State Bar Court of California

Hearing Department

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

REPROVAL

Case Number(s): 07-C-12351-PEM

In the Matter of: Edward W. Scott, IV, Bar # 138521, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Tammy M. Albertsen-Murray, Bar # 154248,

Counsel for Respondent: Kathleen Ewins, Bar # 154365,

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

Filed: February 9, 2010.

  <<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 December 9, 1988.

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):

<<not>> checked. Costs are added to membership fee for calendar year following effective date of discipline (public reproval).

checked. Case ineligible for costs (private reproval).

<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: .  (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.)  If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.

<<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.

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.

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.

<<not>> 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.

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

<<not>> checked. (1) Prior record of discipline [see standard 1.2(f)].

<<not>> checked. (a)    State Bar Court case # of prior case .

<<not>> checked. (b)    Date prior discipline effective .

<<not>> checked. (c)    Rules of Professional Conduct/ State Bar Act violations:

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

<<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.

checked. (8)            No aggravating circumstances are involved.
Additional aggravating circumstances: .

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

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. 

<<not>> checked. (3) Candor/Cooperation:  Respondent displayed spontaneous candor and cooperation with the victims of his/her misconduct and to the State Bar during disciplinary investigation and proceedings. 

<<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) 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.

checked. (10)          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. Respondent’s minor child’s behavioral issues have resulted in significant stressors on respondent and on all members of his family. The child is under medical care to address these issues. Respondent’s inability to properly deal with his frustration resulting from the child’s behavioral issues have been and continue to be addressed through therapy.

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. Respondent provided letters from a wide variety of professional and personal acquaintances, all of whom described knowledge of the misconduct at issue and credited respondent with good character.

<<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:

Respondent has no prior discipline in over 19 years of practice as of the time of the misconduct.

Respondent agreed to the imposition of discipline, thus relieving the State Bar and State Bar Court from expenditure of additional resources and expenses.

D. Discipline:

checked. (1)                Private reproval (check applicable conditions, if any, below):

<<not>> checked. (a) Approved by the Court prior to initiation of the State Bar Court proceedings (no public disclosure).

checked. (b) Approved by the Court after initiation of the State Bar Court proceedings (public disclosure).

or

<<not>> checked. (2)  Public reproval (Check applicable conditions, if any below)

E. Additional Conditions of Reproval:

checked. (1)            Respondent must comply with the conditions attached to the reproval for a period of one (1) year.

checked. (2)            During the condition period attached to the reproval, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

checked. (3)            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. (4)            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. (5)            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 the condition period.

<<not>> checked. (6) 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 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 monitor.

checked. (7)            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.

checked. (8)            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 State Bar Ethics School, and passage of the test given at the end of that session.

<<not>> checked. No Ethics School recommended.  Reason: .

<<not>> checked. (9) 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. (10)          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 of the effective date of the reproval. 

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

<<not>> checked. (11) The following conditions are attached hereto and incorporated:    

<<not>> checked. Substance Abuse Conditions.

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

checked. Medical Conditions.

<<not>> checked. Financial Conditions.

F. Other Conditions Negotiated by the Parties:

Attachment language (if any):.

MEDICAL CONDITIONS

Case Number(s): 07-C-12351-PEM

In the Matter of: Edward W. Scott, IV

<<not>> checked. a. Unless Respondent has been terminated from the Lawyer Assistance Program (“LAP”) prior to respondent’s successful completion of the LAP, respondent must comply with all provisions and conditions of respondent’s Participation Agreement with the LAP and must provide an appropriate waiver authorizing the LAP to provide the Office of Probation and this court with information regarding the terms and conditions of respondent’s participation in the LAP and respondent’s compliance or non-compliance with LAP requirements. Revocation of the written waiver for release of LAP information is a violation of this condition. However, if respondent has successfully completed the LAP, respondent need not comply with this condition.

checked. b. Respondent must obtain psychiatric or psychological help/treatment from a duly licensed psychiatrist, psychologist, or clinical social worker at respondent’s own expense a minimum of one (1) times per month and must furnish evidence to the Office of Probation that respondent is so complying with each quarterly report. Help/treatment should commence immediately, and in any event, no later than thirty (30) days after the effective date of the discipline in this matter. Treatment must continue for  days or  months or  years or, the period of probation or until a motion to modify this condition is granted and that ruling becomes final.

If the treating psychiatrist, psychologist, or clinical social worker determines that there has been a substantial change in respondent’s condition, respondent or Office of the Chief Trial Counsel may file a motion for modification of this condition with the Hearing Department of the State Bar Court, pursuant to rule 5.300 of the Rules of Procedure of the State Bar. The motion must be supported by a written statement from the psychiatrist, psychologist, or clinical social worker, by affidavit or under penalty of perjury, in support of the proposed modification.

checked. c. 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: Pursuant to Settlement Judge, the waiver contemplated in paragraph (c) above extends to any and all mental health professional(s) who consult(s), treat(s) or otherwise examine(s) respondent in connection with compliance with this probation condition.

ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

IN THE MATTER OF: Edward W. Scott, IV State Bar No. 138521

STATE BAR COURT CASE NUMBER: 07-C-12351-PEM

Respondent pleads nolo contendere to the following facts and violations. Respondent understands that the plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his culpability of the statutes and/ or Rules of Professional Conduct specified herein.

FACTS AND CONCLUSIONS OF LAW

FACTS.

On or about June 3, 20078, respondent engaged in criminal conduct, the victim of which was a minor child.

On June 11, 2007, following a report by the child’s school of suspected child abuse, respondent was arrested and booked for a violation of Penal Code section 273d(a). By way of criminal complaint filed June 11, 2007 in Superior Court case number CC768996, respondent was charged with one count of a violation of Penal Code section 273d(a).

On January 29, 2008, respondent pled no contest to one count of violating Penal Code section 273a(b), a misdemeanor. The Court sentenced respondent to four years’ formal probation, including one year of parenting classes and 80 hours of volunteer work, as well as payment of related fines and fees.

On October 29, 2009, Santa Clara Superior Court heard and granted respondent’s motion filed pursuant to Penal Code section 1203.4 related to the underlying criminal matter, resulting in the expungement of his criminal conviction.

CONCLUSIONS OF LAW.

The facts and circumstances surrounding respondent’s violation of California Penal Code section 273a(b) [willful infliction or harm or injury to child, a misdemeanor] do not involve moral turpitude, but so constitute other misconduct warranting discipline by virtue of and pursuant to Business and Professions Code section 6068(a).

PENDING PROCEEDINGS

AUTHORITIES SUPPORTING DISCIPLINE.

• In the Matter of Stewart (1994) 3 Cal. State Bar Ct. Rptr. 52 [conviction referral cases in which assaultive behavior was the principal offense resulted in discipline of varying degrees];

• In re Silverton (2005) 36 Cal. 4^th 81 [The Standard for Attorney Discipline promote the consistent and uniform application of disciplinary measures]; and

• In re Kelly (1990) 52 Cal.3d 487 [significant mitigation sufficient to support reproval];

• Rules of Procedure of the State Bar of California, Standards for Attorney Discipline, Standards 3.4 and 2.6.

STATE BAR ETHICS SCHOOL.

Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon satisfactory completion of State Bar Ethics School.

COMPLIANCE WITH CONDITIONS OF PROBATION UN THE UNDERLYING CRIMINAL MATTER.

Respondent filed a successful motion pursuant to Penal Code section 1203.4 in the underlying criminal matter, thereby expunging his conviction and terminating any further underlying criminal probation requirements.

SIGNATURE OF THE PARTIES

Case Number(s): 07-C-12351-PEM

In the Matter of: Edward W. Scott, IV

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: Edward W. Scott, IV

Date: January 28, 2010

Respondent’s Counsel: Kathleen M. Ewins

Date: January 27, 2010

Deputy Trial Counsel: Tammy M. Albertsen-Murray

Date: February 1, 2010

REPROVAL ORDER

Case Number(s): 07-C-12351-PEM

In the Matter of: Edward W. Scott, IV

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.

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: Lucy Armendariz

Date: February 8, 2010

CERTIFICATE OF SERVICE

[Rules Proc. of State Bar; Rule 5.27(B); 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 February 9, 2010, 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:

KATHLEEN M. EWINS

LONG & LEVIT LLP

465 CALIFORNIA ST 5FL

SAN FRANCISCO, CA 94104

<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:

<<not>> checked. by overnight mail at , California, addressed as follows:

<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.

<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:

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 February 9, 2010.

Signed by:

George Hue

Case Administrator

State Bar Court