State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

STAYED SUSPENSION; NO ACTUAL SUSPENSION

Case Number(s): 06-H-10814

In the Matter of: John F. Morken, Bar # 153979, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Susan I. Kagan Bar # 214209

Counsel for Respondent: Bar #

Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco

Filed: May 31, 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.

A. Parties' Acknowledgments:

1. Respondent is a member of the State Bar of California, admitted September 12, 1991.

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 9 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. costs added to membership fee for calendar year following effective date of discipline.

 <<not>>checked. costs to be paid in equal amounts prior to February 1 for the following membership years: (hardship, special circumstances or other good cause per rule 284, 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.

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

checked. (1)            Prior record of discipline [see standard 1.2(f)].

checked. (a)            State Bar Court case # of prior case 03-C-03937

checked. (b)            Date prior discipline effective June 22, 2005

checked. (c)            Rules of Professional Conduct/ State Bar Act violations: Business and Professions Code section 6068(a) [violation of Vehicle Code section 23152(a)].

<<not>>checked. (d)  Degree of prior discipline Public Reproval

<<not>> checked. (e)            If Respondent has two or more incidents of prior discipline, use space provided below or a separate attachment entitled “Prior Discipline”. .

<<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.

<<not>> checked. (4) Harm:  Respondent's misconduct harmed significantly a client, the public or the administration of justice.

<<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:

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

<<not>> 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 to the State Bar during disciplinary investigation and proceedings. Respondent cooperated fully throughout this matter.

<<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) 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. (10) 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.

<<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:

D. Discipline:

 checked. (1)           Stayed Suspension:

 <<not>>checked (a) Respondent must be suspended from the practice of law for a period of one year.

 <<not>>checked. i. and until Respondent shows proof satisfactory to the State Bar Court of rehabilitation and present fitness to practice and present learning and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney Sanctions for Professional Misconduct.

<<not>> checked. ii.         and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.

<<not>> checked. iii.        and until Respondent does the following: .

checked. (b)             The above-referenced suspension is stayed.

checked. (2)            Probation:  Respondent must be placed on probation for a period of two years, which will commence upon the effective date of the Supreme Court order in this matter.  (See rule 953, California Rules of Court.)

E. Additional Conditions of Probation:

 checked. (1)           During the probation period, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

 checked. (2)           Within ten (10) days of any change, Respondent must report to the Membership Records Office of the State Bar and to the Office of Probation of the State Bar of California ("Office of Probation"), all changes of information, including current office address and telephone number, or other address for State Bar purposes, as prescribed by section 6002.1 of the Business and Professions Code.

 checked. (3)           Within thirty (30) days from the effective date of discipline, Respondent must contact the Office of Probation and schedule a meeting with Respondent's assigned probation deputy to discuss these terms and conditions of probation. Upon the direction of the Office of Probation, Respondent must meet with the probation deputy either in-person or by telephone. During the period of probation, Respondent must promptly meet with the probation deputy as directed and upon request.

 checked. (4)           Respondent must submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10 of the period of probation. Under penalty of perjury, Respondent must state whether Respondent has complied with the State Bar Act, the Rules of Professional Conduct, and all conditions of probation during the preceding calendar quarter. Respondent must also state whether there are any proceedings pending against him or her in the State Bar Court and if so, the case number and current status of that proceeding. If the first report would cover less than 30 days, that report must be submitted on the next quarter date, and cover the extended period.

In addition to all quarterly reports, a final report, containing the same information, is due no earlier than twenty (20) days before the last day of the period of probation and no later than the last day of probation.

<<not>> checked. (5) Respondent must be assigned a probation monitor. Respondent must promptly review the terms and conditions of probation with the probation monitor to establish a manner and schedule of compliance. During the period of probation, Respondent must furnish to the monitor such reports as may be requested, in addition to the quarterly reports required to be submitted to the Office of Probation. Respondent must cooperate fully with the probation monitor.

 checked. (6)           Subject to assertion of applicable privileges, Respondent must answer fully, promptly and truthfully any inquiries of the Office of Probation and any probation monitor assigned under these conditions which are directed to Respondent personally or in writing relating to whether Respondent is complying or has complied with the probation conditions.

 <<not>>checked. (7) Within one (1) year of the effective date of the discipline herein, Respondent must provide to the Office of Probation satisfactory proof of attendance at a session of the Ethics School, and passage of the test given at the end of that session.

 checked. No Ethics School recommended.  Reason: Respondent attended Ethics School on 1/19/06.

<<not>> checked. (8) Respondent must comply with all conditions of probation imposed in the underlying criminal matter and must so declare under penalty of perjury in conjunction with any quarterly report to be filed with the Office of Probation.

checked. (9)            The following conditions are attached hereto and incorporated:           

 checked. Substance Abuse Conditions.

 <<not>>checked. Law Office Management Conditions.

<<not>> checked. Medical Conditions.

 <<checked>>. Financial Conditions.

F. Other Conditions Negotiated by the Parties:

checked. (1)            Multistate Professional Responsibility Examination:  Respondent must provide proof of passage of the Multistate Professional Responsibility Examination ("MPRE"), administered by the National Conference of Bar Examiners, to the Office of Probation within one year.  Failure to pass the MPRE results in actual suspension without further hearing until passage. But see rule 951 (b), California Rules of Court, and rule 321 (a)(1) & (c), Rules of Procedure.

<<not>> checked. No MPRE recommended.  Reason:

 <<not>>checked. (2) Other Conditions:

Attachment language (if any):

FACTS AND CONCLUSIONS OF LAW

Facts

1. On or about June 22, 2005, acting under the authority of Business and Professions Code section 6077, the State Bar Court of California issued a decision imposing a public reproval upon respondent in case number 03-C-03937.

2. Pursuant to California Rule of Court 956, the State Bar Court decision ordered respondent to comply with certain conditions attached to the reproval.

3. The June 22, 2005 State Bar Court decision became final on July 22, 2005, and at all times thereafter has remained in full force and effect.

4. On June 22, 2005, the State Bar Court Clerk served the decision upon respondent by mail. Respondent received the decision shortly thereafter.

5. The decision requires respondent to comply with the specified conditions for a period of three years, i.e., from July 22, 2005, until July 22, 2008.

6. One of the conditions of the reproval provides as follows:

"Respondent must select a licensed medical laboratory approved by the Office of Probation and must furnish that laboratory with such blood and/or urine samples as may be required by the Office of Probation to show that respondent has abstained from the use of alcohol and drugs. The samples must be furnished to the laboratory in whatever manner may be specified by the laboratory to ensure specimen integrity. Respondent must cause the laboratory to provide the Office of Probation, at respondent’s expense, a screening report on or before the 10th day of each month of the period of probation, containing an analysis of respondent’s blood and/or urine obtained not more than ten days previously."

7. Respondent failed to timely cause the screening reports to be provided to the Office of Probation for the months of August, September, October, November and December 2005, and January, February and March 2006. Respondent did provide a screening report for the month of November, 2005. However, respondent failed to provide the screening report to the Office of Probation until on or about December 20, 2005. Respondent did provide a screening report for the month of April, 2006.

Conclusions of Law

8. By falling to provide the screening reports as specified in the reproval condition, respondent failed to comply with a condition attached to a public reproval administered by the State Bar pursuant to Business and Professions Code sections 6077 and 6078 and rule 956, California Rules of Court.

WAIVE OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY

The parties waive the right to the filing of the Notice of Disciplinary Charges.

FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES

SUPPORTING AUTHORITY

Standard 1.7(a) provides that if a member is found culpable of professional misconduct in any proceeding 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 proceeding 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.

Standard 2.9 suggests that culpability of a member of the wilful violation of rule 1-110 of the Rules of Professional Conduct shall result in suspension. It is well settled that suspension is the proper discipline for a violation of reproval conditions. (See e.g., Conroy v. State Bar (1990) 51 Cal.3d 799 [60 days’ actual suspension; one year stayed suspension]; see also In the Matter of Meyer (Review Dept. 1997) 3 CaI. State Bar Ct. Rptr. 697 [90 days’ actual suspension; two years’ stayed suspension]).

SUBSTANCE ABUSE CONDITIONS

Case Number(s):  06-H-10814

In the Matter of: John F. Morken

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 1 meetings per month of:

 checked. Alcoholics Anonymous

<<not>> checked. Narcotics Anonymous

<<not>> checked. The Other Bar

 checked. Other program Respondent may attend Alcoholics Anonymous or a program of his choice.

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.

 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.

SIGNATURE OF THE PARTIES

Case Number(s): 06-H-10814

In the Matter of: John F. Morken

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:  John F. Morken

Date: May 2, 2006

Respondent’s Counsel:

Date:

Deputy Trial Counsel: Susan I. Kagan

Date: 5/2/06

ORDER

Case Number(s): 06-H-10814

In the Matter of: John F. Morken

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.

 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: Joann M. Remke

Date: 5/31/06

CERTIFICATE OF SERVICE

[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 San Francisco, on May 31, 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 San Francisco, California, addressed as follows:

JOHN F. MORKEN

222 FRONT ST FL 5TH

SAN FRANCISCO, CA 94111 - 4419

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

SUSAN KAGAN, Enforcement, San Francisco

I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on May 31, 2006.

Signed by:

Bernadette C.O. Molina

Case Administrator

State Bar Court