Case Number(s): 12-O-17220
In the Matter of: TIMOTHY DAVID MYERS, Bar # 199356, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Agustin Hernandez, Bar #161625,
Counsel for Respondent: Timothy David Myers, Bar #199356,
Submitted to: Settlement Judge.
Filed: August 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 7, 1998.
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 13 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: three billing cycles following the effective date of the Supreme Court order. (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):.
FINANCIAL CONDITIONS
Case Number(s): 12-O-17220
In the Matter of: TIMOTHY DAVID MYERS
a. Restitution
<<not>> checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee: Matthew Kahnamelli
Principal Amount: $3,510
Interest Accrues From: March 17, 2011
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
b. Installment Restitution Payments
<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. 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.
c. Client Funds Certificate
<<not>> checked.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3. The requirements of this condition are in addition to those set forth in rule 4-100, Rules of Professional Conduct.
d. Client Trust Accounting School
<<not>> checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: TIMOTHY DAVID MYERS, State Bar No. 199356
STATE BAR COURT CASE NUMBER: 12-O-17220
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. 12-0-17220 (Complainant: Matthew Kahnamelli)
FACTS:
1. On July 23, 2009, Matthew Kahnamelli ("Kahnamelli") employed Respondent to represent Kahnamelli, individually, and Newport Convertible Engineering, Inc. ("Newport Convertible"), as defendants in a civil matter.
2. On August 27, 2010, the court filed an amended judgment in favor of the plaintiff and against Kahnamelli and Newport Convertible jointly and severally in the amount of $10,000, plus $2,475.11 in costs, and attorney fees of $50,906.05.
3. Prior to November 30, 2010, Kahnamelli and Newport Convertible employed Respondent to represent them in an appeal of the amended judgment. The last day to file a notice of appeal of the amended judgment was November 30, 2010. At all relevant times, Respondent was aware that November 30, 2010, was the last day to file a notice of appeal.
4. Between January 2, 2011, and February 16, 2011, Kahnamelli paid Respondent a total of $3,510 in advanced attorney’s fees in connection with the appeal of the Kahnamelli matter.
5. On February 4, 2011, Respondent filed an untimely notice of appeal on behalf of Kahnamelli and Newport Convertible.
6. On February 28, 2011, the Court of Appeal of the State of California, Fourth Appellate District, Division Three ("Court of Appeal"), filed an order stating that it was considering dismissing the appeal because it was filed untimely, and inviting Respondent to file a brief within 10 days explaining why the appeal should not be dismissed for being untimely.
7. On March 10, 2011, Respondent filed a response to the Court of Appeal’s February 28, 2011 order.
8. On April 20, 2011, the Court of Appeal dismissed the appeal due to Respondent’s failure to timely file the notice of appeal.
9. Respondent did not provide any legal services of value for the $3,510 in fees that Kahnamelli paid Respondent for the appeal.
10. Respondent did not earn any portion of the $3,510 in fees that Kahnamelli paid Respondent for the appeal.
11. To date, Respondent has failed to refund to Kahnamelli any portion of the $3,510 in fees that Kahnamelli paid Respondent for the appeal.
12. On March 29, 2011, Kahnamelli made a complaint with the State Bar against Respondent ("Kahnamelli complaint").
13. On June 28, 2011, a State Bar Complaint Analyst sent a letter to Respondent regarding the Kahnamelli complaint. The letter requested that Respondent respond in writing to specified allegations of misconduct in the Kahnamelli complaint. Respondent received the letter.
14. In response to the State Bar Complaint Analyst’s June 28, 2011 letter, on July 12, 2011, Respondent sent a letter to the State Bar Complaint Analyst. In his July 12, 2011 letter, Respondent misrepresented that Kahnamelli and Newport Convertible had not employed Respondent to represent them in the appeal. At the time Respondent made this statement, the statement was false and Respondent knew that his statement was false because he had been employed to represent Kahnamelli and Newport Convertible in the appeal.
CONCLUSIONS OF LAW:
15. By failing to file a timely notice of appeal of the amended judgment, Respondent recklessly failed to perform legal services with competence, in willful violation of Rules of Professional Conduct, rule 3-110(A).
16. By failing to refund to Kahnamelli any portion of the $3,510 in fees that Kahnamelli paid Respondent for the appeal, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned, in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
17, By knowingly making a false statement to the State Bar, Respondent committed an act involving dishonesty, in willful violation of Business and Professions Code, section 6106.
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent committed multiple acts of misconduct. In one client matter, Respondent failed to perform legal services with competence, failed to unearned fees and made misrepresentations to the State Bar.
Harm (Std. 1.2(b)(iv)): While the dismissal of the appeal does not necessarily support a finding that Kahnamelli and Newport Convertible would have prevailed in their appeal had it not been dismissed, Respondent’s misconduct cost them the opportunity to appeal the judgment entered against them in the amount of $10,000, plus $2,475.11 in costs, plus $50,906.05 for attorney fees. (See In the Matter of Dahlz (Review Dept. 2001) 4 Cal. State Bar Ct. Rptr. 269, 283 (loss of a cause of action constitutes significant harm).)
Respondent also caused further financial harm to Kahnamelli and Newport Convertible by failing to refund any portion of the unearned fees.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
No Prior Discipline: Although Respondent’s misconduct is serious, he has almost 15 years of practice without discipline, which is entitled to substantial mitigation. (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49 [attorney with 17 years of discipline-free practice entitled to mitigation despite serious misconduct]; Edwards v. State Bar (1990) 52 Cal.3d 28, 38-39 [mitigation was given to an attorney with 12 years of practice without discipline despite serious misconduct].)
Pretrial Stipulation: Respondent is entitled to mitigation for entering into a full stipulation to resolve this matter prior to trial, thereby preserving State Bar Court time and resources. (Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079 [where mitigative credit was given for entering into a stipulation as to facts and culpability].)
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.)
Respondent committed three acts of professional misconduct. Standard 1.6 (a) requires that where a Respondent commits two or more acts of misconduct, and different sanctions are prescribed by the standards that apply to those acts, the sanction imposed shall be the more or most severe prescribed in the applicable standards.
The most severe sanction applicable to Respondent’s misconduct is found in standard 2.3, which applies to Respondent’s misrepresentation to the State Bar, an act of dishonesty in violation of Business and Professions Code section 6106.
Standard 2.3 provides that culpability of an act of moral turpitude, fraud, intentional dishonesty or concealment of a material fact to a court, client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law.
In the instant case, Respondent knowingly misrepresented to the State Bar that he had not been employed to work on the appeal of the Kahnamelli matter when in fact he had been employed to work on the appeal. Respondent’s misrepresentation to the State Bar is directly related to the practice of law and constitutes a serious breach of his duties as an attorney. (See Chang v. State Bar (1989) 49 Cal.3d 114, 128 (fraudulent and contrived misrepresentations to the State Bar may constitute a greater offense than misappropriation).) In addition, Respondent failed return the unearned fees that he received for the appeal after having allowed the time for initiating the appeal to run. Respondent’s misconduct also harmed his clients as they lost the opportunity to appeal the judgment. Respondent’s 15 years of discipline-free practice, as well as his agreement to enter into this stipulation are mitigating factors. However, they are not sufficiently compelling to warrant a deviation from standard 2.3. Based on the facts, aggravating and mitigating circumstances, and the standards, discipline consisting of a two-year stayed suspension and two years of probation subject to conditions, including a 90-day actual suspension, is sufficient to protect the public, the courts and the integrity of the legal profession.
A 90-day actual suspension is also consistent with case law. In the Matter of Wells, a member received a two-year stayed suspension, with six months of actual suspension and two years of probation for making misrepresentations to the State Bar of California as well as to the South Carolina deputy solicitor general. The misconduct in Wells however, was more egregious than the misconduct in the instant matter as she also engaged in the unauthorized practice of law. Wells moved to South Carolina where she represented at least nine clients during the approximately five years that she lived there. Wells misrepresented to the State Bar of California that she did not practice law in South Carolina. She also made misrepresentations to the South Carolina deputy solicitor general by understating the extent of her practice of law in that state and how long she had lived there. The court found that Wells violated Business and Professions Code section 6106 (misrepresentations), and rules 1-300(B) (practicing in a jurisdiction where not licensed) (two counts), 4-200(A) (charging an illegal fee) (two counts), 3- 700(D)(2) (failure to refund unearned fees) (two counts). Wells also had a prior imposition of a private reproval. (In the Matter of Wells (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 896).
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of June 11, 2013, the prosecution costs in this matter are $3,419. 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 or any other educational course(s) to be ordered as a condition of reproval or suspension. (Rules Proc. of State Bar, rule 3201 .)
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-17220
In the Matter of: TIMOTHY DAVID MYERS
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: TIMOTHY DAVID MYERS
Date: 7/23/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: AGUSTIN HERNANDEZ
Date: 7/30/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-O-17220
In the Matter of: TIMOTHY DAVID MYERS
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.
Page 1, Section A. 3 – Delete “13 pages”
Insert “14 pages”
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: 8/15/13
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 August 20, 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:
TIMOTHY D. MYERS
4911 WARNER AVE STE. 219
HUNTINGTON BEACH, CA 92649
<<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:
Agustin Hernandez, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 20, 2013.
Signed by:
Paul Barona
Case Administrator
State Bar Court