Case Number(s): 10-C-08415 and 10-C-10196
In the Matter of: Cynthia Spalding, Bar #170899, Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kimberly G. Anderson, The State Bar of California, 1149 S. Hill Street, Los Angeles, CA 90015, (213)765-1083, Bar# 150359
Counsel for Respondent: Cynthia L, Spalding, Law Offices of Spalding and Spalding, P.O. Box 9059, Alta Loma, CA 91701, (909) 980-9607, Bar# 170899
Submitted to: Assigned Judge, State Bar Court Clerk’s Office Los Angeles
Filed: March 24, 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.
1. Respondent is a member of the State Bar of California, admitted June 2, 1994.
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):
checked. Costs are added to membership fee for calendar year following effective date of discipline.
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: The two years following the effective date of the disciplinary order issuing as the result of this stipulation. (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.
See, Stipulation Attachment, pages 12-13 (Attachment pages 5-6)
Case Number(s): 10-C-08415 and 10-C-10196
In the Matter of: Cynthia Spalding
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.
<<not>> checked. b. Respondent must attend at least meetings per month of:
<<not>> 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.
<<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.
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: See Stipulation Attachment pages 12-13 (Attachment pages 5-6)
IN THE MATTER OF: Cynthia L. Spalding , State Bar No. 170899
STATE BAR COURT CASE NUMBER: 10-C-08415 and 10-C-10196
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING.
Case No. 10-C-08415:
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 April 29, 2010, respondent was convicted of violating Vehicle Code, section 23152(b).
3. On November 15, 2010, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department on the following issues: 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 violation of Vehicle Code, section 23152(b) involved moral turpitude or other misconduct warranting discipline,
Case No. 10-C-10196:
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 July 7, 2010, respondent was convicted of violating Vehicle Code, section 14601.2(a).
3. On February 1, 2010, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department on the following issues: 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 violation of Vehicle Code, section 14601,2(a) involved moral turpitude or other misconduct warranting discipline.
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
FACTS:
Case No. 10-C-08415:
1. On August 7, 2009 at approximately 7:44 p.m., Deputy Mason of the San Bernardino County Sheriff’s Department was dispatched to aid the Respondent, whose vehicle had been stuck in a ditch, Respondent had driven the vehicle off of the roadway causing it to get stuck with its front tires in the air. Deputy Mason observed the Respondent staggering and almost falling. He smelled a strong odor of alcohol. Her speech was slow and slurred and she had bloodshot, watery eyes.
2. When Deputy Mason asked her if she had anything to drink, Respondent initially denied having had anything to drink. When asked again by Deputies Mason and Peterson, she stated she had gotten her car stuck in a ditch while making a U-turn, that she had gone home to call AAA, and that she had one drink at home when she went to call AAA to get her car out of the ditch. But she denied drinking and driving. When Deputies Mason and Peterson asked her to perform FSTs she refused and she refused to take a PAS test.
3. Respondent was arrested and, after initially refusing to take a chemical test, she agreed to submit to a blood test. The blood test results were .26.
4. On September 11, 2009, Respondent was charged in the case entitled People of the State of California v. Cynthia Spalding, San Bernardino Superior Court Case No. TWV902389 with driving under the influence of alcohol and driving with a blood alcohol concentration in excess of .08 in violation of Vehicle Code, sections 23152(a) and 23152(b). The complaint also alleged that Respondent’s blood alcohol concentration was in excess of. 15 within the meaning of Vehicle Code, section 23578.
5. On April 29, 2010, Respondent pled guilty to a violation of Vehicle Code, section 23152(b) and the court dismissed the allegation that Respondent violated Vehicle Code, section 23152(a), Respondent admitted that she had previously been convicted of driving under the influence in Case Nos. TWV703049. The court placed Respondent on summary probation for three years. The court also ordered Respondent violate no laws, that Respondent not drive without a valid license and insurance, that Respondent not drive a motor vehicle with any measurable amount of alcohol in her system, among other conditions. Respondent was also ordered to complete complete an 18-month SB38 Multiple Offender alcohol program concurrent to her completion of the program in Case Nos, TWV703049 and TWV1000033.
6. On September 23, 2009 at approximately 10:20 a.m., Deputies Pahia and Foytik of the San Bernardino County Sheriff’s Department were dispatched based upon a report from Respondent’s husband that she had been drinking and driving. Deputy Pahia observed Respondent driving and executed a traffic stop, noting that she also did not have a proper front license plate and she had rear tail light damage.
7. Deputy Pahia noticed Respondent had a strong odor of alcohol emitting from her breath, her person and her vehicle. Respondent had red, bloodshot, watery eyes. He told Respondent her husband had called to report her and asked if she would have any problems complying with some FSTs to make sure she was okay to drive. Respondent was very cooperative, She stumbled as she exited the vehicle. Deputy Pahia asked her if she had been drinking and she denied drinking.
8. Respondent was arrested and agreed to submit to a blood test. The blood test results were .25.
9. On December 3, 2009, Respondent was charged in the case entitled People of the State of California v. Cynthia Spalding, San Bernardino Superior Court Case No. TWV903049 with driving under the influence of alcohol and driving with a blood alcohol concentration in excess of .08 in violation of Vehicle Code, sections 23152(a) and 23152(b).
10. On April 29, 2010, Respondent pled no contest to a violation of Vehicle Code, section 23152(b) and the court dismissed the allegation that Respondent violated Vehicle Code, section 23152(a). Respondent admitted that she had previously been convicted of driving under the influence in Case Nos. TWV703049. The court placed Respondent on summary probation for three years. The court also ordered Respondent violate no laws, that Respondent not drive without a valid license and insurance, that Respondent not drive a motor vehicle with any measurable amount of alcohol in her system, among other conditions. Respondent was also ordered to complete an 18-month SB38 Multiple Offender alcohol program concurrent to her completion of the program in Case Nos. TWV902389 and TWV1000033.
11. On October 28, 2009 at approximately 6:34 p.m., Deputies Foytik and Hughes of the San Bernardino County Sheriff’s Department executed a traffic stop of the vehicle being driven by Respondent after having been dispatched to the area due to multiple reports that the vehicle had struck a sign in the center median and had been driven erratically. Prior to executing the traffic stop, they observed Respondent throwing glass and debris out of the window of the car while driving.
12. After Deputies Foytik and Hughes executed the traffic stop, Deputy Clark contacted Respondent as she sat in the driver’s seat of the vehicle. The vehicle had a damaged driver’s side mirror which was hanging alongside the window by its power cord, the driver’s side window had been shattered, and there were glass fragments covering the interior of the vehicle.
13. Respondent provided the deputies with her pink copy of the DS367 admin per sc temporary driver’s license that had been issued by the Department of Motor Vehicles (DMV) due to her prior DUI arrests.
14. Deputy Foytik recognized Respondent from a previous driving under the influence arrest approximately 35 days earlier.
15. Respondent admitted to the deputies that she had been drinking and that she had consumed a number of medications. She was asked to complete a series of Field Sobriety Tests (FSTs), but stated she would be unable to complete the FSTs due to her medical issues.
16. Respondent was asked to submit to a Preliminary Alcohol Screening test (PAS) and agree to do so. He PAS test results indicated a blood alcohol concentration of .191 and .199.
17. Respondent was arrested and agreed to submit to a blood test. The blood test results were .21.
18. On January 6, 2009, Respondent was charged in the case entitled People of the State of California v. Cynthia Spalding, San Bernardino Superior Court Case No. TWV1000033 with driving under the influence of alcohol and driving with a blood alcohol concentration in excess of .08 in violation of Vehicle Code, sections 23152(a) and 23152(b). The complaint also alleged that Respondent had a prior conviction on September 4, 2009 in San Bernardino Superior Court Case No. SBHA24 for driving under the influence of alcohol on July 2, 2009 in violation of Vehicle Code, section 23152(a).
19. On April 29, 2010, Respondent pled guilty to a violation of Vehicle Code, section 23152(b) and the court dismissed the allegation that Respondent violated Vehicle Code, section 23152(a). Respondent admitted that she had previously been convicted of driving under the influence in Case Nos. TWV703049 and TWV702389. The court placed Respondent on summary probation for three years. The court also ordered Respondent violate no laws, that Respondent not drive without a valid license and insurance, that Respondent not drive a motor vehicle with any measurable amount of alcohol in her system, among other conditions, Respondent was also ordered to complete an 18-month SB38 Multiple Offender alcohol program concurrent to her completion of the program in Case Nos. TWV703049 and TWV702389.
Case No. 10-C-10196:
20. On February 9, 2010 at approximately 5:11 p.m., Deputy Foyfik of the San Bernardino County Sheriff’s Department executed a traffic stop of Respondent’s vehicle. At the time, Respondent knew she or should have known she was driving with a suspended license due to a driving under the influence conviction in violation of Vehicle Code, section 14601.2(a).
21. On July 7, 2010, Respondent pled guilty to a violation of Vehicle Code, section 14601.2(a) in the case entitled People of the State of California v. Cynthia Spalding, San Bernardino Superior Court Case No, 3098186CS. The court placed Respondent on summary probation for three years. The court also ordered Respondent violate no laws, that Respondent not drive without a valid license and insurance, that Respondent not drive a motor vehicle with any measurable amount of alcohol in her system, among other conditions.
LEGAL CONCLUSIONS PERTAINING TO CASE NOS. 10-C-08415 and 10-C-10196:
22. By driving under the influence of alcohol on three occasions between August 7, 2009 and October 28, 2009, and by then driving on a suspended license while her license was suspended for prior driving under the influence arrests, Respondent committed misconduct warranting discipline which amounted to a violation of Business and Professions Code, section 6068(a) but which does not involve moral turpitude.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was March 2, 2011,
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of March 2, 2011, the prosecution costs in this matter are approximately $3,572.00. 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.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 3.2, Standards for Attorney Sanctions For Professional Misconduct; See, In re Kelley (1990) 52 Cal.3d 487 (public reprove for two driving under the influence of alcohol convictions and probation violations). Greater discipline is warranted in this case because it involved three driving under the influence convictions and one suspended license conviction, but no probation violations.
MITIGATING CIRCUMSTANCES.
FACTS SUPPORTING MITIGATING CIRCUMSTANCES.
Candor and Cooperation:
Respondent immediately contacted the assigned trial counsel as soon as the first conviction matter was referred to the State Bar Court and agreed to resolve all matters early in the proceedings. She admitted all pertinent facts and circumstances surrounding her convictions. Respondent’s actions saved the State Bar and the State Bar Court’s resources and evidences a recognition of wrongdoing and immediate attempts to rectify the misconduct.
ADDITIONAL MITIGATING CIRCUMSTANCES.
No Prior Discipline:
Although the misconduct in this matter is serious, Respondent has no prior record of discipline since being admitted to practice law in 1994.
Physical/Emotional/Family and Financial Difficulties:
Respondent’s three driving under the influence convictions were caused by her use of alcohol to cope with marital issues and financial issues in her law practice, Respondent and her husband (also an attorney) maintained a law practice together. Respondent and her husband have now separated, but are continuing to run a law practice together.
On May 18, 2010 Respondent enrolled in the Valley Improvement Programs 18 month SB 38 multiple offender alcohol program as a condition of her probation in each of the three driving under the influence cases and she continues to participate in the program.
Respondent has also voluntarily enrolled in the Matrix Institute on Addictions, which is not required by her criminal probation. On February 17, 2011, Respondent signed a contract for a four-month treatment program at Matrix, which will include 2 individual and/or conjoint sessions, three group sessions per week, weekly breath-alcohol and urine testing and a weekly social support group.
OTHER CONDITIONS NEGOTIATED BY THE PARTIES.
Attendance at AA and/or The Other Bar Meetings: Respondent must attend at least three meetings per week of Alcoholics Anonymous and/or The Other Bar. 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 (If Respondent is still attending the four-month program at Matrix Institute on Addictions after the effective date of discipline in this ease, then her participation in Matrix shall satisfy the probation condition for requiring her to attend at least three meetings per week of Alcoholics Anonymous and/or The Other Bar.
If the Respondent extends her participation in Matrix after the initial four-month treatment program she entered into on February 17, 201 I, then her continued participation in Matrix shall satisfy the probation condition for requiring her to attend at least three meetings per week of Alcoholics Anonymous and/or The Other Bar.)
Statement of Sobriety Under Penalty of Perjury in Quarterly and Final Reports: Respondent must state under penalty of perjury in each of her quarterly reports and in her final report to the Office of Probation that she has abstained from the use of alcoholic beverages and that she has not used or possessed any narcotics, dangerous or restricted drugs, controlled substances, marijuana, or associated paraphernalia without a prescription.
Random Drug and Alcohol Testing:
· During the first three years of Respondent’s probationary period, she shall be randomly tested for the use of alcohol no less than 5 and no more than 10 times per year.
· Respondent must select a licensed medical laboratory approved by the Office of Probation. Respondent must maintain with the of Office of Probation a current address and current telephone number at which she can be reached.
· Respondent must return any call from the Office of Probation concerning testing of respondent’s blood or urine within 12 hours. Within 36 hours of the Office of Probation’s initial call to Respondent, Respondent must furnish to the approved medical laboratory blood and/or urine samples as may be required to show that Respondent has abstained from drugs and/or alcohol. Specifically, Respondent is to submit to a EtG (Ethyl Olucuronide) test and a 10-panel drug test. Two samples will be taken for each test. The first of each sample is to be tested, the second specimen is to be stored in a manner which will ensure the specimen may be accurately tested in the future.
· 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 respondent’s expense, a screening report containing an analysis of Respondent’s blood and/or urine within 15 days after the sample was taken.
· In the event that a test result is positive and respondent believes this result to be a false or "innocent" positive, Respondent will be given 5 additional days to have the second specimen retested at the original laboratory or at another approved laboratory, and/or to meet with a Medical Review Officer employed or approved by the laboratory to discuss the results. If the laboratory determines that the initial positive result was indeed a false or "innocent" positive, that determination will be accepted by the Office of Probation.
COMPLIANCE WITH CONDITIONS OF PROBATION IN UNDERLYING CRIMINAL
MATTER.
Respondent shall comply with all conditions of probation imposed in the underlying criminal matters and shall so declare under penalty of perjury in conjunction with any quarterly report required to be filed with the Office of Probation.
Case Number(s): 10-C-08415 and 10-C-10196
In the Matter of: Cynthia Spalding
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: Cynthia Spalding
Date: March 2011
Deputy Trial Counsel: Kimberly G. Anderson
Date: March 7, 2011
Case Number(s): 10-C-08415 and 10-C-10196
In the Matter of: Cynthia L. Spalding
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 DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
checked. All Hearing dates 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 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: Richard A. Honn
Judge of the State Bar Court:
Date: March 23, 2011
[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 24, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSION 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:
CYNTHIA L. SPALDING
LAW OFFICE OF SPALDING & SPALDING
P.O. BOX 967
5348 WINDSOR PL
ALTA LOMA, CA 91737
<<not>> checked. by certified mail, No., with return receipt requested, through the United States Postal Service at, California, addressed as follows:
<<not>> checked. by overnight mail at, California, addressed as follows:
<<not>> checked. by fax transmission, at fax number. No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Kimberly G. Anderson, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 24, 2011.
Signed by:
Cristina Potter
Case Administrator
State Bar Court