Case Number(s): 05-C-01791-RAP
In the Matter of: Ward Douglas Smith, Bar # 101956 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eric H. Hsu, Bar # 213039,
Counsel for Respondent: Michael E. Wine, Bar # 58657,
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 December 1, 1981.
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 14 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 next two(2) membership years. (Hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
<<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: Ward Douglas Smith, State Bar No. 101956
STATE BAR COURT CASE NUMBER: 05-C-01791-RAP and 05-C-03549
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING.
Facts.
1. Respondent WARD DOUGLAS SMITH ("Respondent") was admitted to the practice of law in the State of California on December I, 1981, was a member at all times pertinent to these charges, and is currently a member of the State Bar of California ("State Bar").
2. On June 6, 2005, Respondent was placed on interim suspension in comaection with State Bar Court case number 05-C-01791-RAP. Respondent remains on interim suspension.
State Bar Court Case No. 05-C-01791:
3. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 951 of the California Rules of Court.
4. On March 15, 2005, Respondent pied guilty as to counts 1, 2, and 3 of the Information filed against him on March 7, 2005, in a criminal action entitled People v. Ward Douglas Smith, Orange County Superior Court Case Number 05SF0029 ("the Information").
5. Respondent was found guilty of count 1, for violating California Penal Code section 273.5, subdivision (a) (domestic battery with corporal injury), a felony, by willfully and unlawfully inflicting corporal injury resulting in a traumatic condition upon his spouse on or about January 5, 2005. Respondent admitted to the foregoing facts as the basis for his guilty plea on March 15, 2005.
6. Respondent was found guilty of count 2, for violating California Penal Code section 273.5, subdivision (a) (domestic battery with corporal injury), a felony, by willfully and unlawfully inflicting corporal injury resulting in a traumatic condition upon his spouse on or about December 22, 2004. Respondent admitted to the foregoing facts as the basis for his guilty plea on March 15, 2005.
7. Respondent was found guilty of count 3, for violating California Penal Code section 166, subdivision (c)(1) (violation of protective order), a misdemeanor, by willfully, knowingly, and unlawfully violating a protective order on or about January 5, 2005. The protective order was issued by a court pursuant to Penal Code section 136.2 as a condition of probation after conviction in a criminal proceeding involving domestic violence as defined in Section 13700. On March 15, 2005, Respondent admitted to the foregoing facts as the basis for his guilty plea.
8. As part of Respondent’s sentence in the underlying criminal matter, and among others, Respondent was ordered by the superior court to do each of the following: a) to cooperate with Probation Officer in any plan for psychiatric, psychological, alcohol and/or drug treatment, or counseling; b) to attend and complete Domestic Violence Child & Youth Services Program Project Program; c) to attend and complete Domestic Violence Action Consultants Batterers’ Treatment Program; d) to enroll in and complete Action Consultants Batterers’ Treatment Program located at 1670 Santa Aria Avenue, Suite F, in Costa Mesa, California; and e) to comply with all terms of the protective order.
9. Respondent did not file any notice of appeal in Orange County Superior Corot Case Number 05SF0029, and the time period for filing such notice has expired.
10. On June 13, 2005, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department on the following issues: (a) whether the facts and circumstances surrounding the convictions involved moral turpitude or other misconduct warranting discipline, and (b) the appropriate level of discipline, where warranted.
11. The above-described conduct was not committed in the course of Respondent’s profession as an attorney.
Conclusions of Law:
The facts and circumstances surrounding Respondent’s felony convictions for his violating California Penal Code section 273.5, subdivision (a), and Respondent’s misdemeanor conviction for his violating California Penal Code section 166, subdivision (c)(1), involved conduct warranting discipline. Respondent violated laws of the State of California, in willful violation of California Business and Professions Code section 6068, subdivision (a).
State Bar Court Case No. 05-C-03549:
12. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 951 of the California Rules of Court. The parties hereby stipulate to a waiver of an augmented order referring case number 05-C-03549 to the Hearing Department for a hearing and decision as to whether the facts and circumstances surrounding Respondent’s violation of California Penal Code section 166, subdivision (c)(4), a felony, involved moral turpitude or other misconduct warranting discipline, and if so found, the discipline to be imposed.
13. On September 22, 2005, Respondent pied guilty as to count 1 of the Felony Complaint filed against him on July 26, 2005, in a criminal action entitled People v. Ward Douglas Smith, Orange County Superior Court Case Number 05SF0847 ("the Felony Complaint").
14. Respondent was found guilty of count 1, for violating California Penal Code section 166, subdivision (c)(4) (violation of protective order with prior conviction), a felony, by willfully, knowingly, and unlawfully violating a protective order on or about July 2, 2005. The protective order was issued by a court pursuant to Penal Code section 136.2 as a condition of probation after conviction in a criminal proceeding involving domestic violence as defined in Section 13700. Respondent was previously convicted of violating Penal Code section 166, subdivision (e)(1) within seven years of his violation of subdivision (c)(4), which involved an act of violence and a credible threat of violence as provided in Penal Code section 139, subdivisions (c) and (d). On September 22, 2005, Respondent admitted to the foregoing facts as the basis for his guilty plea.
15. As a result of Respondent’s guilty plea, Respondent was sentenced to serve 365 days in Orange County Jail.
16. As part of Respondent’s sentence in the underlying criminal matter, Respondent was ordered by the superior court to cooperate with a probation officer in any plan for psychiatric, psychological, alcohol and/or drug treatment, or counseling. Respondent was also ordered to comply with all terms of the protective order.
17. Respondent did not file any notice of appeal in Orange County Superior Court Case
Number 05SF0847, and the time period for filing such notice has expired.
18. The above-described conduct was not committed in the course of Respondent’s profession as an attorney.
Conclusions of Law:
The facts and circumstances surrounding Respondent’s felony convictions for his violating California Penal Code section 166, subdivision (c)(4) (violation of protective order with prior conviction), involved conduct warranting discipline. Respondent violated laws of the State of California, in willful violation of California Business and Professions Code section 6068, subdivision (a).
AUTHORITIES SUPPORTING DISCIPLINE.
Authorities in Support of the Appropriate Level of Discipline.
a. Standards
Standard 2.6(a) provides that a violation of Business and Professions Code section 6068 shall result in disbarment or suspension, depending on the gravity of the offense or harm to any victim, with due regard to the purposes set forth in standard 1.3.
Standard 3.4 provides that a member’s final conviction 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 the Standards appropriate to the nature and extent of the misconduct found to have been committed by the member. Part B of the Standards includes standard 2.6(a).
b. Case Law.
In re Otto (1989) 48 Cal.3d 970.
In Otto, the respondent was convicted of felony charges of assault by means likely to produce great bodily injury and infliction of corporal punishment on a cohabitant of the opposite sex resulting in a traumatic condition (Pen. Code, §§ 245, subd. (a), 273.5), acts which the Review Department found did not involve moral turpitude but did constitute other misconduct warranting discipline. In the criminal matter, Otto served 90 days in jail and was placed on probation with conditions. Otto defaulted in the proceeding and his motion for relief was denied by the Supreme Court. The Court imposed the following discipline, as recommended by the Review Department: two years of stayed suspension and two years of probation, conditioned on actual suspension for six months.
In the Matter of Stewart (Review Dept, 1994) 3 Cal. State Bar Ct. Rptr. 52.
Stewart was convicted of a misdemeanor battery on a police officer (Pen. Code, § 243, subd. (c)). Stewart’s conviction arose from a domestic dispute with his wife about his continuing visitation with his son. While struggling with a police officer at the scene, Stewart caused injury to that officer. Moral turpitude was not found, but the misconduct warranted discipline. In aggravation, Stewart had one prior, he engaged in multiple acts of wrongdoing, he gave a false description of the criminal incident to the Hearing Department and to the Los Angeles Police Department, he lacked insight as to the seriousness of his actions, and he was indifferent to the seriousness of the misconduct and to the potential harm which could have resulted from his failure to obey the police officers’ directions. There was no mitigation. He was given two years of stayed suspension and two years of probation, conditioned on actual suspension for six months.
OTHER CONDITIONS NEGOTIATED BY THE PARTIES.
1. Respondent must provide passage of the Multistate Professional Responsibility Examination ("MPRE"), administered by the National Conference of Bar Examiners, to the Office of Probation during the period of actual suspension or within 18 months from the effective date of discipline, whichever period is longer. Failure to pass the MPRE results in actual suspension without further hearing until passage. But see rule 951(b), California Rules of Court, and rule 321(a)(1), Rules of Procedure of the State Bar of California.
2. Within 18 months from the effective date of discipline, Respondent must provide to the Office of Probation satisfactory proof of attendance at a session of the Ethics School, and passage of the test given at the end of that session.
3. Respondent is currently incarcerated. Respondent expects to be released from jail in March 2006, depending on any credit for good behavior. Within thirty (30) days from the effective date of discipline or from the date of Respondent’s release from jail, wherever Respondent may be held and whichever period is longer, 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.
4. If Respondent is incarcerated on the effective date of discipline, then it is Respondent’s duty to advise the Office of Probation of his date of release from jail, within two (2) weeks o f Respondent’s release.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of November 22, 2005, the estimated prosecution costs in this matter are approximately $5,166. Respondent acknowledges that this figure is an estimate only. 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 one, paragraph A(7), was January 3, 2006.
SIGNATURE OF THE PARTIES
Case Number(s): 05-C-01791-RAP and 05-C-03549
In the Matter of: Ward Douglas Smith
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: Ward Douglass Smith
Date: December 29, 2005
Respondent’s Counsel: Michael E. Wine
Date: January 5, 2006
Deputy Trial Counsel: Eric H. Hsu
Date: January 12, 2006
Case Number(s): 05-C-01791-RAP and 05-C-03549
In the Matter of: Ward Douglas Smith
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 135(b), 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 953(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Platel
Date: January 13, 2006
[Rule 62(b); Rules Proc.; 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 24, 2006, 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:
MICHAEL E WINE
301 N. LAKE AVE STE 800
PASADENA, CA 91101
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERIC HSU, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on January 24, 2006.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court