Case Number(s): 11-O-15981
In the Matter of: Sean C. Hickey, Bar # 159116, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Assistant Chief Trial Counsel
180 Howard Street
San Francisco CA 94105
Tel: (415) 538-2037
Bar # 214209,
Counsel for Respondent: In Pro Per Respondent
Sean C. Hickey
38871 Viento Ct
Fremont, CA 94536
Tel: (510) 795-7380
Bar# 159116
Submitted to: Assigned Judge – 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 June 8, 1992.
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):
<<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.
State Bar Court case # of prior case: 08-O-13173; 08-O-13265 [Supreme Court No. $185779]
Date prior discipline effective: 12/9/10
Rules of Professional Conduct/State Bar Act violations: Rules 3-110(A) and 3-700 of the Rules of Professional Conduct and sections 6068 and 6090.5 of the Business and Professions Code. Degree of prior discipline: 30 days’ actual suspension. "
FACTS AND CONCLUSIONS OF LAW.
Case No. 11-O-15981
FACTS
1. On November 9, 2010, the California Supreme Court filed a disciplinary order in State Bar Court case number 08-0-13173 et al. [Supreme Court Case Number S 185779]. The order became effective on December 9, 2010 (California Rules of Court, rule 9.18(a)), and at all times subsequent has remained in full force and effect, except as set forth below (with respect to the modification of the restitution condition).
2. Notice of the disciplinary order was properly served upon respondent (California Rule of Court 9.18(b)). The November 9, 2010 disciplinary order mentioned above placed respondent on disciplinary probation for three years, beginning on the date the disciplinary order became effective, and required him to comply with the conditions of probation recommended by the Hearing Department of the State Bar Court in its Order Approving Stipulation filed on June 29, 2010.
3. At all times subsequent to December 9, 2010, respondent has remained on disciplinary probation and the probation conditions mentioned above have remained in full force and effect.
4. Respondent violated the following two conditions of probation:
-MEETING WITH OFFICE OF PROBATION: Respondent violated this condition because he did not timely contact the Office of Probation to schedule a meeting. As of the date of the filing of the Notice of Disciplinary Charges on September 19, 2011, respondent had neither scheduled the meeting nor had he participated in any such meeting.
-QUARTERLY REPORTING CONDITION: Respondent violated this condition of probation because he did not file some quarterly reports in a timely manner and because he failed to file the quarterly reports due no later than April 10, 2011 and July 10, 2011. As of the date of the filing of the Notice of Disciplinary Charges on September 19, 2011, respondent had not filed either of the above-mentioned quarterly reports.
CONCLUSIONS OF LAW
By violating the quarterly reporting and meeting conditions, respondent failed to comply with all conditions attached to a disciplinary probation in willful violation of section 6068(k) of the Business and Professions Code.
PENDING PROCEEDINGS
The disclosure date referred to, on page 2, paragraph A(7), was May 3, 2012.
STATE BAR ETHICS SCHOOL
If respondent attends State Bar Ethics School as part of this stipulation (see page 5), respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the State Bar has informed respondent that as of May 3, 2012, the estimated prosecution costs in this matter are approximately $6,779.00. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. 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.
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed in Case No. 11-O-15981 on September 19, 2011, and the facts and/or conclusions of law contained in this stipulation. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
AGGRAVING CIRCUMSTANCES
Standard 1.2(b)(i). Respondent has two prior records of discipline.
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(v). Respondent displayed spontaneous candor and cooperation to the State Bar during the disciplinary proceedings.
Standard 1.2(e)(vii). Respondent displayed remorse for his misconduct.
SUPPORTING AUTHORITY
Standard 2.6 requires that a violation of Business and Professions Code section 6068 shall result in disbarment or suspension according to the gravity of the offense or harm, if any, to the victim, with due regard to the purpose of imposing discipline set forth in standard 1.3.
Standard 1.7(a) provides that if a member is found culpable of professional misconduct in any proceeding which discipline may be imposed and the member has a record of one prior imposition of discipline as defined by standard 1.2(f), the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior proceeding was so remote in time to the current
proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust. Standard 1.7(b) requires disbarment if a member has a record of two prior impositions of discipline unless the most compelling mitigating circumstances clearly predominate.
Respondent’s misconduct in Case No. 10-0-04315 occurred before his misconduct in Case Nos. 08-0-13173; 08-0-13265. Had the cases been brought at the same time, respondent would have only one record of discipline, and not two (see, e.g., In the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602). Accordingly, the parties agree that it is appropriate to deviate from standard 1.7(b) (see, e.g., Arm v. State Bar (1990) 50 Cal.3d 763), and that a nine-month actual suspension, with a requirement that respondent prove rehabilitation, present fitness to practice and present learning and ability in the law before he can be relieved from actual suspension (see standard 1.4(c)(ii)) will serve the purposes of attorney discipline.
Respondent is aware that should he commit any additional misconduct, or violate the conditions of probation in this matter, disbarment is likely.
Case Number(s): 11-O-15981
In the Matter of: Sean C. Hickey
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: Sheila Bost
Principal Amount: $4,000.00
Interest Accrues From: February 15, 2006
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than eighteen (18) months from the effective date of discipline herein.
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): Sheila Bost
Minimum Payment Amount: $250.00
Payment Frequency: Per Month
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
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.
<<not>> 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.
SIGNATURE OF THE PARTIES
Case Number(s): 11-O-15981
In the Matter of: Sean C. Hickey
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: Sean C. Hickey
Date: May 7, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Susan I. Kagan
Date: May 7, 2012
Case Number(s): 11-O-15981
In the Matter of: Sean C. Hickey, State Bar No.: 159116
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 4, under heading D. Discipline, Delete the "x" from the box in paragraph (3)(a)(i) relating to the requirement that respondent comply with std. 1.4(c)(ii).
On page 6, paragraph (1), next to the box that has been marked with an "x" Strike Out or Delete the entirety of the paragraph that follows the words, "No MPRE recommended. Reason" and in place of the deleted paragraph Insert the following: "Because Respondent has been ordered by the Supreme Court in case No. S 195368 to provide proof of passage of the MPRE within one year of the effective date of the disciplinary order in that matter; that is, within one year of November 18, 2011."
On page 6, paragraph (5) Delete the "x" from the box that precedes the words "Other Conditions:" and Delete the paragraph that follows the words "Other Conditions:" in its entirety, so that there is no restitution requirement.
Delete page 10 in its entirety, so that there is no financial condition relating to restitution.
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: May 15, 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 San Francisco, on May 15, 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 San Francisco, California, addressed as follows:
SEAN C. HICKEY
LAW OFC SEAN C HICKEY
38871 VIENTO CT
FREMONT, CA 94536
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN I. KAGAN, Enforcement, San Francisco.
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on May 15, 2012.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court