Oceanside attorney suspended for suing wrong defendant

By Olivia Olsen | Feb 3, 2017

LOS ANGELES — Herchel McCoy Sims, an Oceanside attorney, has been suspended from practicing law.

LOS ANGELES — Herchel McCoy Sims, an Oceanside attorney, has been suspended from practicing law.

The ruling, handed down by the State Bar Court of California, was the result of misconduct charge in which Sims named the wrong defendant in a civil suit. The attorney has been suspended for six months. According to the California Bar website, Sims was still ineligible to practice law as of June 27.

The misconduct charge stemmed from an incident beginning in September 2013. According to court documents, Sims was hired to represent a client in a civil dispute against TMP Gas & Food Mart for allegedly violating the Americans with Disabilities Act (ADA). Several defendants were named in the suit, including one referred to as “Gateway” in court documents. Sims included Gateway in the suit, as he believed that person owned a property where his client alleged the violation occurred. The address in the suit was listed as 5600 W. Manchester Blvd., but Gateway contended that the property they owned was at 5800 W. Manchester Ave.

In October 2013, the complaint was served to Gateway. On Oct. 23, 2013, Kerry Kinney, the attorney for Gateway, contacted Sims to alert him to the error and left a message with his assistant. Kinney continued to call Sims through Nov. 18, 2013, but Sims never responded, documents state.

On June 4, 2014, Kinney filed a demurrer, and the court ruled in favor of Gateway. Sims was notified by the court of the ruling but he failed to dismiss the case. In response, Kinney and Gateway appeared for an ex parte order of dismissal hearing on Feb. 3, 2015. Sims did not attend. The order was granted, and Sims was again notified.

Sims’ six-month suspension will be followed by three years of probation, during which he will need to provide quarterly reports to the Office of Probation, as well as any updates to his professional and personal situation. If Sims fails to comply with the conditions of his probation, a two-year suspension will be imposed.

In addition to the previous conditions of his probation, Sims was required to pass the Multistate Professional Responsibility Examination (MPRE). As of Dec. 12, 2016, Sims had failed to follow this provision. 

Sims must comply with the California Rules of Court Rule 9.20 subsections (a) and (c). The rule requires the attorney to notify all of his clients of the ruling, deliver any papers necessary to clients in regards to their cases, return any fees that remain unearned and alert opposing counsel in any pending litigation of his disbarment. Sims must then tell the clerk of the State Bar Court that he has complied with the provisions of his disbarment.

The California State Bar was established in 1927 by the state’s legislature and is governed by 19 trustees. The State Bar Court added appointed full-time judges in 1989. Court documents for all State Bar Court of California cases can be located online at calbar.ca.gov. 

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