Case Number(s): 05-C-01856-JMR
In the Matter of: William Ernest Gnass, Bar # 50605, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Sherrie B. McLetchie, Bar # 85447
Counsel for Respondent: Timothy Aspinwall, Bar # 132506
Submitted to: Settlement Judge State Bar Court Clerk’s Office San Francisco
Filed: August 17, 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 5, 1972.
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. costs added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. case ineligible for costs (private reproval).
<<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.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
<<not>> checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
The Waterford City Council unanimously passed a resolution on July 7, 2006, whereby the City Council congratulates and recognizes William E. Gnass on his excellence, his many contributions to the City of Waterford and his indomitable spirit." This week of July 9, 2006, was by this resolution declared William E. Gnass Week in the City of Waterford.
The 1996 final report of the Stanislaus County Grand Jury found that respondent fully disclosed to the Waterford City Council his role as bond counsel to the public finance authorities and that there was no evidence of any conflict of interest. See ’Facts and Conclusions of Law," pages 7-8, infra."
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING,
1. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 951 of the California Rules of Court.
2 On February 22, 2005, by plea of nolo contendere, in People v, William Ernest Gnass, Stanislaus County Superior Court case number 1064714, respondent was convicted of three misdemeanor violations of Government Code sections 87100 and 91000 [using official position to influence a governmental decision], crimes which may or may not involve moral turpitude, Respondent was sentenced to 30 days in jail (with credit of 1 day), and placed on 36 months informal probation with conditions including that he not write any bond prospectuses while on probation, and pay a $100 fine.
3. Respondent paid the $100 fine and sewed the jail sentence by performing 19 days of legal services under the auspices of the Alternative Work Program in an office at the Waterford City Hall.
4. By order flied February 2, 2006, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department:
for a hearing and decision recommending the discipline to be imposed in the event that the Hearing Department finds that the facts and circumstances surrounding the misdemeanor violation of Government Code sections 87100 and 91000, of which William Ernest Gnass was convicted, involved moral turpitude or other misconduct warranting discipline.
FACTS AND CONCLUSION OF LAW.
Facts
1. Respondent functioned as the City Attorney for the City of Waterford since 1989. Flanagan, Mason, Robins, Gnass & Corman’s 1989 contract with the City of Waterford provided for respondent’s work as City Attorney for the City of Waterford and for work performed by other attorneys in the firm in the amount of $1,500 per month for up to 15 hours per month and $100 per hour of attorney time thereafter. The contract was amended or revised over the ensuing years providing for additional compensation at a higher hourly rate or contingent fee depending on the type of work being performed.
2. In 1990 the Waterford Public Finance Authority ("PFA") was formed. The members of the Waterford City Council also served as the members of the board of the Waterford PFA. Respondent was hired in 1990 as Authority Counsel for the Waterford PFA. From 1990 to 2006 respondent and other attorney-shareholders in and/or attorneys employed by Flanagan, Mason, Robbins, Gnass and Corman, and successor firm of Mason, Robbins, Gnass, and Browning provided legal services to the Waterford PFA. The firms were paid for work performed by the attorneys. The compensation varied based on the type of work performed, Compensation was either hourly or on a contingent fee basis.
3. According to Count 1 of the Second Amended Misdemeanor Complaint, filed February 22, 2005, in December 1995 respondent "knowing and with reason to know he had a financial interest, did knowingly and wilfully and unlawfully make and participate n making, and used and attempted to use his official position to influence a governmental decision, to wit; The Waterford Public Financing Authority joining the Sierra-Central Valley Public Financing Authority for the purpose of issuing bonds."
4, According to Count 2 of the Second Amended Misdemeanor Complaint, on or about January 2, 1996, respondent "knowing and with reason to know he had a financial interest, did knowingly and willfully and unlawfully make and participate in making, and used and attempted to use his official position to influence a governmental decision, to wit: The Waterford Public Financing Authority joining the California Commerce Public Financing Authority for the purpose of issuing bonds." (California Commerce Public Financing Authority did business, among other names, as “California Desert Public Financing Authority.” By billing dated February 26, 1997, Flanagan, Mason, Robins, Gnass & Corman billed California Desert Public Financing Authority for respondent’s services as “special counsel” in the amount of $24,000.)
5. According to Count 3 of the Second Amended Misdemeanor Complaint, on or about April 15, 1996, respondent knowing and with reason to know he had a financial interest, did knowingly and wilfully and unlawfully make and participate in making, and used and attempted to use his official position to influence a governmental decision, to wit: The Waterford Public Financing Authority joining the Rancho Lucerne Valley Public Financing Authority for the purpose of issuing bonds."
6. While respondent was City Attorney for City of Waterford, respondent’s firm, Flanagan, Mason, Robins, Gnass & Corman, was bond disclosure counsel for Sierra-Central Valley Public Financing Authority, California Commerce Public Financing Authority, Rancho Lucerne Valley Public Financing Authority. Although respondent’s firm was the named disclosure counsel, in fact, respondent was the primary attorney in his firm functioning as the bond disclosure counsel.
Conclusion of Law.
Based on the facts of this case, respondent’s violation of Government Code sections 87100 and 91000 did not involve moral turpitude, but did involve other misconduct warranting discipline.
PENDING PROCEEDINGS’
The disclosure date referred to on page one, paragraph A.(7) was July 11, 2006.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of July 11, 2006, the estimated prosecution costs in this matter are approximately $2,816. Respondent acknowledges that this figure is an estimate only, 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.
AUTHORITIES SUPPORTING DISCIPLINE,
The Standards for Attorney Sanctions for Professional Misconduct do not offer any guidance in cases involving crimes which may or may not involve moral turpitude, either inherently or in the facts and circumstances surrounding the crime’s commission. Standard 3.4 expressly refers to "part B of these standards," and standard 2.1 "Scope," the first standard in part B of the Standards, provides that:
This part shall pertain to the sanction to be imposed following offenses of professional misconduct of members found or acknowledged in original disciplinary proceedings, it shall exclude sanctions for misconduct following a member’s conviction of crime pursuant to sections 6101- 6102, Business and Profession Code, (Emphasis supplied.)
The State Bar has not been able to find published California Supreme Court or Review Department cases regarding attorney discipline based on violation of Government Code section 87100, However, in People v. Honig (1996) 48 CaI. App. 4th 289,340, fn. 23, that court stated that violation of section 87100 "would not even require a showing of the potential for personal benefit .... (Honig was convicted of violation of Government Code sections 1090 and 1097. Although Honig is a member of the State Bar of California, there is no published Review Department or Supreme Court opinion regarding Honig’s discipline as an attorney arising out of his criminal conviction.)
The State Bar does not contend that respondent’s criminal conduct involved moral turpitude, However, in misdemeanor conviction referral cases not involving moral turpitude, a public reproval is the commonly Imposed degree of discipline where there is a nexus between the attorney’s criminal conduct and the practice of law. Here, that nexus is clear.
FACT SUPPORTING MITIGATING CIRCUMSTANCES,
No Prior Discipline
Respondent was admitted on January 5, 1972. The criminal conduct of which he was convicted was not alleged to have commenced prior to December 1995. Thus, respondent had many (almost 24) years of practice without discipline.
Candor/Cooperation
Respondent displayed spontaneous candor and cooperation with the State Bar by promptly notifying the State Bar of his conviction and by entering into this stipulation.
Good Character
Respondent provided to the State Bar correspondence attesting to his good character.
Case Number(s): 05-C-01856-JMR
In the Matter of: William Ernest Gnass A Member of the State Bar
Business and Prof. Code § 6085.5 Disciplinary Charges; Pleas to Allegations
There are three kinds of pleas to the allegations of a Notice of Disciplinary Charges or other pleading which initiates a disciplinary proceeding against a member:
(a) Admission of culpability.
(b) Denial of culpability.
(c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere shall be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court shall find the member culpable. The legal effect of such a plea will be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based. (Added by Stats. 1996, ch. 1104.) (emphasis supplied)
Rule 133, Rules of Procedure of the State Bar of California STIPULATION AS TO FACTS, CONCLUSIONS OF LAW AND DISPOSITION
(a) A proposed stipulation to facts, conclusions of law, and disposition must set forth each of the following:
(5) a statement that Respondent either
(i) admits the facts set forth in the stipulation are true that he or she is culpable of violations of the specified statutes and/or Rules of Professional Conduct or
(ii) pleads nolo contendere to those facts and violations. If the Respondent pleas nolo contendere, the stipulation shall include each of the following:
(a) an acknowledgement that the Respondent completely understands that the plea of nolo contendere shall be considered the same as an admission of the stipulated facts and of his or her culpability of the statutes and/or Rules of Professional Conduct specified in the stipulation; and
(b) if requested by the Court, a statement by the Deputy trial counsel that the factual stipulations are supported by evidence obtained in the State Bar Investigation of the matter (emphasis supplied)
I, the Respondent in this matter, have read the applicable provisions of Business and Professions Code section 6085.5 and rule 133(a)(5) of the Rules of Procedure of the State Bar. I plead nolo contendere to the charges set forth in this stipulation and I completely understand that my plea will be considered the same as an admission of culpability except as stated in Business and Professions Code section 6085.5(c).
Signed by:
Respondent: William E. Gnass
Date: July 19, 2006
SIGNATURE OF THE PARTIES
Case Number(s): 05-C-01856-JMR
In the Matter of: William Ernest Gnass
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: William E. Gnass
Date: 7/18/06
Respondent’s Counsel: Timothy Aspinwall
Date: 7/20/06
Deputy Trial Counsel: Sherrie B. McLetchie
Date: July 21, 2006
Case Number(s): 05-C-01856-JMR
In the Matter of: William Ernest Gnass
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 REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
checked. All court dates in the Hearing Department 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 125(b), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Joann M. Remke
Date: 8/17/06
[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 August 17, 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:
ROBERT JOSEPH SULLIVAN
TIMOTHY J. ASPINWALL
NOSSAMAN GUTHER KNOX ET AL
915 L ST #1000
SACRAMENTO, CA 95814 -3701
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
SHERRIE MCLETCHIE, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on August 17, 2006.
Signed by:
Laine Silber
Case Administrator
State Bar Court