Case Number(s): 04-O-12150-JMR
In the Matter of: James J. Bajgrowicz, Bar # 49253, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Mark Hartman, Bar # 114925,
Counsel for Respondent: In Pro Per, Bar #,
Submitted to: Assigned Judge – State Bar Court Clerk’s Office San Francisco.
<<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 June 24, 1971.
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 to be paid in equal amounts prior to February 1 for the following membership years: 2006 and 2007. (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.
Case Number(s): 04-O-13150-JMR
In the Matter of: James J. Bajrowicz, SBN: 49253
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: James J. Bajgrowicz
Date: June 23, 2005
IN THE MATTER OF: James J. Bajgrowicz, State Bar No. 49253
STATE BAR COURT CASE NUMBER: 04-O-13150-JMR
DISMISSALS
Counts two and three of the Notice of Disciplinary Charges, filed February 23, 2005, in State Bar case number 04-O-13150-JMR ("the current ease") are dismissed.
FACTS
In the late 1970’s, respondent James J. Bajgrowiez ("respondent") and Alfred Fontana became friends. They belonged to a local service group, the Breakfast Optimist Club, and often saw each other. Respondent did legal work for Alfred Fontana from the late 1970’s to July 2003.
In April 2002, Alfred Fontana loaned $5,000 to respondent so that respondent could make home mortgage payments. The loan resulted from an oral agreement between respondent and Alfred Fontana. It was not put into writing. There was no specific provision for security, interest, or method, manner, and time of repayment. Nor did respondent advise Alfred Fontana in writing of his right to seek the advice of an independent lawyer.
In January 2003, Alfred Fontana was diagnosed with cancer and was receiving chemotherapy. At this time, Alfred Fontana’s wife, Emily Fontana, was seriously ill and lived in a skilled nursing facility. Respondent saw Alfred Fontana about every day, often visited Emily Fontana, and did home-repair work for Alfred Fontana. By the end of January 2003, respondent had repaid Alfred Fontana about $2,500 of the April 2002 loan.
In February 2003, respondent asked Alfred Fontana for an additional loan of $20,000. On February 28, 2003, respondent and Alfred Fontana signed a document entitled "Note & Assignment of Interest." Pursuant to the Note & Assig/trnent of Interest, Alfred Fontana agreed to obtain $20,000 from a line of credit with the Bank of America and to loan this sum to respondent. Pursuant to the Note & Assignment of Interest, respondent assigned a security interest to Alfred Fontana and agreed "to timely make the monthly payments [to the Bank of America] until [the combined April 2002 and February 2003 loans were] fully satisfied."
Before February 28, 2003, respondent had informed Alfred Fontana orally, but not in writing, that Alfred Fontana could and should seek the advice of an independent lawyer. Further, on February 28, 2003 the Note & Assignment of Interest stated that "Alfred Fontana was advised that he could and should seek additional legal counsel."
In March 2003, Alfred Fontana obtained the $20,000 from the Bank of America and loaned this sum to respondent. Respondent then began making payments of principal and interest on the combined April 2002 and February 2003 loans to the Bank of America. These payments exceeded the minimum monthly payments required by the Bank of America.
In July 2003, Alfred Fontana had a falling-out with respondent and hired attorney William Cutler ("Cutler"). In a letter dated July 30, 2003, Cutler demanded that respondent immediately pay the outstanding amount owed on the combined April 2002 and February 2003 loans.
Respondent received Cutler’s letter and replied that he would continue to make payments to the Bank of America as he had agreed with Alfred Fontana. Altogether, respondent made the following payments by cheek to the Bank of America:
Check Number: 762, Date: 4/10/03, Amount: $200;
Check Number: 772, Date: 6/4/03, Amount: $400;
Check Number: 805, Date: 7/11/03, Amount: $200;
Check Number: 813, Date: 8/1/03, Amount: $200;
Check Number: 832, Date: 4/6/03, Amount: $200;
Check Number: 843, Date: 10/6/03, Amount: $200;
Check Number: 857, Date: 11/6/03, Amount: $200;
Check Number: 873, Date: 12/4/03, Amount: $200;
Check Number: 895, Date: 1/10/04, Amount: $200;
Check Number: 903, Date: 2/10/04, Amount: $200;
Check Number: 919, Date: 3/10/04, Amount: $200;
Check Number: 937, Date: 4/5/04, Amount: $200;
Check Number: 954, Date: 5/10/04, Amount: $200;
Check Number: 988, Date: 9/7/04, Amount: $200.
On May 31, 2004, Alfred Fontana died. His son, Danny Fontana, inherited the whole estate. Respondent, who had befriended Danny Fontana and had done legal work for him, represented Danny Fontana regarding the distribution of Alfred Fontana’s estate.
In November 2004, Danny Fontana mortgaged the house which he had inherited from Alfred Fontana. From the proceeds of the mortgage, Danny Fontana paid the Bank of America the amount respondent still owed on the combined April 2002 and February 2003 loans.
On August 17, 2004, State Bar investigator Jacqueline Carpenter ("Carpenter") sent respondent an initial letter ("initial letter") asking for a written response to a complaint about his dealings with Alfred Fontana mad for copies of documents related to his representation of Alfred Fontana. In the initial letter, Carpenter stated that respondent’s written response and the copies of the documents were due by August 31, 2004. Respondent received the initial letter, but did not reply to it.
On September 27, 2004, Carpenter sent respondent a second letter ("second letter") asking for a written explanation of his representation of Alfred Fontana. In the second letter, Carpenter enclosed a copy of the initial letter and stated that respondent must provide the requested written response and copies of documents by October 6, 2004. Respondent received the second letter, but did not timely reply to it.
On November 23, 2004, respondent sent Carpenter a letter in which he stated that he had recently had surgery and was receiving therapy. He asserted: "I would like the opportunity to respond to the allegations.., and will need some time to assemble the documents." He concluded: "It is likely that all the documents will be assembled and forwarded to you after the Thanksgiving weekend." Respondent did not, however, send Carpenter either a written response to the allegations or any documents.
On December 20, 2004, Carpenter sent respondent a third letter (’’third letter") asking for a written explanation about his representation of Alfred Fontana and for copies of relevant documents by December 24, 2004. Respondent received the third letter, but did not reply to it.
CONCLUSIONS OF LAW
Rule 3-300 of the Rules of Professional Conduct provides that an attorney shall not enter into a business transaction with a client unless the following requirements have been met: (1) the transaction and its terms are fair and reasonable to the client; (2) the transaction and its terms are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; (3) the client was advised in writing before the transaction that the client may seek the advice of an independent lawyer of the client’s choice; (4) the client was given a reasonable opportunity to seek such advice; and (5) the client thereafter consents in writing to the terms of the transaction. With regards to the April 2002 loan of $5,000, respondent wilfully violated rule 3-300 as follows:
(1) The loan was not fair and reasonable to Alfred Fontana because no specific provision was made for security, interest, or method, manner, and time of repayment of the $5,000.
(2) The terms of the loan were not fully disclosed and transmitted in writing to Alfred Fontana in a manner which he should reasonably have understood.
(3) Alfred Fontana was not advised in writing before the loan that he might seek the advice of an independent lawyer of his choice.
(4) Alfred Fontana client was not given a reasonable opportunity to seek such advice.
(5) Alfred Fontana did not consent in writing to the terms of the loan.
With regards to the February 2003 loan of $20,000, respondent wilfully violated rule 3-300 by failing to advise Alfred Fontana in writing before the they signed the Note & Assignment of Interest that he might seek the advice of an independent lawyer of his choice.
Section 6068, subdivision (i) of the Business and Professions Code requires that an attorney cooperate and participate in any disciplinary investigation pending against the attorney. Respondent wilfully violated this requirement by failing to provided the written explanation and copies of documents requested by Carpenter in the initial, second, and third letters.
DATE OF DISCLOSURE OF ANY PENDING INVESTIGATION OR PROCEEDING
On June 15, 2005, deputy trial counsel Mark Hartman sere a disclosure letter to respondent. This letter advised respondent of any pending investigation or proceeding not resolved by this stipulation.
ESTIMATED PROSECUTION COSTS
The estimated prosecution costs of the current cases will exceed $3,654.00 This sum is only an estimate and does not include the cost of respondent’s deposition on May 20 and June 1, 2005. If this stipulation is rejected or if relief from this stipulation is granted, the prosecution costs of the current case may increase because of the costs of further proceedings.
SUPPORTING AUTHORITY
The Rules of Procedure of the State Bar, Title IV, Standards for Attorney Sanctions for Professional Misconduct, standards 1.3, 1.6, 1.7(a), and 2.8 support the discipline in this stipulation.
SIGNATURE OF THE PARTIES
Case Number(s): 04-O-13150-JMR
In the Matter of: James J. Bagrowicz, SBN: 49253
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: James J. Bargrowicz
Date: June 23, 2005
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Mark Hartman
Date: June 23, 2005
Case Number(s): 04-O-13150-JMR
In the Matter of: James J. Bagrowicz, SBN: 49253
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.
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 5.58 (E) & (F), 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 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Joann m. Remke
Date: July 20, 2005
[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 July 20, 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:
JAMES JOSEPH BAJGROWICZ
176 WIKIUP DR #B
SANTA ROSA, CA 95403 7772
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MARK HARTMAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on July 20, 2005.
Signed by:
Bernadette C.O. Molina
Case Administrator
State Bar Court