The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
On August 8, 2012, the Standing Committee on Discipline for the Southern District of California ("Standing Committee") commenced this disciplinary action against Attorney Lynn Hubbard III for alleged professional misconduct. The alleged professional misconduct occurred in the underlying Americans with Disabilities Act ("ADA") action, Hubbard v. Plaza Bonita, LP, et al., 09-cv-1581-JLS(WVG). The Standing Committee seeks to suspend Mr. Hubbard for a period of one year from the practice of law in this district.
On December 10, 2012, Mr. Hubbard filed an opening trial brief, and on December 17, 2012, the Standing Committee filed a responsive trial brief. On December 18, 2012, a one-day bench trial was held. Based on the trial, stipulations, and the admitted evidence, the Court issues the following findings of fact and conclusions of law.
1. Donna Gin, counsel for Hot Topic, Inc.,*fn2 believed that Barbara Hubbard had in fact signed the settlement agreement that Mr. Hubbard's office transmitted on December 8, 2009. (See Pet'r's Ex. 5 ¶ 6.)
2. Ms. Gin had her client sign the settlement agreement transmitted on December 8, 2009, unaware that Barbara Hubbard*fn3 had died on November 13, 2009 and thus could not have signed the settlement agreement. (See Pet'r's Ex. 5 ¶¶ 6, 8--9.)
3. Had Ms. Gin known about Barbara Hubbard's death-as a named plaintiff in the underlying action, an obviously material fact-at any time during the negotiation of the settlement, she would have immediately halted settlement discussions and notified her client of the development. (See Pet'r's Ex. 5 ¶¶ 8--9.)
4. By transmitting the settlement agreement to Ms. Gin on December 8, 2009, which was purportedly signed by Barbara Hubbard, Mr. Hubbard attempted to mislead opposing counsel into believing that Barbara Hubbard was alive. Foremost, during Mr. Hubbard's testimony, when asked what his intention was in approving the settlement agreements, he was non-responsive. That is, he neither confirmed nor denied that it was his intention to mislead opposing counsel. Aside from his non-responsiveness, the Court finds that Mr. Hubbard's testimony lacks credibility, primarily because of Mr. Hubbard's pattern of inconsistent statements as well as his inability to adequately explain his failure to inform opposing counsel of Barbara Hubbard's death in a reasonably timely manner.
For example, Mr. Hubbard testified that he did not inform United States Magistrate Judge William V. Gallo that Barbara Hubbard was "gravely ill" during the February 25, 2010 settlement conference, but in an objection to an order to show cause ("OSC Objection") submitted to United States District Judge Janis L. Sammartino, he stated that "Attorney Hubbard told Magistrate Gallo on February 25, 2010, that he had heard that his mother [Barbara Hubbard] was 'gravely ill.'" (Pet'r's Ex. 9 at 5:10--11.) Similarly, during his testimony, Mr. Hubbard denied telling Judge Gallo that he had Barbara Hubbard sign numerous blank settlement agreements before her death, but in the same aforementioned objection, he stated that "Attorney Hubbard told Magistrate Gallo on February 25, 2010, that his mother, Barbara, had signed numerous blanks [sic] settlement agreements, which the parties and court agree were never used." (Id. at 5:20--22.) These are not exclusive examples of Mr. Hubbard's inconsistencies.
5. At the February 25, 2010 settlement conference, Mr. Hubbard told Judge Gallo that he had heard Barbara Hubbard was ill. (See Pet'r's Ex. 9 at 5:10--11.) Mr. Hubbard also failed to disclose that he had personally observed Barbara Hubbard's deteriorating condition just before her death. (See Pet'r's Ex. 6 ¶¶ 3--10.)
6. By transmitting the settlement agreement to David Peters, counsel for Flava Enterprises, Inc. ("Flava")*fn4 on December 9, 2009, which was purportedly signed by Barbara Hubbard, Mr. Hubbard attempted to mislead opposing counsel into believing that Barbara Hubbard was alive. The Court makes this finding for the same reasons that it found above that Mr. Hubbard attempted to mislead counsel for Hot Topic.
7. At the February 25, 2010 settlement conference, Mr. Hubbard informed Judge Gallo that he was considering Chris Kohler, one of Mr. Hubbard's other clients, to substitute in as the plaintiff in place of Barbara Hubbard in the underlying action. (See Pet'r's Ex. 8 at 10:3--17; see also Pet'r's Ex. 6 ¶¶ 13--20.) Mr. Peters' testimony also supports this factual finding.*fn5
8. At the February 25, 2010 settlement conference, Mr. Hubbard intended to mislead the court that he had not observed firsthand Barbara Hubbard's deteriorating condition in the days before her death. On this factual issue, Mr. Hubbard once again took contradictory positions. In the OSC Objection, Mr. Hubbard unequivocally admits that "Attorney Hubbard told Magistrate Gallo on February 25, 2010 that he had heard his mother was 'gravely ill.'" (Pet'r's Ex. 9 at 5:10--11 (emphasis added).) However, Mr. Hubbard testified that that never happened. Stating that Mr. Hubbard merely "had heard" Barbara Hubbard was gravely ill strongly suggests that he did not personally observe her physical condition, but rather heard about her physical condition through a third person. (See id.)
9. Before the February 25, 2010 settlement conference, the decision had been made that Mr. Hubbard's father, and not some other client of Mr. Hubbard's, would assume the role of plaintiff in the underlying action at the time of Barbara Hubbard's death. In a declaration, Mr. Hubbard stated that after being informed of Barbara Hubbard's death, he called his father. (Pet'r's Ex. 6 ¶¶ 12--13.) At that time, Mr. Hubbard concluded that his father inherited Barbara Hubbard's causes of action, and based on that conclusion, Mr. Hubbard asked his father "what he wanted to do." (Id. ¶¶ 15--17.) He informed his father that previous settlements needed to be finalized, and received instruction from his father to "go ahead and 'finish up' the lawsuit." (Id. ¶¶ 18--19.) Mr. Hubbard stated in the declaration that he and his father "agreed" that Mr. Hubbard would represent his father's interest in the underlying action, and thereafter, Mr. Hubbard's father went on to ratify and consent to Mr. Hubbard's office signing settlement agreements. (Id. ¶¶ ...