Case Number(s): 10-O-00685, 11-O-12879
In the Matter of: David Gillespie Malveaux, Bar # 224220, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erin McKeown Joyce, Deputy Trial Counsel
State Bar of California
1149 South Hill Street
Los Angeles, CA 90015-2299
Telephone: (213) 765 - 1356
Facsimile: (213) 765-1319
Bar # 149946,
Counsel for Respondent: In Pro Per Respondent
David Gillespie Malveaux
404 East 1st Street
Suite 1329
Long Beach, CA 90802
(310) 351-3795
Bar # 224220
Submitted to: Assigned Judge - State Bar Court Clerk’s Office Los Angeles.
<<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 2, 2002.
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):
<<not>> 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.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: two years following the effective date of the Supreme Court order of discipline (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.
Respondent is required to comply with the substance abuse conditions of his prior disciplinary order in Case No. 07-C-13122 et al. until the expiration of the probation in that matter, which runs concurrently with the probation in this matter.
Pursuant to paragraph 7 of the substance abuse conditions of Respondent’s prior discipline, Respondent need only self-report his compliance with the specified treatment/recovery recommendations. He is not required to provide any additional medical reports pursuant to this paragraph.
The Attachment to the Stipulation re Facts, Conclusions of Law and Disposition comprises pages 7 to 9.
IN THE MATTER OF: David Malveaux, State Bar No. 149946
STATE BAR COURT CASE NUMBER: 10-O-685 and 11-O-12879
PENDING PROCEEDINGS:
The disclosure date referred to on page two, paragraph A.(7), was September 23, 2011.
Respondent admits that the following facts are true and that he is culpable of violations of the specified Rules of Professional Conduct and Business and Professions Code sections.
Case No. 10-O-685
FACTS
1. On December 21, 2009, Respondent faxed to the State Bar a three page medical report in connection with a then pending disciplinary proceeding, State Bar Case Nos. 07-C-13122 et al.
2. Respondent sent this report for evaluation of the appropriate substance abuse conditions to include in the stipulation.
3. The report sent by Respondent was not prepared by Louis Morello, PhD.
4. Respondent represented to the State Bar that the report had been prepared by Dr. Morello.
CONCLUSIONS OF LAW
By submitting the medical report which was not authored by Dr. Morello to the State Bar, and representing to the State Bar that the report had been prepared by Dr. Morello, Respondent committed an act involving moral turpitude, dishonesty or corruption in wilful violation of Business and Professions Code section 6106.
Case No. 11-O-12879
FACTS
1. On May 20, 2010, the Supreme Court issued a disciplinary order ($181033) resolving four State Bar matters: 07-C-13122, 07-C-13247, 07-C-13977 and 07-C-13981 (the "Supreme Court order").
2. Pursuant to the Supreme Court order, Respondent was placed on a two year stayed suspension with conditions, including a three-year probation
3. Respondent was required to file quarterly reports commencing on October 1, 2010, each quarter of his probation.
4. Respondent was required to identify a medical provider qualified in substance abuse treatment, and provide to the State Bar a substance abuse evaluation setting forth recommendations for treatment.
5. Respondent was required to provide a waiver of confidentiality for the State Bar to receive access to the medical provider’s substance abuse evaluation.
6. Respondent was required to comply with all treatment conditions recommended by the medical provider who provided the substance abuse evaluation.
7. Respondent failed to timely file his quarterly reports due by October 10, 2010, January 1, 2010 and April 10, 2011.
8. Respondent failed to timely file his substance abuse evaluation.
9. Respondent has belatedly complied with his quarterly reporting requirements and is currently in compliance on this condition.
10. Respondent has belatedly complied with the requirement to provide the substance abuse evaluation and is currently in compliance on this condition.
CONCLUSIONS OF LAW
By failing to timely comply with the quarterly reporting conditions and the substance abuse conditions of his disciplinary probation imposed by the Supreme Court order, Respondent failed to comply with all conditions attached to a disciplinary probation in wilful violation of Business and Professions Code section 6068(k).
AUTHORITIES SUPPORTING DISCIPLINE
STANDARDS FOR ATTORNEY SANCTIONS
To determine the appropriate level of discipline, the standards provide guidance. Drociak v. State Bar(1991) 52 Cal.3d 1085; In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119. A disciplinary recommendation must be consistent with the discipline in similar proceedings. See Snyder v. State Bar (1990) 49 Cal.3d 1302. Also, the recommended discipline must rest upon a balanced consideration of relevant factors. In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119.
Pursuant to Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct 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
Pursuant to Standard 2.3 of the Standards for Attorney Sanctions for Professional Misconduct:
Culpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client or another person or of concealment of a material fact to a court, client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law.
Pursuant to Standard 2.6 of the Standards for Attorney Sanctions for Professional Misconduct:
Culpability of a member of a violation of any of the following provisions of the Business and Professions Code shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3:
(a) Business and Professions Code section 6067 and 6068.
Here Respondent submitted a medical report which was not prepared by its purported author, in order to evaluate the substance abuse conditions of his disciplinary suspension. A period of actual suspension is warranted when Respondent’s conduct has been dishonest. In the Matter of Mitchell (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 332 (court imposed a 60 day actual suspension for misrepresenting Respondent’s educational background on his resume and submitting false discovery responses in the State Bar proceedings).
Respondent also failed to timely comply with the terms of his disciplinary probation. The stipulated discipline of a ninety day actual suspension is sufficient to protect the interests of justice and the public.
FURTHER AGREEMENTS OF THE PARTIES
The factual statements contained in this Stipulation constitute admissions of fact and may not be withdrawn by either party, except with court approval.
COSTS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed him that as of September 20, 2011, the estimated costs in this matter are $3,689. 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.
Case Number(s): 10-O-00685 and 11-O-12879
In the Matter of: David Gillespie Malveaux
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: David Gillespie Malveaux
Date: September 23, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Erin McKeown Joyce
Date: September 23, 2011
Case Number(s): 10-O-00685 and 11-O-12879
In the Matter of: David Gillespie Malveaux
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.
<<not>> 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:
Judge of the State Bar Court: Donald F. Miles
Date: October 6, 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 October 6, 2011, 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 UnitedStates Postal Service at Los Angeles, California, addressed as follows:
DAVID G. MALVEAUX
404 E 1ST ST #1329
LONG BEACH, CA 90802
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERIN JOYCE, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 6, 2011.
Signed by:
Rose Luthi
Case Administrator
State Bar Court