Case Number(s): 11-O-18776, [12-H-12119]
In the Matter of: Kathie J. Simmons, Bar # 129727, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Sherrie B. McLetchie, Senior Trim Counsel
180 Howard Street
San Francisco, California 94105
Telephone: (415) 538-2297
Bar # 85447
Counsel for Respondent: In Pro Per Respondent
Kathie J. Simmons
1326 Ripley Street
Santa Rosa, California 95401
Telephone: (707) 522-8118
Bar # 129727
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
Filed: November 21, 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 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 to be awarded to the State Bar.
<<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.
9.
ORDER OF INACTIVE ENROLLMENT:
The parties are aware that if this stipulation is approved, the judge will issue
an order of inactive enrollment under Business and Professions Code section
6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule
5.111(D)(1).
State Bar Court case no. 10-O-02325; effective April 12, 2011; rule 3-110(A): by failing to perform legal services with competence; section 6068(m) by failing to keep a client informed of significant developments; section 6103, by failing to abide by a court order for payment of sanctions to opposing counsel; private reproval, with conditions including $6,295 restitution.
IN THE MATTER OF: Kathie J. Simmons
CASE NUMBER(S): 11-O-18776 [12-H-12119]
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case No. 11-O-18776 (State Bar Investigation)
FACTS:
1. On September 24, 2010, Christine Montgomery ("Montgomery") employed respondent to represent her in a Chapter 13 bankruptcy matter. On October 11, 2010, respondent filed a Chapter 13 petition on behalf of Montgomery in the United States Bankruptcy Court, Northern District of California, case number 10-13910. Respondent disclosed in the petition that she collected an advanced fee of $2,500 from Montgomery, but did not disclose that she collected the filing fee in advance.
2. At the time that respondent filed the October 11, 2012 petition, respondent also filed an application to pay the filing fee in installments. Respondent did not make an installment payment prior to November 15, 2010, and the court dismissed case number 10-13910.
3. Thereafter, respondent did not make a timely installment payment to reinstate case number 10-13910, which would have left the automatic stay in place.
4. On November 23, 2010, respondent filed a second Chapter 13 bankruptcy petition in case number 10-14520. Respondent was required to request the re-imposition of the automatic stay within 30-days of filing the second bankruptcy petition.
5. On December 23, 2010, the time in which to seek re-imposition of the automatic stay expired because respondent did not request that the court re-impose the stay.
6. On January 3, 2011, respondent did not appear at the first meeting of creditors, Respondent had actual prior notice of the creditors’ meeting.
7. At the time that Montgomery employed respondent, Montgomery agreed to pay respondent $2,226 in advanced fees and $274 for the filing fee, for a total of $2,500. Between September 24, 2010, and October 6, 2010, Montgomery paid respondent $2,500 in advanced fees and costs.
8. Respondent provided Montgomery with no services of value.
9. On January 13, 2011, Montgomery terminated respondent’s services. At the time of termination, respondent owed Montgomery a refund of $2,226 in advanced fees since respondent had provided Montgomery no services of value.
10. On January 13, 2011, respondent refunded $1,000 to Montgomery.
11. In August 2011, respondent refunded $1,200 to Montgomery. Respondent did not refund the remaining $26 Montgomery paid.
12. Between August 2010 and August 2011, respondent filed applications electronically with the U.S. Bankruptcy Court, Northern District of California, on behalf of approximately 20 clients requesting to pay the clients’ court filing fees in installments. The applications respondent submitted indicated that the clients were unable to pay the filing fee except in installments. At the time that respondent filed the applications; the clients had each already paid respondent the full filing fee.
13. Respondent filed the applications referred to in paragraph 12, above, without her clients’ knowledge or permission. The clients did not sign the original applications and did not know that respondent was submitting a request on their behalf to make installment payments.
14. Pursuant to Bankruptcy Local Rule 5005-29(c), respondent was required to have in her physical possession the original signature of the clients prior to her submission of the applications electronically. Respondent did not have the original signatures in her possession at the time she electronically submitted the applications to pay the court filing fees in installments.
15. Respondent made misrepresentations to the bankruptcy court that her clients were unable to pay the filing fee except in installments when in fact her clients had already paid respondent in full and had no knowledge that respondent submitted the applications on their behalf.
16. Respondent falsely represented to the bankruptcy court pursuant to Local Rule 5005-2(c) that she had the original signatures of the clients when she did not have the clients’ original signatures on the applications.
17. On September 7, 2011, respondent was sanctioned by the U.S. Bankruptcy Court, Northern District of California, for filing applications falsely representing that her clients were unable to pay the filing fees except in installments and for falsely representing that she had the clients" original signatures on the applications when she did not.
18. Respondent was obligated to pay the full filing fee on behalf of her clients when she filed the bankruptcy petitions since the clients had advanced the costs for the purposes of paying the filing fees.
19. Respondent did not deposit or maintain the advanced costs in her attorney client trust account.
20. Respondent used for her own personal use and benefit the advanced filing fees the clients paid.
21. Pursuant to the September 7, 2011 Sanctions Order, respondent was sanctioned $10,000, half of which was stayed so long as respondent never again falsely represented that a client had signed a paper.
22. By September 8, 2011, respondent had knowledge of the September 7, 2011 Sanctions Order.
23. Respondent did not report the imposition of the September 7, 2011 Sanction Order to the State Bar within 30 days of the imposition of the sanction.
24. On January 4, 2012, a State Bar Investigator sent a letter to respondent regarding her failure to report the September 7, 2011 Sanctions Order to the State Bar. The letter requested that respondent respond in writing to the allegations that she did not report the September 7, 2011 Sanctions Order being investigated by the State Bar. Shortly after January 4, 2012, respondent received the January 4, 2012 letter.
25. At no time did respondent provide a written response to the investigator’s January 4, 2012 letter.
CONCLUSIONS OF LAW:
26. By permitting Montgomery’s first bankruptcy petition to be dismissed, by not acting in a timely manner to reinstate the first bankruptcy petition, by not seeking the reimposition of the automatic stay in the second bankruptcy matter and by not appearing at the first meeting of creditors, respondent recklessly and repeatedly failed to perform legal services with competence in violation of Rules of Professional Conduct, rule 3-110 (A).
27. By indicating to the bankruptcy court that clients could not pay bankruptcy filing fees when, in fact, they had already advanced the filing fees, respondent sought to mislead the judge or judicial officer by an artifice or false statement of fact or law, thereby violating Business and Professions Code, section 6068(d).
28. By indicating that clients could not pay bankruptcy filing fees when, in fact, they had already advanced the filing fees, respondent made misrepresentations to the U.S. Bankruptcy Court, Northern District of California, thereby committing acts involving moral turpitude, dishonesty or corruption, in violation of Business and Professions Code, section 6106.
29. By collecting advanced costs and not depositing them into her attorney client trust account, respondent failed to deposit funds received for the benefit of a client in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import, thereby wilfully violating Rules of Professional Conduct, rule 4-100(A).
30. By failing to report to the State Bar, in writing, within 30 days of the time respondent had knowledge of the imposition of judicial sanctions against her, respondent violated Business and Professions Code, section 6068(o)(3),
31. By never providing a written response to the allegations regarding her conduct in this matter as requested by the State Bar investigator’s letter, respondent failed to cooperate in a disciplinary investigation pending against her in violation of Business and Professions Code, section 60680(i).
32. By delaying the $1,200 refund to Montgomery until August 2011, and never refunding the remaining $26 due Montgomery, respondent failed to refund promptly any part of a fee paid in advance that had not been earned, thereby wilfully violating Rules of Professional Conduct, rule 3-700(D)(2).
33. By using the advanced filing fees for her own use and benefit rather than paying them to the bankruptcy court at the time she filed the clients’ bankruptcy petition, respondent misappropriated advanced costs from her clients, thereby committing acts involving moral turpitude, dishonesty or corruption in violation of Business and Professions Code, section 6106.
Case No. 12-H-12119 (Violation of Conditions Attached to a Reproval)
FACTS:
34. Effective February 11, 2011, respondent was privately reproved in case number 10-O-02325 by order of the State Bar Court.
35. The private reproval required respondent to: submit quarterly reports to the Office of Probation by July 10, 2011, October 10, 2011, January 10, 2012 and April 10, 2012, and a final quarterly report by May 3, 2012; attend State Bar Ethics School and State Bar Trust Accounting School by May 3, 2012, and provide proof of attendance at State Bar Ethics School and State Bar Trust Accounting School to the Office of Probation; provide proof of quarterly restitution payments with each quarterly report and provide proof of completion of restitution by April 3, 2012; and provide proof of passage of the Multi-State Professional Responsibility Exam ("MPRE") by May 3, 2012.
36. Respondent did not file any of the quarterly reports due October 10, 2011, January 10, 2012, or April 10, 2012, or the final quarterly report due May 3, 2012.
37. Respondent did not attend State Bar Ethics School or State Bar Trust Accounting School and did not provide proof of attendance at State Bar Ethics School or State Bar Trust Accounting School to the Office of Probation.
38. Respondent did not provide any proof of quarterly restitution payments and did not provide proof of completion of restitution by April 3, 2012.
39. Respondent did not provide proof of passage of the MPRE by May 3, 2012. She did pass the MPRE in or about August 2012.
CONCLUSION OF LAW:
40. By failing to comply with conditions attached to her private reproval, respondent wilfully violated Rules of Professional Conduct, role 1-110.
FACTS SUPPORTING AGGRAVATING CIRCUMSTANCES.
Harm - Standard 1.2(b)(iv): (The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipline" pursuant to a set of written principles to "better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to "standard", "std.", or "Standards" are to this source).)
Respondent harmed significantly her clients, the public, and the administration of justice by: (1) misappropriating advanced filing fees paid by 20 bankruptcy clients; and (2) withholding filing fees already advanced by respondent’s clients harming both the public which is served by the bankruptcy court, and the administration of justice of which the bankruptcy court is part.
Trust Violations - Standard 1.2(b)(iii):
Respondent collected filing fees from 20 bankruptcy clients, which filing fees were entrusted funds, and respondent did not deposit or maintain the filing fees in her attorney client trust account.
Multiple/Pattern of Misconduct - Standard 1.2(b)(ii):
Respondent has twice previously been disciplined for acts of misconduct similar to those stipulated to herein: failure to perform with competence, failure to refund unearned fees, and failure to cooperate with State Bar investigations. In one previous instance - as here - respondent also failed to comply with a court order. Taken together this constitutes a pattern of misconduct.
This stipulation alone shows multiple instances (20) of respondent submitting applications to the bankruptcy court to permit installment payment of filing fees when the clients had already advanced in full their filing fees to respondent.
AUTHORITIES SUPPORTING DISCIPLINE.
The court looks first to the Standards when setting discipline; the Standards are to be given great weight and followed wherever possible. In re Silverton (2005) 36 Cal.4th 81, 91-92; In the Matter of Sullivan (Review Dept. 2010) 5 Cal. State Bar Ct. Rptr. 189, 195. Where there are two or more acts of misconduct in a single proceeding, and different sanctions apply, the sanction imposed shall be the more or most severe of the different applicable sanctions. (Std. 1.6(a))
Here, the applicable Standards are standards 1.7(b), 2.2(a), 2.2(b), 2,3, 2.4(b), 2.6, 2.9, and 2.10.
Standard 1.7(b) which provides that if a member is found culpable of professional misconduct and the member has a record of two prior impositions of discipline, the degree of discipline imposed in the current proceeding shall be disbarment unless the most compelling mitigating circumstances clearly predominate. Here, there are no mitigating circumstances.
The most severe sanction applicable to respondent’s misconduct is standard 2.2 (a) which applies to respondent’s violations of Business and Professions Code, section 6106. Standard 2.2(a) provides that:
Culpability of a member of wilful misappropriation of entrusted funds or property shall result in disbarment. Only if the amount of funds or property misappropriated is insignificantly small or if the most compelling mitigating circumstance clearly predominates, shall disbarment not be imposed. In those latter cases, the discipline shall not be less than a one-year actual suspension.
Here, the misappropriation is wilful, the amount of funds misappropriated was not insignificantly small ($274 x 20 = $5,480), and - again -- there are no mitigating circumstances.
Standard 2.3 provides that:
Culpability of a member of an act of moral turpitude, fraud or intentional dishonesty toward a court, client or another person or of concealment of material fact to a court, client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending on the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law.
Here, respondent committed dishonest acts by misrepresentations to the bankruptcy court on 20 occasions that her clients were unable to pay the filing fee except in installments when in fact her clients had already paid respondent in full, making multiple misrepresentations to the bankruptcy court that she had the 20 clients’ original signatures on court forms when in fact she did not, and misappropriating clients’ advanced costs to her own use and benefit.
Standard 2.4(b) provides that:
Culpability of a member 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.
Here, respondent did not make an installment payment toward Montgomery’s original bankruptcy filing fee - despite having prior received the entire filing fee from Montgomery-resulting in the dismissal of Montgomery’s original bankruptcy case, did not thereafter make a timely installment payment to reinstate the case, failed to request the re-imposition of the automatic stay within 30-days of filing of Montgomery’s the second bankruptcy petition, which resulted in Montgomery’s loss of the automatic stay, did not thereafter seek re-imposition of the automatic stay, and did not appear at the first meeting of creditors, although respondent had actual prior notice of the creditors’ meeting.
Standard 2.6 applies to violations of Business and Professions Code section 6068. Here, respondent violated section 6068(i) by failing to cooperate with the State Bar’s investigation, 6068(0)(3) by failing to report judicial sanctions against her, and 6068(d) by seeking to mislead the bankruptcy court through applications for filing fee installments. Standard 2.6 requires "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" for violations of Business and Professions Code section 6068. Standard 1.3 notes that the primary purposes of discipline are the protection of the public, the courts, and the legal profession, the maintenance of high professional standards by attorneys, and the preservation of public confidence in the legal profession.
Standard 2.9 applies to violations of rule 1-100, violation of conditions attached to a reproval. Standard 2.9 provides for suspension for such violations.
Standard 2.10 provides that for violations of sections of the Business and Professions Code or Rules of Professional Conduct to which other standards do not apply, the appropriate discipline is "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 .... " Here, respondent stipulates to violation of role 3-700(D)(2), failure to refund earned fees. Rule 3-700(D)(2) is not otherwise covered by any standard other than standard 2.10.
Balancing all of the appropriate factors - particularly respondent’s two prior incidents of discipline -- disbarment is consistent with the Standards and appropriate taking into consideration the facts and circumstances of this case.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was October 12, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 12, 2012, the prosecution costs in this matter are $4,528.59. 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-18776, [12-H-12119]
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 (in pro per)
Date: 11/5/12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Sherrie B. McLetchie
Date: 11/5/12
Case Number(s): 11-O-18776 [12-H-12119]
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:
checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> 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.
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.)
Respondent Kathie J. Simmons is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herein, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Judge of the State Bar Court: Pat E. McElroy
Date: Nov. 21, 2012
[Rule 62(b), Rules Proc.; 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 November 21, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
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
1326 RIPLEY ST
SANTA ROSA, CA 95401
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SHERRIE B. McLETCHIE, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California on November 21, 2012.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court