Case Number(s): 05-C-03762
In the Matter of: Nicholas Francis Coscia, Bar # 93248, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: David T. Sauber, Bar # 176554
Counsel for Respondent: Bar # 176554
Submitted to: assigned judge State Bar Court Clerk’s Office
Filed: June 12, 2006
<<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 November 30, 1979.
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 11 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." See Attached.
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law". See Attached.
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 added to membership fee for calendar year following effective date of discipline.
checked. costs to be paid in equal amounts prior to February 1 for the following membership years: Two (2) billing cycles following the effective date of discipline (hardship, special circumstances or other good cause per rule 282, Rules of Procedure.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
See Attachment to Stipulation section entitled: “Other Conditions Negotiated by the Parties.”
FACTS AND CONCLUSIONS OF LAW:
Respondent admits that the following facts are tree and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Facts for Case No. 04-C-03762
1. On May 22, 2002, in San Diego Superior Court Case No. CN140623, Respondent was convicted of a misdemeanor violation of Vehicle Code section 23152(a): Driving under the influence of alcohol.
2. On June 27, 2005, while driving a vehicle, Respondent was observed by police officers stopping in traffic lanes without cause and then turning abruptly. Respondent was pulled over by the police officers. After performing field sobriety tests, Respondent was arrested for driving under the influence of alcohol. Respondent subsequently took a breath test to determine blood-alcohol content which measured at .21%.
3. On September 12, 2005, Respondent pled guilty to Count One of the Criminal Complaint filed in San Diego Superior Court, Case No. M967353. Count One charged Respondent with a misdemeanor violation of Vehicle Code section 23152(a): Driving under the influence of alcohol. The remaining counts of the criminal complaint were dismissed as part of the plea.
4. On September 12, 2005, Respondent was sentenced to summary probation for five years and order to complete five days work in the Public Service Work Program. Further, Respondent was ordered to pay a fine and his drivers license was suspended for 90 days.
Conclusions of Law for Case No. 04-C-03762
5. The facts and circumstances surrounding Respondent’s conviction involves other misconduct warranting discipline pursuant to Business and Professions Code, sections 6101 and 6102.
AUTHORITIES SUPPORTING DISCIPLINE:
Protection of clients, the public, the courts and the integrity of the legal profession guides the imposition of discipline [Standard 1.3, Standards for Attorney Sanctions for Professional Misconduct; Snyder v. State Bar (1990) 49 Cal.3d 1302, 1307].
Standard 1.7 states that if 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, 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 greater discipline in the current proceeding would be manifestly unjust. In the present case, Respondent has one prior discipline. This discipline resulted out of a criminal conviction over ten years ago for conspiracy to commit securities fraud. Although such a prior is relevant and impacts the level of discipline, the current conviction is removed in time and nature as to make imposing a greater degree of discipline unjust.
Under Standard 3.4, the discipline suggested for an attorney’s conviction of a crime not involving moral turpitude but involving "other misconduct warranting discipline" is that discipline "appropriate to the nature and extent of the misconduct." [In re Kelley (1990 52 Cal.3d 487, 498].
In Kelley, the attorney’s misconduct consisted of a second drunk driving conviction thirty-one months after her first drunk driving conviction. That second drunk driving was also a violation of her criminal probation on that first drunk driving conviction. Her first drunk driving incident occurred less than a year and a half after her admission to the State Bar. Her BAC in the first incident was .10%. About two years later she again was arrested for drunk driving with a BAC of .16/. 17%. The court found several significant mitigating factors, but also that the crimes were serious and involved a threat of harm to the public. The discipline imposed was a public reproval for a period of three years on conditions that included a referral to the then-existing State Bar Program on Alcohol Abuse.
In In re Carr (1988) 46 Cal.3d 1089, the attorney was admitted in 1976 and was twice convicted of drunk driving in separate incidents in 1983 and 1984. The second was also a violation of his probation on the first. He had a record of a prior discipline. The attorney was suspended for two years, stayed, and placed on probation for five years on conditions that included he be actually suspended for the six months and until he made a showing to the court of his rehabilitation, fitness to practice, and learning and ability in the law pursuant to Standard 1.4(c)(ii).
OTHER CONDITIONS NEGOTIATED BY THE PARTIES:
SUBSTANCE ABUSE CONDITIONS:
Submit to Examination:
Either prior to or within 30 days of the effective date of the discipline in this matter, Respondent shall submit to a medical examination by an expert in alcoholism certified by the American Society of Addiction Medicine (the "expert"), to be mutually agreed upon by Respondent and the State Bar prior to the examination. The expert shall conduct an evaluation and issue a report to the Office of Probation setting forth recommendations to address Respondent’s condition re alcohol.
Compliance with Recommended Treatment:
For the duration of the probation in this matter, Respondent shall comply with all treatment conditions recommended by the expert, either as originally set forth or as may be modified thereafter.
Respondent shall report compliance with these conditions by statement under penalty of perjury in each written quarterly report to the Office of Probation required pursuant to the discipline in this matter and provide such satisfactory proof of compliance as the Office of Probation may request.
Consent for Release of Treatment and Recovery Information:
Respondent shall provide a written consent to the expert and to all alcohol or drug recovery or treatment providers, including drug testing facilities, who provide services as identified in these Substance Abuse Conditions to release information to the Office of Probation regarding treatment and compliance.
Copy of this Stipulation to all Treatment Providers:
Respondent shall deliver a copy of this stipulation to the expert and to all treatment providers who provide to the services described in these Substance Abuse Conditions.
Reporting Consent and Delivery of Stipulation:
Respondent shall report compliance with the condition of providing consent to release treatment and recovery information and delivering of this stipulation to the expert and to the treatment providers, by statement under penalty of perjury in each written quarterly report to the Office of Probation required pursuant to this order and provide to the Office of Probation satisfactory proof of compliance if requested.
Costs are Responsibility of Respondent
Respondent shall be responsible for the prompt and timely payment of all costs associated with these Substance Abuse Conditions, including without limitation, the cost of examination(s), testing, treatment or therapy, and any and all other costs related to these Substance Abuse Conditions.
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.
These conditions may be modified upon further determination of treatment conditions appropriate for this Respondent to specify more a detailed description of conditions, compliance and monitoring.
SIGNATURE OF THE PARTIES
Case Number(s): 05-C-03762
In the Matter of: Nicholas Francis Coscia, Member # 93248
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: Nicholas F. Coscia
Date: 06/06/06
Respondent’s Counsel:
Date:
Deputy Trial Counsel: David T. Sauber
Date: 6-6-06
Case Number(s): 05-C-03762
In the Matter of: Nicholas Francis Coscia, Member #: 93248
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 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: Robert M. Talcott
Date: 6-8-06
[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 June 12, 2006, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING STAYED SUSPENSION; NO 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 , California, addressed as follows:
NICHOLAS FRANCIS COSCIA
P O BOX 789
CARDIFF, CA 92007
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DAVID T. SAUBER, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on June 12, 2006.
Signed by:
Tammy R. Cleaver
Case Administrator
State Bar Court