State Bar Court of California

Hearing Department

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING

PUBLIC REPROVAL

Case Number(s): 06-C-11570

In the Matter of: Bradley J. Bereznak, Bar # 138529, A Member of the State Bar of California, (Respondent).

Counsel For The State Bar: Manuel Jimenez, Bar # 218234

Counsel for Respondent: Jerome Fishkin, Bar # 47798

Submitted to: settlement judge State Bar Court Clerk’s Office San Francisco

Filed: October 4, 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.

A. Parties' Acknowledgments:

1. Respondent is a member of the State Bar of California, admitted December 9, 1988.

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 10 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. costs added to membership fee for calendar year following effective date of discipline (public reproval).

<<not>> checked. case ineligible for costs (private reproval).

checked. costs to be paid in equal amounts for the following membership years: See Attachment.  (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.

B. Aggravating Circumstances [for definition, see Standards for Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts supporting aggravating circumstances are required.

<<not>> checked. (1) Prior record of discipline [see standard 1.2(f)].

<<not>> checked. (a)          State Bar Court case # of prior case .

<<not>> checked. (b)          Date prior discipline effective .

<<not>> checked. (c)           Rules of Professional Conduct/ State Bar Act violations:

<<not>> checked. (d)          Degree of prior discipline  

<<not>> checked. (e)          If Respondent has two or more incidents of prior discipline, use space provided below or a separate attachment entitled “Prior Discipline”. .

<<not>> checked. (2) Dishonesty:  Respondent's misconduct was surrounded by or followed by bad faith, dishonesty, concealment, overreaching or other violations of the State Bar Act or Rules of Professional Conduct. 

<<not>> checked. (3) Trust Violation:  Trust funds or property were involved and Respondent refused or was unable to account to the client or person who was the object of the misconduct for improper conduct toward said funds or property.

<<not>> checked. (4) Harm:  Respondent's misconduct harmed significantly a client, the public or the administration of justice.

<<not>> checked. (5) Indifference:  Respondent demonstrated indifference toward rectification of or atonement for the consequences of his or her misconduct.

<<not>> checked. (6) Lack of Cooperation:  Respondent displayed a lack of candor and cooperation to victims of his/her misconduct or to the State Bar during disciplinary investigation or proceedings. 

<<not>> checked. (7) Multiple/Pattern of Misconduct:  Respondent's current misconduct evidences multiple acts of wrongdoing or demonstrates a pattern of misconduct.

 checked. (8)           No aggravating circumstances are involved.

Additional aggravating circumstances:

C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting mitigating circumstances are required.

 checked. (1)           No Prior Discipline:  Respondent has no prior record of discipline over many years of practice coupled with present misconduct which is not deemed serious.

<<not>> checked. (2) No Harm:  Respondent did not harm the client or person who was the object of the misconduct. 

<<not>> checked. (3) Candor/Cooperation:  Respondent displayed spontaneous candor and cooperation with the victims of his/her misconduct and to the State Bar during disciplinary investigation and proceedings. 

<<not>> checked. (4) Remorse:  Respondent promptly took objective steps spontaneously demonstrating remorse and recognition of the wrongdoing, which steps were designed to timely atone for any consequences of his/her misconduct. 

<<not>> checked. (5) Restitution:  Respondent paid $  on  in restitution to  without the threat or force of disciplinary, civil or criminal proceedings.

<<not>> checked. (6) Delay:  These disciplinary proceedings were excessively delayed.  The delay is not attributable to Respondent and the delay prejudiced him/her.

<<not>> checked. (7) Good Faith:  Respondent acted in good faith.

<<not>> checked. (8) Emotional/Physical Difficulties:  At the time of the stipulated act or acts of professional misconduct Respondent suffered extreme emotional difficulties or physical disabilities which expert testimony would establish was directly responsible for the misconduct.  The difficulties or disabilities were not the product of any illegal conduct by the member, such as illegal drug or substance abuse, and Respondent no longer suffers from such difficulties or disabilities.

<<not>> checked. (9) Severe Financial Stress:  At the time of the misconduct, Respondent suffered from severe financial stress which resulted from circumstances not reasonably foreseeable or which were beyond his/her control and which were directly responsible for the misconduct.

<<not>> checked. (10) Family Problems:  At the time of the misconduct, Respondent suffered extreme difficulties in his/her personal life which were other than emotional or physical in nature.

<<not>> checked. (11) Good Character:  Respondent's good character is attested to by a wide range of references in the legal and general communities who are aware of the full extent of his/her misconduct.

<<not>> checked. (12) Rehabilitation:  Considerable time has passed since the acts of professional misconduct occurred followed by convincing proof of subsequent rehabilitation.

<<not>> checked. (13) No mitigating circumstances are involved.

Additional mitigating circumstances: 

D. Discipline:

<<not>> checked. (1) Private reproval (check applicable conditions, if any, below):

<<not>> checked. (a) Approved by the Court prior to initiation of the State Bar Court proceedings (no public disclosure).

<<not>> checked. (b)Approved by the Court after initiation of the State Bar Court proceedings (public disclosure).

or

 checked. (2)           Public reproval (Check applicable conditions, if any below)

E. Conditions Attached to Reproval:

 checked. (1)           Respondent must comply with the conditions attached to the reproval for a period of One year.

 checked. (2)           During the condition period attached to the reproval, Respondent must comply with the provisions of the State Bar Act and Rules of Professional Conduct.

 checked. (3)           Within ten (10) days of any change, Respondent must 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"), 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.

 checked. (4)           Within thirty (30) days from the effective date of discipline, Respondent must contact the Office of Probation and schedule a meeting with Respondent's assigned probation deputy to discuss these terms and conditions of probation. Upon the direction of the Office of Probation, Respondent must meet with the probation deputy either in-person or by telephone. During the period of probation, Respondent must promptly meet with the probation deputy as directed and upon request.

 checked. (5)           Respondent must submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10 of the period of probation. Under penalty of perjury, Respondent must state whether Respondent has complied with the State Bar Act, the Rules of Professional Conduct, and all conditions of probation during the preceding calendar quarter. Respondent must also state whether there are any proceedings pending against him or her in the State Bar Court and if so, the case number and current status of that proceeding. If the first report would cover less than 30 days, that report must be submitted on the next quarter date, and cover the extended period.

In addition to all quarterly reports, a final report, containing the same information, is due no earlier than twenty (20) days before the last day of the period of probation and no later than the last day of the condition period.

<<not>> checked. (6) Respondent must be assigned a probation monitor. Respondent must promptly review the terms and conditions of probation with the probation monitor to establish a manner and schedule of compliance. During the period of probation, Respondent must furnish such reports as may be requested, in addition to the quarterly reports required to be submitted to the Office of Probation. Respondent must cooperate fully with the monitor.

<<not>> checked. (7) Subject to assertion of applicable privileges, Respondent must answer fully, promptly and truthfully any inquiries of the Office of Probation and any probation monitor assigned under these conditions which are directed to Respondent personally or in writing relating to whether Respondent is complying or has complied with the probation conditions.

 checked. (8)           Within one (1) year of the effective date of the discipline herein, Respondent must provide to the Office of Probation satisfactory proof of attendance at a session of the State Bar Ethics School, and passage of the test given at the end of that session.

<<not>> checked. No Ethics School recommended.  Reason:

 checked. (9)           Respondent must comply with all conditions of probation imposed in the underlying criminal matter and must so declare under penalty of perjury in conjunction with any quarterly report to be filed with the Office of Probation.

<<not>> checked. (10) Respondent must provide proof of passage of the Multistate Professional Responsibility Examination ("MPRE"), administered by the National Conference of Bar Examiners, to the Office of Probation within one year of the effective date of the reproval. 

 checked. No MPRE recommended.  Reason: The protection of the public and the interests of the attorney do not require passage of the MPRE in this case, pursuant to In the Matter of Respondent G (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 181

<<not>> checked. (11) The following conditions are attached hereto and incorporated:    

<<not>> checked. Substance Abuse Conditions.

<<not>> checked. Law Office Management Conditions.

<<not>> checked. Medical Conditions.

<<not>> checked. Financial Conditions.

F. Other Conditions Negotiated by the Parties:

ATTACHMENT TO

STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION

IN THE MATTER OF: BRADLEY J. BEREZNAK

CASE NUMBER(S): 06-C-11570

FACTS AND CONCLUSIONS OF LAW;

On October 24, 2005, respondent Bradley Bereznak plead nolo contendere to one count of violating Penal Code section 242/243(e).

PENDING PROCEEDINGS.

As of September 12, 2006, Respondent has no pending investigations/proceedings not resolved by this stipulation necessitating disclosure as required, on page one, paragraph A.(7).

COSTS OF DISCIPLINARY PROCEEDINGS.

Costs to be paid in equal amounts prior to February 1 for the following three (3) billing cycles following the effective date of the Supreme Court order. Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of September 12, 2006, the estimated prosecution costs in this matter are approximately $1,636.00. Respondent acknowledges that this figure is an estimate only and that it does not include State Bar Court costs which will be included in any final cost assessment. 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.

Standards

In determining the appropriate level of discipline, the court should look to the Standards for Professional Misconduct. In In re Morse (1995) 11 Cal.4th 184, 206, the California Supreme Court stated:

"To determine the appropriate level of discipline ... we... must first look to the standards for guidance. ’These guidelines are not binding on us, but they promote the consistent and uniform application of disciplinary measures. Hence we have said that ’we will not reject a recommendation arising from application of the standards unless we have grave doubts as to the propriety of the recommended discipline. (Citation Omitted.)’"

Case Law

The Court should look at case authority in determining the appropriate level of discipline to determine whether the discipline is consistent or disproportional to prior decisions on the same set of facts. (In re Morse, supra, 11 Cal.4th at pp. 207-208; Snyder v. State Bar (1990) 49 Cal.3d 1302, 1310-1311.) Similar cases can indicate appropriate discipline, ld.

In re Otto (1989) 48 Cal.3d 970: Respondent, with no prior discipline, was convicted on felony charges (later reduced to misdemeanors) of assault by means likely to produce great bodily injury and infliction of corporal punishment on a co-habitant of the opposite sex resulting in a traumatic condition. Respondent was suspended for two years, stayed, with a six month actual suspension.

AGGRAVATING CIRCUMSTANCES.

None.

MITIGATING CIRCUMSTANCES.

FACETS SUPPORTING MITIGATING CIRCUMSTANCES.

No Prior Discipline (Standard 1.2(e)(i)). Respondent was admitted to practice on December 9, 1988, and has no prior disciplinary record.

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.

Respondent admits that the following facts are tree and that he/she is culpable of violations of the specified statutes and/or Rules of Professional Conduct.

SIGNATURE OF THE PARTIES

Case Number(s): 06-C-11570

In the Matter of: Bradley J. Bereznak

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: Bradley J. Bereznak

Date: 9-15-06

Respondent’s Counsel: Jerome Fishkin

Date: 9-13-06

Deputy Trial Counsel: Manuel Jimenez

Date: 9-21-06

ORDER

Case Number(s): 06-C-11570

In the Matter of: Bradley J. Bereznak

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 REPROVAL IMPOSED.

checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.

<<not>> checked. All Hearing dates are vacated.

1. On page 7, Under Costs of Disciplinary Proceedings it must read that costs are to be paid in equal amounts for the following membership years:  2008, 2009 & 2010.

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.) 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: Pat McElroy

Date: October 4, 2006

CERTIFICATE OF SERVICE

[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 October 4, 2004, 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:

JEROME FISHKIN

369 PINE ST #627

SAN FRANCISCO, CA 94104

checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:

MANUEL JIMENEZ, Enforcement, San Francisco

I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on October 4, 2006.

Signed by:

Laine Silber

Case Administrator

State Bar Court