Case Number(s): 13-H-12499
In the Matter of: BRUCE HALL ATWATER III, Bar # 199011, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Jonathan R. Cesena, Bar # 289721,
Counsel for Respondent: Bruce Hall Atwater III, Bar # 199011,
Submitted to: Settlement Judge.
Filed: November 25, 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 December 10, 1998.
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 15 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: Costs to be paid in equal amounts prior to February 1 for the following 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):.
MEDICAL CONDITIONS
Case Number(s): 13-H-12499
In the Matter of: BRUCE HALL ATWATER III
<<not>> checked. a. Unless Respondent has been terminated from the Lawyer Assistance Program (“LAP”) prior to respondent’s successful completion of the LAP, respondent must comply with all provisions and conditions of respondent’s Participation Agreement with the LAP and must provide an appropriate waiver authorizing the LAP to provide the Office of Probation and this court with information regarding the terms and conditions of respondent’s participation in the LAP and respondent’s compliance or non-compliance with LAP requirements. Revocation of the written waiver for release of LAP information is a violation of this condition. However, if respondent has successfully completed the LAP, respondent need not comply with this condition.
<<not>> checked. b. Respondent must obtain psychiatric or psychological help/treatment from a duly licensed psychiatrist, psychologist, or clinical social worker at respondent’s own expense a minimum of times per month and must furnish evidence to the Office of Probation that respondent is so complying with each quarterly report. Help/treatment should commence immediately, and in any event, no later than thirty (30) days after the effective date of the discipline in this matter. Treatment must continue for days or months or years or, the period of probation or until a motion to modify this condition is granted and that ruling becomes final.
If the treating psychiatrist, psychologist, or clinical social worker determines that there has been a substantial change in respondent’s condition, respondent or Office of the Chief Trial Counsel may file a motion for modification of this condition with the Hearing Department of the State Bar Court, pursuant to rule 5.300 of the Rules of Procedure of the State Bar. The motion must be supported by a written statement from the psychiatrist, psychologist, or clinical social worker, by affidavit or under penalty of perjury, in support of the proposed modification.
checked. c. 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.
Other: Respondent must obtain psychiatric or psychological help/treatment from a duly licensed psychiatrist, clinical social worker, or marriage and family therapist at respondent’s own expense a minimum of 2 times per month and must furnish evidence to the Office of Probation that respondent is so complying with each quarterly report. Help/treatment should commence immediately, and in any event, no later than thirty (30) days after the effective date of the discipline in this matter. Treatment must continue for the period of probation or until a motion to modify this condition is granted and that ruling becomes final.
If the treating psychiatrist, psychologist, clinical social worker, or marriage and family therapist determines that there has been a substantial change in respondent’s condition, respondent or the Office of Probation may file a motion for modification of this condition with the Hearing Department of the State Bar Court, pursuant to rule 5.300 of the Rules of Procedure of the State Bar. The motion must be supported by a written statement from the psychiatrist, psychologist, clinical social worker, or marriage and family therapist, by affidavit or under penalty of perjury, in support of the proposed modification.
SUBSTANCE ABUSE CONDITIONS
Case Number(s): 13-H-12499
In the Matter of: BRUCE HALL ATWATER III
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 two meetings per month of:
<<not>> checked. Alcoholics Anonymous
<<not>> checked. Narcotics Anonymous
<<not>> checked. The Other Bar
checked. Other program approved in advance by the Office of Probation, or one of the above listed programs.
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.
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.
checked. 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.
checked. 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.
<<not>> checked. 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.
Other:
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: BRUCE HALL ATWATER III, State Bar No. 199011
STATE BAR COURT CASE NUMBER: 13-H-12499
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. 13-H-12499
1. On July 15, 2011, Respondent entered into a Stipulation with the State Bar in case number 08-O-12957. On July 18, 2011, the State Bar Court issued an order approving the Stipulation and imposed a public reproval upon Respondent. Respondent was required to comply with conditions attached to the reproval for one year after its effective date. Respondent received the order.
2. The reproval and order became effective on August 8, 2011, and remained in full force and effect until August 9, 2012.
3. Pursuant to the reproval order, Respondent was required to comply with the following conditions:
a. Submit written quarterly reports to the Office of Probation by the due dates of January 10, April 10, July 10, October 10, and a final report by August 8;
b. Attend at least four meetings per month in a substance abuse program;
c. Submit satisfactory proof of attendance at a substance abuse program, during each month, on or before the tenth day of the following month;
d. Submit laboratory blood and/or urine reports to the State Bar Office of Probation on or before the tenth day of each month;
e. Obtain psychiatric treatment a minimum of four times per month;
f. Submit evidence of attendance of the psychiatric treatment to the Office of Probation; and
g. Provide the Office of Probation satisfactory proof of passage of the Multistate Professional Responsibility Examination ("MPRE") not later than August 8, 2012.
4. Respondent failed to timely submit two quarterly reports due October 10, 2011, and January 10, 2012. Respondent failed to submit the quarterly reports due on April 10, 2012, and July 10, 2012, and he failed to submit the final report due on August 8, 2012.
5. Respondent failed to timely provide proof of attendance of at least four substance abuse program meetings for the months of August 2011 and September 2011. Respondent failed to attend at least four substance abuse program meetings per month and provide satisfactory proof of attendance thereof to the State Bar Office of Probation for the months of December 2011, January 2012, March 2012, April 2012, May 2012, and June 2012.
6. Respondent failed to furnish laboratory blood and/or urine reports to the State Bar Office of Probation that were due no later than September 10, 2011, October 10, 2011, November 10, 2011, December 10, 2011, January 10, 2012, April 10, 2012, and July 10, 2012. Respondent also did not timely furnish laboratory blood and/or urine reports to the State Bar Office of Probation that were due no later than March 10, 2012, May 10, 2012, and June 10, 2012.
7. Respondent failed to timely furnish evidence of psychiatric treatment for the month of August 2011. Respondent did not obtain psychiatric treatment four (4) times per month and timely furnish evidence of attendance to the State Bar Office of Probation for the months of September 2011, December 2011, February 2012, March 2012, April 2012, May 2012, and June 2012.
8. Respondent failed to provide proof of passage of the MPRE to the State Bar Office of Probation by August 8, 2012.
CONCLUSIONS OF LAW.
9. By failing to timely submit multiple quarterly reports, by failing to submit multiple quarterly reports and the final report, by failing to attend four meetings per month in a substance abuse program and provide proof to the State Bar Office of Probation, by failing to timely provide proof of attendance of at least four substance abuse program meetings, by failing to furnish laboratory blood and/or urine reports to the State Bar Office of Probation, by failing to timely provide laboratory blood and/or urine reports to the State Bar Office of Probation, by falling to obtain psychiatric treatment four times per month and furnish proof to the State Bar Office of Probation, by failing to timely furnish proof of psychiatric treatment four times per month to the State Bar Office of Probation, and by failing to provide proof of timely passage of the MPRE, Respondent failed to comply with conditions attached to a reproval in willful violation of Rules of Professional Conduct, rule 1-110.
AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): Respondent has been a member of the State Bar since December 10, 1998, and has been disciplined on one prior occasion. In 2011, Respondent received a public reproval for failure to abide by the terms of an Agreement in Lieu of Discipline ("ALD") and for failure to return unearned fees in a single client matter.
Indifference (Std. 1.2(b)(v)): To date, Respondent has not come in to compliance with the conditions of the reproval, demonstrating an indifference toward rectification.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent’s present misconduct involves numerous failings to comply with the conditions of a reproval and represents multiple acts of misconduct. See In the Matter of Tiernan (Review Dept. 1996) 3 Cal State Bar Ct. Rptr. 523, 529 [holding that a failure to cooperate with the probation monitor and failures to timely file probation reports constituted multiple acts of misconduct]
Lack of Cooperation (Std. 1.2(b)(vi)): Respondent failed to cooperate with the State Bar during the pending proceedings. Respondent failed to respond to discovery, failed to appear at the October 21, 2013, Settlement Conference, failed to appear at the October 28, 2013, pretrial conference, and failed to submit a pretrial statement.
MITIGATING CIRCUMSTANCES
Pretrial Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of Chief Trial Counsel prior to trial, thereby saving State Bar Court time and resources. (In the Matter of Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 151,156; In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 993-994.) Any mitigative credit is tempered by the fact that, Respondent agreed to enter into a stipulation on the day of trial.
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." (ln 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. (In 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.)
The sanction applicable to Respondent’s misconduct is found in Standard 2.9, which provides that, "[c]ulpability of a member of a willful violation of rule 1-110, Rules of Professional Conduct, shall result in suspension."
Here, Respondent failed to comply with almost all of the conditions attached to the reproval: Respondent failed to appear for required laboratory drug testing, and group counseling meetings; failed to timely submit quarterly reports, evidence of psychiatric treatment, and attendance of substance abuse meetings; and Respondent failed to take and pass the Multistate Professional Responsibility Exam. In accordance with Standard 2.9, suspension is appropriate.
In aggravation, Respondent, has a prior record of discipline, committed multiple acts of misconduct and demonstrated indifference toward rectification by failing to come in to compliance with the conditions of his reproval, even after the Notice of Disciplinary Charges was filed. Respondent’s misconduct is further aggravated by his failure to cooperate during the disciplinary proceedings.
Respondent is entitled to mitigation for entering into a pretrial stipulation. Respondent agreed to enter into a stipulation on the day of trial. In this case, although Respondent is entitled to credit for entering into the pretrial stipulation, it is afforded little weight based on the timing of the stipulation.
Standard 1.7(a) provides that "[i]f a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one prior imposition of discipline as defined by standard 1.2(f), the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior discipline imposed was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust. Respondent received a public reproval in 2011 for failing to abide by the terms of an ALD and failing to return unearned fees in a single client matter. The misconduct is neither remote in time nor was it so minimal in severity that imposing greater discipline would be manifestly unjust. Moreover, Respondent’s prior misconduct is similar to his current misconduct. Respondent’s prior discipline mandates progressive discipline in the present matter.
Based upon the repetitive nature of Respondent’s misconduct, the factors in aggravation, and limited mitigation, a 60-day actual suspension accompanied by a two year probationary period serves the purposes of State Bar discipline.
The stipulated level of discipline is also in line with case law involving similar misconduct. In Conroy v. State Bar (1990) 51 Cal.3d 799, the attorney violated the terms of a reproval and then defaulted in the disciplinary proceeding. The Court imposed a one year stayed suspension with 60-day actual suspension, finding that the attorney’s non-compliance with the reproval conditions and failure to participate in the disciplinary proceedings evidenced a contemptuous attitude toward the disciplinary proceedings and failure to acknowledge the wrongfulness of his acts. (Id. at pp. 805-806). In this matter, Respondent did not comply with the reproval conditions, and demonstrated a contemptuous attitude toward the disciplinary proceedings when he did not appear at the Settlement Conference or the Pretrial Conference, and Respondent was not in communication with the State Bar prior to trial. A parallel can be drawn between Conroy and the present case such that imposing a similar level of discipline is appropriate.
Balancing all of the appropriate factors, imposing discipline consisting of a two-year stayed suspension, two years’ probation, with conditions including a 60 day actual suspension is appropriate under the standards and case law and accomplishes the purposes of attorney discipline.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 6, 2013, the prosecution costs in this matter are $2,291.00. 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, State Bar Client Trust Accounting School, and/or any other educational course(s) to be ordered as a condition of reproval or suspension. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 13-H-12499
In the Matter of: BRUCE HALL ATWATER III
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: BRUCE HALL ATWATER III
Date: 11/12/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Jonathan R. Cesena
Date: 11/12/13
ACTUAL SUSPENSION ORDER
Case Number(s): 13-H-12499
In the Matter of: BRUCE HALL ATWATER III
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: George E. Scott, Judge Pro Tem
Date: 11/22/13
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 San Francisco, on November 25, 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 San Francisco, California, addressed as follows:
BRUCE H. ATWATER III
709 GEARY ST APT 301
SAN FRANCISCO, CA 94109
<<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:
JONATHAN R. CESENA, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on November 25, 2013.
Signed by:
Mazie Yip
Case Administrator
State Bar Court