Case Number(s): 13-H-13973
In the Matter of: SCOTT MONTGOMERY CURREY, Bar # 242320, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Heather E. Abelson, Bar # 243691,
Counsel for Respondent: Scott Montgomery Currey, Bar # 242320,
Submitted to: Assigned Judge.
Filed: October 23, 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 June 1, 2006.
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):
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.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: SCOTT MONTGOMERY CURREY, State Bar No. 242320
STATE BAR COURT CASE NUMBER: 13-H-13973
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/or Rules of Professional Conduct.
Case No. 13-H-13973 (Probation Violation)
FACTS:
1. On January 25, 2012, Respondent signed a stipulation in State Bar case number 11-O-15675 in which he agreed to receive a private reproval and promised to comply with conditions attached to the reproval for a period of two years. The conditions attached to the reproval were specified in the stipulation that Respondent signed.
2. On February 21, 2012, the State Bar Court issued an order in case number 11-O-15675 which modified the stipulation to include a requirement that Respondent make restitution to Respondent’s former client, Ruby Ricketts, and approved a private reproval upon Respondent. The State Bar Court order required Respondent to comply with the stipulated and Court modified conditions attached to the reproval.
3. On February 21, 2012, the stipulation and order were filed with the State Bar Court Clerk’s office. Soon thereafter, Respondent received the stipulation and order.
4. The reproval order and reproval conditions became effective on March 13, 2012, and have remained in full force at all times thereafter.
5. QUARTERLY REPORTING CONDITION
a) One of the conditions of the reproval required Respondent to submit reports as follows:
"Respondent must submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10 of the condition period attached to the reproval. 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 the reproval during the preceding calendar quarter. Respondent must also state in each report whether there are any proceedings pending against him or her in the State Bar Court and if so, the ease number and current status of that proceeding. If the first report would cover less than 30 (thirty) days, that report must be submitted on the next following quarter date, and cover the extended period."
b) Respondent violated this condition by failing to timely submit the quarterly report which was due no later than July 10, 2013.
6. INSTALLMENT RESTITUTION PAYMENTS
a) Another condition of the reproval required Respondent to pay restitution to his former client, Ruby Ricketts, in the amount of $2,500 plus 10% interest per annum (accruing from November 7, 2009), in monthly installment payments of at least $300 "by the first of each month, beginning 30 days after the effective date of discipline."
b) Respondent violated this condition by failing to make monthly restitution payments that were due no later than February 1, 2013, March 1, 2013, April 1, 2013, and July 1, 2013, by failing to make a timely monthly restitution payment that was due no later than May 1, 2012, and by failing to make monthly restitution payments that were due no later than May 1 and June 1, 2013, in the amount of at least $300.
7. PROOF OF RESTITUTION
a) Another condition of the reproval required Respondent to "provide satisfactory proof of payment [of monthly restitution payments to Ruby Ricketts] to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation."
b) Respondent violated this condition by failing to submit proof of monthly restitution payments to Ruby Ricketts to the Office of Probation which was due no later than January 10, April 10, and July 10, 2013, and by failing to timely submit proof of monthly restitution payments to Ruby Ricketts to the Office of Probation which was due no later than October 10, 2012.
CONCLUSIONS OF LAW:
8. By failing to timely submit the quarterly report which was due no later than July 10, 2013, by failing to make monthly restitution payments that were due no later than February 1, 2013, March 1, 2013, April 1, 2013, and July 1, 2013, by failing to make a timely monthly restitution payment that was due no later than May 1, 2012, by failing to make monthly restitution payments that were due no later than May 1 and June 1, 2013 in the amount of at least $300, by failing to submit proof of monthly restitution payments to the Office of Probation which was due no later than January 10, April 10, and July 10, 2013, and by failing to timely submit proof of monthly restitution payments to the Office of Probation which was due no later than October 10, 2012, Respondent failed to comply with all conditions attached to any disciplinary probation administered by the State Bar, in wilful violation of Rules of Professional Conduct, rule 1-110.
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): In State Bar ease no. 11-O-15675, Respondent received a private reproval, effective March 13, 2012, for violating Rules of Professional Conduct, rules 3-110(A) [failure to perform with competence] and 3-70003)(2) ][failure to refund unearned fees], and Business and Professions Code, section 6068(m) [failure to communicate]. Respondent signed a pretrial stipulation with the State Bar in which he admitted that he failed to pursue a habeas corpus petition on behalf of his client, notwithstanding the fact that he had communicated to his client that he was working on the petition, that he failed to inform his client that he had decided not to pursue the petition, and failed to refund the advanced fees he was paid to pursue the petition. No aggravating circumstances were involved. Respondent received mitigation credit for candor/cooperation during the disciplinary proceeding. This prior record of discipline constitutes an aggravating factor pursuant to Standard 1.2(i).
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent engaged in multiple violations of the conditions attached to the stipulation from State Bar case no. 11-O-15675. These multiple acts of misconduct constitute an aggravating factor pursuant to Standard 1.2(b)(ii). (See In the Matter of Tiernan (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 523, 529 [holding that failure to cooperate with probation monitor and failure to timely file probation reports constituted multiple acts of misconduct].)
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Pre-filing Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of Chief Trial Counsel prior to the filing of a Notice of Disciplinary Charges, thereby saving 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 dearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
Standards 2.9 and 1.7(a) apply in this matter. Standard 2.9 applies to Respondent’s violation of Rules of Professional Conduct, rule I-110 and provides that "culpability of a member of a wilful violation of rule 1-110, Rules of Professional Conduct, shall result in suspension."
Here, Respondent repeatedly violated the terms of his prior reproval. Respondent’s misconduct is aggravated by his prior record of discipline and multiple acts of misconduct. Respondent is only entitled to mitigation for entering into a pre-filing stipulation.
Standard 1.7(a) is also applicable since Respondent has a prior record of discipline. Standard 1.7(a) provides that where a member 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."
The exception to the discipline required by Standard 1.7(a) is inapplicable in this ease because Respondent’s prior private reproval for failing to perform with competence, failing to communicate, and failing to refund unearned fees, was imposed in 2012, which is not remote in time. Respondent’s prior misconduct is also not minimal in severity because Respondent committed multiple acts of misconduct with regards to his former client.
Based on the repeated nature of Respondent’s misconduct, the aggravating circumstances, most significantly Respondent’s prior record of discipline, and the limited mitigation, a period of actual suspension is appropriate. A 30-day actual suspension, with probation conditions, is consistent with Standards 2.9 and 1.7(a), will adequately protect the public, the courts and the legal profession, and will help ensure that Respondent adheres to the high professional standards expected of California attorneys.
A 30-day actual suspension is also supported by ease law. In Conroy v. State Bar (1990) 51 Cal.3d 799, the Supreme Court imposed a 60-day actual suspension for an attorney’s failure to take and pass the MPRE which was a condition of a prior private reproval. (ld. at p. 806.) The Supreme Court found that the attorney’s misconduct was aggravated by his prior record of discipline, failure to demonstrate remorse for his misconduct, and failure to appreciate the seriousness of the charges, which was evidenced his defaulting at the Hearing Department level, and not participating in the disciplinary proceeding until filing a writ with the Supreme Court. (Id. at pp. 805-806.) The Court also found no substantial mitigation. (Id. at p. 806.)
Here, Respondent’s misconduct warrants a lesser period of actual suspension because Respondent’s misconduct is aggravated by less factors than those at issue in Conroy, and because Respondent is entitled to mitigation for entering into a pre-filing stipulation. The fact that Respondent participated in this disciplinary proceeding and entered into a pre-filing stipulation warrants a lower level of discipline than the attorney in Conroy who defaulted at the Hearing Department level of his disciplinary proceeding.
Balancing all of the appropriate factors, a 30-day actual suspension is consistent with the Standards and Conroy, and achieves the purposes of discipline as expressed in Standard 1.3.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of September 20, 2013,-the prosecution costs in this matter are $3,419.00. 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): 13-H-13973
In the Matter of: SCOTT MONTGOMERY CURREY
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: Scott Montgomery Currey
Date: 9/25/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Heather Abelson
Date: 10/1/13
PROBATION VIOLATION ORDER
Case Number(s): 13-H-13973
In the Matter of: SCOTT MONTGOMERY CURREY
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: Pat E. McElroy
Date: 10/23/13
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 San Francisco, on October 23, 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 San Francisco, California, addressed as follows:
SCOTT M. CURREY
SCOTT M. CURREY, ATTORNEY AT
LAW
PO BOX 982
DIXON, CA 95620
<<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:
Heather E. Abelson, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on October 23, 2013.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court