Case Number(s): 08-C-13754-2
In the Matter of: Matthew C. Palocsay, Bar # 247199, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Hugh G. Radigan, Bar # 94251
Counsel for Respondent: Jeremiah J. Sullivan, III, Bar # 220311
Submitted to: Assigned Judge State Bar Court Clerk’s Office Los Angeles
Filed: August 5, 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 5, 2006.
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 12 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: 2010 and 2011(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.
Case Number(s): 08-C-13754
In the Matter of: Matthew C. Palocsay
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 2 meetings per month of:
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.
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.
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.
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.
IN THE MATTER OF: Matthew C. Palocsay, Bar #247199
CASE NUMBER: 08-C-13754
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.
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.
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. 08-C-13754
1) The surveillance video obtained by the San Diego Police Department showed the following: On August 6, 2008, at about 3:00 a.m., Respondent used a collapsible baton to strike repeatedly the front glass doors of Long’s Drugstore in La Jolla, San Diego, until the doors could be opened. He then entered the store without the baton. Respondent grabbed a glass bottle and shattered the glass doors of a cooler, causing the floor to be covered with broken glass and spilled water. Respondent selected a soda from the cooler and started drinking it. He then took money out of his wallet and placed it on the counter, next to a cash register. Respondent was seen exiting the store with the soda in his hand.
Thereafter, Respondent sat on the curb and waited for the police to arrive. The police recovered the collapsible baton, near the entrance, found five bills of $20 on the counter, and retrieved a Sprite bottle in the bushes to the east of the drugstore’s entrance.
2) Respondent was arrested for burglary, felony vandalism, possession of an illegal weapon, and possession of stolen property, and transported to the San Diego County Jail.
3) On August 25, 2008, a felony complaint was filed in the County of San Diego Superior Court Case number CD215674, entitled State of California v. Matthew C. Palocsay consisting of the following violations:
Count One: Penal Code section 594(a)(b)(1), [Vandalism over $400], a felony;
and
Count Two: Penal Code section 459 [Burglary], a felony.
4) On October 22, 2008, Respondent pled guilty/no contest to one count of PC 594(a)(b)(1) [Vandalism], a misdemeanor. Count Two was dismissed. (On November 21, 2006, Respondent was charged with violation of Penal Code section 647(f) [Public Intoxication]. The charge was dismissed on February 16, 2007.
5) On the same day, Respondent was sentenced to three years informal probation, pay fines and restitution to victim, perform 100 hours public service program work, 1 day in custody with credit for 1 day, and attend and complete a treatment program at Scripps Medical Center.
Conclusions of Law for Case No. 08-C-13754
The facts and circumstances surrounding Respondent’s conviction, including his violation of Penal Code 594(a)(b)(1) [Vandalism], a misdemeanor may not involve moral turpitude, but do involve other misconduct warranting discipline pursuant to Business and Professions Code, sections 6101 and 6102.
SUPPORTING AUTHORITIES
Standards
The "presumptively appropriate level of discipline" for any misconduct is as set forth in the Standards for Attorney sanctions for Professional Misconduct ["standard(s)"]. (See, e.g. Morgan v. State Bar (1990) 51 Cal.3d 598, 607, for this general proposition.)
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.)
Case law
In assessing the level of discipline in a criminal conviction matter, even where those convictions do not directly involve the practice of law, the court has found it to be its duty to impose a discipline that will protect the public from potential harm. In re Kelley involved an attorney who, while still on probation for a DUI, committed another DUI. (In re Kelley, supra, 52 Cal. 3d 487, 496.)
In this case, even though this is Respondent’s first conviction, his substance abuse has caused damages to others’ property. At a minimum, his level of discipline should at least be equal to that imposed upon Kelley.
ESTIMATE OF COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that, as of June 24, 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.
RULE 133 NOTICE OF PENDING PROCEEDINGS
Respondent was notified in writing of any pending investigations not included in this stipulation, pursuant to Rule 133(12), on June 24, 2009.
SIGNATURE OF THE PARTIES
Case Number(s): 08-C-13754
In the Matter of: Matthew C. Palocsay
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: Matthew C. Palocsay
Date: 7-16-09
Respondent’s Counsel: Jeremiah J. Sullivan
Date: 7-16-09
Deputy Trial Counsel: Hugh G. Radigan
Date: July 31, 09
Case Number(s): 08-C-13754
In the Matter of: Matthew C. Palocsay
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. Honn
Date: 8/4/09
[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 5, 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:
JEREMIAH J. SULLIVAN III
LAW OFC JEREMIAH J SULLIVAN III
2404 BROADWAY 2FL
SAN DIEGO, CA 92102
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Hugh Gerard Radigan, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on August 5, 2009.
Signed by:
Cristina Potter
Case Administrator
State Bar Court