State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER
APPROVING
ACTUAL SUSPENSION
Case Number(s): 09-N-15798-RAP
In the Matter of: Christopher J. O’Keefe, Bar #165197, A Member
of the State Bar of California, (Respondent).
Counsel For The State Bar: Larry DeSha, Deputy Trial
Counsel, 1149 S. Hill Street, Los Angeles, CA 90015, (213) 765-1336, Bar.#
117910
Counsel for Respondent: Michael E. Wine, 301 N. Lake
Avenue; Ste. 800, Pasadena, CA 91101, (626) 796-6688, Bar # 58657
Submitted to: Settlement Judge - State Bar Court Clerk’s
Office Los Angeles
Filed: March 29, 2011
<<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 June 18,
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 10 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.
Until costs are paid in full, Respondent will remain actually suspended from
the practice of law unless relief is obtained per rule 5.130, Rules of
Procedure.
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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.
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checked. Costs are waived in part as set forth in a separate attachment
entitled "Partial Waiver of Costs".
<<not>>
checked. Costs are entirely waived.
B. Aggravating Circumstances [for definition, see Standards for Attorney
Sanctions for Professional Misconduct, standard 1.2(b)]. Facts supporting
aggravating circumstances are required.
checked. (1) Prior record of discipline [see standard 1.2(f)]
checked.
(a)
State Bar Court case # of prior case 08-PM-12170-RAH.
checked.
(b)
Date prior discipline effective May 29, 2009.
checked.
(c)
Rules of Professional Conduct/ State Bar Act violations: Business and
Professions Code section 6068(k)
checked.
(d)
Degree of prior discipline Actual suspension of two years and until relief
under std. 1.4(c)(ii)
checked.
(e)
If Respondent has two or more incidents of prior discipline, use space provided
below.
State Bar Court case no. 06-PM-10555-RAP
Date prior discipline effective: July 29, 2006
State Bar Act violation: Business and Professions Code section 6068(k)
Degree of prior discipline: Actual suspension of 30 days
State Bar Court case no. 04-O-14389-JMR
Date prior discipline effective: January 15, 2006
Rules of Professional Conduct violation: Rule 3-700(A) (2)
State Bar Act violations: Business and Professions Code sections 6106 and
6068(i)
Degree of prior discipline: Actual suspension of six months and until
restitution and relief under rule
205. Rules of Procedure
State Bar Court case no. 03-O-04419JMR
Date prior discipline effective: July 10, 2005
Rules of Professional Conduct Violations: Rules 4-100(A) and
4-100(B)(3)
State Bar Act violations: Business and Professions Code sections 6106 and
6068(i)
Degree of prior discipline: Actual suspension of 60 days
<<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.
<<not>> checked. (8) No aggravating circumstances are
involved.
Additional aggravating circumstances:.
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
<<not>>
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.
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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.
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. See Stipulation Attachment, pages 7 and 8.
<<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.
<<not>>
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.
<<not>>
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.
<<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:
D. Discipline:
checked.
(1) Stayed
Suspension:
checked. (a) Respondent must be suspended from the practice of law for a
period of two (2) years.
checked. i. and until Respondent shows proof satisfactory to the State Bar
Court of rehabilitation and present fitness to practice and present learning
and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney
Sanctions for Professional Misconduct.
<<not>> checked. ii. and until Respondent pays restitution as
set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following:
checked. (b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on probation
for a period of two (2) years, which will commence upon the effective date of
the Supreme Court order in this matter. (See rule 9.18, California Rules
of Court.)
checked. (3) Actual Suspension:
checked. (a) Respondent must be actually suspended from the practice of law
in the State of California for a period of one (1) year.
checked. i. and until Respondent shows proof satisfactory to the State Bar
Court of rehabilitation and present fitness to practice and present learning
and ability in the law pursuant to standard 1.4(c)(ii), Standards for Attorney
Sanctions for Professional Misconduct.
<<not>> checked. ii. and until Respondent pays restitution as
set forth in the Financial Conditions form attached to this stipulation.
<<not>> checked. iii. and until Respondent does the following:
E. Additional Conditions of Probation:
<<not>>
checked. (1) If Respondent is actually suspended for two years or
more, he/she must remain actually suspended until he/she proves to the
State Bar Court his/her rehabilitation, fitness to practice, and learning and
ability in the general law, pursuant to standard 1.4(c)(ii), Standards for
Attorney Sanctions for Professional Misconduct.
checked.
(2)
During the probation period, 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 probation.
<<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 to the monitor 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 probation
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 Ethics School, and passage of the test given at the end of that
session.
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.
<<not>>
checked. (10) The following conditions are attached hereto and incorporated:
<<not>> checked. Substance Abuse Conditions.
<<not>> checked. Law Office Management Conditions.
<<not>> checked. Medical Conditions.
<<not>> checked. Financial Conditions.
F. Other Conditions Negotiated by the Parties:
checked.
(1)
Multistate Professional Responsibility Examination: 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 during the period of actual suspension or
within one year, whichever period is longer. Failure to pass the MPRE
results in actual suspension without further hearing until passage. But see
rule 9.10(b), California Rules of Court, and rule 5.162(A) & (E), Rules of
Procedure.
<<not>> checked. No MPRE recommended. Reason:
checked.
(2)
Rule 9.20, California Rules of Court: Respondent must comply with the
requirements of rule 9.20, California Rules of Court, and perform the acts
specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar
days, respectively, after the effective date of the Supreme Court's Order in
this matter.
<<not>> checked. (3) Conditional Rule 9.20,
California Rules of Court: If Respondent remains actually suspended for
90 days or more, he/she must comply with the requirements of rule 9.20,
California Rules of Court, and perform the acts specified in subdivisions (a)
and (c) of that rule within 120 and 130 calendar days, respectively, after the
effective date of the Supreme Court's Order in this matter.
<<not>> checked. (4) Credit for Interim
Suspension [conviction referral cases only]: Respondent will be credited
for the period of his/her interim suspension toward the stipulated period of
actual suspension. Date of commencement of interim suspension:
checked. (5)
Other Conditions: As part of his proof of rehabilitation and present fitness to
practice law, as required by Std. 1.4(c)(ii), Respondent shall provide medical
evidence in State Bar Court from a psychiatrist who will describe the drugs
then prescribed for Respondent, state the purpose and side effects of each
drug, and give an opinion that Respondent can successfully deal with the stress
of returning to the practice of law.
(Effective January 1, 2011)
Actual Suspension.
Attachment language (if any):
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND
DISPOSITION
IN THE MATTER OF: Christopher J. O’Keefe , State Bar No.
165197
STATE BAR COURT CASE NUMBER: 09-N-15798-RAP
FACTS:
1. On April 29, 2009, the California Supreme Court filed its
Order No. S 137831 imposing discipline on Respondent in State Bar Court case
no. 08-PM-12170-RAH. The effective date of the order was May 29, 2009. One of
the provisions in the order required Respondent to comply with rule 9.20,
California Rules of Court. Rule 9.20(c) required Respondent to file a
Compliance Declaration with the Clerk of State Bar Court no later than July 8,
2009.
2. Respondent filed his Compliance Declaration on October 9,
2009, which was 93 days late.
CONCLUSIONS OF LAW:
3. By filing his Compliance Declaration 93 days late,
Respondent willfully violated rule 9.20(c) of the California Rules of Court.
MITIGATING CIRCUMSTANCES:
Emotional/Physical Difficulties
On March 2, 2009, Respondent was involved in a motor vehicle
accident which resulted in soft tissue injury to his neck. He sought medical
treatment from Dr. William L. Tontz for pain in his back and neck. On March 27,
2009, an MRI of the cervical spine showed a minor bulging disc in his neck at
C5-C6.
On May 2, 2009, Dr. Gregory Paniccia, a psychiatrist,
prescribed the drug Paroxetine for Respondent for treatment of depression.
Respondent began taking Paroxetine daily from May 3, 2009, and continued taking
it until June 15, 2009, when Dr. Dennis Cook prescribed a different drug with
less harmful side effects. The manufacturer of Paroxetine warns of possible
side effects of "forgetfulness" and "confusion," and
Respondent complained to Dr. Paniccia of those side effects.
On May 4, 2009, Dr. Tontz prescribed the drug Hydrocodone
for treatment of Respondent’s complaint of neck pain. Respondent began taking
Hydrocodone daily from May 4, 2009 until the end of August 2009. The
manufacturer of Hydrocodone warns of possible side effects of "fuzzy
thinking."
On June 3, 2009, Dr. Paniccia prescribed the drug Clonazepam
as an anti-seizure medication. Respondent began taking Clonazepam daily from
June 3, 2009 until July 9, 2009, when Dr. Scott Geiger changed the prescription
to Gabapentin. The manufacturer of Clonazepam warns of possible side effects of
"difficulty thinking and remembering."
On July 9, 2009, Dr. Geiger prescribed the drug Gabapentin
as an anti-seizure medication in place of Clonazepam. Respondent began taking
Gabapentin daily from July 9, 2009 until the end of August 2009. The
manufacturer of Gabapentin warns of possible side effects of "memory
problems.
On October 17, 2009, Respondent told Dr. Paniccia that he
had been unable to file his Rule 9.20 Compliance Declaration because he was
under too much stress. However, he had already filed it on October 9, 2009. On
October 31, 2009, Respondent told Dr. Paniccia again that he still had not
filed his Compliance Declaration.
Drs. Tontz, Cook, and Geiger are available to testify that
Respondent’s pain problems were resolved by the end of August 2009, and that he
no longer needed the drugs they prescribed. Dr. Paniccia is available to
testify that he is still treating Respondent for depression and anxiety, that
Respondent’s main source of stress arises from this State Bar disciplinary
proceeding, and that he believes Respondent will be able to return to the
practice of law after he has completed his expected period of actual
suspension. [Standard 1.2(e)(vi).]
SUPPORTING AUTHORITY:
Standards
Standard 1.2(e) defines "mitigating circumstances"
as "an event or factor established clearly and convincingly by the member
subject to a disciplinary proceeding as having caused or underlain the member’s
professional misconduct and which demonstrates that the public, courts and
legal profession would be adequately protected by a more lenient degree of
sanction than set forth in these standards for the particular act or
professional misconduct found or acknowledged."
Standard 1.7(a) requires that the degree of discipline to be
imposed in a second proceeding shall be greater than that imposed in the prior
proceeding, unless the prior discipline was so remote in time and so minimal in
severity that greater discipline would be manifestly unjust.
Standard 1.7(b) requires that a third imposition of
discipline shall be disbarment unless
the most compelling circumstances clearly predominate.
Case Law
"Nothing on the face of rule 955 or in our prior
practice distinguishes between substantial’ and ’unsubstantial’ violations of
rule 955. In every case, rule 955 performs the critical prophylactic function
of ensuring that all concerned parties learn about an attorney’s discipline.
(Citation.) ... Thus, a willful violation of this rule is, by definition,
deserving of strong disciplinary measures."
Lydon v. State Bar (1988) 45 Cal.3d 1181, 1187
PENDING PROCEEDINGS:
The disclosure date referred to on page 2, paragraph A.(7),
was March 18,2011.
COSTS:
Respondent acknowledges that the Office of the Chief Trial
Counsel has informed Respondent that as of March 18, 2011, the costs in this
matter are $1,641.00. 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.
SIGNATURE OF THE PARTIES
Case Number(s): 09-N-15798-RAP
In the Matter of: Christopher J. O’Keefe
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: Christopher J. O’Keefe
Date: March 22, 2011
Respondent’s Counsel: Michael E. Wine
Date: March 24, 2011
Deputy Trial Counsel: Larry DeSha
Date: March 24, 2011
ACTUAL SUSPENSION ORDER
Case Number(s): 09-N-15798-RAP
In the Matter of: Christopher J. O’Keefe
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.
On page 4 of the stipulation, the “X” in box D(1)(a)(i) is DELETED to remove
the “and until” condition which would have required that respondent’s two-year
stayed suspension continue until he complied with standard 1.4 (c)(ii).
(It is inappropriate to attach “and until” conditions to periods of stayed
suspension.)
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.) 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: March 29, 2011
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 Los Angeles, on March 29, 2011, I deposited a true
copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITIONS
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:
MICHAEL E. WINE
301 N LAKE AVE STE 800
PASADENA, CA 91101-5113
checked. by
interoffice mail through a facility regularly maintained by the State Bar of
California addressed as follows:
Ernest Larry DeSha, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct.
Executed in Los Angeles, California, on March 29, 2011.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court