Case Number(s): 11-C-13801
In the Matter of: Matthew Mellen, Bar # 233350 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Office of the Chief Trial Counsel
Maria J. Oropeza, Deputy Trial Counsel
180 Howard Street
San Francisco, CA 94105
(415) 538-2569
Bar # 182660
Counsel for Respondent: Edward Lear, Century Law Group LLP
5200 West Century Blvd., Suite 345
Los Angeles, CA 90045
(31 O) 642-6900Bar # 132699,
Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco
Filed: October 5, 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 December 1, 2004.
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.
<<not>> 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.
<<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.
Additional aggravating circumstances:
Additional mitigating circumstances:
Attachment language (if any):
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
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.
Statement of facts: Case No. 11-C-13801 (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 13, 2006, respondent was arrested for driving under the influence.
3. On October 10, 2006, respondent was charged with violations of Vehicle Code § 23152 (a) and (b) (driving under the influence); 16028(C) (failure to provide proof of financial responsibility) all misdemeanors.
4. On October 19, 2006, respondent appeared at his arraignment, and enter a nolo contendere plea to count 2, a violation of Vehicle Code § 23152(b) of the criminal complaint, the remaining counts were dismissed.
5. Respondent was sentenced to: three years probation; two days county jail; sheriff’s work program; ordered to pay a fine of $1,381.00; first offender program; a license restriction of 90 days; may not drive with any measurable amount of alcohol in system during the probation period.
6. On December 22, 2006, respondent’s probation terms were modified with respect to the FOP program.
7. On July 14, 2011, 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 misdemeanor violation of vehicle code §23152(b) involved moral turpitude or other misconduct warranting discipline.
Conclusions of Law: Case No. 11-C-13801 (Conviction Proceeding)
8. The facts and circumstances surrounding the above-described violation(s) did not involve moral turpitude but did involve other misconduct warranting discipline, respondent’s violation of Vehicle Code §23152(b), demonstrates a violation of Business and Professions Code §6068(a).
Statement of Facts: Case No. 11-C-13277 (Conviction Proceeding)
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING:
9. 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.
10. On July 12, 2010, respondent and Ms. Bell, (now respondent’s wife) were drinking at home, when they ran out of beer. Respondent and Ms. Bell decided to go out to obtain more alcohol and some food. On the way home, respondent ran the vehicle into the median.
11. The vehicle was not drivable after the collision. Respondent and Ms. Bell left the scene of the collision.
12. Officer Beachdorph responded to the collision site, upon his arrival he witnessed the vehicle in the median and no driver or passenger in the vehicle. A witness, Mr. Martin, stated that he saw a white male, in his 30’s exit the driver’s side of the vehicle and a white woman also in her 30’s exit the passenger side of the vehicle. Mr. Martin saw both individuals head eastbound on foot.
13. Officer Beachdorph headed in the same direction and located respondent and Ms. Bell standing in front of a gated apartment community. Officer Beachdorph approached respondent and Ms. Bell and inquired where they were coming from. At that point respondent admitted to Officer Beachdorph that the jeep was his and that he had been driving and that he hit the median because he did not see it. Respondent admitted that he was drunk. Respondent stated that he had 3 to 4 beers.
14. Officer Beachdorph took respondent back to the scene of the collision and advised him that he was not under arrest. Officer Beachdorph was trying to ascertain how the one vehicle collision had occurred. Respondent informed Officer Beachdorph that he was not wearing his corrective lenses and thus did not see the median.
15. Officer Beachdorph noticed the strong odor of alcohol and administered field sobriety tests and obtained two breath samples from respondent. Respondent’s BAC on both samples came back at 12. Respondent was arrested for driving under the influence.
16. On July 27, 2010, respondent was charged with violations of Vehicle Code § 23152(a), 23152(b); and two sentence enhancements for the prior conviction of (9/13/06). Respondent chose to go to trial on the matter.
17. At trial respondent, proferred a defense that he was not behind the wheel of the vehicle, rather it was Ms. Bell who was behind the wheel. Ms. Bell took the stand and stated as much.
18. On April 29, 2011, the jury found respondent guilty of violations of Vehicle Code § 23152(a) and (b), with admission of the prior conviction.
19. On May 13, 2011, respondent was sentenced as follows: 4 year probation term; 90 days county jail; no driving with any measurable amount of alcohol; attend SB 38 program within 72 hours from date of release from custody.
20. On August 3, 2011, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department on the following 8 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 misdemeanor violation of vehicle code §23152(a) and (b) involved moral turpitude or other misconduct warranting discipline.
Conclusions of Law: Case No. 11-C-13277 (Conviction Proceedings)
21. The facts and circumstances involved in the driving under the influence charges did not involve moral turpitude but did involve other misconduct warranting discipline, respondent’s violation of Vehicle Code §23152(a) and (b), demonstrates a violation of Business and Professions Code §6068(a).
22. The facts and circumstances involved in proffering a defense, by suggesting that it was Ms. Bell who was behind the wheel in the DUI trial, respondent violated Business and Professions Code §6106 by acting in a manner that was grossly negligent.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was September 28, 2011.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 2.3 states in pertinent part "culpability of a member of an act of moral turpitude, fraud, 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 magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law."
Standard 2.6 states in pertinent part "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."
"Moral turpitude determinations are a matter of law." (In re Higbie (1972) 6 Cal 3d 562, 569.) Moral turpitude is not a concept that fits a precise definition (Chadwick v. State Bar (1989) 49 Cal. 3d 103, 110), but has been consistently described as an "act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (ln re Craig (1938) 12 Cal. 2d 93, 97) The Court has characterized the moral turpitude prohibition as a flexible "commonsense" standard (ln re Mostman (1989) 47 Cal. 3d 725,738) with its purpose not the punishment of attorneys, but the protection of the public and legal community against unsuitable practitioners.
The Supreme Court has held that convictions for driving under the influence do not per se establish moral turpitude, however, such convictions can constitute "other misconduct warranting discipline". In re Anna Lou Kelley, (1990) 52 Cal 3d. 487, 494. The court in Kelley reasoned that when the circumstances ]surrounding convictions for driving under the influence (DUI) indicate a substance abuse problem which affects the member’s private life, the court can not merely wait until the effects of the substance abuse problem permeate into the member’s practice of law. Id. at pg. 495. The court iterated that its task in disciplinary cases is preventative, protective and remedial, not punitive, as such it has a duty to impose discipline in order to protect the public from potential or actual harm. Furthermore, the court stated that it could impose discipline on a member without having to prove the existence of an adverse effect on the member’s practice. Id. at pg. 496.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of September 28, 2011, the prosecution costs in this matter are $4971.13. 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): 11-C-13801; 11-C-13277
In the Matter of: Matthew Mellen, State Bar No.: 233350
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 Mellen
Date: September 29, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel:
Date:
SIGNATURE OF THE PARTIES
Case Number(s): 11-C-13801; 11-C-13277
In the Matter of: Mathew Mellen
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:
Date:
Respondent’s Counsel: Edward O. Lear
Date: 09-29-2011
Deputy Trial Counsel: Maria J. Oropeza
Date: 09-30-2011
Case Number(s): 11-C-13277; 11-C-13801
In the Matter of: Matthew Mellen, State Bar No. 233350
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.
checked. All Hearing dates are vacated.
1. On page 6 of the stipulation, the “X” in the box next to paragraph F. (3) is deleted.
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: Lucy Armendariz
Date: October 5, 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 San Francisco, on October 5, 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 United States Postal Service at San Francisco, California, addressed as follows:
Edward O. Lear
Century Law Group LLP
5200 W Century Blvd. #345
Los Angeles, CA 90045
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Maria Oropeza, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on October 5, 2011.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court