State Bar Court of California

Hearing Department

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

STAYED SUSPENSION; NO ACTUAL SUSPENSION

Case Number(s): 07-C-10288-RAH

In the Matter of: Melanie, Bar # 170069, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Melanie L. Lawrence, Bar # 230102

Counsel for Respondent: In Pro Per, Bar #

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

Filed: November 30, 2007.

  <<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 April 25, 1994.

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. Costs are added to membership fee for calendar year following effective date of discipline.

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.)

<<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.

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.

<<not>> checked. (8)   No aggravating circumstances are involved.
Additional aggravating circumstances: Respondent appeared at the initial status conference in these proceedings under the influence of intoxicants.

C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating circumstances are required.

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. 

<<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: 

D. Discipline:

checked. (1)            Stayed Suspension:

checked. (a)                 Respondent must be suspended from the practice of law for a period of one year.

<<not>> checked. i.   and until Respondent shows proof satisfactory to the State Bar Court of rehabilitation and present fitness to practice and present learning and ability in the law pursuant to standard 1.4(c)(ii) Standards for Attorney Sanctions for Professional Misconduct.

<<not>> checked. ii.   and until Respondent pays restitution as set forth in the Financial Conditions form attached to this stipulation.

<<not>> checked. iii.  and until Respondent does the following: .

The above-referenced suspension is stayed.

checked. (2)            Probation:  Respondent must be placed on probation for a period of two years, which will commence upon the effective date of the Supreme Court order in this matter.  (See rule 9.18, California Rules of Court.)

E. Additional Conditions of Probation:

checked. (1)            During the probation period, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

checked. (2)            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. (3)            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. (4)            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 probation.

<<not>> checked. (5) 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 to the monitor 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 probation monitor.

checked. (6)            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.

checked. (7)            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 Ethics School, and passage of the test given at the end of that session.

<<not>> checked. No Ethics School recommended.  Reason: .

<<not>> checked. (8) 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. (9)            The following conditions are attached hereto and incorporated:           

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:

<<not>> checked. (1) Multistate Professional Responsibility Examination:  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.  Failure to pass the MPRE results in actual suspension without further hearing until passage. But see rule 9.10(b), California Rules of Court, and rule 5.162(A) & (E), Rules of Procedure.

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

<<not>> checked. (2) Other Conditions:

Attachment language (if any):

ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

IN THE MATTER OF: Melanie L. Moen, State Bar No. 170069

STATE BAR COURT CASE NUMBER: 07-C-10288-RAH

A. PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING.

1. 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.

2. On January 25, 2007, respondent was convicted of violating Vehicle Code § 23152(b), Driving with Blood Alcohol Level of .08% or more, in Los Angeles County Superior Court.

3. On February 27, 2007, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department limited to whether the facts and circumstances surrounding the offenses involve moral turpitude or other misconduct warranting discipline.

4. On May 4, 2007, the Review Department of the State Bar Court issued an augmented order to include a hearing and decision recommending the discipline to be imposed in the event the Hearing Department finds that the facts and circumstances of respondent’s offense involve moral turpitude or other misconduct warranting discipline.

B. 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.

Facts:

5. On January 17, 2007, at approximately 1:35 a.m., respondent drove her car to the area of I-110 northbound and US-101 northbound, in Los Angeles County, where she pulled the vehicle onto the shoulder and stopped.

6. A Freeway Service Patrol driver stopped to offer respondent assistance. The driver noticed a strong odor of alcohol emanating from the vehicle and called the California Highway Patrol ("CHP").

7. The CHP responded and upon contacting respondent, observed numerous objective signs of intoxication, placed respondent under arrest, and transported her to the CHP office.

8. At the CHP office a breath test was conducted. Respondent’s B.A.C. was .36%.

9. This conviction was respondent’s second for DUII having been convicted on June 8, 2005, of violating Vehicle Code § 23152(b), Driving with Blood Alcohol Level of .08% or more.

Conclusions of Law:

By Driving with a Blood Alcohol Level of .08% or more, when she had previously been convicted of the same offense, respondent committed acts of other misconduct warranting discipline in violation of Business and Professions Code § 6068(a).

C. AUTHORITIES SUPPORTING DISCIPLINE.

Standards:

Conviction of a crime which does not involve moral turpitude, but does involve other misconduct warranting discipline shall result in a sanction prescribed under part B of the standards appropriate to the nature and extent of the misconduct. (Std. 3.4)

Under part B, offenses involving a violation for which the level of discipline is not otherwise specified shall result in reproval or suspension according to the gravity of the offense or harm, if any, to the victim, with due regard for the purposes of imposing discipline. (Std. 2.10)

Case Law:

In In re Kelley (1990) 52 Cal. 3d 487, an attorney received a public reproval for her second drunk driving conviction that also violated conditions of criminal probation for the first offense. A police officer pulled her over and asked whether she had been drinking. (Id. at 491 .) She said she had not. (Id.) After having her exit the car, the officer asked her to submit to a field sobriety test. (Id.) Kelley refused, sat down on the curb, and attempted to enter into a conversation with the officer about his family, telling him she was an old family friend. (Id.)When the officer refused to sustain the conversation, Kelley became agitated and accused him of arresting her because of a personal grievance against her ex-husband. (Id.) The officer eventually summoned a second officer for assistance. (Id.) The court noted that in addition to the conviction evidencing an alcohol problem, Kelley’s conduct demonstrated a "lack of respect for the legal system." (Id. at 496.) But, Kelley’s conviction was not moral turpitude per se and the facts and circumstances did not amount to moral turpitude. Rather, her conviction amounted to "other misconduct warranting discipline." (Id. at 494.)

D. MITIGATING/AGGRAVATING CIRCUMSTANCES

While the relevant case law suggests that a public reproval is appropriate in this matter, the parties have stipulated to a greater level of discipline, in consideration of the purposes of attorney discipline and the aggravating factor present in this case.

E. COSTS OF DISCIPLINARY PROCEEDINGS.

Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of August 27, 2007, the estimated prosecution costs in this matter are approximately $3,530. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. 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.

SIGNATURE OF THE PARTIES

Case Number(s): 07-C-10288

In the Matter of: Melanie L. Moen

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: Melanie L. Moen

Date: August 31, 2007

Respondent’s Counsel:

Date:

Deputy Trial Counsel: Melanie J. Lawrence

Date: September 4, 2007

STAYED SUSPENSION ORDER

Case Number(s): 07-C-10288

In the Matter of: Melanie L. Moen

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.

<<not>> checked. All Hearing dates are vacated.

The box at paragraph F (1) should be marked with an “x” indicating that the proof of passage of the MPRE is required. (Segretti v State Bar (1976) 15 cal.3d 878)

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.) 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, Rule of Professional Conduct.

Signed by:

Judge of the State Bar Court: Richard A. Honn

Date: November 28, 2007

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 November 30, 2007, 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:

MELANIE L. MOEN

11853 KLING ST APT 21

VALLEY VILLAGE, CA 91607

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

Melanie Lawrence, Enforcement, Los Angeles

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on November 30, 2007.

Signed by:

Milagro del R. Salmerson

Case Administrator

State Bar Court