Case Number(s): 07-J-11781-DFM; 07-J-12546; 07-J-12547
In the Matter of: Barry Nakell, Bar # 39298, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Eli D. Morgenstern, Bar # 190560,
Counsel for Respondent: In Pro Per, Bar #
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 23, 1966
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 15 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: three billing cycles following the effective date of the discipline herein. Please see pages 13 and 14 for additional discussion concerning costs. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.)
<<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.
SIGNATURE OF THE PARTIES
Case Number(s): 07-J-11781-DFM; 07-J-12546; 07-J-12547
In the Matter of: Barry Nakell
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: Barry Nakell
Date: October 24, 2007
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Eli D. Morgenstern
Date: October 30, 2007
Case Number(s): 07-J-11781-DFM; 07-J-12546; 07-J-12547
In the Matter of: Barry Nakell
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; or 3) Respondent is not accepted for participation in the Program or does not sign the Program Contract. (See rule 135(b) and 802(b); Rules of Procedure.)
Signed by:
Judge of the State Bar Court: Richard A. Platel
Date: October 31, 2007
NORTH CAROLINA
WAKE COUNTY
BEFORE THE DISCIPLINARY HEARING COMMISSION OF THE NORTH CAROLINA STATE BAR, 91 DHC 11
THE NORTH CAROLINA STATE BAR,
Plaintiff
vs.
BARRY DAVID NAKELL, ATTORNEY
Defendant
CONSENT ORDER
OF DISCIPLINE
This matter, coming before the undersigned Hearing Committee of the Disciplinary Hearing Commission of the North Carolina State Bar pursuant to section 14(H),(U), and (Y) of article IX of the Discipline & Disbarment Rules of the .N.C. State Bar; and it appearing that, following the presentation of the State Bar’s case and argument of the parties respecting the Defendant’s motion to dismiss the State Bar’s charges, that both parties have tendered to the Committee for consideration and the Committee has accepted the following disposition:
FINDINGS OF FACT
1. The Plaintiff, the North Carolina State Bar, is a body duly organized under the laws of North Carolina and is the proper party to bring this proceeding under the authority granted it in Chapter 84 of the General Statutes of North Carolina, and the Rules and Regulations of the North Carolina State Bar promulgated thereunder.
2. The Defendant, Barry David Nakell (hereafter, Nakell), was admitted to the North Carolina State Bar in 1979, and is, and was at all times referred to herein, an Attorney at Law licensed to practice in North Carolina, subject to the rules, regulations, and Rules of Professional Conduct of the North Carolina State Bar and the laws of the State of North Carolina.
3. During all of the periods referred to herein, Nakell was employed as a professor of law at the University of North Carolina School of Law in Chapel Hill.
4. On Jan. 31, 1989, Nakell filed a complaint in the United States District Court for the Eastern District of North Carolina on behalf of eight named plaintiffs, alleging that the defendants, who included a number of state and local officials, had deprived the plaintiffs of their constitutional rights. The plaintiffs in the 1989 federal civil rights action, who included Eddie Hatcher and Timothy Jacobs, sought injunctions against the alleged constitutional violations, damages and an order enjoining the criminal prosecution of Hatcher and Jacobs in state court.
5. On March 16, 1989, Nakell and his co-counsel filed an amended complaint in the 1989 federal civil rights action.
6. On April 24, 1989, Nakell filed a motion to dismiss the 1989 federal civil rights action with prejudice. The court granted the motion and entered an order of dismissal on May 2, 1989.
7. Six weeks later, the defendants in the civil rights action filed motions to impose sanctions against Nakell and his co-counsel pursuant to Rule ii the Federal Rules of Civil Procedure.
8. The federal court later granted the motion and imposed sanctions upon Nakell and his co-counsel pursuant to Rule ii. Portions of this matter are still on appeal.
9. On Jan. 6, 1991, Nakell intentionally removed a book valued at $11.95 from the premises of Archive Records in Carrboro without first paying for the book.
10. On Jan. 17, 1991, Nakell entered a guilty plea in Orange .County District Court to a charge of misdemeanor larceny respecting the Jan. 6 incident.
11. Hon. Stanley Peele entered a prayer for judgment continued in the case, and ordered Nakell .to pay $151 in court costs, contribute $100 to a charity, and to perform 75 hours of community service.
12. Nakell has successfully completed the terms of the prayer for judgment and the larceny charge has been dismissed.
13. In November 1989, while representing Hatcher on the state criminal charges in Robeson County Superior Court, Nakell was held in contempt of court. Nakell anticipates filing a petition for writ of certiorari regarding the contempt matter before the U.S. Supreme Court.
Based upon the foregoing Findings of Fact, the Committee enters the following
CONCLUSIONS OF LAW
As to Count One of the State Bar complaint:
1. The Hearing Committee does not find by clear, cogent, and convincing evidence that Nakell lacked a factual basis for alleging that Hatcher and Jacobs could not be subjected to prosecution in the state court criminal proceeding and for alleging that his clients may have been subjected to civil rights. violations at the time of the filing of the federal civil rights action.
2. The Hearing Committee does not find by clear, cogent, and convincing evidence that the civil rights claims regarding Hatcher and Jacobs were brought for an improper purpose.
3. The Hearing Committee finds by clear, cogent, and convincing evidence that Nakell did not have a sufficient legal basis to assert the civil rights actions regarding the various defendants and that his actions embarrassed state officials and may have affected the prosecution of a pending criminal action.
As to Count Two of the State Bar complaint
4. The Hearing Committee finds by clear, cogent and convincing evidence that by knowingly and intentionally removing a book from the premises of Archives Records without first paying for it, Nakell engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 1.2 (C).
Based upon the foregoing Findings of Fact and Conclusions of Law, the Committee hereby enters the following
ORDER OF DISCIPLINE
Based upon the Committee’s Findings of Facts and Conclusions of Law respecting the State Bar’s First Claim for Relief, it is hereby ordered:
1. The Hearing Committee considered the disposition of the Rule 11 proceeding in federal court and of the 1989 state court contempt proceeding and determined that no additional discipline is necessary or required as to that claim.
Based upon the Committee’s Findings of Facts and Conclusions of Law respecting the State Bar’s Second Claim for Relief, it is hereby ordered:
1. The license of Barry D. Nakell to practice law in the State of North Carolina is hereby suspended for one year. The suspension of the Defendant’s license is stayed for a period of four years from the effective date of the entry of the order herein, based upon the following conditions:
a. The Defendant shall violate no provisions of the Rules of Professional Conduct during the four year stay period.
b. The Defendant shall violate no laws of the State of North Carolina during the four year stay period.
c. The Defendant shall complete 45 hours of continuing legal education courses during four-year stay period. At least 23 hours of the CLE courses must be in the subject of ethics or professional responsibility and all courses must be offered by a sponsor approved by the Continuing Legal Education Department of the N.C. State Bar. The Defendant shall submit written proof of completion of the CLE courses to the Secretary of the N.C. State Bar no later than one week prior to the expiration of the four-year stay period.
d. The Defendant shall continue receiving psychological treatment until he provides to the Secretary of the N.C. State Bar a certificate from his treating physician terminating that treatment. He shall submit written certification to the Secretary of N.C. State Bar by December 31 of each year of the four year stay period indicating the compliance with the treatment plan.
e. The cost have been assessed pursuant to an agreement between the N.C. State Bar and the Defendant.
Signed by the Chairman for the Committee with the express consent of all members of the Disciplinary Hearing Committee and the parties.
This the 4th day of February, 1992.
Signed by:
Samuel Jerome Crow, Chairman
Disciplinary Hearing Committee
Seen and consented to:
Signed by:
Joseph B. Cheshire, V
Attorney for the Defendant
Signed by:
Barry D. Nakell
Defendant
Signed by:
Caroline D. Bakewell
Attorney for the Plaintiff
Signed by:
R. David Henderson
Attorney for the Plaintiff
The foregoing 4 pages are true and accurate copies of the original records of the N.C. State Bar. Signed by: Secretary N.C. State Bar.
NORTH CAROLINA
WAKE COUNTY
BEFORE GRIEVANCE COMMITTEE
OF THE
NORTH CAROLINA STATE BAR
96G1255
IN THE MATTER OF
BARRY NAKELL,
ATTORNEY AT LAW
CENSURE
On October 23, 1997, the Grievance Committee of the North Carolina State Bar met and considered the grievance filed against you by the North Carolina State Bar.
Pursuant to section .0113(a) of the Discipline and Disability Rules of the North Carolina State Bar, the Grievance Committee conducted a preliminary hearing. After considering the information available to it, including your response to the letter of notice, the Grievance Committee found probable cause. Probable cause is defined in the rules as "reasonable cause to believe that a member of the North Carolina State Bar is guilty of misconduct justifying disciplinary action."
The rules provide that after a finding of probable cause, the Grievance Committee may determine that the filing of a complaint and a hearing before the Disciplinary Hearing Commission are not required and the Grievance Committee may issue various levels of discipline depending upon the misconduct, the actual or potential injury caused, and any aggravating or mitigating factors. The Grievance Committee may issue an admonition, a reprimand, or a censure.
A censure is a written form of discipline more serious than a reprimand, issued in cases in which an attorney has violated one or more provisions of the Rules of Professional Conduct and has caused significant harm or potential significant harm to a client, the administration of justice, the profession or a member of the public, but the misconduct does not require suspension of the attorney’s license.
The Grievance Committee believes that a hearing before the Disciplinary Hearing Commission is not required in this case and issues this censure to you. As chairman of the Grievance Committee of the North Carolina State Bar, it is now my duty to issue this censure. I am certain that you will understand fully the spirit in which this duty is performed.
On October 1, 1996, you concealed a Triangle Dining Guide valued at $30 and $6 worth of deli food in your jacket at a Southern Season in Chapel Hill. You were charged with shoplifting in violation of N.C.G.S. Section 14-72.1. You admitted your responsibility for the offense and received a prior judgment continued. Your ongoing offense violated Rule 1.2(c) of the Rules of Professional Conduct.
The Grievance Committee was particularly concerned because this was your second shoplifting offense. However, the Grievance Committee weighed the severity of this second shoplifting offense against your 27 years of public service and your efforts to prevent future occurrences of this type of behavior by seeking therapy. The Committee also considered the fact that you had been discharged from your employment as a Law School professor as a penalty or sanction already imposed for your conduct. As a result of the weighing of these factors, the Committee determined that, rather than sending you to the Disciplinary Hearing Commission for a trial, this Censure was the appropriate sanction.
You are hereby censured by the North Carolina State Bar for your violation of the Rules of Professional Conduct. The Grievance Committee trusts that you will ponder this censure, recognize the error that you have made, and that you will never again allow yourself to depart from adherence to the high ethical standards of the legal profession. This censure should serve as a strong reminder and inducement for you to weigh carefully in the future your responsibility to the public, your clients, your fellow attorneys and the courts, to the end that you demean yourself as a respected member of the legal profession whose conduct may be relied upon without question.
In accordance with the policy adopted October 15, 1981 by the Council of the North Carolina State Bar regarding the taxing of the administrative and investigative costs to any attorney issued a censure by the Grievance Committee, the costs of this action in the amount of $50.00 are hereby taxed to you.
Done and ordered, this 20th day of December 1997.
Signed by:
T. Paul Messick, Jr., Chair Grievance Committee
The North Carolina State Bar
The foregoing 2 pages are true and accurate copies of the original records of the N.C. State Bar. Signed by: Secretary N.C. State Bar.
NORTH CAROLINA
WAKE COUNTY
BEFORE THE DISCIPLINARY HEARING COMMISSION
OF THE
NORTH CAROLINA STATE BAR
00 DHC 8
THE NORTH CAROLINA STATE BAR, Plaintiff
v.
BARRY NAKELL, Attorney, Defendant
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
ORDER OF. DISCIPLINE
This matter came on to be heard before a hearing committee of the Disciplinary Hearing Commission composed of Fred H. Moody, Jr., Chair; Joseph G. Maddrey; and Robert Hicks. James G. Exum, Jr. represented the Defendant, Barry Nakell. A. Root Edmonson represented the North Carolina State Bar. Based upon the pleadings and the stipulations contained in the pre-trial order, the hearing committee makes the following:
FINDINGS OF .FACT
1. The plaintiff, the North Carolina State Bar, is a body duly organized under the laws of North Carolina and is the proper party to bring this proceeding under the authority granted it in Chapter 84 of the General Statutes of North Carolina, and the Rules and Regulations of the North Carolina State Bar promulgated thereunder.
2. The defendant, Barry Nakell (hereinafter, "Nakell"), was admitted to the North Carolina State Bar on March 1, 19")9 and is, and was at all times referred to herein, an Attorney at Law licensed to practice in North Carolina, subject to the rules, regulations, and Rules of Profession.al Conduct of the North Carolina State Bar and the laws of the State of North Carolina.
3. During the times relevant to this complaint, Nakell actively engaged in the practice of law in the State of North Carolina and maintained a law office in the city of Chapel Hill, Orange County, North Carolina.
4. Nakell was properly served with process in this matter and is subject to the jurisdiction of the Disciplinary Hearing Commission.
5. On July 22, 1999, Nakell entered the Encore Bookstore in Albemarle, NC with a newspaper folded under his arm.
6. Nakell concealed a copy of the book, A Civil Action, under his newspaper and intentionally le~ the bookstore without paying for the book.
7. Nakell was subsequently charged with the misdemeanor crime of larceny for taking the book.
8. On November 22, 1999, Nakell entered a plea of guilty and was convicted of misdemeanor larceny in Starkly County District Court.
BASED UPON the foregoing Findings of Fact, the heating committee makes the following:
CONCLUSIONS OF LAW
1. All parties are properly before the hearing committee and the committee has jurisdiction over Nakell and the subject matter.
2. Nakell’s conduct, as set out above, constitutes grounds for discipline pursuant to N.C. Gen. Star. {} 84-28(a) & (b)(2) as follows: .
By intentionally concealing and taking away a copy of the book, A Civil Action, from the Encore Bookstore, Nakell committed a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in violation of Rule 8.4(b) and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c).
Based upon the foregoing Findings of Fact, the Conclusions of Law, the stipulations contained in the pre-trial order and the evidence presented at the hearing, the hearing committee hereby makes the following:
FINDINGS OF FACT REGARDING DISCIPLINE
1. On January 6, 1991, Nakell intentionally removed a book valued at $11.95 from the premises of Archive Records in Carrboro without paying for the book. on January 17, 1991 Nakell entered a plea of guilty to misdemeanor larceny in Orange County District Court and received a PJC. By order of the Disciplinary Hearing Commission in 91 DHC 11, Nakell received a one-year suspension of his license for this offense stayed for four years on certain conditions. Nakell complied with the conditions until the period of the suspension and stay terminated.
2. On October 1, 1996, Nakell concealed $6.00 worth of deli food in his jacket at A Southern Season in Chapel Hill. On January 16, 1997, Nakell entered a plea of guilty to the offense of shoplifting in Orange County District Court and received a PJC. Citing Nakell’s dismissal as a tenured professor at UNC School of Law as a penalty or sanction already imposed, Nakell received a Censure from the Grievance Committee of the North Carolina State Bar for this offense.
3. Nakell has suffered for many years from Dysthemic Disorder, a psychiatric condition that represents a low-grade chronic depression that impairs Nakell’s ability to deal appropriately with stressful situations. Nakell’s shoplifting incidents were a direct result of the dysthemia. Although Nakell received psychiatric treatment after both of his prior offenses, the treatments he previously received didn’t improve Nakell’s ability to understand the link between the stress in his life and his impulsive, inappropriate behavior or the signals that stress had built up and required an appropriate response to diffuse the stress.
4. Nakell began, treatment with Dr. Nathan R. Strahl in the fail of 2000. Dr. Strahl has been successful in getting Nakell to understand his illness and to recognize and deal appropriately with stress. Dr. Strahl’s prognosis is that Nakell has learned how to appropriately respond to stress and it is very unlikely that he will ever shoplift again.
5. In addition to his treatment with Dr. Strahl, Nakell has been involved in group therapy with the Lawyers Assistance Program since October 2001. Nakell’s participation in that therapy has been beneficial to Nakell and to those in the group.
6. Others have noticed positive changes in Nakell since he began treatment with Dr. Strahl that they had not noticed when he previously received treatment. Lunsford Long, the councilor from Nakell’s district, observed that Nakell’s demeanor has had a positive change and his concentration and affect have improved.
7. Nakell has voluntarily refrained from entering stores alone since his last incident.
8. Nakell’s misconduct was not related to his law practice.
9. Nakell has a long history of representing poor and disadvantaged clients in pursuit of cases that resulted in positive social change, He was instrumental, for example, in founding North Carolina Prisoner Legal Services and in helping to found North State Legal Services. Nakell has assisted many clients unable to afford legal representation on a pro-bono basis in ways that have brought credit to the legal profession.
10. Nakell voluntarily ceased taking on new client matters after the July 1999 incident except for a few pro-bono matters and one contingency fee matter.
11. Nakell’s misconduct is aggravated by the following factors:
(a) Prior disciplinary offenses;
(b) Criminal conduct;
(c) A pattern of misconduct;
(d) Substantial experience in the practice of law.
12. Nakell’s misconduct is mitigated by the following factors:
(a) Personal or emotional problems;
(b) Timely good faith efforts to rectify the consequences of his misconduct by seeking treatment from Dr. Strahl and cooperating with the Lawyers Assistance Program;
(c) Full and free disclosure to the hearing committee and cooperative attitude toward the proceedings;
(d) Good character and reputation, including support from the councilor and the Senior Resident Superior Court Judge from his district;
(e) Physical or mental disability or impairment that led to his misconduct;
(f) Interim rehabilitation; and
(g) Remorse.
BASED UPON the foregoing Findings of Fact Regarding Discipline and the arguments of the parties, the heating committee hereby enters the following:
ORDER OF DISCIPLINE
1. The license of the defendant, Barry Nakell, is suspended for four years.
2. The four-year suspension is stayed for five years on the following terms and conditions:
a. Nakell shall violate no federal or state laws (other than minor traffic offenses).
b. Nakell shall violate no provisions of the Revised Rules of Professional Conduct.
c. Nakell shall continue treatment with Dr. Nathan R. Strahl, or some other psychiatrist acceptable to the North Carolina State Bar, during the entire period the stay is in effect. Nakell shall follow all treatment recommendations made by the psychiatrist and shall direct the psychiatrist to report any failure to follow the psychiatrist’s treatment plan, and the specifics related thereto, to the Office of Counsel. Even if the psychiatrist concludes in the future that Nakell needs treatment less often, Nakell must continue to see the psychiatrist at least quarterly.
d. Nakell shall provide semi-annual reports to the Office of Counsel during the period of the stay, signed by Nakell and the psychiatrist, certifying that Nakell is in compliance with the terms and conditions of the above paragraph of this order. The reports shall be completed and transmitted to the Office of Counsel by each six-month anniversary of the date of this order.
e. Nakell shall enter into a contract with the Lawyer Assistance Program by June 1, 2002. Nakell shall comply with the terms of that contract. As a part of that contract, Nakell shall direct the Lawyer Assistance Program to report any failure to comply with the terms of this paragraph, and the Specifics related thereto, to the Office of Counsel.
f. Nakell shall pay the costs of this proceeding by June 1, 2002.
Signed by the chair with the consent of the other hearing committee members, this the 12th day of March, 2002.
Signed by:
Fred H. Moody, Jr., Chair
Hearing Committee
The foregoing 5 pages are true and accurate copies of the original records of the N.C. State Bar. Signed by: Secretary N.C. State Bar.
[Rule 62(b); Rules Proc.; Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on October 31, 2007, 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:
BARRY NAKELL, ESQ.
149 DIXIE DR
CHAPEL HILL, NC 27514
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ELI MORGENSTERN, ESQ., Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on October 31, 2007.
Signed by:
Rose M. Luthi
Case Administrator
State Bar Court