Case Number(s): 12-H-17184 PEM
In the Matter of: TIMOTHY BROOKS BALCOM , Bar # 190496, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Maria J. Oropeza, Bar #182660,
Counsel for Respondent: Timothy Brooks Balcom, Bar #190496,
Submitted to: Assigned Judge.
Filed: June 10, 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.
1. Respondent is a member of the State Bar of California, admitted November 24, 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 13 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
checked. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: . (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
Attachment language (if any):.
SUBSTANCE ABUSE CONDITIONS
Case Number(s): 12-H-17184-PEM
In the Matter of: Timothy Balcom
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
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.
<<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.
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: ATTENDANCE AT ABSTINENCE BASED GROUP
Respondent shall attend at least one (1) meeting per month of an abstinence based self-help group of his own choosing, including, inter alia, Alcoholics Anonymous, Narcotics Anonymous, Life Ring, S.M.A.R.T., S.O.S. 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’Conner v. California (C.D. Calif. 1994) 855 F. Supp 303 [No first amendment violation where probationer given choice between AA and secular program].) The program called "Moderation Management" is not acceptable because it allows participants to continue to consume alcohol. Before respondent attends the first self-help group meeting, he shall contact the Office of Probation and obtain approval for the program that he has selected. Thereafter, on a quarterly basis with his quarterly and final written reports, respondent shall provide documentary proof of attendance at the meetings of the approved program to the Office of Probation, in a form acceptable to the Office of Probation
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: TIMOTHY BROOKS BALCOM, State Bar No. 190496
STATE BAR COURT CASE NUMBER: 12-H-17184
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. 12-H-117184 (State Bar Investigation)
FACTS:
1. On June 8, 2012, and June 15, 2012, the Office of Chief Trial Counsel and the respondent entered into a stipulation regarding Case No. 11-C-16266. As a result of the stipulation, respondent would receive a private reproval with reproval conditions for a two-year term.
2. As part of his reproval, respondent was to contact the Office of Probation and schedule a meeting with his assigned probation officer within 30 days of the effective date of the private reproval; file quarterly reports beginning with October 10, 2012; provide a medical waiver; submit for approval to the Office of Probation his choice of an abstinence based self-help group and attend said group on a monthly basis; submit proof of the attendance in his quarterly reports.
3. On June 25, 2012, the State Bar Court approved the stipulation in Case No. 11-C-16266.
4. On June 25, 2012, the State Bar Court clerk served respondent with the approved stipulation and order. Respondent received the approved stipulation and order.
5. On July 13, 2012, the State Bar filed a motion to modify the stipulation to include a missing page delineating respondent’s attendance at an abstinence based self-help group.
6. On August 1, 2012, the State Bar Court approved the modification and served the respondent with the order approving the modification. Respondent received the order.
7. On August 3, 2012, the Office of Probation of the State Bar of California sent to respondent a true and accurate copy of the State Bar Order, together with a letter indicating that the conditions of respondent’s private reproval became effective July 16, 2012. Respondent received the letter.
8. Respondent was made aware of the conditions attached to his private reproval as set out in paragraph two of this stipulation on June 8, 2012, upon signing the stipulation with the State Bar. Respondent was made aware of the conditions attached to his private reproval by the August 1, 2012 order. Respondent was reminded of said conditions by the Office of Probation in the August 3, 2012 letter.
9. On October 22, 2012, the Office of Probation of the State Bar of California sent respondent a second letter informing him that he had not scheduled the required meeting; failed to submit for approval the abstinence based self-help group, failed to provide the medical waiver and failed to file his quarterly report. Respondent received the letter.
10. Respondent failed to schedule the required meeting with his assigned probation officer by the August 15, 2012 deadline.
11. Respondent failed to provide a medical waiver to the Office of Probation by the August 15, 2012 deadline.
12. Respondent failed to submit for approval by the Office of Probation his abstinence based self-help group.
13. Respondent failed to submit proof of his monthly attendance of an abstinence based self-group to the Office of Probation in his quarterly reports.
14. Respondent failed to file his quarterly report for October 10, 2012.
CONCLUSIONS OF LAW:
15. By failing to comply with the terms and conditions of his private reproval as outlined in the stipulation which respondent signed on June 8, 2012, and modified on August 1, 2012 by the State Bar Court Order, respondent willfully violated rule 1-110 of the Rules of Professional Conduct.
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): Respondent has a prior record of discipline. A private reproval effective August 22, 2012 in case number 1 l-C- 16266 for a driving under the influence conviction. Respondent was to comply with the conditions of his reproval for a two-year term.
Indifference (Std. 1.2(b)(v)): Despite being aware of his non-compliance with the terms of his reproval respondent has not taken any action to belatedly comply with the terms of his reproval.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent has failed to comply with five conditions of his reproval.
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." (ln 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.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. (In 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 admits to a violation of Rule of Professional Conduct, rule 1-110. Standard 2.9 calls for a period of suspension for violations of rule 1-110.
In addition, standard 1.7(a) is also applicable in the instant matter and requires that the imposition of discipline in this matter be at a higher level than respondent’s prior, a private reproval. Respondent has failed to comply with five conditions of his private reproval: He has failed to schedule the meeting with the probation officer by the deadline; failed provide a medical waiver; failed to submit for approval his abstinence based self-help group; failed to submit proof of his monthly attendance of an abstinence based group in his quarterly reports; and failed to submit his quarterly report for October 10, 2012. Despite having received the NDC, which delineates that he has not complied with these conditions, respondent still has not come into compliance. Respondent’s failure to comply with his reproval conditions demonstrates a failure to appreciate his prior misconduct and the importance of discipline, thus requiring an actual suspension of 30 days now be imposed. Based on the applicable standards, the appropriate level of discipline in this matter is 30 day actual suspension, two-year stayed suspension and a two-year probation term.
In addition a period of actual suspension is also consistent with applicable case law. In Conroy v. State Bar (1990) 51 Cal.3d. 799, the discipline imposed by the lower court was a private reproval. Conroy was to take and pass the MPRE within one year of the effective date of the reproval. Conroy failed to take the MPRE. Conroy failed to participate in the reproval violation proceeding and defaulted. Conroy belatedly complied and passed the MPRE and thereafter appeared in the Supreme Court. The Supreme Court imposed a 60 day actual suspension on Conroy for the reproval violation. The Supreme Court found that the determination of discipline to be imposed depended upon several considerations, including the protection of the public, the promotion of confidence in the legal profession, and the maintenance of professional standards. (Id. at 805.) Furthermore, the Supreme Court found that not complying with the terms of reproval were not merely a technicality and instead evidenced a lack of understanding of prior misconduct and the importance of the State Bar’s regulatory function.
Based upon standards 2.9, 1.7(a) and consideration of the factors expressed by the Supreme Court in Conroy, discipline consisting of a two-year stayed suspension, two-year probation with a 30-day actual suspension is appropriate and consistent with the purposes of discipline set forth in standard 1.3.
PENDING PROCEEDINGS.
The disclosure date referred to on page 2, paragraph A(7), was April 24, 2013.
DISMISSALS.
The parties respectfully request the Court to dismiss the following alleged violations in the interest of justice:
Case No. Count Alleged Violation
12-H-17184 Two Business and Professions Code section 6103
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of April 10, 2013, the prosecution costs in this matter are $6779.00. 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.
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-H-17184-PEM
In the Matter of: Timothy Brooks Balcom
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: Timothy Brooks Balcom
Date: 5/10/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Maria J. Oropeza
Date:5/31/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-H-17184
In the Matter of: TIMOTHY BROOKS BALCOM
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
checked. All Hearing dates are vacated.
On page 4 of the stipulation, an "X" is inserted in box D(1)(a) so that respondent will be placed on stayed suspension for two years.
On page 7 of the stipulation, under "Substance Abuse Conditions," an "X" is inserted in box c so that respondent will be required, as set forth in paragraph c, to select a licensed medical laboratory approved by the State Bar’s Office of Probation and, at respondent’s expense, to submit samples of his blood, urine, or both to the laboratory for testing each month and to provide the results of the each test to the Office of Probation on a monthly basis.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Lucy Armendariz
Date: 6/10/13
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 10, 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:
TIMOTHY B. BALCOM
BALCOM & ASSOCIATES
229 VERNON ST
ROSEVILLE, CA 95678
<<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:
Maria J. Oropeza, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on June 10, 2013.
Signed by:
Lauretta Cramer
Case Administrator
State Bar Court