Case Number(s): 11-O-10996
In the Matter of: Kathie J. Simmons, Bar # 129727, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Christine Souhrada
Deputy Trial Counsel
Office of the Chief Trial Counsel
180 Howard Street, 7th ft.
San Francisco, CA 94105
(415) 538-2183
Bar # 228256
Counsel for Respondent: In Pro Per Respondent
KATHIE J. SIMMONS
1008 5th St
Santa Rosa, CA 95404
(707) 522-8118
Bar # 129727
Submitted to: Assigned Judge - State Bar Court Clerk’s Office San Francisco
Filed: September 12, 2011.
<<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 11, 1987.
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 13 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 Costs are added to membership fee for calendar year following effective date of discipline.
<<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.
If respondent takes and passes MPRE and/or Ethics School in
compliance with her probation in case no. 10-O-02325 between now and the time
respondent’s probation begins in this matter, that compliance will satisfy the
MPRE and/or Ethics
School requirements set forth in this present stipulation.
Case Number(s): 11-O-10996
In the Matter of: Kathie J. Simmons
a. Restitution
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: Serge and Clarissa Ericksen
Principal Amount: $1,000
Interest Accrues From: July 21, 2010
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than 60 days prior to the end of respondent’s probationary period.
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) Serge and Clarissa Ericksen
Minimum Payment Amount $200
Payment Frequency quarterly
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.
Case Number(s): 11-O-10996
In the Matter of: Kathie J. Simmons
checked. a. Within days/ Three months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
checked. b. Within days/ months/ ONE years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than THREE hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for one year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Other:
IN THE MATTER OF: Kathi J. Simmons, State Bar No. 129727
STATE BAR COURT CASE NUMBER: 11-O-10996
I. Facts
1. On July 21, 2010, Serge and Clarissa Ericksen, a married couple, employed respondent to provide bankruptcy services for them, and paid respondent $1,000 in advance for attorney fees, as a down payment on an agreed flat fee of $3,500.00. On the same date, respondent agreed to file a bankruptcy petition on behalf of the Ericksens on August 10, 2010.
2. Between July 21, 2010, and September 30, 2010, the Ericksens tried without success to reach respondent by telephone. The Ericksens left numerous voicemail messages for respondent during this period. Respondent did not respond to these voicemail messages.
3. On September 30, 2010, Albert L. Boasberg (an attorney representing the Ericksens) wrote respondent a letter advising her that the Ericksens had terminated her employment and requesting that respondent make a refund to the Ericksens.
4. On October 22, 2010, Boasberg sent respondent a second letter, again asking for the refund.
5. Respondent did not respond to either of Boasberg’s letters.
6. Respondent did not file a bankruptcy petition on behalf of the Ericksens. Respondent never earned any part of the $1,000.00 advance fee she received from the Ericksens.
7. Respondent has never returned any part of the $1,000.00 advance fee she received from the Ericksens.
8. On April 18, 2011 and May 20, 2011, a State Bar investigator sent respondent letters of inquiry requesting a written response to allegations made by Serge Ericksen and requesting copies of specified of documents relating the Ericksen matter. Respondent received both letters shortly after they were sent, but did not respond to them in any way.
II. Conclusions of Law
9. By failing to perform legal services for the Ericksens, respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in wilful violation of Rules of Professional Conduct, rule 3-110(A).
10. By failing to respond to the Ericksens’ voicemail messages and Boasberg’s letters, respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which respondent had agreed to provide legal services in wilful violation of Business and Professions Code, section 6068(m).
11. By failing to make any refund to the Ericksens, respondent failed to refund promptly any part of a fee paid in advance that has not been earned in wilful violation of Rules of Professional Conduct, rule 3-700(D)(2).
12. By failing to respond to the State Bar’s letters of inquiry, respondent failed to cooperate and participate in a disciplinary investigation pending against respondent in wilful violation of Business and Professions Code, section 6068(i).
III. Supporting Authority
Given respondent’s prior record of discipline, under standard 1.7(a), the discipline in this case must be higher than a reproval.
Standard 2.4(b) states:
"Culpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of wilfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client." (emphasis added)
The two years of stayed suspension agreed to in this stipulation complies with both standard 1.7(a) and 2.4(b).
IV. Pending Proceedings
The disclosure date referred to in paragraph A(7) of this stipulation, was August 22, 2011.
V. Waiver Of Variance Between Notice Of Disciplinary Charges And Stipulated Facts And Culpability
The parties waive any variance between the Amended Notice of Disciplinary Charges filed on July 14, 2011 and the facts and/or conclusions of law in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
VI. Dismissals
The parties respectfully request that the Court dismiss count four (Rules of Professional Conduct, rule 4-100(B)(3)) with prejudice in the interest of justice.
VII. Estimate Of Costs Of Disciplinary Proceedings
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of August 22, 2011, the estimated prosecution costs in this matter are approximately $2,296.00. Respondent acknowledges that this figure is an estimate only. 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-O-10996
In the Matter of: Kathie J. Simmons
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: Kathie J. Simmons
Date: August 25, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Christine Souhrada
Date: August 26, 2011
Case Number(s): 11-O-10996
In the Matter of: Kathie J. Simmons
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.
On page 7 of the stipulation, in the first paragraph of section b., line 3, “No later than 30 days prior” is deleted, and in its place is inserted “No later than 60 days prior”
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: Lucy Armendariz
Date: September 12, 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 September 12, 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:
KATHIE J. SIMMONS
1008 5TH ST
SANTA ROSA, CA 95404
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Christine A. Souhrada, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco California, on September 12, 2011.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court