Case Number(s): 11-O-18386
In the Matter of: Steven C. Lynes, Bar #174020, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Christine Souhrada, Deputy Trial Counsel
180 Howard Street, 7th ft.
San Francisco, CA 94105
(415) 538-2183
Bar #228256
Counsel for Respondent: Scott Drexel, 1325 Howard Ave #151
Burlingame, CA 94010
(650) 918-8328
Bar #65670
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles.
Filed: August 31, 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 December 12, 1994.
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):
<<not>> checked. Costs are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: two billing cycles following the effective date of the Supreme Court order. (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.
In the Matter of: Steven C. Lynes
Case Number(s): 11-O-18386
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: Kim and Gregory Patterson
Principal Amount: $2,000
Interest Accrues From: 8/3/2010
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 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..
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) Kim and Gregory Patterson
Minimum Payment Amount $500
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.
<<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.
IN THE MATTER OF: Steven C. Lynes
CASE NUMBER(S): 11-O-18386
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-O-18386 (Complainant: Kim and Gregory Patterson)
FACTS:
1. On August 3, 2010, Kim and Gregory Patterson ("the Pattersons") hired respondent to file a Chapter 13 bankruptcy petition ("bankruptcy matter"), and paid respondent advanced fees of $2,000 in the bankruptcy matter.
2. On June 14, 2011, respondent filed a petition on behalf of the Pattersons in U.S. Bankruptcy Court, Eastern District of California, Case No. 11-34789. The petition was incomplete.
3. On June 28, 2011, respondent filed an Ex Parte Motion to Extend Time to File Schedules, Statements, and Chapter 13 Plan. The court granted the motion and extended the deadline to July 12, 2011. Respondent did not file the necessary documents to complete the petition.
4. On July 13, 2011, the bankruptcy petition was dismissed for failure to timely file documents and notice of the dismissal was served simultaneously on respondent and the Pattersons.
5. After receiving the notice of dismissal, the Pattersons contacted respondent. Respondent told them he would convert the bankruptcy from chapter 13 to chapter 7.
6. Thereafter, the Pattersons called respondent and left messages on at least three occasions requesting an update on the status of the bankruptcy matter. Respondent received each message, but failed to respond to the Pattersons.
7. As of at least August 2011, respondent ceased working on the bankruptcy matter. Respondent failed to perform any services of value on behalf of the Pattersons in the bankruptcy matter. Respondent failed to complete the bankruptcy matter. Respondent did not earn the $2,000 paid as advanced fees.
8. To date, respondent has failed to refund any portion of the $2,000 in unearned fees to the Pattersons.
9. On October 10, 2011, the Patterson filed a complaint against respondent with the State Bar ("Patterson complaint").
10. On December 12, 20I I, a State Bar Investigator sent a Ietter to respondent regarding the Patterson complaint. The State Bar Investigator’s letter requested that respondent respond in writing to the specified allegations of misconduct being investigated by the State Bar in the Patterson complaint. Soon thereafter, respondent received the State Bar Investigator’s letter, but failed to provide a written response to the allegations of misconduct in the Patterson complaint.
CONCLUSIONS OF LAW:
11. By failing to perform any services of value for the Pattersons in the bankruptcy matter, respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
12. By failing to respond to the Pattersons telephone calls and messages requesting an update on the status of the bankruptcy matter, 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 willful violation of Business and Professions Code, section 6068(m).
13. By failing to refund any portion of the unearned fees to the Pattersons, 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).
14. By not providing a written response to the State Bar Investigator’s letter regarding the allegations in the Patterson complaint, or otherwise cooperate in the investigation of the Patterson complaint, respondent failed to cooperate and participate in a disciplinary investigation in willful violation of section 60680) of the Business and Professions Code.
AUTHORITIES SUPPORTING DISCIPLINE.
Under Standard 2.4(b) 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.
Under Standard 2.6(a), violation of any of the enumerated provisions of the Business and Professions Code, including Sections 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." It should be noted that since the violation underlying this standard is respondent’s failure to cooperate with the State Bar, the "victim" is the State Bar, not the client, and the harm was the additional difficulty caused to the investigation without respondent’s cooperation.
Standard 2.10 states that "a violation of any provision of the Business and Professions Code not specified in these standards or of a wilful violation of any Rule of 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."
As a violation of rule 3-700 is not addresses elsewhere in the standards, standard 2.10 applies.
All of the above standards direct us to examine the extent or gravity of the misconduct as well as the harm to the victim. In the present matter, the misconduct involved respondent failing to perform and communicate in a single client matter, subsequently failing to refund fees to the client, and then failing to cooperate with the State Bar’s investigation. The harm to the client was a delay in their bankruptcy proceedings and the loss of the use of the $2,000 they paid to respondent.
Standards 2.10 and 2.4(b), which address respondent’s misconduct involving his client, both mandate a range from reproval to suspension1. Standard 2.6(a), which, in this case, does not involve client harm or misconduct involving a client, sets a range between suspension and disbarment. As the violation underlying standard 2.6 (a) does not involve a client or client harm, it is appropriate for the discipline to be on the lower end of the range set forth in that standard. However, as there was some client harm caused by the violations underlying standards 2.4(b) and 2. I 0, discipline in the midrange of those standards would be appropriate. Thus, looking solely at the violations in the present case, a period of stayed suspension would be appropriate.
However, as noted above, this is not respondent’s first instance of discipline.
Standard 1.7(a) addresses the effect of prior discipline and states "If a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one prior imposition of discipline as defined by standard 1.2(0, the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior discipline imposed 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."
However, "the aggravating force of prior discipline is generally diminished if the misconduct underlying it occurred during the same time period." In the Matter of Sklar (Rev. Dept. 1993) 2 Cal, State Bar Ct. Rptr. 602, 619. The misconduct underlying respondent’s prior disciplinary matter (11-O-15543 et. al.) spanned from 2009 to 2011 and involved three client matters. Thus the misconduct occurred in the same time period as the misconduct in the present matter.
This prior discipline is still considered an aggravating circumstance; however, there are additional considerations as laid out in the Matter of Sklar (Rev. Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602:
"Prior discipline is a proper factor in aggravation whenever discipline is imposed." [citation omitted] ... Nonetheless, the aggravating force of prior discipline is generally diminished if the misconduct underlying it occurred during the same time period. [citation omitted] Since part of the rationale for considering prior discipline as having an aggravating impact is that it is indicative of a recidivist attorney’s inability to conform his or her conduct to ethical norms [citation omitted], it is therefore appropriate to consider the fact that the misconduct involved here was contemporaneous with the misconduct in the prior case .... We therefore consider the totality of the findings in the two cases to determine what the discipline would have been had all the charged misconduct in this period been brought as one case." Id. at 619. (emphasis added)
Thus, to determine the appropriate level of discipline in this case, we must consider the totality of the findings in the prior disciplinary matter (11-O-15543 et. al.) and the presently charged misconduct. In his prior disciplinary matter, respondent was found culpable of failure to account (2 counts), failure to communicate (2 counts), failure to return file, failure to return unearned fees, and failure to cooperate in a State Bar investigation. This misconduct spanned from 2009 to 2011 and involved three client
l It is important to note that although actual suspension is specified elsewhere in the standards (see std. 2.2 and 2.3) none of the standards applicable here specify that the suspension must be actual. matters. The court also found aggravation in that there were multiple acts of misconduct and gave respondent mitigation credit for having no prior record of discipline over 14 years of practice. Standard 2.2(b) requires a minimum three-month actual suspension for a violation of Rules of Professional Conduct, rule 4-100 (failure to account), irrespective of mitigating circumstances. Thus, the court appropriately recommended a 90-day actual suspension.
In the present case, respondent failed to perform, failed to respond to client inquiries and failed to refund unearned fees in a single client matter, and failed to cooperate with the State Bar. The present misconduct spanned from 2010 to 2011.
Thus, pursuant to Sklar, the appropriate question is what would the discipline have been had all the charged misconduct from both cases been brought as one case. The present case involves no failure to account, which was the most serious violation in the previous case, and the violation which, under the standards, requires a minimum discipline of three months actual suspension irrespective of mitigating circumstances. Also, the prior disciplinary matter involved three client matters, which was an aggravating circumstance as it constituted multiple acts of misconduct. Thus, although the present
misconduct brings the number of client matters involved from three to four, multiple acts of misconduct as an aggravating factor was already taken into consideration in the prior discipline.
Since there is no additional aggravation and the charges in the present case are not as serious as the charges in the prior case as described above, the appropriate level of discipline had the cases been brought as one would be the same as it was in the previous case, i.e., 90 days’ actual suspension.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was August 8, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of August 8, 2012, the prosecution costs in this matter are $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-O-18386
In the Matter of: Steven C. Lynes
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: Steven C. Lynes
Date: 8/17/12
Respondent’s Counsel: Scott Drexel
Date: 8/21/12
Deputy Trial Counsel: Christine Souhrada
Date: 8/21/12
Case Number(s): 11-O-18386
In the Matter of: Steven C. Lynes
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.
1. On p. 1, A. (1) - Respondent’s admission date is corrected to read "December 7, 1994."
2. On p. 2, (8) Payment of disciplinary costs - Insert the years "2014 and 2015" after "two billing cycles."
3. On p. 2, B. (1) Degree of prior discipline - Add "two years’ stayed suspension and two years’ probation."
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: August 30, 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 August 31, 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:
SCOTT JOHN DREXEL
1325 HOWARD AVE #151
BURLINGAME, CA 94010
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Christine Souhrada, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on August 31, 2012.
Signed by:
George Hue
Case Administrator
State Bar Court