Case Number(s): 10-O-03628, 10-O-09913-RAP
In the Matter of: Peter David Nitschke, Bar # 174123, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Jean Cha, Deputy Trial Counsel, 1149 S. Hill Street, Los Angeles, CA 90015, (213) 765-1000, Bar# 228137
Counsel for Respondent: Edward O. Lear, Century Law Group LLP, 5200 W Century Blvd, #345, Los Angeles, CA 90045, (310) 642-6900, Bar# 132699
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
<<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 13, 1994.
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."
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 are to be paid in equal amounts prior to February 1 for the following membership years: 2013, 2014 & 2015. (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: PETER DAVID NITSCHKE, State Bar No. 174123
STATE BAR COURT CASE NUMBER: 10-O-03628 & 10-O-09913
Respondent Peter Nitschke, admits the facts set forth in the stipulation are true and that he is culpable of violations of the specified statutes and Rules of Professional Conduct.
The Razumich Matter Case No. 10-O-03628
FACTS
1. Respondent was employed on January 23, 2009, by James Razumich ("Razumich") with regard to a claim against Farmers Insurance Group ("Farmers") and Fire Insurance Exchange ("Fire Insurance") under a homeowner’s insurance policy.
2. Between February 2009 and October 2009, Respondent failed to contact Razumich, despite numerous status inquiries from his client.
3. Respondent filed a lawsuit against Farmers and Fire Insurance on Razumich’s behalf on June 24, 2009 in the Los Angeles Superior Court, Central District, case no. BC 416351.
4. After eight months, Respondent contacted Razumich on October 8, 2009 by email recommending Razumich file a lawsuit against Farmers. However, at the time Respondent sent this email to Razumich, Respondent had already filed a lawsuit against Fire Insurance.
5. Thereafter, Respondent failed to contact Razumich from December 2009 through August 6, 2010, despite Razumich’s requests for a status update.
6. On August 6, 2010, Respondent finally contacted Razumich by letter and reestablished contact with Razumich.
7. In August 2010, Respondent represented to Frank Kurasz ("Kurasz"), counsel for Fire Insurance, that he had Razumich’s authority and consent to settle the matter for $6,500, when he did not. In early September 2010, the case was settled by Respondent for the sum of $6,500. Thereafter, Respondent failed to provide Fire Insurance with a signed release of all claims to finalize the settlement.
8. Respondent filed a dismissal with prejudice against Fire Insurance on October 26, 2010. Respondent did not advise his client of the dismissal.
9. Respondent did not inform Razumich that he had negotiated a settlement with attorney Kurasz until August 2011.
10. Respondent did not contact Razumich to obtain his signature on a release of all claims until August 13, 2011. In August 2011, Respondent advised Razumich that the $6,500 settlement offer from Fire Insurance was still good. The lapse in time and failure to promptly finalize the settlement with Fire Insurance resulted in Fire Insurance’s withdrawal of the settlement offer.
CONCLUSION OF LAW
11. By advising Kurasz that he had authority to settle the case when, in fact, Respondent knew or was grossly negligent in not knowing that Razumich had not yet authorized Respondent to accept a settlement of his claims and by representing to Razumich that the settlement offer was still good in August 2011, when he knew or should have known it had been withdrawn, Respondent acted with gross negligence in violation of Business and Professions Code section 6106.
12. By not keeping his client reasonably informed of significant developments in his case and failing to respond promptly to reasonable client inquiries, Respondent wilfully violated Business and Professions Code section 6068(m).
The Brinegar Matter 10-O-09913
FACTS
13. Respondent was employed on March 12, 2010 by Elva Brinegar ("Brinegar") to represent her with regard to her homeowner’s claim against State Farm Insurance for water damage.
14. From and after March 2010 until January 2011, Respondent failed to communicate with his client despite her attempts to contact him regarding the upcoming statute of limitations and status inquiries.
15. The statute of limitations to file a complaint against State Farm Insurance was January 19, 2011.
16. Brinegar subsequently filed a complaint with the State Bar of California. Thereafter, Brinegar was able to re-establish contact with Respondent. Respondent filed a lawsuit on January 19, 2011.
17. Since January 19, 2011, Brinegar has obtained new counsel and the matter is presently pending.
CONCLUSION OF LAW
18. By failing to communicate with Brinegar regarding her homeowner’s claim against State Farm Insurance and despite her efforts to contact him, Respondent failed to respond promptly to reasonable status inquiries of a client in a matter in which Respondent had agreed to provide legal services in wilful violation of Business and Professions Code section 6068(m).
DISMISSALS.
The parties respectfully request the Court dismiss one alleged violation from the NDC in the interest of justice:
Alleged Violation
Case No.: 10-O-03628, Count: Two, Alleged Violation: Section 6104, Business and Professions Code;
Case No.: 10-O-03628, Count: Four, Alleged Violation: Section 6106, Business and Professions Code;
Case No.: 10-O-09913, Count: Five, Alleged Violation: Rule 3-110(A), Rules of Professional Conduct
SUPPORTING AUTHORITY
The purpose of State Bar disciplinary proceedings is not to punish the attorney, but to protect the public, to preserve public confidence in the profession, and to maintain the highest possible professional standards for attorneys. (Chadwick v. State Bar (1989) 49 Cal.3d 103, 111; Cooper v. State Bar (1987) 43 Cal.3d 1016, 1025; Std. 1.3.)
The Standards for Attorney Sanctions for Professional Misconduct, Rules Proc. Of State Bar, Title IV, provides for reproval or suspension where a member is culpable of wilfully failing to communicate with a client. (Standards 1.6(a) & 2.4(b).)
The standards are guidelines (Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090; In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615,628) and are afforded great weight (In re Silverton (2005) 36 Cal.4th 81, 91-92) and are not applied in a talismanic fashion (In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 994). The determination of discipline involves an analysis of the standards on balance with any mitigation and aggravation. (Std. 1.6(b); Segal v. State Bar (1988) 44 Cal.3d 1077, 1089; Snyder v. State Bar (1990) 49 Cal.3d 1302, 1310-11.)
Here, thirty-days actual suspension, two-years stayed suspension, and three-years probation is sufficient to achieve the purposes of attorney discipline in light of the mitigating circumstances and many years in practice with no prior history of discipline.
PENDING PROCEEDINGS.
The disclosure date referred to on page two, paragraph A.(7), was January 24, 2012.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that he was informed that as of January 24, 2012, the estimated prosecution costs in this matter are approximately $4,161.00. Respondent acknowledges that this figure is an estimate only and that it might not include State Bar Court costs (see Bus. & Prof. Code section 6068.10(c)) or taxable costs (see C.C.P. section 1033.5(a)), which will be included in any final cost assessment. Respondent further acknowledges that if this stipulation is rejected or if relief from the stipulation is granted, the costs may increase due to further proceedings. Note that if Respondent fails to pay any installment of disciplinary costs within the time provided herein or as may be modified by the State Bar Court pursuant to section 6086.10, subdivision(c), the remaining balance of the costs is due and payable immediately unless relief has been granted under the Rules of Procedure of the State Bar of California (Rules Proc. of State Bar, rule 5.130 (old rule 286)). Payment of costs is enforceable as provided in Business and Professions Code section 6140.7 and as a money judgment.
Case Number(s): 10-O-03628 & 10-O-09913-RAP
In the Matter of: Peter D. Nitschke
checked. a. Unless Respondent has been terminated from the Lawyer Assistance Program (“LAP”) prior to respondent’s successful completion of the LAP, respondent must comply with all provisions and conditions of respondent’s Participation Agreement with the LAP and must provide an appropriate waiver authorizing the LAP to provide the Office of Probation and this court with information regarding the terms and conditions of respondent’s participation in the LAP and respondent’s compliance or non-compliance with LAP requirements. Revocation of the written waiver for release of LAP information is a violation of this condition. However, if respondent has successfully completed the LAP, respondent need not comply with this condition.
checked. b. Respondent must obtain psychiatric or psychological help/treatment from a duly licensed psychiatrist, psychologist, or clinical social worker at respondent’s own expense a minimum of ONE times per month and must furnish evidence to the Office of Probation that respondent is so complying with each quarterly report. Help/treatment should commence immediately, and in any event, no later than thirty (30) days after the effective date of the discipline in this matter. Treatment must continue for days or months or TWO years or until a motion to modify this condition is granted and that ruling becomes final.
If the treating psychiatrist, psychologist, or clinical social worker
determines that there has been a substantial change in respondent’s condition,
respondent or Office of the Chief Trial Counsel may file a motion for
modification of this condition with the Hearing Department of the State Bar
Court, pursuant to rule 5.300 of the Rules of Procedure of the State Bar. The
motion must be supported by a written statement from the psychiatrist,
psychologist, or clinical social worker, by affidavit or under penalty of perjury,
in support of the proposed modification.
checked. c. Upon the request of the Office of Probation, respondent must provide the Office of Probation with medical waivers and access to all of respondent’s medical records. Revocation of any medical waiver is a violation of this condition. Any medical records obtained by the Office of Probation are confidential and no information concerning them or their contents will be given to anyone except members of the Office of Probation, Office of the Chief Trial Counsel, and the State Bar Court, who are directly involved with maintaining, enforcing or adjudicating this condition.
Other:
Case Number(s): Pater D. Nitschke
In the Matter of: 10-O-03628 & 10-O-09913
a. Restitution
checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee: Elva Brinegar
Principal Amount: $3,000
Interest Accrues From: March 12, 2010
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than ONE YEAR.
SIGNATURE OF THE PARTIES
Case Number(s): Peter D. Nitschke
In the Matter of: 10-O-03628 & 10-O-09913-RAP
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: Peter D. Nitschke
Date: January 24, 2012
Respondent’s Counsel: Edward Lear
Date: January 24, 2012
Deputy Trial Counsel: Jean Cha
Date: January 24, 2012
Case Number(s): 10-O-03628 & 10-O-09913-RAP
In the Matter of: Peter D. Nitschke
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
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.
Page 4: The language under "Additional mitigating circumstances," is deleted, and in its place is inserted "Respondent has no prior record of discipline and was admitted as an attorney for more than 14 years prior to his first act of misconduct in this matter."
Page 9: The language immediately under "Dismissals," "one" is deleted, and in its place is inserted "three".
Page 11 (Medical Conditions form): Paragraph b, first paragraph, the words "after the effective date of the Supreme Court order imposing discipline in this matter" are inserted after "TWO years".
Page 12 (Financial Conditions form): The words "after the effective date of the Supreme Court order imposing discipline in this matter" are inserted after "ONE YEAR" in the language next to the second box under paragraph a.
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: Donald F. Miles
Date: February 1, 2012
[Rules Proc. of State Bar; Rule 5.27(B); 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 February 3, 2012, 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 Los Angeles, California, addressed as follows:
EDWARD O, LEAR
CENTURY LAW GROUP LLP
5200 W CENTURY BLVD #345
LOS ANGELES, CA 90045
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
JEAN CHA, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 3, 2012.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court