State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER
APPROVING
STAYED
SUSPENSION; NO ACTUAL SUSPENSION
Case Number(s): 13-O-11654
In the Matter of: LAWRENCE MARION OLEKSIEWICZ, Bar # 165752,
A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Kelsey J. Blevings, Bar # 271271
Counsel for Respondent: Arthur L. Margolis, Bar # 57703
Submitted to: Settlement Judge.
Filed: December 19, 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 September
15, 1993 .
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 10 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. Costs are added to membership fee for calendar year following
effective date of discipline.
checked. Costs
are to be paid in equal amounts prior to February 1 for the following
membership years: two billing cycles following 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.
B. Aggravating Circumstances [for definition, see Standards for
Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts
supporting aggravating circumstances are required.
<<not>> checked. (1) Prior
record of discipline [see standard 1.2(f)].
<<not>> checked. (a) State Bar Court case # of prior case .
<<not>> checked. (b) Date prior discipline effective
<<not>> checked. (c) Rules of Professional Conduct/ State
Bar Act violations:
<<not>> checked. (d) Degree of prior discipline
<<not>> checked. (e) If Respondent has two or more
incidents of prior discipline, use space provided below or a separate
attachment entitled “Prior Discipline. .
<<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.
<<not>> checked. (4) Harm:
Respondent's misconduct harmed significantly a client, the public or the
administration of justice.
<<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.
checked. (8) No aggravating
circumstances are involved.
Additional aggravating circumstances: .
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.
<<not>> checked. (5) Restitution:
Respondent paid $ on in restitution to without the threat or force of
disciplinary, civil or criminal proceedings.
<<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: No
Prior Discipline: (See attachment, p. 8.)
Prefiling Stipulation: (See attachment, p.
9.)
D. Discipline:
checked. (1) Stayed Suspension:
checked. (a) Respondent must be suspended from the
practice of law for a period of one year.
<<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 two years, which will commence upon
the effective date of the Supreme Court order in this matter. (See rule 9.18,
California Rules of Court.)
E. Additional Conditions of Probation:
checked. (1) During the probation
period, Respondent must comply with the provisions of the State Bar Act and
Rules of Professional Conduct.
checked. (2) 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. (3) 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. (4) 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. (5) 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. (6) 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.
checked. (7) 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.
<<not>> checked. No Ethics School recommended. Reason: .
<<not>> checked. (8) 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. (9) 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 within one year. 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: .
<<not>> checked. (2) Other
Conditions: .
Attachment language (if any): .
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: LAWRENCE MARION OLEKSIEWICZ, State Bar No. 165752
STATE BAR COURT CASE NUMBER: 13-O-11654
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.
Case No. 13-O-11654 (Complainant: Lisa Price)
FACTS:
1. On July 10, 2007, Mary E. Candler, an Arizona resident, passed away. The
Sun Valley Group, Inc. ("Sun Valley"), a private Arizona fiduciary,
was designated the personal representative of the Candler estate.
2. In October 2007, due to the fact the Candler estate had substantial real
property holdings in the State of California, Sun Valley hired Respondent to
open an ancillary probate proceeding in California and to dispose of or probate
the properties on behalf of the estate.
3. In July 2009, Jennifer Murray, a representative for Sun Valley,
requested that Respondent provide Sun Valley with a bill for his services.
4. On August 12, 2009, Respondent sent Sun Valley a bill for $9,000, which
he calculated using the statutory formula set forth in California Probate Code
section 10810.
5. On August 13, 2009, Murray sent Respondent a check for $9,000. The check
was drawn on funds of the Candler estate held in trust by Sun Valley.
Respondent deposited the check into his bank account.
6. At no time did the probate court specifically approve Respondent to
receive compensation for services as the attorney for the personal
representative of the estate, as required by California Probate Code section
10804.
7. On May 24, 2010, Sun Valley terminated Respondent’s employment prior to
the completion of the ancillary probate proceeding.
8. On August 28, 2012, Lisa Price, a representative for Entrust Fiduciary
Services, Inc., the successor personal representative of the Candler estate,
sent Respondent a letter requesting the return of the $9,000 fee due to the
lack of court approval of such fee. Respondent agreed to return the fee, but
claimed he was unable to do so because he did not have sufficient funds.
9. On January 30, 2013, Price made a complaint against Respondent to the
State Bar of California.
10. On April 16, 2013, after the State Bar had intervened, Respondent
returned the $9,000 to the Candler estate.
CONCLUSIONS OF LAW:
11. By charging and collecting $9,000 from the Candler estate as
compensation for his services as the attorney for the personal representative
of the estate without receiving court approval in violation of California
Probate Code section 10804, Respondent collected an illegal fee in willful
violation of the Rules of Professional Conduct, rule 4-200(A).
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
No Prior Discipline: At the time of the misconduct, Respondent had
practiced law for nearly 16 years without a prior record of discipline.
Respondent’s nearly 16-year discipline-free practice is a mitigating
circumstance. (See In the Matter of Riordan (Review Dept. 2007) 5 Cal. State
Bar Ct. Rptr. 41 [where mitigative credit was given for 17-year period of
discipline-free practice despite serious misconduct].)
Prefiling Stipulation: Respondent has voluntarily entered into this
stipulation and is entitled to receive mitigative credit for his early
admission of culpability and consent to the imposition of discipline. (See
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. (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. (ln re Naney (1990) 5 i 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.)
Here, Respondent charged and collected an illegal fee in violation of Rules
of Professional Conduct, rule 4-200(A), There is no standard that specifically
applies to an attorney’s collection of an illegal fee in violation Rules of
Professional Conduct, rule 4-200(A). Thus, standard 2.10 is applicable here.
Standard 2.10 states that culpability of an attorney of a violation of any
Rule of Professional Conduct not otherwise specified in the standards shall
result in reproval or suspension according to 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.
Respondent’s misconduct was serious because he collected a $9,000 fee which
he was not entitled to receive without court approval and refunded it only
after Price complained to the State Bar. However, Respondent’s misconduct was
isolated to a single client matter and did not result in irreparable harm to
the client. In mitigation, Respondent has accepted responsibility for his
misconduct by admitting to culpability and consenting to discipline prior to
the commencement of disciplinary proceedings. More importantly, at the time the
misconduct was committed, Respondent had a nearly 16-year record of
discipline-free of practice. In light of the totality of the facts and circumstances
surrounding Respondent’s professional misconduct, a one-year stayed suspension
and two years of probation, subject to the conditions herein, is appropriate
under the standards and will serve the purposes of attorney discipline as set
forth in standard 1.3.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has
informed respondent that as of October 21, 2013, the prosecution costs in this
matter are $2,925. 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.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion
of State Bar Ethics School. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 13-O-11654
In the Matter of: LAWRENCE MARION OLEKSIEWICZ
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: LAWRENCE MARION OLEKSIEWICZ
Date: 12/3/13
Respondent’s Counsel: ARTHUR L. MARGOLIS
Date: 12/5/13
Deputy Trial Counsel: KELSEY J. BLEVINGS
Date: 12/5/13
STAYED SUSPENSION ORDER
Case Number(s): 13-O-11654
In the Matter of: LAWRENCE MARION OLEKSIEWICZ
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 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: George E. Scott, Judge Pro Tem
Date: 12/18/13
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 December 19,
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:
ARTHUR LEWIS MARGOLIS
MARGOLIS & MARGOLIS LLP
2000 RIVERSIDE DR.
LOS ANGELES, CA 90039
<<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:
KELSEY BLEVINGS, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los
Angeles, California, on December 19, 2013.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court