State Bar Court of California

Hearing Department

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

ACTUAL SUSPENSION

Case Number(s): 04-O-11273, 04-O-11476, 04-O-12709

In the Matter of: Michael Chapnik, Bar # 202659, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Cydney Batchelor, Bar # 114637,

Counsel for Respondent: Robert W. Stewart, Bar # 48745,

Submitted to: Settlement Judge – State Bar Court Clerk’s Office San Francisco.

Filed: October 18, 2005.

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 November 1, 1999.

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 13 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." See attachment

5.    Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law". See attachment

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. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule284, Rules of Procedure.

<<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.

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. .

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. See attached

<<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.

checked. (4) Harm:  Respondent's misconduct harmed significantly a client, the public or the administration of justice. See attached

<<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. 

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: See attached.

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: See attached

D. Discipline:

<<not>> checked. (1)    Stayed Suspension:

<<not>> checked. (a) Respondent must be suspended from the practice of law for a period of .
<<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: .
<<not>> checked. (b) The above-referenced suspension is stayed.

<<not>> checked. (2) Probation:  Respondent must be placed on probation for a period of , which will commence upon the effective date of the Supreme Court order in this matter.  (See rule 9.18, California Rules of Court.)

checked. (3) Actual Suspension:

checked. (a) Respondent must be actually suspended from the practice of law in the State of California for a period of thirty (30) days.
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.
checked. iii. and until Respondent does the following: see attached

E. Additional Conditions of Probation:

<<not>> checked. (1)   If Respondent is actually suspended for two years or more, he/she must remain actually suspended until  he/she proves to the State Bar Court his/her rehabilitation, fitness to practice, and learning and ability in the general law, pursuant to standard 1.4(c)(ii), Standards for Attorney Sanctions for Professional Misconduct.

<<not>> checked. (2)   During the probation period, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

<<not>> 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.

<<not>> 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.

<<not>> 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 probation.

<<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 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.

<<not>> 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 probation conditions.

<<not>> 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 Ethics School, and passage of the test given at the end of that session.
No Ethics School recommended.  Reason: .

<<not>> 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.

<<not>> checked. (10) 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:

<<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 during the period of actual suspension or within one year, whichever period is longer.  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.
<<not>> checked. No MPRE recommended.  Reason: .

checked. (2)                  Rule 955, California Rules of Court:  Respondent must comply with the requirements of rule 955, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.

<<not>> checked. (3)   Conditional Rule 955, California Rules of Court:  If Respondent remains actually suspended for 90 days or more, he/she must comply with the requirements of rule 955, California Rules of Court, and perform the acts specified in subdivisions (a) and (c) of that rule within 120 and 130 calendar days, respectively, after the effective date of the Supreme Court's Order in this matter.

<<not>> checked. (4)   Credit for Interim Suspension [conviction referral cases only]:  Respondent will be credited for the period of his/her interim suspension toward the stipulated period of actual suspension. Date of commencement of interim suspension: .

checked. (5)                  Other Conditions: See attached.

Attachment language (if any):.


ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

 

IN THE MATTER OF: Michael Chapnik, State Bar No. 202659

STATE BAR COURT CASE NUMBER: 04-O-11273; 04-O-11476; 04-O-12709

FACTS AND CONCLUSIONS OF LAW.

 

Case No. 04-O-11273 (Dorothy llle)

 

Facts: In October 20, 2003, Dorothy Ille employed Respondent to represent her in a probate matter, and paid him $3500.00 in advanced attorney fees. Respondent thereafter made three court appearances on Ms. Ille’s behalf. At the hearing on January 6, 2004, Respondent was ordered to file an accounting by February 20, 2004, and to appear for another hearing on March 8, 2004. Thereafter, Respondent failed to take any further action on Ms. Ille’s behalf, or to provide any further legal services. From January to March 2004, Ms. Ille telephoned and wrote to respondent on numerous occasions to inquire about the status of her civil matter and to demand the return of her file and unearned fees. Respondent failed to return her telephone calls or to respond to her letters, and did not refund her unearned attorney fees until May 2005, after the

intervention of the State Bar.

 

Conclusions of Law: By recklessly failing to the accounting or to perform any substantive legal services on Ms. Ille’s behalf after January 2004, Respondent failed to perform competently the legal services for which he was employed, in violation of Rule of Prof. Conduct 3-110(A). By willfully failing to respond to Ms. llle’s repeated requests for information about her case, Respondent failed to communicate adequately with his client, in violation of Bus. and Prof. Code section 6068(m). By willfully failing to respond to Ms. Ille’s repeated requests for the refund of unearned attorney fees, Respondent failed to refund unearned attorney fees promptly, in violation of Rule of Prof. Conduct 3-700(D)(2).

 

Case No. 04-O-11476 (Ann Bradley)

 

Facts: In June 2003, Ann Bradley employed Respondent to represent her in an appeal of a marital dissolution matter. Ms. Bradley and Respondent agreed that she would perform the legal research and he would draft and file the appellate brief. Respondent did not file the brief in a timely fashion, despite twice being notified to do so by the clerk of the appellate court in November and December 2003. Respondent also failed to respond to numerous telephone inquiries from Ms. Bradley from December 2003 to February 2004. Finally, Respondent failed to return Ms. Bradley’s client file to her upon her numerous requests until March 22, 2004, after the intervention of the State Bar.

 

Conclusions of Law: By recklessly failing to file the appellate brief, Respondent failed to perform competently the legal services for which he was employed, in violation of Rule of Prof. Conduct 3-110(A). By willfully failing to respond to Ms. Bradley’s numerous telephone messages, Respondent failed to communicate adequately with his client, in violation of Bus. and Prof. Code section 6068(m). By willfully failing to release Ms. Bradley’s client file to her upon her repeated request, Respondent failed to release to his client the papers she was entitled to receive, in violation of Rule of Prof. Conduct 3-700(D)(1).

 

Case No. 04-O-12709 (Llane Estrada)

 

Facts: In October 2002, Llane Estrada employed Respondent to represent him in an immigration matter, and paid him $755.00 in advanced attorney fees on that date. Thereafter, Respondent failed to perform any legal services on the matter. Respondent spoke to Mr. Estrada in November 2003. However, he thereafter failed to respond to Mr. Estrada’s numerous oral and written demands for information about the case. Finally, Respondent failed to refund the unearned attorney fees until May 2005, after the intervention of the State Bar.

 

Conclusions of Law: By recklessly failing to perform any legal services on Mr. Estrada’s behalf, Respondent failed to perform competently the legal services for which he was employed, in violation of Rule of Prof. Conduct 3-110(A). By willfully failing to respond to Mr. Estrada’s repeated oral and written requests for information about the case, Respondent failed to communicate adequately with his client, in violation of Bus. and Prof. Code section 6068(m). By willfully failing to refund unearned attorney fees until after the intervention of the State Bar, Respondent failed to refunded unearned attorney fees promptly, in violation of Rule of Prof. Conduct 3-700(D)(2).

 

NEXUS BETWEEN CHEMICAL DEPENDENCY AND MISCONDUCT.

 

If called as a witness, Respondent would testify that at the time of misconduct stipulated to herein, he was suffering from chemical dependency to alcohol.

 

PENDING PROCEEDINGS.

 

The disclosure date referred to, on page one, paragraph A.(6), was September 2, 2005.

 

AGGRAVATING FACTORS.

 

Multiple Acts of Misconduct: The misconduct stipulated to above involves multiple acts of misconduct.

 

Failure to Cooperate with Investigators: Although he has cooperated through counsel with the State Bar deputy trial counsel on the resolution of these cases, Respondent failed to cooperate with the State Bar investigator on all three cases.

 

Dishonesty: Respondent misrepresented to all three clients that he was working on their cases when he was not.

 

Significant Harm: In the Bradley matter, default was entered and Ms. Bradley had to employ other counsel to have it set aside; this was made more difficult by Respondent’s failure to release Ms. Bradley’s client file until after the default was set aside. In the llle matter, as a result of Respondent’s inaction and failure to refund the unearned fees promptly, Ms./lie did not have the financial ability to hire replacement counsel and, lost any claim she might have made to her mother’s estate.

 

MITIGATING CIRCUMSTANCES.

 

Additional Mitigating Circumstances.

 

No Prior Discipline: Although Respondent has only been admitted since 1999, it should be noted that he has no prior record of discipline.

 

Restitution: Although he did not do so until after the intervention of the State Bar, it should be noted that Respondent refunded the attorney fees to Ms./lie and Mr. Estrada, in full, plus interest, in July 2005.

 

Chemical Dependency: Before the intervention of the State Bar, Respondent had begun to address his addiction to alcohol by voluntarily consulting the State Bar Lawyer Assistance Program (LAP) in February 2004. At the suggestion of LAP, Respondent obtained residential treatment for his chemical dependency. Respondent also signed a long term participation plan with LAP on March 28, 2005. However, Respondent has determined to move to Israel and not to continue his participation with LAP.

 

RESPONDENT’S RELOCATION TO ISRAEL AND OTHER CONDITIONS TO RETURN TO ACTIVE STATUS.

 

Respondent has told the State Bar that he wishes to relocate to Israel to continue to address his chemical dependency issues. Accordingly, the parties have agreed that Respondent will not be placed on probation, but will have to satisfy a number of conditions before he can return to active status. In addition to complying with std. 1.4(c)(ii) of the Standards for Attorney Discipline, Respondent will also have to demonstrate that he has undergone a meaningful and sustained period of rehabilitation from his chemical dependency (Harford v. State Bar (1990) 52 Cal.3d 93, 101; In re Billings (1990) 50 Cal.3d 358, 367). He will also have to provide proof that he has attended the State Bar Ethics School, and taken and passed the Ethics School test, and that he has passed the Multi-State Professional Responsibility Examination, both within one (1) year before being readmitted to active status.

 

ELECTION NOT TO REQUEST STATE BAR COURT’S ALTERNATIVE DISCIPLINE PROGRAM,

 

By signing this stipulation, Respondent acknowledges that he was provided information about the State Bar Court’s Alternative Discipline Program, that he was offered the opportunity to request referral to and participation in that program, and that he has elected not to do so.


Nolo Contendere Plea

Case Number(s): 04-O-11273; 04-O-11476; 04-O-12709

In the Matter of: Michael Chapnik

 

Business and Professions Code § 6085.5 Disciplinary Charges; Pleas to Allegations

 

There are three kinds of pleas to the allegations of a notice of disciplinary charges or other pleading which initiates a disciplinary proceeding against a member:

 

(a)  Admission of culpability.

 

(b)  Denial of culpability.

 

(c)  Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere shall be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court shall find the member culpable. The legal effect of such a plea shall be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the count during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based. (Added by Stats. 1996 ch. 1104.)(emphasis supplied)

 

RULE 133, Rules of Procedure of the State Bar of California STIPULATION AS TO FACTS, CONCLUSIONS OF LAW AND DISPOSITION

 

 

(a) A proposed stipulation as to facts, conclusions of law, and disposition shall set forth each of the following:…

 

(5) a statement that respondent either

 

(i) admits the facts set forth in the stipulation are true and that he or she is culpable of violations of the specified statutes and/or Rules of Professional Conduct or

 

(ii) pleads halo contendere to those facts and violations. If the respondent pleads nolo contendere, the stipulation shall include each of the following:

 

(a) an acknowledgment that the respondent completely understands that the plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his or her culpability of the statutes and/or Rules of Professional Conduct specified in the stipulation; and

 

(b) if requested by the Court, a statement by the deputy trial counsel that the factual stipulations are supported by evidence obtained in the Slate Bar investigation of the matter. (emphasis supplied)

 

I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 133(a)(5)of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).

 

Signed by:

Respondent: Michael Chapnik

Date: August 30, 2005


SIGNATURE OF THE PARTIES

Case Number(s): 04-O-11273; 04-O-11476; 04-O-12709

In the Matter of: Michael Chapnik

 

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: Michael Chapnik

Date: August 30, 2005

 

Respondent’s Counsel: Robert W. Stewart

Date: August 0, 2005

 

Deputy Trial Counsel: Cydney Batchelor

Date: September 2, 2005


ACTUAL SUSPENSION ORDER

Case Number(s): 04-O-11273; 04-O-11476; 04-O-12709

In the Matter of: Michael Chapnik

 

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 9.53(a), California Rules of Court.)

 

Signed by:

Judge of the State Bar Court: Pat McElroy

Date: October 18, 2007


CERTIFICATE OF SERVICE

[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 San Francisco, on October 18, 2005, 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 San Francisco, California, addressed as follows:

 

ROBERT W. STEWART

21 TAMAL VISTA BLVD #295

CORTE MADERA, CA 94925

 

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

 

CYDNEY BATCHELOR, Enforcement, San Francisco

 

I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on October 18, 2005.

 

Signed by:

George Hue

Case Administrator

State Bar Court