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.
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 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.
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.
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
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
[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