State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
STAYED SUSPENSION; NO ACTUAL
SUSPENSION
Case Number(s): 12-O-10592
In the Matter of: Mary E. Daniels, Bar # 118730, A Member of
the State Bar of California, (Respondent).
Counsel For The State Bar: Anthony J. Garcia
The State Bat" of California.
Office of the Chief Trial Counsel
1149 South Hill Street
Los Angeles, CA 90015
(213) 765-1089
Bar# 171419
Counsel for Respondent: MARY E. DANIELS
4166 Almond Street
Riverside, CA 92501
(951) 684-4444
Bar# 118730
Submitted to: Assigned Judge – State Bar Court Clerk’s
Office Los Angeles.
Filed: June 5, 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.
A. Parties' Acknowledgments:
1. Respondent is
a member of the State Bar of California, admitted June 11, 1985 .
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 9 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):
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checked. Costs are added to membership fee for calendar year following
effective date of discipline.
checked. Costs
are to be paid in equal amounts prior to February 1 for the following
membership years: 2013, 2014. (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.
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checked. Costs are waived in part as set forth in a separate attachment
entitled "Partial Waiver of Costs".
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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)].
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(a) State Bar Court case # of prior case .
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(b) Date prior discipline effective
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(c) Rules of Professional Conduct/ State Bar Act
violations:
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(d) Degree of prior discipline
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(e) If Respondent has two or more incidents of
prior discipline, use space provided below or a separate attachment entitled
“Prior Discipline”.
<<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.
checked.
(4)
Harm: Respondent's misconduct harmed significantly a client, the public
or the administration of justice. As described on page 7 of this Stipulation,
Respondent’s client was harmed.
<<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.
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. Respondent’s conduct evidences the
fact that her errors were made 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.
<<not>> checked. (13) No
mitigating circumstances are involved.
Additional mitigating circumstances:
Respondent
is receiving mitigation for 26 years of practice with no prior
discipline.
Respondent
is receiving mitigation for accepting responsibility for her actions at this
early stage of the proceedings.
D. Discipline:
<<not>> checked. (1) Stayed
Suspension:
checked.
(a)
Respondent must be suspended from the practice of law for a period of one year.
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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.
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checked. ii. and until Respondent pays restitution as set forth in
the Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following: .
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checked. (b) The above-referenced suspension is stayed.
checked.
(2)
Probation: Respondent must be placed on probation for a period of
eighteen months, which will commence upon the effective date of the Supreme
Court order in this matter. (See rule 9.18, California Rules of Court.)
E. Additional Conditions of Probation:
checked.
(1) During
the probation period, Respondent must comply with the provisions of the State
Bar Act and Rules of Professional Conduct.
checked. (2)
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.
(3) 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.
(4)
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. (5) 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.
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(6) 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.
checked.
(7) 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.
<<not>> checked. No Ethics
School recommended. Reason:
<<not>> checked. (8) 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. (9) The
following conditions are attached hereto and incorporated:
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checked. Substance Abuse Conditions.
<<not>>
checked. Law Office Management Conditions.
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checked. Medical Conditions.
<<not>>
checked. Financial Conditions.
F. Other Conditions Negotiated by the Parties:
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 within one year. 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.
<<not>> checked. No MPRE recommended.
Reason:
<<not>> checked. (2) Other
Conditions:
Attachment language (if any):
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION
IN THE MATTER OF: Mary Ellen
Daniels, State Bar No. 118730
STATE BAR COURT CASE NUMBER:
12-O-10592
FACTS AND
CONCLUSIONS OF LAW
Mary E.
Daniels (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.
12-O-10592
FACTS:
1. On January
12, 2010, Kimberly Barney (Kimberly) hired Respondent to represent her in a
dissolution of marriage action that Kimberly had previously filed in Riverside
Superior Court, case number SWD.018884 (the divorce matter). Kimberly was
divorcing Chad Barney (Chad).
2. One of the
issues in the divorce matter was the allocation of Chad’s pension funds,
specifically the pension funds that had accrued during his employment at
AT&T.
3. On March
1, 2010, a check from AT&T arrived at the Barney family residence. The
check, in the amount of $49,148.73, was made out to Chad and represented the
full amount of Chad’s pension funds at AT&T.
4. On March
2, 2010, Respondent filed an ex-parte motion in the divorce matter. Respondent’s
ex-parte motion requested the court to order that the AT&T funds be placed
in Respondent’s client trust account and that the court authorize the clerk of
the court to endorse the AT&T check.
5. On March
3, 2010, the court held a hearing on the issue of the AT&T funds. The court
found that the AT&T funds were community property and ordered the court
clerk to endorse the check, The court also ordered Respondent to deposit the
AT&T funds into her "attorney/client trust account" (CTA).
6. Respondent
did not deposit the funds in her CTA. Instead of depositing the funds in her
CTA, Respondent promptly opened a new business interest checking account at
Provident Bank, account no.**’6884. Respondent was the sole signatory on the
account and opened it in the name of"Mary Ellen Daniels ITF Chad
Barney."
7. Respondent
intended the funds to be held in Respondent’s name "in trust for"
Chad Barney, but Respondent placed the AT&T funds in a business interest
account and not a client trust account.
8. In June
2010, Chad withdrew $32,450.23 from account no. ***6884.
9. In April
2011, Respondent joined Provident Bank in the divorce matter, and in April
2011, Respondent filed an Order to Show Cause and Affidavit for Contempt
against Chad.
10. In August
2011, Respondent filed a motion in the divorce matter asking the court to order
Provident Bank to restore the AT&T funds to account no. * ** 6884.
11. On August
31, 2011, the Superior Court awarded the remaining balance in acct no **’6884,
$13,241.76 to Kimberly as a portion of her share in the AT&T funds.
12, In
February 2012, Kimberly terminated Respondent’s employment and Respondent
withdrew from the divorce matter.
13. The issue
regarding the balance of the AT&T funds is still before the Superior Court.
CONCLUSION OF
LAW
14. By
depositing the AT&T funds in a business interest account, that Chad had
access to, instead of her client trust account, Respondent recklessly failed to
perform legal services with competence.
PENDING
PROCEEDINGS
The
disclosure date referred to, on page 2, paragraph A(7), was May 3, 2012.
DISCIPLINARY
STANDARDS
Standard
2.4(b), which states that culpability of a member of wilfully failing to perform
services in a client matter shall result in reproval or suspension depending on
the extent of the misconduct and the degree of harm to the client.
COSTS
The Office of
the Chief Trial Counsel estimates that, as of May 3, 2012, the costs in this
matter are approximately $3,000. Respondent 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-O-10592
In the Matter of: Mary E. Daniels
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:
Mary E. Daniels
Date: May 9,
2012
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Anthony J. Garcia
Date: May 14,
2012
STAYED SUSPENSION ORDER
Case Number(s): 12-O-10592
In the Matter of: Mary E. Daniels
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:
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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.
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checked. All Hearing dates are vacated.
1. On
page 3 in paragraph B(8), delete the "x" from the box, which precedes
the words, "No aggravating circumstances are involved."
2. On
page 4, in the first sentence that appears under the heading "Additional
mitigating circumstances," delete the words "26 years" and in
their place insert the following words: "her almost 25 years."
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:
June 5, 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 June 5, 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:
MARY ELLEN DANIELS ATTORNEY AT LAW
4166 ALMOND ST
RIVERSIDE, CA 92501
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
Anthony J. Garcia, Enforcement, Los
Angeles
I hereby
certify that the foregoing is true and correct. Executed in Los Angeles,
California, on June 5, 2012.
Signed by:
Julieta E.
Gonzales
Case
Administrator
State Bar
Court