State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

ACTUAL SUSPENSION

Case Number(s): 06-C-15279

In the Matter of: Carl K. Osborne, Bar # 42340, A Member of the State Bar of California, (Respondent)

Counsel For The State Bar: Melanie J. Lawrence, Bar # 230102

Counsel for Respondent: Arthur L. Margolis, Bar # 57703

Submitted to: Settlement Judge State Bar Court Clerk’s Office

Filed: March 5, 2008

<<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.

A.  Parties' Acknowledgments:

1. Respondent is a member of the State Bar of California, admitted June 19, 1968.

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):

 checked. until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 284, Rules of Procedure.

 <<not>>checked. costs to be paid in equal amounts prior to February 1 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.

B.       Aggravating Circumstances [for definition, see Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts supporting aggravating circumstances are required.

<<not>>checked. (1) Prior record of discipline [see standard 1.2(f)]

<<not>> checked. (a)          State Bar Court case # of prior case

 <<not>>checked. (b)          Date prior discipline effective

<<not>>checked. (c)            Rules of Professional Conduct/ State Bar Act violations:

<<not>>checked. (d)           Degree of prior discipline

 <<not>>checked. (e)          If Respondent has two or more incidents of prior discipline, use space provided below.

<<not>> checked. (2) Dishonesty:  Respondent's misconduct was surrounded by or followed by bad faith, dishonesty, concealment, overreaching or other violations of the State Bar Act or Rules of Professional Conduct.

 <<not>>checked. (3) Trust Violation:  Trust funds or property were involved and Respondent refused or was unable to account to the client or person who was the object of the misconduct for improper conduct toward said funds or property. 

<<not>>checked. (4) Harm:  Respondent's misconduct harmed significantly a client, the public or the administration of justice. 

<<not>> checked. (5) Indifference:  Respondent demonstrated indifference toward rectification of or atonement for the consequences of his or her misconduct.

<<not>> checked. (6) Lack of Cooperation:  Respondent displayed a lack of candor and cooperation to victims of his/her misconduct or to the State Bar during disciplinary investigation or proceedings. 

<<not>>checked. (7) Multiple/Pattern of Misconduct:  Respondent's current misconduct evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct.

 <<not>>checked. (8) No aggravating circumstances are involved.

Additional aggravating circumstances:

Respondent’s acts caused a delay in a police officer determining his true identity.

C.  Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating circumstances are required.

 <<not>>checked. (1)    No Prior Discipline:  Respondent has no prior record of discipline over many years of practice coupled with present misconduct which is not deemed serious.

<<not>>checked. (2)     No Harm:  Respondent did not harm the client or person who was the object of the misconduct.

checked. (3)                    Candor/Cooperation:  Respondent displayed spontaneous candor and cooperation with the victims of his/her misconduct and to the State Bar during disciplinary investigation and proceedings. 

<<not>>checked. (4)     Remorse:  Respondent promptly took objective steps spontaneously demonstrating remorse and recognition of the wrongdoing, which steps were designed to timely atone for any consequences of his/her misconduct. See page 8.

 <<not>>checked. (5)    Restitution:  Respondent paid $ in restitution to her client without the threat or force of disciplinary, civil or criminal proceedings.

<<not>> checked. (6)    Delay:  These disciplinary proceedings were excessively delayed.  The delay is not attributable to Respondent and the delay prejudiced him/her.

<<not>> checked. (7)    Good Faith:  Respondent acted in good faith.

<<not>>checked. (8)     Emotional/Physical Difficulties:  At the time of the stipulated act or acts of professional misconduct Respondent suffered extreme emotional difficulties or physical disabilities which expert testimony would establish was directly responsible for the misconduct.  The difficulties or disabilities were not the product of any illegal conduct by the member, such as illegal drug or substance abuse, and Respondent no longer suffers from such difficulties or disabilities.

<<not>>checked. (9)     Severe Financial Stress:  At the time of the misconduct, Respondent suffered from severe financial stress which resulted from circumstances not reasonably foreseeable or which were beyond his/her control and which were directly responsible for the misconduct.

checked. (10) Family Problems:  At the time of the misconduct, Respondent suffered extreme difficulties in his/her personal life which were other than emotional or physical in nature. In 2006, Respondent experienced family problems that contributed to his stress.

checked. (11) Good Character:  Respondent's good character is attested to by a wide range of references in the legal and general communities who are aware of the full extent of his/her misconduct. 

<<not>> checked. (12) Rehabilitation:  Considerable time has passed since the acts of professional misconduct occurred followed by convincing proof of subsequent rehabilitation.

<<not>> checked. (13) No mitigating circumstances are involved.

Additional mitigating circumstances: 

Respondent has no prior discipline in 40 years of practice.

D. Discipline:

checked. (1)           Stayed Suspension:

checked. (a) Respondent must be suspended from the practice of law for a period of one year.

<<not>> checked. i. and until Respondent shows proof satisfactory to the State Bar Court of rehabilitation and present fitness to practice and present learning and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney Sanctions for Professional Misconduct.

<<not>> checked. ii. and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.

<<not>> checked. iii. and until Respondent does the following:.

 checked. (b) The above-referenced suspension is stayed.

 checked. (2) Probation:  Respondent must be placed on probation for a period of one year, which will commence upon the effective date of the Supreme Court order in this matter.  (See rule 9.18, California Rules of Court.)

 checked. (3) Actual Suspension:

 checked. (a) Respondent must be actually suspended from the practice of law in the State of California for a period of 30 days.

<<not>> checked. i. and until Respondent shows proof satisfactory to the State Bar Court of rehabilitation and present fitness to practice and present learning and ability in the law pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct

<<not>> checked. ii. and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.

<<not>> checked. iii. and until Respondent does the following:

E. Additional Conditions of Probation:

<<not>> checked. (1) If Respondent is actually suspended for two years or more, he/she must remain actually suspended until  he/she proves to the State Bar Court his/her rehabilitation, fitness to practice, and learning and ability in the general law, pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct.

 checked. (2)                During the probation period, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

 checked. (3)                Within ten (10) days of any change, Respondent must report to the Membership Records Office of the State Bar and to the Office of Probation of the State Bar of California ("Office of Probation"), all changes of information, including current office address and telephone number, or other address for State Bar purposes, as prescribed by section 6002.1 of the Business and Professions Code.

 checked. (4)                Within thirty (30) days from the effective date of discipline, Respondent must contact the Office of Probation and schedule a meeting with Respondent's assigned probation deputy to discuss these terms and conditions of probation. Upon the direction of the Office of Probation, Respondent must meet with the probation deputy either in-person or by telephone. During the period of probation, Respondent must promptly meet with the probation deputy as directed and upon request.

 checked. (5)                Respondent must submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10 of the period of probation. Under penalty of perjury, Respondent must state whether Respondent has complied with the State Bar Act, the Rules of Professional Conduct, and all conditions of probation during the preceding calendar quarter. Respondent must also state whether there are any proceedings pending against him or her in the State Bar Court and if so, the case number and current status of that proceeding. If the first report would cover less than 30 days, that report must be submitted on the next quarter date, and cover the extended period.

In addition to all quarterly reports, a final report, containing the same information, is due no earlier than twenty (20) days before the last day of the period of probation and no later than the last day of probation.

<<not>> checked. (6) Respondent must be assigned a probation monitor. Respondent must promptly review the terms and conditions of probation with the probation monitor to establish a manner and schedule of compliance. During the period of probation, Respondent must furnish to the monitor such reports as may be requested, in addition to the quarterly reports required to be submitted to the Office of Probation. Respondent must cooperate fully with the probation monitor.

 checked. (7)                Subject to assertion of applicable privileges, Respondent must answer fully, promptly and truthfully any inquiries of the Office of Probation and any probation monitor assigned under these conditions which are directed to Respondent personally or in writing relating to whether Respondent is complying or has complied with the probation conditions.

 checked. (8)                Within one (1) year of the effective date of the discipline herein, Respondent must provide to the Office of Probation satisfactory proof of attendance at a session of the Ethics School, and passage of the test given at the end of that session.

<<not checked>> No Ethics School recommended.  Reason:

 checked. (9)                Respondent must comply with all conditions of probation imposed in the underlying criminal matter and must so declare under penalty of perjury in conjunction with any quarterly report to be filed with the Office of Probation.

 <<not>>checked. (10)        The following conditions are attached hereto and incorporated:

<<not>> checked. Substance Abuse Conditions.

 <<not>>checked. Law Office Management Conditions.

<<not>> checked. Medical Conditions.

 <<not>>checked. Financial Conditions.

F.   Other Conditions Negotiated by the Parties:

 checked. (1)               Multistate Professional Responsibility Examination:  Respondent must provide proof of passage of the Multistate Professional Responsibility Examination ("MPRE"), administered by the National Conference of Bar Examiners, to the Office of Probation during the period of actual suspension or within one year, whichever period is longer.  Failure to pass the MPRE results in actual suspension without further hearing until passage. But see rule 9.10(b), California Rules of Court, and rule 321 (a)(1) & (c), Rules of Procedure.

<<not>> checked. No MPRE recommended.  Reason:

<<not>> checked. (2)         Rule 9.20, California Rules of Court:  Respondent must comply with the requirements of rule 9.20, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.

<<not>> checked. (3)         Conditional Rule 9.20, California Rules of Court:  If Respondent remains actually suspended for 90 days or more, he/she must comply with the requirements of rule 9.20, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 120 and 130 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.

<<not>> checked. (4)         Credit for Interim Suspension [conviction referral cases only]:  Respondent will be credited for the period of his/her interim suspension toward the stipulated period of actual suspension. Date of commencement of interim suspension:

<<not>> checked. (5)         Other Conditions:

ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

IN THE MATTER OF: Carl K. Osborne

CASE NUMBER(S): 06-C-15279

A. PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING.

l. 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 August 24, 2007 Respondent was convicted of violating Vehicle Code section 31, Giving False Information to a Peace Officer in San Diego Superior Court, a misdemeanor.

3. On October 12, 2007, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department limited to whether the facts and circumstances surrounding the offenses involve moral turpitude or other misconduct warranting discipline.

4. On January 3, 2008, the Review Department of the State Bar Court issued an augmented order to include a hearing and decision recommending the discipline to be imposed in the event the Hearing Department finds that the facts and circumstances of Respondent’s offense involve moral turpitude or other misconduct warranting discipline.

B. 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/or Rules of Professional Conduct.

Facts:

5. On October 29, 2006, Respondent was a passenger in a vehicle driven by his son and which entered a gate to Qualcomm Stad.ium using a handicapped placard. The entrance was designated for entrance by special permit and handicapped persons only.

6. A police officer who was conducting a check of vehicles passing through that entrance stopped the vehicle to verify that the placard was being used properly. When the police officer asked who the placard belonged to, Respondent said that it was his. In fact, the placard belonged to his father-in-law.

7. Respondent was not carrying identification at the time of the officer’s inquiry. When the officer attempted to obtain Respondent’s name, Respondent gave the name of his father-in-law, to whom the placard was registered, and gave his own date of birth.

8. The officer conducted a check of the handicapped placard. He could not verify the information Respondent gave him.

9. The police officer showed Respondent a photo of the registered owner of the placard - Respondent’s father-in-law - and asked if the photo could be his father. Respondent told the officer that the person in the photo was not his father and that the placard was his.

10. The police officer issued a citation to Respondent in the name of his father-in-law for misuse of a handicapped placard. Respondent signed his father-in-law’s name to the citation.

11. Later, after the police officer returned to his office, he conducted additional inquiries and determined Respondent’s true identity.

Conclusions of Law

By knowingly giving a police officer false information and then, signing a citation with a false name he had given, Respondent committed acts of moral turpitude in violation of Business & Professions Code section 6106.

C. AUTHORITIES SUPPORTING DISCIPLINE.

Standards:

Standard 3.2 provides that conviction of a crime of moral turpitude, either inherently, or in the facts and circumstances surrounding the crime’s commission, shall result in disbarment, unless compelling mitigating circumstances clearly predominate. Even in those cases, the discipline shall not be less than a two-year actual suspension.

Case Law;

In Chadwick v. State Bar (1989) 49 Cal. 3d 103, an attorney was subject to discipline in an original proceedings arising from his misdemeanor conviction for violating federal statutes prohibiting insider trading. The attorney and another individual used material, non-public information to engage in insider trading, then agreed to lie and did lie to the Securities and Exchange Commission to conceal their crime, shortly after lying to the SEC, the attorney came forward to the SEC to reveal the truth. The Court said, Chadwick’s agreement was a "dishonest attempt to obstruct a lawful government investigation, and is the kind of dishonest or immoral act that the concept of moral turpitude contemplates.., to lie to the government also involved moral turpitude." (ld at 111.) Further, the Court said, "we would almost certainly disbar petitioner under most circumstances," (ld at 112.) But, the Court did not disbar Chadwick. Rather, the Court relied on compelling mitigating circumstances to impose one year actual suspension, Specifically, the Court found compelling that Chadwick had come forward to reveal his lie, that he was remorseful and recognized his wrongdoing, seven years had passed since his misconduct without any subsequent misconduct, he had no prior record of discipline, and good character evidence.

In In re Cooper (1971) 5 Cal.3d 256, an attorney was convicted on two counts of a federal grand jury indictment. In one count he was found to have obtained and used recorded grand jury testimony that had not yet been released from secrecy. On another he was guilty of obstructing the administration of justice by knowingly and wilfully making false statements to a court making an inquiry into the source of those transcripts. Cooper’s misconduct involved moral turpitude for which he was publically reproved.

AGGRAVATING CIRCUMSTANCES

Respondent’s misconduct caused the officer delay in determining his true identity.

MITIGATING CIRCUMSTANCES

Compelling mitigating circumstances which the State Bar has considered in deviating from the Standards include:

Respondent’s 40 years of practice with no prior discipline. (Standard 1.2(e)(i).)

Cooperation with the State Bar during these proceedings. (Standard 1.2(e)(v).)

 Recognition of and remorse for his misconduct. (Standard 1.2(e)(vii).)

An extraordinary demonstration of good character. (Standard 1.2(e)(v).)

D. COSTS OF DISCIPLINARY PROCEEDINGS.

Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of February 13, 2008, the costs in this matter are estimated at $1,636.00. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. 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.

SIGNATURE OF THE PARTIES

Case Number(s): 06-C-15279

In the Matter of: Carl K. Osborne

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: Carl K. Osborne

Date: Feb 29, 2008

Respondent’s Counsel: Arthur L. Margolis

Date: 2/29/8

Deputy Trial Counsel: Melanie J. Lawrence

Date: 3/3/08

ORDER

Case Number(s): 06-C-15279

In the Matter of: Carl K. Osborne

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.

<<not>> 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 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. Platel

Date: 03-05-08

CERTIFICATE OF SERVICE

[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 March 5, 2008, I deposited a true copy of the following document(s):

STIPULATION RE FACT, 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:

ARTHUR LEWIS MARGOLIS

MARGOLIS & MARGOLIS LLP

2000 RIVERSIDE DR

LOS ANGELES, CA 90039

 checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

Melanie J. Lawrence, Enforcement, Los Angeles

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 5, 2008.

Signed by:

Charles Nettles

Case Administrator

State Bar Court