Case Number(s): 05-O-00905
In the Matter of: David Milton Browne, Bar # 93576, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Michael J. Glass, Bar # 102700
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: January 26, 2006.
<<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 16, 1980 .
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 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. 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: 2007, 2008 and 2009. (Hardship, special circumstances or other good cause per rule 282, Rules of Procedure.)
<<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.
Case Number(s): 05-O-00905
In the Matter of: David Milton Browne
checked. a. Within days/ months/ 1 years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
checked. b. Within days/ months/ 1 years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Other:
IN THE MATTER OF: David Milton Browne, State Bar No. 93576
STATE BAR COURT CASE NUMBER: 05-O-00905
FACTS AND CONCLUSIONS
Respondent David Milton Browne ("Respondent") admits the following facts are true and that he is culpable of violation of the Rules of Professional Conduct and the Business and Professions Code.
Case No. 05-O-00905
1. In or about October 2001, Herman Padilla ("Padilla") employed Respondent to defend Padilla in a civil lawsuit entitled Barnes v. Padilla, Los Angeles County Superior Court Case No. GC028815.
2. On or about October 29, 2001, Respondent filed an answer on Padilla’s behalf, and a cross-complaint against Plaintiff Barnes and other cross-defendants, including Eric Rockey ("Rockey’).
3. On or about January 30, 2002, Rockey filed a cross-complaint against Padilla which was properly served on Respondent.
4. On or about March 27, 2002, Plaintiff Barnes properly served Respondent with Plaintiff’s Motion to Compel Interrogatory Responses from Padilla. Respondent failed to respond to Plaintiff’s Motion to Compel Interrogatory Responses from Padilla. On or about April 10, 2002, the court held a heating on Plaintiffs Motion to Compel Interrogatory Responses from Padilla. Respondent failed to appear at the motion. The motion was granted and Padilla was ordered to answer Plaintiff’s Interrogatories within 10 days. Respondent received the order but failed to answer Plaintiff’s Interrogatories within 10 days.
5. On or about April 19, 2002, Cross-complainant Rockey entered cross-defendant Padilla’s default on Rockey’s cross-complaint and Respondent was served with the Notice of Default.
6. In or about May 2001, Plaintiff’s counsel served Respondent with a Notice of Padilla’s Deposition for June 19, 2002. On June 19, 2002, Respondent informed Plaintiff’s counsel that Padilla’s deposition would not go forward. Respondent agreed to pay Plaintiff’s counsel the $140 court reporter fee.
7. On July 16, 2002, Respondent’s $140 cheek was not honored due to insufficient funds. Plaintiff’s counsel and Respondent’s bank advised Respondent that the check was not honored due to insufficient funds and Respondent refused to make good on the cheek.
8. On or about July 24, 2002, Respondent received a Notice of Status Conference for July 29, 2002. On or about July 29, 2002, Respondent failed to appear at the Status Conference. The court scheduled an Order to Show Cause Heating and Further Status Conference for August 8, 2002 and sent notice to Respondent. On or about August 8, 2002, Respondent failed to appear at the Order to Show Cause Heating and Further Status Conference which resulted in the court striking Padilla’s answer and cross-complaint.
9. On or about October 2, 2002, the court entered judgment against Padilla after default. On or about October 17, 2002, Respondent filed a Motion to Set Aside Default Judgments against Padilla under Code of Civil Procedure section 437(b)(1) ad (2).
10. On or about November 20, 2002, the court granted Respondent’s motion to set aside the default and judgments against Padilla. The court also ordered the moving parties to pay $2,000 in sanctions to Plaintiff. Respondent appeared at the motion and was served with a notice of the court’s ruling.
11. In or about October 2003, Plaintiff’s counsel filed a small claims action against Respondent in the Orange County Small Claims Court, entitled Steingraber v. Browne, Case No. 03CS006040, in order to obtain payment of the sanctions and the $140 court reporter fees. Respondent was served with the small claims action.
12. On or about December 18, 2003, the Small Claims Court entered judgment against Respondent in the amount of $2,552. On or about March 19, 2005, Respondent paid plaintiff’s counsel $2,952.
Conclusions of Law
By failing to respond to Rocky’s cross-complaint, failing to respond to plaintiff’s motion to compel Padilla’s responses to interrogatories, failing to appear at plaintiff’s motion to compel Padilla’s responses to interrogatories, failing to promptly pay plaintiff’s counsel $140 for court reporter fees, failing to appear at the status conference, and failing to appear at the Order to Show Cause Heating re sanctions, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in violation of rule 3-110(A) of the Rules of Professional Conduct.
PENDING PROCEEDINGS
The disclosure date referred to on page one, paragraph A.(7) was December 14, 2005.
COST OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of December 14, 2005, the estimated prosecution costs in this matter are approximately $1,636.00. Respondent acknowledges that this figure is an estimate only and it does not include State Bar costs which will be included in any final cost assessment. 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.
The parties stipulate that the costs are to be paid in three equal amounts, one third being added to and becoming a part of the membership fees for each of the years 2007, 2008, and 2009.
AUTHORITIES SUPPORTING DISCIPLINE
Standard 2.4(b) provides that "Culpability of a member of wilfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of willfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
In Doyle v. State Bar (1976) 15 Cal. 3d 973, in one matter, the attorney was employed to probate the estate of the client’s mother. The attorney failed to perform by taking four and one half years to obtain the decree of final distribution of the estate. In another matter, the attorney was employed to file an action for injunction and damages on behalf of a client. The attorney stated that the lawsuit would be filed in 30 days, and accepted a retainer o f $1500. The attorney never filed the lawsuit or refunded the retainer fee. The court imposed discipline consisting of a three year stayed suspension, three years probation. In mitigation, the attorney had no prior record of discipline over 14 year of practice. Additionally, the attorney displayed candor, cooperation and remorse throughout the proceedings.
In Taylor v. State Bar (1974) the attorney failed to perform in a personal injury matter by failing to tell the client that he was active entering military service and not completing the personal injury matter. The attorney failed to tell the client to get a new attorney, or return the file to the client. In another matter the attorney practiced law while on suspension for failure to pay membership fees. The court imposed discipline consisting of a three month actual suspension. In mitigation, the attorney had no prior discipline over 9 years of practice.
AGGRAVATING CIRCUMSTANCES
Under Standard 1.2(b)(iv), Respondent’s misconduct significantly harmed a client, the public or the administration of justice because the client’s answer and cross-complaint were stricken, Respondent failed to obey court orders to respond to interrogatories and pay sanctions, and Respondent failed to pay the court ordered sanctions and the court reporter fee until Plaintiff’s counsel commenced a small claims action,.
MITIGATING CIRCUMSTANCES
Under Standard 1.2(e)(i), Respondent has no prior record of discipline since his admission to the State Bar of California on December 16, 1980 (i.e. no prior discipline over 25 years of practice).
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-00905
In the Matter of: David Milton Browne
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 M. Browne
Date: December 20, 2005
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Michael J. Glass
Date: January 5, 2005
Case Number(s): 05-O-00905
In the Matter of: David Milton Browne
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 135(b), 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 953(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: January 26, 2006
[Rule 62(b); Rules Proc.; 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 26, 2006, 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 M BROWNE ESQ
21800 BURBANK BLVD #200
WOODLAND HILLS, CA 91364
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Michael J. Glass, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 26, 2006.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court