Case Number(s): 11-H-13140; 11-C-14605-RAP
In the Matter of: Brian David Wirsching, Bar# 189491, a Member of the State Bar of California, (Respondent).
Counsel for the State Bar: Jean Cha Deputy Trial Counsel
1149 S, Hill Street
Los Angeles, CA 90015
(213) 765-1000
Bar #228137
Counsel for Respondent: In Pro Per Respondent
Brian D. Wirsching
184 Monroe St
Eugene, OR 97402
(541) 497-0808
Bar# 189491
Submitted to: Settlement Judge, State Bar Court Clerk’s Office Los Angeles
checked. PREVIOUS STIPULATION REMANDED BY SUPREME COURT ORDER S198360
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 July 2, 1997.
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):
<<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: Costs to be paid in equal amounts prior to February 1 for three billing cycles following the effective date of the Supreme Court Order. (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-H-13140 & 11-C-14605- RAP
In the Matter of: Brian David Wirsching
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 8 meetings per month of:
checked. Alcoholics Anonymous
<<not>> checked. Narcotics Anonymous
<<not>> checked. The Other Bar
<<not>> checked. Other program
<<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.
<<not>> 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:
Respondent must provide proof of attendance of eight (8) AA meetings per month with each quarterly report for the preceding calendar quarter and with his final report to the Office of Probation. (See page five, paragraph E.(4).)
IN THE MATTER OF: Brian David Wirsching
CASE NUMBERS: 11-H-13140; 11-C-14605-RAP
FACTS AND CONCLUSIONS OF LAW.
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.
Case No. 1 l-H- 13140 (Reproval Violation Matter)
FACTS:
1. Respondent was employed at a law firm in January 2008. Respondent’s official membership records address was listed at his employer’s address. In July 2008, Respondent was terminated from employment with that law firm and his membership records address was no longer current as of July 1, 2008. Respondent did not update his membership records address within 30 days of any change. It was not until three years later, on July 8, 2011, that Respondent updated his membership records address with the Membership Records Office of the State Bar.
2. On March 29, 2010, a Notice of Disciplinary Charges was filed in State Bar Court case no. 09-013593.
3. On May 26, 2010, Respondent’s default was entered in case no. 09-0-13593.
4. On August 26, 2010, the Hearing Department of the State Bar Court issued a Decision and Discipline Order in case no. 09-O-13593 ("Discipline Order") imposing a one-year public reproval on Respondent for a single violation of Business and Professions Code section 6068(m), effective on October 1, 2010. All notices sent to Respondent by the Hearing Department and the State Bar in case no. 09-O-13593 were returned to sender.
5. The Discipline Order imposed certain reproval conditions. As conditions of the public reproval, Respondent was ordered to contact the Office of Probation of the State Bar of California ("Probation Office") by October 31, 2010 to schedule a meeting with the Probation Office, to file quarterly reports with the Probation Office on January 10, 2011 and on April 10, 2011, respectively, and to report any change of address to the Probation Office within 10 days of the change.
6. On September 2, 2010, a probation deputy of the Probation Office mailed a letter to Respondent at his membership records address and included a description of the conditions attached to his reproval and the deadlines to meet those conditions. On September 16, 2010, the probation deputy’s September 2, 2010 letter was returned to the Probation Office with the handwritten notations "Not here" and "return to sender."
7. Respondent did not contact the Probation Office by October 31, 2010 to schedule a meeting, did not file any quarterly reports with the Probation Office by January 10, 2011 or by April 10, 2011, and did not report any change of address to the Membership Records Office of the State Bar or the Probation Office within 10 days of the change.
8. On June 20, 2011, a Notice of Disciplinary Charges was filed in State Bar Court case no. 11-H13140.
9. On July 13, 2011, Respondent received his first actual notice of the existence of a public reproval when he made contact with the assigned Deputy Trial Counsel in relation to case no. 1 l-H-13140.
10. Respondent had a meeting with the Probation Office on August 8, 2012 and belatedly complied with his quarterly reporting requirements attached to the public reproval on August 14, 2012.
CONCLUSIONS OF LAW:
11. By failing to update his membership records address within 30 days of any change, Respondent intentionally, recklessly, or repeatedly failed to keep his membership records address current in willful violation of Business and Professions Code section 60680) 12. By not timely contacting the Probation Office to schedule a meeting, not timely filing two quarterly reports, and by not timely reporting his change of address to the Membership Records Office of the State Bar or to the Probation Office, Respondent failed to comply with conditions attached to a public reproval in violation of Rules of Professional Conduct, rule 1-110.
Case No. 1 l-C- 14605 (Conviction Proceedings)
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING:
13. 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.
14. On July 16, 2008, a Misdemeanor Complaint was filed alleging misdemeanor violations of California Vehicle Code section 23152(a) - driving a vehicle while under the influence of alcohol and section 23152(b) - driving with blood alcohol .08% or more in a matter entitled People v. Wirsching, Los Angeles County Superior Court case no. 8WA12135.
15. On August 26, 2008, Respondent pied nolo contendere and was convicted of violation Vehicle Code section 23152(b), a misdemeanor, for driving with Blood Alcohol Level of .08% or more. Respondent was sentenced to 60-months of summary probation and 9-days in jail in lieu of payment of fines and penalties. Respondent was required to complete an 18-month licensed second-offender alcohol education counseling program, pay $1,400 in restitution, and complete the HAM, VIP, and MADD programs. Also, Respondent’s driver’s license was suspended for one year commencing August
26, 2008.
16. On August 24, 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 Respondent’s misdemeanor violation involved moral turpitude or other misconduct warranting discipline.
FACTS AND CIRCUMSTANCES SURROUNDING CONVICTION:
17. On March 25, 2004, Respondent was convicted of his first DUI which occurred December 20, 2003. Respondent successfully completed criminal summary probation without incident on March 25, 2007.
18. From January 2008 through May 2008, Respondent was drinking excessively. Respondent’s alcoholism adversely impacted his relationship with his employer resulting in his termination in July 2008. After Respondent was laid off, he was only able to find intermittent work which culminated in his financial decline and heavy alcohol consumption. Respondent failed to report his MCLE compliance and failed to pay bar dues resulting in his inactive enrollment as of July 1, 2008. Respondent is not
eligible to practice law, to date.
19. On the evening of May 31, 2008, Respondent attended a social event in Marina del Rey, California. Respondent consumed alcohol at the event. Shortly after leaving the event, Respondent was arrested for driving while under the influence of alcohol. Respondent’s blood alcohol content was 0.121%.
20. Respondent was cooperative during the arrest and criminal proceeding. Respondent was not on probation when the second DUI occurred.
21. After Respondent’s drivers license was suspended on August 26, 2008, Respondent was unable to find gainful employment. Respondent became homeless in November 2008 because he was unable to maintain rental payments.
22. Respondent’s sobriety date is December 24, 2008.
23. In August 2009, Respondent relocated to Eugene, Oregon.
24. On January 20, 2011, Respondent successfully completed the terms of his criminal probation in relation to his second DUI and the conviction matter concluded.
25. On July 13, 2011, Respondent voluntarily self-reported the existence of his second DUI to the State Bar of California Office of the Chief Trial Counsel which triggered the commencement of this conviction matter.
CONCLUSION OF LAW:
26. The facts and circumstances surrounding the misconduct did not involve moral turpitude but did constitute other misconduct warranting discipline.
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline: Respondent received a one-year public reproval after default in case no. 09-0-13593, effective October 1, 2010 and ending October 1,2011, for a single violation of Business and Professions Code section 6068(m) for failing to communicate with a client in a bankruptcy matter in July, August, and September 2008.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Good Character: Standard 1.2(e)(vi) provides for mitigation where an extraordinary demonstration of good character of the member attested to by a wide range of references in the legal and general communities and who are aware of the full extent of the member’s misconduct shall be considered mitigation. Respondent has seventeen character references consisting of two attorneys, Respondent’s ex-wife, seven friends, Respondent’s current wife, two letters from Respondent’s Alcoholics Anonymous colleagues-one of whom is his sponsor, two work-related colleagues through Respondent’s current employment, a past employer, and Respondent’s current employer; all of whom expressed their belief in Respondent’s integrity and honesty even with the knowledge of Respondent’s misconduct and attest that the conduct will not recur.
Additional Mitigating Circumstances:
Respondent has been cooperative throughout these disciplinary proceedings. Respondent willingly agreed to stipulate to the culpability and misconduct without necessitating a trial thereby conserving resources. (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 50.)
Also, Respondent self-reported the existence of his second DUI in July 2011 even though he was not required to do so.
Respondent recognizes his wrongdoing as to the reproval matter, Respondent did not fail to comply with conditions attached to his reproval out of any maleficent intent. Concerted, though recent, efforts to satisfy conditions, albeit late, are better than utter non-compliance. Although no mitigation is given for Respondent’s doing what he was already legally required to do (In the Matter of Petilla (Review Dept. 2001) 4 Cal. State Bar Ct. Rptr. 231,249), Respondent’s efforts reflect a positive attitude toward rehabilitation.
The misconduct in Respondent’s prior discipline and the misconduct in the conviction matter occurred while in the throes of his alcohol abuse problem in 2008. Respondent has spent the past three and-a-half years since becoming sober on December 24, 2008, focusing his energy on maintaining his sobriety and alcohol recovery. Respondent has found a steady job as an office assistant since his move to Oregon in August 2009 and began a course of counseling and therapy in early 2010. According to his psychotherapist, his prognosis is excellent, and he maintains a stable home, gainful employment, attends Alcoholics Anonymous meetings regularly, continues with weekly therapy sessions, and has a strong support system.
(Do not write above this line.)
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attomey 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." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for
Prof. Misconduct, Introduction (all further references to standards are to this source).) 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, 205; 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.4u’ 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 attorney misconduct. (In re Nancy (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 admits to committing three acts of professional misconduct. Standard 1.6(a) requires that where a Respondent acknowledges two or more acts of misconduct, and different sanctions are prescribed by the standards that apply to those acts (see Standards 2.6(a), 2.9 and 3.4), the sanction imposed shall be the more or most severe prescribed in the applicable standards.
The most severe sanction applicable to Respondent’s misconduct is found in standard 2.6(a), which applies to Respondent’s violation of Business and Professions Code section 60680).
Standard 2.6(a) provides that culpability of a member of a violation of section 6068 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. Although the misconduct in the reproval violation matter did not result in harm to any client or victim,
Respondent’s failure to update his official membership records address with the State Bar for three years is serious and directly resulted in Respondent’s default in the prior disciplinary proceedings, caused his lack of actual notice of the discipline imposed and non-compliance with the reproval conditions.
Although it did not involve moral turpitude, Respondent’s misdemeanor DUI conviction demonstrated that his abuse of alcohol not only caused substantial harm to Respondent but also presented a danger to the public.
The misconduct is aggravated by Respondent’s prior record of discipline. However, the aggravating weight is tempered because the misconduct in the prior matter occurred during the same time period as Respondent’s initial failure to report a change of address and his DUI conviction in the summer and fall of 2008. (ln the Matter of Sklar (Review Dept. 1993) 2 Cal.State Bar Ct. Rptr. 602, 619,) The present misconduct is mitigated by Respondent’s evidence of current good character, his efforts to cooperate with the State Bar beginning in July 2011, and his continuing efforts to recover from his alcohol abuse.
Respondent’s alcohol abuse was a common factor in all of the misconduct, and he has shown substantial progress during the past three-and-a-half years in recovering from that abuse. Respondent has found steady employment as an office assistant and began a regular course of counseling and therapy in early 2010. According to his psychotherapist, Respondent’s prognosis is excellent because he maintains a stable home, gainful employment, attends abstinence meetings regularly, and has a strong support system.
Actual suspension here is required to meet the purposes of discipline and to comply with the requirement of the standards that the discipline be greater than that imposed in the prior proceedings. (Std. 1.7(a).) Respondent, who resides in Oregon, is not presently practicing law. A sixty-day actual suspension and a three-year probation is appropriate to protect the public, maintain high professional standards on attorneys and preserve public confidence in the legal profession and is the appropriate sanction to ensure Respondent’s future adherence to the rules governing attorneys.
PENDING PROCEEDINGS.
The disclosure date referred to on page two, paragraph A.(7), was August 23, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of August 23, 2012, the prosecution costs in this matter are $3,179. 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-H-13140; 11-C-14605-RAP
In the Matter of: Brian D. Wirsching
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: Brian D. Wirsching
Date: 8-27-12
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Jean Cha
Date: 9-4-12
Case Number(s): 11-H-13140 & 11-C-14605-RAP
In the Matter of: Brian David Wirsching
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.
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: 9-7-12
BRIAN D. WIRSCHING, Case Nos. 1 l-H-13140-RAP and 11-C-14605-RAP
Page 15A.
MODIFICATIONS TO STIPULATION
1. In the caption on page i of the Stipulation, "Remanded" is deleted, and in its place is inserted "Returned".
2. On page 3 of the Stipulation, an "X" is inserted in the box at paragraph B.(7) and "or demonstrates a pattern of misconduct" is deleted.
3. On page 6 of the Stipulation, under the heading "CLE in Lieu of State Bar Ethics School," line 4, "within 6 months of" is deleted, and in its place is inserted "6 months after".
4. On page 6 of the Stipulation, the heading "Other Agreements" and the paragraph under this heading is deleted in its entirety.
5. On page 7 of the Stipulation, under the heading "Other", line 3, "paragraph E.(4)" is deleted, and in its place is inserted "paragraph E.(5)".
6. On page 9 of the Stipulation, numbered paragraph 11 is deleted in its entirety, and all paragraphs thereafter on pages 9 and 10 are renumbered accordingly.
7. On page 12 of the Stipulation, the heading "Authorities Supporting Discipline" is deleted, and in its place is inserted "Discussion".
8. On page 12 of the Stipulation, third full paragraph, line 1, "three" is deleted, and in its place is inserted "two".
9. On page 12 of the Stipulation, third full paragraph, line 3, "2.6(a)," is deleted.
10. On page 12 of the Stipulation, fourth full paragraph, line 1, "2.6(a)" is deleted, and in its place is inserted "2.9".
11. On page 12 of the Stipulation, fourth full paragraph, line 2, "Business and Professions Code section 6068(j)" is
deleted, and in its place is inserted "rule 1-110 of the Rules of Professional Conduct".
12. On page 12 of the Stipulation, delete the fifth full paragraph in its entirety, and in its place insert, "Standard 2.9 provides that a member’s culpability of rule 1-110 of the Rules of Professional Conduct must result in suspension."
13. On page 12 of the Stipulation, the seventh paragraph at the bottom of the page, lines 2-4, "tempered because the
misconduct in the prior matter occurred during the same time period as Respondent’s initial failure to report a change of address and his DUI conviction in the summer and fall of 2008" is deleted, and in its place is inserted, "somewhat tempered because the currently charged misconduct in the DUI matter predated the misconduct in respondent’s prior disciplinary matter such that respondent was not put on notice of his disciplinary misconduct in the DUI matter by his prior discipline. (See In the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602, 619.) However, respondent clearly has a prior record of discipline with respect to the matter involving his violation
of the conditions of his reproval, as that misconduct occurred after the imposition of discipline in the prior disciplinary matter."
14. On page 13 of the Stipulation, at the end of the first full paragraph which ends, "adherence to the rules governing attorneys," the following citations are added: "(In re Kelley (:1990) 52 Cal.3d 487 [public reproval for attorney twice convicted of driving with a blood-alcohol level over .10 percent; second conviction occurred while attorney on probation for first offense]; In the Matter of Meyer (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 697 [two years’ stayed suspension; three years’ probation; 90-day actual suspension for attorney with two prior records of discipline (plus other aggravating circumstances and no mitigating circumstances) for failing to comply with two conditions attached to a prior private reproval (not timely filing two probation reports and not timely providing proof of completion of required continuing legal education)]."
[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 September 10, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
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:
BRIAN D. WIRSCHING
184 MONROE ST
EUGENE, OR 97402
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
JEAN CHA, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 10, 2012.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court