Case Number(s): 11-O-18669
In the Matter of: Lori Smith, Bar # 196156, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: William Todd
Deputy Trial Counsel
1149 Hill Street
Los Angeles, CA 90015
213-765-1491
Bar# 259194
Counsel for Respondent: Edward O. Lear
Century Law Group
5200 W Century Blvd #345
Los Angeles, CA 90045
310-642-6900
Bar # 132699
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles .
<<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 26, 1998.
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 11 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: 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.
Respondent has admitted her misconduct and has cooperated with the State Bar in preparing this stipulation.
IN THE MATTER OF: LORI SMITH, State Bar No. 196156
STATE BAR COURT CASE NUMBER: 11-O-18669
A. FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified sections of the Business and Professions Code and/or Rules of Professional Conduct.
FACTS:
1. On March 24, 2011, Carter Stephens ("Stephens") retained Respondent to represent him in Stevens(sic) vs. Overseas Brazil Inc, et al. case no. BC447227, a case already pending before the Los Angeles Superior Court (the "State matter").
2. According to the retainer agreement signed by both Stephens and Respondent, Respondent agreed to represent Stephens in the State matter for a flat fee of $8,500.00. As per the agreement, Respondent agreed to represent Stephens up to, but not through, trial preparation and trial.
3. On April 19, 201 l, the defendant in the State matter filed for bankruptcy protection before the United States Bankruptcy Court, Central District of California, in Case No. 2:11-BK-26905-TD.
4. On June 15, 2011, Respondent filed an adversary action on Stephens’ behalf in the same Bankruptcy Court against the defendant who filed for bankruptcy protection ("adversary matter").
5. Respondent filed a Unilateral Status Report with the court on Stephens behalf in the adversary matter on September 13, 2011.
6. On September 15, 2011, defense counsel in the adversary matter served a discovery request on Respondent. Respondent received the request.
7. Respondent failed to provide discovery responses on behalf of Stephens to defense counsel.
8. The parties in the adversary matter were required by the court to file a status report (joint, if possible) by January 5, 2012. Respondent failed to either collaborate with defense counsel on a joint status report or submit a unilateral status report on behalf of Stephens.
9. On January 13, 2012, defense counsel in the adversary matter filed a motion to dismiss the adversary matter, with prejudice, pursuant to Federal Rules of Civil Procedure rule 41 (b). The legal basis for the motion was Plaintiff’s failure to prosecute the adversary matter. The motion to dismiss was served upon Respondent by first class mail on January 14, 2012, and was to be heard on February 9, 2012. Respondent received the motion.
10. Respondent offered no written response or opposition to defense counsel’s motion to dismiss prior to or during the February 2, 2012 continued status conference in the adversary matter. At that hearing, the court explained it would order the case dismissed "for lack of prosecution."
11. On February 8, 2012, the court filed and entered "Order Dismissing Adversary Proceeding for Lack of Prosecution," thereby dismissing the adversary matter.
CONCLUSION OF LAW:
12. By failing to provide discovery responses, failing to file a January 2012 status report with the court and failing to oppose the defendant’s motion to dismiss, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct rule 3-110 (A).
PENDING PROCEEDINGS.
The disclosure date referred to on page 2, paragraph A(7), was April 17, 2012.
C. AUTHORITIES SUPPORTING DISCIPLINE.
The analysis of what is the appropriate level of discipline begins with the Standards for Attorney Sanctions as reaffirmed by In Re Silverton (2005) 36 Cal. 4th 81. Though they are not binding on the Supreme Court and are not a "fixed formula," the standards do promote consistent and uniform application of discipline as well as the purpose of discipline, enunciated in standard 1.3: the protection of the public, the courts and the legal profession as well as the maintenance of high professional standards.
Several standards apply in this instance. Respondent has an instance of prior discipline, which included a 1-year-stayed suspension and 2 years of probation. As described in standard 1.7(a), "the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding." This case presents no reason to deviate from standard 1.7 (a).
Standard 1.2(b) provides for a greater degree of sanction than set forth in the standards where aggravating circumstances exist. In this matter there are two (2) aggravating circumstances.
First, as discussed above, Respondent has a prior record of discipline that is not remote in time and which involved serious misconduct such as a failure to perform legal services competently and a failure to return unearned fees.
Second, Respondent’s current misconduct evidences a pattern of misconduct, with two prior admitted Rules of Professional Conduct rule 3-110 (A) failures to perform, a charge which is repeated in the current matter.
Standard 2.4 (b) provides that "[c]ulpability of a member of willfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct...shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client."
The stipulated discipline herein falls within the range of discipline suggested by the standards. In addition, the parties believe that the stipulated discipline herein is adequate to protect the public, courts and the legal profession.
D. COSTS
Respondent acknowledges that the Office of Chief Trial Counsel has informed her that as of April 17, 2012, the estimated prosecution costs in this matter are approximately $2,817.40. 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.
SIGNATURE OF THE PARTIES
Case Number(s): 11-O-18669
In the Matter of: LORI SMITH, State Bar No.: 196156
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: Lori Smith
Date: May 3, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel:
Date:
SIGNATURE OF THE PARTIES
Case Number(s): 11-O-18669
In the Matter of: LORI SMITH, State Bar No.: 196156
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:
Date:
Respondent’s Counsel: Edward O. Lear
Date: May 3, 2012
Deputy Trial Counsel: William Todd
Date: May 18, 2012
Case Number(s): 11-O-18669
In the Matter of: LORI SMITH, State Bar No.: 196156
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.
<<not>> checked. All Hearing dates are vacated.
On page 9 of the Stipulation, the fourth full paragraph regarding a pattern of misconduct is deleted in its entirety.
On page 8, the disclosure date of April 17, 2012 is more than 30 days prior to the date the stipulation was submitted to this court for consideration. (Cf. Rules Proc. of State Bar, rule 5.57, subd. (D).) As a result, the disclosure date is amended to read "May 31, 2012." If there are now any pending matters that were not previously disclosed in writing to Respondent, within five (5) days of the filing of this order this court must be notified in writing of that fact and such matters must be disclosed by the State Bar to Respondent.
The page number on the bottom of what should be page 7 of the Stipulation, which has the heading "Attachment to Stipulation re Facts, Conclusions of Law and Disposition" is changed from "1" to "7."
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: Donald F. Miles
Date: June 5, 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 Los Angeles, on June 6, 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:
EDWARD O. LEAR
CENTURY LAW GROUP LLP
5200 W CENTURY BLVD #345
LOS ANGELES, CA 90045
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
WILLIAM TODD, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on June 6, 2012.
Signed by:
Rose Luthi
Case Administrator
State Bar Court