State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

REPROVAL

Case Number(s): 12-J-13025

In the Matter of: David F. Day, Bar # 79939, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Anthony J, Garcia~ No. 171419:

Deputy Trim Counsel

Lara Bairamian, No, 253056

Deputy Trial Counsel

1149 South Hill Street

Los Angeles, CA 90015-2299

213.765.1089

213.765.1338

Counsel for Respondent: In Pro Per Respondent

DAVID F. DAY

1188 Bishop Street, Ste 2103

Honolulu, HI 96813

808.531.8020

Bar# 79939

Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.

Filed: December 10, 2012.

  <<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 June 23, 1978.

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 9 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 (2) 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.  

checked. (7)            Multiple/Pattern of Misconduct:  Respondent's current misconduct evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct. See Attached.

<<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.

<<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. 

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. See Attached.

<<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 Attached.

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 1 (one) year.

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.

<<not>> 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.

<<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.

checked. No Ethics School recommended.  Reason: Respondent is domiciled in Hawaii. In lieu of ethics school, Respondent is required to provide to the Office of Probation proof that he has completed six (6) hours of MCLE credit within one year of the effective date of the Supreme Court’s order in this matter.

<<not>> 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.

<<not>> 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. 

checked. No MPRE recommended.  Reason: The protection of the public and the interest of attorney discipline do not require passage of the MPRE in this case. (Matter of Respondent G (Review Dept. 1992) 2 Cal. State State Ct. Rptr. 181.).

<<not>> checked. (11) The following conditions are attached hereto and incorporated:    

<<not>> 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:

N/A

Attachment language (if any):.

ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

IN THE MATTER OF: David F. Day, State Bar No. 79939

STATE BAR COURT CASE NUMBER: 12-J-13025

FACTS AND CONCLUSIONS OF LAW

David F. Day (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-J-13025

FACTS

1. Respondent is an inactive member of the California bar and an active member of the Hawaiian bar.

2. On February 7, 2012, the Disciplinary Board of the Hawai’i Supreme Court (Disciplinary Board) imposed a public reprimand upon Respondent due to his failure to pay the Hawaiian general excise tax for a period extending from 2000 through 2005 years.

3. The Disciplinary Board found that:

A. On July 25, 2008, Respondent entered a Deferred Acceptance of Guilty Plea to six counts of failing to file his general excise tax returns;

B. Failure to file general excise tax returns is classified as a misdemeanor criminal violation in Hawaii;

C. The Hawaiian District Court imposed a one year period of deferral and ordered Respondent to pay $17,282 in restitution, among other things;

D. On July 15, 2010, Hawaiian District Court found that Respondent had complied with all of the terms of his Deferred Acceptance of Guilty Plea.

E. Pursuant to the terms of the Deferred Acceptance of Guilty Plea, the charges against Respondent were discharged without a judgment of Respondent’s guilt, due to his successful completion of terms and conditions set by the court.

4. On April 5, 2012, Respondent notified the California State Bar of the action by the Disciplinary Board.

CONCLUSIONS OF LAW

5. As a matter of law, Respondent’s culpability as determined by the Disciplinary Board of the Hawai’i Supreme Court warrants the imposition of discipline under the laws and rules binding upon members of the State Bar of California at the time the member committed misconduct in such other jurisdiction, pursuant to subdivision (a) of Business and Professions Code section 6149.1

6. As a matter of law, the proceedings of the Disciplinary Board of the Hawai’i Supreme Court in imposing discipline on Respondent contained fundamental constitutional protections in which Respondent participated.

Additional Facts Supporting Aggravation:

Multiple Acts/Pattern

Respondent’s misconduct evidences multiple acts of misconduct. Respondent failed to file general excise tax returns, in the state of Hawai’i, for five years.

Additional Facts Supporting Mitigating Circumstances

Candor/Cooperation

Respondent pled guilty to the criminal charges in Hawai’i, timely complied with his conviction requirements, and reported the Hawaiian imposition of discipline to the California State Bar. His actions demonstrated candor and cooperation with the Hawaiian officials and the State Bar. In addition, Respondent has entered into a stipulation in this matter thereby saving the time and resources of the State Bar Court, and is receiving mitigation for doing so. (ln the matter of Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr 189,195; In the Matter of Johnson (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 190; see also Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079.)

Additional Mitigation:

No Prior Discipline

Respondent has been practicing since 1978 with no prior record of discipline. He is entitled to mitigating credit for no prior discipline even where the underlying conduct is found to be serious or significant. (ln the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, 106, fn.13.)

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. (In re Silverton (2005) 36 Cal.4 81, 9 , 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.)

The sanction applicable to Respondent’s misconduct is found in standard 2.10. Standard 2.10 states that a member’s culpability of violation of any provision of the Business and Professions Code not specified in these standards or of a wilful violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the offense or harm to the victim with due regard to the purposes of imposing discipline set forth in standard 1.3.

Discussion regarding the level of discipline

Standard 2.10 defines a range of discipline ranging from reproval to suspension. Balancing the aggravation cited above against the facts that Respondent has no prior discipline over 26 years of practice, the he cooperated with the authorities in Hawaii, met all of the terms of the Deferred Acceptance of Guilty Plea, and that he entered into a stipulation with the State Bar, a public reproval is the appropriate discipline in this matter that serves the purposes of attorney discipline.

PENDING PROCEEDINGS

The disclosure date referred to, on page 2, paragraph A(7), was November 15, 2012.

COSTS

The Office of the Chief Trial Counsel estimates that, as of October 23, 2012, the costs in this matter are approximately $2,400. Respondent 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 the six hours of MCLE credit referred to on page 5, paragraph 8, of this stipulation. (Rules Proc. of State Bar, rule 3201.)

SIGNATURE OF THE PARTIES

Case Number(s): 12-J-13025

In the Matter of: David F. Day, State Bar No.: 79939

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: David F. Day

Date: November 2, 2012

Respondent’s Counsel: Anthony J. Garcia

Date: November 7, 2012

Deputy Trial Counsel: Lara Bairamian

Date: November 7, 2012

REPROVAL ORDER

Case Number(s): 12-J-13025

In the Matter of: David F. Day, State Bar No.: 79939

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:

checked. The stipulated facts and disposition are APPROVED AND THE REPROVAL IMPOSED.

<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.

<<not>> checked. All court dates in the Hearing Department 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.) 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: Richard A. Honn

Date: December 10, 2012

CERTIFICATE OF SERVICE

[Rule 62(b); Rules Proc. of State Bar; 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 December 10, 2012, I deposited a true copy of the following document(s):

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

in a sealed envelope for collection and mailing on that date as follows:

checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:

DAVID F DAY ESQ

LAW OFC DAVID F DAY

1188 BISHOP ST STE 2103

HONOLULU, HI 96813

checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

Anthony J. Garcia, Enforcement, Los Angeles

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 10, 2012.

Signed by:

Julieta E. Gonzales

Case Administrator

State Bar Court

CERTIFICATE OF SERVICE

[Rule 62(b); Rules Proc. of State Bar; 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 January 4, 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 Los Angeles, California, addressed as follows:

DAVID F DAY ESQ

LAW OFC DAVID F DAY

1188 BISHOP ST STE 2103

HONOLULU, HI 96813

checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

Anthony J. Garcia, Enforcement, Los Angeles

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 4, 2013.

Signed by:

Julieta E. Gonzales

Case Administrator

State Bar Court