Case Number(s): 13-O-10780
In the Matter of: J. CLEGG IVEY, Bar # 220680 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Elizabeth Gonzalez, Bar #256839,
Counsel for Respondent: J. Clegg Ivey, Bar #220680,
Submitted to: Settlement Judge.
Filed: July 19, 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 October 4, 2002.
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. 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.
<<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.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: J. CLEGG IVEY, State Bar No. 220680
STATE BAR COURT CASE NUMBER: 13-O-10780
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-O-10780 (State Bar Investigation)
FACTS:
1. In order to remain as an active member of the State Bar, Respondent was required to complete 25 hours of minimum continuing legal education ("MCLE") during the period of February 1, 2009, through January 31, 2012 (the "compliance period").
2. On January 11, 2012, Respondent reported to the State Bar that he was in compliance with the MCLE requirements, and, in particular, that he had completed his MCLE during the compliance period.
3. In fact, Respondent had not completed any MCLE courses within the compliance period.
4. When Respondent reported to the State Bar that he was in compliance with the MCLE requirements, Respondent knew that he had not completed the MCLE during the compliance period as required.
5. On December 4, 2012, Respondent was placed on as Not Eligible to Practice status for failure to comply with the MCLE requirement.
6. To date, Respondent still has not come into compliance with his MCLE requirement.
CONCLUSIONS OF LAW:
7. By reporting to the State Bar that he was in compliance with the MCLE requirements when he knew that he was not in compliance with the MCLE requirements, Respondent intentionally committed an act involving moral turpitude, dishonesty and corruption in wilful violation of Business and Professions Code, section 6106.
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Indifference (Std. 1.2(b)(v)): Respondent still has not come into compliance with his MCLE requirement.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Additional Mitigating Circumstances: Respondent had practiced law for nearly 10 years without a prior record of discipline when the misconduct herein occurred. Respondent is entitled so some mitigation credit for no prior record discipline even where the underlying conduct is found to be serious or significant. (In the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn. 13.)
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. (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 2.3 provides that culpability of "...a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client or another person or of concealment of a material fact to a court, client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law."
Respondent’s false statement regarding his MCLE compliance, under penalty of perjury, is serious and constitutes an act of dishonesty directly relating to the practice of law.
Although there is no California case addressing an attorney’s misrepresentation concerning MCLE compliance, we can look to other states for guidance. In the Matter of Diggs (S.C. 2001) 544 S.E. 2d 628, details the importance of continuing legal education and of attorneys’ honesty in reporting their MCLE compliance.
"Truthful representations on CLE compliance reports are essential to the successful operation of the South Carolina CLE program. Our CLE program operates on an honor system. The Commission does not check the accuracy of every attorney’s CLE compliance report .... In order for the CLE program to be successful, and provide the public with competent, educated attorneys, South Carolina attorneys must complete the required number of CLE hours." (Id. at 631-632.)
These policy reasons for requiring attorneys to take continuing legal education apply to California Respondent’s misconduct is analogous to Drociak v. State Bar, (Cal. 1991) 52 Cal. 3d 1085. In Drociak, the attorney used his client’s presigned verification to respond to discovery without first consulting with his client to ensure the veracity of assertions of fact in the discovery responses in violation of Business and Professions Code sections 6106 and 6068(d), and former rule 7-105(1). The attorney, who had no prior record of discipline in 25 years of practice, received a 30-day actual suspension. In imposing the 30-day actual suspension, the Supreme Court specifically cited to Standard 2.3, noting that "The Standards for Attorney Sanctions for Professional Misconduct ... make violation of section 6106 punishable by disbarment or actual suspension" and further noted that "[p]etitioner’s prior ’clean’ record is commendable, but it does not render the recommended 30-day actual suspension inappropriate." (ld. at 1090-1091.)
See also: Bach v. State Bar, 43 Cal. 3d 848 (Cal. 1987) [attorney, who had previously been publically reproved and who made false statements to a court about events that had occurred at a hearing before another judge and about receiving a court order, received an actual suspension of 60 days after the Supreme Court found the behavior involved moral turpitude.]
Although Respondent’s misconduct does not involve a misrepresentation to a court, it is clearly behavior that undermines the public’s confidence in the legal profession. Reporting of CLE compliance is on the honor-system. The State Bar relies on an attorney’s word when reporting compliance, especially when that attorney, like Respondent herein, reports compliance under penalty of perjury. When an attorney takes advantage of an honor-system to lie, it undermines the public’s confidence in the legal profession. Thus, although Respondent did not lie to a court, his misconduct is still serious and warrants actual suspension.
In addition to an analysis of Standard 2.3, further consideration must be given to any aggravating or mitigating circumstances which may justify a greater or lesser level of discipline then indicated by Standard 2.3. In this matter, there is one aggravating circumstances and one mitigating circumstance. Even though Respondent had practiced law for nearly 10 years without a prior record of discipline when the misconduct herein occurred, he still has not come into compliance with his MCLE requirement. Ultimately, the aggravating and mitigating circumstances are of similar weight.
The appropriate level of discipline, based on the above analysis, for Respondent’s misconduct in this matter would be a 60 day actual suspension followed by a period of probation on standard terms and conditions.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of June 3, 2013, the prosecution costs in this matter are approximately $2,865. 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, and/or any other educational course(s) to be ordered as a condition of suspension. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 13-O-10780
In the Matter of: J. CLEGG IVEY
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: J. CLEGG IVEY
Date: 6/10/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Elizabeth Gonzalez
Date: 7/1/13
ACTUAL SUSPENSION ORDER
Case Number(s): 13-O-10780
In the Matter of: J. CLEGG IVEY
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: Donald F. Miles
Date: 7/19/13
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 July 19, 2013, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING ACTUAL SUSPENSION
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:
J. CLEGG IVEY
15A ISLAND DR.
SAVANNAH, GA 31406
<<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:
ELIZABETH GONZALEZ, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on July 19, 2013.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court