Case Number(s): 11-C-19015-PEM; 11-C-19015-PEM
In the Matter of: Matthew John Erwin Bar #198280 a Member of the State Bar of California, (Respondent).
Counsel for the State Bar: William Todd Deputy Trial Counsel
1149 South Hill Street
Los Angeles, California 90015
(213) 765-1491
Bar #259194
Counsel for Respondent: In Pro Per Respondent
Matthew John Erwin
175 N Feldner Rd Apt 66
Orange, California 92868
Bar# 198280
Submitted to: Settlement Judge, State Bar Court Clerk’s Office San Francisco
<<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 12, 1998.
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 16 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: 2013. (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.
Case Number(s): 11-C-19015-PEM; 11-C-19015-PEM
In the Matter of: Matthew John Erwin
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 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, Life Ring, 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 "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.
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.
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:
IN THE MATTER OF: MATTHEW JOHN ERWIN, SBN #198280
CASE NUMBER(S): 1 l-C-18809-PEM, 1 l-C- 19015-PEM
A. FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified sections of the Business and Professions Code and/or Rules of Professional Conduct.
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.
Case 11-C-18809
2. On November 15, 2011, in the case known as People v. Erwin, Orange County Superior Court Case no. 10WF2166, Respondent was convicted of felony violations of California Penal Code section 245 (a)(1) [assault with a deadly weapon other than a firearm] and Vehicle Code section 2800.2(a) [evading a police officer: reckless driving]. Respondent’s sentence included 180 days in jail (later reduced to 90), restitution, fines, fees and an order to "stay away" from victim Respondent nearly struck with Respondent’s vehicle. Respondent was also ordered to comply with any plan for psychiatric, psychological, alcohol/drug treatment or counseling directed by probation. 3. On January 20, 2012, the Review Department of the State Bar Court referred this matter to the Hearing Department for a hearing and decision recommending the discipline to impose in the event it finds the facts and circumstances surrounding felony offenses for violating Penal Code section 245 (a)(1) [assault with a deadly weapon other than a firearm] and Vehicle Code section 2800.2(a) [evading a police officer: reckless driving] involved moral turpitude or other misconduct warranting discipline.
FACTS:
4. On September 2, 2010, Respondent was behaving erratically on Pacific Coast Highway ("PCH") in Seal Beach, California. Respondent’s vehicle was parked so as to block the northbound lanes of PCH. An off-duty, out of uniform firefighter (victim) riding a motorcycle decided to aid Respondent out of concern for Respondent’s safety and a concern that Respondent might be suicidal.
5. When the victim attempted to help Respondent, Respondent re-entered his vehicle. Respondent shifted the vehicle into reverse and at approximately 30 miles-per=hour attempted to strike the victim. Respondent then fled the scene, driving erratically.
6. The Seal Beach Police Department was soon alerted to reports of Respondent’s reckless driving. An officer arrived in the area of the reports and found Respondent standing inside Respondent’s stopped vehicle with his torso was sticking through the sunroof of the vehicle. Respondent was yelling and shaking his fists at other vehicles stopped on PCH.
7. As the officer approached Respondent, Respondent fled the scene in his vehicle, and the officer followed, with flashing lights and siren activated. While fleeing, Respondent threw an open beer can from his vehicle.
8. The pursuit ended when Respondent was slowed by traffic. Respondent was arrested. Testing found the presence of marijuana and a trace amount of alcohol in Respondent’s system. Respondent was convicted of felony violations of California Penal Code section 245 (a)(1) and Vehicle Code section 2800.2(a), as described above.
CONCLUSION OF LAW:
9, The facts and circumstances surrounding Respondent’s offenses for violating California
Penal Code section 245(a)(1) [assault with a deadly weapon other than a firearm] and Vehicle Code section 2800.2(a) [evading a police officer: reckless driving] do not constitute moral turpitude but do constitute other misconduct warranting discipline.
Case 11-C-19015:
10. On November 15, 2011, in the case known as People v. Erwin, Orange County Superior Court Case no. 10HM06290, Respondent was convicted of two (2) misdemeanor violations of Newport Beach Municipal Code section 10.54.020(A) [prohibition of public nudity]. Respondent’s sentence included restitution, fines, fees, costs and an order to "stay away" from Encore Court, Mojo Court and Kialoa Court in Newport Beach, California.
11. On February 2, 2012, the Review Department of the State Bar Court referred this matter to the Hearing Department for a hearing and decision recommending the discipline to impose in the event it finds the facts and circumstances surrounding misdemeanor offenses for violating Newport Beach Municipal Code section 10.54.020(A) [prohibition of public nudity] involved moral turpitude or other misconduct warranting discipline.
FACTS:
12. On June 4, 2010, Respondent exposed himself in a public place, and was observed by at least one witness,
13. On August 9, 2010, multiple witnesses observed Respondent expose himself on two occasions in incidents that were hours apart.
14. Respondent was questioned, arrested and charged with two misdemeanor counts of public nudity in violation of section 10.54.020(A) of the Newport Beach Municipal Code on March 21, 2010.
15. On November 15, 2011, Respondent was convicted of two misdemeanor violations of Newport Beach Municipal Code section 10.54.020(A) [public nudity].
CONCLUSION OF LAW:
16. The facts and circumstances surrounding Respondent’s offenses for violating Newport Beach Municipal Code section 10.54.020(A) [public nudity] do not constitute moral turpitude but do constitute other misconduct warranting discipline.
B. FACTS AND CIRCUMSTANCES IN SUPPORT OF AGGRAVATION
Harm (Standard 1.2 (b)(iv)): The off-duty firefighter who attempted to aid Respondent, only to have Respondent attempt to run him over, said he had never been so afraid in his life and thought he was going to die.
Multiple Acts of Misconduct (Standard 1.2 (b)(ii)): Respondent’s convictions include four acts of criminal misconduct in three separate incidents spread over several months. See In the Matter of Malek-Yonan (Review Dept. 2003) 4 Cal. State Bar Ct. Rptr. 627. Additional Aggravating Circumstance: Respondent was convicted of driving under the influence of alcohol (blood alcohol content of 0.10%) by jury trial in August 2007.
C. FACTS AND CIRCUMSTANCES IN SUPPORT OF MITIGATION
Though Respondent has been candid and cooperative through this investigation, only limited mitigation can result because the facts in this instance are easily proven (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr 41), and cooperation with State Bar investigations is an attorney duty not entitled to great weight as a mitigating factor. In the Matter of Spaith (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr 511.
Though Respondent’s 12 years of practice prior to this misconduct did not include any discipline, his current conduct is serious, and thus the absence of prior discipline is entitled to only limited mitigation. In the Matter of Conner (Review Dept. 2008) 5 Cal. State Bar Ct. Rptr 93.
D. OTHER RELEVANT FACTS
From August to November, 2011, Respondent completed a 90-day in-patient drug and alcohol treatment/recovery program. Respondent remains under criminal probation.
PENDING PROCEEDINGS.
The disclosure date referred to on page 2, paragraph A(7), was August 21,2012.
F. AUTHORITIES SUPPORTING DISCIPLINE.
Standards for Attorney Sanctions for Professional Misconduct
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." (See, Introduction to the Standards, Rules Proc. of State Bar, Title IV, Stds. for Prof. Misconduct). 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, 206, see also std 1.3).
Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible" in determining level of discipline. (In re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal.4th 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 attomey misconduct. (ln 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),
Respondent’s misconduct began on June 4, 2010 when Respondent exposed himself to someone in a public place. Again, on August 9, 2010, Respondent was seen exposing himself by multiple witnesses in two separate incidents a few hours apart. His misconduct significantly escalated on September 2, 2010, when Respondent blocked traffic with his vehicle and was acting erratically, and then attempted to strike a person with his vehicle before driving away recklessly. A short time later Respondent again stopped traffic and stood out of the sunroof of his vehicle until law enforcement officers arrived and then Respondent recklessly drove away to evade the officers, including driving the wrong way on a major freeway, until finally stopped and arrested. Respondent’s consumption of alcohol and/or drugs was involved in these incidents. Moral Turpitude was not involved in the facts and circumstances surrounding any of the offenses.
Standard 3.4 provides that final conviction of a member of a crime which does not involve moral turpitude inherently or in the facts and circumstances surrounding the crime’s commission but which does involve other misconduct warranting discipline shall result in a sanction as prescribed under part B of the [Standards for Attorney Sanctions for Professional Misconduct] appropriate to the nature and extent of the misconduct found to have been committed by the member.
Here, Respondent committed multiple crimes, yet none of those crimes fall under a specific standard. Broadly, each of Respondent’s crimes here is a willful violation of Business and Professions Code section 6068 (a), which requires attorneys to "support the Constitution and laws of the United States and this state." This leads our analysis directly to Standard 2.6, which requires that any violation of section 6068 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."
The gravity of these offenses cannot be overstated, as these are not minor charges. Respondent’s assault-with-a-deadly-weapon-other-than-a-firearm and evading-police-while-driving-recklessly are both felony acts which placed lives at risk. The progression of the severity of Respondent’s criminal behavior, going from public displays of nudity to the felonious reckless endangerment of lives indicate a significant period of actual suspension should be imposed. Respondent’s disregard for the safety of others and disregard for law enforcement only a few years after a DUI conviction further supports a significant period of actual suspension.
In this instance, though there were no physical injuries, there was harm. The Long Beach firefighter nearly struck by Respondent’s vehicle said he had never been so afraid in his life, and that he thought he was going to die. Further, a significant number of people were unnecessarily delayed and endangered by Respondent’s conduct, which included stopping traffic and driving recklessly. Even the more minor deviant acts of exposure created doubts of public safety for those who observed them.
Balanced with Respondent’s conduct here are Respondent’s lack of a prior record of discipline since his admission in 1998 and his cooperation with the State Bar in reaching this stipulation.
In re Otto (1989) 48 Cal. 3d 970, the respondent was convicted of two felonies: assault by means likely to produce great bodily injury (Penal Code section 245, subd. (a)), and infliction of corporal punishment on a cohabitant of the opposite sex resulting in a traumatic condition. (Penal Code section 273.5.) Though the specific facts of the matter are not addressed in the opinion, the Supreme Court found this to be other misconduct warranting discipline, suspending him for 2 years, stayed, with 6 months actual. The passage of the professional responsibility exam was ordered as well. Though the court in Otto does not provide an explicit description of the incident that gave rise to the conviction, the case remains instructive for purposes of level of discipline for these similar offenses.
Here, Respondent demonstrated a callous disregard both for those around him and law enforcement. This fact supports the necessity of significant actual suspension, particularly in light of only minimal mitigation. Therefore, six months actual suspension with substance abuse conditions is appropriate to protect the public, the courts, and the legal profession.
G. EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, respondent may not receive MCLE credit for completion of State Bar Ethics School.
H. COSTS
Respondent acknowledges that the Office of Chief Trial Counsel has informed him that as of September 10, 2012, the estimated prosecution costs in this matter are approximately $2,287.00. Respondent acknowledges that this figure is an estimate only. 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): 11-C-18809-PEM; 11-C-19015-PEM
In the Matter of: Matthew John Erwin
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 2 of the stipulation, paragraph A.(8), in the option marked with an "X", "2013" is deleted, and in its place is inserted "2014"; On page 6 of the stipulation, the "X" in the box next to paragraph F.(2) is deleted (respondent was already ordered to comply with California Rules of Court, rule 9.20 in the interim suspension order); and
On page 6 of the stipulation, an "X" is inserted in the box next to paragraph F.(4), and "February 20, 2012" is inserted at the end of that same paragraph.
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: Richard A. Honn
Date: 10-13-12
[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 4, 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 San Francisco, California, addressed as follows:
MATTHEW J. ERWIN
175 N FELDNER RD APT 66
ORANGE, CA 92868
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
William Todd, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on October 4, 2012.
Signed by:
George Hue
Case Administrator
State Bar Court