before his actual suspension
will be terminated.
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(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.
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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.
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checked. (2) No Harm: Respondent did not harm the client
or person who was the object of the misconduct.
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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. See page 9.
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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.
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checked. (5) Restitution: Respondent paid $ on
in restitution to without the threat or force of
disciplinary, civil or criminal proceedings.
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checked. (6) Delay: These disciplinary proceedings were
excessively delayed. The delay is not attributable to Respondent and the
delay prejudiced him/her.
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checked. (7) Good Faith: Respondent acted in good
faith.
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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.
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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.
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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.
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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.
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checked. (12) Rehabilitation: Considerable time has passed since the acts
of professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
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checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances:
D.
Discipline:
checked.
(1) Stayed
Suspension:
checked.
(a) Respondent must be suspended from the practice of law for a period of three
years.
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.
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following:
checked.
(b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on probation
for a period of four 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:
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checked. (a) Respondent must be actually suspended from the practice of law in
the State of California for a period of two years.
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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
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checked. ii. and until Respondent pays restitution as set forth in the Financial
Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following:
E. Additional Conditions of Probation:
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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.
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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.
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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.
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:
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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.
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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.
<<not>> checked. Financial
Conditions.
F. Other Conditions Negotiated by the Parties:
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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.
checked. No MPRE recommended. Reason: In disciplinary order number
S180527, which was effective May 30, 2010, the California Supreme Court ordered
respondent to provide proof of passage of the MPRE within the period of actual
suspension in State Bar Court case numbers 06-0-14505 and 06-O-15080. He is
actually suspended and will remain so until a motion to terminate his actual
suspension is granted.
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(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.
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(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.
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(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:
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(5) Other Conditions:
ATTACHMENT
TO
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
In
the Matter of: Thomas Scott Simons
Membership
No.: 226484
State
Bar Case No.: 11-N-11115
RESOLUTION
OF THE CURRENT CASE
The
State Bar of California ("State Bar") and respondent Thomas Scott
Simons ("respondent") enter this stipulation As to Facts, Conclusions
of Law, and Discipline ("Stipulation") in order to resolve case
number 1 l-N-11115 ("the current case").
WAIVERS
The
parties waive all variances between the facts and conclusions of law asserted
in the Notice of Disciplinary Charges covering the current case and the facts
and conclusions of law contained in this Stipulation.
FACTS
Respondent
admits that the following facts are true:
1.
On April 30, 2010, the California Supreme Court filed disciplinary order number
S180527 ("disciplinary order") in State Bar Court case numbers
06-0-14505 and 06-O-15080.
2,
The disciplinary order required respondent to comply with rule 9.20 of the
California Rules of Court ("rule 9.20") 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 disciplinary order.
3.
Notice of the disciplinary order was properly served upon respondent in the
manner
prescribed
by rule 9.18(b) of the California Rules of Court, i.e., at the address which
.he maintained with the State Bar pursuant to section 6002.1, subdivision (a)
of the Business and Professions Code.
4.
On May 30, 2010, the disciplinary order became effective.
5.
Since May 30, 2010, the disciplinary order has remained in full force and
effect.
6.
The deadline for filing the required declaration of compliance with rule
9.20(c) was July 9, 2010.
7.
Respondent willfully violated rule 9.20(c) by not timely filing the required
declaration of compliance.
CONCLUSION
OF LAW
Respondent
admits that by not timely filing the required proof of compliance with. rule
9.20(c), he failed to comply with the disciplinary order and thus failed to
obey a court order in the course of his profession which he ought in good faith
to have obeyed, in willful violation of section 6103 of the Business and
Professions Code.
AGGRAVATION
Respondent
has a prior record of discipline in State Bar Court case numbers 06-O-14505 and
06-0-15080.
MITIGATION
Respondent
has displayed candor to, and cooperation with, the State Bar in resolving the
current case by entering into this Stipulation.
SUPPORTING
AUTHORITY
Standards
1.7(a) and 2.6 and In the Matter of Pierce (Review Dept. 1993) 2 Cal. State Bar
Ct. Rptr. 382 support the stipulated discipline.
ESTIMATED
PROSECUTION COST
The
estimated prosecution cost of the current cases is approximately $1,641.00.
DATE
OF DISCLOSURE OF ANY PENDING INVESTIGATION OR PROCEEDING
On
May 16, 2011, the State Bar sent a disclosure letter by e-mail to respondent.
In this letter, the State Bar advised respondent of any pending investigations
or proceedings against respondent other than the current case.
SIGNATURE
OF THE PARTIES
Case Number(s): 11-N-11115
In the Matter of: Thomas Scott Simons
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: Thomas Scott Simons and Mark Hartman
Respondent: Thomas Scott Simons
Date: May 18,
2011
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Mark Hartman
Date: May 23,
2011
ACTUAL
SUSPENSION ORDER
Case Number(s): 11-N-11115
In the Matter of: Thomas Scott Simons
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:
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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.
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checked. All Hearing dates are vacated.
On page 2 of the stipulation paragraph B.(1)(a), add Supreme Court order no.
S180527; and On page 4 of the stipulation, the
"X" in the box next to paragraph D.(1)(a)(i) is
deleted.
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: Pat
McElroy
Judge of the
State Bar Court
Date: June 10,
2011
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 San Francisco , on June 10, 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 Los
Angeles, California, addressed as follows:
<<not>> checked. by
certified mail, No. , with return receipt requested, through the United States
Postal Service at , California, addressed as follows:
<<not>> checked. by
overnight mail at , California, addressed as follows:
<<not>> checked. by fax
transmission, at fax number No error was reported by the fax machine that
I used.
<<not>> checked. By
personal service by leaving the documents in a sealed envelope or package
clearly labeled to identify the attorney being served with a receptionist or a
person having charge of the attorney’s office, addressed as follows:
<<not>> checked. by
interoffice mail through a facility regularly maintained by the State Bar of
California addressed as follows:
I hereby
certify that the foregoing is true and correct. Executed in San Francisco,
California, on June 10, 2011.
Signed by:
George Hue
State Bar
Court