Case Number(s): 12-O-17699, 13-N-16583
In the Matter of: Thaddeus Zigmund Wolny, Bar # 119113, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Suzan J. Anderson, Bar #160559,
Counsel for Respondent: Thaddeus Zigmund Wolny, Bar #119113,
Submitted to: Settlement Judge.
Filed: November 15, 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.
1. Respondent is a member of the State Bar of California, admitted October 7, 1985.
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):
<<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: two billing cycles from the effective date of the Supreme Court order. (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.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: THADDEUS ZIGMUND WOLNY, State Bar No. 119113
STATE BAR COURT CASE NUMBER: 12-O-17699; 13-N-16583
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-17699 (Complainant: Stephen Fryer)
FACTS:
1. On February 2, 2012, Stephen Fryer ("Fryer") employed Respondent to file and prosecute a bankruptcy petition. On that date, Fryer paid Respondent $500 in advanced fees.
2. On February 20, 2012, Fryer paid Respondent an additional $825 in advanced fees for a total of $1,325 in advanced legal fees.
3. From June 2012 through September 2012, Fryer called Respondent to inquire about the status of the bankruptcy petition, but was unable to contact Respondent or leave a message because Respondent’s voice mailbox was full. On October 1, 2012, Fryer sent an email to Respondent advising Respondent that he had attempted to call his office several times. Fryer asked that Respondent contact him regarding his bankruptcy matter and the filing date. Respondent received the email.
4. On October 17, 2012, after not hearing back from Respondent, Fryer sent an email to Respondent terminating Respondent’s legal services. Respondent received the email.
5. On October 20, 2012, Respondent responded to Fryer’s email stating that he had been "out of the area," and informed Fryer that he was entitled to a full refund of the advanced fees Fryer paid. Fryer responded that same day and asked Respondent to send the refund of his advanced fees to him by October 31, 2012. Respondent received Fryer’s email.
6. At no time did Respondent provide any legal services of value to Fryer with respect to his bankruptcy matter, or file and prosecute a bankruptcy petition on behalf of Fryer.
7. As of October 17, 2012, Respondent had not earned any of the advanced fees paid by Fryer. It was not until July 31, 2013, that Respondent refunded the $1,325 to Fryer.
8. On November 8, 2012, the State Bar opened an investigation, Case Number 12-O-17699, pursuant to a complaint made by Fryer against Respondent (’~the Fryer matter").
9. On May 23, 2013, the State Bar sent Respondent a letter regarding the allegations made by Fryer and asking Respondent to respond in writing to those allegations. Respondent received the letter, but failed to respond. It was not until July 12, 2013, that Respondent began participating in the State Bar proceedings.
CONCLUSIONS OF LAW:
10. By falling to provide any legal services of value to Fryer, including not filing and prosecuting a bankruptcy petition on behalf of Fryer, Respondent intentionally, recklessly, or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, rule 3-110(A).
11. By failing to refund any portion of the $1,325 in unearned fees paid by Fryer until July 31, 2013, Respondent failed to refund promptly any part of a fee paid in advance that had not been earned, in willful violation of Rules of Professional Conduct, rule 3-700(D)(2).
12. By falling to provide a written response to the State Bar’s correspondence of May 23, 2013, or otherwise cooperate in the investigation of the Fryer matter, Respondent failed to cooperate and participate in a disciplinary investigation pending against Respondent in willful violation of Business and Professions Code section 6068(i).
Case No. 13-N-16583
FACTS:
13. On July 10, 2013, the California Supreme Court issued and served Order No. $210429 (hereinafter "9.20 Order"). The 9.20 Order included a requirement that Respondent comply with Rule 9.20, California Rules of Court, by performing the acts specified in subdivisions (a) and (c) within 30 and 40 days, respectively, after the effective date of the 9.20 Order.
14. Respondent received the 9.20 Order.
15. The 9.20 Order became effective on August 9, 2013, thirty days after the 9.20 Order was filed. Respondent was ordered to comply with subdivisions (a) and/or (b) of Rule 9.20 of the California Rules of Court no later than September 8, 2013, and was ordered to comply with subdivision (c) of Rule 9.20, no later than September 18, 2013.
16. On September 26, 2013, Respondent filed a Rule 9.20 Compliance Declaration with State Bar Court. On October 2, 2013, the Office of Probation of the State Bar of California rejected Respondent’s Rule 9.20 Compliance Declaration.
17. On November 4, 2013, Respondent filed a second Rule 9.20 Compliance Declaration with State Bar Court, which was accepted by the Office of Probation.
CONCLUSIONS OF LAW:
18. By filing a declaration of compliance with Rule 9.20 on November 4, 2013, over one and a half months late, Respondent failed to timely comply with provisions of Supreme Court Order No. S210429 requiring compliance with Rule 9.20, California Rules of Court. By the foregoing conduct, Respondent willfully violated Rule 9.20, California Rules of Court.
AGGRAVATING CIRCUMSTANCES.
Prior Record of Discipline (Std. 1.2(b)(i)): In case number 11-O-16028, Respondent maintained an unjust action, committed an act of moral turpitude by attempting to mislead the bankruptcy court with material omissions and disobeyed the court’s sanction orders, failed to report the sanctions to the State Bar and failed to cooperate in the State Bar’s investigation. This misconduct arose out of Respondent’s representation of a client from May 2007 through December 2009.
Multiple Acts (Std. 1.2(b)(ii)): Respondent committed multiple acts of misconduct by failing to perform, failing to retired unearned fees, failing to cooperate in the State Bar investigation, and failing to timely file his Rule 9.20 Compliance Declaration.
Harm (Std. 1.2(b)(iv)): Respondent’s client, Stephen Fryer’s bankruptcy was not completed or filed and he was deprived of the use of $1,325 for approximately seventeen months, causing Fryer significant harm,
MITIGATING CIRCUMSTANCES.
Pretrial Stipulation: Respondent is entitled to mitigation for entering into a stipulation with the Office of the Chief Trial Counsel prior to trial, thereby saving the State Bar Court time and resources. Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079 [where mitigative credit was given for entering into a stipulation as to facts and culpability].)
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. (In 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 four 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.
Standard 2.6(a) and standard 1.7(a) are applicable in this matter. Standard 2.6(a), which applies to Respondent’s violation of section 6068(i) of the Business and Professions Code, provides that culpability; "shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3 ..."
Standard 1.7(a) is also applicable because Respondent has a prior record of discipline. Standard 1.7(a) provides that if a member is found culpable of misconduct and has a record of one prior imposition of discipline, the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior proceeding was remote in time and the offense was so minimal that imposing greater discipline in the current proceeding would be manifestly unjust. Respondent’s prior was not remote in time, the misconduct occurred from 2007 through the present with the failure to pay the court ordered sanctions. The offense was also not minimal, Respondent was found culpable of five acts of misconduct including moral turpitude for misrepresentations by omission to the bankruptcy court. Therefore, the standard requires greater discipline in this case than the 90-day actual suspension imposed in Respondent’s prior discipline.
In the current matter, Respondent failed to cooperate in the investigation of the State Bar, just as he did in his prior discipline~ Additionally, Respondent failed to render any services as expected and compensated for by the client, and the harm to the client was great - his bankruptcy was not completed or filed and he did not receive a refund of the unearned fees until ten months after Respondent admitted he was entitled to a refund.
As discussed above, there are several factors in aggravation - prior record of discipline, including the same Business and Professions Code section 6068(i) violation; substantial harm to the client; and multiple acts of misconduct. The only mitigation present is Respondent’s agreement to enter into this Stipulation, which is tempered by the fact that Respondent failed to participate in the State Bar investigation stage. Based on the gravity of the offense and harm to the client, a six-month actual suspension is appropriate.
King v. State Bar (1990) 52 Cal.3d 765, is instructive. In King, the attorney neglected two client matters even though the clients in both cases had urged him to act. The Court found that the attorney failed to competently perform the legal services for which he had been hired, withdrew from representing the clients without taking reasonable steps to avoid prejudice to those clients, and failed to promptly provide the clients with their files, and suspended the attorney for 90 days actual. The attorney had been practicing for over 30 years and did not have any prior discipline.
Although Respondent’s misconduct is limited to one client matter, he also violated rule 9.20. In addition, Respondent’s misconduct is aggravated by a prior record of discipline. Therefore, a higher level of discipline is warranted.
Additionally, California Rules of Court, Rule 9.20(d) provides that a suspended member’s willful failure to comply with the provisions of rule 9.20 of the California Rules of Court is cause for disbarment or suspension. Respondent was one and a half months late in complying with Rule 9.20, although Respondent attempted compliance by filing his first 9.20 Compliance Declaration which was subsequently rejected by the Office of Probation of the State Bar of California. Respondent has shortly thereafter filed his second Rule 9.20 Compliance Declaration which was accepted by the Office of Probation of the State Bar of California.
Disbarment is not always imposed or warranted in cases that involved significant evidence of mitigation and/or substantial compliance with rule 9.20. (See, Shapiro v. State Bar (1990) 51 Cal. 3d 251.) Also, In the Matter of Esau (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 131, 138; the Review Department found that recent cases resulting in discipline less than disbarment involved significant evidence in mitigation and/or substantial compliance with rule 9.20. In this matter, Respondent has substantially complied with rule 9.20, thus disbarment is not warranted.
Balancing all the appropriate factors, case law, and the standards, a six month actual suspension with a three-year probationary period serves the purposes of discipline as outlined in standard 1.3, and the protection of the public.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of 10/31/13, the estimated prosecution costs in this matter are $5,851. 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- 17699; 13-N- 16583
In the Matter of: THADDEUS ZIGMUND WOLNY
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: THADDEUS ZIGMUND WOLNY
Date: 11/4/13
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Suzan J. Anderson
Date: 11/5/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-O-17699, 13-N-16583
In the Matter of: THADDEUS ZIGMUND WOLNY,
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: Lucy Armendariz
Date: 11/15/13
DECLARATION OF SERVICE
by
U.S. FIRST-CLASS MAIL/U.S. CERTIFIED MAIL/OVERNIGHT DELIVERY/FACSIMILE-ELECTRONIC TRANSMISSION
CASE NUMBER(s): s): 12-O-17699; 13-N-165831
l, the undersigned, am over the age of eighteen (18) years and not a party to the within action, whose business address and place of employment is the State Bar of
California, 180 Howard Street, San Francisco, California 94105, declare that:
• on the date shown below, I caused to be served a true copy of the within document described as follows:
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
AND ORDER APPROVING ACTUAL SUSPENSION
checked. By U.S. First Class Mail: (CCP §§ 1013 and 1013(a))
<<not>> checked. By U.S. Certified Mail: (CCP §§ 1013 and 1013(a))
• in accordance with the practice of the State Bar of California for collection and processing of mail, I deposited or placed for collection and mailing in the City and County of Los Angeles.
<< not>> checked. By Overnight Delivery: (CCP §§ 1013(c) and 1013(d))
• I am readily familiar with the State Bar of California’s practice for collection and processing of correspondence for overnight delivery by the United Parcel Service (’UPS’).
<< not>> checked. By Fax Transmission: (CCP §§ 1013(e) and 1013(0)
• Based on agreement of the parties to accept service by fax transmission, I taxed the documents to the persons at the fax numbers listed herein below. No error was reported by the fax machine that I used. The original record of the fax transmission is retained on file and available upon request.
<< not>> checked. By Electronic Service: (CCP § 1010.6)
• Based on a court order or an agreement of the parties to accept service by electronic transmission, I caused the documents to be sent to the person (s) at the electronic addresses listed herein below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful.
checked. (for U.S. First- Class Mail) in a sealed envelope placed for collection and mailing at San Francisco, addressed to: (see below)
<<not>> checked. (for Certified Mail) in a sealed envelope placed for collection and mailing as certified mail, return receipt requested, Article No.: at Los Angeles, addressed to: (see below)
<<not>> checked. (for Overnight Delivery) together with a copy of this declaration, in an envelope, or package designated by UPS, Tracking No.: addressed to: (see below)
Person Served: Thaddeus Z. Wolny
Business-Residential Address: 2120 Railroad Ave. #103-175, Pittsburg, CA 94565
Fax Number:
Electronic Address:
Courtesy Copy to:
<< not>> checked. via inter-office mail regularly processed and maintained by the State Bar of California addressed to:
N/A
I am readily familiar with the State Bar of California’s practice for collection and processing of correspondence for mailing with the United States Postal Service, and overnight delivery by the United Parcel Service (’UPS’). In the ordinary course of the State Bar of California’s practice, correspondence collected and processed by the State Bar of California would be deposited with the United States Postal Service that same day, and for overnight delivery, deposited with delivery fees paid or provided for, with UPS that same day.
I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date on the envelope or package is more than one day after date of deposit for mailing contained in the affidavit.
I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed at , California, on the date shown below.
DATED: November 5, 2013
SIGNED BY: Meagan McGowan
Declarant
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 San Francisco, on November 15, 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 San Francisco, California, addressed as follows:
THADDEUS ZIGMUND WOLNY
LAW OFFICES OF TED WOLNY
2120 RAILROAD AVE # 103-175
PITTSBURG, CA 94565
<<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:
Suzan J. Anderson, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on November 15, 2013.
Signed by:
George Hue
Case Administrator
State Bar Court