State Bar Court of California

Hearing Department

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

PRIVATE REPROVAL

Case Number(s): 06-o-12988-1

In the Matter of: Robert M. Conley, Bar # 127144, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Lee Ann Kern, Bar # 156623

Counsel for Respondent: Erica A. Tabachnick, Bar # 94324

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

Filed: January 9, 2007

  <<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 January 8, 1987.

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 9 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):

<<not>> checked. costs added to membership fee for calendar year following effective date of discipline (public reproval).

 checked. case ineligible for costs (private reproval).

<<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.

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.

 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.

<<not>> 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.

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 or a separate attachment entitled “Prior Discipline”. .

<<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.

 checked. (8)           No aggravating circumstances are involved.

Additional aggravating circumstances:

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

 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. 

<<not>> 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. 

<<not>> checked. (5) Restitution:  Respondent paid $  on  in restitution to  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.

<<not>> 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.

<<not>> 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: 

D. Discipline:

 checked. (1)           Private reproval (check applicable conditions, if any, below):

<<not>> checked. (a) Approved by the Court prior to initiation of the State Bar Court proceedings (no public disclosure).

 checked. (b)Approved by the Court after initiation of the State Bar Court proceedings (public disclosure).

or

<<not>> checked. (2) Public reproval (Check applicable conditions, if any below)

E. Conditions Attached to Reproval:

 checked. (1)           Respondent must comply with the conditions attached to the reproval for a period of one year.

 checked. (2)           During the condition period attached to the reproval, 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 the condition period.

<<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 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 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 State Bar Ethics School, and passage of the test given at the end of that session.

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

<<not>> 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) 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 within one year of the effective date of the reproval. 

 checked. No MPRE recommended.  Reason: Not required in this case for the protection of the public or the interests of the Respondent.  See In the Matter of Respondent G (Review Dept. 1992), 2 Cal. State Bar Ct. Rptr. 181.

<<not>> checked. (11) 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:

Within one year of the effective date of discipline here, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than 6 hours of Minimum Continuing Legal Education (MCLE) approved courses in stress management and/or anger management. 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).

ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

IN THE MATTER OF: ROBERT M. CONLEY

CASE NUMBER(S): 06-0-12988

FACTS AND CONCLUSIONS OF LAW.

Respondent admits that the following facts are true and that he is culpable of a violation of the specified Rule of Professional Conduct.

COUNT ONE : Rules of Professional Conduct, rule 5-320(D)

[Harassing or Embarrassing a Discharged Juror]

1. Respondent wilfully violated Rules of Professional Conduct, role 5-320(D), by asking questions of or making comments to a member of a jury, after discharge of the jury from further consideration of a case, that was intended to harass or embarrass the juror or to influence the juror’s actions in future jury service, as follows:

2. At all relevant times, Respondent was counsel for a defendant in a criminal case ("the criminal matter").

3. On or about April 7, 2006, the jury returned a guilty verdict against the defendant in the criminal matter. After the defendant was taken into custody, Respondent approached six jurors and the deputy district attorney ("the DA") who had been talking in a group in the hallway of the court house.

4. Respondent walked to the jurors and the DA and said words to the effect of, "I hope you realize what you have done. It is because of you that my client will get a life sentence."

5. The DA informed Respondent that Respondent’s actions were inappropriate and that the DA was going to get a deputy. Respondent then said words to the effect of, "I don’t care. Go get a deputy." Respondent then got on the elevator and left.

6. Immediately thereafter, the DA and the six jurors returned to the court room and informed the judge of Respondent’s actions. The six jurors were individually questioned in the presence of a court reporter. The jurors informed the court that Respondent’s actions caused them to feel uncomfortable. One juror told the court that she did not want to be a juror again.

7. LEGAL CONCLUSION: By expressing his dissatisfaction and anger at the jury’s guilty verdict following the criminal trial of his client, Respondent made comments to members of a jury, after discharge of the jury, that were intended to harass or embarrass the jurors or to influence the juror’s actions in future jury service, in wilful violation of rule 5-320(D), Rules of Professional Conduct.

PENDING PROCEEDINGS.

The disclosure date referred to, on page one, paragraph A.(7), was December 21, 2006.

AUTHORITIES SUPPORTING DISCIPLINE.

Standard 1.3 provides that the primary purposes of disciplinary proceedings are the protection of the public, the courts, and the legal profession; the maintenance of high professional standards by attorneys; and the preservation of public confidence in the legal profession.

Standard 2.10 provides that culpability of a member of a wilful violation of any Rules of Professional Conduct not specified in the standards shall result in reproval or suspension depending on the gravity of the offense or harm, if any, to the victim.

In the Matter of Respondent A (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 255, is the only State Bar case that speaks to rule 5-320, Rules of Professional Conduct. In that matter, the attorney represented the plaintiff in a civil matter. The jury returned a verdict in favor of the defendants and, in response, the attorney wrote a letter to the jurors to provide them with additional information regarding the case. The attorney testified that his motive in writing the letter was to "communicate and inform, not to harass or embarrass the jurors." Id., at p. 259.

The instant matter can be distinguished from Respondent A in that the Respondent’s intent was not to "communicate and inform" the jury. As such, the recommended discipline is just and reasonable and supported by both the standards and the case law.

SIGNATURE OF THE PARTIES

Case Number(s): 06-O-12988

In the Matter of: Robert M. Conley

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: Robert M. Conley

Date: 12-16-06

Respondent’s Counsel: Erica Tabachnick

Date: 12/19/06

Deputy Trial Counsel: Lee Ann Kern

Date: 12/21/06

ORDER

Case Number(s):  06-O-12988

In the Matter of: Robert M. Conley

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: 1-2-07

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 January 9, 2007, 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:

ERICA TABACHNICK

900 WlLSHIRE BLVD #1000

LOS ANGELES CA 90017

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

LEE ANN KERN, Enforcement, Los Angeles

I hereby certify that the foregoing is true and correct. Executed in Los Angeles , California, on January 9, 2007.

Signed by:

Angela Owens-Carpenter

Case Administrator

State Bar Court