Case Number(s): 06-O-10954-1
In the Matter of: (Respondent), Gordon Spencer Bar # 67634
Counsel For The State Bar Susan I. Kagan, Bar # 214209
Counsel for Respondent: Carol Langford, Bar # 124812
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
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 December 15, 1975.
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 10 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. 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.
<<not>>checked. costs to be paid in equal amounts prior to February 1 for the following membership years: 2010 and 2011. (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.
No Prior Discipline: Respondent has no prior record of discipline over many years of practice. See page 8.
Attachment language begins here (if any):
FACTS AND CONCLUSIONS OF LAW
Facts
1. At all relevant times, respondent was the District Attorney of Merced County.
2. At all relevant times, Karen Spencer was married to respondent’s son, Nathan Spencer.
3. On March 18, 2005 Karen and Nathan Spencer ("Spencers") met with a representative of Armstrong Cabinet Products ("Armstrong Cabinets" or "the company") concerning the purchase of additional kitchen cabinets. The representative drew a sketch of the cabinets the Spencers wanted installed and the sketch included two small end cabinets the representative labeled as B5-24. The end cabinets were also set forth in a list of the parts to be included in the order under the heading, "Lot #118" says "2-B5-24 1L/1R." The company’s representative told the Spencers that the price on the contract they would be receiving from the company would include everything on the sketch.
4. Subsequently the Spencers received a contract from Armstrong Cabinets and Karen Spencer executed a contract with the company for the purchase and installation of kitchen cabinets. The contract set forth the price of the shelving as $3106.54 and also stated: "Pricing reflects manufacture, delivery, and install of additional cabinets per the meeting between Armstrong Field Technician and said customer on March 18, 2005. See attached sketch developed at time of initial meeting on March 18, 2005." The Spencers paid half of the contract price to schedule installation as called for in the contract. Thereafter, the company’s installer installed the cabinets, but he did not install the end shelves set forth in the sketch. When Nathan Spencer questioned the installer about the end shelves, the installer informed him that the company forgot them when they loaded the truck. The installer informed Nathan that the shelves were part of the sketch and the contract and someone would come out later and install the end shelves. Based on the representation of the installer, Nathan Spencer paid the remaining half of the contract price, as provided in the contract. As of that payment, the contract price was paid in full.
5. Thereafter a dispute arose between the Spencers and Armstrong Cabinets. Armstrong Cabinets admitted that the shelves were included in the sketch and contract, but claimed that the shelves were not included in an invoice. Therefore, the company claimed that the Spencers did not pay for the shelves. On the other hand, Karen Spencer claimed that the shelves were already paid for since they were included in the contract and the sketch. Therefore, she requested installation of the shelves for no additional charge. On June 7, 2005, the company sent a letter to Karen Spencer admitting its error and proposing that the Spencers pay an additional $266.00 for the shelves. On June 7, 2005 the Spencers rejected the company’s proposal on the basis that they claimed the end shelves were included in the contract and had been paid in their final payment to the company based on the representations of the installer.
6. Thereafter the Spencers contacted respondent and asked if his office could look into the matter ("the cabinet matter"). Respondent agreed and asked for the relevant paperwork. Karen Spencer provided respondent the paperwork including the June 7, 2005 letter from Armstrong Cabinets.
7. Upon receipt and review of the paperwork, respondent assigned the cabinet matter to a deputy district attorney who handled consumer fraud in the Merced County District Attorney’s Office. Subsequently the deputy district attorney was dismissed from the office for matters entirely unrelated to the cabinet matter. The deputy district attorney had taken no action on the cabinet matter.
8. In September 2005, during a family event at Nathan Spencer’s house, respondent discovered that no action had been taken by the consumer deputy district attorney on the cabinet matter. Thereafter respondent decided to assign the cabinet matter to Albert Flores ("Flores") an investigator in the Merced District Attorney’s Office. A few days prior to September 7, 2005, respondent contacted Flores to notify him about the assignment and schedule a meeting to discuss the matter.
9. On September 7, 2005, respondent met with Flores in respondent’s office. At that time, respondent explained the cabinet matter to Flores and provided him with copies of the relevant paperwork. Respondent’s conversation with Flores was interrupted by other business. Consequently, respondent did not feel he was communicating all of the relevant matters to Flores. Therefore, respondent asked Flores for permission to use Flores’ name in a telephone call to Armstrong Cabinets. Flores agreed and provided respondent with Flores’ direct line telephone number. Flores remained in the room for the entire telephone conversation. Respondent then called the Armstrong Cabinets and informed the company that the call was an inquiry about a contract for cabinets and end shelves that were not installed. During the call, respondent misrepresented himself as Albert Flores of the Merced County District Attorney’s Office. The Armstrong Cabinets’ representative indicated a familiarity with the case, but said that she would have to contact the company’s legal department and call Mr. Flores back. The representative asked for Flores’ contact information and respondent provided Flores’ telephone number. The call lasted approximately two minutes and was the only call respondent made on the cabinet matter.
10. Upon learning of the company’s promise to call Flores, Flores asked how he would explain the difference between his voice and respondent’s voce. In response, respondent advised Flores to tell the company that he was sick. On September 8, 2005, Armstrong Cabinets left a voicemail message with Flores requesting that he contact the company. On September 9, 2005, Flores contacted Armstrong Cabinets and was advised that the company would honor their contract and sketch and provide the missing shelves. Thereafter, Flores notified respondent of the company’s response.
11. Respondent readily acknowledges that using Flores’ name was a mistake and has never denied using Flores’ name. Respondent contends that he used Flores’ name in an effort to avoid intimidating Armstrong Cabinets had the company known that the dispute was with the children of the District Attorney.
Conclusions of Law
By falsely representing himself as Albert Flores of the District Attorney’s Office in the telephone conversation with Armstrong Cabinets on September 7, 2005, for the purpose of making an inquiry about the missing shelving on behalf of an immediate family member, respondent committed an act involving moral turpitude in violation section 6106 of the Business and Professions Code.
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph A (7) was December 16, 2008. There are no other investigations or disciplinary actions pending against respondent at this time.
FACTS SUPPORTING AGGRAVATING AND MITIGATING CIRCUMSTANCES
AGGRAVATING CIRCUMSTANCES
There are no aggravating circumstances in this matter.
MITIGATING CIRCUMSTANCES
Standard 1,2(e)(i). Respondent has been in practice since December 15, 1975. He has no prior record of discipline.
Standard 1.2(e)(v). Respondent displayed spontaneous candor and cooperation to the State Bar during the investigation.
Standard 1.2(e)(vi). Respondent demonstrated good character.
Standard 1.2(e)(vii). Respondent displayed remorse for his misconduct.
SUPPORTING AUTHORITY
Standard 2.3 requires an actual suspension or disbarment for a respondent that has committed an act of moral turpitude.
The proper discipline for an act of moral turpitude is a period of actual suspension. (See In the Matter of Dale (2005) 4 Cal. State Bar Ct. Rptr. 798 [four months’ actual suspension for making misleading statements to induce a witness to sign a confession; no prior record of discipline].) Based on respondent’s extensive mitigation, including 30 years of discipline-free practice, a 30-day actual suspension is appropriate in this matter.
SIGNATURE OF THE PARTIES
Case Number(s): 06-O-10954
In the Matter of: Gordon Spencer
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: Gordon Spencer
Date: 12-29-08
Respondent’s Counsel: Carol Langford, Esq.
Date: 12-23-08
Deputy Trial Counsel: Susan I. Kagan
Date: 1/5/09
Case Number(s): 06-O-10954
In the Matter of: Gordon Spencer
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 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Lucy Armendariz
Date: January 9, 2009
[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 January 13, 2009, 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:
CAROL LANGFORD
100 PRINGLE AVE #570
WALNUT CREEK, CA 94596
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUSAN I. KAGAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on January 13, 2009.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court