State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW

PROGRAM FOR RESPONDENTS WITH SUBSTANCE ABUSE AND MENTAL HEALTH ISSUES

 

Case Number(s): 05-C-01740-3

In the Matter of: James Stuart Lochead, Bar # 146932, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Brooke A. Schafer, Bar # 194824

Counsel for Respondent: Bar #

Submitted to: Program Judge State Bar Court Clerkís Office Los Angeles

Filed: June 16, 2010

† <<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.

A.††††† Parties' Acknowledgments:

1.  Respondent is a member of the State Bar of California, admitted June 11, 1990.

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. However, except as otherwise provided in rule 804.5(c) of the Rules of Procedure, if Respondent is not accepted into the Alternative Discipline Program, this stipulation will be rejected and will not be binding on the Respondent or the State Bar.

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, except for Probation Revocation proceedings. Dismissed charge(s)/count(s) are listed under "Dismissals."† The stipulation consists of 8 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.  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.

7.  Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code ßß6086.10 & 6140.7 and will pay timely any disciplinary costs imposed in this proceeding.

 

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

<<not>> checked. (1) Prior record of discipline [see standard 1.2(f)].

<<not>> checked. (a)††††††††† State Bar Court case # of prior case .
<<not>> checked. (b)††††††††† Date prior discipline effective .
<<not>> checked. (c)†††††††††† Rules of Professional Conduct/ State Bar Act violations: †
<<not>> checked. (d)††††††††† Degree of prior discipline .
<<not>> checked. (e)††††††††† If Respondent has two or more incidents of prior discipline, use space provided below. .

<<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.

†checked. (4)†††††††††† Harm:† Respondent's misconduct harmed significantly the public.

<<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: †

 

See attached.

 

C.†† Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating circumstances are required.

†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.†

†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.

†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.

<<not>> checked. (13) No mitigating circumstances are involved.

 

Additional mitigating circumstances:

 

See attached.

 

 


ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

 

IN THE MATTER OF: James S. Lochead, State Bar No. 146932

STATE BAR COURT CASE NUMBER:† 05-C-1740-RMT

PENDING PROCEEDINGS.

 

The disclosure date referred to, on page one, paragraph A.(6), was September 13, 2006.

 

PARTIES ARE BOUND BY THE STIPULATED FACTS:

 

The parties intend to be and are bound by the stipulated facts contained in this stipulation. The facts so stipulated shall independently survive even if the conclusions of law and/or disposition recommended are rejected or changed in any manner whatsoever by the Hearing Department or the Review Department of the State Bar Court, or by the California Supreme Court.

 

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 his conviction and consents to the State Bar Courtís acceptance of this Stipulation as to facts and conclusions of law in all respects as if !he 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 right to challenge on the basis of a lack of finality of his conviction the State Bar Courtís 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 he may have to seek review or reconsideration on the basis of any relief he 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.

 

STIPULATION AS TO FACTS AND CONCLUSIONS OF LAW.

 

1. Respondent admits that he is a member of the State Bar of California and that the State Bar Court has jurisdiction over this action. Respondent further 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 has otherwise committed acts of misconduct warranting discipline:

 

The Underlying Criminal Offense - Stalking

 

2. In March 2001 Respondentís wife filed for divorce; she moved out along with their minor children in October 2001. To a great extent the end of their marriage was related to Respondentís long-term abuse of alcohol and drugs, both prescription and non-prescription.

 

3. By the spring of 2002 Respondent was broke. On May 7, 2002, in the midst of an alcohol and drug withdrawal, he found himself agitated and angry at his wife for leaving. He telephoned his estranged wife in an effort to salvage their marriage. She told him she did not want to talk to him. He started to drink and called several more times, leaving messages for her. She did not return his messages. He continued calling as he drank more, leaving angry message that he knew where she walked the dog and "somebody could find a dead female there in the morning." Ten minutes later he left another message, saying that she should not consider the prior call a threat, but a promise. In his distraught and drunken state, Respondent went to her residence where he slashed the tires of the car sitting out front and threw eggs at her house.

 

4. The next day, May 8, 2002, Respondent was arrested. Ultimately he was charged with making a criminal threat as referenced above, and with stalking. The latter charge was based on the final call, in that the state penal code defines stalking, in pertinent part, as "willful and continuous harassment." (Penal Code sec. 646.9(A). In September 2002 he plead guilty to the stalking charge, and the charge of criminal threat was dismissed.

 

Guilty Plea, Sentencing and Probation Violations

 

5. In early September 2002 Respondent plead guilty to the crime of stalking, Penal Code sec. 646.9(A), in Los Angeles Superior Court. His sentence included: 195 days in jail (credit for time served), 3 years formal probation, abstention from alcohol, completion of a residential treatment program, psychiatric counseling and no contact with the victim Rebecca Lochead Respondent was to be remanded directly into the auspices of the Salvation Army residential treatment center upon release from jail.

 

6. Respondent deserted the Salvation Army treatment center one hour after being admitted. The court issued a warrant, and Respondent was arrested and a probation violation hearing was held. In November 2002 the court imposed 365 days in custody, to be served at the Aware Foundation program. Respondent was released to that program.

 

7. In January 2003 Respondentís sentence was modified so that he could serge his year in custody at the Grandview Foundation.

8. In February 2004 the court issued another bench warrant for a Failure to Appear at a progress report hearing. The warrant was cleared the next day when Respondent appeared. However, Respondent started using drugs again. By this time he was broke and living in an abandoned car. By May 2004 Respondent was back in custody on a shoplifting incident where he stole $165.00 worth of food and alcohol. Upon his arrest Respondent was taken to hospital where he stayed for 17 days.

 

9. Because of the new arrest the court set another probation violation heating on the stalking conviction, which it trailed pending the outcome of the shoplifting charge. In November 2004, still in custody, Respondent had completed the Impact In-Custody treatment program, and was awaiting a bed at the Impact Sober Living Home in Pasadena. Respondent was released to that facility.

 

10. In January 2005 the court found that Respondent violated probation due to the new shoplift, and sentenced him to continue on the same terms and conditions of his then-existing probation. The shoplifting charge was dismissed pursuant to Penal Code sec. 1385 in January 2006, as Respondent had completed certain treatment requirements under the superior courtís drug court supervision.

 

Conclusions of Law

 

The above-described facts and circumstances surrounding the incident between Respondent and victim in May 2002, resulting in Respondentís felony conviction for violating Penal Code sections 646.9(a), stalking, do not involve moral turpitude but do constitute misconduct warranting discipline as wilful violations of Business and Professions Code section 6068(a) which, in pertinent part, requires an attorney to support the laws of this state.

 

AGGRAVATION, contíd

 

Although not charged in State Bar Court, the shoplifting incident described above may be considered uncharged misconduct even though ultimately dismissed through a "drug court" deferral in superior court. (In re Kopinski (Rev. Dept. 1994) 2 Cal. State Bar Ct. Rptr. 716).

 

MITIGATION, contíd

 

1. Cooperation Respondent has cooperated with the state bar in admitting misconduct by this stipulation. In addition, in the superior court matter he entered a plea to the crime instead of challenging the events at trial. Respondent is entitled to some mitigation credit, albeit not full credit as the misconduct was easily provable. (In re Bouyer (Rev. Dept. 1998) 3 Cal State Bar Ct. Rptr. 888, 891).

 

2. Family Problems At the time of the commission of the crime Respondentís wife and children had recently left him and were living in their own home. He had been married over 20 years. His drinking and substance usage, together with financial problems, drove the two apart. It was when he realized the separation was going to be permanent and that she was rejecting him, that he became distraught. With this as background, when his wife would not return his calls the rejection really sunk in and he became enraged. (E.g., In re Naney (1990) 51 Cal.3d 186).

 

3. Additional Mitigation From 1996 to 1999 Respondent reports he transported and participated in AA panels traveling to state prison camps in California, speaking to inmates. This is entitled to some, but not full credit in mitigation. (E.g., In re Dyson (Rev. Dept. 1990) 1 Cal. State Bar Ct. Rptr. 280).

 


SIGNATURE OF THE PARTIES

Case Number(s): 05-C-01740-RMT

In the Matter of: James Stuart Lochead Member #146932

 

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: James S. Lochead

Date: 12/4/06

 

Respondentís Counsel:

Date:

 

Deputy Trial Counsel: Brooke A. Schafer

Date: 12/07/06

 


ORDER

Case Number(s): 05-C-01740-RAH

In the Matter of: James Stuart Lochead Member # 146932

 

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 stipulation as to facts and law is APPROVED.

<<not>> checked. The stipulated facts and conclusions of law is APPROVED AS MODIFIED as set forth below.

<<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; or 3) Respondent is not accepted for participation in the Program or does not sign the Program Contract. (See rule 135(b) and 802(d), Rules of Procedure.)

Signed by:

Judge of the State Bar Court: Richard A. Honn

Date: †9/03/07

 


CERTIFICATE OF SERVICE

[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., ß 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 August 13, 2007, I deposited a true copy of the following document(s):

 

CONFIDENTIAL STATEMENT OF ALTERNATIVE DISPOSITIONS AND ORDER;

 

STIPULATION RE FACTS AND CONCLUSIONS OF LAW; and,

 

CONTRACT AND WAIVER FOR PARTICIPATION IN THE STATE BAR COURTíS ALTERNATIVE DISCIPLINE PROGRAM

 

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:

 

JAMES S. LOCHEAD ESQ

LAW OFC JAMES S LOCHEAD

490 S FAIR OAKS AVE

PASADENA, CA† 91105:

 

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

 

Eric H. Hsu, Enforcement, Los Angeles

 

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 13, 2007.

 

Signed by:

 

Julieta E. Gonzales

Case Administrator

State Bar Court


CERTIFICATE OF SERVICE

[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., ß 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 June 16, 2010, I deposited a true copy of the following document(s):

 

STIPULATION RE FACTS AND CONCLUSIONS OF LAW

 

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:

 

DAVID ALAN CLARE ESQ

444 W OCEAN BLVD STE 800

LONG BEACH, CA† 90802

 

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

 

Charles A. Murray, Enforcement, Los Angeles

 

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on June 16, 2010.

 

Signed by:

Julieta E. Gonzales

Case Administrator

State Bar Court