Case Number(s): 07-C-13677-PEM
In the Matter of: Leslie B. Morrison, Bar # 178750, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Sherrie B. McLetchie, Bar # 85447
Counsel for Respondent: Kathleen M. Ewins, Bar # 154365
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
Filed: September 24, 2009
<<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 December 7, 1995.
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. 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 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.
<<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.
Absent unusual and serious facts and circumstances surrounding an attorney’s first time DUI conviction, such convictions are not transmitted to the State Bar Court. In this case, the unusual and serious circumstances included the presence of two minor children in respondent’s car when she rear-ended the Yukon, her continued driving for a few blocks after the accident, and, that respondent’s blood alcohol level tested at or about twice the legal limit.
See “Facts Supporting Mitigating Circumstances.”
If respondent’s terms of probation change in the underlying criminal case, respondent shall serve a copy of the written order making said change on the Office of Probation within 5 days of any such change.
Facts
Basis for Conviction
On May 13, 2007, after 11:00 p.m., respondent was driving with two 10-year-old children (her child and a friend) in her car when she rear-ended a Yukon stopped at a red light. The Yukon sustained damage to the paint on its rear bumper, for which respondent’s insurance company eventually paid $135. Respondent did not see the Yukon pull over after the collision and, therefore, she continued on her way for approximately three city blocks until the Yukon pulled up next to her. Respondent admitted to police - who had been called to the scene by a cell phone call from a passenger in the Yukon -- that she had been drinking alcohol and consented to a field sobriety test. The first Intoxilyzer test indicated a blood alcohol level of 0.16. A second test a minute later showed a 0.15. Thereafter, respondent consented to a blood test, and that test indicated a blood alcohol level of 0.14.
Respondent was arrested, and, on May 17, 2007, charged with violation of Vehicle Code sections 23152(b), 23152(a), and 20002(a).
On July 3, 2007, respondent pled to a misdemeanor violation of Vehicle Code section 23152(b), and the other charges were dismissed. At sentencing on August 29, 2007, respondent was given credit for one day in jail, and sentenced to 60 months probation on conditions including:(1) two days work in the Sheriff’s work program; (2) attendance at Level I DUI school; (3) payment of a $1,815 fine; (4) good conduct and obeyance of all laws; (5) report of any address change to the Court; and (6) refraining from driving any motor vehicle unless lawfully licensed and insured.
Brief Procedural History
On September 27, 2007, the State Bar transmitted to the State Bar Court Review Department evidence of respondent’s conviction, identifying Vehicle Code section 23152(b) as a crime "that may or may not involve moral turpitude or other misconduct warranting discipline."
By order filed October 12, 2007, the Review Department referred this case to the Hearing Department directing in pertinent part that "[T]he Hearing Department of the State Bar Court shall, after a hearing, file a decision limited to whether the facts and circumstances surrounding the offense involved moral turpitude or other misconduct warranting discipline."
On October 18, 2007, after receiving the State Bar’s transmittal of evidence of finality of the conviction, the Review Department augmented it previous order "to include 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 offense of which LESLIE B. MORRISON was convicted involved moral turpitude or other misconduct warranting discipline."
Conclusions of Law
The facts and circumstances surrounding respondent’s violation of Vehicle Code section 23152(b) did not involve moral turpitude. However, the facts and circumstances surrounding the offense amount to a failure by respondent to support the laws of this state in violation of subdivision (a) of Business and Professions Code section 6068, thereby warranting discipline.
Pending Proceedings
The disclosure date referred to on page one, paragraph A. (7) was September 2, 2009.
Facts Supporting Mitigating Circumstances
No Prior Discipline
Respondent has no prior disciplinary or arrest record.
Candor/Cooperation
Respondent has fully cooperated with the State Bar throughout the course of this conviction referral proceeding. On September 12, 2007, respondent, through her DUI counsel, voluntarily informed the State Bar that respondent pled to a violation of Vehicle Code section 23152(b) on August 29, 2007. Respondent has cooperated by entering into this stipulation with the Office of the Chief Trial Counsel to resolve this matter.
Remorse
Respondent began attending Alcoholics Anonymous ("AA") meetings almost immediately after her arrest, embraces AA, and has faithfully continued to attend since long after having completed court requirements that she do so. To prevent another lapse in judgment from ever occurring, she is committed to never drinking again.
Respondent completed everything the court required of her, and more. She completed all court-ordered programs far earlier than necessary and, as stated above, continues to participate after completion.
In addition, respondent recognized the impact of her mistake in her professional life and acted accordingly. Within days of her arrest, respondent advised the Executive Director of Disability Rights California, Catherine Blakemore, who is her direct supervisor, of her DUI. Respondent has been upfront with other colleagues about her DUI. Respondent also reported her arrest and conviction to the California Board of Registered Nursing, of which she is a member, on September 12, 2007.
Good Character
Respondent provided letters of support to the State Bar as summarized below:
1. Kim Beban
Ms. Kim Beban is the mother of the child who was in the car at the time of respondent’s arrest. Her letter to the State Bar Court expresses that she and her daughter were angry and disappointed at the time of the incident. She also said that her strongest feeling was "...shock because [respondent] is one the last people I would have ever expected to behave that way."
Though Ms. Beban has spent a significant amount of time with respondent, she has never seen any indication that she is anything other than a responsible parent and person. Ms. Beban describes the event as "...an isolated incident and not at all typical of [respondent] or reflective of a pattern of problem drinking." She further now states that she allows her daughter to spend the night at respondent’s home even after what transpired on May 13, 2007.
2. Catherine Blakemore
Catherine Blakemore is the Executive Director of Disability Rights California ("DRC"), formerly Protection and Advocacy, Inc. ("PAl"), has known respondent for the last twelve years, and been her supervisor for the last seven. Ms. Blakemore states that respondent is "recognized both in California and nationally as an expert on the abuse and neglect of individuals with disabilities."
Though Ms. Blakemore appreciates the seriousness of the charges at issue, she states that they are "completely inconsistent with Respondent’s conduct in the office or her work on behalf of DRC’s clients." She has never observed respondent to exhibit symptoms of substance abuse. Ms. Blakemore describes respondent as an "extraordinary parent who has consistently acted in both her daughter’s and stepdaughter’s best interest." She believes that respondent’s DUI with her daughter in the car was "...a onetime error in judgment is not reflective of [her] observations of Respondent’s interactions with her child."
3. Kim Swain
Kim Swain is the Managing Attorney in DRC’s Oakland office, and has known respondent for nine years. Ms. Swain describes respondent as a leader who is responsible, dependable and someone she can always count on. Though not a personal friend, Ms. Swain has observed over the years that for respondent, "responsibility to her family is top priority." She views respondent as a kind and caring parent.
4. Stuart Mclntosh
Stuart Mclntosh is a California lawyer and respondent’s family friend. Mr. Mclntosh attests to respondent’s dedication to her daughter and the strength of their relationship. Mr. Mclntosh’s family has shared many meals with respondent and her daughter and the two families attend family camp every year together. Mr. Mclntosh has never seen evidence in respondent of a drinking problem, nor has he ever seen her intoxicated. He notes that because of the incident, he knows that respondent has completely stopped drinking alcohol.
5. Patrick Tracey
Patrick Tracey has known respondent for fifteen years as a neighbor and friend. Their families take vacations and regularly socialize together. Respondent has been "an integral, stable role model" in Mr. Tracey’s own children’s lives.
Mr. Tracey has never seen respondent drink to excess or engage in risky or dangerous behavior when drinking. He read the police report concerning respondent’s DUI arrest "and can say without reservation that this is NOT representative" of respondent’s behavior or reflective of her character. He states, "This is truly an aberration."
6. Kathleen J. Donnelly
Kathleen Donnelly met Respondent when she began attending Alcoholics Anonymous meetings at the Park Street Fellowship in Alameda. Ms. Donnelly is aware of Respondent’s continued work with a sponsor. Both are regular attendees.
Ms. Donnelly read the police report concerning Respondent’s arrest. She says that the person described in the report is "very different from the dependable, considerate and diligent young woman that [she] has come to know." Ms. Donnelly further states that she has been "...impressed by [respondent’s] courage to face consequences of her past actions and her dedication to creating a better life."
Other Mitigating Circumstances
Since 2000, respondent has been a public interest lawyer and the Director of DRC’s Investigations Unit. DRC represents individuals with developmental, psychiatric and physical disabilities, and investigates allegations of serious abuse and neglect in facilities and the community. Respondent is not only responsible for investigations, she drafts legislation and develops public policy initiatives, interfaces with national and statewide public and private monitoring and regulatory agencies, prepares reports described as "landmark" by those that work in her area, including reports on restraint and seclusion. She has been on two federal steering committee overseeing two sets of three-year federal grants to eight states to eliminate restraint and seclusion.
Supporting Authority
Standard 3.4 of the Standards for Attorney Sanctions for Professional Misconduct provides that:
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 these standards appropriate to the nature and extent of the misconduct found to have been committed by the member. (Emphasis supplied.)
However, standard 2.1 of "Part B. Standards Pertaining to Sanctions for Professional Misconduct Found or Acknowledged in Original Disciplinary Proceedings," states that:
This part shall pertain to the sanction to be imposed following offenses of professional misconduct of members found or acknowledged in original disciplinary proceedings. It shall exclude sanctions for misconduct following a member’s conviction of crime pursuant to sections 6101-6102, Business and Professions Code." (Emphasis supplied.)
Thus, subdivision (a) of standard 2.6 which provides for disbarment or suspension for violation of Business and Professions Code section 6068(a) [failure to support the laws of this state] does not appear to be mandatory. Comparable case law must also be reviewed in determining the appropriate discipline recommendation. (ln the Matter of Klein (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 1, 13.)
In In re Kelley (1990) 52 Cal.3d 487, the Supreme Court adopted the Review Department’s recommendation that an attorney who pled nolo contendere to two separate DUIs, the second of which occurred while the attorney was on criminal probation for the first, be publically reproved and placed on probation for three years. In 1984 Kelley drove her car into an embankment in an apparent one-vehicle incident. In 1986, while still on criminal probation, Kelley was pulled over and eventually again charged with Vehicle Code section 23152(b), of which she was convicted, as well as Penal Code section 1203.2 [violation of probation condition]. Again, no other vehicle is mentioned as being involved. During the 1986 incident, Kelley lied to the officer who pulled her over by denying that she had been drinking, refused to take a field sobriety test, and attempted to talk her way out of an arrest. Her breath test disclosed a blood alcohol level of between 0.16 and 0.17. Kelley had no prior disciplinary or arrest record other than the 1984 DUI conviction. The Hearing Department recommended dismissal, but the Review Department found "other misconduct warranting discipline", "stating that "a second offense of alcohol-related driving, occurring at a time while still on probation from a prior offense, is a serious violation of law with potentially dangerous physical consequences to both [petitioner] and third parties. " Id. at 492. The Supreme Court found Kelley’s actions to constitute other misconduct warranting discipline due to the nexus between the convictions and her duties as an attorney: (1) "petitioner’s most recent conviction was in violation of a court order directed specifically at petitioner following her first conviction"; and (2) "petitioner’s two convictions, and the circumstances surrounding them as described above, are indications of a problem of alcohol abuse." Id. at 495. The Court said that it could not wait until Kelley’s "... alcohol abuse problem begins to affect her practice of law." Id.
In In the Matter of Respondent I (Review Dept 1 1993) 2 Cal. State Bar Ct. Rptr. 260, the Review Department imposed no discipline on a member of the State Bar of California, who had gone on voluntary inactive status, moved to Arizona, and been twice convicted of drunk driving in Arizona while working as stockbroker. There was no mention of any passengers in either incident leading to the attorney’s convictions. The Review Department found that the attorney had quit drinking the day after the second incident, and, by the time of the State Bar Court hearing, he had not consumed alcohol for five years -the same period of time after which a disbarred attorney may show rehabilitation in a petition for reinstatement. The Review Department found that the State Bar had conceded the lack of nexus between the attorney’s practice of law and his two convictions, and that the five years abstinence from alcohol constituted rehabilitation such that the attorney no longer posed a threat to his clients, the courts, or the public. Nonetheless, the Review Department characterized drunk driving as "a serious societal problem with potentially tragic results."
Costs of Disciplinary, Proceedings
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of September 2, 2009, the costs in this matter are approximately $2,106.80. 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.
State Bar Ethics School
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
SIGNATURE OF THE PARTIES
Case Number(s): 07-C-13677-PEM
In the Matter of: Leslie B. Morrison
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: Leslie Morrison
Date: 9-14-09
Respondent’s Counsel: Kathleen M. Ewins
Date: 9/8/09
Deputy Trial Counsel: Sherrie B. McLetchie
Date: 9-17-09
Case Number(s): 07-C-13677-PEM
In the Matter of: Leslie B. Morrison
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 file date. (See rule 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Lucy Armendariz
Date: September 22, 2009
[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 San Francisco, on September 24, 2009, 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 San Francisco, California, addressed as follows:
KATHLEEN M. EWINS
LONG & LEVIT LLP
465 CALIFORNIA ST 5FL
SAN FRANCISCO, CA 94104
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SHERRIE McLETCHIE, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on September 24, 2009.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court