Case Number(s): 07-O-14198
In the Matter of: Keith Faulder, Bar # 163802, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Donald R. Steedman, Bar # 104927
Counsel for Respondent: Ephraim Margolin, Bar # 32582
Submitted to: Assigned Judge State Bar Court Clerk’s Office San Francisco
Filed: July 15, 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 February 28, 1993.
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):
checked. costs added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. case ineligible for costs (private reproval).
<<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.
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.
Respondent’s misconduct occurred under unusual personal circumstances: At the time he appeared in the Mendocino District Attorney’s office in the Garzinl matter, (1) respondent was in the midst of a special election wherein he was a candidate for district attorney and (2) an attorney strike was being conducted by deputy district attorneys. At the time he appeared on behalf of Garzinl, (1)respondent had recently been fired from his position at the District Attorney’s office, with resultant loss of Income and benefits for his family, and (2) he had Just started private practice.
Attachment language (if any):
PENDING PROCEEDINGS
The disclosure date referred to, on page one, paragraph A.(7), was June 18, 2009.
FACTS AND CONCLUSION OF LAW,
Respondent admits that the following facts are true, and that he is culpable of the following violation:
1. From approximately January 2000 until April 2007, respondent was employed by the Mendocino County District Attorney’s Office ("MCDAO") as a public prosecutor. Following the death of the elected District Attorney, respondent served as MCDAO’s interim District Attorney between on or about September 26, 2006 and January 11, 2007. In that capacity, respondent directed all operations of that office. Between on or about January 11, 2007 and on or about April 20, 2007, respondent served as the Assistant District Attorney, the second highest position in the MCDAO. On or about April 20, 2007, the newly elected District Attorney fired Respondent and demanded his immediate removal from the office.
2. In or about October 25, 2006, the MCDAO, on behalf of the People of the State California ("People") filed a criminal complaint against Robert Albert Garzini (“Garzini"), charging Garzini with five felony counts relating to the manufacture, possession, and cultivation of a controlled substance and possession of a firearm by a felon. The case against Garzini, Mendocino County Superior Court Case No. SCUK-CRCR-06-74100, is hereinafter referred to as the "Garzini matter.") The Garzini matter was assigned to the marijuana suppression unit ("MSU"), s grant-funded unit within the MCDAO that prosecutes the commercial marijuana cases. The MSU has a deputy district attorney ("DDA’) assigned to handle all the cases assigned to MSU.
3. Thereafter, Respondent prosecuted, aided and promoted MCDAO’s criminal case against Garzini in the following ways:
a) On or about March 13, 2007, the non-management level attorneys in the MCDAO were on strike, including the DDA assigned to the MSU. Respondent was assisting the Attorney General’s Office with case coverage in court. In that capacity, he conferred with the DDA assigned to the Garzini matter regarding an offer that the DDA had previously conveyed to Garzini’s defense counsel. Respondent documented the offer in the MCDAO’s file in the Garzini matter on what the staff in the MCDAO refer to as the "golden rod." Respondent reconveyed the same offer to Garzini’s defense counsel.’
b) On or about April 12, 2007, Respondent personally appeared in court on behalf of the MCDAO on a criminal master calendar. In that capacity, Respondent appeared on the Garzini matter, and set it for a hearing.
c) From the time of the filing of the Garzini matter until shortly before he was fired from the MCDAO’s office on April 20, 2007, respondent continuously held a supervisory role in the office. Respondent however, did not have supervisory role over the MSU between January 11, 2007 and his termination date by a specific order of the Interim District Attorney.
4. On or about April 20, 2007, respondent was fired from the MCDAO by his opponent in the special election. He then opened his own law office.
5. Thereafter, Respondent took part in the defense of the Garzini matter by doing the following:
a) In or about September 2007, Garzini contacted Respondent and asked him to represent him in the Garzini matter. Before agreeing to represent Garzini, respondent did not advise the MCDAO or the court that he was going to represent a criminal defendant in the same action where he had previously represented the MCDAO. Respondent did not obtain the consent of the MCDAO or the court to this representation. Respondent communicated with Garzini concerning the criminal matter in the course of discussions leading to his employment and during the course of his representation of Garzini.
b) On or about September 18, 2007, Respondent made a special appearance for Garzini in the Garzini matter and requested a continuance. Neither respondent or the DDA told the court that Respondent had previously represented the MCDAO in the Garzini matter during the September 18, 2007 hearing.
c) On or about October 9, 2007, respondent appeared m court as defense counsel for Garzini in the Garzini matter. Respondent inter alia waived formal reading of the charges, entered a plea of not guilty on Garzini’s behalf, and waived time. However, the DDA refused to waive time and asked that the Garzini matter be set for a prompt jury trial. Respondent asked for trial delay to January. At this point, the assigned DDA for the first time brought to the court’s attention respondent’s prior involvement as a public prosecutor on behalf of the MCDAO in the Garzini matter. Respondent told the court and the DDA that he did not believe that there was a conflict and that he did not remember working on the case although he may have set dates. The DDA then stated that respondent had made a settlement offer in the case. The court suggested, and respondent agreed, that the issue should be resolved at a later time. The court then turned to discussion of the trial date. Respondent again argued for a delayed trial date. However, the court set the Garzini matter for jury trial beginning November 26, 2007, set a pretrial conference on November 6, 2007, and informed respondent that he would need to file a noticed motion if he wanted a continuance.
d) Between October 9, 2007 and October 24, 2007, respondent continued to represent Garzini and did not withdraw as his attorney, despite the conflict of interest.
6. Respondent has informed the State Bar that, when he participated in Garzini’s defense, he was unaware that he had previously participated in its prosecution. Respondent did not contact the MCDAO to check for this conflict, but has informed the State Bar that he did not have access to records or files belonging to or in the possession of the MCDAO at any time after he was fired.
7. On or about November 2, 2007, Respondent filed a Motion for Leave to Withdraw as Attorney, stating that he had learned that he was statutorily barred from representing Garzini in the Garzini matter. Respondent filed this motion after he had received a letter from the MCDAO, dated October 24, 2007, advising him about Business and Professions Code section 6131. On November 6, 2007, the court granted respondent’s motion to withdraw.
8. Respondent prosecuted, and aided and promoted the prosecution of the Garzini matter in his capacity as district attorney and public prosecutor when he engaged in conduct mentioned in paragraph 3 a, b and c, above. Afterwards, Respondent violated Business and Professions Code section 6131(b) by directly and indirectly advising Garzini in the Garzini criminal matter and taking part in the defense of the Garzini matter as set forth in paragraph 5a, b, c and d, above.
AUTHORITIES SUPPORTING DISCIPLINE
The Supreme Court has approved reduced discipline For violations of section 6131 in mitigated cases (Price v. State. Bar (1982) 30 Cal.3d 537). In this case, the State Bar took into account respondent’s representation that be participated in the Garzini defense at a time when he had forgotten his prior involvement in that case as a prosecutor.
SIGNATURE OF THE PARTIES
Case Number(s): 07-O-14198
In the Matter of: Keith Faulder
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: Keith Faulder
Date: 6-23-09
Respondent’s Counsel: Ephraim Margolin
Date: 6/24/09
Deputy Trial Counsel: Donald R. Steedman
Date: 6/25/09
Case Number(s): 07-O-14198
In the Matter of: Keith Faulder
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: Pat McElroy
Date: July 13, 2009
[Rule 62(b), Rules Proc.; Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of San Francisco, on July 15, 2009, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at San Francisco, California, addressed as follows:
EPHRAIM MARGOLIN
LAW OFFICE OF EPHRAIM MARGOLIN
240 STOCKTON STREET, 4TH FL.
SAN FRANCISCO, CA 94108 - 5318
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DONALD STEEDMAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on July 15, 2009.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court