Case Number(s): 06-O-10266-PEM, 05-O-03659 (Unfiled)
In the Matter of: Francis J. McGrew, Bar # 122523, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Tammy M. Albertsen-Murray, Bar # 154248
Counsel for Respondent: Damone K. Hale, Bar # 153686
Submitted to: settlement judge State Bar Court Clerk’s Office San Francisco
<<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 February 21, 1986.
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. until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 284, Rules of Procedure.
checked. costs to be paid in equal amounts prior to February 1 for the following membership years: 2008, 2009, 2010, 2011 and 2012 (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.
See Attachment
See Attachment
IN THE MATTER OF: FRANCIS J. McGREW
CASE NUMBER(S): 06-O- 10266-PEM [filed] 05-O-03659 [unfiled]
FACTS AND CONCLUSIONS OF LAW.
Case number 06-O-10266
In or about November, 2004, respondent signed a stipulation in which he agreed to receive attorney discipline and agreed to comply with specified conditions of probation (State Bar case numbers 03-0-04373, 03-H-02104). By orders made on November 23, 2004 and January 6, 2005, the State Bar Court approved the stipulation subject to certain modifications. Respondent did not object to the modifications, and the stipulation was forwarded to the California Supreme Court. On May 19, 2005, based upon the stipulation as modified, the California Supreme Court filed an order suspending respondent from the practice of law for one year and until payment of restitution, staying execution of the suspension, and placing respondent on probation for three years on various conditions of probation set forth in the stipulation as modified (Supreme Court Case Number S 131686). The Supreme Court order became effective on June 18, 2005.
One of the conditions of probation required respondent to submit written quarterly reports under penalty of perjury to the Probation Unit on each January 10, April 10, July 10, and October 10 of the period of probation. Respondent was required to state whether he had complied with the State Bar Act, the Rules of Professional Conduct, and all conditions of probation during the preceding calendar quarter. Respondent submitted the October, 2005 report untimely on December 1, 2005. Respondent failed to submit the January, 2006 at all. Respondent did not submit the report due on April 10, 2006 until April 20, 2006, which was also untimely.
One of the conditions of probation required respondent to attend Alcoholics Anonymous, Narcotic Anonymous, or other therapy counseling of his choice, or combination thereof, during the period of probation, as least once a week during the first year of probation, twice a month during the second year of probation and once a month during the third year of probation.
Despite the requirement that was required to state in his quarterly probation reports whether he had complied with "...all conditions of probation during the preceding calendar quarter," respondent failed to state in his October, 2005 and April, 2006 quarterly reports whether he had attended Alcoholics Anonymous, Narcotic Anonymous, or other therapy/ counseling of his choice during the preceding calendar quarter. Because respondent failed to submit any January, 2006 quarterly report, he also failed to provide the required information for that reporting period.
One of the conditions of respondent’s probation required respondent to furnish to a licensed medical laboratory of his choice upon request of the Probation Unit such blood and/or urine samples as may be required to show that respondent has abstained from the use of alcohol and drugs. On December 6, 2005, a deputy of the State Bar’s Office of Probation directed respondent to submit to a drug test and to have the results sent to the State Bar Probation Office. Respondent failed to comply with this request in that he both (1) failed to submit to a drug test and (2) failed to cause any drug test results to be submitted to the Probation Office.
Thereafter, on or about December 22, 2005, respondent submitted a false and fictitious drug screening report to the State Bar Probation Office. The drug testing report: (1) was purportedly dated December 9, 2005, (2) purported to be from the Alameda County Probation Department, (3) purported to contain a signature from a staff member of the Alameda County Probation Department, (4) indicated that the Alameda County Probation Department had tested respondent for drugs and (5) indicated that the drug test results were negative. However, the Alameda County Probation Department had not prepared the report and had not tested respondent for drugs, and the purported staff signature was falsified, all of which was known to respondent. Respondent submitted the document to the State Bar Probation Office in order to deceive that office.
Respondent further completely refused to comply with a directive from the State Bar’s Probation Unit on July 19, 2006 to submit to a drug test.
One of the conditions of probation required respondent to pay restitution in monthly installments and to provide the Probation Unit with satisfactory proof thereof with each quarterly report submitted of his payments of no less than $150.00 per month to Eddie Tobias beginning September 1, 2004, until the principal sum of $2,500.00 is paid in full. Respondent stipulated that "If]ailure to make timely payment is a material violation of the probation conditions, and will trigger the probation requirement that the full sum of $2,500.00 will be immediately due and payable to Tobias with 10% interest per annum accruing from 120 days after the date of the Supreme Court order herein."
Respondent missed payments due to Mr. Tobias in July, August and November, 2005 and in January, 2006. Respondent, through counsel, ultimately paid the remaining restitution and interest due to Mr. Tobias on or about June 12, 2006. Neither respondent nor his counsel reported respondent’s full compliance with the restitution condition to the Probation Department as required by the conditions of his probation.
One of the conditions of probation required respondent to take and provide proof of passage of the Multistate Professional Responsibility Examination ("MPRE") to the Probation Unit, within one year. Respondent has, to date, failed to pass and to provide proof of passage of the MPRE to the Probation Unit.
Conclusions of Law.
Respondent failed to comply with conditions attached to a disciplinary probation in willful violation of Rules of Professional Conduct, rule l-I 10 by: (I) submitting quarterly reports late, (2) failing to submit the January 10, 2006 quarterly report at all, (3) failing to report his compliance with the condition requiring attendance at Alcoholics Anonymous, Narcotics Anonymous, or other therapy/counseling of his choice, (4) failing to pay restitution in a timely manner, (5) failing to submit to drug testing on two separate occasions, (6) failing to provide results of drug testing to the State Bar Probation Office, (7) submitting to the Probation Office a falsified and fabricated drug testing report, and (8) failing to take and pass the MPRE within one-year of the effective date of his probation or at all.
Respondent committed an act of moral turpitude, dishonesty and corruption by submitting to the State Bar Probation Office a falsified drug testing report on or about December 22, 2005, in violation of Business and Professions Code, section 6106.
Case no. 05-0-03659 (not yet filed)
Facts.
Respondent represented a defendant in a criminal matter in Alameda Superior Court. Respondent’s actual suspension resulting from discipline imposed in State Bar case no. 03-004373/03-H-02104 (Supreme Court case no. S 131686) was to go into effect on June 18, 2005. At a court appearance for the defendant on June 16, 2005, respondent and the judge discussed the return date to be set for the preliminary hearing. Respondent did not inform the court that he would be unable to appear between June 18 and July 22, 2005 because of an actual suspension. Respondent instead told the judge that he would be unavailable for a variety of other reasons. Based on respondent’s misrepresentations, the Court set the return date for the preliminary hearing for July 22, 2005.
Conclusion of Law.
By failing to inform the Court that his pending actual suspension was the reason for the request to set a further hearing for July 22, 2005 and by misrepresenting to the Court reasons other than his actual suspension for his unavailability to appear during the period at issue, respondent wilfully violated Business and Professions Code, section 6068(d).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was October 3, 2006.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 2, 2006, the estimated prosecution costs in this matter are approximately $4,273.00, exclusive of deposition related expenses for the proceeding held on September 14, 2006, which are yet to be fully determined and will be added to the Office of the Chief Trial Counsel’s costs. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. 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.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.3 - Culpability of a member of an act of moral turpitude, fraud, dishonesty or concealment toward a court, client or another person or if concealment of a material fact to a court, client or another person shall result in actual suspension or disbarment;
Standard 2.6 (a) - Offenses Involving Other Specified Sections of the Business and Professions Code - section 6068(k) - shall result in disbarment or suspension depending on the gravity of the offense or harm;
Standard 2.9 - Culpability of a member of a wilful violation of rule 1-110, RPC, shall result in suspension;
Borre v. State Bar (1991) 52 Cal.3d 1047 (misconduct included creating a false letter regarding a requested extension of time to file an appeal which respondent tendered to the State Bar during its investigation, and lying to the State Bar; moral turpitude found; two years actual suspension);
Rodgers v. State Bar (1989) 48 Cal.3d 300, 315 ("Subdivision (d) of section 6068 obligates an attorney to ’employ, for the purposes of maintaining the causes confided in him, such means only as are consistent with the truth.’ The statute requir.es an attorney to refrain from misleading and deceptive acts without qualification. (citing, Diabatino v. State Bar (1980) 27 Cal.3d 159, 162)." Two years actual suspension;
In the Matter of Chesnut (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 166, 174-175 (to find a violation of Business and Professions Code section 6106, an attorney’s actual intent to deceive is not necessary. It is sufficient that respondent knowingly presented a false statement that tended to mislead the court; six months actual suspension).
AGGRAVATING CIRCUMSTANCES.
PRIOR DISCIPLINE (CONTINUED FROM PAGE 2).
(a) State Bar Court case # of prior case 03-0-04373; 03-H-02104 (Cons.); Supreme Court case no. S13186 (and as modified by Supreme Court order dated May 19, 2005
(b) Date prior discipline effective June 18, 2005 (and as modified by Supreme Court order dated May 19, 2005)
(c) Rules of Professional Conduct/State Bar Act violations: RPC 3-700(D)(2); RPC 1-110
(d) Degree of prior discipline One (1) year suspension, stayed and until payment of restitution; three (3) years probation with conditions, including 30 days actual suspension
MITIGATING CIRCUMSTANCES.
Respondent agreed to this stipulated discipline, thus obviating the need for trial.
STATE BAR ETHICS SCHOOL EXCLUSION.
It is not recommended that respondent attend State Bar Ethics School since respondent attended Ethics School within the last two years on August 31, 2006 in connection with State Bar case numbers 03-0-04373 and 03-H-02104 (Supreme Court case no. S13186).
OTHER CONDITIONS NEGOTIATED BY THE PARTIES.
1. Respondent shall abstain from any use of alcoholic beverages and may neither use nor possess any narcotics, controlled substances, marijuana or associated paraphernalia, except with a valid prescription issued by a physician who has been provided with a copy of this stipulation and resulting Supreme Court order. Respondent further acknowledges that he will bear the burden of proving that any physician under this condition has been provided with a copy of this stipulation and Supreme Court order.
2. ATTENDANCE AT ABSTINENCE-BASED SELF-HELP GROUP: Respondent shall attend an abstinence-based self help group of his own choosing, including inter alia, Narcotics Anonymous, LifeRing, S.M.A.R.T, S.O.S. Other self-help maintenance programs are acceptable if they include: (i) a subculture to support recovery (meetings); and (ii) a process of personal development that does not have financial barriers. (See, O’Conner v. Calif. (C.D. Calif. 1994) 855 F. Supp. 303 [No first amendment violation where probationer given choice between AA and secular program].) The program called "Moderation Management" is not acceptable because it allows the participant to continue consuming alcohol. Frequency of meetings: respondent shall attend at least four (4) meetings per month at the rate of one per week during the first two years of the probation period; two (2) meetings per month at the rate of one every other week during the third year of probation; and one (1) time per month on any day of the month convenient to respondent for the fourth year of probation.
Respondent shall furnish to the Probation Unit of the State Bar proof of attendance at the meetings set forth in this Condition. If respondent attends meetings via the internet, respondent shall furnish to the Probation Unit documentary evidence of his participation in such meetings.
3. Respondent shall furnish to a licensed medical laboratory of his choice upon request of the Probation Unit such blood and/or urine samples as may be required to show that respondent has abstained from the use of alcohol and other drugs. Said samples must e furnished to the laboratory in such a manner as may be specified by the laboratory to ensure specimen identification and integrity. Upon the Probation Unit’s request, respondent shall cause the laboratory to provide the Probation Unit at respondent’s expense a screening report based on said samples.
4. Respondent shall at all times maintain with the Probation Unit a current address and a current telephone number at which he can be reached. Respondent must personally return within twelve (12) hours any telephone call from the Probation Unit concerning blood and/or urine testing. The Probation Unit may require respondent to deliver his blood and/or urine to a laboratory no later than six (6) hours after telephone notice to respondent at the number provided by respondent. The parties acknowledge that any requirement by the Probation Unit for respondent to submit a blood and/or urine sample within six (6) hours shall be made by the Probation Unit no later than 10:00 a.m. of the day the test is being required.
RESTRICTIONS WHILE ON ACTUAL SUSPENSION.
1. During the period of actual suspension, respondent shall not:
Render legal consultation or advice to a client;
Appear on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate; commissioner, or hearing officer;
Appear as a representative of a client at a deposition or other discovery matter;
Negotiate or transact any matter for or on behalf of a client with third parties;
Receive, disburse, or otherwise handle a client’s funds; or
Engage in activities which constitute the practice of law.
2. Respondent shall declare under penalty of perjury that he or she has complied with this provision in any quarterly report required to be filed with the Probation Unit, pertaining to periods in which the respondent was actually suspended from the practice of law.
SUSPENSION NOTIFICATION REQUIREMENTS.
1. Within the first thirty days following commencement of probation, respondent shall provide written notifications concerning the suspension by registered or certified mail, return receipt requested, to:
a. all clients being represented in pending matters;
b. any co-counsel;
c. any opposing counsel or unrepresented opposing parties; and
d. the court, agency or tribunal in which any active litigation is pending.
2. The notification shall state the following:
a. that the respondent has been suspended from the practice of law;
b. the effective date of the suspension;
c. the length of the suspension;
d. the respondent’s consequent ineligibility to render legal services during the period of the suspension; and
e. in notifications to clients, any urgency in seeking the substitution of other legal counsel.
3. Within the first forty days following commencement of probation, respondent shall file an affidavit (or declaration in conformity with the requirements of California Code of Civil Procedure section 2015.5) with the Probation Unit showing that respondent has fully complied with these provisions.
4. Respondent shall maintain complete records of the notifications and the certified or registered mailings and shall provide such records upon the request of the Office of the Chief Trial Counsel.
SIGNATURE OF THE PARTIES
Case Number(s): 06-O-10266-PEM; 05-O-03659 (unfiled)
In the Matter of: Francis J. McGrew
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: Francis J. McGrew
Date: 10-23-06
Respondent’s Counsel: Damone K. Hale
Date: 10-24-06
Deputy Trial Counsel: Tammy M. Albertsen-Murray
Date: 10/24/06
Case Number(s): 06-O-10266; 05-O-03659
In the Matter of: Francis J. McGrew
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.
checked. All Hearing dates are vacated.
1. On page 11, under Prior Discipline, the Supreme Court case No. is $131686.
2. On page 12, under Other Conditions Negotiated by the Parties, in paragraph 2, the following is deleted: "; and one (1) time per month on any day of the month convenient to respondent for the fourth year of probation." Respondent will be on probation for only three years.
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: 10/31/06
[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 San Francisco, on October 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:
DAMONE K HALE
88 HOWARD ST #2305
SAN FRANCISCO CA 94105
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
TAMMY ALBERTSEN-MURRAY, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on
October 31, 2006.
Signed by:
George Hue
Case Administrator
State Bar Court