State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER
APPROVING
REPROVAL
Case Number(s): 13-C-12258
In the Matter of: ALLISON JOYCE NELSON, Bar # 111867, A
Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Maria L. Ghobadi , Bar #242945,
Counsel for Respondent: Allison Joyce Nelson, Bar #111867,
Submitted to: Settlement Judge .
Filed: January 9, 2014.
<<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
12, 1983.
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. Costs are added to membership
fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. Case
ineligible for costs (private reproval).
<<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.
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: Pretrial
Stipulation. See Attachment at page 8.
No Prior Discipline. See Attachment at page
8.
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 .
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.
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: .
<<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:
Respondent recognizes that the facts and
circumstances of the offenses of which she stands convicted suggest an alcohol
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 Respondent’s public
reproval, and during the period of her 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 self-help
maintenance programs are acceptable if they include a subculture to support
recovery, including abstinence-based group meetings. (See O’Conner v. State Of
California. (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: ALLISON JOYCE NELSON,
State Bar No. 111867
STATE BAR COURT CASE NUMBER: 13-C-12258
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts
are true and that the facts and circumstances surrounding the offense for which
he was convicted involved misconduct warranting discipline.
Case No. 13-C-12258 (Conviction
Proceedings)
PROCEDURAL BACKGROUND IN CONVICTION
PROCEEDING:
1. This is a proceeding pursuant to
sections 6101 and 6102 of the Business and Professions Code and rule 9.10 of
the California Rules of Court.
2. On January 9, 2013, a preliminary hearing
was conducted and Respondent was held to answer on all counts.
3. On January 24, 2013, the Attorney
General’s Office filed an information in the Riverside County Superior Court,
case no. RIF1203928, charging Respondent with violations of Vehicle Code
section 23152(a) [Driving Under the Influence of Alcohol], a misdemeanor with a
special allegation pursuant to Vehicle Code section 23578 [Excessive Blood
Alcohol Above. 15%]; Vehicle Code section 20002 [Hit and Run Causing Property
Damage], a misdemeanor; and two violations of Penal Code section 273a(a) [Child
Endangerment], a felony, committed on June 25, 2012.
4. On April 12, 2013, Respondent pled
guilty to a single violation of Penal Code section 273a(a) [Child
Endangerment], a felony, and Vehicle Code section 23152(a) [Driving Under the Influence
of Alcohol], a misdemeanor with a special allegation pursuant to Vehicle Code
section 23578 [Excessive Blood Alcohol Above 15%]. Based thereon, the court
found Respondent guilty of those counts. All other charges were dismissed.
5. On April 12, 2013, the court placed
Respondent on formal probation for a period of three years, and ordered, among
other things, that Respondent be committed to the custody of the Riverside
County Sherriff’s Department for a period of 179 days with 179 days of credit for
time served, successfully complete the First Offender DUI program, enroll and
complete child abuse classes, install an ignition interlock device on any
vehicle she owns or operates, and not consume alcohol for the duration of her
probation.
6. On July 22, 2013, the Review Department
of the State Bar Court issued an order placing Respondent on interim suspension
pursuant to Business and Professions Code section 6102 and referred the matter
to the Hearing Department for a hearing and decision to recommend the level of
discipline to be imposed in the event that the Hearing Department finds that
the facts and circumstances surrounding the offenses for which Respondent was
convicted involved moral turpitude or other misconduct warranting discipline.
FACTS:
7. On the afternoon of June 25, 2012,
Respondent dropped her two minor children off at the local community pool.
While leaving, Respondent collided with another vehicle causing minor property
damage and then fled the scene. A witness to the hit and run called law
enforcement and then followed Respondent in her vehicle until officers arrived
on scene.
8. Officers arrived at approximately 1:30
p.m. and made contact with Respondent, the witness, and the victim of the
collision. During their initial investigation they noticed that Respondent
displayed objective signs of intoxication. After conducting field sobriety
tests Respondent was arrested on suspicion of driving under the influence of
alcohol.
9. On June 25, 2012, at 3:00 p.m. a blood
test was administered to determine Respondent’s blood alcohol level. The blood
test revealed that Respondent’s blood alcohol level was .34%.
10. Prior to her first court appearance
Respondent reimbursed the victim of the collision for all expenses related to
the accident, voluntarily enrolled in alcohol related treatment, and currently
works with an alcohol sponsor as a part of a twelve step recovery program to
ensure her sobriety.
CONCLUSIONS OF LAW:
11. The facts and circumstances
surrounding the above-described violation did not involve moral turpitude but
did involve other misconduct warranting discipline.
ADDITIONAL FACTS RE MITIGATING
CIRCUMSTANCES.
No Prior Discipline: At the time that
Respondent committed the misconduct described in this stipulation, she had
practiced law for 29 years without any discipline and is entitled to
mitigation. (See In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar
Ct. Rptr. 41 [Attorney who practiced for 17 years with no prior discipline was
given mitigation notwithstanding that the misconduct was serious].)
Pretrial Stipulation: Respondent has
voluntarily entered into this pretrial stipulation with the State Bar of
California Office of the Chief Trial Counsel and should receive mitigation
credit for her early admission of culpability and consent to the imposition of
discipline. (Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079 [where
mitigative credit was given for entering into a stipulation as to facts and
culpability].
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.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.)
Standard 3.4 is the applicable Standard in
cases such as this, where a respondent has been convicted of a crime that does
not on its face or in the surrounding facts and circumstances involve moral
turpitude. This standard states such misconduct "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." In reference to part B of the standards, the applicable standard
is 2.10. Standard 2.10 states that culpability of an attorney of a violation of
any provision of the Business and Professions Code or of a wilful violation of
any Rule of Professional Conduct not specified in the standards shall result in
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.
In the present case, Respondent dropped
her two minor children off at the local community pool and while leaving,
collided with another vehicle before fleeing the scene. After a police investigation,
it was determined that Respondent had been driving under the influence of
alcohol. While Respondent’s misconduct is serious and the potential and actual
harm to the community and her children were real, Respondent has fully
reimbursed the victim of the collision for all expenses related to the
collision, voluntarily enrolled in alcohol-related treatments, and is
maintaining a sponsor to ensure her sobriety. Respondent’s post-misconduct
behavior, combined with the mitigation given to her for her 29 years of
discipline-free practice and her willingness to acknowledge her misconduct by
entering into a prefiling stipulation suggests that a public reproval will
achieve the purposes of attorney discipline as defined by the Supreme Court and
standard 1.3 and is consistent with standard 2.10.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of
the Chief Trial Counsel has informed respondent that as of November 26, 2013,
the prosecution costs in this matter are $2,392.00. 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 the State Bar Ethics School (Rules Proc.
of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 13-C-12258
In the Matter of: ALLISON JOYCE NELSON
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: ALLISON JOYCE NELSON
Date: 12/18/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Maria L. Ghobadi
Date: 12/19/13
REPROVAL ORDER
Case Number(s): 13-C-12258
In the Matter of: ALLISON JOYCE NELSON
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 may 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: Donald F.
Miles
Date: 1/9/14
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 Los Angeles, on January 9, 2014, 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:
ALLISON JOYCE NELSON
1100 CALLE ALMADEN
SAN JOSE, CA 95120
<<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 L. Ghobadi, Enforcement, Los
Angeles
I hereby certify that the foregoing is
true and correct. Executed in Los Angeles, California, on January 9, 2014.
Signed by:
Paul Barona
Case Administrator
State Bar Court