State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
REPROVAL
Case Number(s): 12-C-16708 - LMA
In the Matter of: THEODORE JOSEPH MENEICE, Bar # 148604, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Steven F, Egler, Bar #226227,
Counsel for Respondent: Jonathan Irwin Arons, Bar #111257,
Submitted to: Settlement Judge.
Filed: July 18, 2013.
<<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 December 4, 1990.
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 11 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. Costs are added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. Case ineligible for costs (private reproval).
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: two 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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
B. Aggravating Circumstances [for definition, see Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts supporting aggravating circumstances are required.
<<not>> checked. (1) Prior record of discipline [see standard 1.2(f)].
<<not>> checked. (a) State Bar Court case # of prior case .
<<not>> checked. (b) Date prior discipline effective .
<<not>> checked. (c) Rules of Professional Conduct/ State Bar Act violations:
<<not>> checked. (d) Degree of prior discipline
<<not>> checked. (e) If Respondent has two or more incidents of prior discipline, use space provided below or a separate attachment entitled “Prior Discipline. .
<<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.
checked. (8) No aggravating circumstances are involved.
Additional aggravating circumstances: .
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating circumstances are required.
<<not>> 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.
<<not>> checked. (2) No Harm: Respondent did not harm the client or person who was the object of the misconduct.
<<not>> 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.
<<not>> 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.
<<not>> checked. (5) Restitution: Respondent paid $ on in restitution to without the threat or force of disciplinary, civil or criminal proceedings.
<<not>> checked. (6) Delay: These disciplinary proceedings were excessively delayed. The delay is not attributable to Respondent and the delay prejudiced him/her.
<<not>> checked. (7) Good Faith: Respondent acted in good faith.
<<not>> 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.
<<not>> 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.
<<not>> 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.
<<not>> 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.
<<not>> checked. (12) Rehabilitation: Considerable time has passed since the acts of professional misconduct occurred followed by convincing proof of subsequent rehabilitation.
<<not>> checked. (13) No mitigating circumstances are involved.
Additional mitigating circumstances: See attachment at page 7.
D. Discipline:
<<not>> checked. (1) Private reproval (check applicable conditions, if any, below):
<<not>> checked. (a) Approved by the Court prior to initiation of the State Bar Court proceedings (no public disclosure).
<<not>> checked. (b)Approved by the Court after initiation of the State Bar Court proceedings (public disclosure).
or
checked. (2) Public reproval (Check applicable conditions, if any below)
E. Additional Conditions of Reproval:
checked. (1) Respondent must comply with the conditions attached to the reproval for a period of two years.
checked. (2) During the condition period attached to the reproval, 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 the condition period.
<<not>> 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 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 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 conditions attached to the reproval.
<<not>> 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 State Bar Ethics School, and passage of the test given at the end of that session.
<<not>> checked. No Ethics School recommended. Reason: .
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) 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 within one year of the effective date of the reproval.
<<not>> checked. No MPRE recommended. Reason: .
checked. (11) 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:
Additional Probation Condition
Respondent recognizes that a repeat conviction for DUI suggests an alcohol and/or drug problem that needs to be addressed before it affects Respondent’s legal practice. Respondent agrees to take the steps necessary to control the use of alcohol and/or drugs such that it will not affect Respondent’s law practice in the future.
Respondent’s agreement to participate in an abstinence-based self-help group (as defined herein), as a condition of discipline, is part of Respondent’s efforts to address such concerns. AS a condition of reproval, and during the period of reproval, Respondent must attend a minimum of two (2) meetings per month of any abstinence-based self-help group of Respondent’s choosing, including without limitation Alcoholics Anonymous, Narcotics Anonymous, LifeRing, S.M.A.R.T., S.O.S., etc. Other selfhelp maintenance programs are acceptable if they include a subculture to support recovery, including abstinence-based group meetings. (See O’Conner v. Calif. (C.D. Calif. 1994) 855 F. Supp. 303 [no First Amendment violation where probationer given choice between AA and secular program.] ) Respondent is encouraged, but not required, to obtain a "sponsor" during the term of participation in these meetings.
The program called "Moderation Management" is not acceptable because it is not abstinence-based and allows the participant to continue consuming alcohol.
Respondent must contact the Office of Probation and obtain written approval for the program Respondent has selected prior to attending the first self-help group meeting. If Respondent wants to change groups, Respondent must first obtain the Office of Probation’s written approval prior to attending a meeting with the new self-help group.
Respondent must provide to the Office of Probation satisfactory proof of attendance of the meetings set forth herein with each Quarterly Report submitted to the Office of Probation. Respondent may not sign as the verifier of his or her own attendance.
Respondent is encouraged, but is not required, to participate in the Lawyers’ Assistance Program, to abstain from alcohol and illegal drugs, and to undergo random urinalysis testing to complement abstinence.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: THOMAS MENEICE, State Bar No. 148604
STATE BAR COURT CASE NUMBER: 12-C-16708 - LMA
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that the facts mad circumstances surrounding the offense for which respondent was convicted involved other misconduct warranting discipline.
Case No. 12-C-16708 - LMA (Conviction Proceedings)
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING:
1. This is a proceeding pursuant to sections 6101 mad 6102 of the Business and Professions Code and rule 9.10 of the California Rules of Court.
2. On August 3, 2012, the Santa Cruz County District Attorney filed a criminal complaint in the Santa Cruz County Superior Court, case no. M67789, charging Respondent with one count each of violation of Vehicle Code section 23152(a) [Driving under the Influence], Vehicle Code section 23152(b) [Driving with 0.08 or more blood alcohol], and Health and Safety Code section 11357(b) [Possession of Marijuana 28.5 grams or less]. The complaint further alleged that Respondent had a prior conviction for violation of Vehicle Code section 23152(a) [Driving under the influence] committed on September 1, 2007.
3. On September 11, 2012, the court entered Respondent’s plea of nolo contendere to the count of violation of Vehicle Code section 23152(b) [Driving with 0.08 or more blood alcohol], and based thereon, the court found Respondent guilty of that count. Pursuant to a plea agreement, the court dismissed the remaining counts in the furtherance of justice.
4. On September 11, 2012, Respondent was sentenced to 60 months, stayed, with 50 days in county jail, credit for time served of one day, and the court recommended that Respondent serve his jail sentence through the work release program. The court ordered that Respondent, among other things, not drive a motor vehicle with any amount of alcohol in his system, enroll in and complete Multiple Offense Drinking Driver Program, pay fines and assessments, make restitution to the Clerk’s Office.
5. On April 8, 2013, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department 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 offense(s) for which Respondent was convicted involved moral turpitude or other misconduct warranting discipline.
FACTS:
6. On June 17, 2012, a California Highway Patrol officer observed respondent driving southbound on Park Avenue in a blue Chevy at approximately 11:30 p.m. The officer observed respondent approach the intersection of Park Avenue and McGregor Drive and come to a stop with the rear tires within the crosswalk. The officer then observed respondent turn left and cross over solid double yellow lines. The officer then observed respondent make a right tuna and once again cross over double yellow lines.
7. The officer pulled respondent over and smelled alcohol in the vehicle and observed that respondent had red, glossy eyes and his speech was slow and slurred. Respondent complied with the officer’s request to submit to field sobriety tests and submitted to a breathalyzer ("PSA test"). Respondent’s PAS tests resulted in two separate readings of .20 blood alcohol level. Respondent was arrested and, at the time of his arrest, informed both officers present that he was a public defender for Santa Cruz County. A search of the vehicle was conducted and the officers located a small bottle of marijuana in the center console. Respondent was then taken to the hospital for a blood draw for the purposes of a chemical test. The chemical test resulted in a .23 blood alcohol level, however the test results did not indicate whether there was a presence of marijuana in his blood stream.
8. On June 17, 2012, the date of the incident, respondent had three months and three days remaining of his probation term for his first DUI conviction.
CONCLUSIONS OF LAW:
9. The facts and circumstances surrounding Respondent’s misdemeanor violation of California Vehicle Code section 23152(b), including the fact that Respondent was previously convicted of the same offense, do not involve moral turpitude, but do involve conduct warranting discipline.
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Pre-trial Stipulation: Respondent is entitled to mitigation for entering into a full stipulation with the Office of Chief Trial Counsel prior to trial, thereby saving State Bar Court time and resources. (ln the Matter of Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 151,156; In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 993-994).
Additional Mitigating Circumstances: Although respondent’s misconduct is serious, he is entitled to some mitigation for having practiced law for approximately 23 years without discipline. In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49.
Also, Respondent is entitled to some mitigation for having submitted statements attesting to his good character from a wide range of references in the legal community including 13 active attorneys, one retired attorney and one private investigator. In the Matter of Duxbury (Review Dept. 1999) 4 Cal. State Bar Ct. Rptr. 61, 67 (finding a wide range of references from the legal community entitled to some mitigation, but less than the substantial mitigation afforded by the hearing judge due to the absence of references by the general community). All witness attested to their knowledge of respondent’s misconduct and his fitness to practice law.
AUTHORITIES SUPPORTING DISCIPLINE.
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." (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. (ln 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 attorney 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.)
Standard 3.4 provides that "[f]inal 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 these standards appropriate to the nature and extent of the misconduct found to have been committed by the member." The most applicable section of part B is Standard 2.10, which serves as a catchall for misconduct that is not covered by any other Standard and states that the appropriate level of discipline for such misconduct is a "reproval or suspension according to 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." Standard 1.3 states that the primary purposes of disciplinary proceedings by the State Bar are "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."
Here, Respondent’s conduct warrants a public reproval. Respondent was twice convicted of driving while intoxicated. Even though Respondent’s behavior does not rise to the level of moral turpitude, his behavior evidences an alcohol problem and the attorney discipline system does not have to wait until it spills over into his practice of law to take action. (ln re Kelley (1990) 52 Cal.3d 487 (finding that a second and subsequent DUI conviction warranted discipline). Additionally, Respondent second offense occurred while he was on probation for the first DUI.
Based on the Standards and supported by Kelley, Respondent’s conduct warrants a public reproval and two year probation with standard probation conditions.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of July 9, 2013, the prosecution costs in this matter are $2,343.00. 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.
PENDING PROCEEDINGS
The disclosure date referred to, on page 2, paragraph A(7), was July 9, 2013.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School. (Rules Proc. of State Bar, rule 3201.
SIGNATURE OF THE PARTIES
Case Number(s): 12-C-16708
In the Matter of: THEODORE JOSEPH MENEICE
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: THEODORE JOSEPH MENEICE
Date: 7/15/13
Respondent’s Counsel: Jonathan Irwin Arons
Date: 7/16/13
Deputy Trial Counsel: Steven Frederick Egler
Date: 7/17/13
REPROVAL ORDER
Case Number(s): 12-C-16708
In the Matter of: THEODORE JOSEPH MENEICE
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 REPROVAL IMPOSED.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
checked. All court dates in the Hearing Department are vacated.
On page 2 of the Stipulation, under paragraph 8, delete "the Supreme Court" and insert "this".
On page 7 of the Stipulation, delete "THOMAS" and insert "THEODORE".
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.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Lucy Armendariz
Date: July 18, 2013
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 July 18, 2013, 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:
JONATHAN IRWIN ARONS
LAW OFC JONATHAN I ARONS
221 MAIN ST STE 740
SAN FRANCISCO, CA 94105
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
STEVEN F. EGLER, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on July 18, 2013.
Signed by:
Mazie Yip
Case Administrator
State Bar Court