Case Number(s): 06-C-12596
In the Matter of: David Joseph Scharf, Bar # 170083, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kimberly J. Belvedere, State Bar of California
Office of the Chief Trial Counsel
1149 S. Hill St.
Los Angeles, CA 90015
(213) 765-1162
Bar # 521334,
Counsel for Respondent: In Pro Per Respondent
Lloyd L. Freeberg
Chapman Law Building
1953 East Chapman Ave.
Fullerton, CA 92831
(714)526-3030
Bar # 57046
Submitted to: Settle Judge – State Bar Court Clerk’s Office 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 May 2, 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 13 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. 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.
<<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.
IN THE MATTER OF: DAVID JOSEPH SCHARF, State Bar No. 170083
STATE BAR COURT CASE NUMBER: 06-C-12596
FACTS AND CONCLUSIONS OF LAW
Respondent admits that the following facts are true; that he is culpable of the violations of the specified statutes and Rules of Professional Conduct; and that the misconduct involved moral turpitude or other misconduct warranting discipline:
Procedural Background of Conviction Proceeding
1. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 9.10 of the California Rules of Court.
2. On July 21, 2009, Respondent was convicted violating Penal Code section 646.9(a) [stalking], a felony; Penal Code section 653(m)(a) [harassing phone calls], a misdemeanor; and Penal Code section 273.6(a) [violation of a protective order], a misdemeanor.
3. On July 29, 2010, the State Bar filed a Motion for Summary Disbarment with the Review Department of the State Bar Court ("Review Department"). Following one request for additional time in which to file a response, Respondent filed an Opposition to the State Bar’s Motion for Summary Disbarment on September 7, 2010.
4. After a determination from the Review Department that a conviction of Penal Code section 646.9(a) was not a crime which inherently involves moral turpitude, on September 10, 2010, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department on the following issues: for a hearing and decision recommending the discipline to be imposed in the event that the Hearing Department finds that the facts and circumstances surrounding the violation of Penal Code section 646.9(a) involved moral turpitude or other misconduct warranting discipline.
Statement of Facts
5. Respondent and the victim met in or about March 2004 through an internet dating site. Respondent and the victim dated for approximately four months thereafter.
6. On July 26, 2004, the victim ended the dating relationship via e-mail.
7. On July 31, the victim received an e-mail from Respondent accusing her of being involved in the adult film industry. On August 3, 2004, the victim responded to Respondent’s e-mail and told him that she was not comfortable seeing him in person because she did not feel safe because of the nature of his e-mail.
8. Respondent again contacted the victim via e-mail prior to August 6, 2004, and although there were no direct threats made against the victim, the tone of the e-mail led the victim to construe the e-mail as a credible threat of physical harm. The victim responded to the e-mail and told Respondent not to contact her unless it related to picking up his belongings.
9. On September 2, 2004, Respondent e-mailed the victim again despite her request not to contact her, and asked her to meet him in a public place. The victim did not respond.
10. On September 17, 2004, Respondent sent the victim an e-mail, telling her that he was not going to let her walk away from his love. The victim did not respond.
11. On or about September 19, 2004, the victim received another e-mail from Respondent which the victim construed as a credible threat that she was going to suffer physical harm. The victim did not respond.
12. On September 20, 2004, Respondent sent the victim another e-mail accusing the victim of secretly videotaping their intimate relations. In yet another e-mail that same day, Respondent told the victim, "be at my house at noon tomorrow if you want to do the right thing. There will be no second chance." Although there were no direct threats, the tone of these collective e-mails caused the victim to construe the statements as a credible threat. The victim did not respond to the e-mails.
13. The victim left California on or about September 21, 2004. Her house remained vacant, and all of her personal belongings were packed in boxes.
14. On September 23, 2004, Respondent sent the victim another e-mail telling her that her "problem is therefore ’meant to be’ prosecution for the deliberate victimization of [Respondent]," and that her "callous disregard of [Respondent] evidences a remorselessness which makes [her] a danger to others." Respondent attached a photograph of an adult man and a woman engaged in sex acts. The victim did not respond.
15. Respondent sent the victim two additional e-mails on September 23, 2004, and in one, again professed his love for her. The victim did not respond.
16. On September 24, 2004, Respondent sent another e-mail to the victim. Respondent did not respond.
17. On September 26, 2004, Respondent entered the victim’s vacant home through the garage using the access code that the victim had given him during their dating relationship. Respondent rifled through boxes of the victim’s personal belongings. Respondent left gifts for the victim’s sons on the counter in the kitchen, as well as a photocopy of a page from the California Penal Code covering the laws of arrest. Respondent then contacted the victim via telephone and left a voice mail indicating that he had accessed her home. Respondent claimed that he had merely gone to the residence to retrieve some of his personal belongings.
18. On September 29, 2004, the victim obtained a temporary restraining order ("protective order") protecting her from Respondent. Respondent was properly served with the protective order on September 30, 2004.
19. On October 20, 2004, Respondent violated the September 29, 2004 protective order by attempting to contact her through an e-mail to the victim’s mother.
20. Due to the fact that Respondent was also a Deputy Public Defender for the Orange County Public Defender’s Office, the victim believed that Respondent was going to possibly use his knowledge to cause legal harm to her. This further disturbed the victim because she had not done anything wrong.
21. On June 15, 2006, a five-count indictment was filed against Respondent in Orange County Superior Court Case No. 06Z0130, charging the following violations: Count One (Penal Code section 646.9(a) [stalking], a felony); Counts two and three (Penal Code section 653(m)(a) [harassing phone calls], misdemeanors); and Counts Four and Five (Penal Code section 273.6(a) [violations of protective orders], misdemeanors).
22. On April 30, 2008, following a trial in which Respondent represented himself, a jury found Respondent guilty of Count One (Penal Code section 646.9(a) [stalking], a felony); Count two (Penal Code section 653(m)(a) [harassing phone calls], a misdemeanor); and Count Five (Penal Code section 273.6(a) [violation of a protective order], a misdemeanor).
23. On August l, 2008, Respondent was sentenced to ninety-five days in jail with credit for time served; five years of formal probation; compliance with a protective order to remain in effect for ten years; completion of a batterer’s treatment program; completion of a twelve month residential treatment program; 8 hours of community service; and payment of various fees, fines, and restitution to the victim.
24. On October 22, 2010, following a motion by the defense pursuant to Penal Code 17(b), the trial judge granted the motion and reduced Count One (Penal Code section 646.9(a) [stalking]) to a misdemeanor, based in part on Respondent’s participation in substance abuse counseling; successful completion of domestic violence training; and payment of all fees, fines, and restitution.
Conclusions of Law
25. The facts and circumstances surrounding Respondent’s conviction of Penal Code § 646.9(a) involve moral turpitude.
26. The facts and circumstances of Respondent’s misdemeanor convictions of Penal Code §653(m)(a) [harassing phone calls] and 273.6(a) [violation of a protective order] constitute willful violations of Business and Professions Code sections 6068(a) [not supporting the laws of this state] and 6103 [disobedience of a court order].
AGGRAVATING CIRCUMSTANCES
Harm [Standard 1.2(b)(iv)]. Respondent’s misconduct, which included e-mails, phone calls, and contact with the victim and the victim’s mother in violation of a properly served restraining order, caused significant emotional harm to the victim due to the sustained harassment that occurred over a period of approximately two and a half months.
MITIGATING CIRCUMSTANCES
Family Problems. At the time of the misconduct, Respondent was working as a Deputy Public Defender for the Orange County Public Defender’s Office. Respondent reports that his wife felt neglected as a result of his work schedule, which led to their separation in 2002, and divorce in 2004. Respondent had been married since 1986, and had one daughter.
ADDITIONAL MITIGATING CIRCUMSTANCES
Candor/Cooperation. Respondent made arrangements to obtain and promptly provided the State Bar with all requested information in order to evaluate this case for settlement (i.e. trial exhibits, probation reports, letters of progress from various treatment programs, a forensic psychological examination, and the Reporter’s Transcript from a hearing before the sentencing judge regarding the reduction of Respondent’s felony stalking conviction to a misdemeanor). Respondent’s willingness to enter into a stipulation also evidences a level of cooperation with the State Bar that is entitled to mitigation.
No prior discipline. Although the misconduct is serious, at the time the misconduct, Respondent had been practicing law for over ten years without any impositions of discipline.
Extreme Emotional Difficulties. As a result of the breakup of his marriage in 2004, Respondent reports that he was suffering from clinical depression and extreme emotional pain, which exascerbated his alcoholism and substance abuse addictions.
Other additional mitigating circumstances. At the time of his conviction, Respondent was abusing the drug methamphetamine, as well as alcohol. Respondent reports a sobriety date of June 6, 2008 and maintains that he has remained clean and sober since that time. Dr. James Gruver, Ph.D, evaluated Respondent on July 2008, and concluded that substance abuse played a role in Respondent’s conduct that formed the basis for his conviction. According to Dr. Gruver, as long as the Respondent remains clean and sober, he does not pose a threat to anyone.
Respondent was admitted to the Joshua House Residential Treatment Program on December 11, 2008, and successfully completed the 236 day substance abuse treatment program on August 4, 2009. This residential program required random drug tests every 72 hours, daily alcohol testing, weekly group therapy, individual therapy, counseling sessions, and daily attendance in Alcohol Anonymous 12-Step Program. During the pendency of the program, Respondent did not test positive for any controlled substance.
Respondent, as a condition of his probation, successfully completed a 52 week Batterer’s Treatment Program on May 11, 2010.
Respondent provided documentation to the State Bar evidencing voluntary attendance at the 12-Step program meetings of "The Other Bar" at least twice a week for the months of August 2010; September, 2010; October 2010; and November, 2010. In several letters dated in December 2010 from other program participants, each reference attests to Respondent’s regular attendance at the program meetings and notes Respondent’s active participation in each meeting.
Respondent submitted more than thirty letters of reference from a members of the Bar and general community, as well a copy of the court transcript containing comments from the trial judge in post-conviction proceedings, supporting Respondent’ s return to the practice of law as a valued member of the legal community.
Respondent self-reports that he continues to engage in efforts to remain clean and sober from drugs and alcohol by attending meetings of "The Other Bar" and "Alcoholics Anonymous." Respondent reports that he sponsors other attorneys in Alcoholics Anonymous, and is the group leader for the Orange County Thursday night meetings of "The Other Bar."
AUTHORITIES SUPPORTING DISCIPLINE
Standards
Standard 1.6. The appropriate sanction shall be the sanction imposed unless: (i) Aggravating circumstances are found to surround the particular act of misconduct found or acknowledged and the net effect of those aggravating circumstances, by themselves and in balance with any mitigating circumstances found, demonstrates that a greater degree of sanction is required to fulfill the purposes of imposing sanctions set forth in standard 1.3. In that case, a greater degree of discipline than the appropriate sanction shall be imposed or recommended; or (ii) Mitigating circumstances are found to surround the particular act of misconduct found or acknowledged and the net effect of those mitigating circumstances, by themselves and in balance with any aggravating circumstances found, demonstrates that the purposes of imposing sanctions set forth in standard 1.3 will be properly fulfilled if a lesser degree of sanction is imposed. In that case, a lesser degree of sanction than the appropriate sanction shall be imposed or recommended.
Standard 2.6. Culpability of a member of a violation of sections 6068 and 6103 of the Business and Professions Code shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in Standard 1.3.
Standard 3.2. Final conviction of a member of a crime which involves moral turpitude, either inherently or in the facts and circumstances surrounding the crime’s commission shall result in disbarment. Only if the most compelling mitigating circumstances clearly predominate, shall disbarment not be imposed. In those latter cases, the discipline shall not be less than a two-year actual suspension, prospective to any interim suspension imposed, irrespective of mitigating circumstances.
Standard 3.4. Final conviction of a member of a crime which does not involve moral turpitude inherently or in the facts and circumstances surrounding the crime’s commission but which does involve other misconduct warranting discipline shall result in a sanction as prescribed under part B of the Standards appropriate to the nature and extent of the misconduct found to have been committed by the member.
Case Law
Respondent’s conviction and the record of his conviction is conclusive evidence of the guilt of the crime for which he has been convicted. (Bus. and Prof. Code section 6106; In re Crooks (1990) 51 Cal.3d 1090, 1097.)
In the Matter of Torres (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 138, 147 [holding that numerous phone calls to client resulting in harassment and intentional infliction of emotional distress constituted acts of moral turpitude, warranting the imposition of five years actual suspension due to the presence of substantial aggravating circumstances and little evidence in mitigation].
PENDING PROCEEDINGS
The disclosure date referred to on page 2, paragraph A(7), was January 26, 2011.
ESTIMATED COSTS OF PROCEEDINGS TO DATE
Respondent acknowledges that the Office of Chief Trial Counsel has informed him that, as of January 26, 2011, the prosecution costs in this matter are estimated to be $4,906.00. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase.
Case Number(s): 06-C-12596
In the Matter of: DAVID JOSEPH SCHARF; State Bar No.: 170083
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: David J. Scharf
Date: January 31, 2011
Respondent’s Counsel: Lloyd L. Freeberg
Date: February 27, 2011
Deputy Trial Counsel:Kimberly J. Belvedere
Date: February 27, 2011
Case Number(s): 06-C-12596
In the Matter of: DAVID JOSEPH SCHARF; State Bar No.: 170083
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.
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 5.58 (E) & (F), 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: February 9, 2011
[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 February 10, 2011, 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:
LLOYD LEO FREEBERG, JR.
CHAPMAN LAW BLDG
1953 E. CHAPMAN AVE
FULLERTON, CA 92831
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Kimberly J. Belvedere, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 10, 2011.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court