Case Number(s): 09-C-14102-RAP
In the Matter of: Martin L. Winfield, Jr., Bar # 250570, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Meredith A. McKittrick, Deputy Trial Counsel
1149 S. Hill St.
Los Angeles, CA 90015
(213) 765-1204
Bar # 234484,
Counsel for Respondent: Dana M. Cole, Cole & Loeterman
1925 Century Park E Ste 2000
Los Angeles, CA 90067
(310)556-8300
Bar # 89105,
Submitted to: Settlement Judge – State Bar Court Clerk’s Court Office Los Angeles.
Filed: November 20, 2012.
<<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 August 27, 2007.
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 are added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. Case ineligible for costs (private reproval).
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: Costs to be paid in equal amounts prior to February 1 for the following three billing cycles following the effective date of the Hearing Department’s order. (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.
<<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): 09-C-14102-RAP
In the Matter of: Marin L. Winfield, Jr.
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 four meetings meetings per month of:
<<not>> checked. Alcoholics Anonymous
<<not>> checked. Narcotics Anonymous
<<not>> checked. The Other Bar
checked. Other program Any abstinence-based, self-help group of Respondent’s own choosing, including inter alia, Alcoholics Anonymous, Narcotics Anonymous, LifeRing, S.M.A.R.T., S.O.S., etc. Other self-help maintenance programs are acceptable if they include: (i) a subculture to support recovery (meetings); and (ii) a process of personal development that does not have financial barriers. (See O’Connor v. Calif. (C.D. Calif. 1994) 855 F. Supp. 303 [No first amendment violation where probationer given choice between AA and secular program.]) The program called "Moderation Management" is .not acceptable because it allows the participant to continue consuming alcohol. Before Respondent attends the first self-help group meeting, Respondent must contact the Office of Probation and obtain approval for the program Respondent selected. If Respondent wants to change groups, Respondent must obtain the Office of Probation’s approval prior to attending a meeting with the new self-help group.
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:
IN THE MATTER OF: Martin L. Winfield, Jr., State Bar No. 250570
STATE BAR COURT CASE NUMBER: 09-C-14102-RAP
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.
Case No. 09-C-14102-RAP (Conviction Proceedings)
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING:
1. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 9.10 of the California Rules of Court.
2. On September 23, 2010, Respondent entered a plea of no contest to the violation of California Vehicle Code section 23152(a) [driving under the influence] and a violation of California Vehicle Code section 23103 pursuant to section 23103.5 [reckless driving after having consumed alcohol], an amended count added to the complaint by way of interlineation. Respondent entered his plea to these two misdemeanors upon the agreement that his sentencing hearing would be continued to March 23, 2012. Respondent was advised that if he completed an alcohol program and did not violate the law during the intervening period, he would be sentenced on the violation of California Vehicle Code section 23103 pursuant to section 23103.5 [reckless driving after having consumed alcohol] alone.
3. On March 23, 2012, Respondent was placed on probation for the violation of California Vehicle Code section 23103 pursuant to section 23103.5 [reckless driving after having consumed alcohol] alone for a period of 36 months. The charged violation of California Vehicle Code section 23152(a), to which Respondent had previously entered a no contest plea, was dismissed.
4. On July 17, 2012, the Review Department of the State Bar Court issued an order referring the matter to the Heating Department for a hearing and decision recommending the discipline to be imposed in the event that the Hearing Department finds that the facts and circumstances surrounding the offense(s) for which Respondent was convicted involved moral turpitude or other misconduct warranting discipline.
FACTS:
5. Respondent was previously convicted of a violation of California Vehicle Code section 23152(b) [driving with a blood alcohol level of .08% or higher] in Los Angeles Superior Court on October 31, 2000.
6. On June 8, 2009, at approximately 1:30 a.m. two Officers of the Inglewood Police Department observed Respondent’s vehicle lose traction with the road’s surface and "fish tail" as Respondent was travelling through the curve at the intersection of Crenshaw and 8th Avenue at a speed of approximately 55 miles per hour in a 40 mile per hour zone.
7. Respondent was subsequently contacted by the officers and observed to exhibit objective signs and symptoms of being under the influence of alcohol.
8. Respondent admitted to the officers to consuming alcoholic beverages, stating he had consumed three such beverages beginning at 9:00 p.m. the previous evening.
9. Respondent was administered a series of field sobriety tests, which he was not able to successfully complete.
10. Respondent was placed under arrest by the officers.
11. Respondent elected to provide a breath specimen for chemical testing, with the results of such testing being .22% and .20% blood alcohol content.
12. On July 14, 2009, a misdemeanor complaint was filed against Respondent in Los Angeles Superior Court charging him with misdemeanor violations of California Vehicle Code sections 23152(a) [driving under the influence] and 23152(b) [driving with a blood alcohol level of .08% or higher]. The results of the chemical test were later excluded for the purposes of trial and the charge for a violation of California Vehicle Code section 23152(b) [driving with a blood alcohol level of .08% or higher] was dismissed.
13. On September 23, 2010, Respondent entered pleas of no contest to violations of California Vehicle Code section 23152(a) [driving under the influence] and California Vehicle Code section 23103 pursuant to 23103.5 [reckless driving after having consumed alcohol].
14. On March 23, 2012, Respondent was sentenced for the violation of California Vehicle Code section 23103 pursuant to 23103.5 [reckless driving after having consumed alcohol] alone. The count charging a violation of California Vehicle Code section 23152(a) [driving under the influence] was dismissed. Respondent was placed on 36 months summary probation subject to terms and conditions of that probation.
CONCLUSIONS OF LAW:
15. The facts and circumstances surrounding the above-described violation(s) did not involve moral turpitude but did involve other misconduct warranting discipline.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Candor/Cooperation: Respondent has cooperated with the State Bar in this matter, and has entered into a stipulated settlement of this matter obviating the need for a trial. Such cooperation is deserving of consideration. (Silva-Vidor v. State Bar (1989) 49 Cal. 3d 1071, 1079.)
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipline" pursuant to a set of written principles to "better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to standards are to this source).) The primary purposes of disciplinary proceedings and of the sanctions imposed 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." (In re Morse (1995) 11 Cal.4th 184, 205; std 1.3.)
Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible" in determining)[ level of discipline. (ln re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal.4 205, 220 and In re Young (1989) 49 Cal.3d 257, 267, fn. 11.) Adherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (In re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
Standard 3.4 provides that conviction of a crime not involving moral turpitude but involving other misconduct warranting discipline shall result in a sanction prescribed under part B of the Standards as appropriate to the nature and extent of the misconduct. In reference to part B of the Standards, the most appropriate standard to apply is Standard 2.10. Standard 2.10 calls for a range of sanctions from reproval to suspension accounting for the gravity of the offense, harm to the victim, and with consideration given to the purposes of attorney discipline set forth in Standard 1.3.
Here the gravity of the offense is reflected in Respondent’s choice to drive his vehicle while under the influence of alcohol. The gravity of his offense is only compounded by Respondent’s prior conviction for a violation of California Vehicle Code section 23152(b) [driving with a blood alcohol level of .08% or higher] on October 31, 2000.
Additional support for the level of discipline here come from the California Supreme Court in In re Kelley (1990) 52 Cal. 3d 487. The Supreme Court in In re Kelley (1990) 52 Cal. 3d 487, imposed discipline upon an attorney as a result of that attorney’s second conviction for a violation of California Vehicle Code section 23152(b) on the basis that the conviction involved other misconduct warranting discipline. Kelley amassed two separate convictions for violations of California Vehicle Code section 23152(b) over the span of a few years, incurring the second such conviction while she was on probation for the first conviction. (Id. at p. 491-492.) The Court in Kelley stated "Although it is true that petitioner’s misconduct caused no harm to her clients, this fact alone does not insulate her from discipline aimed at ensuring that her potentially harmful misconduct does not recur." (Id. at p. 496.) Finding significant mitigation the Court publicly reproved Kelley as a result of her second conviction for a violation of California Vehicle Code section 23152(b). (Id. at p. 499.)
Here, Respondent, like Kelley, has failed to conform his behavior to the standards set by the criminal law on two occasions over a period of nine years resulting first in a conviction for a violation of California Vehicle Code section 23152(b) [driving with a blood alcohol level of .08% or higher] on October 31, 2000, and then in his most recent no contest pleas to violations of California Vehicle Code section 23152(a) [driving under the influence] and section 23103 pursuant to 23103.5 [reckless driving after having consumed alcohol], and finally his sentencing for a violation of California Vehicle Code section 23103 pursuant to section 23103.5 [reckless driving after having consumed alcohol]. As such, this matter warrants discipline at a level of public reproval in line with Kelley.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was November 19, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trim Counsel has informed respondent that as of November 16, 2012, the prosecution costs in this matter are $4,569.00. 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.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School. (Rules Proc. of State Bar, rule 3201.)
Case Number(s): 09-C-14102-RAP
In the Matter of: Marin L. Winfield, Jr.
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: Marin L. Winfield, Jr
Date: November 21, 2012
Respondent’s Counsel: Dana M. Cole
Date: November 21, 2012
Deputy Trial Counsel: Meredith A. McKittrick
Date: November 21, 2012
Case Number(s): 09-C-14102-RAP
In the Matter of: Martin L. Winfield, Jr.
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 REPROVAL IMPOSED.
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.
On p. 2, (8) Payment of Disciplinary Costs - After "billing cycles," insert the years "(2014, 2015 and 2016)."
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 5.58 (E) & (F), 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: Donald F. Miles
Date: November 26, 2012
[Rule 62(b); Rules Proc. of State Bar; 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 November 28, 2012, 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:
DANA MICHAEL COLE
COLE & LOETERMAN
1925 CENTURY PARK E STE 2000
LOS ANGELES, CA 90067
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Meredith A. McKittrick, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 28, 2012.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court