Case Number(s): 09-O-13292
In the Matter of: Franz A. Criego, Bar # 97503, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Susan I. Kagan, Deputy Trial Counsel
180 Howard Street
San Francisco, CA 94105
(415) 538-2037
Bar # 214209
Counsel for Respondent: Peter N. Kapetan, Kapetan Brothers
1236 M Street
Fresno, CA 93721
(559) 498-8000
Bar # 138068
Submitted to: Settlement Judge – State Bar Court Clerk’s office San Francisco.
Filed: November 17, 2010.
<<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 29, 1981.
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):
checked. Costs are added to membership fee for calendar year following effective date of discipline.
<<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.
FACTS AND CONCLUSIONS OF LAW
Facts
1. Section 148.3 of the California Penal Code governs the filing of false emergency reports. Section 148.3(a) provides in relevant part: "Any individual who reports, or causes any report to be made, to any city, county, city and county, or state department, district, agency, division, commission, or board, that an ’emergency’ exists, knowing that the report is false, is guilty of a misdemeanor."
2. At all relevant times herein, respondent represented Darren Hise in the family law matter, Hise v. Hise, Mariposa County Superior Court Case No. 06164. At all relevant times herein, attorney Paul D. Fromson ("Fromson") represented Paige Hise and was respondent’s opposing counsel in the Hise v. Hise matter.
3. On August 14, 2008, a hearing was held in the Hise v. Hise matter. Respondent and Fromson attended the hearing on behalf of their respective clients. After the hearing, respondent saw Fromson leave the courthouse and drive away in Fromson’s car. Soon thereafter, respondent called 911 emergency services in Mariposa County and made an emergency report about Fromson. As part of the emergency report, respondent made the following false statement about Fromson: "I’m reporting a drunk driver." As part of the emergency report, respondent also identified the driver of the vehicle as Fromson, provided Fromson’s route of travel and provided a description of Fromson’s car and license plate number.
4. In truth and in fact, at the time of respondent’s emergency report, Fromson was not driving under the influence. At the time respondent made the emergency report, respondent knew that Fromson was not driving under the influence. Respondent intentionally made a false statement about Fromson in his emergency report. By falsely stating that Fromson was driving drunk during his 911 emergency services call, respondent made a false emergency report.
5. Soon thereafter, the Mariposa County California Highway Patrol ("CHP") responded to respondent’s emergency report and pulled over Fromson’s car. At that time, the CHP determined that Fromson was not driving under the influence of any alcoholic beverage or drugs or have any indication of recent alcohol consumption.
Conclusions of Law
By knowingly falsely stating that Fromson was driving drunk during his 911 emergency services call, respondent made a false emergency report in violation of California Penal Code section 148.3(a) and failed to support the laws of the State of California in willful violation of section 6068(a) of the Business and Professions Code.
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed in Case No. 09-O-13292 on April 13, 2010, and the facts and/or conclusions of law contained in this stipulation. The parties further waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
DISMISSALS
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No.: 09-O-13292, Count: Two, Alleged Violation: Section 6106 of the Business and Professions Code
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A (7) was October 28, 2010.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the State Bar has informed respondent that as of October 28, 2010, the estimated prosecution costs in this matter are approximately $5,408.10. 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.
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.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
AGGRAVATING CIRCUMSTANCES
Standard 1.2(b)(iv). Respondent’s misconduct, which caused the police to make a traffic stop of Fromson’s car, caused significant harm to the administration of justice.
MITIGATING CIRCUMSTANCES
Standard 1.2(e)(i). Respondent has been in practice since May 29, 1981. He has no prior record of discipline.
Standard 1.2(e)(v). Respondent displayed spontaneous cooperation to the State Bar during the disciplinary proceedings.
Standard 1.2(e)(vi). Respondent demonstrated good character.
Standard 1,2(e)(vi). Respondent has participated in numerous pro bono activities.
SUPPORTING AUTHORITY
Standard 2.6 requires that a violation of Business and Professions Code section 6068 shall result in disbarment or suspension according to the gravity of the offense or harm, if any, to the victim, with due regard to the purpose of imposing discipline set forth .in standard 1.3.
Based on the extensive mitigation in this matter, including respondent’s 27 years of discipline-free practice, a stayed suspension is the appropriate level of discipline.
Case Number(s): 09-O-13292
In the Matter of: Franz A. Criego
Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a notice of disciplinary charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere shall be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court shall find the member culpable. The legal effect of such a plea shall be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the count during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based. (Added by Stats. 1996 ch. 1104.)(emphasis supplied)
RULE 133, Rules of Procedure of the State Bar of California STIPULATION AS TO FACTS, CONCLUSIONS OF LAW AND DISPOSITION
(a) A proposed stipulation as to facts, conclusions of law, and disposition shall set forth each of the following:
(5) a statement that respondent either
(i) admits the facts set forth in the stipulation are true and that he or she is culpable of violations of the specified statutes and/or Rules of Professional Conduct or
(ii) pleads halo contendere to those facts and violations. If the respondent pleads nolo contendere, the stipulation shall include each of the following:
(a) an acknowledgment that the respondent completely understands that the plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his or her culpability of the statutes and/or Rules of Professional Conduct specified in the stipulation; and
(b) if requested by the Court, a statement by the deputy trial counsel that the factual stipulations are supported by evidence obtained in the Slate Bar investigation of the matter. (emphasis supplied)
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 133(a)(5)of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent: Franz A. Criego
Date: October 28, 2010
SIGNATURE OF THE PARTIES
Case Number(s): 09-O-13292
In the Matter of: Franz A. Criego
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: Franz A. Criego
Date: October 28, 2010
Respondent’s Counsel: Peter N. Kapetan
Date: October 28, 2010
Deputy Trial Counsel: Susan I. Kagan
Date: November 1, 2010
Case Number(s): 09-O-13292
In the Matter of: Franz A. Criego
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 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: Lucy Armendariz
Date: November 16, 2010
[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 San Francisco, on November 17, 2010, 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:
PETER N. KAPETAN
KAPETAN BROTHERS
1236 M ST
FRESNO, CA 93721
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN I. KAGAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on November 17, 2010.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court