State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

ACTUAL SUSPENSION

Case Number(s): 12-H-12165-RAP

In the Matter of: Sheryl Lynne Hammer  Bar #143588 a Member of the State Bar of California, (Respondent).

Counsel for the State Bar: Kim Kasreliovich  Deputy Trial Counsel

1149 S. Hill Street

Los Angeles, CA 90015

(213)765-1378

Bar #267766

Counsel for Respondent: David Alan Clare  444 W Ocean Blvd Ste 800

Long Beach, CA 90802

(562) 624-2837

Bar #44971

Submitted to: Assigned Judge, State Bar Court Clerk’s Office Los Angeles

Filed: October 30, 2012

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.

A.  Parties' Acknowledgments:

1.    Respondent is a member of the State Bar of California, admitted December 11, 1989.

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):

<<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.

<<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.

B.  Aggravating Circumstances [for definition, see Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts supporting aggravating circumstances are required.

<<not>> checked. (1) Prior record of discipline [see standard 1.2(f)]

<<not>> checked. (a)          State Bar Court case # of prior case 02-O-12364
<<not>> checked. (b)          Date prior discipline effective December 14, 2010.
<<not>> checked. (c)           Rules of Professional Conduct/ State Bar Act violations: Rules of Professional                     Conduct rule             3-300 and Business and Professions code section 6103.
<<not>> checked. (d)          Degree of prior discipline Public Reproval with conditions for two years.
<<not>> checked. (e)          If Respondent has two or more incidents of prior discipline, use space provided below.

<<not>> checked. (2) Dishonesty:  Respondent's misconduct was surrounded by or followed by bad faith, dishonesty, concealment, overreaching or other violations of the State Bar Act or Rules of Professional Conduct.

<<not>> checked. (3) Trust Violation:  Trust funds or property were involved and Respondent refused or was unable to account to the client or person who was the object of the misconduct for improper conduct toward said funds or property.

<<not>> checked. (4) Harm:  Respondent's misconduct harmed significantly a client, the public or the administration of justice.

<<not>> checked. (5) Indifference:  Respondent demonstrated indifference toward rectification of or atonement for the consequences of his or her misconduct.

<<not>> checked. (6) Lack of Cooperation:  Respondent displayed a lack of candor and cooperation to victims of his/her misconduct or to the State Bar during disciplinary investigation or proceedings. 

<<not>> checked. (7) Multiple/Pattern of Misconduct:  Respondent's current misconduct evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct.

<<not>> checked. (8) No aggravating circumstances are involved.
Additional aggravating circumstances:

C.  Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating circumstances are required.

not>> checked. (1)         No Prior Discipline:  Respondent has no prior record of discipline over many years of practice coupled with present misconduct which is not deemed serious.

not>> checked. (2)         No Harm:  Respondent did not harm the client or person who was the object of the misconduct. 

not>> checked. (3)         Candor/Cooperation:  Respondent displayed spontaneous candor and cooperation with the victims of his/her misconduct and to the State Bar during disciplinary investigation and proceedings.

not>> checked. (4)         Remorse:  Respondent promptly took objective steps spontaneously demonstrating remorse and recognition of the wrongdoing, which steps were designed to timely atone for any consequences of his/her misconduct.

not>> checked. (5)         Restitution:  Respondent paid $   on   in restitution to   without the threat or force of disciplinary, civil or criminal proceedings.

not>> checked. (6)         Delay:  These disciplinary proceedings were excessively delayed.  The delay is not attributable to Respondent and the delay prejudiced him/her.

not>> checked. (7)         Good Faith:  Respondent acted in good faith.

not>> checked. (8)         Emotional/Physical Difficulties:  At the time of the stipulated act or acts of professional misconduct Respondent suffered extreme emotional difficulties or physical disabilities which expert testimony would establish was directly responsible for the misconduct.  The difficulties or disabilities were not the product of any illegal conduct by the member, such as illegal drug or substance abuse, and Respondent no longer suffers from such difficulties or disabilities.

<<not>> checked. (9)    Severe Financial Stress:  At the time of the misconduct, Respondent suffered from severe financial stress which resulted from circumstances not reasonably foreseeable or which were beyond his/her control and which were directly responsible for the misconduct.

<<not>> checked. (10) Family Problems:  At the time of the misconduct, Respondent suffered extreme difficulties in his/her personal life which were other than emotional or physical in nature.

<<not>> checked. (11) Good Character:  Respondent's good character is attested to by a wide range of references in the legal and general communities who are aware of the full extent of his/her misconduct.

<<not>> checked. (12) Rehabilitation:  Considerable time has passed since the acts of professional misconduct occurred followed by convincing proof of subsequent rehabilitation.

checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances:

D. Discipline:

checked. (1)           Stayed Suspension:

checked. (a) Respondent must be suspended from the practice of law for a period of one year.
<<not>> checked. i. and until Respondent shows proof satisfactory to the State Bar Court of rehabilitation and present fitness to practice and present learning and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney Sanctions for Professional Misconduct.
<<not>> checked. ii. and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following:
checked. (b) The above-referenced suspension is stayed.

checked. (2) Probation:  Respondent must be placed on probation for a period of two (2) years, which will commence upon the effective date of the Supreme Court order in this matter.  (See rule 9.18, California Rules of Court.)

checked. (3) Actual Suspension:

checked. (a) Respondent must be actually suspended from the practice of law in the State of California for a period of thirty (30) days.
<<not>> checked. i. and until Respondent shows proof satisfactory to the State Bar Court of rehabilitation and present fitness to practice and present learning and ability in the law pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct
<<not>> checked. ii. and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following:

E. Additional Conditions of Probation:

<<not>> checked. (1) If Respondent is actually suspended for two years or more, he/she must remain actually suspended until  he/she proves to the State Bar Court his/her rehabilitation, fitness to practice, and learning and ability in the general law, pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct.

checked. (2)                 During the probation period, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

checked. (3)                 Within ten (10) days of any change, Respondent must report to the Membership Records Office of the State Bar and to the Office of Probation of the State Bar of California ("Office of Probation"), all changes of information, including current office address and telephone number, or other address for State Bar purposes, as prescribed by section 6002.1 of the Business and Professions Code.

checked. (4)                 Within thirty (30) days from the effective date of discipline, Respondent must contact the Office of Probation and schedule a meeting with Respondent's assigned probation deputy to discuss these terms and conditions of probation. Upon the direction of the Office of Probation, Respondent must meet with the probation deputy either in-person or by telephone. During the period of probation, Respondent must promptly meet with the probation deputy as directed and upon request.

checked. (5)                 Respondent must submit written quarterly reports to the office of Probation on each January 10, April 10, July 10, and October 10 of the period of probation. Under penalty of perjury, Respondent must state whether Respondent has complied with the State Bar Act, the Rules of Professional Conduct, and all conditions of probation during the preceding calendar quarter. Respondent must also state whether there are any proceedings pending against him or her in the State Bar Court and if so, the case number and current status of that proceeding. If the first report would cover less than 30 days, that report must be submitted on the next quarter date, and cover the extended period.

                                       In addition to all quarterly reports, a final report, containing the same information, is due no earlier than twenty (20) days before the last day of the period of probation and no later than the last day of probation.

<<not>> checked. (6) Respondent must be assigned a probation monitor. Respondent must promptly review the terms and conditions of probation with the probation monitor to establish a manner and schedule of compliance. During the period of probation, Respondent must furnish to the monitor such reports as may be requested, in addition to the quarterly reports required to be submitted to the Office of Probation. Respondent must cooperate fully with the probation monitor.

checked. (7)                 Subject to assertion of applicable privileges, Respondent must answer fully, promptly and truthfully any inquiries of the Office of Probation and any probation monitor assigned under these conditions which are directed to Respondent personally or in writing relating to whether Respondent is complying or has complied with the probation conditions.

<<not>> checked. (8)          Within one (1) year of the effective date of the discipline herein, Respondent must provide to the Office of Probation satisfactory proof of attendance at a session of the Ethics School, and passage of the test given at the end of that session.

checked. No Ethics School recommended.  Reason:

<<not>> checked. (9) Respondent must comply with all conditions of probation imposed in the underlying criminal matter and must so declare under penalty of perjury in conjunction with any quarterly report to be filed with the Office of Probation.

<<not>> checked. (10)        The following conditions are attached hereto and incorporated:

<<not>> checked. Substance Abuse Conditions.
<<not>> checked. Law Office Management Conditions.
<<not>> checked. Medical Conditions.
<<not>> checked. Financial Conditions.

F.   Other Conditions Negotiated by the Parties:

<<not>> checked. (1)         Multistate Professional Responsibility Examination:  Respondent must provide proof of passage of the Multistate Professional Responsibility Examination ("MPRE"), administered by the National Conference of Bar Examiners, to the Office of Probation during the period of actual suspension or within one year, whichever period is longer.  Failure to pass the MPRE results in actual suspension without further hearing until passage. But see rule 9.10(b), California Rules of Court, and rule 5.162(A) & (E), Rules of Procedure.
checked. No MPRE recommended.  Reason: Respondent took and passed the MPRE on November 11, 2011 in compliance with a separate disciplinary order. See In the Matter of Trousil (Review Dept. 1991), 1 Cal. State Bar Ct. Rptr. 229, 244.

<<not>> checked. (2)         Rule 9.20, California Rules of Court:  Respondent must comply with the requirements of rule 9.20, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.

<<not>> checked. (3)         Conditional Rule 9.20, California Rules of Court:  If Respondent remains actually suspended for 90 days or more, he/she must comply with the requirements of rule 9.20, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 120 and 130 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.

<<not>> checked. (4)         Credit for Interim Suspension [conviction referral cases only]:  Respondent will be credited for the period of his/her interim suspension toward the stipulated period of actual suspension. Date of commencement of interim suspension:

<<not>> checked. (5)         Other Conditions:

ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

 

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. 12-H-12165 - RAP

 

FACTS:

 

1. On June 14, 2007, Respondent entered into a Stipulation Re Facts and Conclusions of Law ("Stipulation") with the Office of the Chief Trial Counsel of the State Bar of California in case number 02-0-12364. In the Stipulation, among other things, Respondent agreed to comply with certain reproval conditions.

2. On November 23, 2010, the State Bar Court filed an order approving the Stipulation and imposing a public reproval with conditions as set forth in the Stipulation ("Reproval Order"). The Reproval Order became effective December 14, 2010.

3. Pursuant to the November 23, 2010 Reproval Order, Respondent was ordered to comply with the following conditions of reproval, among others: Pay restitution to the Estate of Herbert Kidwell or to the proper authority, in the amount of $15,000 and furnish satisfactory proof of payment to the Office of Probation with each written quarterly report. Restitution must be paid at the rate of $500 minimum per month by the 15t day of each month commencing on January 15, 2011, with the remaining balance due and payable no later than October 15, 2012;

b) Provide to the Office of Probation satisfactory proof of attendance at a session of the Ethics School and passage of the test given at the end of that session not later than December 14, 2011;

c) Provide the Office of Probation satisfactory proof of passage of the Multistate Professional Responsibility Exam ("MPRE") not later than December 14, 2011.

4. Respondent did not submit to the Office of Probation sufficient proof of restitution for any quarter since the effective date of the Reproval Order. respondent: Hammer, Sheryl Lynne (143588) Actual Suspension

5. On August 27, 2012, Respondent made full restitution of $15,000 to Robert Packard, the heir of the Estate of Herbert Kidwell and fumished satisfactory proof of this payment to the State Bar.

6. Respondent did not submit to the Office of Probation proof of attendance at a session of Ethics School by the due date of December 14 2011. Respondent submitted proof of attendance at a session of Ethics School to the Office of Probation on January 10, 2012.

7. Respondent did not submit to the Office of Probation proof of passage of the MPRE by the due date of December 14, 2011. Respondent submitted proof of passage of the MPRE to the Office of Probation on January 10, 2012.

 

CONCLUSIONS OF LAW:

 

8. By failing to timely pay restitution and provide timely proof of restitution to Probation, by failing to provide timely proof of attendance at Ethics School, and by failing to provide timely proof of passage of the MPRE, respondent failed to comply with conditions attached to her public reproval in willful violation of the Rules of Professional Conduct, rule 1-110.

 

ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.

 

Prior Record of Discipline: On June 14, 2007 Respondent entered in to a stipulation in case no. 02-0-12364. Effective December 14, 2010, Respondent received a public reproval with conditions for two years. Respondent held $45,000 in trust for client Herbert Kidwell. Respondent entered into a loan agreement with Kidwell for a loan of $15,000 out of the $45,000 that Respondent held in trust. Respondent never advised Kidwell in writing that he could seek the advice of an independent attorney nor did she ever give him a reasonable opportunity to do so. A little over two months later, Kidwell died. Prior to Kidwell’s death, Respondent had returned the remaining $30,000 in trust. Respondent had not repaid the $15,000 loan. Respondent participated in ADP and stipulated to one violation of rule 3-300 of the Rules of Professional Conduct and one violation of Business and Professions Code section 6103.

 

AUTHORITIES SUPPORTING DISCIPLINE AND DISCUSSION.

 

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." (ln 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

 

Respondent: Hammer, Sheryl Lynne (143588) Actual Suspension similar attorney misconduct. (ln 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.)

Standard 2.9 determines that culpability of a member of a willful violation of role 1-110 of the Rules of Professional Conduct shall result in suspension.

 

Standard 1.7(a) further provides that if a member has a prior discipline, the degree of discipline in the current proceeding shall be greater than the discipline imposed in the prior proceeding unless the prior discipline 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.

 

In Conroy v. The State Bar (1990) 51 Cal.3d 799, Respondent was suspended for 60-days after violating a condition attached to a private reproval. Without explanation, Respondent failed to take and pass the MPRE in the allotted time. The State Bar served Respondent with a notice to show cause but Respondent defaulted at the Hearing Department level. In their analysis of the level of discipline, the Supreme Court noted that Respondent did eventually take and pass the MRPE but this "single extenuating factor [was] substantially outweighed by numerous aggravating factors." (Id at p. 805.) In aggravation, the Court discussed three factors. First, Respondent has the prior record of discipline. Second, Respondent failed to appreciate the seriousness of the charges and the importance of participating in the proceedings. Third, Respondent implied that his misconduct in the current case was a mere technical lapse, displaying his lack of remorse.

 

By failing to timely comply with her conditions of reproval, Respondent willfully violated rule 1-110 which requires some measure of suspension. In Conroy the court found a 60-day actual suspension to be appropriate in light of the aggravation present. In the current case, Respondent also has one prior record of discipline but unlike Conroy there are no other aggravating factors. Some consideration may be granted for the fact that Respondent recently paid the restitution she owed in-full. However, like Conroy’s belated compliance with the MPRE, Respondent paid the restitution only after the filing of disciplinary charges. Under Standard 1.7(a), Respondent’s level of discipline must increase from the public reproval that was previously imposed and when considered with the existence of a prior, 30-days actual suspension is appropriate.

 

PENDING PROCEEDINGS.

 

The disclosure date referred to, on page 2, paragraph A(7), was August 30, 2012.

 

COSTS OF DISCIPLINARY PROCEEDINGS.

 

Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of August 30, 2012, the prosecution costs in this matter are $6,944. 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): 12-H-12165

In the Matter of: Sheryl Lynne Hammer

 

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: Sheryl Lynne Hammer

Date: October 12, 2012

 

Respondent’s Counsel: David A. Clare

Date: October 15, 2012

 

Deputy Trial Counsel: Kim Kasreliovich

Date: October 19, 2012

 

ACTUAL SUSPENSION ORDER

Case Number(s): 12-H-12165

In the Matter of: Sheryl Lynne Hammer

 

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.

<<not>> 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.)

 

Signed by:

Judge of the State Bar Court: Richard A. Platel

Date: October 29, 2012

 

CERTIFICATE OF SERVICE

 

[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 October 30, 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:

 

                                                DAVID ALAN CLARE, ATTY AT LAW

                                                444 W. OCEAN BLVD, SUITE 800

                                                LONG BEACH, CA 90802

 

checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

                             

KIMBERLY KASRELIOVICH, Enforcement, Los Angeles

 

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 30, 2012.

 

Signed by:

Angela Carpenter

Case Administrator

State Bar Court