Case Number(s): 04-O-10287; 04-O-13380; 05-O-04695
In the Matter of: Thomas Witte, Bar # 107542, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Erica Dennings, Bar # 145755
Counsel for Respondent: Steven A. Lewis, Bar # 63488
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
<<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 12, 1983.
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):
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: 2007 (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.
(1) Respondent was admired to the practice of law in California on January 12, 1983 and has no prior record of discipline.
(3) Respondent cooperated with the State Bar during the disciplinary proceedings.
(8), (9), (10) After several years of stress in the marriage, on April 1, 2000, respondent’s wife, who was the mother of his three children and who had been at home with the children until September 1999, left the three children (then 7, 13 and 14) and respondent for another man. Respondent’s wife’s abandonment of the family placed a great strain on respondent physically, emotionally, and financially. By September 2000, the three children were in three different schools (a high school, middle school and elementary school) with three different drop-off and pick-up times. At the same time, respondent was in the process of losing his home of 12 years to foreclosure, and was forced to leave the home in December 2000. As a result, respondent was forced to move with his three children to a rental property that was significantly farther from the three schools. While respondent theoretically could have placed the children in schools closer to his rental, he chose not to add the stress of new schools to what was already a difficult time for his children. Because of the financial problems that stemmed in part from his divorce, in August 2001, respondent was forced to file for bankruptcy. He originally filed a Chapter 13 reorganization, but in May 2002, he was forced to file a Chapter 7. At the same time, respondent had the further stress of his father’s final illness and death. In late May 2002, respondent left the area for several weeks to assist his mother while his father was dying. He stayed until his father’s death in June 2002. During the same time frame, respondent suffered complications from Crohn’s disease. He was hospitalized for two weeks in November 2002, and was on heavy medication until he had surgery in February 2003. He was hospitalized for approximately five days when he had the surgery, was released for
a week, and then re-hospitalized for another five days because of surgical complications.
All of the foregoing factors had a significant impact on respondent’s ability to work and to make money, and therefore had a connection to respondent’s misconduct in the Dominguez matter.
The mitigating factors that contributed to the misconduct have been overcome. Respondent has adjusted to the end of this marriage, his three children are now 13, 19, and 20, placing many fewer demands on his time, his health has improved, and he has been able to work thereby improving his financial position.
IN THE MATTER OF: Thomas M. Witte
CASE NUMBER(S): 04-0-10287, 04-0-13380, 05 -0-4695
FACTS AND CONCLUSIONS OF LAW.
Case number 04-0-10287 (Dominguez)
In or about September 1993 Sherrie Dominguez ("Dominguez") employed respondent to represent her in a wrongful death action arising out of the fatal shooting of her son approximately two months earlier. The fee agreement provided that respondent would receive 40 percent of all amounts recovered.
On or about March 6, 1995, the State of California filed a lien against any proceeds recovered in the Dominguez matter in the amount of $2890.44 for amounts paid to Dominguez through the victim’s assistance fund.
On or about April 14, 1995, The Bureau of Family Support of the Sacramento District Attorney’s Office filed a lien in the amount of $9,493.75 against the proceeds. The $9,493.75 represented the amount of child support owed by Dominguez from May 1987 through May 31, 1993 and including interest through March 31, 1995.
In or about 1995, the matter settled for $22,500.00 on behalf of Dominguez.
In or about December 1995, respondent disbursed $3,000.00 to Dominguez from her share of the settlement proceeds. Dominguez and respondent agreed that he would hold $8,000.00 in his client trust account ("CTA") pending resolution of the liens by the state victim’s assistance fund and the county bureau of family support.
The Victims of Violent Crimes lien was resolved without Dominguez paying anything. Respondent attempted to negotiate a reduction in the amount of child support, but was not successful.
Respondent told Dominguez that he had to keep the monies in his CTA until the lien was resolved. On or about August 28, 1998, and September 25, 2000, respondent made payments to the county totaling $983.25. During this period, Dominguez claims that she sent respondent, via facsimile, a copy of a wage and earnings withholding order from her employer and that she instructed respondent to satisfy the Bureau of Family Support lien. Respondent claims that he did not receive the withholding order or the instructions to satisfy the Bureau of Family Support lien. Instead, respondent paid Dominguez five payments during the next several months, totaling $900.00.
Dominguez paid off the bureau of family support lien by November 9, 2001. However, in or about May 2002, Dominguez received a notice from the United States Bankruptcy Court, Eastern District of California, in which respondent had filed a chapter 7 petition and listed her as a creditor. In the petition respondent characterized his debt to Dominguez as a personal loan in the amount of $8,000.00.
On or about January 23, 2004, Dominguez filed a complaint against respondent with the State Bar of California.
On or about February 25, 2004, after being notified of Dominguez’s complaint, respondent sent Dominguez a check for $8,000.00 from his CTA. Dominguez did not negotiate the check.
On or about February 7, 2006, respondent sent Dominguez a check in that amount of $8,694.16 representing $6,116.75 in principal and $2,577.41 in interest.
Conclusions of Law
By not disbursing Dominguez’s settlement funds as she requested for more than four years, respondent failed to promptly pay client funds in wilful violation of section 4-100(B)(4) of the Rules of Professional Conduct.
By not maintaining $6,116.75 on behalf of Dominguez in his CTA, respondent failed to maintain the balance of funds received for the benefit of a client in trust in wilful violation of rule 4-100(A) of the Rules of Professional Conduct.
By misappropriating $6,116.75 of Dominguez’s funds for his own use and benefit, respondent wilfully violated section 6106 of the Business and Professions Code.
By listing the $8,000 owed to Dominguez in his bankruptcy petition as a personal loan, when in fact the amount represented money respondent had misappropriated from Dominguez, respondent sought to mislead the judge or a judicial officer by a false statement of fact or law in wilful violation of section 6068(d) of the Business and Professions Code.
Case number 04-0-13380 (Stroh)
On or about August 2001 Marven Stroh ("Stroh") through his attorneys, Knox, Lemmon and Anapolsky, LLP ("KLA") filed an action against Stroh’s brother, Douglas. Marven Stroh v. Douglas Stroh, Sacramento County Superior Court case number 01AS05353. The case involved, inter alia, a dissolution of partnership and partition of real property.
In or about April 2003, KLA withdrew as Stroh’s attorney of record and on or about April 18, 2003, sued Stroh for attorney fees in the amount of $51,846.14. Knox, Lemmon and Anapolsky, LLP v. Marven Stroh, Sacramento County Superior Court case number 03AS02197.
On or about April 18, 2003, KLA filed an application for a pre-judgment writ of attachment in the KLA v. Stroh action on several pieces of property owned by Stroh, including the Cozy Villa property.
On or about May 30, 2003, the Court issued an order granting KLA the right to attach the property of Stroh.
Stroh then hired respondent both to represent him in the Stroh v. Stroh action and to defend him in the KLA v. Stroh action. Respondent agreed to represent Stroh for $10,000 in the Stroh v. Stroh matter, to be paid upon sale of the property, and agreed to accept one half of any amount by which respondent was able to reduce his bill from KLA in the KLA v. Stroh matter.
On or about June 2, 2003, Stroh filed an answer in the KLA action and simultaneously filed a cross complaint against KLA.
On or about October 6, 2003, the night before the trial in the Stroh v. Stroh matter commenced, respondent met with Stroh and demanded that he pay him $15,000 for representation (upon sale of the property) instead of the $10,000 already agreed upon. Respondent told Stroh the additional fees were required because, following the continuance of the trial, respondent expended substantial additional time on the case.
On or about February 4, 2004 the Judge in the Stroh v. Stroh action issued a tentative decision in which he ordered that the partnership properties be sold and the proceeds divided with the interests set forth in a previous interlocutory judgment. One of the properties owned by the partnership was Cozy Villa Mobile Home Park. Pursuant to the interlocutory judgment, real estate broker James Sullivan ("Sullivan") would handle the sale of Cozy Villa.
On or about June 10, 2004, the arbitrator in the KLA v. Stroh matter issued an award in the amount of $39,527.47 in favor of KLA against Stroh. The arbitrator denied the relief Stroh sought in a cross complaint.
On or about June 11, 2004, Stroh notified respondent that he would accept the award of the arbitrator in the KLA v. Stroh matter. He instructed respondent to contact KLA and Sullivan to facilitate the settlement of the KLA v. Stroh action and to facilitate removal of KLA’s attachment lien recorded against Cozy Villa so that escrow would close as scheduled on June 16, 2004.
On or about June 11, 2004, Stroh sent respondent a letter via facsimile in which he terminated his services in both the KLA v. Stroh and Stroh v. Stroh matters. Stroh terminated respondent because he was dissatisfied with the way he handled the trial, and because respondent had increased his fee from $10,000 to $15,000 the day before trial began.
On or about June 14, 2004, Stroh sent a letter to Tom Knox, one of plaintiffs in the KLA v. Stroh action, and informed him that he had terminated respondent, was now representing himself and that he was willing to pay the arbitration award to resolve the case. He asked that Knox reply immediately so that the funds could be released from escrow on the sale of the Cozy Villa property on June 15, 2004.
On or about June 14, 2004, Stroh sent another letter to respondent terminating his services, requesting that he file a substitution of attorney, and requesting that his files be prepared for him to pick up by June 16, 2004. Respondent did not return Stroh’s file.
On or about June 15, 2004, Stroh signed a settlement agreement with KLA.
On or about June 15, 2004, respondent sent a letter to Stroh in which he refused to substitute out of either case and contended that Stroh should allow him to negotiate with KLA to see if he could negotiate a lower amount. Respondent also indicated that he was entitled to at least $6,159.34 (half of $12,318.67-the difference between $51,846.14 and $39,527.47).
On or about June 17, 2004, respondent filed a notice of lien against Stroh on real estate escrow proceeds for the amount of $25,000. Respondent claimed Stroh owed him $25,000 in attorney’s fees for work on the Stroh v. Stroh matter.
On or about June 17, 2004, respondent filed a second notice of lien against Stroh on real estate escrow proceeds for the amount of $6,159.34. This amount represented the respondent’s fee in the KLA v. Stroh matter.
On or about July 8, 2004 respondent filed a Rejection of Arbitrator’s Award and Request for Trial de Novo as the attorney for Stroh. Stroh did not authorize respondent to file this document.
On or about September 27, 2004, respondent filed a complaint against Stroh, James Kaufman, and KLA to recover attorney fees he believed Stroh owed him. Thomas Witte v. Marven Stroh, James Kaufman, and KLA, Sacramento Superior Court case number 04AS03863.
On or about December 16, 2004, respondent appeared at a hearing on a motion in the Witte v. Stroh matter. At the hearing, respondent argued that he continued to be the attorney of record for Stroh after Stroh terminated him because he had not executed a substitution of attorney. Respondent continued by saying that he did not file a substitution of attorney form because he did not have time.
In the course of the Witte v. Stroh case, defendant James Kaufman served a deposition subpoena and for personal appearance and production of documents and things relating to respondent’s financial condition and assets. Respondent filed a motion for Protective Order and Motion Quashing Deposition Subpoena and Sanctions against James Kaufman.
On or about October 28, 2005 the court denied respondent’s motion and ordered him to appear for his order of examination on November 15, 2005 and to bring the documents identified in the deposition subpoena. Respondent failed to appear with the documents he was ordered to present.
On or about January 6, 2006, the court found respondent guilty of contempt in violation of section 1209(a) of the Code of Civil Procedure and sanctioned him in the amount of $1,000.00.
On or about January 13, 2006, respondent paid the $1,000 fine.
Conclusions of Law
By filing the rejection of arbitration award on Stroh’s behalf after Stroh had terminated his services, respondent wilfully and without authority appeared as Stroh’s attorney in wilful violation of section 6104 of the Business and Professions Code.
By not providing Stroh’s file when he requested it, respondent failed to promptly release the client file in wilful violation of role 3-700(D)(1) of the Rules of Professional Conduct.
By not providing documents as he was required to do by the October 28, 2005 order, respondent violated an order of the court requiring him to do or forbear an act connected with or in the course of Respondent’s profession which he ought in good faith to do or forbear in wilful violation of section 6103 of the Business and Professions Code.
By being held in contempt for violating a court order, respondent failed to support the Constitution and laws of the United States and of this state in wilful violation of section 6068(a) of the Business and Professions Code.
Case number 05-0-4695 (James)
Respondent represented Steven Leus, the administrator of the estate of Margaret Curtis in case number 02PR00818.
On or about August 10, 2005, respondent filed a Reply to Opposition to Petition on behalf of his client, Leus.
In the Reply to Opposition to Petition, respondent made comments that denigrated Judy Carver’s and Carolyn M. Young’s understanding of the law because they were women. Ms. Carver was the attorney for Ms. Young, special administrator of the estate of Margaret Curtis.
On or about September 7, 2005, respondent withdrew his reply.
Conclusions of Law
By making statements that were without basis and constituted unfounded personal attacks on interested parties, respondent failed to maintain the respect due to the courts of justice and judicial officers in wilful violation of section 6068(b) of the Business and Professions Code.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was April 24, 2006.
STATE BAR ETHICS SCHOOL.
Because respondent has agreed to attend State Bar Ethics School as part of this stipulation, respondent may receive Minimum Continuing Legal Education credit upon the satisfactory completion of State Bar Ethics School.
SIGNATURE OF THE PARTIES
Case Number(s): 04-0-10287; 04-O-13380; 05-0-04695
In the Matter of: Thomas Witte (#107542)
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: Thomas Witte
Date: 4-27-06
Respondent’s Counsel: Steven A. Lewis
Date: 4-27-06
Deputy Trial Counsel: Erica L.M. Dennings
Date: 3 May 2006
Case Number(s): 04-0-10287; 04-O-13380; 05-0-04695
In the Matter of: Thomas Witte
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:
<<not>>checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
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.
1. On page 2, under "Aggravating Circumstances," an "x" is inserted in the box next to paragraph B(8), indicating no aggravating circumstances are involved.
2. On page 5, under "Additional Conditions of Probation," the "x" is deleted in the box next to paragraph E(1). Respondent is required to satisfy standard 1.4(c)(ii) before he will be relieved from his actual suspension and the requirement is not conditional.
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.)
Signed by:
Judge of the State Bar Court: Joann M. Remke
Date: 6/2/06
[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 San Francisco, on June 2, 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 San Francisco, California, addressed as follows:
STEVEN ALLAN LEWIS
LEWIS & BACON
1050 FULTON AVE #125
SACRAMENTO, CA 95825
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ERICA DENNINGS, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on June 2, 2006.
Signed by:
Laine Silber
Case Administrator
State Bar Court