Case Number(s): Inv. No. 08-O-10722
In the Matter of: Jim Parsons Mahacek, A Member of the State Bar of California, (Respondent), Bar # 77268
Counsel For The State Bar: Kevin B. Taylor, Bar # 151715
Counsel for Respondent: Ellen A. Pansky Bar # 77688
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 21, 1977.
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 11 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 284, Rules of Procedure.
<<not>>checked. costs to be paid in equal amounts prior to February 1 for the following membership years: (hardship, special circumstances or other good cause per rule 284, Rules of Procedure.)
<<not>> checked. costs waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. costs entirely waived.
See page 9 of this Stipulation.
IN THE MATTER OF: Jim Parsons Mahacek, State Bar No. 77268
INVESTIGATION NUMBER: 08-O-10722
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 set forth below.
Facts
1. In or about March 1994, Respondent was hired by Mr. C, an attorney, and Mr. C’s law firm as an associate attorney. Respondent’s employment continued at Mr. C’s law firm until June 2007.
2. From late 1995 through mid-1999, Respondent represented Mr. C, personally, in a civil dispute and litigation.
3. As a result of Respondent’s representation of Mr. C, Respondent learned a secret about Mr. C from testimony submitted in arbitration and in publically filed documents filed by the opposing party in Superior Court and, subsequently, before the Court of Appeal. The secret consisted of the fact that Mr. C had suffered a criminal conviction in his youth. Respondent further learned that the opposing party intended to try to use that information against Mr. C in the litigation.
4. During the pendency of the litigation involving Mr. C, Mr. C and Respondent discussed the information disclosed by the opposing party in litigation, including the facts and circumstances surrounding Mr. C’s conviction. The discussion between Mr. C and Respondent included methods that might be employed to mitigate the information the opposing party had disclosed in the arbitration and subsequent state court proceedings.
5. At the time Mr. C discussed his secret with Respondent, Mr. C told Respondent that he wanted to take steps to prevent further public dissemination of the secret information.
6. At the time Mr. C discussed his secret with Respondent, Mr. C told Respondent that the information was to be kept confidential and not disclosed in the litigation unless disclosure became absolutely necessary.
7. Mr. C never authorized Respondent to disclose his secret in any other context.
8. On June 22, 2007, Respondent’s employment at Mr. C’s law firm was terminated. With the termination, a dispute arose between Respondent and Mr. C regarding Respondent’s final compensation.
9. The compensation dispute became very heated very quickly, Respondent and Mr. C exchanged strongly worded e-mail messages and the two quickly assumed a litigation posture. As a result of Respondent’s personal interest in the dispute, he experienced a great deal of emotion and animosity toward Mr. C.
10. In August 2007, attorney T. M. represented a client who had filed an unrelated lawsuit against Mr. C’s law firm.
11. On or about August 2, 2007, Respondent sent T. M. a message, via e-mail transmission, wherein Respondent stated to T. M.: "May I suggest, if you have not, that you serve [Mr. C] individually with the judicial form interrogatory that asks if he has ever been convicted of a felony? If he denies it, I think that I can point you to some great impeaching evidence. If you do take my suggestion, would you please extend me the courtesy of providing me with a copy of his verified answer?" T.M. received the e-mail message about the time it was sent.
12. At the time Respondent sent his August 2, 2007 e-mail message to T.M., T.M. had no knowledge of Mr. C’s criminal conviction or of any of the facts and circumstances surrounding same.
13. On or about September 27, 2007, Respondent sent T. M. another message, via e-mail transmission, wherein Respondent stated to T. M.: "I know that we talked about your trying this discovery tactic and seeing how [Mr. C] responded. Did you give it a shot and what happened?" T.M. received the e-mail message about the time it was sent.
14. In advising T. M. to ask Mr. C if he had ever been convicted of a felony, Respondent made an unauthorized disclosure to T. M. which would reasonably lead to the discovery of Mr. C’s secret.
15. On or about September 27, 2007, Mr. C’s law firm filed a law suit against Respondent in an attempt to resolve the issue of Respondent’s compensation. In or about August 2008, Respondent filed a cross-complaint in the matter.
16. From March 2008 to present, there has been an open State Bar investigation of Respondent’s conduct vis a vis Mr. C as a result of a complaint filed by Mr. C.
17. In April 2009, Mr. C and Respondent were negotiating a settlement of their compensation dispute. As the two neared a settlement, Respondent demanded as a condition of settlement, that Mr. C, who was the plaintiff in their litigation, withdraw, or bring to a stop, his State Bar disciplinary complaint against Respondent.
CONCLUSIONS OF LAW
18. By advising T. M. of how to learn of Mr. C’s secret criminal conviction, Respondent failed to maintain inviolate and preserve the secret of his former client in willful violation of Business and Professions Code, section 6068(e).
19. By seeking an agreement that Mr. C withdraw or stop his State Bar disciplinary complaint against Respondent as a condition of settling their litigation, Respondent sought an agreement that the plaintiff in a dispute withdraw a disciplinary complaint or refuse to cooperate with the disciplinary agency in willful violation of Business and Professions Code, section 6090.5.
ADDITIONAL FACTS
20. Respondent contends that when he sent his August and September 2007 e-mail messages to T.M., he had a good faith but erroneous belief that he was not improperly disclosing the secret of a former client because Mr. C’s conviction was a matter of public record.
21. Respondent’s misconduct in this matter does not reflect upon his legal competence as an appellate specialist.
MITIGATING CIRCUMSTANCES
Respondent has no record of prior discipline since being admitted to the practice of law in California on December 21, 1977.
Respondent recognizes and has acknowledged the wrongfulness of his conduct. Furthermore, he was cooperative with the State Bar in the resolution of this matter.
Additionally, Respondent has contributed significant time and effort in support of the State Bar and other community organizations. Respondent has served three years as a member of the State Bar Committee on the Appellate Courts. He has also served as a program chair and section chair of the Orange County Bar Association’s Appellate Section. Additionally, Respondent has acted as a guest lecturer and worked with the Orange County Girl Scouts.
DISCUSSION RE DISCIPLINE
Standard 1.3 of the Standards For Attorney Sanctions For Professional Misconduct provides guidance as to the imposition of discipline and interpretation of specific Standards. That Standard states that the primary purpose of discipline is the protection of the public, the courts and the legal profession.
Standard 2.6 provides that a violation of Business and Professions Code, section 6068(e) shall result in disbarment or suspension depending upon the gravity of the offense and the harm, if any, to the victim of the misconduct.
Standard 2.10 provides that a violation of a section of the Business and Professions Code not otherwise specified in the Standards, such as section 6090.5, shall result in reproval or suspension depending upon the gravity of the offense and the harm, if any, to the victim of the misconduct.
Here, Respondent’s misconduct involves his professional duty to protect the confidences and secrets of a former client and his obligation to not improperly interfere with State Bar disciplinary investigations. These factors dictate that discipline be imposed in this matter.
However, Respondent’s conduct, especially that involving his e-mail messages to T. M., occurred under unique and emotional circumstances which are not likely to reoccur. Furthermore, Respondent now recognizes the wrongfulness of his conduct. Respondent readily admits that he should not have allowed the emotion associated with being personally involved in a dispute distract him from his professional obligations.
These factors, along with Respondent’s 31 years of practice without discipline and other mitigation, suggest that Respondent is not likely to commit further misconduct in the future. Therefore, the Court need not impose discipline at the high end of the range provided for in Standard 2.6.
Given the above, the parties submit that the agreed upon 30 day actual suspension, with the agreed upon probationary conditions, is consistent with the Standards and will satisfactorily serve to protect the public.
PENDING PROCEEDINGS
The disclosure date referred to, on page one, paragraph A,(7), was January 12, 2010.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of January 12, 2010, the prosecution costs in this matter are approximately $2,000. 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): Inv No. 08-O-10722
In the Matter of: Jim Parsons Mahacek
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: Jim Parsons Mahacek
Date: 2/10/10
Respondent’s Counsel: Ellen A. Pansky
Date: 2/12/10
Deputy Trial Counsel: Kevin B. Taylor
Date: 2/12/10
Case Number(s): Inv. No. 08-O-10722
In the Matter of: Jim Parsons Mahacek
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 135(b), 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. Platel
Date: 02/22/10
[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 February 25, 2010, 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:
ELLEN ANNE PANSKY
PANSKY MARKLE HAM LLP
1010 SYCAMORE AVE UNIT 308
SOUTH PASADENA, CA 91030
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Kevin B. Taylor, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 25, 2010.
Signed by:
Johnnie Lee Smith
Case Administrator
State Bar Court