Case Number(s): 09-O-18479
In the Matter of: Clay E. Presley, Bar # 174277, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Elina Kreditor, Deputy Trial Counsel
1149 S. Hill Street
Los Angeles, CA 90015
Bar # 250641,
Counsel for Respondent: Susan L. Margolis, Margolis & Margolis LLP
2000 Riverside Drive
Los Angeles, CA 90039-3758
Bar # 104629,
Submitted to: Settlement Judge – State Bar Court Clerk’s Los Angeles.
<<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 13, 1994.
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 member 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.
State Bar Court Case # 06-O-11624; Discipline Effective November 14, 2008, Respondent violated Rule 3-110(A) of the Rules of Professional Conduct and section 6068(m) of the Business and Professions Code. Respondent was suspended for one year, stayed, placed on probation for three years with conditions, including a 30 day actual suspension.
IN THE MATTER OF: CLAY E. PRESLEY, State Bar No. 174277
STATE BAR COURT CASE NUMBER: 09-o-18479
FACTS AND CONCLUSIONS OF LAW
Clay E. Presley ("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.
I. Facts
1. On June 13, 2008, Respondent entered into a stipulation regarding facts, conclusions of law, and disposition in State Bar court case no. 06-O-11624. The stipulation included the requirement that Respondent comply with certain conditions of probation.
2. On October 15, 2008, the California Supreme Court filed its order in case no. S165959 approving the stipulation reached in State Bar court case no. 06-0-11624. The Court ordered that Respondent be suspended from the practice of law for one year, that execution of the suspension be stayed, and that Respondent be placed on probation for three years with conditions, including that he be actually suspended for thirty days ("the Order"). On or about October 15, 2008, the California Supreme Court clerk served a copy of the Order on Respondent by mail. Respondent received a copy of the Order. The Order. was effective November 14, 2008.
3. As a condition of the probation recommended by the Hearing Department and ordered by the Supreme Court, the Court ordered Respondent to comply with numerous conditions of Probation, including the following financial conditions:
a. Respondent is to pay restitution to complaining witness Marcos Alvarez in the total amount of $2800 plus interest of 10% per annum accruing from September 7, 2004;
b. Respondent is to pay restitution by making minimum monthly payments of $280;
c. Respondent is to submit satisfactory proof of payment of restitution to the Office of Probation ("Probation") on a quarterly basis;
d. if the Client Security Fund ("CSF’) has reimbursed the complaining witness on Respondent’s behalf, Respondent is to pay restitution to CSF, plus applicable interest and. costs.
4. Respondent did not submit proof of payment of restitution to Probation on a quarterly basis. Specifically, Respondent did not submit proof of payment on the due dates of January 10, 2009, April 10, 2009, July 10, 2009 and October 10, 2009.
5. On November 24, 2008, CSF reimbursed Marcos Alvarez in the amount of $2800 and assessed $147 in processing costs against Respondent.
6. On April 24, 2009, Probation contacted Respondent regarding his failure to pay restitution or submit proof of payment.
7. On May 1, 2009, Probation was advised that Respondent authorized a transfer to CSF of a portion of funds overpaid by Respondent to Membership Billing. Accordingly, $1620.50 was transferred to CSF. Although this payment was late, it was applied by Probation to the restitution owed by Respondent as follows:
a. November 2008:$280.00
b. December 2008:$280.00
c. January 2009: $280.00
d. February 2009: $280.00
e. March 2009: $280.00
f. April 2009: $280.00
8. After authorizing the above described transfer of funds, Respondent did not make restitution payments for the remainder of 2009 or submit proof of payment of restitution to the Office of Probation.
9. On October 29, 2009, Probation sent Respondent a letter advising him that he was not in compliance with the. terms of his probation due to his failure to pay restitution. The Probation letter outlined the basis for Probation’s determination that Respondent was non compliant.
10. Respondent replied by letter on November 13, 2009, stating that: (1) he is in compliance with the terms of his probation because CSF paid the complaining witness and he was advised by membership records that the restitution amount is being billed on his annual bar statement; (2) he disputes the interest calculation because the restitution amount was paid by CSF; (3) the terms of the Stipulation require him to pay $2800 plus 10% interest to CSF by October 14, 2011, if CSF paid the complaining witness. Since CSF paid the complaining witness in November 2008, Respondent believed his sole obligation was to reimburse CSF by October 14, 2011.
11. On November 24, 2009, Probation sent Respondent a reply letter, again explaining why Respondent was not in compliance and advising Respondent that his matter was being referred to the enforcement unit due to his non-compliance.
12. On or about December 18, 2009, Respondent was contacted by Deputy Trial Counsel Elina Kreditor regarding his non compliance with the terms of his Probation.
13. On or about January 29, 2010, Respondent sent a check to complaining witness, Marcos Alvarez in the amount of 1177.53. Said check comprised the outstanding interest owed to Mr. Alvarez.
14. On or about January 29, 2010, Respondent sent a check to CSF, in the amount of 1540.50. The check comprised CSF costs and the outstanding amount owed to CSF for its payment of restitution to Mr. Alvarez.
II. Conclusions of Law
By failing to timely submit monthly restitution payments and timely submit proof of payment of restitution, Respondent willfully failed to comply with all conditions attached to any disciplinary probation in violation of Business and Professions Code, section 6068(k).
PENDING PROCEEDINGS
The disclosure date referred to, on page 2, paragraph A(7), of the instant Stipulation, was September 17, 2010.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of September 17, 2010, the costs in this matter are $1983.00. 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.
AUTHORITIES SUPPORTING DISCIPLINE
Standard 1.3 provides that the primary purposes of attorney discipline are, "the protection of the public, the courts and the legal profession; the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession."
Standard 2.6(a) of Standards for Attorney Sanctions for Professional Misconduct ("Standard(s)") provides that violations of section 6068 shall result in disbarment or suspension depending upon the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline. Pursuant to Standard 2.6(a), the appropriate level of discipline in this matter is in the range of suspension to disbarment.
Standard 1.7(a) provides that where a member has previously been found culpable of any misconduct, the degree of discipline imposed 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.
Standard 1.7(b) provides that where a member is found culpable of misconduct and the member has a record of two prior impositions of discipline, the degree of discipline in the current proceeding shall be disbarment unless the most compelling mitigating circumstances clearly predominate.
In In re Silverton (2005) 36 Cal. 4th 81, 92, the California Supreme Court held that the Standards for Attorney Sanctions for Professional Misconduct are entitled to "great weight" and the Court will "not reject a recommendation arising from the Standards unless [it has] grave doubts as to the propriety of the recommended discipline." The Standards are not binding but "they promote the consistent and uniform application of disciplinary measures." (Id.) The "presumptively appropriate level of discipline" for any misconduct is as set forth in the standards (See Morgan v. State Bar (1990) 51 Cal. 3d 598, 607).
It should be noted, however, that the standards are guidelines (Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090; In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615,628) and afforded great weight (In re Silverton (2005) 36 Cal.4th 81, 91-92), but they are not applied in a talismanic fashion (In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 994). The appropriate discipline is determined in light of all relevant facts, including mitigating and aggravating circumstances. (Gary v. State Bar (1988) 44 Cal.3d 820, 828.)
Here, the nature of Respondent’s misconduct, as well as the mitigating evidence involved, justify a deviation from Standard 1.7(b).
Upon being contacted by the Office of Probation regarding his failure to pay restitution, Respondent corresponded with the Office of Probation and expressed his belief that, because CSF had paid the complaining witness in the matter, his duty was to pay CSF the outstanding amount and interest at the conclusion of his probationary term. Although the case was referred to the Enforcement Unit shortly after the above described correspondence, there was no significant delay in Respondent’s payment of the full outstanding restitution amount and interest to CSF upon being contacted by Deputy Trial Counsel Elina Kreditor.
Respondent also presented evidence that during the period of the misconduct, he was suffering from emotional and physical stress. Respondent’s wife was diagnosed with breast cancer in February 2009.
In August 2009, Respondent was diagnosed with the onset of kidney disease and his physician discovered a number of tumors and cysts on both kidneys. It was not until October 2009, that Respondent learned that the tumors were not malignant.
Finally, Respondent cooperated with the State Bar by signing the instant Stipulation.
Given the nature of the misconduct in this matter and the mitigating factors involved, a 90 day actual suspension is appropriate in this matter.
Case Number(s): 09-O-18479
In the Matter of: Clay E. Presley
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: Clay E. Presley
Date: October 5, 2010
Respondent’s Counsel: Susan L. Margolis
Date: October 12, 2010
Deputy Trial Counsel: Elina Kreditor
Date: October 14, 2010
Case Number(s): 09-O-18479
In the Matter of: Clay E. Presley
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.
1) On page 4, paragraph E.(1), the "x" from the box preceding the words, "If Respondent is actually suspended for two years or more .... " is deleted.
2) On page 5, paragraph E.(8), the "x" from the box preceding the words, "Within one (1) year of the effective date of the discipline herein, Respondent must provide .... " is deleted.
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: Richard A. Honn
Date: October 29, 2010
[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 November 3, 2010, 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:
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:
Elina Kreditor, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 3, 2010.
Signed by:
Cristina Potter
Case Administrator
State Bar Court