Case Number(s): 00-C-13377; (Investigations) 03-O-04721
In the Matter of: Mark Pardee McCredie, Bar # 189962, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Charles A. Murray, Bar # 146069
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
Filed: March 3, 2005.
<<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 28, 1997.
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. Costs are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: 2007, 2008, 2009. (Hardship, special circumstances or other good cause per rule 282, Rules of Procedure.)
<<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.
IN THE MATTER OF: Mark P. McCredie, State Bar No. 189962
STATE BAR COURT CASE NUMBER: 00-C-13377; (Investigations) 03-O-04721
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(6), was February 6, 2006.
WAIVER OF FINALITY OF CONVICTION (rule 607):
Pursuant to the Rules of Procedure of the State Bar of California, rule 607 the parties stipulate that the Court may decide the issues as to the discipline to be imposed even if the criminal convictions discussed herein are not final.
Respondent waives finality of her conviction and consents to the State Bar Court’s acceptance of this Stipulation as to facts, conclusions of law and discipline in all respects as if the conviction was final, including the entry of findings consistent with this Stipulation, imposition of discipline, or entry of a recommendation as to the degree of the discipline to be imposed.
Respondent waives any tight to challenge on the basis of a lack of finality of her conviction the State Bar Court’s recommendation of discipline, if any, and the actual imposition of discipline, if any, by the State Bar Court or the California Supreme Court.
Respondent further waives any right she may have to seek review of reconsideration on the basis of any relief she may receive as a result of any appeal of, or petition regarding, the criminal conviction underlying any recommendation of and/or actual imposition of discipline by the State Bar Court or the California Supreme Court.
PARTIES ARE BOUND BY THE STIPULATED FACTS:
The parties intend to be and are hereby bound by the stipulated facts contained in this stipulation. This stipulation as to facts and the facts so stipulated shall independently survive even if the conclusions of law and/or stipulated disposition set forth herein are rejected, modified or changed in any manner whatsoever by the Heating Department or the Review Department of the State Bar Court, or by the California Supreme Court.
STIPULATION AS TO FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statues and/or Rules of Professional Conduct, or that he has otherwise committed acts of misconduct warranting discipline, as follows:
Case No. 00-C-13377
FACTS
This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 951 of the California Rules of Court.
On November 7, 2002, the Review Department of the State Bar Court issued an order referring the matter to the Heating Department under the authority of rule 951 (a), California Rules of Court, for a heating and decision recommending the discipline to be imposed in the event that the Hearing Department finds that the facts and circumstances surrounding the violation of Penal Code section 368(c), of which Respondent was convicted, involved moral turpitude or other misconduct warranting discipline.
On January 15, 1999, Respondent’s sister contacted the police and reported a concern for the welfare of their elderly parents, Mary and Darwin McCredie.
On January 15, 1999, responding to the sister’s report, the Ventura County Sheriff’s Department went to the residence that Respondent shared with his parents in Ojai, California. Police Officer Yanover interviewed Respondent and Respondent’s mother. Based upon the results of their investigation, the police subsequently arrested Respondent for a violation of Penal Code section 368(a)(1).
On May 17, 2000, after a jury trial, Respondent was convicted of a misdemeanor violation of Penal Code section 368(c), which states, in part:
"Any person, who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult, with knowledge that he or she is an elder or dependent adult, to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of an elder or dependent adult, willfully causes or permits the person or health of the elder or dependent to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health may be endangered, is guilty of a misdemeanor."
On May 19, 2000, the police were called to Respondent’s home. With good cause the police entered Respondent’s home and found, in plain view, a substance that tested positive as marijuana. Respondent was arrested and subsequently charged on June 13, 2000 with the crime of possession of marijuana 28.5 grams or less, in violation of Health and Safety Code section 11357(b), a misdemeanor." On June 15, 2000, Respondent pled guilty to this charge, and sentenced to pay fines.
On July 12, 2000, Respondent was sentenced for the May 17, 2000 Penal Code section 368(c) conviction, as follows: 5 days jail time, probation for 36 months with several conditions including, 24 hours in the Direct Work Program, submit to and complete drug/alcohol tests; attend 2 meetings of Alcoholics Anonymous each week for 26 weeks; attend weekly sessions of domestic violence counseling for 1 year; pay fines totaling $500 to women’s shelters; and 60 days in the FACT (Forensic Alternative Community Treatment) Program. Respondent has completed all of the terms of his probation and was terminated in or about July 2003.
CONCLUSIONS OF LAW
The State Bar and Respondent hereby stipulate that the facts and circumstances surrounding Respondent’s convictions do not involve moral turpitude, but they do involve other misconduct warranting discipline.
Case No. 03-O-04721
FACTS:
In June, 2003, Respondent was hired by Steven Icanberry ("Icanberry") to represent him in a matter involving a wage garnishment for unpaid state taxes and preparation of an injunction to prevent enforcement of the garnishment. They entered into a written retainer agreement on June 16, 2003. lcanberry paid Respondent $300.00 in advance.
After looking into the issues further, Respondent concluded that an injunction was not supported by existing law and that an injunction would not be successful. Respondent informed Icanberry that he would not prepare the injunction for which he had been retained. Icanberry requested refund of the $300.00 he had paid to Respondent to prepare the injunction.
Respondent failed to refund the $300.00 in unearned fees to Icanberry.
CONCLUSIONS OF LAW:
By failing to promptly refund the unearned $300.00 fee to Icanberry, which was paid in advance to Respondent, Respondent wilfully violated rule 3-700(D)(2), Rules of Professional Conduct.
AUTHORITIES SUPPORTING DISCIPLINE:
Standards:
Standards 1.2, 1.3, 1.4, 1.5, 1.6, 2.10, and 3.4 of the Standards of Attorney Sanctions for Professional Misconduct, Title PC, of the Rules of Procedure of the State Bar of California. Particularly:
Standard 1.3 provides that the primary purposes of disciplinary proceedings and the imposition of sanctions for professional misconduct 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.
Standard 2.10 provides that culpability of a member of a violation of a rule of Professional ’ conduct not otherwise specified shall result in reproval or suspension, depending upon the gravity of the offense or harm, if any to the victim, with due regard to the purposes of imposing discipline as set forth in standard 1.3.
Standard 3.4 provides that final conviction of a member for an offense that does not involve moral turpitude but which does involve other misconduct warranting discipline shall result in a sanction appropriate to the nature and extent of the misconduct found to have been committed.
Legal Authority - Caselaw
In determining the appropriate level of discipline, the Court should look to the Standards for Attorney Sanctions for Professional Misconduct. In In re Morse (1995) 11 Cal.4th 184, 206.
In the Matter of Hanson (Review Dept. 1994) 2 Cal. State Bar Court Reporter 703, in a single client matter an attorney failed to return unearned fees promptly and failed to take steps to avoid foreseeable prejudice to the client, the attorney received a public reproval.
Here, if the failure to return the unearned fee was the only misconduct, a reproval would be appropriate. However, this Respondent also has criminal convictions.
In the Matter of Hunsdon Cary Stewart (1994) 3 Cal. State Bar Ct. Rptr. 52: In May 1990, Stewart was separated from his wife. He refused to leave his wife’s apartment without their son and police were called. He had some alcohol in his system. Stewart was trespassing twice resisted a police officer’s authority. As a police officer tried to escort him out of her apartment, Stewart grabbed the officer’s upper body in a "bear hug." They both sustained cuts and bruises and the officer’s uniform shirt was tom. Stewart was convicted by a jury of a misdemeanor violation of PC 243(c). The criminal court suspended sentence and imposed a 2 yr probation including attendance at 30 meetings of AA. Stewart was indifferent to the seriousness of his misconduct and the grave potential harm which could have resulted. It was found that he acted to provoke a dangerous and risky confrontation. Further, he had a prior record of attorney discipline. As attorney discipline, the conviction involved other misconduct, not moral turpitude, and Stewart was actually suspended for sixty (60) days.
In Stewart, the Court noted that "Past disciplinary conviction referral cases in which assaultive behavior was the principal offense have generally resulted in suspension of varying degrees." (Stewart at page 60-61.) Here, the misconduct which was the subject of the criminal conviction was assaultive in nature and the victims were Respondent’s elderly parents.
Here, there are no aggravating circumstances and some mitigating circumstances, ha addition, Respondent began efforts to address his substance abuse issues soon after his convictions and he has continued those efforts to this day.
SUBSTANCE ABUSE CONDITIONS:
The following conditions are derived from recommendations of an expert re issues of alcohol and drugs, after his evaluation of the Respondent.
1. Abstinence:
For the entire period of probation set forth herein, Respondent shall abstain from the use of any alcoholic beverages, and shall not consume or possess any narcotics, dangerous or restricted drugs, controlled substances, marijuana, or associated paraphernalia, except with a valid prescription.
2. Reporting Abstinence:
Respondent shall report his compliance with this condition by statement under penalty of perjury in each written quarterly report to the Office of Probation required pursuant to this order.
3. Abstinence-based Support Group Meetings:
During the period of this probation, Respondent shall attend:
Respondent has been advised that he may choose one of any acceptable sobriety maintenance program, including any self-help maintenance program which includes (i) a subculture to support recovery (i.e., meetings); and (ii) a process of personal development that does not have financial barriers. Appropriate 12-step groups are acceptable. Examples of acceptable programs include, without limitation, Alcoholics Anonymous CAA"), the Other Bar, Narcotics Anonymous CNA"), Rational Recovery ("RR"), Self Management and Recovery Training ("SMART"), Secular Organization for Sobriety ("SOS"); and LifeRing.
4. Reporting of Meeting Attendance to the Probation Unit:
For each calendar month during the probation period, on or before the tenth (10th) day of the following month, Respondent shall provide to the Office of Probation satisfactory proof of attendance at the above-described meetings.
Proof of attendance shall include submission of a writing which clearly provides, for each meeting he attends: (a) the date and time of the meeting; (b) name of the meeting; (c) the location of the meeting; and, (d) which bears the initials and/or signature of the secretary of the meeting, verifying Respondent’s attendance at that meeting.
5. Alcohol Treatment Outpatient Program:
Within twenty (20) days of the effective date of this order, if he has not done so already, Respondent shall enroll in an alcohol/substance abuse treatment outpatient program acceptable to the Office of Probation. Respondent may begin his enrollment and participation in prior to the effective date of this order. The outpatient program of the Ventura County Department of Alcohol/Drug Programs is an acceptable alcohol/substance abuse treatment outpatient program.
As part of his enrollment, Respondent shall execute a waiver authorizing that outpatient program to provide his treatment records and information to the Office of Probation and to immediately report any incident of noncompliance to the Office of Probation.
Respondent shall comply with the terms and conditions of that outpatient program.
Respondent shall successfully complete that outpatient program.
6. Outpatient Program:
Within thirty (30) days of the effective date of this order, Respondent shall provide proof satisfactory to the Office of Probation that he has enrolled in an outpatient program satisfactory to the Office of Probation.
Respondent shall report his compliance with the terms and conditions of this outpatient program by statement under penalty of perjury in each written quarterly report to the Office of Probation required pursuant to this order and he shall provide to the Office of Probation satisfactory proof o f his completion of the outpatient program.
7. Consent for Release of Treatment and Recovery Information:
Respondent shall provide a written authorization to all alcohol, drug, or mental health recovery or treatment providers, including drug testing facilities, to disclose records or information about him to the Office of Probation. This authorization shall remain in full force and effect for the entire period of probation set forth herein.
8. Copy of this Stipulation to all Treatment Providers:
Respondent shall deliver a copy of this stipulation to all recovery or treatment providers who provide to him the above-described services.
9. Consent and Delivery of Stipulation:
Within thirty (30) days of the effective date of this order, Respondent shall provide proof satisfactory to the Office of Probation that he has provided his consent to release treatment and recovery information and his delivery of a copy of this stipulation to treatment providers.
MODIFICATION OF CONDITIONS:
Modification of these conditions shall be pursuant to the Rules of Procedure of the State Bar of California, rule 550 et seq.
Case Number(s): 00-C-13377; 03-O-04721 (Inv.)
In the Matter of: Mark Pardee McCredie
a. Restitution
checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.*
1. Payee: Steven Icanberry
Principal Amount: $300.00
Interest Accrues From: June 16, 2003
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
[*To the extent Respondent provides proof satisfactory to the Office of Probation that he has made payments of restitution after June 16, 2003, he shall receive a appropriate credit.]
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. 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.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3. The requirements of this condition are
in addition to those set forth in rule 4-100, Rules of Professional Conduct.
<<not>> checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
SIGNATURE OF THE PARTIES
Case Number(s): 00-C-13377; 03-O-04721(Inv.)
In the Matter of: Mark Pardee McCredie, State Bar No.: 189962
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: Mark Pardee McCredie
Date: February 24, 2006
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Charles A. Murray
Date: February 28, 2006
Case Number(s): 00-C-13377; 03-O-04721(Inv.)
In the Matter of: Mark Pardee McCredie
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.
P.7. PARAGRAPH 2, LINE 1 - DELETE "her", ADD "his".
P.7. PARAGRAPH 3, LINE 1 - DELETE "her", ADD "his".
P.7. PARAGRAPH 4, LINE 1 - DELETE "she", ADD "he".
P.7. PARAGRAPH 4, LINE 2 - DELETE "she", ADD "he".
P.8. Conclusions of law - Add second sentence as follows: Respondent’s actions violated Business and Professions Code Section 6068(a).
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 953(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Platel
Date: March 1, 2006
[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 Los Angeles, on March 3, 2006, 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:
MARK PARDEE MCCREDIE
PO BOX 6626
VENTURA, CA 93006
MARK P MCCREDIE
674 COUNTY SQUARE DR #308A
VENTURA, CA 93003
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
CHARLES MURRAY, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 3, 2006.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court