Case Number(s): 04-H-11844-RAP
In the Matter of: Leslie Walker VanAntwerp, III, Bar # 112696, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Diane J. Meyers, Bar # 146643
Counsel for Respondent: JoAnne Earls Robbins, Bar # 82352
Submitted to: assigned judge State Bar Court Clerk’s Office
Filed: March 30, 2006
<<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 January 13, 1984.
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 and order consist of 14 pages.
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. costs added to membership fee for calendar year following effective date of discipline.
<<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 282, 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.
Business and Professions Code sections 6068 (m) and 6068 (o) (2); rule 3-110 (A) of the Rules of Professional Conduct.
See attachment to stipulation at p. 10.
IN THE MATTER OF: LESLIE WALKER VAN ANTWERP III
CASE NUMBER(S): 04-H- 11844-RMT
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.
1. On or about March 6, 2003, Respondent entered into a Stipulation Re Facts, Conclusions of Law and Disposition ("Stipulation") with the State Bar of California in case numbers 01-O-04248 and 02-0-12099.
2. On or about March 13, 2003, the Hearing Department of the State Bar Court filed an order approving the Stipulation and imposing a public reproval with conditions set forth in the Stipulation ("reproval order").
3. On or about March 13, 2003, the reproval order was properly served by mail upon Respondent.
4. Pursuant to the March 13, 2003 reproval order, Respondent was ordered to comply with the following conditions for a period of one year:
a. to comply with the State Bar Act and Rules of Professional Conduct;
b. to 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"), within 10 days, 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;
c. to submit written quarterly reports to the Office of Probation each January 10, April 10, July 10 and October 10 of the condition period attached to the reproval, certifying under penalty of perjury whether he has complied with the State Bar Act, Rules of Professional Conduct, and all conditions of the reproval during the preceding calendar quarter and to file a final report containing the same information no earlier than twenty days prior to the expiration of the condition period attached to the reproval and no later than the last day of said period;
d. to pay restitution to Julian Estrada, or the Client Security Fund if appropriate, in the amount of $1,100, plus 10% interest per annum accruing from April 1, 2002 until paid in full, and provide proof of same to the Office of Probation within nine months of the effective date of the disciplinary order;
e. to attend State Bar Ethics School ("Ethics School"), pass the test given at the end, and provide satisfactory proof of same to the Office of Probation within one year of the effective date of the disciplinary order; and
f. to take and pass the Multistate Professional Responsibility Examination ("MPRE") and to provide satisfactory proof of same to the Office of Probation within one year of the effective date of the disciplinary order.
5. The March 13, 1003 reproval order became effective on April 3, 2003.
6. On or about April 28, 2003, Probation Deputy Eddie Esqueda ("Esqueda") of the Office of Probation sent a letter to Respondent in which he reminded Respondent of the terms and conditions of his reproval imposed pursuant to the reproval order. In the April 28, 2003 letter, Esqueda specifically advised Respondent regarding his obligations to file quarterly reports commencing July 10, 2003; submit proof of payment of restitution by January 3, 2004; submit proof of successful completion of Ethics School by April 3, 2004; and submit proof of successful passage of the MPRE by April 3, 2004. Enclosed with the April 28, 2003 letter to Respondent were, among other things, copies of the relevant portion of the Stipulation setting forth the conditions of Respondent’s reproval; an MPRE schedule/information sheet; a quarterly report instruction sheet; a quarterly report form specially tailored for Respondent to use in submitting his quarterly reports; and an information sheet regarding submitting proof of payment of restitution.
7. Respondent received the April 28, 2003 letter from Esqueda.
8. Respondent failed to timely file with the Office of Probation the quarterly reports that were due no later than July 10, 2003, October 10, 2003, and January 10, 2004. The quarterly report that was due no later than July 10, 2003 was not received by the Office of Probation until July 14, 2003. The quarterly report that was due no later than October 10, 2003 was not received by the Office of Probation until October 16, 2003. And, the quarterly report that was due no later than January 10, 2004 was not received by the Office of Probation until January 28, 2004.
9. Respondent failed to timely file with the Office of Probation the final report that was due no later than April 3, 2004. The final report was not received by the Office of Probation until April 12, 2004.
10. Although Respondent timely paid restitution to his former client, Julian Estrada, he failed to timely submit to the Office of Probation proof of having paid the restitution, which proof was due no later than January 3, 2004. Respondent did not provide to the Office of Probation satisfactory proof of said restitution until January 28, 2004.
11. Respondent failed to timely complete Ethics School and provide proof of same to the Office of Probation, which was to have been completed by April 3, 2004. Respondent tardily completed Ethics School on April 8, 2004.
12. Respondent failed to timely take and pass the MPRE and provide proof of same to the Office of Probation, which was to have been completed by April 3, 2004.
13. Respondent did take and pass the MPRE on August 13, 2004, which was the very next opportunity to do so.
Conclusions of Law
14. By failing to timely file the required quarterly reports and final report, failing to timely submit proof of payment of restitution, failing to timely complete Ethics School, and by failing to timely take and pass the MPRE and provide proof of same to the Office of Probation, Respondent failed to comply with the terms and conditions of the reproval order.
15. By failing to comply with the terms and conditions of the reproval order, Respondent wilfully violated rule 1-1 l 0 of the Rules of Professional Conduct.
The disclosure date referred to, on page one, paragraph A.(7), was March 16, 2006.
FACTS SUPPORTING AGGRAVATING CIRCUMSTANCES.
Multiple Acts of Misconduct
Respondent belatedly filed three quarterly reports, his final report, and proof of his restitution payment; and belatedly completed Ethics School and the MPRE.
ADDITIONAL MITIGATING CIRCUMSTANCES.
Respondent was cooperative with the State Bar during this proceeding and expressed remorse for his untimely compliance with the reproval conditions.
STATE BAR ETHICS SCHOOL EXCLUSION.
The protection of the public and the interest of justice does not require completion of Ethics School as Respondent attended Ethics School on April 8, 2004 and passed the test given. (See In the Matter of Johnson (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 193.)
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION EXCLUSION.
The protection of the public and the interest of justice does not require passage of the Multistate Professional Responsibility Examination as Respondent took and passed the August 13, 2004 MPRE. (See In the Matter of Carr (Review Dept.1992) 2 Cal. State Bar Ct. Rptr. 108, 119.)
AUTHORITIES SUPPORTING DISCIPLINE.
A. The Standards
Standard 1.3 provides that the primary purposes of disciplinary proceedings and imposing sanctions for professional misconduct are "the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys; mad the preservation of public confidence in the legal profession."
Standard 1.6(a) provides that the appropriate sanction for an act of professional misconduct shall be the sanction set forth in the standards for the particular misconduct found. If aggravating factors outweigh mitigating factors, a greater degree of discipline than the appropriate sanction shall be imposed or recommended. (Standard 1.6(b)(i).) If mitigating factors outweigh aggravating factors, a lesser degree of discipline than the appropriate sanction shall be imposed or recommended. (Standard 1.6(b)(ii).)
Standard 2.9 provides that culpability of a member of wilfully failing to comply with the terms and conditions of a reproval shall result in suspension.
Standard 1.7(a) provides that if a member is found culpable of misconduct and has a prior record of one 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 was remote in time and the offense for which it was imposed was so minimal that it would be manifestly unjust to impose greater discipline in the current proceeding.
The Supreme Court gives the Standards "great weight," and will reject a recommendation consistent with the Standards only where the Court entertains "grave doubts “as to its propriety. (In re Naney (1990) 51 Cal. 3d 186, 190; In re Silverton (2005) 36 Cal. 4~ 81, 91, 92.) Further, although the Standards are not mandatory, it is well established that the Standards may be deviated from only when there is a compelling, well-defined reason to do so. (See Aronin v. State Bar (1990) 52 Cal. 3d 276, 291; Bates v. State Bar (1990) 52 Cal. 3d 1056, 1060, fn. 2.)
B. The Case Law
1. Conroy v. State Bar (1990) 51 Cal. 3d 799.
Conroy failed to take and pass the Professional Responsibility Examination ("PRE") as a condition of a private reproval within one year of the effective date of the reproval. Conroy tardily took and passed the PRE at the next available opportunity, before the State Bar filed the reproval violation proceeding. Conroy defaulted at the Heating Department level and was found culpable of a wilful violation of rule 9-101 of the former Rules o f Professional Conduct, the precursor to rule 1-110 of the Rules of Professional Conduct.
The Supreme Court deemed Conroy’s belated passage of the PRE at the next available opportunity to be an "extenuating factor," but not "significant mitigation." In aggravation, the Court found that Conroy had the one prior private reproval; that he failed to appreciate the seriousness of the charges and the importance of participating in the State Bar proceedings by defaulting; and that by suggesting on review that his misconduct was a mere technical lapse, he had failed to show remorse for his misconduct. On balance, the Supreme Court concluded that aggravating circumstances significantly outweighed mitigating circumstances and imposed a one-year suspension from practice, stayed, with a one-year period of probation on terms and conditions including a sixty-day actual suspension.
2. In the Matter of Meyer (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 697. Meyer violated conditions attached to a private reproval by filing one probation report late, failing to file two other probation reports, and by not certifying his completion of six hours of continuing legal education. In aggravation, Meyer had two prior impositions of discipline (both private reprovals); committed multiple acts of misconduct; showed indifference toward rectification of his misconduct; and failed to cooperate in the proceedings by not filing a pretrial statement; failing to attend three pretrial hearings; and defaulting at the time of trial. There were no circumstances in mitigation. The Review Department concluded that Meyer’s misconduct called for a higher level of discipline than had been imposed by the Supreme Court in Conroy v. State Bar, supra, 51 Cal. 3d 799, and recommended the imposition of a two-year suspension from practice, execution stayed, and a three-year probation on terms and conditions including a 90-day actual suspension.
3. In the Matter of Stansbury (Review Dept. 2000) 4 Cat. State Bar Ct. Rptr. 103. Stansbury was publicly reproved in a matter in which he defaulted in the State Bar Court. Conditions attached to the reproval included Ethics School attendance and payment of restitution to a former client. Stansbury was alleged to have violated both the Ethics School and restitution conditions. He did not answer the notice of disciplinary charges, and his default was entered in the second case, as it had been in the first. The State Bar sought review of the Hearing Department’s default decision due to a disagreement with the Hearing Department’s application of the then recently enacted rule 205 of the Rules of Procedure of the State Bar. The Review Department conducted its review de novo, including the recommended discipline. The Review Department found in aggravation that Stansbury had a prior record of discipline and demonstrated a contemptuous attitude toward the disciplinary proceeding by allowing his default to be entered. The Review Department concluded that In the Matter of Meyer, supra, 3 Cal. State Bar Ct. Rptr. 697, provided an apt comparison and recommended the imposition of a two-year suspension from practice, stayed, with a 90-day actual suspension and until several ancillary conditions were met.
Conroy, Meyer and Stansbury are more egregious than the current case because they involve a defaulting and/or a non-cooperative attorney. Therefore, it is appropriate to impose less discipline in the current case than that imposed in Conroy, Meyer and Stansbury. The attorney in Meyer had two prior impositions of discipline and presented no mitigating factors. Here, Respondent has only one prior discipline and there are mitigating factors including his cooperation, remorse, his belated passage of the MPRE at the next opportunity; and his recognition of wrongdoing.
SIGNATURE OF THE PARTIES
Case Number(s): 04-H-11844
In the Matter of: Leslie Walker Van Antwerp, III
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.
Respondent: Leslie Walker Van Antwerp, III
Date: 17 March 2006
Respondent’s Counsel: JoAnne Earls Robbins
Date: March 20, 2006
Deputy Trial Counsel: Diane J. Meyers
Case Number(s): 04-H-11844
In the Matter of: Leslie Walker Van Antwerp, III
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 953 (a), California Rules of Court.)
Judge of the State Bar Court: Richard A. Platel
[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 March 30, 2006, 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:
Joanne Earls Robbins
Karpman & Associates
9200 Sunset Blvd PH #7
Los Angeles, CA 90069
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 30, 2006.
Johnnie Lee Smith
State Bar Court