Case Number(s): 06-O-10962
In the Matter of: Thomas A. Brackey, Bar # 162279, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Timothy G. Byer, Bar # 172472
Counsel for Respondent: Ellen A. Pansky, Bar # 77688
Submitted to: Settlement Judge State Bar Court Clerk’s Office Los Angeles
Filed: December 23, 2008
<<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 December 14, 1992.
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 8 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):
checked. costs added to membership fee for calendar year following effective date of discipline.
<<not>> checked. costs to be paid in equal amounts prior to February 1 for the following membership years: (hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
ATTACHMENT TO STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: THOMAS A. BRACKEY II
CASE NUMBER: 06-0-10962
A. FACTS AND CONCLUSIONS OF LAW:
Respondent admits that the following facts are true and that he is culpable of violations of the specified Rule of Professional Conduct and Business & Professions Code sections.
WAIVER OF RIGHT TO FILING OF NOTICE OF DISCIPLINARY CHARGES:
The parties waive the right to the filing of a Notice of Disciplinary Charges and to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
06-0-10962
Facts:
On March 1, 1999, Respondent was employed by Ray Ferry to defend Ferry against a civil action brought against Ferry by his former business partner, plaintiff Forrest Ackerman. After a jury trial, judgment was awarded for Ackerman.
Following the trial, Respondent and Ferry discussed whether to appeal the adverse verdict. In light of Ferry’s financial constraints, Respondent and Ferry came to the following agreement: 1) Respondent would pursue the appeal with full cooperation of Ferry; 2) Ferry would incur no attorneys’ fees in connection with the appeal; 3) Ferry would "forego any financial interest in the outcome" thereof, and 4) Ferry would "relieve [Respondent] of any responsibility whatsoever associated with the prosecution, or defense" of any matter in the appeal. This agreement was memorialized in a letter to Ferry by Respondent dated May 18, 2000 and later signed by Ferry ("May 18 Agreement").
On February 28, 2001, a hearing was held in state trial court regarding Ferry’s compliance with certain post-trial orders, and Respondent was called as a witness. Counsel for Ackerman asked Respondent "Isn’t it the case ... that your firm will handle the appeal without charge to Mr. Ferry?" Respondent testified that Ferry’s appeal had been "assigned" to Respondent’s firm by Ferry, who had also relieved Respondent’s firm of potential malpractice exposure if the firm decided to dismiss the appeal at some point. Respondent’s testimony left the impression that the real party in interest on the appeal was his firm, and not Ferry.
The above testimony by Respondent, and the meaning of the May 18 Agreement, became issues in the appeal by Ferry of the adverse trial court judgment (as to whether Ferry had assigned away his standing to appeal) and in the subsequent bankruptcy proceeding filed by Ferry (as to whether that right to appeal was an asset of the bankruptcy estate improperly transferred). Respondent filed several declarations in which he explained that his description of the May 18 Agreement as an "assignment" by Ferry of his appellate rights had been inaccurate. The court ruled that Ferry retained standing to appeal. Ackerman then brought a motion for sanctions in the sum of the attorneys’ fees he had expended litigating those questions.
Following a four day evidentiary hearing on Ackerman’s sanctions motion, the Bankruptcy Court sanctioned Respondent in the sum of $29,166.50 for his contradictory statements to the court. Respondent appealed the sanctions to the 9th Circuit Court of Appeals, which upheld the Bankruptcy Court’s sanctions order on the ground that the Bankruptcy Court had not been shown to have abused its discretion. Respondent paid the sanctions but did not report them to the State Bar.
Legal Conclusions:
By seeking to absolve himself of "any responsibility whatsoever associated with the prosecution, or defense" of any matter in Ferry’s appeal, Respondent contracted with a client prospectively limiting his liability to the client for Respondent’s professional malpractice, in willful violation of Rules of Professional Conduct, rule 3-400(A). By not reporting the Bankruptcy Court sanctions to the State Bar, Respondent failed to report to the agency charged with attorney discipline, within 30 days of the time Respondent had knowledge of them, of the imposition of judicial sanctions against him, other than discovery sanctions, of at least $1,000, in willful violation of Business & Professions Code, section 6068(o).
AUTHORITIES SUPPORTING RECOMMENDED DISCIPLINE:
Standard 2.10 provides that "[c]ulpability of a member of a violation of any provision of the Business and Professions Code not specified in these standards or of a willful violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the harm, if any to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3."
Those purposes are "the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession." Standard 1.3.
SIGNATURE OF THE PARTIES
Case Number(s): 06-O-10962
In the Matter of: Thomas A. Brackey II
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: Thomas A. Brackey II
Date: 12/2/08
Respondent’s Counsel: Ellen A. Pansky
Date: 12/2/08
Deputy Trial Counsel: Timothy G. Byer
Date: 12/9/08
Case Number(s): 06-O-10962
In the Matter of: Thomas A. Brackey II
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 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Donald F. Miles
Date: 12/19/08
[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 Los Angeles, on December 23, 2008 I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING STAYED SUSPENSION; NO ACTUAL SUSPENSION
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:
ELLEN ANNE PANSKY
PANSKY & MARKLE
1010 SYCAMORE AVE #101
SOUTH PASADENA, CA 91030
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
TIMOTHY G. BYER, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on December 23, 2008.
Signed by:
Tammy Cleaver
Case Administrator
State Bar Court