State Bar Court of California

Hearing Department

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

STAYED SUSPENSION; NO ACTUAL SUSPENSION

Case Number(s): 12-H-13453

In the Matter of: David J. Carriere, Bar # 178002, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Treva R. Stewart, Deputy Trial Counsel

180 Howard Street

San Francisco, Ca 94105

415 538-2452

Bar # 239829

Counsel for Respondent: Steven Duditch, 1110 Lincoln Avenue

San Rafael, CA 94901

415 456-3422

Bar # 91611

Submitted to: Assigned Judge State Bar Court Clerk’s Office San Francisco

Filed: October 26, 2012

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 December 1, 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 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):

 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.

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

checked. (1)            Prior record of discipline [see standard 1.2(f)].

  checked. (a)                             State Bar Court case # of prior case 08-C-14125

  checked. (b)                             Date prior discipline effective August 4, 2010

   checked. (c)                            Rules of Professional Conduct/ State Bar Act violations: Respondent was disciplined pursuant to Business & Professions Code sections 6101 and 6102 for violation of PenaI Code sections 243(e)(1) and 417(a)(1) [battery-on a spouse and threatening with a deadly weapon].

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

  <<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.

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

Additional aggravating circumstances:

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. 

<<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.

 checked. (13) No mitigating circumstances are involved.

Additional mitigating circumstances: 

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:

 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.)

E. Additional Conditions of Probation:

 checked. (1)           During the probation period, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

 checked. (2)           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. (3)           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. (4)           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. (5) 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. (6)           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. (7)           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.

 checked. No Ethics School recommended.  Reason: Respondent complied with requirement to attend Ethics School and provide proof of passage of test on June 23, 2011 in case number 08-C-14125.

<<not>> checked. (8) 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.

 checked. (9)           The following conditions are attached hereto and incorporated:           

<<not>> checked. Substance Abuse Conditions.

 checked. Law Office Management Conditions.

<<not>> checked. Medical Conditions.

 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 within one year.  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 5.162(A) & (E),Rules of Procedure.

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

<<not>> checked. (2) Other Conditions:

ATTACHMENT TO

 STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

IN THE MATTER OF: DAVID J. CARRIERE

CASE NUMBER(S): 12-H-13453

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.

Case No. 12-H-13453

FACTS:

1. On June 24, 2010, respondent signed a Stipulation re Facts, Conclusions of Law and Disposition wherein he agreed to a public reproval for misconduct arising out of his conviction for violation of Penal Code sections 243 (e)(1) and 417(a)(1 ) in case number 08-C- 14125 ("reproval").

2. One of the conditions of the reproval required respondent to provide proof of taking and passing the Multistate Professional Responsibility Examination ("MPRE") within one year of the effective date of the reproval, to the Office of Probation.

3. The Hearing Department order approving the reproval was filed on July 14, 2010.

4. Respondent was required to comply with the MPRE requirement by August 4, 2011.

5. Respondent did not provide proof of taking and passing the MPRE by August 4, 2011, to the Office of Probation.

6. Respondent took the MPRE on November 6, 2010, March 5, 2011 and August 5, 2011, however he did not pass.

7. On October 27, 2011, respondent agreed to provide proof of taking and passing the MPRE to the Office of Probation and OCTC on or before April 20, 2012. Respondent failed to provide proof of taking and passing the examination to the Office of Probation and OCTC on or before April 20, 2012.

CONCLUSIONS OF LAW:

8. By failing to provide proof of taking and passing the MPRE by August 4, 2011 or April 20, 2012, respondent failed to comply with conditions attached to a public reproval in willful violation of Rules of Professional Conduct, rule 1-110.

AGGRAVATION AND MITIGATION

Aggravation

Prior Record of Discipline. As indicated on page 2, respondent has one prior record of discipline. On July 14, 2010, the State Bar Court filed a stipulation for a public reproval in case number 08-C-14125 for violation of Penal Code sections 243(e)(1) and 17(a)(1). Respondent’s conviction, arose from a domestic dispute between respondent and his then spouse. The public reproval required respondent to comply with probation conditions, including taking and passing and reporting proof of passing the MPRE within one year of the effective date of the reproval.

Mitigation

There are no mitigating circumstances present.

AUTHORITIES SUPPORTING DISCIPLINE.

Standards

The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipline" pursuant to a set of written principles to "better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to standards are to this source).) The primary purposes of disciplinary proceedings and of the sanctions imposed 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." (In re Morse (1995) 11 Cal.4th 184, 205; std 1.3.)

Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible" in determining level of discipline. (ln re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal. 4 205, 220 and In re Young (1989) 49 Cal.3d 257, 267, fn. 11.) Adherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (ln re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)

Std. 1.7(a) requires that the discipline imposed in this matter to be greater than the public reproval imposed in the prior matter. Std. 2.9. provides that a violation of rule 1-110 shall result in suspension.

Case Law

The Supreme Court case which dealt with the application of Std. 2.9 was Conroy v. State Bar (1990) 51 Cal.3d 799. In Conroy, the attorney failed to take and pass the [M]PRE within one year as required by his private reproval. Conroy was credited with mitigation for belatedly taking and passing the [M]PRE. In aggravation, he had one prior record of discipline (involving three client matters), he failed to participate in the State Bar proceeding and he demonstrated a lack of remorse and failed to acknowledge the wrongfulness of his actions. Conroy, supra, 51 Cal.3d at p. 806. The Court imposed a one year suspension, stayed, and one year probation conditioned on a 60 day suspension.

In In the Matter of Posthuma (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr., the attorney violated the MPRE condition of his private reproval, but did later comply. Finding that Posthuma participated in the proceeding extensively and acknowledged his duty to comply with State Bar Court orders, albeit begrudgingly (Posthuma, supra at p. 822), Posthuma received a public reproval.

Consequently, a period of stayed suspension falls within the applicable Standards for attorney discipline. Moreover, here, where the only factor in aggravation is respondent’s record of discipline and respondent attempted to pass the MPRE three times in order to comply with his reproval conditions, participated in these proceedings and agreed to enter into a stipulation before a notice of disciplinary charges was filed, a period of stayed suspension along with two years of monitored probation, including the condition that respondent provide satisfactory proof of passage of the MPRE, will sufficiently address the purposes of attorney discipline stated above.

COSTS OF DISCIPLINARY PROCEEDINGS.

Respondent acknowledges that the .Office of the Chief Trial Counsel has informed respondent that as of September 25, 2012, the prosecution costs in this matter are approximately $2865. 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.

PENDING PROCEEDINGS.

The disclosure date referred to, on page 2, paragraph A(7), was September 25, 2012.

SIGNATURE OF THE PARTIES

Case Number(s): 12-H-13453

In the Matter of: David J. Carriere

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:  David J. Carriere

Date: 9/30/12

Respondent’s Counsel:  Steven Duditch

Date: 10/1/12

Deputy Trial Counsel: Treva R. Stewart

Date: 10/10/12

STAYED SUSPENSION ORDER

Case Number(s): 12-H-13453

In the Matter of: David J. Carriere

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 5.58 (E) & (F), 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: Pat McElroy

Date: October 26, 2012

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 San Francisco, on October 26, 2012, 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:

STEVEN CHARLES DUDITCH

LAW OFC STEVEN DUDITCH

1110 LINCOLN AVE

SAN RAFAEL, CA 94901

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

Treva R. Stewart, Enforcement, San Francisco

I hereby certify that the foregoing is true and correct. Executed in San Francisco, California on October 26, 2012.

Signed by:

George Hue

Case Administrator

State Bar Court