State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION AND ORDER APPROVING
ACTUAL SUSPENSION
Case Number(s): 08-J-11151
In the Matter of: W. Iain Elder Levie, Bar # 152175, A
Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Gervi von Freymann, Bar # 97937,
Counsel for Respondent: In Pro Per, Bar #
Submitted to: State Bar Court Clerk’s Office Los Angeles.
Filed: November 12, 2008.
<<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 May 10,
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 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 5.130, Rules of Procedure.
<<not>> checked. Costs are to be
paid in equal amounts prior to February 1 for the following membership years: .
(Hardship, special circumstances or other good cause per rule 5.132, Rules of
Procedure.) If Respondent fails to pay any installment as described above, or
as may be modified by the State Bar Court, the remaining balance is due and
payable immediately.
<<not>> checked. Costs are waived
in part as set forth in a separate attachment entitled "Partial Waiver of
Costs".
<<not>> checked. Costs are
entirely waived.
B. Aggravating Circumstances [for definition, see Standards
for Attorney Sanctions for Professional Misconduct, standard 1.2(b)]. Facts
supporting aggravating circumstances are required.
checked. (1) Prior record of discipline [see standard 1.2(f)]
checked. (a) State Bar
Court case # of prior case 06-J-12385
checked. (b) Date prior
discipline effective February 22, 2008.
checked. (c) Rules of
Professional Conduct/ State Bar Act violations: RPC 4-100(A), B &P 6103,
6106.
checked. (d) Degree of
prior discipline 1 year actual suspension.
<<not>> checked. (e) If Respondent
has two or more incidents of prior discipline, use space provided below. .
<<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.
checked.
(4) Harm: Respondent's misconduct harmed significantly a client, the public or
the administration of justice. By commingling personal funds is his client
trust account, and using the account for personal expenses, Respondent put
client funds at risk.
<<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.
<<not>> checked. (8) No aggravating circumstances are
involved.
Additional aggravating circumstances: .
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
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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.
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checked. (2) No Harm: Respondent did not harm the client or person who was
the object of the misconduct.
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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.
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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.
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checked. (5) Restitution: Respondent paid $ on in restitution to without
the threat or force of disciplinary, civil or criminal proceedings.
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checked. (6) Delay: These disciplinary proceedings were excessively
delayed. The delay is not attributable to Respondent and the delay prejudiced
him/her.
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checked. (7) Good Faith: Respondent acted in good faith.
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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.
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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.
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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.
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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.
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checked. (12) Rehabilitation: Considerable time has passed since the acts of
professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
checked.
(13) No mitigating circumstances are involved.
Additional mitigating circumstances:
D.
Discipline:
checked. (1) Stayed Suspension:
checked.
(a) Respondent must be suspended from the practice of law for a period of two
years.
checked. i. and
until Respondent shows proof satisfactory to the State Bar Court of
rehabilitation and present fitness to practice and present learning and ability
in the law pursuant to standard 1.4(c)(ii) Standards for Attorney Sanctions for
Professional Misconduct.
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following: .
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checked. (b) The above-referenced suspension is stayed.
checked.
(2) Probation: Respondent must be placed on probation for a period of two
years, which will commence upon the effective date of the Supreme Court order
in this matter. (See rule 9.18, California Rules of Court.)
checked. (3) Actual Suspension:
checked.
(a) Respondent must be actually suspended from the practice of law in the State
of California for a period of 12 months.
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checked. i. and until Respondent shows proof satisfactory to the State Bar
Court of rehabilitation and present fitness to practice and present learning
and ability in the law pursuant to standard 1.4(c)(ii), Standards for Attorney
Sanctions for Professional Misconduct
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checked. ii. and until Respondent pays restitution as set forth in the
Financial Conditions form attached to this stipulation.
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checked. iii. and until Respondent does the following: .
E. Additional Conditions of Probation:
checked.
(1) If Respondent is actually suspended for two years or more,
he/she must remain actually suspended until he/she proves to the State Bar
Court his/her rehabilitation, fitness to practice, and learning and ability in
the general law, pursuant to standard 1.4(c)(ii), Standards for Attorney
Sanctions for Professional Misconduct.
checked.
(2) During the probation period, 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 probation.
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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 to the monitor 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 probation
monitor.
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.
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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 Ethics School, and passage of the test given
at the end of that session.
checked No Ethics School recommended. Reason: Respondent to comply with
conditions of probation, ethics requirements, in case no. 06-J-12385 effective
February 22. 2008.
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.
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checked. (10) 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:
<<not>> checked. (1) Multistate Professional
Responsibility Examination: 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 during the period of actual suspension or within one year, whichever
period is longer. Failure to pass the MPRE results in actual suspension
without further hearing until passage. But see rule 9.10(b), California Rules
of Court, and rule 5.162(A) & (E), Rules of Procedure.
checked. No MPRE recommended.
Reason: see page 6
checked. (2) Rule 9.20, California Rules of Court:
Respondent must comply with the requirements of rule 9.20, California Rules of
Court, and perform the acts specified in subdivisions (a) and (c) of that rule
within 30 and 40 calendar days, respectively, after the effective date of the
Supreme Court's Order in this matter.
<<not>> checked. (3) Conditional Rule 9.20, California
Rules of Court: If Respondent remains actually suspended for 90 days or more,
he/she must comply with the requirements of rule 9.20, California Rules of
Court, and perform the acts specified in subdivisions (a) and (c) of that rule
within 120 and 130 calendar days, respectively, after the effective date of the
Supreme Court's Order in this matter.
<<not>> checked. (4) Credit for Interim Suspension
[conviction referral cases only]: Respondent will be credited for the period
of his/her interim suspension toward the stipulated period of actual
suspension. Date of commencement of interim suspension: .
checked. (5) Other
Conditions:
State Bar Ethics School Substitution
Respondent
resides outside the United States and is unable to personally attend State Bar
Ethics School. As an alternative to Respondent personally attending Ethics
School, the parties agree that pursuant to the ’conditions’ language in the
Stipulation in case no. 06-J-12385, Respondent shall study the "Ethics
School Workbook" and complete the examination administered to the
attendees, within six months of the effective date of the Supreme Court order
[$158720] in case no. 08-J-12385. The completed test shall be provided to the
Office of Probation with his Quarterly Report covering the annual quarter in
which he completed the test. To facilitate reporting in the current matter,
Respondent shall provide a copy of the examination and Quarterly Report
previously submitted to the Probation Deputy in case 08-J-12385 to the assigned
Probation Deputy in case no. 08-J-11151. There shall be no MCLE credit awarded
to completion of this condition.
Client Trust Account Class Substitution
Respondent
resides outside the United States and is unable to personally attend the State
Bar’s Client Trust Account Class. As an alternative to Respondent personally
attending Client Trust Account Class, the parties agree that pursuant to the
’conditions’ language in the Stipulation in case no. 08-J-121385, Respondent
shall study the "Handbook on Client Trust Accounting for California
Attorneys" and shall complete the examination administered to the
attendees within six months of the effective date of the Supreme Court order
[$158720] in case 08-J-12385. The completed test shall be provided to the
Office of Probation with his Quarterly Report covering the annual quarter in
which he completed the test. To facilitate reporting in the current matter,
Respondent shall provide a copy of the examination and Quarterly Report
previously submitted to the Probation Deputy in case no. 08-J-12385 to the
assigned Probation Deputy in case no. 08-J-11151. There shall be no MCLE credit
awarded to completion of this condition.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
It
is recommended that Respondent not be required to take the Multistate
Professional Responsibility Examination ("MPRE") as he resides
outside the United States. The protection of the public and the interests of
the Respondent do not require passage of the MPRE in this case. See In the
Matter of Respondent G (Review Dept.1992) 2 Cal. State Bar Ct. Rptr. 181.
In
lieu of taking and passing the MPRE, Respondent shall complete six (6) hours of
MCLE courses in legal ethics, specifically in law office management in addition
to the 25 credits required during his reporting compliance period. Proof of
passage shall be provided to the Office of Probation with Respondent’s
Quarterly Report(s) in the annual quarter in which he completed the course(s).
Attachment language (if any):
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF
LAW AND DISPOSITION
IN THE MATTER OF: W. Iain Elder
Levie, State Bar No. 152175
STATE BAR COURT CASE NUMBER:
08-J-11151
PENDING
PROCEEDINGS.
The disclosure
date referred to on page one, paragraph A.(7) was on September 10, 2008.
COSTS OF
DISCIPLINARY PROCEEDINGS.
Respondent
acknowledges that the Office of the Chief Trial Counsel has informed Respondent
that as of May 12, 2008, the costs to be assessed in this matter are
approximately $1,983.00. Respondent further acknowledges that should this
stipulation be rejected or should relief from this stipulation be granted, the
costs in this matter may increase due to the cost of further proceedings.
AGREEMENTS
AND WAIVERS PURSUANT TO BUSINESS AND PROFESSIONS CODE SECTION 6049.1
1.
Respondent’s culpability determined in the disciplinary proceedings in the
State of 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
proceedings in the above jurisdiction provided Respondent with fundamental
constitutional protection.
FACTS AND
CONCLUSION OF LAW
Background:
The instant
proceeding is brought before the State Bar Court pursuant to Business and
Professions Code section 6049.1, having arisen out of a disciplinary action
brought against Respondent in the State of Oregon.
Respondent
admits that the following facts are true and that he is culpable of the
violation(s) of the specified statutes and Rules of Professional Conduct.
Respondent
was admitted to the practice of law in the State of Oregon in 1991. By order of
the Supreme Court of Oregon, Respondent was actually suspended from the
practice of law in the State of Oregon for a period of six months, effective,
May 7, 2008.
On February
21, 2008, Respondent entered into a Stipulation for Discipline pursuant to rule
3.6 ( c ) of the Oregon State Bar Rules of Procedure with the Oregon State Bar
through Disciplinary Counsel, Linn D. Davis in case nos. 07-23, 07-24.
Rule 3.6
Discipline by Consent
( c )
Stipulation for discipline. A stipulation for discipline shall be verified by
the accused and shall include:
i A statement
that the stipulation has been freely and voluntarily made by the accused;
ii A
statement that explains the particular facts and violations to which the Bar
and the accused are stipulating;
iii A
statement that the accused agrees to accept a designated form of discipline in
exchange for the stipulation;
iv A
statement of the accused’s prior record of reprimand, suspension or disbarment,
or absence of such a record.
On March 13,
2007, a Formal Complaint was filed against the accused by the Oregon Bar
Disciplinary Office alleging violation of RPC 1.15-1 (b) and RPC 8.4(a)(3).
RPC 1.15-1(b)
Safekeeping Property
A lawyer may
deposit the lawyer’s own funds in a lawyer trust account for the sole purpose
of paying bank service charges or meeting minimum balance requirements on that
account, but only in an Amount necessary for those purposes.
RPC 8.4
(a)(3)
(a) It is
unprofessional conduct for a lawyer to:
(3) engage in
conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects
adversely on the lawyer’s fitness to practice law.
The
Respondent and the Oregon Bar stipulated that from 2003 through on or about
April 16, 2006, Respondent deposited his own funds into his client trust
account and paid his personal or business obligations from that account.
Respondent maintained his personal funds in the trust account to avoid known
creditors. By maintaining the funds in the trust account, he was representing
that the funds belonged to others.
In reviewing
the roles and codes governing attorney conduct in California, the parties agree
that rule 4100(A)(1) and B & P code section 6106 are comparable to the
Oregon rules.
Conclusions
of Law:
1. By maintaining
personal funds in a client trust account from 2003 through April 16, 2006
Respondent willfully violated rule 4-100(A)(1) of the Rules of Professional
Conduct.
2. By
representing that funds belonging to him, belonged to others by maintaining those
funds in his client trust account, Respondent engaged in an act of dishonesty
in willful violation of Business and professions Code section 6106.
AUTHORITIES
SUPPORTING DISCIPLINE
Standard 2.2
(b)of the Standards for Attorney Sanctions for Professional Misconduct
(Standards) provides culpability of a member of commingling of entrusted funds
or property with personal property or the commission of another violation of
Rule 4-100, Rules of Professional conduct, none of which offenses result in the
willful misappropriation of entrusted funds or property shall result in at
least a three month actual suspension from the practice of law, irrespective of
mitigating circumstances.
Standard 1.7
(a) If a member is found culpable of professional misconduct in any proceeding
in which discipline may be imposed and the member has a record of one prior
imposition of discipline as defined by standard 1.2 (f), the degree of
discipline imposed in the current proceeding shall be greater than that imposed
in the prior proceeding unless the prior discipline imposed was so remote in
time to the current proceeding and the offense for which it was imposed was so
minimal in severity that imposing greater discipline in the current proceeding
would be manifestly unjust.
In the Matter
of Sklar (Review Dept. 1993) 2 Cal. State Bar Court Rptr. 602. Prior discipline
is always a proper factor in aggravation. However, because part of the
rationale for considering it is indicative of a recidivist attorney’s inability
to conform to ethical norms the aggravating force of prior discipline is
diminished if the misconduct occurred during the same period as the misconduct
in the prior matter. In this circumstance, it is appropriate to consider what
the discipline would have been if all the charged misconduct during the time
period had been brought as one case.
In the
instant case, although the misconduct charged by the Oregon Bar had ceased in
April 2006, one year prior to the filing of charges in the prior discipline,
the matter was not charged until one year later, in March 2007. The Oregon Bar
imposed the sanction of 6 months actual suspension, although the prior
imposition of discipline had resulted in a one year actual suspension.
SIGNATURE OF THE PARTIES
Case Number(s): 08-J-11151
In the Matter of: W. Iain Levie
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: W.
Iain Levie
Date: October
9, 2008
Respondent’s
Counsel:
Date:
Deputy Trial
Counsel: Geri Von Reymann
Date: October
10, 2008
ACTUAL SUSPENSION ORDER
Case Number(s): 08-J-11151
In the Matter of: W. Iain Levie
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:
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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.
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checked. All Hearing dates are vacated.
The
stipulation consists of 11 pages, not including the order. (see page 1)
The many
references to case no. 08-J-12385 on page 6 of the stipulation are amended to
refer to case no. 06-J-12385.
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 9.18(a), California Rules of Court.)
Signed by:
Judge of the
State Bar Court: Donald F. Miles
Date: November
3, 2008
CERTIFICATE OF SERVICE
[Rules Proc. of State Bar; Rule
5.27(B); 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 November 12, 2008, I
deposited a true copy of the following document(s):
STIPULATION
RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING ACTUAL
SUSPENSION
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:
W. IAIN ELDER LEVIE
THE STABLES WESTERTOWN
ROTHIENORMAN
INVERURIE, ABEROEENSHIRE
AB51 8US, SCOTLAND
checked. by interoffice mail through a
facility regularly maintained by the State Bar of California addressed as
follows:
GERI VON FREYMANN, Enforcement, Los
Angeles
I hereby
certify that the foregoing is true and correct. Executed in Los Angeles,
California, on November 12, 2008.
Signed by:
Tammy Cleaver
Case
Administrator
State Bar
Court