Case Number(s): 07-C-13122; 07-C-13247; 07-C-13977; 07-C-13981
In the Matter of: David G. Malveaux, Bar # 224220, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Charles A. Murray, Bar # 146069
Counsel for Respondent: Bar #
Submitted to: Assigned Judge State Bar Court Clerk’s Office Los Angeles
Filed: January 27, 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.
1. Respondent is a member of the State Bar of California, admitted December 17, 2002.
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.
<<not>> checked. costs to be paid in equal amounts prior to February 1 for the following membership years: (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 page 12 Disregard of the Law and Safety of the Public
See page 12. No harm; good character, pro bono activity
Case Number(s): 07-C-13122; 07-C-13247; 07-C-13977; 07-C-13981
In the Matter of: David G. Malveaux
Respondent admits that he is an alcoholic. He agrees to: submit to an examination by an alcohol treatment/recovery expert who meets with the approval of the State Bar; have the expert provide the State Bar a written evaluation setting forth recommendations for his treatment/recovery; and, comply with those treatment/recovery recommendations as conditions of his disciplinary probation in this matter. Specifically:
Identification on Evaluator:
1. Within thirty (30) days of the State Bar Court’s Order approving this Stipulation, Respondent shall provide the State Bar with a writing identifying a medical provider qualified in alcohol treatment/recovery ("expert") and who meets with the approval of the State Bar, for the purpose of performing an alcohol treatment/recovery examination/evaluation and providing a written report setting forth recommendations that Respondent follow re treatment/recovery.
Materials for Evaluation:
2. The State Bar shall have at least ten (10) days after Respondent provides the expert’s identity and before the examination/evaluation is conducted to provide the expert with any materials it deems relevant for an evaluation of Respondent re alcohol treatment/recovery, including copies of the Stipulation; law enforcement reports regarding the convictions described in the Stipulation; and, any other material related to Respondent’s conduct in the incidents described above or the investigations or proceedings that followed.
Evaluation:
3. No less than (10) days or more than thirty (30) days after Respondent provides the expert’s identity, he shall submit to an examination/evaluation by the expert for the purpose of the expert providing the State Bar written recommendations re alcohol treatment/recovery.
Respondent shall comply with all reasonable requests of the expert in conducting the examination/evaluation. If the doctor requires additional information in order to propose treatment conditions, including but not limited to interviewing third parties, Respondent will make good faith efforts to timely provide the additional information.
Waivers
4. No later than the first day of the examination/evaluation Respondent shall execute all necessary waivers of confidentiality with the expert as well as any treatment providers, including drug testing facilities, so that all Respondent information may be disclosed to the State Bar.
Within ten (10) days of the first date of the examination/evaluation, Respondent shall provide to the State Bar with a copy of the waiver provided to the doctor.
Thereafter, Respondent execute similar waivers with any other treatment providers, including drug testing facilities, and shall provide the State Bar with a copy of the waiver within ten days of execution.
Evaluation Report:
5. Respondent shall insure that a written evaluation report is provided to the State Bar within twenty (20) days of the completion of the examination/evaluation.
Costs of Evaluation:
6. Respondent shall bear all costs related to the examination/evaluation, the resulting report, and any treatment conditions recommended. Respondent understands that his treatment conditions may change if his treatment providers deem it necessary, and that he is to bear the cost of such treatment or changes in treatment, which in some cases could include but are not limited to in-patient treatment, out-patient treatment, sober living, or drug testing.
Compliance with Treatment/Recovery Recommendations:
7. Respondent understands that (a) the treatment/recovery recommendations resulting from the examination/evaluation or made in the course of his treatment shall be disciplinary probation requirements, (b) he must provide the State Bar with any proof of compliance or waiver requested by the State Bar, and (c) any violation of the treatment/recovery conditions or of these Substance Abuse Conditions is a violation of his probation requirements and may subject him to further disciplinary proceedings.
Changes in Treatment Conditions:
8. Within ten (10) days of any change in treatment condition, Respondent is to provide written notice to the State Bar specifically setting forth the changes. With that written notice, Respondent shall provide a writing from the applicable treatment provider describing the change.
Changes in Treatment Providers:
9. If treatment providers are added or changed, Respondent must notify the State Bar of the name, identification number, address, and telephone number of all such treatment providers within ten (10) days of the retaining of each one.
Within ten (10) days of retaining each such treatment provider, Respondent must provide to the State Bar with a writing from the treatment provider stating that it received a complete copy of this stipulation.
Reporting Compliance with Treatment Conditions:
10. Respondent shall report compliance and non-compliance with his alcohol treatment/recovery conditions by statement under penalty of perjury in each written quarterly probation report to the State Bar required in this matter.
Further, Respondent shall respond to any specific request for information related to these conditions within ten (10) days of the request. Stipulation item E(6) is incorporated in full and applies to these Substance Abuse Conditions.
NOTE: For purposes of these Substance Abuse Conditions, "State Bar" refers to the Office of Probation of the State Bar of California.
ATTACHMENT TO
IN THE MATTER OF: DAVID G. MALVEAUX MEMBER # 224220
CASE NUMBER(s): 07-C-13122; 07-C-13247; 07-C-13977; 07-C-13981
PENDING PROCEEDINGS
The disclosure date referred to on page one, paragraph A.(6), is January 11, 2009.
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 convictions 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 convictions were final, including the entry of findings consistent with this Stipulation, imposition discipline, or entry of a recommendation as to the degree of the discipline to be imposed.
Respondent waives any right to challenge the State Bar Court’s recommendation of discipline on the basis of a lack of finality of his convictions 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 convictions underlying any recommendation of and/or actual imposition of discipline by the State Bar Court or the California Supreme Court.
STIPULATION AS TO 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, or has otherwise committed acts of misconduct warranting discipline, as follows:
Stipulated facts and circumstances for Case No. 07-C-13977
1. On April 20, 2003, in Los Angeles, a police officer observed the vehicle operated by Respondent swerving in and out of southbound traffic and into the median lane. The officer further observed Respondent’s vehicle move into the lane of oncoming northbound traffic, then back to the southbound lanes and into the rightmost lane, barely missing several parked vehicles. Respondent’s vehicle then actually collided with a parked vehicle. Both Respondent’s vehicle and the parked vehicle that Respondent hit sustained property damage as a result of the collision.
2. As the officer approached Respondent’s vehicle, he observed Respondent display several objective signs of being under the influence of alcohol. Respondent failed to complete the field tests that were given. Respondent refused to submit to a chemical test at the scene and later at the police station.
3. On April 23, 2003, a criminal complaint was filed in Los Angeles County Superior Court case no. 3WL01175, charging Respondent with a misdemeanor violation of Vehicle Code section 23152(a) [driving under the influence of alcohol].
4. On October 21, 2003, Respondent pled no contest and was found guilty of the offense. Imposition of sentencing was suspended and Respondent was placed on summary probation for 48 months on conditions that included a six month driver’s license restriction, completion of an alcohol program, attendance at 36 AA meetings, compliance with standard alcohol conditions including he not drive with a measurable amount of alcohol in his system, and payment of restitution totaling $1,567.00.
Conclusions of law for Case No. 07-C-13977
5. The facts and circumstances surrounding Respondent’s conviction for violation of Vehicle Code section 23152(a) [driving under the influence of alcohol], a misdemeanor, do not constitute moral turpitude, but do constitute other misconduct warranting discipline.
Stipulated facts and circumstances for Case No. 07-C-13981
6. On May 23, 2004, Respondent was involved in an incident with another person outside a restaurant after he had been drinking. The incident was alcohol-related. He was charged with battery.
7. On June 1, 2004, Respondent pled nolo contendere to a misdemeanor charge for violation of Penal Code section 415 [disturbing the peace]. The battery charge was dismissed.
8. On June 1, 2004, Respondent was placed on 12 months summary probation, on conditions that included his payment of fines and fees and that he stay 100 yards away from the other person and the restaurant.
Conclusions of law for Case No. 07-C-13981
9. The facts and circumstances surrounding Respondent’s conviction for violation of Penal Code section 415 [disturbing the peace], a misdemeanor, do not involve moral turpitude, but do constitute other misconduct warranting discipline.
Stipulated facts and circumstances for Case No. 07-C-13122
10. On June 25, 2006, in Alameda, California, an officer observed a vehicle (later identified as belonging to and operated by Respondent) pull out from a business parking lot and stop in front of a green traffic light. The officer observed that the vehicle did not move for about 30 seconds, although there were no other vehicles in the area. After Respondent failed to move in response to the officer’s air horn, the officer activated his overhead emergency equipment and exited his vehicle.
11. As the officer approached Respondent, he immediately detected several objective signs that Respondent was under the influence of alcohol. Respondent failed to satisfactorily complete field tests requested by the officer. Respondent was placed under arrest and taken to Alameda Hospital where a blood test indicated blood alcohol content of .27%.
12. On July 12, 2006, a complaint was filed in Alameda County Superior Court case no. 81703-3, charging Respondent with violations of Vehicle Code section 23152(a) [driving under the influence of alcohol], count one, and Vehicle Code section 23152(b) [driving while having a blood/alcohol content of 0.08% or higher], count two, both misdemeanors. It was further alleged in the complaint that during the commission of the offense, Respondent had a concentration of alcohol in his blood of. 15 percent or more, and that he had a prior drunk driving conviction (see case no. 07-C-13977 above).
13. Respondent pled not guilty and the matter proceeded to trial where on August 1, 2007, Respondent was found guilty by jury on both counts. Respondent’s drunk driving was a violation of the October 21, 2003 court order requiring him to forebear driving with a measurable amount of alcohol in his system.
14. On August 3, 2007, the court suspended sentencing and placed Respondent on probation for 60 months on conditions that included 30 days in jail, a drunk driver program concurrent to case no. 398511 (State Bar file no. 07-C-13247), and standard alcohol conditions.
Conclusions of law for Case No. 07-C-13122
15. The facts and circumstances surrounding Respondent’s convictions for violation of Vehicle Code section 23152(a) [driving under the influence of alcohol], and Vehicle Code section 23152(b) [driving while having a blood alcohol content of 0.08% or higher], both misdemeanors, do not involve moral turpitude, but do constitute other misconduct warranting discipline.
16. Respondent’s drunk driving was in violation of the prior court order that he not operate a vehicle with a measureable amount of alcohol in his system, and a wilful violation of Business and Professions Code section 6103.
Stipulated facts and circumstances for Case No. 07-C-1324
17. On November 23, 2006, in San Leandro, California, an officer on patrol observed a vehicle (identified as belonging to/operated by Respondent) driving after a recent downpour of rain at a speed above the posted limit. In checking the license plate, the officer discovered that the registration had recently expired. In following Respondent’s vehicle, the officer observed Respondent’s vehicle sway from left to right within the traffic lane.
18. The officer initiated a traffic stop and approached Respondent. The officer observed Respondent display objective signs of being under the influence of alcohol. The officer asked Respondent twice if he had consumed any alcoholic beverages recently and Respondent insisted he had not.
19. Respondent failed to satisfactorily complete field tests as requested by the officer. He was arrested and taken to the local jail for booking, where he submitted to breath tests indicating blood alcohol content of. 14% and. 16%.
20. On December 1, 2006, a complaint was filed in Alameda County Superior Court case no. 398511-5, charging Respondent with violations of Vehicle Code section 23152(a) [driving under the influence of alcohol], count one, and Vehicle Code section 23152(b) [driving while having a blood/alcohol content of 0.08% or higher], both misdemeanors. It was further alleged that during the commission of the offense, Respondent had a concentration of alcohol in his blood of .15 percent or more, and that Respondent had prior drunk convictions (see above).
21. On August 3, 2007, Respondent pled no contest to both counts, and admitted the two priors. Respondent’s drunk driving was a violation of the October 21, 2003 court order requiring him to forebear driving with a measurable amount of alcohol in his system.
22. On August 3, 2007, the court suspended imposition of sentencing and placed Respondent on probation for 60 months on conditions that included 120 days in jail, completion of a drunk driver program, 18 month license restriction, an ignition interlock device, and daily AA.
Conclusions of law for Case No. 07-C-13247
23. The facts and circumstances surrounding Respondent’s convictions for violation of Vehicle Code section 23152(a) [driving under the influence of alcohol], and section 23152(b) [driving while having a blood/alcohol content of 0.08% or higher], both misdemeanors, do not involve moral turpitude, but do constitute other misconduct warranting discipline.
24. Respondent’s drunk driving was in violation of the prior court order that he not operate a vehicle with a measureable amount of alcohol in his system, and a wilful violation of Business and Professions Code section 6103.
AGGRAVATING CIRCUMSTANCES:
Multiple acts: Respondent convicted in four separate incidents involving alcohol - three drunk driving convictions and one conviction for disturbing the peace related to alcohol. Disregard of the Law and Safety of the Public: "Respondent demonstrated complete disregard for the conditions of [his] probation, the law, and the safety of the public. [Citation omitted]. Disobedience of a court order, whether as an legal representative or as a party, demonstrates a lapse of character and a disrespect for the legal system that directly relates to an attorney’s fitness to practice and serve as an officer of the court. [Citation omitted.]" (In re Kelley (1990) 52 Cal.3d 487, 495.)
MITIGATING CIRCUMSTANCES:
Candor and Cooperation: Respondent displayed spontaneous candor and cooperation with the State Bar during these proceedings.
No Client Harm: No misconduct toward a client was involved. (In re Kelley (1990) 52 Cal.3d 487, 498.)
Good Character: Letters have been received from nine people in support of Respondent’s good Character. One has know Respondent for 20 years, four for about ten years, and four for about five years. All are aware of Respondent’s DUI arrests and convictions from Respondent’s disclosures to them. They stay in regular contact with Respondent, varying from almost daily to every few weeks. Most met Respondent either at undergraduate or law school, or through mutual friends, and all consider themselves friends of Respondent. All are attorneys and one is a prosecutor. With knowledge of the incidents, they find Respondent to be trustworthy, hard-working, of good moral character, and showing a commitment to participation in recovery for his problem with alcohol.
Pro Bono Activity: In 2007, Respondent, as an associate of a large law firm, received a special award for demonstrated sustained commitment to pro bono clients of the firm, and for handling significant responsibility on pro bono matters and in serving the community.
DISCIPLINE:
The purpose of State Bar attorney discipline is not to punish the attorney. As described in Standard 1.3 the State Bar is concerned with "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."
Standard 3.4 provides that the final conviction of a member of a crime which does not involve moral turpitude but which does involve other misconduct warranting discipline shall result in a sanction that is appropriate to the nature and extent of the misconduct found to have been committed by the member. (In the Matter of Cart (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 108, 118; In the Matter of Katz (Review Dept. 1991) 1 Cal State Bar Ct. Rptr. 502, 510.)
Case law clearly supports the goal of the disciplinary system to always protect the public and preserve confidence in the legal professions and maintain the highest possible standards for attorneys. (Porter v. State Bar (1992) 52 Cal.3d 518, 527; Harford v. State Bar (1990) 52 Cal.3d
The primary cases dealing with attorneys convicted of drunk driving include:
In re Kelley (1990) 52 Cal.3d 487, 495-499, the Supreme Court publicly reproved an attorney and placed her on three (3) years disciplinary probation which included conditions to address her use of alcohol. The attorney had been convicted of drunk driving twice in a 31 month period, the second being a violation of her criminal probation on the first. Her blood alcohol content in the second incident was tested at. 16% and. 17%. The attorney participated in the disciplinary proceeding and was found to have significant mitigation. Although the court found that the activity did not involve the practice of law or specific harm to the public or the courts, it did find a nexus between the attorney’s actions and fitness to practice law. Significant in the decision to only publically reprove the attorney was a finding that she had significant mitigation. Kelley also determined that the attorney’s second DUI in violation of her probation conditions order for her first DUI conviction "demonstrated complete disregard for the conditions of her probation, the law, and the safety of the public. [Citation omitted.] Disobedience of a court order, whether as a legal representative or as a party, demonstrates a lapse of character and a disrespect for the legal system that directly relates to an attorney’s fitness to practice and serve as an officer of the court. [Citation omitted.]" Kelley at 495.
The significant differences between Kelley and Respondent are that Respondent’s record includes a third drunk driving with a significantly higher blood alcohol (.27%); one of his incidents involved a collision with another car; and, he has an additional alcohol-related conviction for a disturbing the peace incident involving another person outside a restaurant. Respondent’s four conviction matters demonstrate a significantly greater scope of misconduct than Kelley’s two less serious drunk driving incidents,
In the Matter of Anderson (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 208, the Review Department recommended that an attorney actually be suspended for a period of 60 days as a result of his drunk driving on two occasions, with a record of three prior drunk driving convictions and two prior impositions of attorney discipline [both reprovals]. Aggravating circumstances included, the attorney’s struggling with the arresting officer and having to be taken to the ground to be handcuffed in one incident; and, the attorney pushing the arresting officer backwards, causing the officer to fall, and then driving away from the scene in the other incident. In mitigation, he had impressive character evidence.
Respondent’s severe problem with alcohol is clear. His repeated drunk driving threatens not just harm but literally the lives of others. His repeated drunk driving despite court-ordered conditions that he not drive with alcohol in his system demonstrates disrespect for the courts and the law.
Respondent’s discipline should reflect that Respondent’s misconduct is more serious than that in Kelley though less serious than that in Anderson.
SIGNATURE OF THE PARTIES
Case Number(s): 07-C-13122; 07-C-13247; 07-C-13977; 07-C-13981
In the Matter of: David G. Malveaux
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: David G. Malveaux
Date: 1-14-2010
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Charles A. Murray
Date: 1-14-2010
Case Number(s): 07-C-13122; 07-C-13247; 07-C-13977; 07-C-13981
In the Matter of: David G. Malveaux
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.
<<not>> checked. All Hearing dates are vacated.
At page 2, item A. (8), costs are to be added to membership fee for calendar year following effective date of discipline.
At page 4, item E. (5), the requirement of a probation monitor is deleted.
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: Donald F. Miles
Date: 1/27/10
[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 January 27, 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 Los Angeles, California, addressed as follows:
DAVID G. MALVEAUX, ESQ.
5033 MAYTIME LN
CULVER CITY, CA 90230
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
CHARLES MURRAY, ESQ., Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 27, 2010.
Signed by:
Rose Luthi
Case Administrator
State Bar Court