Case Number(s): 13-C-10417, 13-C-10418
In the Matter of: KENNETH BRYAN BROCK, Bar # 158311, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Lara Bairamian, Bar # 253056,
Counsel for Respondent: Kenneth Bryan Brock, Bar # 158311,
Submitted to: Assigned Judge.
Filed: December 6, 2013.
<<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 June 9, 1992.
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 13 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. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: three billing cycles following the effective date of the Supreme Court order. (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.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: KENNETH BRYAN BROCK., State Bar No. 158311
STATE BAR COURT CASE NUMBER: 13-C-10417, 13-C-10418
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that the facts and. circumstances surrounding the offenses for which he was convicted involved other misconduct warranting discipline.
Case No. 13-C-10417 (Conviction Proceeding)
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING:
1. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 9.10 of the California Rules of Court.
2. On August 8, 2011, the Ventura County District Attorney filed a criminal complaint in the Ventura County Superior Court, case number 2011024720, charging Respondent with one count each of violation of Vehicle Code section 23152(a) [driving under the influence of alcohol or drugs], a misdemeanor, and Vehicle Code section 23152(b) [driving with 0.08 percent or more blood alcohol.], a misdemeanor. Both counts included special allegations, under Vehicle Code section 23578, that Respondent had a blood alcohol concentration of. 15 percent and higher.
3. On August 12, 2011, the court entered Respondent’s guilty plea to the violation of Vehicle Code section 23152(b), a misdemeanor, and based thereon, the court found Respondent guilty of that count. Pursuant to a plea agreement, the court dismissed the remaining count in the furtherance of justice.
4. On August 12, 2011, the court suspended imposition, of sentence and ordered that Respondent be placed on formal probation for thirty-six months. Among other conditions, the court ordered that Respondent report to the Drinking Driver Program for nine months, not drive unless properly licensed and insured, and serve forty-eight hours in the Ventura County jail.
5. On June 27, 2013, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department for 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(s) for which Respondent was convicted involved moral turpitude or other misconduct warranting discipline.
FACTS:
6. On June 10, 2011, at approximately 9:00 p.m., a police officer of the Oxnard Police Department, while on uniformed patrol in a marked police vehicle, observed the vehicle Respondent was driving straddling lanes of traffic while traveling at a high rate of speed. The police officer initiated a traffic stop. During the stop, Respondent spontaneously admitted that he had been drinking. The police officer arrested Respondent for driving under the influence of alcohol.
7. At the police station, Respondent provided two breath samples. The first sample indicated that Respondent’s blood alcohol content was .20 percent. The second sample indicated that Respondent’s blood alcohol content was .21 percent.
CONCLUSIONS OF LAW:
8, The facts and circumstances surrounding the above-described violation did not involve moral turpitude but did involve other misconduct warranting discipline.
Case No. 13-C-10418 [Conviction Proceedings)
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING:
9. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 9.10 of the California Rules of Court.
10. On October 27, 2011, the Tulare County District Attorney filed a criminal complaint in the Tulare County Superior Court, case number 11-018467, charging Respondent with one count of violation of Vehicle Code section 14601.2(a) [driving when privilege suspended with prior conviction(s)].
11. On November 6, 2012, the court entered Respondent’s plea of nolo contendere to the violation of Vehicle Code 14601.2(a), a misdemeanor, and based thereon, the court found Respondent guilty of that count.
12. On November 6, 2012, the court suspended imposition of sentence and ordered that Respondent be placed on summary probation for three years. Among other conditions, the court ordered that Respondent not drive without Interlock, not drive unless properly licensed and insured, and serve thirty days in custody.
13. On May 3, 2013, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department for 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(s) for which Respondent was convicted involved moral turpitude or other misconduct warranting discipline.
FACTS:
14. Due to his August 12, 2011 conviction for driving with 0.08 percent or more blood alcohol, Respondent’s driver’s license had been suspended.
15. At all relevant times, Respondent knew that his driver’s license had been suspended.
16. On October 4, 2011, at approximately 2:20 p.m., Respondent was driving with a suspended license when he was pulled over and cited by the California Highway Patrol. At the scene, Respondent admitted that he was driving with a suspended license.
CONCLUSIONS OF LAW:
17. The facts and circumstances surrounding the above-described violation did not involve moral turpitude but did involve other misconduct warranting discipline.
AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): Respondent has one prior record of discipline. In case numbers 05-C-4114 and 06-C-10207 (Supreme Court order S145628), effective November 5, 2006, Respondent was suspended from the practice of law for eighteen months, stayed, with a three-year period of probation with conditions.
Case number: 05-C-4114 On June 9, 2005, Respondent was arrested for driving under the influence. Respondent’s blood alcohol level was determined to be 19%. On July 28, 2005, Respondent was charged with misdemeanor violations of Vehicle Code section 23152(a) with one prior conviction and Vehicle Code section 23152(b), with one prior conviction. The prior conviction, a violation, of section Vehicle Code 23 152(b), occurred on February 28, 1999. On August 19, 2005, Respondent pled guilty to a misdemeanor violation of Vehicle Code section 23152(b) and admitted the prior conviction. The same day, Respondent was placed on formal probation for five years with conditions. Among other conditions, Respondent was ordered to serve forty-five days in custody, pay a fine of $2,800, not to drive unless properly licensed and insured, and not to drive without Interlock. The facts and circumstances surrounding Respondent’s conviction did not involve moral turpitude but did involve misconduct warranting discipline.
Case number 06-C-10207: On December 16, 2005, Respondent was arrested for driving under the influence of alcohol. Respondent’s blood alcohol level was determined to be. 19%. On January 3, 2006, Respondent was charged with misdemeanor violations of Vehicle Code section 23 t 52(a) with two prior convictions, and Vehicle Code section 23152(b) with two prior convictions. On April 6: 2006, Respondent pled guilty to a misdemeanor violation of Vehicle Code section 23152(b) and admitted the prior convictions. The same day, Respondent was placed on thirty-six months summary probation. Among other conditions, Respondent was ordered to serve 180 days in custody, attend and successfully complete the SB38 program, not to drive unless properly licensed and insured, and not to drive without Interlock. The facts and circumstances surrounding Respondent’s conviction did not involve moral turpitude but did involve misconduct warranting discipline.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent engaged in multiple acts of misconduct by driving under the influence of alcohol and driving on a suspended license.
MITIGATING CIRCUMSTANCES.
Pre-trial Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of Chief Trial Counsel prior to trial, thereby avoiding the necessity of a trial and saving the Stale Bar Court time and resources. (Silva-Vidor v. State Bar (1989) 49 Cal. 3d 1071, 1079 [where mitigation credit was given for entering into a stipulation as to facts and culpability].)
AUTHORITIES SUPPORTING DISCIPLINE.
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.4th 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, (In 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.)
Standard 3.4 is the applicable standard in cases such as this, where an attorney has been convicted of a crime that does not on its face or in the surrounding facts and circumstances involve moral turpitude. The standard states that such misconduct "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 [attorney]."
In reference to part B, the most applicable standard is standard 2.10, which states that culpability of an attorney of a violation of any provision of the Business and Professions Code or Rules of Professional Conduct not specified elsewhere in the standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline.
Standard 1.7(a) also applies as Respondent has a prior record of discipline. Pursuant to standard 1.7 (a), if an attorney is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the attorney has a record of one prior imposition of discipline, the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding.
In evaluating Respondent’s misconduct and assessing the level of discipline, the standards require progressive discipline. One of the current criminal convictions is Respondent’s fourth alcohol-related conviction following three prior convictions for driving under the influence of alcohol. Respondent’s misconduct is serious because it demonstrates a disregard for the law and safety of others. Respondent’s citation for driving with a suspended license occurred during the probation period following his conviction for driving with 0.08 percent or more blood alcohol, in addition, Respondent demonstrated an unwillingness or inability to comply with conditions of a newly effective probation when he committed the second criminal act. Therefore, actual suspension is warranted. Based on the above-described standards, the imposition of a two (2) year stayed suspension accompanied by a two (2) year probationary period with conditions including a ninety (90) day actual suspension serves the purpose of State Bar discipline to protect the public, the courts and the legal profession, to maintain high professional standards by attorneys, and to preserve public confidence in the legal profession. (Std. 1.3.)
The stipulated level of discipline is in line with case law involving similar misconduct. In In re Carr (1988) 46 Cal.3d 1089, the State Bar Court disciplined attorney Carr after he committed two driving under the influence offenses. Carr was on criminal probation from the first when he committed the second and was under the influence of phencyclidine (PCP) at the time of both arrests. Additionally, Carr had three previous substance abuse offenses, including being convicted in federal court of transporting a controlled substance used in the manufacture of PCP, at the time of his first arrest for being under the influence of PCP. Carr also had a prior record of State Bar discipline including a sixty day actual suspension. Although there was no injury and no finding of moral turpitude, Carr was suspended from the practice of law for two years stayed, with five years’ probation and a six-month actual suspension.
There are similarities between the facts in Carr and the instant case. Specifically, both cases involve convictions resulting from driving under the influence after previous convictions for the same offense. However, the conduct in the instant case is not quite as egregious as that in Carr, nor is the aggravation in the instant case as strong as the aggravation in Carr. Although both Respondent and Carr have a prior record of discipline, Cart had a more serious prior criminal record as well as greater prior discipline. Thus, although actual suspension is warranted, six-months actual suspension is not.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of November 7, 2013, the prosecution costs in this matter are $5,195. 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.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 13-C-10417, 13-C-10418
In the Matter of: KENNETH BRYAN BROCK
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: KENNETH BRYAN BROCK
Date: 11/12/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Lara Bairamian
Date: 11/13/13
ACTUAL SUSPENSION ORDER
Case Number(s): 13-C-10417, 13-C-10418
In the Matter of: KENNETH BRYAN BROCK
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
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.
Page 5 – Paragraph E (8) – Delete “within one (1) year of the effective date herein”
Page 6 – Paragraph F (1) – Delete last sentence starting with “See other conditions...”
Page 7 – “Deadline for MPRE” – Delete heading and all language following the heading.
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: Richard A. Platel
Date: 12/5/13
CERTIFICATE OF SERVICE
[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 Los Angeles, on December 6, 2013, 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:
KENNETH B. BROCK
KEN BROCK, ATTORNEY AT LAW
3600 HARBOR BLVD.
STE. 110 PMB 116
OXNARD, CA 93035
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
LARA BAIRAMIAN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 6, 2013.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court