Case Number(s): 12-O-13205
In the Matter of: Gretchen O’Neal, Bar # 219837, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Ross E. Viselman, Deputy Trial Counsel
1149 South Hill Street
Los Angeles, California 90015
(213) 765-1295
Bar # 204979,
Counsel for Respondent: In Pro Per Respondent
Gretchen O’Neal
9541 W. Frank Avenue
Peoria, Arizona 85382
(310) 903-0213
Bar# 219837
Submitted to: Assigned Judge – State Bar Court Clerk’s Office Los Angeles.
<<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 June 4, 2002.
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):
<<not>> checked. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: 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.
IN THE MATTER OF: Gretchen O’Neal, State Bar No. 219837
STATE BAR COURT CASE NUMBER: 12-O-13205
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case No. 12-O-13205 (State Bar Investigation)
FACTS:
1. In order to remain as an active member of the State Bar, Respondent was required to complete 25 hours of minimum continuing legal education ("MCLE") during the period of February 1, 2008 through January 3 I, 2011 (the "Compliance Period").
2. On February 1, 2011, Respondent reported to the State Bar that she was in compliance with the MCLE requirements, and, in particular, that she had completed her MCLE during the Compliance Period.
3. In fact, Respondent had not completed any of the required MCLE courses within the Compliance Period.
4. When Respondent reported to the State Bar that she was in compliance with the MCLE requirements, Respondent knew that she had not completed the MCLE during the Compliance Period as required.
5. Respondent took the MCLE courses necessary to come into compliance after being contacted by Membership Services regarding an audit of MCLE compliance. Respondent timely complied with the audit.
CONCLUSIONS OF LAW:
6. By reporting to the State Bar that she was in compliance with the MCLE requirements when she knew that she was not in compliance with the MCLE requirements, Respondent committed an act involving moral turpitude, dishonesty or corruption in wilful violation of Business and Professions Code, section 6106.
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Lack of Candor: Respondent lacked candor during the State Bar investigation of this case. Initially, Respondent informed the State Bar investigator that she signed up and completed 25 hours of MCLE from an online provider. A State Bar investigation, however, found that there were no records of Respondent completing any online MCLE, and that Respondent was, in fact, not in compliance. (Std. 1.2(b)(vi))
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
No prior discipline: Although the misconduct is serious, Respondent has no record of prior discipline in 10 years of practice. (In the Matter of Stamper (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 96, fn 13; and In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr 41, 49.)
Cooperation: Respondent cooperated by entering into this Stipulation to resolve this matter before the filing of disciplinary charges. (In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr 41.)
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 Cai.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. (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 2.3 provides that "Culpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client, or another person.., shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law."
Respondent’s false statement regarding her MCLE compliance is serious and constitutes an act of dishonesty directly relating to the practice of law. As repeatedly stated by the California Supreme Court, the MCLE program is "a consumer protection measure intended to enhance the competency of attorneys practicing law in this state." (Warden v. State Bar (1999) 21 Cal.4th 628, 634 (quoting People v. Ngo (1996) 14 Cal.4th 30, 36).) The State Legislature established the MCLE program upon "find[ing] and declar[ing] that it is in the public interest to continue the mandatory continuing legal education requirements for attorneys licensed to practice law." (Bus. and Prof. Code § 6070.)
Respondent’s misconduct is analogous to the misconduct in Drociak v. State Bar (1991) 52 Cal. 3d 1085. In Drociak, the attorney used his client’s presigned verification to respond to discovery without first consulting with his client to ensure the veracity of assertions of fact in the discovery responses in violation of Business and Professions Code sections 6106 and 6068(d), and former rule 7-105(1). The attorney, who had no prior record of discipline in 25 years of practice, received a 30-day actual suspension. In imposing the 30-day actual suspension, the Supreme Court specifically cited to Standard 2.3, noting that "The Standards for Attorney Sanctions for Professional Misconduct ... make violation of section 6106 punishable by disbarment or actual suspension" and further noted that "[p]etitioner’s prior ‘clean’ record is commendable, but it does not render the recommended 30-day actual suspension inappropriate." (ld. at 1090-1091 .)
Although Respondent’s misconduct does not involve a misrepresentation to a court, it is clearly behavior that undermines the public’s confidence in the legal profession. Reporting of CLE compliance is on the honor-system. The State Bar relies on an attorney’s word when reporting compliance. When an attorney takes advantage of an honor-system to lie, it undermines the public’s confidence in the legal profession. Thus, although Respondent did not lie to a court, her misconduct is still serious and warrants actual suspension.
Standard 2.3 clearly applies to the present case. However, since there is no harm to a client and since the matter involves only a single act of misconduct, a level of discipline at the low-end range of discipline, pursuant to standard 2.3, is consistent with the purposes of attorney sanctions.
Here, as in Drociak, Respondent made a misrepresentation in order to circumvent requirements imposed for important policy reasons. Moreover, Respondent was not candid with the State Bar during the investigation. Respondent’s lack of candor enhances her misconduct and the level of discipline appropriate in this matter. In light of these circumstances, 90 days’ actual suspension is appropriate in this matter.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was December 7, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of November 30, 2012, the prosecution costs in this matter are $2,797.00. 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.
ADDITIONAL CONDITION OF PROBATION
In lieu of Ethics School as required by condition (8) if the Conditions of Probation, set forth above, Respondent may, within one (1) year of the effective date of the discipline herein, provide to the Office of Probation satisfactory proof of attendance at a session of the Course on Professionalism offered by the State Bar of Arizona. Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of either the Ethics School or the Course on Professionalism. (Rules Proc. of State Bar, rule 3201.)
Case Number(s): 12-O-13205
In the Matter of: Gretchen O’Neal
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 DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Donald F. Miles
Date: January 10, 2013
SIGNATURE OF THE PARTIES
Case Number(s): 12-O-13205
In the Matter of: Gretchen O’Neal
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: Gretchen O’Neal
Date: December 14, 2012
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Ross E. Viselman
Date: December 20, 2012
by
U.S. FIRST-CLASS MAIL/U.S. CERTIFIED MAIL/OVERNIGHT DELIVERY/FACSIMILE-ELECTRONIC TRANSMISSION
CASE NUMBER(s): 12-O-13205
l, the undersigned, am over the age of eighteen (18) years and not a party to the within action, whose business address and place of employment is the State Bar of
California, 1149 South Hill Street, Los Angeles, California 90015, declare that:
· on the date shown below, I caused to be served a true copy of the within document described as follows:
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
<<not>> checked. By U.S. First.Class Mail: (CCP §§ 1013 and 1013(a))
<<not>> checked. By U.S. Certified Mail: (CCP §§ 1013 and 1013(a))
· in accordance with the practice of the State Bar of California for collection and processing of mail, I deposited or placed for collection and mailing in the City and County of Los Angeles.
<< not>> checked. By Overnight Delivery: (CCP §§ 1013(c) and 1013(d))
· I am readily familiar with the State Bar of California’s practice for collection and processing of correspondence for overnight delivery by the United Parcel Service (’UPS’).
<< not>> checked. By Fax Transmission: (CCP §§ 1013(e) and 1013(f)
· Based on agreement of the parties to accept service by fax transmission, I taxed the documents to the persons at the fax numbers listed herein below. No error was reported by the fax machine that I used. The original record of the fax transmission is retained on file and available upon request.
<< not>> checked. By Electronic Service: (CCP § 1010.6)
· Based on a court order or an agreement of the parties to accept service by electronic transmission, I caused the documents to be sent to the person (s) at the electronic addresses listed herein below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful.
<<not>> checked. (for U.S. First- Class Mail) in a sealed envelope placed for collection and mailing at Los Angeles, addressed to: (see below)
<<not>> checked. (for Certified Mail) in a sealed envelope placed for collection and mailing as certified mail, return receipt requested, Article No.: at Los Angeles, addressed to: (see below)
<<not>> checked. (for Overnight Delivery) together with a copy of this declaration, in an envelope, or package designated by UPS, Tracking No.: addressed to: (see below)
Person Served: Gretchen O’Neal
Business-Residential Address: 9541 W. Frank Ave., Peoria, AZ 85382
Fax Number:
Electronic Address:
Courtesy Copy to:
<< not>> checked. via inter-office mail regularly processed and maintained by the State Bar of California addressed to:
N/A
I am readily familiar with the State Bar of California’s practice for collection and processing of correspondence for mailing with the United States Postal Service, and overnight delivery by the United Parcel Service (’UPS’). In the ordinary course of the State Bar of California’s practice, correspondence collected and processed by the State Bar of California would be deposited with the United States Postal Service that same day, and for overnight delivery, deposited with delivery fees paid or provided for, with UPS that same day.
I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date on the envelope or package is more than one day after date of deposit for mailing contained in the affidavit.
I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed at Los Angeles, California, on the date shown below.
DATED: December 20, 2012
SIGNED BY: Lupe Pacheco
Declarant
[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on January 11, 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:
GRETCHEN V. O’NEAL
9541 W FRNAK AVE
PEORIA, AZ 85382
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ROSS VISELMAN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 11, 2013.
Signed by:
Rose M. Luthi
Case Administrator
State Bar Court