State
Bar Court of California
Hearing
Department
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 11-O-12262
In the Matter of: John F. Morken, Bar # 153979, A Member of
the State Bar of California, (Respondent).
Counsel For The State Bar: Robert A. Henderson, Deputy
Trial Counsel
180 Howard St.
San Francisco, CA 94105
(415) 538-2385
Bar # 173205
Counsel for Respondent:, In Pro Per Respondent
John F. Morken
760 Market St., Suite 938
San Francisco, CA 94102
(415) 391-6140
Bar# 153979
Submitted to: Settlement Judge
Filed: June 20, 2011 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.
A. Parties' Acknowledgments:
1.
Respondent is a member of the State Bar
of California, admitted September 12, 1991.
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.
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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.
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checked. Costs are waived in part as set forth in a separate attachment
entitled "Partial Waiver of Costs".
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checked. Costs are entirely waived.
B.
Aggravating Circumstances [for definition, see
Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)].
Facts supporting aggravating circumstances are required.
checked. (1) Prior record of discipline [see standard 1.2(f)]
checked.
(a)
State Bar Court case # of prior case 05-C-04451
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(b) Date prior discipline
effective February 25, 2009
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(c) Rules of
Professional Conduct/ State Bar Act violations: 6068(a); 4-100(A); and
6106
checked.
(d)
Degree of prior discipline three-years stayed, five-years
probation and two-years actual suspension
checked.
(e)
If Respondent has two or more incidents of prior discipline, use space provided
below.
08-H-10814 –
Stayed suspension for violating a condition of his public reproval in case number
03-C-03937
<<not>> checked. (2) Dishonesty: Respondent's
misconduct was surrounded by or followed by bad faith, dishonesty, concealment,
overreaching or other violations of the State Bar Act or Rules of Professional
Conduct.
<<not>> checked. (3) Trust Violation: Trust funds or
property were involved and Respondent refused or was unable to account to the
client or person who was the object of the misconduct for improper conduct
toward said funds or property.
<<not>> checked. (4) Harm: Respondent's misconduct
harmed significantly a client, the public or the administration of justice.
<<not>> checked. (5) Indifference: Respondent demonstrated
indifference toward rectification of or atonement for the consequences of his
or her misconduct.
<<not>> checked. (6) Lack of Cooperation: Respondent
displayed a lack of candor and cooperation to victims of his/her misconduct or
to the State Bar during disciplinary investigation or proceedings.
<<not>> checked. (7) Multiple/Pattern of Misconduct:
Respondent's current misconduct evidences multiple acts of wrongdoing or
demonstrates a pattern of misconduct.
<<not>> checked. (8) No aggravating circumstances are
involved.
Additional aggravating circumstances:
C. Mitigating Circumstances [see standard 1.2(e)]. Facts
supporting mitigating circumstances are required.
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checked. (1) No Prior Discipline: Respondent has no
prior record of discipline over many years of practice coupled with present
misconduct which is not deemed serious.
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checked. (2) No Harm: Respondent did not harm the
client or person who was the object of the misconduct.
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checked. (3) Candor/Cooperation: Respondent displayed
spontaneous candor and cooperation with the victims of his/her misconduct and
to the State Bar during disciplinary investigation and proceedings.
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checked. (4) Remorse: Respondent promptly took
objective steps spontaneously demonstrating remorse and recognition of the
wrongdoing, which steps were designed to timely atone for any consequences of
his/her misconduct.
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checked. (5) Restitution: Respondent paid $
on in restitution to without the threat or force of
disciplinary, civil or criminal proceedings.
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checked. (6) Delay: These disciplinary proceedings were
excessively delayed. The delay is not attributable to Respondent and the
delay prejudiced him/her.
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checked. (7) Good Faith: Respondent acted in good
faith.
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checked. (8) Emotional/Physical Difficulties: At the
time of the stipulated act or acts of professional misconduct Respondent
suffered extreme emotional difficulties or physical disabilities which expert
testimony would establish was directly responsible for the misconduct.
The difficulties or disabilities were not the product of any illegal conduct by
the member, such as illegal drug or substance abuse, and Respondent no longer
suffers from such difficulties or disabilities.
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checked. (9) Severe Financial Stress: At the time of
the misconduct, Respondent suffered from severe financial stress which resulted
from circumstances not reasonably foreseeable or which were beyond his/her
control and which were directly responsible for the misconduct.
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checked. (10) Family Problems: At the time of the misconduct, Respondent
suffered extreme difficulties in his/her personal life which were other than
emotional or physical in nature.
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checked. (11) Good Character: Respondent's good character is attested to
by a wide range of references in the legal and general communities who are
aware of the full extent of his/her misconduct.
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checked. (12) Rehabilitation: Considerable time has passed since the acts
of professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
checked.
(13) No mitigating circumstances are involved.
Additional
mitigating circumstances:
D. Discipline:
checked.
(1) Stayed Suspension:
checked.
(a) Respondent must be suspended from the practice of law for a period of
five-years
checked. i. and
until Respondent shows proof satisfactory to the State Bar Court of
rehabilitation and present fitness to practice and present learning and ability
in the law pursuant to standard 1.4(c)(ii) Standards for Attorney Sanctions for
Professional Misconduct.
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following:
checked.
(b) The above-referenced suspension is stayed.
checked. (2) Probation: Respondent must be placed on probation
for a period of five-years, which will commence upon the effective date of the
Supreme Court order in this matter. (See rule 9.18, California Rules of
Court.)
checked. (3) Actual Suspension:
checked.
(a) Respondent must be actually suspended from the practice of law in the State
of California for a period of three-years.
checked. i. and until
Respondent shows proof satisfactory to the State Bar Court of rehabilitation
and present fitness to practice and present learning and ability in the law
pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for
Professional Misconduct
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following:
E. Additional Conditions of Probation:
checked.
(1)
If Respondent is actually suspended for two years or more, he/she must remain
actually suspended until ** he/she proves to the State Bar Court his/her
rehabilitation, fitness to practice, and learning and ability in the general
law, pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for
Professional Misconduct.
checked.
(2)
During the probation period, Respondent must comply with the provisions of the
State Bar Act and Rules of Professional Conduct.
checked.
(3)
Within ten (10) days of any change, Respondent must report to the Membership
Records Office of the State Bar and to the Office of Probation of the State Bar
of California ("Office of Probation"), all changes of information,
including current office address and telephone number, or other address for
State Bar purposes, as prescribed by section 6002.1 of the Business and
Professions Code.
checked.
(4)
Within thirty (30) days from the effective date of discipline, Respondent must
contact the Office of Probation and schedule a meeting with Respondent's
assigned probation deputy to discuss these terms and conditions of probation.
Upon the direction of the Office of Probation, Respondent must meet with the
probation deputy either in-person or by telephone. During the period of
probation, Respondent must promptly meet with the probation deputy as directed
and upon request.
checked.
(5)
Respondent must submit written quarterly reports to the Office of Probation on
each January 10, April 10, July 10, and October 10 of the period of probation.
Under penalty of perjury, Respondent must state whether Respondent has complied
with the State Bar Act, the Rules of Professional Conduct, and all conditions
of probation during the preceding calendar quarter. Respondent must also state
whether there are any proceedings pending against him or her in the State Bar
Court and if so, the case number and current status of that proceeding. If the
first report would cover less than 30 days, that report must be submitted on
the next quarter date, and cover the extended period.
In addition to all quarterly reports, a final report, containing the same
information, is due no earlier than twenty (20) days before the last day of the
period of probation and no later than the last day of probation.
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checked. (6) Respondent must be assigned a probation monitor. Respondent must
promptly review the terms and conditions of probation with the probation
monitor to establish a manner and schedule of compliance. During the period of
probation, Respondent must furnish to the monitor such reports as may be
requested, in addition to the quarterly reports required to be submitted to the
Office of Probation. Respondent must cooperate fully with the probation
monitor.
checked.
(7)
Subject to assertion of applicable privileges, Respondent must answer fully,
promptly and truthfully any inquiries of the Office of Probation and any
probation monitor assigned under these conditions which are directed to
Respondent personally or in writing relating to whether Respondent is complying
or has complied with the probation conditions.
checked.
(8)
Within one (1) year of the effective date of the discipline herein, Respondent
must provide to the Office of Probation satisfactory proof of attendance at a
session of the Ethics School, and passage of the test given at the end of that
session.
No Ethics School recommended. Reason:
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checked. (9) Respondent must comply with all conditions of probation imposed in
the underlying criminal matter and must so declare under penalty of perjury in
conjunction with any quarterly report to be filed with the Office of Probation.
checked.
(10)
The following conditions are attached hereto and incorporated:
checked. Substance Abuse Conditions.
<<not>> checked. Law Office
Management Conditions.
<<not>> checked. Medical
Conditions.
<<not>> checked. Financial
Conditions.
F. Other Conditions Negotiated by the Parties:
checked.
(1)
Multistate Professional Responsibility Examination: Respondent must
provide proof of passage of the Multistate Professional Responsibility Examination
("MPRE"), administered by the National Conference of Bar Examiners,
to the Office of Probation during the period of actual suspension or within one
year, whichever period is longer. Failure to pass the MPRE results in
actual suspension without further hearing until passage. But see rule 9.10(b),
California Rules of Court, and rule 5.162(A) & (E), Rules of Procedure.
<<not>> checked. No MPRE recommended. Reason:
checked.
(2)
Rule 9.20, California Rules of Court: Respondent must comply with the
requirements of rule 9.20, California Rules of Court, and perform the acts
specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar
days, respectively, after the effective date of the Supreme Court's Order in
this matter.
<<not>> checked.
(3) Conditional Rule 9.20,
California Rules of Court: If Respondent remains actually suspended for
90 days or more, he/she must comply with the requirements of rule 9.20,
California Rules of Court, and perform the acts specified in subdivisions (a)
and (c) of that rule within 120 and 130 calendar days, respectively, after the
effective date of the Supreme Court's Order in this matter.
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(4) Credit for Interim
Suspension [conviction referral cases only]: Respondent will be credited
for the period of his/her interim suspension toward the stipulated period of
actual suspension. Date of commencement of interim suspension:
checked.
(5)
Other Conditions: Respondent shall comply with his prior conditions in case no.
05-C-04451. Respondent shall continue in the Lawyer’s Assistance Program
("LAP"). Respondent shall sign all required documents, including but
not limited to a contract, participation plan and waiver. Respondent shall
comply with all provisions and conditions of his participation plan with LAP,
and all modifications thereto, until such time as he graduates from LAP or
until the expiration of this Stipulation, whichever is sooner.
ATTACHMENT
TO
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER
OF: John F. Morken
CASE
NUMBER(S): 11-O- 12262
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.
11-O-12262 (State Bar Investigation)
FACTS:
1. On January 26, 2009, the California Supreme Court filed a disciplinary order
in State Bar Court case number 05-C-04451 et alia (Supreme Court Case Number
S168129).
2. The order became effective on February 25, 2009 (California Rules of Court,
rule 9.18(a)), and at all times subsequent has remained in full force and
effect.
3. Notice of the rule 9.20 order was properly served upon respondent
(California Rule of Court 9.18(b)).
4. The disciplinary order placed respondent on disciplinary probation for five
years, beginning on the date the disciplinary order became effective, and
required him to comply with the conditions of probation recommended by Hearing
Department of the State Bar Court in its Order Approving Stipulation filed on
August 26, 2008.
5. At all times subsequent to February 25, 2009, respondent has remained on
disciplinary probation and the probation conditions mentioned above have
remained in full force and effect.
6. ETHICS SCHOOL CONDITION
(a) One of the conditions of probation provided as follows:
"Within one (1) year of the effective date of the discipline herein,
Respondent must provide to the Office of Probation
satisfactory proof of attendance at a session of the Ethics School, and
passage of the test given at the end of that
session."
(b) Respondent violated the condition because he did not attend the Ethics
School prior to the expiration of the one-year deadline, i.e., the deadline
that expired on or about February 25, 2010. Respondent failed to attend the
course until on or about March 3, 2010. Respondent failed to obtain a
certificate of attendance until on or about August 3, 2010, which was when he
paid his enrollment fee for the course.
7. LAWYER’S ASSISTANCE PROGRAM CONDITION
(a) One of the conditions of respondent’s probation provided as follows:
"Respondent shall be evaluated by the Lawyer’s Assistance Program
("LAP"). Respondent shall enter into the LAP by
signing all required documents, including but not limited to a contract,
participation plan and waiver. Respondent shall thereafter comply with all
provisions and conditions of his participation plan with the State Bar LAP, and
all modifications thereto, until such time as he graduates from LAP or until
the expiration of this Stipulation, whichever is sooner. Within 14 calendar
days from the effective date of this Stipulation, Respondent shall provide the
Office of Probation with a copy of the waiver which he has signed with LAP that
authorizes the LAP to provide Probation with information regarding his
compliance with LAP. Revocation of this written waiver would be a violation of
this Stipulation. In addition, each quarter and before the due date of his
final report, Respondent shall request and obtain from LAP written proof of his
compliance with LAP, and provide the original of the LAP compliance report to
the Office of Probation with his written report. The written LAP compliance
report shall be dated not sooner than 10 calendar days prior to the date
Respondent submits his required written reports to the Office of
Probation."
(b) Failure to Provide Timely Waiver. Respondent violated this condition by
failing to provide the Office of Probation with the signed waiver prior to the
expiration of the 14-calendar-day period, i.e., prior to on or about March 11,
2009. Respondent did not provide the waiver until on or about July 6, 2009.
(c) Failure to Participate in LAP. Respondent also violated the LAP condition
by failing to participate in the Lawyers Assistance Program from on or about
February 25, 2009 until on or about June 29, 2009.
(d) Violation of Participation Plan.
(i) At all times mentioned, respondent’s participation plan with the Lawyer’s
Assistance Program required him to appear for laboratory drug/alcohol testing
as directed by LAP and to refrain from the use of alcohol and specified drugs
(hereinafter jointly referred to as unauthorized substances).
(ii) Respondent violated the participation plan, and therefore violated the LAP
condition of his probation, by repeatedly failing to appear for required
testing as directed by LAP and ingesting an unauthorized substance, as follows:
Date:
11/20/2009, Event: Respondent failed to appear for required laboratory
testing.
Date:
12/2/2009, Event: Respondent failed to appear for required
laboratory testing.
Date:
12/14/2009, Event: Respondent failed to appear for required laboratory
testing.
Date:
3/10/2010, Event: Respondent used an unauthorized substance.
Date:
7/22/2010, Event: Respondent failed to appear for required
laboratory testing.
Date:
11/16/2010, Event: Respondent used an unauthorized substance.
CONCLUSIONS
OF LAW:
7. By failing to comply with the Ethics School and Lawyer Assistance Program
conditions of his probation, respondent intentionally failed to comply with all
conditions of probation in willful violation of Business and professions Code
section 6068(k).
PENDING
PROCEEDINGS.
The
disclosure date referred to, on page 2, paragraph A(7), was June 2, 2011
AUTHORITIES
SUPPORTING DISCIPLINE.
In the Matter
of Rose (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 646 - disbarment
recommended for probation violations in aggravated case.
COSTS OF
DISCIPLINARY PROCEEDINGS.
Respondent
acknowledges that the Office of the Chief Trial Counsel has informed respondent
that as of June 2, 2011, the prosecution costs in this matter are $2,797.
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-O-12262
In the Matter of: John Morken
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:
John Morken
Date:
6/2/2011
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Robert A. Henderson
Date:
6/2/11
ACTUAL
SUSPENSION ORDER
Case Number(s): 11-O-12262
In the Matter of: John Morken
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:
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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.
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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: Patricia Mc Elvoy
Date: June 20,
2011
CERTIFICATE
OF SERVICE
[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 June 20, 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:
JOHN MORKEN
ATTORNEY AT LAW
760 MARKET STREET SUITE 938
SAN FRANCISCO, CALIFORNIA 94102
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
Robert Henderson, Enforcement, San Francisco
I hereby
certify that the foregoing is true and correct. Executed in San Francisco,
California, on June 20, 2011.
Signed by:
George Hue
Case
Administrator
State Bar
Court