Case Number(s): 07-J-10059
In the Matter of: Thomas Wojciech Nawalany, Bar # 156420, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: William F. Stralka, Bar # 56147
Counsel for Respondent: Bar #
Submitted to: Assigned Judge State Bar Court Clerk’s Office Los Angeles
Filed: May 7, 2007
<<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 16, 1991.
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):
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.
If Respondent cannot attend the Ethics School given by the State Bar, he may substitute six hours of live ethics course(s) of approved continuing legal education, and provide the Office of Probation with satisfactory proof of attendance within six months of the effective date of the reproval.
IN THE MATTER OF: THOMAS WOJCIECH NAWALANY
CASE NUMBER(S): 07-J-10059
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(7), was March 21, 2007
AGREEMENTS AND WAIVERS PURSUANT TO BUSINESS AND PROFESSIONS CODE SECTION 6049.1.
1. Respondent’s culpability determined in the disciplinary proceeding in Oregon would warrant the imposition of discipline in the State of California under the laws or rules in effect in this State at the time the misconduct was committed; and
2. The proceeding in the above jurisdiction provided respondent with fundamental constitutional protection.
STIPULATION AS TO 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, or has otherwise committed acts of misconduct warranting discipline:
CASE NO. 07-J-10059:
Exhibits:
1. Copy Order Approving Stipulation for Discipline of Supreme Court of Oregon, Case no. 06-93, (1 page);
2. Copy of Stipulation for Discipline, case no. 06-93, (Oregon), (7 pages):
3. Copy of the Oregon Code of Professional Responsibility, (applicable to these proceedings), (2 pages).
Facts:
1. Lucy Wright (hereinafter "Wright") was a Ukrainian immigrant who came to the United States in the 1940’s. In 2001, Wright was about 93 years old. Wright received services from the Mid Willamette Valley Senior Services Department (hereinafter, "Senior Services"). Since about 1998, Wright demonstrated deterioration in her mental health, including paranoia and dementia, but continued to be able to reside in her own home.
2. On or about August 27, 2001, Wright was suffering from arterial fibrillation and congestive heart failure and was admitted to the hospital. On August 30, 2001, Wright was released from the Hospital. Senior Services placed Wright temporarily in an adult foster home operated by Ivan and Tamara Lemesko (hereinafter, collectively "Lemeskos") until such time as Wright gained sufficient strength to return home.
3. On September 7, 2001, Tamara Lemesko contacted the Respondent’s Portland law office and spoke with the Respondent’s assistant. Tamara Lemesko told the Respondent’s assistant that she needed someone to draft a will; that the testator wanted to leave her house to Tamara; and that time was of the essence. Tamara Lemesko did not disclose to the Respondent or his assistant that she was operating a care facility. The Respondent traveled from Portland to Salem that evening to meet with Wright. The Respondent had no previous relationship with and did not know either Wright or the Lemeskos.
4. The Respondent met with Wright the evening of September 7, 2001. The same evening, the Respondent prepared and Wright signed a will in which Wright bequeathed all of her possessions, including her home, to Tamara Lemesko. The Lemeskos 19 year old son was named in the will as the personal representative of Wright’s estate. The Respondent also prepared and Wright signed a durable general power of attorney in which the Lemeskos son was named Wright’s agent and attorney-in-fact.
5. The Respondent failed to make sufficient inquiry and to devote sufficient time with Wright to determine her mental state, the extent of her affairs, her relationships with the Lemeskos and their son, and living arrangements, before preparing and presenting the will and power of attorney to Wright and obtaining her signature on the documents. In addition, foster care providers were prohibited from accepting gifts from those persons in their care. The Respondent failed to use the requisite thoroughness and preparation reasonably necessary for the representation of Wright.
CONCLUSIONS OF LAW:
The Oregon Order approving Stipulation concluded that aforesaid conduct constituted a violation of DR 6-101 (A) [failure to provide competent representation] of the Oregon Code of Professional Responsibility.
Had Respondent’s misconduct occurred in California, his misconduct would have been a violation of Rules of Professional Conduct, rule 3-110(A).
AUTHORITIES SUPPORTING DISCIPLINE: STANDARDS FOR ATTORNEY SANCTIONS
To determine the appropriate level of discipline, the standards provide guidance. Drocialc v. State Bar (1991) 52 Cal.3d 1085, 1090; In the Matter of Sampson, (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 119, 134. A disciplinary recommendation must be consistent with the discipline in similar proceedings. See Snyder v. State Bar (1990) 49 Cal.3d d 1302, 1310-1311. Also, the recommended discipline must rest upon a balanced consideration of relevant factors. In the Matter of Sampson, (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 119, 135.
Pursuant to Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct:
The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the protection of public confidence in the legal profession.
Standard 2.4(b) calls for reproval or suspension for failing to perform services in an individual matter not demonstrating a pattern of misconduct, depending on the extent of the misconduct and the degree of harm to the client.
Standard 2.10 provides for reproval or suspension for violations of Business and Professions Code that are otherwise unspecified in the Standards (such as rule 3-110(A)).
In the Matter of Kaufman, (Review Dept. 2001) 4 Cal. State Bar Ct. Rptr. 213. In a proceeding under section 6049.1, the appropriate degree of discipline is not presumed by the other state’s discipline, but is open for determination in this state. (§6049.1, subd. (b) (1); In the Matter of Jenkins (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 157, 164.)
Where the extent of the misconduct is relatively small, and Respondent fully cooperated with the State Bar’s investigation, imposition of a reproval is warranted. In the matter of Respondent G (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 175 (private reproval imposed where violation was deemed minor incident of failure to perform services with competence which was followed by the respondent’s candor and cooperation). In this case the imposition of a public reproval complies with the standards and adequately protects the public and the profession.
COSTS OF DISCIPLINARY PROCEEDINGS:
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of March 13, 2006, the estimated prosecution costs in this matter are approximately $1,983.00. 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.
SIGNATURE OF THE PARTIES
Case Number(s): 07-J-10059
In the Matter of: Thomas Wojciech Nalawany
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 Wojciech Nawalany
Date: 4/10/07
Respondent’s Counsel:
Date:
Deputy Trial Counsel: William F. Stralka
Date: 4/16/07
Case Number(s): 07-J-10059
In the Matter of: Thomas Wojciech Nawalany
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.
<<not>> 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: Donald F. Miles
Date: 5/3/07
[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 May 7, 2007, 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:
THOMAS W. NAWALANY, ESQ.
5714 SE POWELL BLVD #B
PORTLAND OR 97206
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
WILLIAM STRALKA, ESQ., Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on May 7, 2007.
Signed by:
Rose M. Luthi
Case Administrator
State Bar Court