State
Bar Court of California
Hearing
Department
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 07-C- 13115, 07-C-13116, and 07-C-13117
In the Matter of: Alan Kuerth Achen, Bar # 85832, A Member
of the State Bar of California, (Respondent)
Counsel For The State Bar: Christine A. Souhrada, Bar # 228256
Counsel for Respondent: Bar #
Submitted to: Assigned Judge State Bar Court Clerk’s Office
Los Angeles
Filed: March 8, 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 May 31, 1979.
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 10 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):
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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.
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costs to be paid in equal amounts prior to February 1 for the following
membership years: five billing cycles following the effective date of the
Supreme Court order. (hardship, special circumstances or other good cause per
rule 284, Rules of Procedure.)
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checked. costs waived in part as set forth in a separate attachment entitled
"Partial Waiver of Costs".
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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.
checked. (8) No aggravating circumstances are involved.
Additional aggravating circumstances:
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
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(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.
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(2) No Harm: Respondent did not harm the client or person who was the
object of the misconduct.
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(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.
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(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.
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(5) Restitution: Respondent paid $ in restitution to her client without the
threat or force of disciplinary, civil or criminal proceedings.
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checked. (6) Delay: These disciplinary proceedings were excessively
delayed. The delay is not attributable to Respondent and the delay prejudiced
him/her.
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checked. (7) Good Faith: Respondent acted in good faith.
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(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.
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(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.
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(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.
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(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.
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checked. (12) Rehabilitation: Considerable time has passed since the acts of
professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
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checked. (13) No mitigating circumstances are involved.
Additional
mitigating circumstances:
Respondent
has no prior record of discipline over nearly 29 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.
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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.
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following: .
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(b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on probation for a
period of two years, 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 90 days.
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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
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following:
E. Additional Conditions of Probation:
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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.
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(2) During the probation period, Respondent must comply with the
provisions of the State Bar Act and Rules of Professional Conduct.
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(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.
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(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.
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(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.
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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.
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(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:
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(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.
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(10) The following conditions are attached hereto and incorporated:
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:
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.
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:
SUBSTANCE
ABUSE CONDITIONS
Case Number(s): 07-C- 13115, 07-C-13116, 07-C-13117
(consolidated)
In the Matter of: Alan Achen
checked.
a. Respondent must
abstain from use of any alcoholic beverages, and shall not use or possess any
narcotics, dangerous or restricted drugs, controlled substances, marijuana, or
associated paraphernalia, except with a valid prescription.
checked. b. Respondent must attend at
least 4 meetings per month of:
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Alcoholics Anonymous
<<not>>
checked. Narcotics Anonymous
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checked. The Other Bar
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checked. Other program
As a
separate reporting requirement, Respondent must provide to the Office of
Probation satisfactory proof of attendance during each month, on or before the
tenth (10th) day of the following month, during the condition or probation
period.
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c. Respondent must
select a license medical laboratory approved by the Office of Probation.
Respondent must furnish to the laboratory blood and/or urine samples as may be
required to show that Respondent has abstained from alcohol and/or drugs. The
samples must be furnished to the laboratory in such a manner as may be
specified by the laboratory to ensure specimen integrity. Respondent must cause
the laboratory to provide to the Office of Probation, at the Respondent’s
expense, a screening report on or before the tenth day of each month of the
condition or probation period, containing an analysis of Respondent’s blood
and/or urine obtained not more than ten (10) days previously.
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d. Respondent must
maintain with the Office of Probation a current address and a current telephone
number at which Respondent can be reached. Respondent must return any call from
the Office of Probation concerning testing of Respondent’s
blood or urine within twelve (12) hours. For good cause, the Office of
Probation may require Respondent to deliver Respondent’s urine and/or blood
sample(s) for additional reports to the laboratory described above no later
than six hours after actual notice to Respondent that the Office of Probation
requires an additional screening report.
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e. Upon the request
of the Office of Probation, Respondent must provide the Office of Probation
with medical waivers and access to all of Respondent’s medical records.
Revocation of any medical waiver is a violation of this condition. Any medical
records obtained by the Office of Probation are confidential and no information
concerning them or their contents will be given to anyone except members of the
Office of Probation, Office of the Chief Trial Counsel, and the State Bar Court
who are directly involved with maintaining, enforcing or adjudicating this
condition.
Respondent
must report his compliance with section (a) on a quarterly basis.
ATTACHMENT
TO
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
in the Matter
of Alan Achen
Case nos.
07-C-13115, 07-C-13116, and 07-C-13117 (consolidated)
I. Facts
1. On June 7,
2005, Respondent violated Penal Code §647(f) (public intoxication), and was
subsequently convicted.
2. On August
14, 2005, Respondent violated Vehicle Code §23152(a) (driving under the
influence), and was subsequently convicted. Respondent had previously been
convicted of driving under the influence on May 15, 2004.
3. On
December 22, 2006, Respondent violated Penal Code § §422 (criminal threats) and
273.5(a) (corporal injury to spouse/cohabitant), and was subsequently
convicted. Like Respondent’s prior violations, the December 22, 2006 incident
involved Respondent’s use of alcohol. This incident also involved Respondent
wielding a knife, and later refusing to come out of his residence when ordered
to do so by police.
II.
Conclusions of Law
4. By
committing the above-described Penal Code and Vehicle Code violations,
Respondent engaged in misconduct warranting discipline.
III.
Supporting Authority
Precedent
directs a period of actual suspension be imposed. Although no case involves all
of the elements of the present matter, it is analogous to In the Matter of Cart
(Rev. Dept. 1992) 2 Cal. State Bar Ct. Rptr. 108 [Attorney actually suspended
for six months after multiple drunk driving convictions, with circumstances
that involved threats to peace and safety and confrontations with law
enforcement officers]; In the Matter of Anderson (Rev. Dept. 1992) 2 Cal. State
Bar Ct. Rptr. 208 [Attorney actually suspended for 60 days after convictions of
multiple separate instances of drunk driving]; In the Matter of Stewart (Rev.
Dept. 1994) 3 Cal. State Bar Ct. Rptr. 52 [Attorney actually suspended for 60
days after conviction of battery upon a police officer]; and In Re Otto (1989)
48 Cal. 3d 970 [Attorney actually suspended for six months after conviction of
felony assault by means likely to produce great bodily injury and infliction of
injury on a cohabitant of the opposite sex].
Also see ln
Re Kelley (1990) 52 Cal. 3d 487 [A second DUI offense which does not involve
the practice of law warrants discipline because of the potential impact on the
attorney’s practice.]
IV. Estimate
of Costs of Disciplinary Proceedings
Respondent
acknowledges that the Office of the Chief Trial Counsel has informed Respondent
that as of February 26, 2008, the estimated prosecution costs in this matter
are approximately $4,908.00. Respondent acknowledges that this figure is an
estimate only. 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): 07-C-13115, 07-C-13116, 07-C-13117
(consolidated)
In the Matter of: Alan Achen
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: Alan
Achen
Date: 2-28-08
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Christine Souhrada
Date: 3/3/08
ORDER
Case Number(s): 07-C-13115, 07-C-13116, 07-C-13117
(consolidated)
In the Matter of: Alan Achen
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.
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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 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: 03-04-08
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 6, 2008, 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:
ALAN KUERTH
ACHEN
7041
COLDWATER CYN AVE APT 2
NORTH
HOLLYWOOD CA 91605
checked.
by interoffice mail through a facility regularly maintained by the State Bar of
California addressed as follows:
CHRISTINE
SOUHRADA, Enforcement, Los Angeles
I hereby
certify that the foregoing is true and correct. Executed in Los Angeles,
California, on March 6, 2008.
Signed by:
Angela
Owens-Carpenter
Case
Administrator
State Bar
Court