State Bar Court of California

Hearing Department

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

ACTUAL SUSPENSION

Case Number(s): 12-O-13006-RAP; 12-H-14484-RAP

In the Matter of: JACK KENNETH CONWAY, Bar # 45063, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Lee Ann Kern, Bar #156623,

Counsel for Respondent: Jack Kenneth Conway, Bar #45063,

Submitted to: Settlement Judge.

Filed: April 11, 2013.

<<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.

A.        Parties' Acknowledgments:

1.         Respondent is a member of the State Bar of California, admitted January 15, 1970.

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 12 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. 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.

<<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.

checked. (1) Prior record of discipline [see standard 1.2(f)]

checked. (a)     State Bar Court case # of prior case 08-O-11763 and 08-O-13360 .

checked. (b)    Date prior discipline effective February 8, 2011.

checked. (c)     Rules of Professional Conduct/ State Bar Act violations: Rule 3-110(A), Rules of Professional Conduct [Failure to Perform] and Business and Professions Code section 6103 [Failure to Obey a Court Order].

checked. (d)    Degree of prior discipline Private reproval

<<not>> checked. (e) If Respondent has two or more incidents of prior discipline, use space provided below. .

<<not>> 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.

<<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 Stipulation Attachment at Page 8.

<<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. 

<<not>> 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 Stipulation Attachment at Page 8.

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. 

checked. (5)    Restitution:  Respondent paid $ 1,100  on January 23, 2010  in restitution to Pasadena Physician’s Medical Group  without the threat or force of disciplinary, civil or criminal proceedings. proceedings. Respondent paid $6,625 on February 11, 2012, in partial restitution to Charles Young without the threat or force of disciplinary, civil or criminal proceedings.  See Stipulation Attachment at Page 8.

<<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: 

D. Discipline:

checked. (1)    Stayed Suspension:

checked. (a) Respondent must be suspended from the practice of law for a period of two years.

<<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: .

checked. (b) The above-referenced suspension is stayed.

checked. (2) Probation:  Respondent must be placed on probation for a period of three years, 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 two years.

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: .

E.         Additional Conditions of Probation:

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.

checked. (2)    During the probation period, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

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.

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.

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.

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.

checked. No Ethics School recommended. Reason: Respondent was ordered to attend Ethics School as a condition of his probation in his prior discipline in State Bar Case Nos. 08-0-11763 and 08-O- 13360. Respondent attended Ethics School on December 8, 2011, and passed the test given at the end of the session.

<<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:

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 9.20, California Rules of Court:  Respondent must comply with the requirements of rule 9.20, 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 9.20, California Rules of Court:  If Respondent remains actually suspended for 90 days or more, he/she must comply with the requirements of rule 9.20, 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:

Multistate Professional Responsibility Credit: Respondent was ordered to take the MPRE in connection with his prior discipline. Respondent took the MPRE in March 2012, but did not receive a passing score. Respondent is registered to take the MPRE on April 6, 2013. If Respondent successfully completes the MPRE within one year prior to the date of the discipline imposed from this stipulation, Respondent will have satisfied the requirement that he take and pass the MPRE within the period of his suspension. (See In the Matter of Trousil (Review Dept. 1991) 1 Cal, State Bar Ct. Rptr. 229, 244.)

Financial conditions Credit: Respondent voluntarily attended Client Trust Accounting School on December 9, 2011, and passed the test given at the end of the session. As such, completion of Client Trust Accounting School is not a condition required during his probation in the instant matter..

Attachment language (if any):.

ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

 

IN THE MATTER OF: Jack Kenneth Conway, State Bar No. 45063

STATE BAR COURT CASE NUMBER: 12-O-13006 and 12-H-14484

FACTS AND CONCLUSIONS OF LAW.

Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.

Case No. 12-O-13006 (Complainant: Charles Young)

FACTS:

1. On March 13, 2004, Charles Young ("Young") hired Respondent to represent him in a personal injury matter on a contingency fee basis in which Respondent was to be paid 33 1/3% of Young’s recovery in the matter.

2. In April 2007, Young’s personal injury matter settled for $15,000. Pursuant to the terms of the fee agreement, Respondent endorsed Young’s name to the settlement draft and on May 25, 2007, Respondent deposited the check into his client trust account at Bank of America ("CTA").

3. After subtracting Respondent’s $5,000 contingency fee and $373 in costs,  Respondent was required to maintain in his CTA the approximate sum of $9,627 for the benefit of Young and his medical provider, Pasadena Physicians Medical Group.

4. Between May 25, 2007 and February 29, 2008, the balance in Respondent’s CTA fell below $9,627 on repeated dates, including but not limited to the following: $7,541.41 on May 31, 2007; $386.81 on June 5, 2007; $5,083.33 on July 12, 2007; $850.78 on September 26, 2007; and, $71.87 on February 25, 2008.

5. Respondent dishonestly misappropriated approximately $9,555.13 that he received on behalf of Young.

6. On January 23, 2010, Respondent paid Pasadena Physicians Medical Group $1,100 in satisfaction of Young’s medical bill in his personal injury matter. After payment to Young’s medical provider, Young was owed $8,527 as his share of the settlement funds. On February 11, 2012, Respondent paid $6,625 to Young. Respondent made the payments in restitution prior to March 29, 2012, the date on which Young made his complaint to the State Bar.

7. On March 27, 2013, Respondent paid Young the remaining $1,902 he was owed from his settlement, plus 10% interest since May 2007, for a total of $3,043.20.

CONCLUSIONS OF LAW:

8. By not maintaining at least $9,627 received on behalf of Young in his CTA, Respondent failed to maintain the balance of funds received for the benefit of a client and deposited in a bank account labeled "Trust Account," "Client’s Funds Account" or words of similar import, in willful violation of rule 4-100(A), Rules of Professional Conduct.

9. By misappropriating approximately $9,555.13 he received on behalf of Young, Respondent committed an act involving moral turpitude, dishonesty or corruption, in willful violation of Business and Professions Code section 6106.

Case No. 12-H-14484 (Violation of Reproval Conditions)

FACTS:

10. On January 24, 2011, Respondent entered into a Stipulation Re Facts and Conclusions of Law ("Stipulation") with the Office of the Chief Trial Counsel of the State Bar of California in case numbers 08-O-11763 and 08-0-13660. In the Stipulation, among other things, Respondent agreed to comply with certain reproval conditions.

11. On January 24, 2011, the State Bar Court filed an order approving the Stipulation and imposing a private reproval with conditions as set forth in the Stipulation ("Reproval Order"), and properly served it by mail upon Respondent at his official membership records address at the time. Respondent received the Reproval Order.

12. The January 24, 2011 Reproval Order became effective 15 days after service of the order pursuant to rule 5.58 (E) and (F) of the Rules of Procedure of the State Bar Court of California, on February 8, 2011.

13. Pursuant to the January 24, 2011 Reproval Order, Respondent was ordered to comply with certain conditions of his reproval, including submitting to the Office of Probation written quarterly reports each January 10, April 10, July 10, and October 10 of each year during which the reproval is in effect and providing the Office of Probation satisfactory proof of passage of the Multistate Professional Responsibility Exam ("MPRE") not later than February 14, 2012.

14. On February 15, 2011, a probation deputy with the Office of Probation mailed a letter to Respondent at his membership records address and reminded Respondent of his obligations to provide timely quarterly reports and to provide timely proof of passage of the MPRE. Enclosed in the probation deputy’s letter were, among other things, copies of the relevant portion of the Reproval Order setting forth the conditions of Respondent’s reproval, a schedule of MPRE test dates and a specially tailored quarterly report form. Respondent received the probation deputy’s letter.

15. Respondent did not file his third quarterly report with Probation, covering the period of July 1 to September 30, 201.1, by the due date of October 10, 2011 ("third quarterly report"). Respondent filed his third quarterly report on October 11,2011.

16. Respondent did not file his fifth and final quarterly report with Probation, covering the period of January 1 to February 14, 2012, by the due date of February 14, 2012 ("fifth quarterly report"). Respondent filed his fifth quarterly report on February 23, 2012.

17. On February 1, 2012, the Hearing Department granted a motion by Respondent to extend time to take and pass the MPRE. The time within which Respondent was required to provide proof to the Office of Probation of passage of the MRPE was extended to May 2, 2012.

18. Respondent took the MPRE in March 2012, but did not receive a passing score. As such, Respondent did not submit to the Office of Probation proof of passage of the MPRE by the due date of May 2, 2012 or seek a further extension of time to take and pass the MPRE.

CONCLUSIONS OF LAW:

19. By failing to timely submit to the Office of Probation the third and fifth quarterly reports and by failing to provide the Office of Probation proof of passage of the MPRE, respondent willfully failed to comply with conditions attached to his public reproval, in willful violation of rule 1-110, Rules of Professional Conduct.

ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.

Prior Record of Discipline (Std. 1.20(b)(i)): In case nos. 08-O-11763 and 08-O-13360, Respondent stipulated to a private reproval for violating of Business and Professions Code section 6103  [Failing to Obey a Court Order] and rule 3-110(A), Rules of Professional Conduct [Failing to Perform]. The discipline was effective February 8, 2011.

Harm (Std. 1.2(b)(iv))." Young was deprived of $1,902 of his settlement funds, exclusive of interest, from May 2007 to March 27, 2013, which constitutes significant harm. (ln the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 993 [significant harm found in aggravation when attorney deprived client of her funds].)

ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.

Restitution: On January 23, 2010, Respondent paid $1,100 in restitution to Pasadena Physician’s Medical Group without the threat of disciplinary, civil or criminal  proceedings. On February 11, 2012, Respondent paid $6,625 in partial restitution to Charles Young without the threat or force of disciplinary, civil or criminal proceedings. Respondent paid full restitution to Pasadena Physician’s Medical Group and partial restitution to Young prior to Young’s complaint to the State Bar. This restitution merits some mitigating weight. (ln the Matter of Mapps (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 1, 13 [restitution made voluntarily and before commencement of disciplinary proceedings is entitled to consideration as mitigation].)

Additional Mitigating Circumstances:

Cooperation (Std. 1.2(e)(v)): Respondent stipulated to facts, conclusions of law, and disposition in order to resolve his disciplinary proceedings as efficiently as possible. (Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079 [mitigative credit given to the attorney for admitting facts and culpability in order to simplify the disciplinary proceedings against her].)

AUTHORITIES SUPPORTING DISCIPLINE.

The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipline" pursuant to a set of written principles to "better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to standards are to this source).) The primary purposes of disciplinary proceedings and of the sanctions imposed 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." (In re Morse (1995) 11 Cal.4th 184, 205; std.1.3.)

Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible" in determining level of discipline. (ln re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal.4th 205,220 and In re Young (1989) 49 Cal.3d 257, 267, fn, 11 .) Adherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (In re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)

Respondent admits to committing three acts of professional misconduct. Standard 1.6 (a) requires that where a Respondent acknowledges two or more acts of misconduct, and different sanctions are prescribed by the standards that apply to those acts, the sanction imposed shall be the more or most severe prescribed in the applicable standards. The most severe of all applicable sanctions is standard 2.2 (a), which applies to Respondent’s willful misappropriation of client funds, in violation of Business and Professions Code section 6106.

Standard 2.2 (a) states that culpability of a member of a willful misappropriation of entrusted funds or property shall result in disbarment. Only if the amount of funds or property misappropriated is insignificantly small or if the most compelling mitigating circumstances clearly predominate, shall disbarment not be imposed. Respondent misappropriated a significant amount of funds. (See Lawhorn v. State Bar (1987) 43 Cal.3d 1357, 1367-1368 [misappropriation of $1,355.75 deemed significant].) Nevertheless, disbarment is not always appropriate in misappropriation cases "[e]ven where the most compelling mitigating circumstances do not clearly predominate" (Kelly v. State Bar (1991) 53 Cal.3d 509, 518) or when a lesser sanction is adequate to deter future misconduct and protect the public. (Friedman v. State Bar (1990) 50 Cal.3d 235, 245.)

Although Respondent has a prior record of discipline, the prior misconduct occurred in 2008 after the misconduct in the instant matter concerning Young. In the prior disciplinary matter, Respondent was culpable of violating a court order in March 2008 by releasing two passports to his client and, in another client matter, failed to perform in summer 2008 by failing to resolve medical liens on a client’s personal injury settlement. Here, Respondent misappropriated Young’s funds between May 2007 and February 2008. Therefore, the weight of the prior record of discipline is diminished as an aggravating factor. (ln the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602.)

It is appropriate to analyze the level of discipline in the instant matter based on the totality of the prior and current misconduct and what discipline would have been appropriate had all misconduct been considered together. (Id., at p. 619.) In aggravation, Young was deprived of his funds for a significant period of time. In mitigation, Respondent made restitution to Young of the majority of the misappropriated funds before the date on which Young filed his State Bar complaint. Respondent also made restitution to Young’s medical provider before the date on which he filed his State Bar complaint. Respondent has cooperated with the State Bar by stipulating to facts, conclusions of law, and disposition in order to resolve his disciplinary proceedings as efficiently as possible. Prior to the misconduct in these cases, Respondent had 37 years in practice with no prior discipline. Considering the totality of his misconduct, and weighing the aggravating and mitigating factors, a lesser sanction than disbarment is adequate to deter future misconduct and protect the public.

An actual suspension of two years and until Respondent provides proof of rehabilitation is appropriate to meet the goals of discipline.

 The recommended disposition is consistent with the range of discipline shown by case law. (Boehme v. State Bar (1988) 47 Cal.3d 448, 455 [18 months’ actual suspension for attorney who misappropriated about $1,900; attorney had practiced 22 years with no prior discipline]; Weller v. State Bar (1989) 49 Cal.3d 670 [three years’ actual suspension for attorney who misappropriated over $7,600; attorney had record of two prior instances of misconduct, including for misappropriation of client funds]; Friedman v. State Bar, supra, 50 Cal.3d 235 [three years’ actual suspension for attorney who misappropriated over $17,000; attorney had practiced for 20 years with no prior discipline].)

PENDING PROCEEDINGS.

The disclosure date referred to, on page 2, paragraph A (7), was March 29, 2013.

COSTS OF DISCIPLINARY PROCEEDINGS.

Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of March 29, 2013, the prosecution costs in this matter are $3,360.16. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.

SIGNATURE OF THE PARTIES

Case Number(s): 12-O-13006-RAP; 12-H-14484-RAP

In the Matter of: Jack Kenneth Conway

 

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:  Jack Kenneth Conway

Date: 4/2/13

 

Respondent’s Counsel:

Date:

 

Deputy Trial Counsel: Lee Ann Kern

Date:4/2/13

ACTUAL SUSPENSION ORDER

Case Number(s): 12-O-13006-RAP; 12-H-14484-RAP

In the Matter of: Jack Kenneth Conway

 

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.

 

1.         On page 4 of the stipulation, the "X" in the box next to paragraph E.(1) is deleted; and

2.         On page 9 of the stipulation, numbered paragraph 19, "By failing timely submit to the Office of Probation the third and fifth quarterly reports and by failing provide" is deleted, and in its place is inserted "By failing to timely submit to the Office of Probation the third and fifth quarterly  reports and by failing to provide".

 

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: Richard A. Honn

Date: 4/8/13

CERTIFICATE OF SERVICE

[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 April 11, 2013, 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:

 JACK KENNETH CONWAY

2460 HUNTINGTON DR

SAN MARINO, CA 91108

 

<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:

 

<<not>> checked. by overnight mail at , California, addressed as follows:

 

<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.

 

<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:

 

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

 LEE KERN, Enforcement, Los Angeles

 

I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on April 11, 2013.

 

Signed by:

Angela Carpenter

Case Administrator

State Bar Court