Case Number(s): 11-O-19301
In the Matter of: MARK DANIEL HOLMES, Bar # 156660, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: AGUSTIN HERNANDEZ, 1149 South Hill St.
Los Angeles, CA 90015-2299
(213) 765-1713
Bar #161625,
Counsel for Respondent: In Pro Per Respondent
MARK DANIEL HOLMES
4 San Joaquin Plaza, Suite 130, Box 12
Newport Beach, CA 92660
(949) 645-0450
Bar# 156660
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
Filed: January 17, 2013
<<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 16, 199 1.
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 10 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 (public reproval).
<<not>> checked. Case ineligible for costs (private reproval).
<<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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
IN THE MATTER OF: MARK DANIEL HOLMES
CASE NUMBER(S): 11-O-19301
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-19301 (State Bar Investigation)
FACTS:
1. In 2010, O.A. Ventures, LLC (hereinafter "O.A.") employed Respondent to represent it in an admiralty and maritime complaint against several individuals who had used O.A.’s boat without permission and caused property damage to the boat.
2. On October 22, 2010, Respondent filed a lawsuit on behalf of O.A. in the United States District Court for the Central District of California, Southern Division, entitled O.A. Ventures, LLC v. Tim Stoffal, Nathan Montgomery, Byron Rothschild, aka Tai Rothschild, and Does 1-10, Case No. SACV10-1624 JST (CWX) (hereinafter the "O.A. Complaint").
3. On January 18, 2011, defendant Tyrone Baron Rothschild (hereinafter "Rothschild"),
erroneously named as "Byron Rothschild, aka Tai Rothschild" in the O.A. Complaint, filed a cross-claim for indemnity, contribution and declaratory relief against Tim Stoffal (hereinafter "Stoffal"), Nathan Montgomery (hereinafter "Montgomery"), Carl Marciniak (hereinafter "Marciniak"), and Jeff Weinfurter (hereinafter "Weinfurter") (hereinafter the "Rothschild Cross-Claim"). 4. On August 30, 2011, Respondent, as attorney of record for Marciniak, filed an answer to the Rothschild Cross-Claim and a counter-claim on behalf of Marciniak (the "Marciniak Counter-Claim"). In the Marciniak Counter-Claim, Respondent named O.A., Rothschild and Stoffal as counter-defendants.
5. At the time Respondent filed the Marciniak Counter-Claim against O.A., Respondent was concurrently representing O.A. in the same litigation.
6. At the time Respondent filed the Marciniak Counter-Claim against O.A., an actual conflict of interest existed between O.A. and Marciniak in the litigation. Thus, Respondent continued representation of more than one client in a matter in which the interest of the clients actually conflicted. 7. On September 1,2011, Respondent, as O.A.’s attorney of record, filed an answer to the Marciniak Counter-Claim on behalf of O.A., as well as a counter-claim against Marciniak (the "O.A.
Counter-Claim").
8. At the time Respondent filed the O.A. Counter-Claim against Marciniak, an actual conflict of interest existed between O.A. and Marciniak in this litigation. Thus, Respondent continued representation of more than one client in a matter in which the interest of the clients actually conflicted. 9. At no time did Respondent obtain O.A. or Marciniak’s informed written consent to represent them in this matter when an actual conflict of interest existed between them.
10. On September 21,2011, the court scheduled a hearing for October 24, 2011, on an order to show cause why Respondent should not be disqualified as counsel for O.A. and Marciniak ("OSC"). Respondent received notice of the OSC.
11. On October 24, 2011, the heating on the OSC was conducted before the Honorable Josephine Staton Tucker ("Judge Tucker"). Respondent appeared at the OSC.
12. On October 25, 2011, Judge Tucker issued an order disqualifying Respondent as counsel for O.A. and Marciniak. Judge Tucker held that Respondent’s dual representation of O.A. and Marciniak required automatic disqualification because O.A. and Marciniak’s respective interests in this matter were directly adverse to each other.
CONCLUSIONS OF LAW:
13. By accepting representation and continuing to represent O.A. and Marciniak when an actual conflict of interest existed between them and without having obtained their informed written consent to represent them, Respondent accepted or continued representation of more than one client in a matter in which the interests of the clients actually conflicted without the informed written consent of each client,
Rules of Professional Conduct, rule 3-310(C)(2).
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
No Prior Discipline:
Though Respondent’s misconduct is serious, Respondent has no prior record of discipline in 21 years of practice and is entitled to mitigation. (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49; In the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn.13.)
Candor/Cooperation:
Respondent cooperated with the State Bar in these proceedings to the extent he acknowledged his misconduct and entered into a stipulation of facts, conclusions of law and disposition without the necessity of filing a Notice of Disciplinary Charges or having a trial on this matter. (In the Matter of Johnson (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 190.)
AUTHORITIES SUPPORTING DISCIPLINE.
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 standards are to this source).) The primary purposes of disciplinary proceedings and of the sanctions imposed 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." (In re Morse (1995) 11 Cal.4th 184, 205; std 1.3.)
Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible" in determining level of discipline. (In re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal.4th 205, 220 and In re Young (1989) 49 Cal.3d 257, 267, fn. 11.) Adherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (In re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
The sanction applicable to Respondent’s misconduct is found in standard 2.10 which applies to Respondent’s violation of rule 3-310(C)(2), Rules of Professional Conduct.
Standard 2.10 provides that a violation of rule 3-310(C)(2) shall result in reproval or suspension according to the gravity of the offense or the harm. In this matter, Respondent’s misconduct did not result in any harm to his clients.
There are no known cases on point for a single-count violation of rule 3-310(C)(2). However, cases involving attorney misconduct for entering into an improper business transactions with a client can be instructive. While a violation of rule 3-300 is more serious than a violation of rule 3-310, the two are comparable in that they both involve a conflict of interest. In Connor v. State Bar (1990) 50 Cal.3d 1047, the court ordered public reproval for a violation of former rule 5-101 (current rule 3-300) where the attorney essentially purchased his client’s home from him in order to avoid foreclosure, with the promise of selling it back to his client. The attorney failed to provide his client with a separate written explanation regarding the possible ramifications and recommendation to seek independent counsel. The court found that because the client had knowledge of and consented to the attorney’s conduct, there was no intent to deceive or otherwise oppress his client. The attorney had no prior record of discipline in 16 years of practice. The court found that his violation was not typical of his performance as an attorney during his career.
The seriousness of Respondent’s misconduct is similar to the level of seriousness of Connor’s misconduct because they both involve one violation in one client matter and no aggravating circumstances. In the instant matter, Respondent has no prior record of discipline in 21 years of practice. Also like Connor, Respondent did not act with deceit or in order to oppress his clients.
Pursuant to Standard 2.10, and considering the absence of aggravating circumstances and mitigated by his 21 years of practice without prior discipline and cooperating with the State Bar by entering into this "stipulation, a public reproval is an appropriate level of discipline to protect the public, the courts and the integrity of the legal profession.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was December 20, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of December 20, 2012, the prosecution costs in this matter are $2,865. 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.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School, and/or any other educational course(s) to be ordered as a condition of reproval or suspension. (Rules Proc. of State Bar, rule 3201.)
Case Number(s): 11-O-19301
In the Matter of: MARK DANIEL HOLMES
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: MARK DANIEL HOLMES
Date: 12/27/12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Agustin Hernandez
Date: 12/20/12
Case Number(s):11-O-19301
In the Matter of: MARK DANIEL HOLMES
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department 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.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: George E. Scott
Date: 1-11-13
[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 January 17, 2013, 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:
LAW OFC MARK D HOLMES APC
4 SAN JOAQUIN PLZ, SUITE 130 BOX 12
NEWPORT BEACH, CA 92660
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
AGUSTIN HERNANDEZ, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 17, 2013.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court