Case Number(s): 05-O-04325-LMA
In the Matter of: Howard Moore, Jr., Bar # 55228, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Tammy M. Albertsen-Murray, Bar # 154248
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.
Filed: September 24, 2008.
<<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 April 25, 1973.
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 10 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. Costs are added to membership fee for calendar year following effective date of discipline.
<<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.
Respondent refunded $10,000 to Robbie Evans in May, 2008, under circumstances other than those described in C.(5) above.
Please see Stipulation Attachment, page 9, for additional mitigating circumstances.
IN THE MATTER OF: Howard Moore, Jr., State Bar No. 55228
STATE BAR COURT CASE NUMBER: 05-O-04325-LMA
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.
Facts
In November, 2004, Leroy Evans ("Evans") retained respondent t,o represent him in his pending appeal, U.S.A. vs. Evans, case no. 04-14755-HH, filed in the United States Court of Appeals for the Eleventh Circuit (Georgia) (hereinafter, "USA v. Evans"). Robbie Evans, Evans’ ex-wife, and Bobbie Slaughter, Evans’ former mother-in-law, paid respondent the sum of $10,000 on behalf of Leroy Evans.
On December 6, 2004, respondent filed a substitution of counsel, becoming Evans’ counsel of record in U.S.A. vs. Evans. Appellant’s briefs and record excerpts in the USA v. Evans matter were due to be filed by January 13, 2005. On January 10, 2005, respondent filed a Motion for Enlargement of Time in Which to File His Brief and Excerpts of Record on behalf of Evans. In his pleadings, respondent indicated that his brief was due on January, 13, 2005. He requested an extension because he had recently attended a funeral, his offices were renovated, and he had to review six boxes of files. On January 13, 2005, the Eleventh Circuit granted respondent’s request and ordered that respondent file his briefs on or before March 14, 2005. The Court Clerk duly notified respondent of the January 13, 2005 order. Respondent received the Order and was aware of its contents.
On March 15, 2005, respondent filed a Motion for Enlargement of Time in Which to File His Brief and Excerpts of Record on behalf of Evans. In his pleadings, respondent indicated that this was his second request for an extension. He stated that Evans was convicted of 91 counts, and, due to the complexity of issues, respondent needed additional time to prepare the Appellant’s Opening Brief. Respondent stated, "1 am certain that Appellant’s Opening Brief and Excerpts of Record will be filed within the additional time requested." On March 18, 2005, the Eleventh Circuit Court granted respondent’s second request for an extension, and ordered that the brief and excerpts be filed April 1, 2005. The March 18 order specifically stated that the Court would allow no further extensions. The Court Clerk duly notified respondent of the March 18, 2005 order. Respondent received the Order and was aware of its contents.
On March 23, 2005, respondent wrote to Evans and indicated that he would send Evans a copy of the brief that would be filed the following week. On March 30, 2005, respondent wrote a letter to Evans, addressing it to Leroy Evans, 41234-109, Federal Prison Camp, Unit G-18, P.O. Box 150160, Atlanta, Georgia. In his letter, respondent described his concerns about pursuing the appeal. Respondent requested that Evans call him collect to discuss the issues. Evans did not receive the March 30, 2005 letter. Evans address was Unit A-14 (not G-18). In addition, his prison number was 41234-019 (not 41234-109).
On May 27, 2005, Evans wrote to the Eleventh Circuit, requesting appointment of an attorney and stating that respondent "has failed to allow communications between himself and Defendant and/or persons attempting to contact him on behalf of Defendant." Evans indicated, in his handwritten pleading, that his address was Unit A-14 and his prison number was 41234-019.
On or about September 27, 2005, Robbie Evans, and Bobbie Slaughter, on behalf of Evans, wrote a letter to respondent, which respondent received. In the letter, Robbie Evans indicated, among other things, that respondent failed to speak to Evans while he was confined in prison and requested a refund of the $10,000 in fees.
After his March 30, 2005 (misaddressed) letter to Evans, respondent failed to thereafter communicate with Evans, or Robbie Evans on behalf of Evans. Respondent did not advise Evans of respondent’s failure to file a timely appellate brief on Evans behalf. By taking no further action on Evans’ case after March 30, 2005, until he responded to an Order to Show Cause issued by the Court on December 12, 2005, respondent constructively terminated his services to Evans. Respondent failed, upon termination of his services, to notify the Eleventh Circuit Court of Appeals the he was no longer representing Evans, and he failed to file a motion to withdraw with the appropriate pleadings (also known as an Anders brief).1 [Footnote 1: If an appellate attorney believes an appeal is frivolous, he must request permission to withdraw from the case. He must provide, with his request, a brief referring to anything in the record that might support the appeal (United States v. Blackwell, (1985) 767 F.2d. 486; Anders v. California (1967) 386 U.S. 738, 744). This brief is referred to as an "Anders brief."]
In his December 30, 2005 response to a December 12, 2005 Order to Show Cause issued by the Eleventh Circuit, respondent indicated that he had difficulty proceeding with a theory for Evans’ appeal. On February 22, 2007, the Eleventh Circuit issued a confidential order regarding respondent’s conduct in the case. Respondent failed to file a timely brief, or Anders brief, on behalf of Evans on or before April 1, 2005, or at anytime thereafter.
Conclusions of Law
1. By failing to timely file an appellate brief, or Anders brief, on behalf of Evans, respondent failed to perform with competence, in wilful violation of Rules of Professional Conduct, rule 3-110(A).
2. By failing to abide by the Eleventh Circuit Court’s March 18, 2005 order requiring respondent to file briefs no later than April 1, 2005, respondent failed to obey an order of the court requiring him to do or forebear an act connected with or in the course of respondent’s profession, in wilful violation of Business and Professions Code, section 6103.
3. By constructively terminating his services to Evans in March, 2005, without notifying the Eleventh Circuit, without notifying Evans, and without returning Evans’ file and fee, respondent failed, upon termination of employment, to take reasonable steps to avoid reasonably foreseeable prejudice to his client, in wilful violation of Rules of Professional Conduct, rule 3-700(A)(2).
PENDING PROCEEDINGS
The disclosure date referred to, on page one, paragraph A (7), was September 11, 2008.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of September 11, 2008, the costs in this matter are $ 2,296.00. 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.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No.: 05-0-04325, Count: Three, Alleged Violation: Bus. and Prof. Code, section 6068(m) [failure to respond to client inquiries]
AUTHORITIES SUPPORTING DISCIPLINE
Standard 2.6 mandates disbarment or suspension for violations of Business and Professions Code, section 6103, depending upon the gravity of the offense or harm, if any, to the victim Standard 2.4(b) mandates reproval or suspension for failure to communicate or perform, depending on the extent and degree of harm to the client.
Case law demonstrates that the abandonment of an incarcerated client merits a strong response. Discipline ranges from stayed suspension up to actual suspension for two years for similar misconduct Borre v. State Bar(1991) 52 Cal. 3d 1047 (two year actual suspension for abandonment of an incarcerated client’s criminal appeal, fabricated exculpatory letter), Harris v. State Bar (1990) 51 Cal. 3d 1082 (ninety day actual suspension for failure to perform over a four year period), In the Matter of Nees (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 459 (six month actual suspension for abandoning a habeas corpus petition, failure to return file and failure to refund $7,000 in fees and failure to cooperate in State Bar investigation), In the Matter of Thomas Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41 (stayed suspension for abandonment of criminal appeal).
ADDITIONAL MITIGATING CIRCUMSTANCES
Respondent received the First Lifetime Achievement Award in recognition of outstanding contributions to the legal profession from the Black Law Students Association at the Boston University School of Law (Spring 2005). On August 3, 2007, respondent was inducted into the National Bar Association’s Hall of Fame at the annual convention in Atlanta, Georgia for distinguished service to the community and the legal profession.
Though the misconduct is serious, respondent has had no prior discipline since his admission to the practice of law in California 1973.
STATE BAR ETHICS SCHOOL
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
SIGNATURE OF THE PARTIES
Case Number(s): 05-O-04325-LMA
In the Matter of: Howard Moore, Jr.
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: Howard Moore, Jr.
Date: September 11, 2008
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Tammy M. Albertsen-Murray
Date: September 18, 2008
Case Number(s): 05-O-04325-LMA
In the Matter of: Howard Moore, Jr.
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 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Lucy Armendariz
Date: September 23, 2008
[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 September 24, 2008, 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:
HOWARD MOORE
MOORE & MOORE
1563 SOLANO AVE., #204
BERKELEY, CA 94707-2116
<<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:
TAMMY ALBERSTEN-MURRAY, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on September 24, 2008.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court