Case Number(s): 07-C-11624-RAP
In the Matter of: Gary Steven Spitzer, Bar # 155425, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Ashod Mooradian, Bar # 194283
Counsel for Respondent: Bar #
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
Filed: August 4, 2009
<<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 December 17, 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 14 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 added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. case ineligible for costs (private reproval).
checked. costs to be paid in equal amounts prior to February 1 for the following membership years: three billing cycles following the effective date of the Supreme Court order. (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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
None
None.
IN THE MATTER OF: Gary Steven Spitzer, Bar # 155425
CASE NUMBER(S): 07-C-11624-RAP
A. PARTIES ARE BOUND BY THE STIPULATED FACTS, CONCLUSIONS OF LAW AND DISPOSITION.
The parties intend to be and are hereby bound by the stipulated facts, conclusions of law, and disposition contained in this stipulation. This stipulation as to facts and the facts so stipulated shall independently survive even if the conclusions of law and/or stipulated disposition set forth herein are rejected or changed in any manner whatsoever by the Hearing Department or the Review Department of the State Bar Court, or by the California Supreme Court.
B. WAIVER OF FINALITY OF CONVICTION (rule 607).
Pursuant to the Rules of Procedure of the State Bar of California, rule 607, the parties stipulate that the Court may decide the issues as to the discipline to be imposed even if the criminal convictions discussed herein are not final.
Respondent waives finality of his conviction and consents to the State Bar Court’s acceptance of this Stipulation as to facts, conclusions of law and discipline in all respects as if the conviction was final, including the entry of findings consistent with this Stipulation, imposition of discipline, or entry of a recommendation as to the degree of the discipline to be imposed.
Respondent waives any right to challenge on the basis of a lack of finality of his conviction the State Bar Court’s recommendation of discipline, if any, and the actual imposition of discipline, if any, by the State Bar Court or the California Supreme Court.
Respondent further waives any right he may have to seek review or reconsideration on the basis of any relief he may receive as a result of any appeal of, or petition regarding, the criminal conviction underlying any recommendation of and/or actual imposition of discipline by the State Bar Court or the California Supreme Court.
C. FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Facts:
1. On December 18, 2005, at approximately 3:00 a.m., Gary Steven Spitzer ("Respondent") was observed by a citizen stopped in a vehicle at an intersection. Respondent’s head was resting on the window and Respondent appeared to be unconscious.
2. The citizen called 9-1-1, and two fire department vehicles arrived approximately 20 minutes later with their sirens blaring. During the twenty-minute wait, and during the arrival of the emergency vehicles, Respondent did not wake up.
3. As the fire department personnel approached Respondent’s vehicle, Respondent woke up, started his vehicle and drove through a red light at a high rate of speed. Respondent then made a U-turn and drove in the wrong direction, eventually speeding away from the area.
4. The citizen, in his vehicle, followed Respondent as Respondent drove through both commercial areas and residential neighborhoods. While following Respondent, the citizen was in touch, via his cellular telephone, with the Beverly Hills Police Department, providing information on Respondent’s whereabouts.
5. Eventually, Respondent came to a stop and parked his vehicle on a residential street.
6. Immediately thereafter, members of the Beverly Hills Police Department arrived at the location. Officer David Hamel ("Hamel"), arrived at the scene and detected that Respondent had the odor of alcohol on his person, slurred speech and red, watery and glassy eyes.
7. Respondent told Hamel that he weighed approximately 220 pounds, and that he had consumed a total of six drinks beginning at 9:00 p.m. and ending at 1:30 a.m. Hamel had Respondent perform a series of field sobriety tests ("FST’s"), and at the conclusion thereof, arrested defendant for driving under the influence.
8. After being advised of Respondent’s obligation to submit to testing, Respondent selected the blood test and was transported to a hospital. Respondent’s blood was drawn at approximately 6:05 a.m. by a registered nurse.
9. Then, a criminalist analyzed Respondent’s blood sample and obtained a blood alcohol reading of 0.10 percent. Using an extrapolation formula, the criminalist determined that at the time Respondent drove, Respondent’s blood alcohol level was between 0.10 and 0.15 percent.
10. On March 15, 2006, a criminal complaint was filed in Los Angeles Superior Court case number 6BV00495 ("Criminal Case") charging Respondent with having committed, on or about December 18, 2005, the following offenses:
a. violation of Vehicle Code §23152(a), a misdemeanor, [driving under the influence of alcohol/drugs];
b. violation of Vehicle Code §23152(b), a misdemeanor, [driving a vehicle with a blood alcohol content of 0.08% or more];
c. alleged prior conviction on February 24, 2000, for violation of Vehicle Code §23152(b), a misdemeanor, [driving a vehicle with a blood alcohol content of 0.08% or more] in Los Angeles Superior Court case number 9BH01754;
d. alleged prior conviction on March 11, 2003, for violation of Vehicle Code §23103(a), a misdemeanor, ["wet" reckless driving] in Los Angeles Superior Court case number 2SB02436;
11. On January 29, 2007, jury trial begins in Respondent’s Criminal Case and is completed on February 6, 2007. During the trial, Respondent is represented by counsel who offers exhibits and witness testimony including the testimony of Respondent.
12. On February 6, 2007, the jury issued its verdict in the Criminal Case finding Respondent guilty in Count One, a violation of Vehicle Code §23152(a) [driving under the influence of alcohol/drugs] and Count Two, a violation of Vehicle Code §23152(b) [driving a vehicle with a blood alcohol content of 0.08% or more].
13. On June 21, 2007, the Respondent was sentenced in the Criminal Case for:
a. Count One to summary probation for a period of sixty (60) months, to serve 210 days in Los Angeles County jail, to enroll, participate and successfully complete an eighteen (18) month licensed second-offender alcohol and other drug education and counseling program, payment of restitution, fines, penalties and assessments;
b. Count Two to summary probation for a period of sixty (60) months, to enroll, participate and successfully complete an eighteen (18) month licensed second-offender alcohol and other drug education and counseling program and to obey several other conditions, including but not limited to not driving any vehicle with any measurable amount of alcohol or drugs in Respondent’s blood, to not refuse to take and complete any blood alcohol or drug chemical test, any FST’s when requested by any peace officer, to not operate a motor vehicle for a period of three years without an ignition interlock device pursuant to Vehicle Code §23248 and to obey all laws and further orders of the Court.
Conclusions of Law:
14. The facts and circumstances surrounding Respondent’s conviction in the Criminal Case for violation of Vehicle Code §23152(a) [driving under the influence of alcohol/drugs], a misdemeanor and conviction for violation of Vehicle Code §23152(b) [driving a vehicle with a blood alcohol content of 0.08% or more], a misdemeanor, involved other misconduct warranting discipline pursuant to Business and Professions Code, sections 6101 and 6102.
D. AUTHORITIES SUPPORTING DISCIPLINE.
Applicable Standards:
In In re Silverton, the California Supreme Court held that the Standards For Attorney Sanctions For Professional Misconduct ("Standard” or "Standards") are entitled to "great weight" and the Court will "not reject a recommendation arising from the Standards unless [it has] grave doubts as to the propriety of the recommended discipline." (2005) 36 Cal. 4th 81, 92. The Standards are not binding but "they promote the consistent and uniform application of disciplinary measures.’ (Id) The "presumptively appropriate level of discipline" for any misconduct is as set forth in the standards. (See Morgan v. State Bar (1990) 51 Cal.3d 598, 607.
Further, the primary purposes of disciplinary proceedings 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. (See Standard 1.3.) Pursuant to the Standards and as further discussed below, Respondent’s misconduct warrants significant discipline.
Standard 3.4 provides that the 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 does involve other misconduct warranting discipline shall result in a sanction as prescribed under part B of the standards. According to the California Supreme court, the discipline suggested under standard 3.4 "is that discipline appropriate to the nature and extent of the misconduct. (In re Kelley (1990) 52 Cal. 3d 487, 498.
Aggravating Circumstances:
Standard 1.2(b) provides for a greater degree of sanction than set forth in the Standards where aggravating circumstances exist. No aggravating circumstances exist in this matter.
Mitigating Circumstances:
Standard 1.2(e) provides for a more lenient degree of sanction than set forth in the Standards where mitigating circumstances exist. In this case, there is a mitigating circumstance. Pursuant to Standard 1.2(e)(v), Respondent cooperated to the extent that he stipulated to facts, conclusions of law and level of discipline.
Given the nature and scope of Respondent’s misconduct, and considering evidence of aggravating and mitigating circumstances, the appropriate level of discipline under the Standards is a public reproval.
Caselaw:
In fashioning the appropriate level of discipline, the Standards are the starting point. Consideration must also be given to whether the recommended discipline is consistent with or disproportional to prior decisions of the California Supreme Court and the Review Department of the State Bar Court.
The Respondent’s convictions involved driving, but no actual harm occurred to any person or property. Thus, the present case is distinguishable from In re Alkow. (1966) 64 Cal. 2d 838.) Although the potential for harm was significant given Respondent’s operation of a motor vehicle while intoxicated, the paucity of facts presented do not permit a conclusion that Respondent’s "conduct showed a complete disregard for the conditions of his probation, the law, and the safety of the public. (In re Alkow, supra, 64 Cal. 2d 838, 841.) However, the Supreme Court has concluded in other cases that drunk driving convictions may involve other misconduct warranting discipline.
In re Kelley (In re Kelley, supra, 52 Cal. 3d 487, 496.) involved an attorney who, had been convicted of driving under the influence in violation of Vehicle Code §23152(b), with a prior conviction for the same offense, and of violating the terms of her probation imposed in the first conviction in violation of Penal Code, §1203.2. (In re Kelley, supra, 52 Cal. 3d 487, 491-492.) The prior conviction occurred some 31 months before the second conviction. (In re Kelley, supra, 52 Cal. 3d 487, 492.) The Supreme Court found that Kelley’s two driving under the influence convictions within a 31 month period indicated problems with alcohol abuse. (In re Kelley, supra, 52 Cal. 3d 487, 495.) Her repeated criminal conduct, and the circumstances surrounding it, are indications of alcohol abuse that is adversely affecting petitioner’s private life. We cannot and should not sit back and wait until petitioner’s alcohol abuse problem begins to affect her practice of law.’’ (Id).
Respondent had a prior conviction for DUI in 2000 and a prior conviction for "wet" reckless driving (which is considered a prior for the DUI conviction at issue in this matter) in 2003 and the conviction in this matter occurred in 2007. Although none of the convictions involved the practice of law, Respondent’s repeated criminal conduct within this extended period of time is an indication that alcohol abuse is adversely affecting Respondent’s private life. Thus, Respondent’s level of discipline should at least be equal to that imposed upon Kelley.
Therefore, for the misconduct described herein, Respondent’s public reproval is the level of discipline consistent with the applicable standards and caselaw.
E. PENDING PROCEEDINGS.
Respondent was notified in writing of any pending investigations not included in this stipulation, pursuant to Rules of Procedure of the State Bar of California, rule 133(12), on July 21, 2009.
F. COSTS.
Respondent acknowledges that the Office of Chief Trial Counsel has informed Respondent that as of July 21, 2009, the estimated prosecution costs in this matter are approximately $3,530.00. Respondent acknowledges that this figure is an estimate only. 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.
If Respondent fails to pay any installment within the time provided herein or as may be modified by the State Bar Court pursuant to section 6068.10, subdivision (c), the remaining balance of the costs is due and payable immediately and enforceable both as provided in Business and Professions Code, section 6140.7 and as a money judgment unless relief has been granted under rule 286 of the Rules of Procedure of the State Bar of California.
Case Number(s): 07-C-11624-RAP
In the Matter of: Gary Steven Spitzer
<<not>> 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.
<<not>> checked. b. Respondent must attend at least meetings per month of:
<<not>> checked. Alcoholics Anonymous
<<not>> checked. Narcotics Anonymous
<<not>> checked. The Other Bar
<<not>> checked. Other 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 TERMS:
1) Substance Abuse Evaluation ("SAE")
a) Respondent must undergo a SAE conducted by a medical doctor who has attained the American Society of Addiction Medicine (ASAM) certification for qualification;
b) The SAE and Report (not including treatment, if any) must be completed within 60 days of the effective date of this Reproval;
c) Respondent’s failure to complete the SAE within the time indicated in subparagraph "b)" above will be deemed a Reproval violation;
d) If the SAE Report indicates the need for treatment, Respondent will comply with and complete the terms of the recommended treatment, Respondent’s compliance with the terms of the recommended treatment would be determined by the ASAM member pursuant to ASAM standards;
e) Respondent will report his compliance with all terms of the SAE Report’s recommended treatment to the State Bar Office of Probation on a quarterly basis during the entire effective period of the Reproval;
f) Respondent must inform the State Bar Office of Probation upon completion of the SAE Report’s recommended treatment, if any;
g) Respondent’s failure to participate and complete the SAE Report’s recommended treatment by ASAM standards will be deemed a Reproval violation;
h) Within 15 days after the completion of the SAE report, Respondent must provide the Office of Probation with medical waivers and access to obtain a copy of the SAE Report and Respondent’s treatment/medical records maintained by the ASAM member. 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 Chief Trial Counsel, and the State Bar Court who are directly involved with maintaining, enforcing or adjudicating this condition;
i) Respondent’s revocation of the medical waiver referenced in sub-paragraph "h)" above will be deemed a Reproval violation.
SIGNATURE OF THE PARTIES
Case Number(s): 07-C-11624-RAP
In the Matter of: Gary Steven Spitzer
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: Gary Steven Spitzer
Date: 7/28/09
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Ashod Mooradian
Date: 7/29/2009
Case Number(s): 07-C-11624-RAP
In the Matter of: Gary Steven Spitzer
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
<<not>> checked. All court dates in the Hearing Department 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 125 (b), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Richard A. Platel
Date: 08-03-09
[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 August 4, 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 Los Angeles, California, addressed as follows:
GARY S SPITZER
8317 YUMA PLACE
LOS ANGELES, CA 90046
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ASHOD MOORADIAN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 4, 2009.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court