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
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, 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.
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.
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
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
[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