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In the Matter of John Leland Difiore

March 7, 2012

IN THE MATTER OF JOHN LELAND DIFIORE,
A MEMBER OF THE STATE BAR, NO.136971.



The opinion of the court was delivered by: Remke, P. J.

PUBLIC MATTER - NOT DESIGNATED FOR PUBLICATION

OPINION

Respondent John Leland DiFiore seeks review of the hearing judge's order revoking his disciplinary probation. Based on three probation violations, the hearing judge recommended that DiFiore be suspended for three years and until he provides proof to the State Bar Court of his rehabilitation, fitness to practice and learning and ability in the general law pursuant to standard 1.4(c)(ii) of the Rules of Procedure of the State Bar, title IV, Standards for Attorney Sanctions for Professional Misconduct.*fn1 On review, DiFiore contends that he is not culpable of any probation violations, while the Office of Probation of the State Bar (Probation) asks us to affirm the hearing judge's discipline recommendation.

Based upon our independent review of the record (Cal. Rules of Court, rule 9.12), we agree with the hearing judge that DiFiore committed three probation violations. But we find only two factors in aggravation (prior record and multiple acts), whereas the hearing judge found four. Ultimately, we decline to impose progressive discipline, finding that an additional three-year suspension would be punitive in nature, disproportionate to the sanctions imposed in similar cases, and unnecessary for public protection.

Neither this matter nor DiFiore's prior discipline record involves any misconduct toward a client. Rather, his ongoing involvement in the discipline system stems primarily from his history of serious alcohol abuse and his inability to properly establish his rehabilitation. DiFiore already has been suspended for over four years for the underlying misconduct and will remain suspended until he establishes his rehabilitation from alcohol abuse and his fitness to practice -- fundamentally the same conditions he failed to comply with in this probation revocation proceeding. We find that the goal of public protection will be satisfied by an additional suspension of one year and until DiFiore proves his rehabilitation, fitness to practice, and learning and ability in the law.

I. ISSUES ON REVIEW

DiFiore argues that he should not be found culpable of any probation violations because:

(1) he believed the Supreme Court's amended discipline order also amended his probation compliance due dates; (2) he is unable to pay for the mental and physical examination (with respect to substance abuse) required by his probation; and (3) his prior participation in the State Bar Lawyer Assistance Program (LAP) demonstrates his rehabilitation.

We find: (1) the Supreme Court's amended discipline order did not change the effective date of the original order; (2) DiFiore failed to provide financial evidence as to his inability to pay for the necessary physical and mental examination; and (3) his prior participation in the LAP neither demonstrates his rehabilitation nor satisfies his subsequent probation condition.

II. PRIOR RECORD AND ALCOHOL ABUSE

Caught in the labyrinth of prior discipline procedures, DiFiore appears unwilling or unable to understand his current obligations. In an attempt to clarify the record, we recite the pertinent facts in some detail.

DiFiore was admitted to practice law in 1990 and has one prior record of discipline, which imposed the probation at issue. His discipline problems began in 2005, following a series of convictions for alcohol-related misconduct. We referred the following convictions to the hearing department to determine whether the facts and circumstances involved moral turpitude or other misconduct warranting discipline, and if so, to recommend the discipline:

Statutory Violation Criminal Conduct Violation Date

Vehicle Code § 23152(a) (misdemeanor) Vehicle Code § 23152(b) (misdemeanor) Vehicle Code § 14601.1(a) (misdemeanor) DUI Driving with blood alcohol level .08% or greater Driving on a suspended license 02/27/05 Vehicle Code § 23152(a) (felony)*fn2 Vehicle Code § 23152(b)(felony) Vehicle Code § 20002(a) (misdemeanor) Vehicle Code § 14601.1(a) (misdemeanor) DUI with three or more priors Driving with blood alcohol level .08% or greater with three or more priors Hit and run with property damage Driving on a suspended license 04/12/05 Vehicle Code § 23152(a) (misdemeanor) Vehicle Code § 23152(b) (misdemeanor) Vehicle Code § 14601.1(a) (misdemeanor) DUI Driving with blood alcohol level .08% or greater Driving on a suspended license 04/28/05 Vehicle Code § 23152(a) (misdemeanor) Vehicle Code § 23152(b) (misdemeanor) Vehicle Code § 14601.1(a) (misdemeanor) DUI Driving with blood alcohol level .08% or greater Driving on a suspended license 04/30/05 Vehicle Code § 23152(a) (felony)*fn3 Vehicle Code § 23152(b) (felony) Vehicle Code § 14601.2(a) (misdemeanor) DUI with three or more priors Driving with blood alcohol level .08% or greater with three or more priors Driving on a suspended license for DUI with prior within five years 04/03/06

Statutory Violation Criminal Conduct Violation Date

Vehicle Code § 20002(a) (misdemeanor) Vehicle Code § 14601.2(a) (misdemeanor) Hit and run with property damage Driving on a suspended license for DUI with prior within five years 12/01/06

After his convictions were referred to the hearing department, DiFiore asked to participate in the State Bar Court's Alternative Discipline Program (ADP), which provides respondents an opportunity to seek treatment and establish rehabilitation from substance abuse or mental health problems while being monitored by the court.*fn4 As a condition of participation, DiFiore was required to enroll in the LAP, which provides the therapeutic support and treatment element of the rehabilitation process. DiFiore also stipulated with the Office of the Chief Trial Counsel of the State Bar that his criminal convictions did not involve moral turpitude but did constitute misconduct warranting discipline.*fn5

On October 6, 2008, DiFiore was accepted into the ADP. As part of the program, he was placed on involuntary inactive status pursuant to Business and Professions Code section 6233.*fn6

On April 17, 2009, while DiFiore was still successfully participating in the ADP, the hearing judge vacated his involuntary inactive status because he had "shown his rehabilitation, present fitness to practice law, and present learning and ability in the general law by a preponderance of the evidence." In total, as a result of his interim suspension and ADP inactive enrollment, DiFiore was not entitled to practice law from October 26, 2005 to April 17, 2009.

In April 2010, DiFiore was terminated from the LAP for failing to comply with the program's requirements. According to DiFiore, he had been receiving a loan from the LAP to pay for its services, which ended and left him with insufficient resources to continue in the program. He asserts that he was terminated solely because he could not pay for his continued participation. Since participation in the LAP is a condition of the ADP, the hearing judge terminated DiFiore from the ADP on September 2, 2010.

As a result of his termination from the ADP, DiFiore received the more severe level of discipline recommended by the hearing judge. In particular, the judge recommended that the Supreme Court suspend DiFiore for three years, execution stayed, and that he be placed on probation for three years with an actual suspension of two years and until he complied with standard 1.4(c)(ii). In addition to submitting quarterly reports and complying with all the conditions of his criminal probation, DiFiore was required to obtain a mental and physical exam as it related to ...


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