Case Number(s): 03-O-02625; 05-O-04499
In the Matter of: Matthew P. Fletcher, Bar # 189923, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Gordon L. Grenier, Bar # 225430
Counsel for Respondent: Michael G. Gerner, Bar # 65906
Submitted to: settlement judge State Bar Court Clerk’s Office Los Angeles
Filed: July 19, 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 October 14, 1997.
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 and order consist of 15 pages.
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 added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. case ineligible for costs (private reproval).
<<not>> checked. costs to be paid in equal amounts for the following membership years: (hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
Respondent has no prior record of discipline in over 8 years of practice.
Respondent has displayed candor and cooperation with the State Bar during the disciplinary investigation and proceedings.
Case Number(s): 03-O-02625, 05-O-04499
In the Matter of: Matthew P. Fletcher
checked. a. Within 30 days/ months/ 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/ 9 months/ 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.)
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 1 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.
IN THE MATTER OF: MATTHEW P. FLETCHER
CASE NUMBER(S): 03-0-02625, 05-0-04499
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 Rules of Professional conduct.
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notices of Disciplinary Charges filed on November 22, 2005 and April 27, 2006, and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended NDC.
Case No. 03-0-02625
Statement of Facts:
1. From May 21 through June 18, 2002, Respondent represented the defendant at the jury trial of People v. Figueroa, Los Angeles Superior Court Case No. NA 033661 ("the Figueroa trial"), a criminal ease over which the Honorable Mark Kim ("Judge Kim") presided. During the course of this trial, Respondent engaged in the following conduct.
2. On May 24, 2002, Judge Kim ordered Respondent to disclose certain reports to the District Attorney. Respondent reacted by tossing the papers to the Deputy District Attorney.
3. On May 30, 2002, Respondent laughed in open court after Judge Kim made an unfavorable ruling. Judge Kim then admonished Respondent for laughing and failing to show respect to the court. Respondent then questioned whether he could laugh at home, in the hallway, or if someone made a joke. Respondent went on to tell Judge Kim, "I have no idea where you think that you have the basis to tell me that I cannot laugh" and that "if something is laughable, I can laugh."
4. On May 30, 2002, Respondent asked for a mistrial, stating that Judge Kim was "clearly prejudiced" and did not "have a firm enough grasp of the right to confront and cross-examination hearsay to handle this matter."
5. On May 30, 2002, Judge Kim made a ruling on an evidentiary objection. Respondent voiced his disagreement with the Judge Kim’s ruling. Judge Kim advised Respondent that the record was clear for the purposes of appeal and that Respondent could add to his record at the break. Judge Kim then ordered that the jury be brought back into the courtroom. Respondent, however, continued to make his record while the jury was reentering the courtroom, asserting that "the court is making rulings that are racially motivated against [him] or the defendant." Respondent had no reasonable basis to substantiate his claim of racial prejudice.
6. On May 30, 2002, Respondent told Judge Kim that he did not have the right to instruct Respondent not to laugh and not to speak in front of the jury. Respondent told Judge Kim that he was racially motivated or biased against Respondent and/or his client. Respondent had no reasonable basis to substantiate his claim of racial prejudice.
7. On May 30, 2002, Respondent again addressed Judge Kim’s admonishment that he not laugh. Judge Kim reminded Respondent that he laughed out loud, to which Respondent replied, "I thought it was funny." Respondent then questioned Judge Kim as to what would happen if he had an involuntary motion to itch. Judge Kim reiterated his warning that Respondent would be sanctioned if he laughed in open court and Respondent responded that it would "be on the appeals board tomorrow."
8. On May 31, 2002, Respondent argued that Judge Kim "has absolutely no logic" and clearly doesn’t understand the purpose of refreshing recollection.
9. On June 10, 2002, Respondent objected to one of Judge Kim’s rulings by stating that Judge Kim’s "reasoning has defied [Respondent] from day one." Judge Kim then told Respondent, "All right. Mr. Fletcher, you made your argument." Respondent replied by stating, "No, I haven’t made my record."
10. At the completion of the Figueroa trial, Respondent’s client, Mr. Figueroa, was acquitted by the jury.
11. Respondent’s conduct during the Figueroa trial resulted in a contempt hearing, Fletcher v. the Superior Court of Los Angeles County, Case No. B164256 ("the contempt hearing"). The contempt hearing was originally intended to address a single allegation of contempt involving an improper comment Respondent allegedly made before the jury.
12, The Honorable John Lord ("Judge Lord") presided over the contempt hearing, After reviewing the record, Judge Lord filed a "Statement of Facts" alleging ten acts of contempt occurring during the Figueroa trial.
13. At the conclusion of the contempt hearing, Judge Lord found that Respondent had engaged in nine out of the ten acts of contempt, Judge Lord sentenced Respondent to a two-day jail term and a fine of $400 on two of the counts and gave him three years probation on the remaining counts. One of the conditions of probation required Respondent to notify all courts of his probationary status.
14. On January 16, 2003, Respondent filed a petition for review. On June 19, 2003, the Court of Appeal denied Respondent’s petition on eight out of the nine counts of contempt. Respondent was not found culpable of the original allegation of contempt involving making an improper comment before the jury.
Conclusions of Law:
15. By the foregoing conduct, Respondent failed to maintain the respect due to the courts and judicial officers in violation of Business and Professions Code section 6068(b),
Case No. 05-0-04499
Statement of Facts:
16. In March 2005, Respondent represented the defendant in the criminal ease entitled People v. Andaliwa A. Andrus, Los Angeles Superior Court Case No. BA 260824 (the Andrus matter).
17. On February 24, 2005, Respondent and the Office of the Los Angeles District Attorney stipulated that the Andrus matter would be set for jury trial on March 2, 2005, at 8:30 a.m., before Judge David S. Wesley ("Judge Wesley").
18. On March 2, 2005, at about 8:50 a.m., the Andrus matter was called for trial. The deputy district attorney was present. Respondent was not present and had not contacted the court.
19. The deputy district attorney was released from the courtroom until 9:45 a.m. Respondent appeared at about 9:35 a.m., at which time the court inquired as to the reason for his late arrival and why he did not call. Respondent stated he had a family matter to attend to and had asked his secretary and his paralegal to call the court.
20. The court informed Respondent that it was considering sanctions for his failure to timely appear and told Respondent to be seated. At that time, Respondent stated, "I’m going to ask the record to note the court is pointing its finger at me and raising its voice."
21. The court then requested a further explanation from Respondent for his late arrival. In response, Respondent requested that the court recuse itself under CCP 170.3. Respondent stated, "The court has shown a clear bias." He further stated, "Record should note an African-American [Respondent] being ordered by a Caucasian-American [Judge Wesley], that I cannot leave the room. I find it to be reprehensible." Respondent had no reasonable basis to substantiate his claim of racial prejudice. The court denied Respondent’s motion to recuse.
22. When the court denied Respondent’s motion to recuse, Respondent requested counsel. When Respondent’s request for counsel was denied, Respondent refused to provide further explanation for his late arrival. The court ordered money sanctions pursuant to 177.5 of the Code of Civil Procedure, in the amount of $1,000.
Conclusion of Law:
23. By the foregoing conduct, Respondent failed to maintain the respect due to the courts and judicial officers in violation of Business and Professions Code section 6068(b).
MITIGATING CIRCUMSTANCES
No Prior Record of Discipline
Respondent has no prior record of discipline in eight years of practice.
Candor and Cooperation with the State Bar
Respondent has displayed candor and cooperation with the State Bar during the disciplinary investigation and proceedings.
Good Character References
Respondent’s good character has been attested to by a range of practicing attorneys. These letters attest to Respondent’s good character before and after he began practicing law.
AUTHORITIES SUPPORTING DISCIPLINE
Standard 2.6(b) provides that culpability of a member of violation of Business and Professions Code section 6068 shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, with due regard for the purposes of imposing discipline set forth in Standard 1.3.
In Hogan v. State Bar of California (1951) 36 Cal. 2d 807, the respondent, in an amended motion for new trial, charged the judge with being a "petty judge" who was prejudiced against the respondent’s client and certain witnesses. Id. at 808. Later the respondent sent a letter to the State Bar in which he made more disparaging remarks about the judge. The respondent was actually suspended for three months.
In Ramirez v. State Bar of California (1980) 28 Cal.3d 402, the California Supreme Court considered the situation where a respondent falsely maligned certain Third District Court of Appeal justices in court papers. In the respondent’s pleadings he claimed that the justices acted unlawfully and illegally and had become "parties to the theft" of property belonging to respondent’s clients, ld. at 404. In later pleadings the respondent implied that the justices had falsified the record and suggested that the justices’ unblemished records were undeserved. The respondent had no prior record of discipline and had been practicing for approximately twenty-five years. The respondent received a one-year suspension, stayed, with 30-days actual, and a one-year period of probation.
In Standing Committee on Discipline v. Yagman (1995) 55 F.3d 1430, the attorney wrote in the Daily Journal that Judge Keller was anti-Semitic and had a penchant for sanctioning Jewish attorneys. Ninth Circuit Court of Appeals found that the attorney’s comments were protected speech because they were presented as an inference drawn from facts. Additionally, had the comments not been protected, the court held that the Standing Committee would have the burden of proving the comments were false.
In In the Matter of Anderson (1997) 3 Cal. State Bat" Ct. Rptr. 775, the respondent made a total of 116 derogatory statements about the Orange County Superior Court and its judicial officers in 17 pleadings during a three year period. The Review Department found that the State Bar had the burden of proving the respondent’s statements were false and remanded the matter back to the hearing department.
MPRE WAIVER.
Respondent will not be required to take and pass the MPRE. Respondent has acknowledged the wrongfulness of his misconduct and has voiced remorse. Based upon the circumstances of the instant ease, it does not appear that the interests of the public or the Respondent will be served by taking the MPRE. (See In the Matter of Respondent G (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 175.) Instead, the interests of the public and the Respondent are more effectively served by the requirement that he complete anger management counseling. (See page 6 of the stipulation.)
DISMISSALS
The State Bar requests the Court dismiss the following in the interest of justice:
Case no. 05-0-04499, Count Two.
SIGNATURE OF THE PARTIES
Case Number(s): 03-O-02625, 05-O-04499
In the Matter of: Matthew P. Fletcher
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: Matthew P. Fletcher
Date: June 28, 06
Respondent’s Counsel: Michael G. Gerner
Date: 6-29-06
Deputy Trial Counsel: Gordon L. Grenier
Date: June 10, 2006
Case Number(s): 03-O-02625, 05-O-04499
In the Matter of: Matthew P. Fletcher
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department 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 125(b), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 7/17/06
[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 July 19, 2006, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING PUBLIC REPROVAL
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:
MICHAEL GALEN GERNER
MICHAEL G GERNER, A PROF LAW CORP
10100 SANTA MONICA BLVD #300
LOS ANGELES, CA 90067
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
GORDON L. GRENIER, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on July 19, 2006.
Signed by:
Tammy R. Cleaver
Case Administrator
State Bar Court