Case Number(s): 07-C-10382-RAP
In the Matter of: Donald Paul Fedderly, Bar # 91253, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Suzan J. Anderson, Bar # 160559
Counsel for Respondent: In Pro Per, Bar #
Submitted to: Assigned Judge.
Filed: November 30, 2007.
<<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 29, 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 13 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. Costs are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: Costs to be paid in equal amounts prior to February 1 for the two billing cycles following the effective date of the Supreme Court order. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
Case Number(s): 07-C-10382-RAP
In the Matter of: Donald Paul Fedderly
<<not>> checked. a. Within days/ months/ years of the effective date of the discipline herein, Respondent must develop a law office management/organization plan, which must be approved by the Office of Probation. This plan must include procedures to (1) send periodic reports to clients; (2) document telephone messages received and sent; (3) maintain files; (4) meet deadlines; (5) withdraw as attorney, whether of record or not, when clients cannot be contacted or located; (6) train and supervise support personnel; and (7) address any subject area or deficiency that caused or contributed to Respondent’s misconduct in the current proceeding.
checked. b. Within days/ 12 months/ years of the effective date of the discipline herein, Respondent must submit to the Office of Probation satisfactory evidence of completion of no less than twelve (12) hours of Minimum Continuing Legal Education (MCLE) approved courses in law office management, attorney client relations and/or general legal ethics. This requirement is separate from any MCLE requirement, and Respondent will not receive MCLE credit for attending these courses (Rule 3201, Rules of Procedure of the State Bar.)
<<not>> checked. c. Within 30 days of the effective date of the discipline, Respondent must join the Law Practice Management and Technology Section of the State Bar of California and pay the dues and costs of enrollment for year(s). Respondent must furnish satisfactory evidence of membership in the section to the Office of Probation of the State Bar of California in the first report required.
Other:
Case Number(s): 07-C-10382-RAP
In the Matter of: Donald Paul Fedderly
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 four (4) meetings per month of:
<<not>> checked. Alcoholics Anonymous
<<not>> checked. Narcotics Anonymous
<<not>> checked. The Other Bar
checked. Other program Lawyers Concerned About Lawyers (New Jersey program)
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.
<<not>> 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.
<<not>> 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.
<<not>> 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.
Other:
IN THE MATTER OF: Donald Paul Fedderly, State Bar No. 07-C-10382-RAP
STATE BAR COURT CASE NUMBER: 07-C-10382-RAP
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING.
1. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 9.10 of the California Rules of Court.
2. On March 21, 2006, respondent was convicted of violating New Jersey Statutes Sections 2C:12-1c(2) and 39:4-50, Assault by Auto While Driving Intoxicated, a misdemeanor.
3. On August 15, 2007, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department to hold a hearing an issue a decision limited to the issue of whether the facts and circumstances surrounding the offense of which Respondent was convicted involved moral turpitude or other misconduct warranting discipline.
4. On September 19, 2007, the Review Department of the State Bar Court issued an augmented order referring the matter to the Hearing Department to include a hearing and decision recommending the discipline to be imposed in the event that the Hearing Department finds that the facts and circumstances surrounding the offenses involved moral turpitude or other misconduct warranting discipline.
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he/she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
FACTS
1. As a result of an automobile accident in Mt. Olive Township, New Jersey, on September 7, 2005, Respondent was issued two summons charging him with reckless driving in violation of N.J.S.A. 30:4-96 and driving while intoxicated in violation of N.J.S.A. 39:4-90. Subsequently, as a result of a police investigation into the same incident, Respondent was also charged with third degree assault by auto, in violation of N.J.S.A. 2C:12-1c(2), as a result of the injuries suffered by the other driver in the accident.
2. On March 21, 2006, Respondent appeared in the Superior Court of New Jersey, Law Division - Criminal, Morris County and entered guilty pleas to third degree assault by auto [N.J.S.A. 2C:12-1c(2)] and driving while intoxicated [N.J.S.A. 39:4-50]. The State dismissed the reckless driving summons as a result of Respondent’s guilty plea,
3. On April 27, 2006, Respondent was sentenced to three years probation, 180 hours of community service, a seven-month loss of driving privileges, fined $500 and assessed associated costs. The court took into account the aggravating factor of the need to deter. However, the court found six mitigating factors, namely that Respondent: (1) did not contemplate harm, (2) will do community service, (3) had no prior criminal activity, (4) would not have these circumstances reoccur, (4) would not likely commit the acts again, (5) would respond to probation and (6) that Respondent had no previous history of offenses of any type and heretofore had been a credit to the legal profession.
CONCLUSIONS OF LAW
The facts and circumstances surrounding Respondent’s criminal conviction did not involve moral turpitude, but did involve other conduct warranting discipline. Respondent acknowledges that by the conduct described above, he failed to support the laws of New Jersey in wilful violation of Business and Professions Code section 6068(a).
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was November 13, 2007.
COST OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of October 11, 2007, the costs in this matter are $1,636.00. 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 costs of further proceedings.
AUTHORITIES SUPPORTING DISCIPLINE.
Pursuant to standard 1.3, the primary purposes of disciplinary proceedings and imposing sanctions for professional misconduct are, "the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession."
With respect to the criminal conviction, standard 3.4 provides:
Final conviction of a member of a crime which does not involve moral turpitude inherently or in the facts and circumstances surrounding the crime’s commission but which does involve other misconduct warranting discipline shall result in a sanction as prescribed under part B of these standards appropriate to the nature and extent of the misconduct found to have been committed by the member,
By definition, every criminal conviction involves a violation of Business and Professions Code section 6068(a). Pursuant to standard 2.6, the culpability of a member of a violation of Business and Professions Code section 6068, "shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3."
The Supreme Court gives the standards "great weight," and will reject a recommendation consistent with the standards only where the Court entertains "grave doubts" as to its propriety. In re Naney (1990) 51 Cal. 3d 186, 190; see also In re Silverton (2005) 36 Cal. 4th 81, 91, 92. Further, although the standards are not mandatory, it is well established that the standards may be deviated from only when there is compelling, well-defined reason to do so. See Aronin v. State Bar (1990) 52 Cal. 3d 276, 291; see also Bates v. State Bar (1990) 52 Cal. 3d 1056, 1060, fn. 2.
In re Kelley (1990) 52 Cal.3d 487
Kelley was convicted of two separate driving-under-the-influence charges at different times. Kelley initially refused to take a field sobriety test during the second arrest, but ultimately complied when a second police officer arrived at the scene. The Supreme Court found that this did not constitute moral turpitude, but that there was some nexus between Kelley’s conduct and her fitness to practice law. The Court determined that Kelley should receive some discipline, but limited it to a public reproval and a 3-year probation.
In the Matter of Anderson (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 208
Anderson was convicted of four separate driving-under-the-influence charges at different times. In the third of which he pushed the officer backwards, causing him to fall. Anderson returned to his car and, when the officer tried to turn off the car’s ignition, Anderson pushed the officer’s hand away, put the car in gear and drove off into the night at high speed without headlights. The officer suffered a minor cut to his hand. The Court found that even here, there was no moral turpitude, but imposed a 60-day actual suspension and 1-year stayed suspension due to these violations.
Respondent’s conduct falls between Kelley and Anderson. Respondent’s conduct goes beyond Kelley in that he was also convicted of assault by auto due to the accident where the other driver suffered a broken ankle, but does not rise to the level of the conduct in Anderson. Accordingly, the one-year stayed suspension and one-year probation falls within the case law and follows the standards.
MITIGATING CIRCUMSTANCES.
Respondent has been a licensed attorney for 28 years and has no prior record of discipline. Std. 1.2(e)(i).
Throughout this proceeding, Respondent cooperated fully with the State Bar and was willing to discuss this matter, answer any questions which were posed by the State Bar, and entered into this comprehensive stipulation. Std. 1.2(e)(v).
Respondent stopped drinking immediately after the accident as he was overcome with remorse. A month after the accident, Respondent voluntarily submitted to evaluation by Hackettstown Memorial Hospital where it was recommended that he attend their outpatient program. Respondent successfully completed their three-month program and continues to be involved with Lawyers Concerned About Lawyers, a New Jersey program much like the Other Bar. Std. 1.2(e)(vii).
STATE BAR ETHICS SCHOOL EXCLUSION
Respondent resides outside California and is unable to attend State Bar Ethics School. As an alternative to State Bar Ethics School, the parties agree that respondent will complete the following courses: 6 of the required 12 hours of MCLE shall be in legal ethics.
SIGNATURE OF THE PARTIES
Case Number(s): 07-C-10382-RAP
In the Matter of: Donald Paul Fedderly
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: Donald Paul Fedderly
Date: November 20, 2007
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Suzan J. Anderson
Date: November 27, 2007
Case Number(s): 07-C-10382-RAP
In the Matter of: Donald Paul Fedderly
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: Richard A. Platel
Date: November 28, 2007
[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 November 30, 2007, 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 Los Angeles, California, addressed as follows:
DONALD PAUL FEDDERLY
88 BARTLEY SQUARE
BUILDING B UNIT 4
FLANDERS NJ 07836
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SUZAN ANDERSON, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 30, 2007.
Signed by:
Angela Owens-Carpenter
Case Administrator
State Bar Court