Case Number(s): 12-O-16168
In the Matter of: JOHN EDWARD HAYES, Bar # 144189, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Timothy G. Byer, Bar # 172472,
Counsel for Respondent: Susan L. Margolis, Bar # 104629,
Submitted to: Settlement Judge.
Filed: December 20, 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 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 11 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.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: two billing cycles following the effective date of discipline. (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.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: JOHN EDWARD HAYES, State Bar No. 144189
STATE BAR COURT CASE NUMBER: 12-O-16168
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statute and Rule of Professional Conduct.
Case No. 12-O-16168 (Complainant: Andrew Merzon)
FACTS:
1. In February 2009, Andrew Merzon employed Respondent to represent him to litigate a business dispute. In June 2009, Respondent filed a civil complaint on Merzon’s behalf (the "Merzon Matter"). On November 30, 2010, following the defendant’s failure to respond to Respondent’s discovery requests, Respondent obtained an order striking the defendant’s answer to the complaint.
2. During the hearing on November 30, 2010, at which the court in the Merzon Matter ordered the answer stricken, the judge informed Respondent that he could then file a motion seeking entry of default.
3. Respondent failed to file a motion seeking entry of default. Respondent believed, erroneously, that the court had entered the default, and was awaiting Respondent’s motion for a default prove-up hearing.
4. In approximately October 2010, Respondent moved from his prior office and provided a change of address to the post office, but failed to provide separate notice of that change to the court in the Merzon Matter.
5. On March 4, 2011, Respondent sent Merzon an email in which he stated that "the default is entered" and "I’ve just been laying low during the 180 day period in which [the defendant] can move to set the default aside. That date is approaching." Respondent asked Merzon to start assembling any evidence Merzon had to prove his monetary damages in the case, and told Merzon that he and Merzon would meet to review the evidence and then move for a "prove up" hearing to present the evidence.
6. By the end of August 2011, approximately 180 days after the judge had ruled that a motion for entry of default could be filed, Respondent had taken no action on Merzon’s behalf.
7. In September 2011, the court in the Merzon Matter served Respondent with an order that he appear at a hearing on October 5, 201 l, and to show cause why the Merzon Matter should not be dismissed due to Respondent’s inactivity, but the court served Respondent at his former address. Because the forwarding address at the post office had expired, Respondent did not receive the order.
On October 5, 2011, the Order to Show Cause hearing was conducted, Respondent failed to appear, and the Merzon Matter was dismissed without prejudice.
8. On January 2, 2012, Merzon mailed a letter to Respondent at his correct, then-current address, asking Respondent to contact him. After receiving the letter, Respondent called Merzon and set up a meeting with him in the first week of February 2012. Prior to that meeting, Merzon went to the court in order to copy the file and discovered that his matter had been dismissed on October 5,2011.
9. In February 2012, Respondent and Merzon met to discuss his case. At that meeting, Merzon informed Respondent that the Merzon Matter had been dismissed in October 2011. Respondent told Merzon that he would investigate.
10. On February 8, 2013, Respondent filed a motion to vacate the dismissal of the Merzon Matter. On March 21,2013, the court granted the relief requested by Respondent and vacated the dismissal of the Merzon Matter.
CONCLUSIONS OF LAW:
11. By not providing his new address to the court where the Merzon Matter was pending, and by taking no further action from the time the defendant’s answer was stricken on November 30, 2010, until he moved to vacate the dismissal on February 8,2013, Respondent intentionally, repeatedly, or recklessly failed to perform with competence on Merzon’s behalf, in willful violation of Rules of Professional Conduct, rule 3-110(A).
MITIGATING CIRCUMSTANCES.
Pre-trial Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of Chief Trial Counsel prior to trial, thereby saving State Bar Court time and resources. (In the Matter of Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 151,156; In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 993-994.)
Family Problems: During the representation of Merzon, Respondent was defending an effort by his ex-wife to regain custody of their minor children, litigation which Respondent handled in pro per. This was an acrimonious and contentious two-year struggle that taxed Respondent emotionally. Respondent is entitled to some mitigation for dealing with his own family litigation during the period of his misconduct. (See Sugarman v. State Bar (1990) 51 Cal.3d 609, 619 (attorney given mitigation for handling own divorce litigation during period of misconduct).) In this same period, Respondent’s mother lost her partner of many years, a man Respondent considered to be his surrogate father. His mother’s health declined precipitously as a result, which added to the emotional stress Respondent experienced.
Good Character: Respondent’s good character is attested to by a professional mediator, two former clients, a current client, and an attorney who currently employs Respondent. These five references in the legal and general communities all attest to Respondent’s good character, but because they have varying levels of awareness of the extent of Respondent’s misconduct, their testimony is entitled to limited weight. (In the Matter of Kreitenberg (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 469, 477; In re Ford (1988) 44 Cal.3d 810, 818.)
AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): In January 2012, Respondent was privately reproved for his intentional, reckless, or repeated failure to perform with competence, in February 2009, for a client in her dissolution matter.
Harm (Std. 1.2(b)(iv)): In approximately October 2012, the defendant in the Merzon Matter sold a parcel of commercial property in Fresno to which Merzon could have attached a judgment lien if Respondent had obtained a default judgment on Merzon’s behalf. Respondent’s misconduct significantly harmed Merzon when Respondent’s delay in obtaining a default judgment in the Merzon Matter prevented Merzon from collecting his judgment by a lien against the defendant’s sale of commercial property prior to its sale.
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 2.4(b), which provides that an attorney’s willful failure to perform services in an individual matter shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client. Here, Respondent has failed to perform with competence in such an individual matter, and has thereby caused significant harm to his client. Sixty days of actual suspension is a level within the range described by Standard 2.4(b).
Also, Standard 1.7(a) provides that, if an attorney is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the attorney has a record of one prior imposition of discipline, the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior discipline imposed 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. Respondent has previously been disciplined for failing to perform services in an individual matter. Therefore, the discipline imposed for the current misconduct must be greater than the private reproval imposed in that prior discipline.
In the current matter, Respondent failed to timely file a motion seeking entry of default, and failed to advise the court in which the Merzon Matter was pending of his change of address, which left him unaware of the order to show cause hearing in the matter, and of the matter’s subsequent dismissal. Moreover, Respondent waited a full year after becoming aware of the dismissal before he filed a motion seeking relief. In that period, Merzon lost the opportunity to file a judgment lien against the defendant’s sale of commercial property prior to its sale. In light of Respondent’s prior record of discipline (which, as here, also includes a failure to perform with competence), and the harm his misconduct caused to Merzon, the imposition of discipline including 60 days of actual suspension is warranted.
Case law supports the imposition of 60 days’ actual suspension. In Layton v. State Bar (1990) 50 Cal.3d 889, the attorney, in practice for over 30 years without prior discipline, served as both attorney and executor of an estate, as well as its trustee. Over a five-year period, the attorney neglected his responsibilities as executor and. attorney to conserve assets of the estate and to fulfill important duties as executor, including failing to file an accounting of the estate for almost five years. The Supreme Court concluded that the attorney’s failure to perform services competently and diligently warranted a 30-day actual suspension. The facts in the instant matter are more aggravated than in Layton due to Respondent’s prior record of discipline, and therefore support a higher level of discipline than was imposed in that matter.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 18, 2013, the prosecution costs in this matter are approximately $2,865.00. 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. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-16168
In the Matter of: JOHN EDWARD HAYES
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:
JOHN EDWARD HAYES
Respondent:
Date: 11/26/13
Respondent’s Counsel: Susan L. Margolis
Date: 11/27/13
Deputy Trial Counsel: Alan B. Gordon for Timothy G. Byer
Date: 12/16/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-O-16168
In the Matter of: JOHN EDWARD HAYES
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: Donald F. Miles
Date: 12/20/13
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 December 20, 2013, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING ACTUAL SUSPENSION
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:
SUSAN LYNN MARGOLIS
MARGOLIS & MARGOLIS LLP
2000 RIVERSIDE DR
LOS ANGELES, CA 90039
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
TIMOTHY BYER, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 20, 2013.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court