Case Number(s): 12-N-16646
In the Matter of: David Kyle, Bar #55821 a Member of the State Bar of California, (Respondent).
Counsel for the State Bar: R. Kevin Bucher Derputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
213/765-1630
Bar #132003
Counsel for Respondent: In Pro Per Respondent
David Kyle
3941 South Bristol Street, Suite D520
Santa Ana, CA 92704
714/444-2522
Bar # 55821
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 29, 1973.
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 12 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. 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.
IN THE MATTER OF: David Kyle
CASE NUMBER(S): 12-N- 16646
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 Rules of Professional Conduct.
Case No. 12-N- 16646
1. On May 23, 2012, the California Supreme Court filed Order No. $200333 (hereinafter "9.20 Order"). The 9.20 Order included a requirement that Respondent comply with Rule 9.20, California Rules of Court, by performing the acts specified in subdivisions (a) and (c) within 30 and 40 days, respectively, after the effective date of the 9.20 Order
2. On May 23, 20012, the Clerk of the Supreme Court of the State of California properly served upon Respondent a copy of the 9.20 Order. Respondent received the 9.20 Order.
3. The Supreme Court Order became effective on June 22, 2012, thirty days after the 9.20 Order was filed. Thus Respondent was ordered to comply with subdivision (a) and (b) of rule 9.20 of the California Rules of Court no later than on July 22, 2012, and was ordered to comply with subdivision (c) of Rule 9.20 no later than on August 1, 2012.
4. Respondent attempt~ to file his rule 9.20 compliance declaration (hereinafter "declaration") on July 27, 2012. He sent the declaration to the Office of Probation, with copies of certified mail receipts evidencing notice to his clients of his suspension, but the declaration was rejected due to Respondent’s failure to check the appropriate boxes on the declaration form. Respondent was notified that his declaration was rejected by a letter from the Office of Probation dated August 2, 2012.
5. Respondent made a second attempt to file his declaration on August 7, 2012. However, that declaration was also rejected as Respondent did not check boxes for two items on the form. Respondent was notified that his declaration was rejected by a letter from the Office of Probation dated August 10, 2012.
6. A second letter was sent to Respondent from the Office of Probation on September 11, 2012 advising Respondent that his declaration was defective and not accepted for filing. Upon receipt of this letter, Respondent filed a third 9.20 declaration on September 19, 2012, which was approved by the Office of Probation. In the approved rule 9.20 declaration, Respondent declared that he had timely notified all parties, did not retain any client files, and had earned all fess, as required by rule 9.20 subsections (a) and (b).
CONCLUSION OF LAW
By not timely filing a declaration of compliance with Rule 9.20 in conformity with the requirements of "Rule 9.20(c), Respondent failed to comply with the provisions of Supreme Court Order No. $200333 requiring compliance with Rule 9.20, California Rules of Court. By the foregoing conduct, Respondent willfully violated rule 9.20, California Rules of Court.
AGGRAVATING CIRCUMSTANCES
Standard 1.2(b)(i) PRIORS: Respondent has two prior records of discipline (See page 2).
Effective February 2001, the State Bar Court imposed a private reproval on Respondent for his failure to provide an accounting of client funds (rule 4-100(B)(3)); and his failure to promptly pay his client funds to which he was entitled (rule 4-i 00(B)(4)).
Effective May 2012, the Supreme Court imposed discipline on Respondent that included, among other things, one year suspension, stayed; 90 days actual suspension; and probation with conditions that included timely submission of quarterly reports. Respondent was also ordered to comply with the provisions of Rules of Court, rule 9.20, including filing a rule 9.20 compliance declaration on or before
August 1, 2012.
Standard 1.2(b)(iii) OTHER VIOLATIONS OF THE STATE BAR ACT: Respondent’s misconduct was followed by other violations of the State Bar Act.
State Bar Act section 6068(k) provides that it is the duty of an attorney to comply with all conditions attached to any disciplinary probation. The California Supreme Court Order filed May 23, 2012 in case no. $200333, effective June 22, 2012, imposed certain conditions of probation on Respondent, including among others, that Respondent timely submit Quarterly Reports to the Office of Probation. Respondent’s first Quarterly Report was due by October 10, 2012. Respondent failed to submit this report by October 10 and did not submit it until October 16, 2012. Respondent’s failure to timely file his first Quarterly Report and submitting it six days after it was due was a fail.ure to comply with the conditions attached to his disciplinary probation and a willful violation of Business and Professions Code section 6068(k) following Respondent’s misconduct. Although evidence of uncharged misconduct may not be used as an independent ground of discipline, it may be considered for other purposes relevant to the proceeding, including aggravation. Edwards v State Bar (1990) 52 Cal. 3d 25, 35-36. See also In re Morse (1995) 11 Cal. 4th 184, 197 [Uncharged misconduct is an aggravating factor under Standard 1.2(b)(iii)].
ADDITIONAL MITIGATING CIRCUMSTANCES
Since being contacted by the State Bar regarding this matter, Respondent has timely and appropriately communicated with the State Bar. He immediately acknowledged his misconduct, provided information, and responded to inquiries. Respondent’s candor and cooperation resulted in this full stipulation as to all facts, conclusions of law and level of discipline, being reached prior to the filing of charges. Respondent is entitled to mitigation for his candor and cooperation though his misconduct would have been easy to prove in formal proceedings (See In the Matter or Riordan (Review Dept. 2007) 5 Cal. State Bar Court Rptr. 41), decreasing the weight given for mitigation (See In the Matter of Spaith (Review Dept. 1996) 3 Cal. State Bar Court Rptr. 511).
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions 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.4t~ 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. (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.)
Rule 9.20(d) provides that a suspended member’s willful failure to comply with the provisions of rule 9.20 of the California Rules of Court is cause for disbarment or suspension and for revocation of any pending probation. Respondent’s failure to timely file a complaint 9.20 declaration was a willful failure to comply with the provisions of 9.20(c) as ordered by the Supreme Court.
Standard 1.7(b) states that if a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of two prior impositions of discipline as defined by Standard 1.2(f), the degree of discipline in the current proceeding shall be disbarment unless the most compelling mitigating circumstances clearly predominate.
Deviation from the Standards, however, may be appropriate where there exists grave doubts as to the propriety of applying them in a particular case. (Silverton, supra, 36 Cal. 4th at 92.) For example, deviation from the Standards may be appropriate where extraordinary circumstances exist or where the imposition of discipline called for by the Standards would be manifestly unjust. (Sternlieb v. State Bar (1990) 52 Cal. 3d 317, 321 [ 30 day actual suspension for misappropriation and failure to properly account for trust funds. Attomey had no prior discipline, expressed remorse and established office procedures to avoid future mismanagement]; In the Matter of Fonte (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 752 [60 day actual suspension for failing to provide accounting, obtaining adverse interests in client property, representing clients with conflicting interests, aggravated by overreaching, and uncharged misconduct. Attorney had 25 years of practice without discipline and extensive public service]; In the Matter of Respondent F (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 17, 36-39 [deviation from Standard 2.2(b) requirement of at least three months actual suspension for a trust account violation].
Here strict application of Standard 1.7(b) would be manifestly unjust.
The facts in this matter are that Respondent declares he timely complied with the notice of suspension, return of client files and retention of only earned fees provisions of subsections (a) and (b) of rule 9.20.
Additionally, he submitted a rule 9.20 compliance declaration within the prescribed filing period but it was rejected due to his failure to check the appropriate boxes on the form. Upon being notified of the deficiency, he submitted a revised rule 9.20 compliance declaration for filing. It too was rejected for failure to check the appropriate boxes. On his third attempt, Respondent’s revised rule 9.20 compliance declaration was accepted for filing but it was now 49 days after the deadline.
This is significantly different than cases such as Bercovich v. State Bar (1990) 50 Cal. 3d 116, in which the Supreme Court disbarred an attorney for willfully violating its order he comply with the provisions of rule 955 (the predecessor of rule 9.20). The Supreme Court in Bercovich held that a willful failure to notify clients and a failure to file a declaration warrants disbarment. Here, Respondent declared he did notify clients and he did make timely attempts to file his declaration. His noncompliance was in filing his declaration 49 days late, but after apparent compliance with the client notification and attempts at timely filing, significantly different than Bercovich.
Respondent’s discipline in the present matter is also determined in part by his aggravating and mitigating circumstances. In aggravation, he has two prior impositions of discipline, a 2001 public reproval and a May 2012 ninety day actual suspension, both involving irregularities with his duties regarding client funds. He also followed his most recent misconduct with another violation of the State Bar Act by submitting his first quarterly probation report six days late. His mitigation consists of his admissions of his misconduct and stipulating here without the necessity of further proceedings.
In consideration of the facts and circumstances here, a significant period of actual suspension is warranted. The parties submit that the intent and goals of Standard 1.3 are met in this matter by the imposition of a two year suspension, stayed, and two years probation, including six months actual
suspension.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was November 26, 2012.
Case Number(s): 12-N-16646
In the Matter of: DAVID KYLE
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: DAVID KYLE, in Pro per
Date: 12/5/12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: R. Kevin Bucher
Date: 12/13/12
Case Number(s): 12-N-16646
In the Matter of: DAVID KYLE
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 6 of the stipulation, the "X" in first box in paragraph F(1) is DELETED to remove the requirement that respondent take and pass the Multistate Professional Responsibility Examination. In addition, an "X" is INSERTED in the second box in paragraph F(1), and following the pre-printed text "No MPRE recommended. Reason:," the following text is INSERTED: Under the Supreme Court’s May 23, 2012 order In re David Kyle on Discipline, case number $200333 (State Bar Court case number 10-.O-04546), respondent must to take and pass the MPRE no later than June 22, 2013. Accordingly, it is unnecessary to recommend that respondent be again ordered to take and pass the MPRE in the present proceeding. On page 11 of the stipulation, the following text is inserted at the end of the fourth paragraph, which begins "In consideration of the facts": (See In the Matter of Rose (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 192 [nine months’ actual suspension imposed on an attorney who had no clients to notify under former rule 955(a) and who unsuccessfully attempted to file his former rule 955(c) compliance affidavit within two weeks after it was due]; In the Matter of Friedman (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 527 [30 days’ actual suspension imposed on an attorney who complied with the notice requirements in former rule 955(a), but filed his former rule 955(c) compliance affidavit two weeks’ late].)
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. Honn
Date: 1/2/13
[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 4, 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:
DAVID KYLE
LAW OFC DAVID KYLE
3941 S BRISTOL ST STE D520
SANTA ANA, CA 92704
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
KEVIN BUCHER, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 4, 2013.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court