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2656 Version 1.100 Lawyerdude1989@yahoo.com 888 476 8954 Dlawyerdude@gmail.com Upgraded 12/27/07 This page is http://www.lawyerdude.8m.com/2656.html and http://www.lawyerdude.netfirms.com/2656.html
Full Text of Void California State Bar Opinion Purporting to Disbar Lawyerdude.
June 7, 1995.
Related pages:
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This 2656 state bar opinion in pdf format: http://www.circuitlawyer.8m.com/5452.pdf
On May 2, 1995, this same guy issued a previous opinion: I must upload this.
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Table of Contents:
Analysis by Lawyerdude: List of cases cited herein:
List of Scholarly Treatises cited by Palaschak herein:
The Opinion of the state bar pseudo judge
Footnotes and annotations by Palaschak and the court:
Lawyerdude’s rebuttal to suspension converted retroactively into disbarment.
List of Cases/ Authorities Cited by Palaschak herein:
Cases cited by the state bar’s pseudo administrative law Judge Wesley:
Analysis by Lawyerdude: List of cases cited herein:
State v Adkins 40 Ohio App 2d 473. Act or behavior that gravely violates moral sentiment or accepted moral standard of
community and is morally culpable quality held to be present in some criminal offenses as distinguished from others.
1
List of Scholarly Treatises cited by Palaschak herein:
99 ALR3d 288 Narcotic convictions as moral turpitude regarding disbarment. 1
LSD and Freedom of Religion, University of San Francisco Law Review 1:131 (Oct 1966) 18 pages 1
The Opinion of the state bar pseudo judge:
Void Opinion of pseudo Administrative Law judge David Wesley Purporting to Disbar Palaschak for having performed bankruptcies while fully licensed by the U.S. Bankruptcy Court.
Filed June 7, 1995. Opened in the mail by Palaschak in shock at 11:35 on 22 June 1995.
In the Matter of: Bar No. 116708, A Member of the State Bar. Case # 94-0-10737-D8W
DECISION
The above captioned matter came before Judge David S. Wesley for hearing(4) on November 16, 1994, at the State Bar Court in Los Angeles, Charles Weinstein, Deputy Trial Counsel, appeared for the State Bar of California Office of Trials. Respondent, Douglas Andrew Palaschak ("Respondent") did not appear in person or by counsel at the hearing.
For the reasons stated below, this Court recommends that Respondent be disbarred from the practice of law in the State of California.
Procedural Background
The proceeding was initiated by the filing of a Notice to Show Cause (''NTSC') on July 08, 1994. On July 12, 1994, the NTSC was served on Respondent, by certified mail, directed to Respondent at the address he then maintained with the State Bar of California pursuant to Business and Professions Code section 6002.1(a)(5)
("official address"). Respondent did not file an answer to the Notice. The Office of Trials filed a Notice of Application to Enter Default on August 09, 1994, and duly served it on Respondent on the same date, by certified ail sent to Respondent's official address.
Since(6) Respondent failed to answer the Notice within the time required by rule 552, transitional Rules of Procedure of the State |Bar of California ("Rules of Procedure"), and pursuant to the |Application to Enter Default, default was properly entered on September 06, 1994. On September 06, 1994, a Deputy Court Clerk of the State Bar Court served Respondent with a Notice of Entry of Default, by certified mail, directed to him at his official address. On September 08, 1994, the certified mail return receipt was signed(7) and theater it was returned to the State Bar by the U.S. Postal Service(8).
On September 21, 1994, the Office of Trials served Respondent with an Application for Involuntary Inactive Enrollment pursuant to section 6007(e) as a result of his failure to file an answer to the NTSC(9). By order of the Court(10), on October 28, 1994, Respondent was enrolled involuntarily inactive(11). A copy of the order enrolling Respondent inactive was served on Respondent both by certified mail and by regular mail directed to his official address. On October 31, 1994(12), the certified mail return receipt was signed(13) and thereafter it was returned to the State Bar by the U.S. Postal Service(14).
On November 3, 1994, Respondent filed a request for relief from default and on November 9, 1994, the Office of Trials filed an opposition thereto. On November 15, 1994, the Court denied Respondent's request for relief from default(15).
JURISDICTION
Respondent was admitted to the practice of law in the State of California on December 19, 1984, and has been a member of the State Bar of California at all times pertinent to this Decision.
FINDINGS OF FACT AND CONCLUSIONS OF LAW(16)
Count one - Interim Suspension Matter
On May 18, 1992(17), Respondent was placed on interim suspension(18) by the Review Department of the State Bar Court as the result of a felony(19) conviction(20). On August 7, 1992(21), Respondent filed a motion to vacate the order of interim suspension. On November 25, 1992, the Review Department denied Respondent's motion. On September 14, 1993, the Superior Court of the State of California for the Count of Ventura assumed jurisdiction over Respondent's law practice(22). Following the Ventura superior court's assumption of jurisdiction
over Respondent's practice(23), Respondent was enrolled as an inactive member of the State bar, effective November 08, 1993, pursuant to section 6007(b)(2)(24). On January 07, 194, the Review Department vacated its order of interim suspension based upon the reversal(25) of Respondent's felony(26) conviction. Respondent remained on inactive(27) status per the Ventura superior court's November 08, 1993 order. Effective February 08, 194, the Ventura superior court vacated it's order assuming jurisdiction over Respondent's law practice and on February, 15, 1994, the State Bar restored Respondent to active membership(28).
In August of 1993, during the period of time in which he was ineligible to practice law, Respondent advertised his availability to practice law in various publications, including the Los Angeles Times, Ventura edition, the Camarillo Daily News and the Recycler, in which he solicited business as a bankruptcy lawyer. Specifically, in August 1993 Respondent ran the following advertisement in the Los Angeles Times, Ventura edition:
Cheapest bankrutpcy Atrny $150.00 Takes 1 hr. 800-261-227.
In August 1993 Respondent ran the following two advertisements in the Ventura Star Free
Fastest Bankruptcy in Universe. TAKES JUST 1 HOUR (Chapter 11 takes 2 hours) Everything done immediately by experienced attorney while you wait Experienced over 400 successful bankruptcies 24-hr free consultation. Bring this ad for $100 discount. Call now 987-2227.
Attorney fast cheapest bankruptcy (just 1 hr) $150. Free Consultation 987-2227.
Section 6068(a), 6125 and 6126
Respondent was charged with violating sections 6068(a), 6125 and 6126. Section 6068(a) provides that it is the duty of an attorney to support the Constitution(29) and laws of the United States and of this state. Sections 6125 and 6126, read together, make unlawful practice of law a crime(30) and create a standard which forms the basis of professional discipline, when coupled with a section 6068(a) charge. (In the Matter of Trousil(31) (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 22, 236.)
During his period of suspension, Respondent ran newspaper advertisements in which he held himself out as entitled to practice bankruptcy law(32). Entitlement(33) to practice law in the Bankruptcy court requires one to be an active member of the State Bar of California. (Post, at pp. 7-8(34).) The practice of law includes the mere holding of oneself out as entitled to practice law. (In re Caldwell (1975) 15 Cal.3d 762, 771.) Respondent's holding himself out as entitled to practice law when he was not authorized(35) to do so is clear and convincing evidence that he committed a crime in violation of sections 6125 and 6126, which also constitutes misconduct in violation of section 6068(a). Respondent is therefore culpable of violating sections 6068(a), 6125 and 6126.
Section 6106
Section 6106 authorizes sanctions by this Court for any act involving moral turpitude or dishonesty. Respondent's culpability for committing an act of moral turpitude rests upon his knowledge(36) that he was suspended from the practice of law at the time he held himself out as entitled to practice law. Respondent had actual knowledge of his suspended status as early as August 07, 1992, when he filed a motion asking the State Bar Court to vacate its order of interim suspension. Notwithstanding Respondent's awareness of the -fact that he was prohibited from practicing law, which includes the mere holding out of oneself as entitled to practice law, Id.,
Respondent advertised his availability to perform legal services. Practicing law while suspended does not necessarily involve moral turpitude if the attorney is ignorant of his inactive status. (In the Matter of Trousil, supra, 1 Cal. State Bar Ct. Rptr. at p. 237.) Respondent, however, was aware of the existence of the order suspending him and chose to ignore it. In so doing Respondent knowingly and intentionally violated a court Order which is an act of moral turpitude in violation of 610. (In the Matter of Heiner (Review Dept. 1990) 1 Cal. State Bar C. Rptr. 301, 319.)
Count Two - Crawford Matter
On August 6, 1993, after seeing Respondent's advertisement in the Camarillo Daily News, Karen Crawford telephoned Respondent and spoke to him regarding his representation of her in a bankruptcy matter. During that conversation, Respondent represented himself to be an attorney and offered to represent Ms. Crawford, to which she agreed. Thereafter, Ms. Crawford provided Respondent with information and documentation necessary to complete a bankruptcy petition and made an appointment to meet Respondent. Respondent and Ms. Crawford eventually met and Ms. Crawford signed the Bankrutpcy petition and supporting documents. On the bankruptcy petition Respondent listed himself as attorney for Ms. Crawford, the debtor. Ms. Crawford paid Respondent $189 in attorneys fees and $150 in filing fees. Respondent filed a bankruptcy petition on behalf of Ms. Crawford in the United States Bankruptcy Court, Central District. Respondent was on interim suspension in August 1993 and was aware that he was not entitled to practice law at that time.
8ection 6068(a), 6125 and 6126
In August 1993, during his suspension from the practice of law, Respondent held himself out as entitled to practice bankruptcy law by virtue of his running of a bankrutpcy advertisement in the Camarillo Daily News. Entitlement t practice law in the Bankruptcy Court requires one to be an active member of the State Bar of California ,See discussion, infra.. Thereafter, Respondent et with Ms. Crawford, prepared a bankruptcy petition on her behalf, collected fees and filed the Bankrutpcy petition in the United States Bankruptcy Court, Central District. This is clear and convincing evidence that Respondent practiced law, which actions, when engaged in by a suspended attorney, constitute a crime in violation of sections 6125 and 6126 and also constitute misconduct in violation of section 6068(a). Respondent is culpable of violating of sections 6125, 6126 and 6068(a).
Rule 1-300(B) of the Rules of Professional Conduct
Rule 1-300(B) of the former Rules of Professional Conduct provides that an attorney shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession of that jurisdiction. Rule 1-300 authorizes the State Bar to discipline its members for making unauthorized appearances in courts other than state courts. (In the Matter of Heiner, supra, 1 Cal. State Bar Ct. Rptr. at p. 319.) Entitlement to practice before the Bankruptcy Court is based upon admission to practice in the United States District Court(37). Admission to and continuing membership in the Bar of the United States District Court is "limited to persons of good moral character R who are active members in god standing of the State Bar of California."(38) Respondent was to a member of the State Bar of California in good standing when he filed the bankruptcy petition on behalf of Ms. Crawford. Therefore, Respondent is culpable of violating rule 1-300(B).
Section 6106
Respondent had actual knowledge of his suspended status as early as August 07, 1992, when e filed a motion asking the State Bar Court to vacate its order of interim suspension(39). Notwithstanding Respondent's awareness of the fact that he was prohibited from practicing law pursuant to the Review Department's order of interim suspension, and its denial of his motion to vacate said order, Respondent advertised his availability to perform legal services and practiced law while suspended. Respondent, being aware of the Review Department order of interim suspension chose to ignore it. In so doing Respondent knowingly and intentionally violated a court order which is an act of moral turpitude in 'In the Matter of Heiner (Review Dept. 1990) Cal. State Bar Ct. Rptr. 301, 319.)
Count Three - The Pfeiffer Matter
On August 6, 1993, after seeing Respondent's advertisement in the Oxnard Press-courier Patricia Pfeiffer telephoned Respondent to discuss his handling of a bankruptcy matter for her. Respondent and Ms. Pfeiffer had a meeting at which time Respondent offered to represent her and gave her one of his business cards which bore his name followed by the words: "Attorney at Law." On August 8, l993, Respondent met Ms. Pfeiffer and agreed to represent her. On August 9, 1993, Respondent and Ms. Pfeiffer had another meeting at which time Respondent presented Ms. Pfeiffer with a bankruptcy petition and supporting documents which he had prepared. Respondent listed himself on the bankruptcy petition and supporting documents as attorney for Ms. Pfeiffer, the debtor. Ms. Pfeiffer paid Respondent $200 in attorneys fees and offered to hand-deliver the papers to the Court for filing, which she did. Respondent was on interim suspension in August 1993, was aware that he was on interim suspension at that time and was aware that he was not entitled to practice law.
Section 6068(a), 6125 and 6126
In August 1993, during his suspension from the practice of law, Section 6068(a), 6125 and 6126
In August 1993, during his suspension from the practice of law, Respondent held himself out as entitled to practice bankruptcy law by virtue of his running of a bankruptcy advertisement in the Oxnard Press-Courier News. Entitlement to practice law in the Bankruptcy Court requires one to be an active member of the State Bar of California. (Ante, at pp. 7-8.) Thereafter, Respondent met with Ms. Pfeiffer, handed her his business card bearing the words "Attorney at Law," prepared a bankruptcy petition on her behalf in which he identified himself as the attorney for the debtor, collected fees and instructed Ms. Pfeiffer to file the bankruptcy petition in the United States Bankruptcy Court. This is clear and convincing evidence that Respondent practiced law, which actions, when engaged in by a suspended attorney, constitute a crime in violation of sections 6125 and 6126 and also constitute misconduct in violation of 6068(a). Respondent is culpable of violation of sections 6125, 6126 and 6068(a).
Section 6106
Respondent knew he was suspended from the practice of law at the time he advertised in the Oxnard Press-Courier and met with Ms. Pfeiffer, accepted fees from her and prepared legal documents for her. Practicing law while suspended involves moral turpitude if the attorney is knowledgeable of his inactive or suspended status. (In the Matter of Trousil, supra, 1 Cal. State Bar Ct. Rptr. at p. 237.) Respondent knowingly and intentionally violated a court order which is an act of moral turpitude in violation of 6106. (In the Matter of 8einer (Review Dept. l990) 1 Cal. State Bar Ct. Rptr. 301, 319.) Rule 1-300 () of the Rule3 of Professional Conduct
As discussed above in connection with count two, Respondent is culpable of violating section 1-300(B) as a result of his filing of a bankruptcy petition in derogation of the regulations governing the practice of law in that jurisdiction.
Count Four - The Hahn Matter
On August 07, 1993, David Hahn and his wife met with Respondent after seeing Respondent's advertisement for a bankruptcy attorney in the Camarillo Daily News and after speaking to him on the telephone. During the telephone conversation with Mr. Hahn, Respondent represented himself to be an attorney. During the meeting with the Hahns, Respondent gave the Hahns a business card bearing his name followed by the words "Attorney at Law." Respondent agreed to represent the Hahns in their bankruptcy matter and agreed to appear n their behalf at the creditors' meeting. The Hahns paid Respondent $189 in attorneys fees and $150 in filing fees. Respondent was on interim suspension in August 1993 and was aware hat he was not entitled to practice law at that time.
Section 6068(a), 6125 and 6126
In August 1993, during his suspension from the practice of law, Respondent held himself out as entitled to practice bankruptcy law by virtue of his running of a bankruptcy attorney advertisement in the Camarillo Daily News. Entitlement to practice law in the Bankruptcy Court requires one to be an active member of the State
Bar of California. (Ante, at pp. 7-8.) Thereafter, Respondent met with Mr. and Mrs. Hahn, handed them his business card which identified himself as an attorney, told them he would represent them at the creditors' meeting and collected fees from them. This is clear and convincing evidence that Respondent practiced law, which actions, when engaged in by a suspended attorney, constitute a crime in violation of sections 6125 and 6126 and also constitute misconduct in violation of section 6068(a). Respondent is culpable of violation of sections 6125, 6126 and 6068(a).
Section 6106
Respondent knew he was suspended from the practice of law at the time he advertised in the Camarillo Daily News, met with the Hahns to discuss handling their case, handed them his business card and collected fees from them. Practicing law while suspended involves moral turpitude if the attorney is knowledgeable of his inactive or suspended status. (In the Matter of Trousil, supra, 1 Cal. State Bar Ct. Rptr. at p. 237.) Respondent knowingly and intentionally violated a court order which is an act of moral turpitude in violation of 6106. (In the Matter of Heiner (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 301, 319.)
Count Five - The Douglass Matter
On August 5, 1993, Gloria Douglass contacted Respondent after seeing his legal advertisement in the Camarillo Daily News and in the Ventura Star-Free Press. During that telephone conversation, Respondent identified himself as an attorney. On August 9, 1993, Gloria Douglass and her husband, Lewis Douglass, met Respondent who agreed to represent them in their bankruptcy matter and to appear on their behalf in any court proceedings. Respondent quoted his $189 legal fee plus a $150 filing fee. Respondent prepared a bankruptcy petition for the Douglasses on which he listed himself as the attorney for the debtors. During the course of the meeting with Respondent, Mr. Douglass inquired about representation of a criminal |matter in which he was charged with driving while intoxicated. Respondent quoted Mr. Douglass a fee of $1,200 to handle the matter and handed him a business card identifying himself as an "Attorney at Law." Respondent was on interim suspension in August 1993 and was aware that he as not entitled to practice law at that time.
Section 6068(a), 6125 and 6126
In August 1993, during his suspension from the practice of law, Respondent held himself out as entitled to practice bankruptcy law by advertising in the Camarillo Daily News and in the Ventura Star-Free Press his availability to handle bankruptcy matters. Thereafter, Respondent met with Mr. and Mrs. Douglas, agreed to represent them, quoted them fees for both the bankruptcy matter and the handling of an unrelated criminal matter, gave them a business card on which he identified himself an Attorney at Law" and prepared a bankruptcy petition and supporting documents on which he listed himself as the attorney for the debtors. This is clear and convincing evidence that Respondent held himself out as practicing law, which actions, when engaged in by a suspended attorney, constitute a crime in violation of sections 6125 and 6126 and also constitute misconduct in violation of section 6068(a). Respondent is culpable of violation of sections 6125, 6126 and 6068(a).
Section 6106
Respondent knew he was suspended from the practice of law at the time he advertised in the Camarillo Daily News and Ventura Star-Free Press, met with the Douglasses to discuss handling their case, agreed to represent them, quoted them fees and handed them his business card. Practicing law while suspended involves moral turpitude if the attorney is knowledgeable of his inactive or suspended status. (In the Matter of Trousil, supra, 1 Cal. State Bar Ct. Rptr. at p. 237.) Respondent knowingly and intentionally' violated a court order suspending him from the practice of law which is an act of moral turpitude in violation of 6106. (In the Matte of Heiner (Review Dept. 1990) 1 Gal. State Bar Ct. Rptr. 301, 319.)
Section 1-300(B)
On November 16, 1993, the Office of Trials made a motion t dismiss this count which the Court granted.
Count Six - Bertha Gonzales
On August 16, 1993, after seeing Respondents advertisement in the Los Angeles Times, Ms. Gonzales telephoned Respondent to discuss his handling of a bankruptcy matter for her. During that conversation, Respondent stated that he was an attorney and stated the same to Ms. Gonzales' father I a subsequent telephone conversation. Later that day, Ms. Gonzales and her friend, Leonardo Sanchez, met with Respondent. Respondent agreed to represent Ms. Gonzales in a bankruptcy matter and further agreed to represent her at the creditors' meeting. Respondent collected $150 in legal fees and $150 in filing fees. Respondent was on interim suspension on August 16, 1993, was aware that he was on interim suspension and was also aware that he was not entitled to practice law.
Section 6068(a), 6125 and 6126
! During his suspension from the practice of law, Respondent held himself out as entitled to practice bankruptcy law by virtue of his running of a bankruptcy advertisement in the Los Angeles Times. Entitlement to practice law in the Bankruptcy Court requires one to be an active member of the State Bar of California. (Ante at pp. 7-8.) Thereafter, Respondent met with Ms. Gonzales, agreed to represent her and collected money from her. This is clear and convincing evidence that Respondent held himself out as practicing law, which actions, when engaged in by a suspended attorney constitute a in violation of sections 6125 and 6126 and also constitute misconduct in violation of section 6068(a). Respondent is culpable of violating of sections 6125, 6126 and 6068(a)-
Section 6106
Respondent's knew he was suspended from the practice of law at the time he advertised in the Los Angeles Times, at the time he met and accepted fees from Ms. Gonzales and agreed to represent her.
Practicing law while suspended involves moral turpitude if the
attorney is knowledgeable of his inactive or suspended status. (In the Matter of Trousil, Supra 1 Cal. State Bar Ct. Rptr. at p. 237.) Respondent knowingly and intentionally violated a court order which is an act of moral turpitude in violation of 6106. (In the Matter of Heiner (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 301, 319.) Section 1-300(B)
On November 16, 1993, the Office of Trials made a motion to dismiss this count which the Court granted.
Count Seven - Smith Kitzmann Matter
Kathy Smith and Glen Kitzmann, investigators for the Ventura County District Attorney's Office, posed as potential clients ir connection with an investigation of Respondent that was being conducted by the Ventura County District Attorney's Office. On August 19, 1993, Ms. Smith telephoned Respondent at a telephone number listed in an advertisement in the Los Angeles Times, Ventura County edition, for a bankruptcy attorney. Ms. Smith identified herself as Lisa Penland, a potential client. Respondent identified himself to Ms. Smith as an attorney and offered to handle a bankruptcy matter for her and her husband for a total of $300, bankruptcy matter for her and her husband for a total of $300, $150 for attorney fees and $150 for filing fees. Respondent stated to Ms. Smith that "this is the lowest attorney fee around." Ms. Smith ended the telephone conversation with Respondent by stating that she would have to discuss the matter with her husband" who would call Respondent at a later time.
Thereafter, on August 26, 1994, Glen Kitzmann, posing as Kathy Smith's husband, spoke to Respondent by telephone. Mr. Kitzmann identified himself as the husband of Lisa Penland. Respondent offered to represent the Penlands as their attorney in a bankruptcy matter and suggested they schedule an appointment with him for the following day. In the course of his telephone conversation with Respondent, Mr. Kitzmann asked Respondent whether he could handle a "drunk driving" matter for him. Respondent stated that although he used to handle such matters, h no longer did so because they took too much time. At the time of his conversations with both Kathy Smith and Glen Kitzmann, Respondent was on interim suspension and was aware that he was not entitled to practice law. Section 6068(a), 6125 and 6126
On August 19, 1993, during his suspension from the practice of law, Respondent informed Ms. Smith that he was an attorney and that he could handle the bankruptcy matter for her and her husband for $300, "the lowest fee around." On August 26, 1993, Respondent informed Mr. Kitzmann that he could handle a bankruptcy matter for her and her husband. Entitlement to practice aw in the Bankruptcy Court requires one to be an active member of the State Bar of California. (Ante, at pp. 7-8.) Respondent as not an active member. This is clear and convincing evidence that Respondent held himself out as practicing law, which actions, when engaged in by a suspended attorney, constitute a crime in violation of sections 6125 and 6126, and also constitute misconduct in violation of section 6068(a). Respondent is culpable of violation of sections 6125, 6126 and 6068a).
Section 6106
Respondent is culpable of violating section 6106 on two grounds. First, Respondent knew he was suspended from the practice of law at the time he conversed with Ms. Smith and Mr. Kitzmann about handling their bankruptcy matter, quoted fees and suggested they schedule an appointment. Since Respondent knew of his ineligibility to practice law, his solicitation of clients as a suspended attorney constituted a knowing and intentional violation of a court order for which he is culpable of violating section 6106. (In the Matter of Heiner (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 301, 319.) Second, when asked by Mr. Kitzmann if he could handle a "drunk driving" matter, Respondent failed to disclose that he was suspended fro the practice of law. Omission of relevant(40) information in response to Mr. Kitzmann's inquiry constitutes a misrepresentation for which Respondent also is culpable of violating section 6106.(In the Matter of Wyrick (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 83, 92.)
Count Eight - Chism Matter
In late August 1993 James Chism saw an advertisement for a bankruptcy attorney in the Ventura Star-Free Press newspaper. Mr. Chism telephoned Respondent at the telephone number listed in the advertisement and left a message on the answering machine. Mr. Chism received a return telephone call from Respondent wherein Respondent identified himself as an attorney specializing in I bankruptcy. Respondent informed Mr. Chism that his fee for handling a bankruptcy case was $189 plus $150 for filing fees. Mr. Chism bankruptcy. Respondent informed Mr. Chism that his fee for handling a bankruptcy case was $189 plus $150 for filing fees. Mr. Chism provided Respondent with information to enable Respondent to prepare the bankruptcy petition and supporting documents. Mr. Chism also informed Respondent that he was involved with the Ventura District Attorney's Office regarding the issuance of bad checks. The following day Respondent delivered the bankruptcy petition and supporting documents to Mr. Chism's place of business to obtain both his and his wife's signatures. Respondent had listed himself as the attorney for the Chism, the debtors. On August 22, 1993, Respondent sent Mr. and Mrs. Chism a letter wherein he encouraged them to file bankruptcy as soon as possible and offered some advice regarding Mr. Chism's criminal matter then pending with the Ventura County District Attorney's office. In September 1993 Respondent visited Mr. Chism and informed him that he had just been released from jail after his arrest for engaging in the unauthorized practice of law. Respondent misrepresented to Mr. Chism that the District Attorney's Office had dropped the charges because it had all been a mistake" and further misrepresented to Mr. Chism that he had not law under a federal license. Respondent was on interim suspension in August and September 1993, was aware that he was on interim suspension at that time and was aware that he was not entitled to practice law.
8ection 6068a). 6125 and 6126
In August and September 1993, during his suspension from the practice of law, Respondent advertised himself as being available to handle bankruptcy cases and with respect to Mr. Chism, represented himself as an attorney specializing in bankruptcy law, quoted fee5 and prepared a bankruptcy petition listing himself as the attorney and prepared a bankruptcy petition listing himself as the attorney for the Chism, the debtors. Respondent also sent correspondence to the Chism on letterhead identifying himself as an attorney wherein he offered legal advice on the bankruptcy matter and on the criminal matter then pending with the District Attorney'S Office-Entitlement to practice law in the Bankruptcy Court requires one to be an active member of the State Bar of California. (Ante, at pp. 7-8.) Respondent was not an active member. This is clear and convincing evidence that Respondent held himself out as practicing -18-law, which actions, when engaged in by a suspended attorney, constitute a crime in violation of sections 6125 and 6126 and also constitute misconduct in violation of section 6068(a). Respondent is culpable o violating sections 6068(a), 612S and 6126.
Section 6106
Respondent is culpable of violating section 6106 on two grounds. First, Respondent knew he was suspended from the practice of law at the time he represented himself (in the advertisement and to Mr. Chism directly) as specializing in bankruptcy law, quoted fees, prepared a bankruptcy petition listing himself as the attorney for the debtors and sent correspondence to the Chism offering legal advice. Practicing law while suspended involves moral turpitude if the attorney is knowledgeable of his inactive or suspended status. (,In the Matter of Trousil, supra, 1 Cal. State Bar Ct. Rptr. at p. 237.) Respondent knowingly and intentionally violated a court order which is an act of moral turpitude in violation of 6106. (In theMatter of Heiner (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 301, 319.) Second, respondent committed an additional act of moral turpitude when he represented that his eligibility to practice law was based upon a federal license. Respondent knew, or should have known, that one's admission to the federal bar is based upon being n good standing with the State Bar of California. Respondent knew that he was not in good standing with the State Bar of California, respondent is culpable of violating section 6106 on both grounds-
Section 1-300(B)
On November 16, 1993, the Office of Trials made a motion to dismiss(41) this count which the Court granted.
///Count Nine - Miller Matter
In response to advertisements in the Recycler and the Star-Free Press newspapers, on August 23, 1993, Anthony Miller telephone
Respondent who identified himself as an attorney. On August 24, 1993, Mr. Miller telephoned Respondent a second time to discus§ Respondent's handling of his bankruptcy matter. Respondent told Mr, Miller that he (Respondent) could handle the bankruptcy over the telephone and instructed Mr. Miller to gather relevant information regarding his accounts. That afternoon, Mr. Miller provided respondent with the information he had requested. On August 25, 993, Mr Miller met Respondent at a motel to pick up the bankruptcy forms which Respondent had completed. Respondent instructed Mr. Miller to sign the papers, obtain his wife's signature and return the papers the next day. One of the bankruptcy forms named Respondent as Attorney for Debtor." on August 26, 1993, Mr. Miller returned the fully executed bankruptcy papers and gave Respondent $200 in attorneys fees and S150 in filing fees. In the evening of August 26, 1993, Mr. Miller telephoned Respondent to obtain some legal advice on employment contracts. Respondent instructed Mr. Miller to contact him when he had some money and wanted to proceed. Respondent was on interim suspension in August 1993, and was aware that he was not entitled to practice law(42).
Section 6068(a), 6125 and 6126
In August 1993, during his suspension from the practice of law, Respondent advertised himself as being available to handle bankruptcy cases, represented to Mr. Miller that he was an attorney doing bankruptcy, prepared the bankruptcy forms naming himself as attorney for the debtor, collected fees and gave Mr. Miller legal advice pertaining to an unrelated matter. Entitlement to practice law in the Bankruptcy Court requires one to be an active member of the State Bar of California. (Ante, at pp. 7-8.) This is clear ana convincing evidence that Respondent held himself out as entitled to practice law, which actions, when engaged in by a suspended attorney, constitute a crime in violation of sections 6125 and 6126, and is also misconduct in violation of section 6068(a). Respondent is culpable of violation of sections 6125, 6126 and 6068(a).
Section 6106
Respondent knew he was suspended from the practice of law at the time he represented himself (in the advertisement and to Mr. Miller directly) as an attorney handling bankruptcy matters, prepared the paperwork, collected fees and offered legal advice on another matter. Practicing law while suspended involves moral turpitude if the attorney ha5 knowledge of his inactive or suspended status. (In the Matter of Trousil, supra, 1 Cal. State- Bar Ct. Rptr. at p. 237.) Respondent knowingly and intentionally violated a court order which is an act of moral turpitude in violation of
Section 1-300(B)
On November 16, 1993, the Office of Trials made a motion to dismiss(43) this count which the Court granted.
Count Ten - The Barcal Matter
On August 25, 1993, Darlene Barcal saw an advertisement in the classified section of the Los Angeles Times that read: "Cheapest Bankruptcy by Attorney, $200." Ms. Barcal telephoned the number listed in the advertisement and reached Respondent. Ms. Burchell told Respondent that it was important that she employ an attorney to handle her case. Respondent offered to handle Ms. Burchell's case and informed her that there would be an additional $150 filing fee. Ms. Burchell did not have transportation to Respondent's office so Respondent agreed to take the necessary information over the telephone and to deliver the paperwork to her residence. During the course of that telephone conversation, Respondent also provided Ms. Burchell with some legal advice on the subject of automobile insurance . Approximately two hours later, Respondent arrived at Ms. Burchell's residence, at which time Ms. Burchell signed the forms that Respondent had prepared for her and paid Respondent $265. Respondent agreed to accept the remaining $85 at a later date. Respondent provided Ms. Burchell with copies of the forms along with a contract and advised her that he would file the bankruptcy forms with the court.
On September 5, 1993, without advance notice(44), Respondent came to see Ms. Burchell and informed her that he had been arrested for the District Attorney's office had made a mistake because he was allowed to practice in federal court. In the course of the September 5, 1993, meeting, Respondent instructed Ms. Burchell to white out his name on her copies of the forms he had provided her and to file the forms in pro per. Ms. Burchell informed Respondent that she did not want to file the bankruptcy forms in her own name. Before leaving, Respondent left a Motel 6 business card. On the backside of the card was a telephone number which Respondent identified as that of his parents who would always know his whereabouts. Respondent was on interim suspension in August and September 1993, and was aware that he was not entitled to practice law.
Section 6068(a), 6125 and 6126
During his suspension from the practice of law, Respondent advertised himself as being available to handle bankruptcy cases, represented to Ms. Burchell that he was an attorney doing bankruptcy, prepared and delivered the bankruptcy forms to her and collected fees. Entitlement to practice law in the Bankruptcy Court requires one to be an active member of the State Bar of California. (Ante, at pp. 7-8.) Respondent was not an active member. Additionally, Respondent gave Ms. Burchell legal advice pertaining to an unrelated matter. This is clear and convincing evidence that Respondent held himself out as practicing law, which actions, when engaged in by a suspended attorney constitute a crime in violation of sections 6125 and 6126 and also constitute misconduct in violation of section 6068ta). Respondent is culpable of violation of sections 6125, 6126 and 6068a). Section 6106
Respondent, who knew he was suspended from the practice of law at the time, represented himself in the advertisement and to Ms. Burchell as an attorney handling bankruptcy matters. He prepared paperwork, collected fees and offered legal advice on another matter. Practicing law while suspended involves moral turpitude if the attorney has knowledge of his inactive or suspended status. (In the Matter of Trousil, supra, 1 Cal. State Bar Ct. Rptr. at p. 237.) Respondent knowingly and intentionally violated a court order which is an act of moral turpitude in violation of 6106. (In the Matter of Heiner (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 301, 319.)Respondent committed a second act of moral turpitude when he represented to Ms. Burchell that he was allowed to practice law on a federal license. Respondent knew, or should have know, that an attorney's admission to the federal bar in California is contingent upon being in good standing with the State Bar of California. (Ante, at pp. 7-8.) Respondent knew that he was not in good standing with the State Bar of California. Respondent is culpable of violating section 6106 on both grounds.
Section 1-300(B)
On November 16, 1993, the Office of Trials made a motion to dismiss(45) this count which the Court granted.
Count Eleven - The Estradas Matter
In August 1993 after reading a newspaper advertisement on bankruptcy, Gary Schubert telephoned the number listed in the advertisement and reached Respondent. Respondent quoted a $189 legal fee and a $150 filing fee to handle a bankruptcy matter for Mr. Schubert's daughter, Mary Estrada, and his son-in-law, Mario Estrada. On August 27, 1993, Mr. and Mrs. Schubert and Mary Estrada. On August 27, 1993, Mr. and Mrs. Schubert and Mary and Mario Estrada met Respondent at the Good Nite Inn. Mr. Schubert expressed his concern over the fact that Respondent was working out of a motel room. Respondent stated that he was doing so because he had not yet made a decision regarding the location of his office. During the meeting, Mr. Schubert paid Respondent a total of $339(46) to cover both legal work and filing fees for the Estradas bankruptcy. Respondent also agreed to handle Ms. Estradas divorce matter for a $200 fee. Respondent gave Mr. Schubert a business card on which the following information was printed: Douglas A. Palaschak, Attorney at Law, 6633 Telephone Road, Suite 216, Ventura, California 93003.805-644-2313 - 24 Hours." Respondent was on interim suspension in August 1993, was aware that he was on interim suspension at that time and was aware that he was not entitled to practice law.
Section 6068(a). 612S and 6126
In August 1993, during Respondent's suspension from the practice cf law, Mr. Schubert saw Respondent's bankruptcy advertisement and contacted him regarding representation for his daughter and son-in-law. Respondent agreed to handle a bankruptcy matter for Mr. Schubert ' s daughter and son-in-law and collected matter for Mr. Schubert's daughter and son-in-law and collected fees. Respondent also expressed his willingness to handle a divorce matter for Mr. Schubert's daughter. Entitlement to practice law in the Bankrutpcy Court requires one to be an active member of the State Bar of California. (Ante, at pp. 7-8.) Respondent was not an active member. By his actions, Respondent held himself out as practicing law and practiced law, which actions, when engaged in by a suspended attorney constitute a crime in violation of sections 6125 and 6126, and also constitute misconduct in violation of section 6068(a). Respondent is culpable of violation of sections 6125, 6126 and 6068(a). Section 6106
Respondent is culpable o violating section 6106 on two grounds. First, Respondent knew he was suspended from the practice of law at the time he advertised his availability to handle bankruptcy matters. Practicing law while suspended involves moral turpitude if the attorney is knowledgeable of his inactive or suspended status. (In the Matter of Trousil, supra, 1 Cal. State Bar Ct. Rptr. at p. 237.) Respondent knowingly and intentionally violated a court order which is an act of moral turpitude in -2S-violation cf 6L06. (In the Matter of Heiner (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 301, 319.)
Mitigating AND AGGRAVATING CIRCUMSTANCES
Evidence in Militation
In light of Respondent's failure(47) to participate in this proceeding, no factors in mitigation were presented to the Court or are apparent fro the record of this proceeding. (Standard 1.2(e(I), Rules Proc. of State Bar (effective. Jan. 1, 1995), Title __ Standards. for Atty. Sanctions for Prof. Misconduct ("standard(s)").) Evidence in Aggravation
Respondent has a prior(48) record of discipline. (Standard1.2(b)(I)-)On March 17, 1995, the Hearing Department filed a Decision(49) finding Respondent culpable of "other misconduct warranting discipline." The case involved eight consolidated conviction referral matters where, on 11 different occasions between 1989 and 1991, Respondent failed to appear in court in many criminal cases(50). The Court recommended that Respondent be suspended from the practice of law for two years, that execution of the order be stayed and that Respondent be placed on probation(51) for three years on certain conditions, including six months. of actual suspension. On May 2, L995, the Hearing Department filed a Decision(52) in which Respondent was found culpable of extensive(53) misconduct: ( 1)with respect to one client, failing to maintain the respect due the courts, failing to maintain only such actions that appear to e legal or just, failing to report court-ordered sanctions(54) to the State Bar, wilfully appearing as an attorney for a party without authority to do so, failing to obey a court order and failing to perform legal services competently(55); (2) with respect to a second client, failing to obey a court orders, failing to maintain respect due the courts, failing to maintain only such means as are consistent with truth and engaging ln conduct that resulted in misleading a judge, failing to perform legal services competently and failing to communicate with a client(56); (3) with respect to a third client, failing to perform legal services competently, improper withdrawal from employment, failing to release client property upon request of the client(57) and failing to refund unearned fees(58) upon termination of employment; (4) with respect to a fourth client, failing to perform leal services competently(59), failing to refund unearned fees, failing to maintain funds in a trust account and failing to promptly deliver funds to a client as requested by suspension.(60)Respondent has engaged in multiple acts of wrongdoing which demonstrate a pattern of misconduct(61). (Standard 1.2(b)(ii).) By his practicing law wile on suspension, Respondent flaunted the very rule of law that, as an attorney, he was sworn to uphold. In so doing, Respondent harmed the administration of justice and his clients. (Standard 1.2(b)(iv).)
Respondent's unwillingness to recognize his professional obligations to his clients and to the State Bar, as evidenced by his refusal to participate in this State Bar proceeding prior to his 7-508; Standard 1.2(b)(V).) APPROPRIATE LEVEL OF DISCIPLINE Application of Standards
The purpose of State Bar disciplinary proceedings is not to punish the accused attorney, but to protect the public, to preserve public confidence in the profession and to maintain the highest possible professional standards for attorneys(62). (Chadwick v- State bar (1989) 49 Cal.3d 103, 111; Cooper v. State Bar (1987) 43 Cal.3d1016, 1025; standard 1.3.) In determining the appropriate sanction to impose in each case, the mitigating (if any) and aggravating circumstances are considered and balanced, along with the specific discipline recommended by the standards for the particular misconduct found, with due regard for the purposes of imposing sanctions. (Standard 1.6(b).) The Standards for Attorney Sanctions for Pro Misconduct serve as guidelines to the State Bar Court and the Supreme Court in determining the appropriate degree of discipline to be recommended in a particular case. They need not be rigidly applied but rather, must be viewed with the objective of achieving the purposes of attorney discipline, i.e. protection of the public, the courts and the legal profession; maintenance of high professional standards; and preservation of public confidence in the legal profession. (In the Matter of Respondent C (Review Dept. L991) 1 Cal. State Bar Ct. Rptr. 439, 455; In the Matter of Moriarty Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 245, 250.)Respondent has been found culpable of violating sections 6068(a), 6125 and 6126 for which Standard 2.6 provides Kpr. 45, 50.)
Respondent has been found culpable of violating sections(a) 6125 and 6126 for which Standard 2.6 provides for disbarment or suspension depending upon the gravity of the offense or the harm(63), if any, to the victim, with due regard for the purposes of imposing discipline as set forth in standard 1.3. Respondent has been found culpable of violations of section 6106 for which standard 2.3 provides for suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled(64) and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member's acts within the practice of law.
Respondent has been found culpable of violations of rule 1-300 for which standard 2.10 provides for a reproval or suspension according to the gravity of the offense or the harm, if any, to the victim. In determining the appropriate degree of discipline to recommend in this proceeding, the Court has considered recent Supreme Court and Review Department opinions to ensure that the recommended discipline is proportional to that imposed or recommended in other cases involving similar misconduct. (In the Matter of Moriarty, supra, 1 Cal. State Bar Ct. Rptr. 251; In the Matter of Bleecker (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 113, 126.)
The State Bar has urged this Court to recommend Respondent's disbarment, citing In the Matter of Taylor (Review Dept. 1991) 1Cal. State Bar Ct. Rptr. 563. Respondent's misconduct is serious and similar to the misconduct in Taylor, although far more extensive and repetitive. he Court finds the disbarment recommendation to be appropriate. As stated at In the Matter of Taylor, supra, 1 Cal. State Bar Ct. Rptr at p. 580,practicing law while suspended has resulted in a range of discipline from suspension to disbarment, depending on the circumstances of the misconduct, including the nature of any companion charges and the existence and gravity of prior disciplinary proceedings.
11 appropriate.
In Taylor, supra, the attorney undertook representation of three separate clients at a time when he was suspended from the practice of law for nonpayment of dues. Related misconduct pertaining to those three clients included the attorney's failure to communicate, failure to return unearned legal fees and acts of dishonesty with respect to one clients execution of a verification. The attorney also failed to cooperate with the State Bar. In Taylor, supra, the attorney had been disciplined very recently in a prior matter as a result of a criminal conviction for nonpayment of child support. After comparing the range of discipline in other unauthorized practice of law cases, the Supreme Court concluded that Taylor was not a good candidate for suspension or probation in view of the fact that he had failed to comply with the terms of his criminal probation and had failed to participate(65) in either of the disciplinary matters. The Supreme court ordered Taylor's disbarment. In other cases of practicing law while on suspension, the discipline imposed was not disbarment, but the nature and extent of the overall misconduct was far less egregious. In Farmham v. State Bar (1988) 47 Cal.3d 429, the attorney gave legal advice and prepared legal papers for a client while suspended from the practice of law for nonpayment of fees. Additionally, the attorney deceived that client and another, avoided efforts of the two clients to communicate with him and abandoned their cases. With a prior communicate with him and abandoned their cases. With a prior disciplinary record, the Supreme Court imposed two years suspension, stayed, two years probation and six months of actual suspension.
In Chasteen v. State Bar (1985) 40 Cal.3d 586, the attorney engaged in the unauthorized practice of law, deceit of clients, commingling and failure to return fees. Alcoholism(66) was found to be a strong contributing factor to the misconduct. In a four-to-three decision, the Supreme Court_ imposed a two-month suspension. Justice Lucas, in a concurring and dissenting opinion, joined by two other justices, indicated he world have imposed greater discipline. The Court is not willing to recommend less discipline than that imposed in Taylor, , supra. The Court finds that the goals of the disciplinary system demand more discipline than that meted out in Farnham, supra or Chasteen, supra. Respondents pattern of misconduct is more egregious than the misconduct in either of these cases, although the sums of mony involved are small. Additionally, unlike Respondent, Ln Farnham and Chasteen the attorneys participated in their disciplinary proceedings. Respondent has been engaged 1n a far more extensive "practice" of the unauthorized practice of law than Taylor and has a more extensive prior disciplinary record than did Taylor. As stated above in Taylor, supra, the Court concluded that Taylor was not a good candidate for suspension or probation. Given Respondents many violations of court orders and corresponding criminal probation violations, which then became the subject of prior disciplinary proceedings, as in Taylor supra, this Court concludes that Respondent is not now a good candidate for suspension or probation. When looking at Respondent's prior disciplinary record in conjunction with this case, it is evident that Respondent has a serious problem respecting people in positions of authority, i.e. judges. A common theme running throughout Respondent's acts of misconduct, past as well as present, is his refusal to permit the orders of other courts to impact him or affect his handling of clients or their cases. Respondent has repeatedly demonstrated his total indifference to the rule 3f law as well as his refusal to conform his conduct thereto. From the failure to obey court orders in connection with his handling of many criminal cases (which resulted in the first prior disciplinary matter) to his refusal to cease practicing law while on suspension (which has resulted in the instant proceeding), and everything in between, Respondent has continued to send an unequivocal message: the law does not apply to him.11
serious problem respecting people in positions of authority, i.e. Judges(67). Although the Court was willing to give Respondent the benefit of doubt in the prior disciplinary matter filed on May 24, 1995,12 the magnitude of the misconduct in this case speaks for itself. Nothing short of disbarment will serve the purposes of the disciplinary system. The unauthorized practice of law is a very serious matter which must be taken seriously by attorneys, lest the public confidence in the licensing system as a whole be undermined. Obviously,
Respondent's view is different(68).
RECOMMENDED DISCIPLINE
The Court recommends that Respondent DOUGLAS ANDREW PALASCHAK be disbarred from the practice of law in the State of California-It is also recommended that Respondent be ordered to comply with the requirements of rule 955 of the California Rules of Court within thirty (30) calendar days of the effective date of the Supreme Court order in this matter, and file the affidavit provided for in paragraph (c) within forty (40) days of the effective date of the order showing his compliance with said order.
AWARD OF COSTS
It is further recommended that costs be awarded to the State Bar pursuant to Business and Professions Code section 606.10and that such costs be added to and become part of the membership fee(69) of respondent for the calendar year next following the effective date of the Supreme Court's order.
DATED: May l, 1995.
David S. WESLEY
Judge of the State Bar Court
Declaration of Service
[Rule 62(b), Rules Proc.; Code Cit . Proc., 1013a4) ]
_ Deputy Court Clerk of the State Bar Court. I am over the age of eighteen and not a party to the within proceeding. In the City and County of Los Angeles, on June 7, l99S, I deposited a true copy of the following document(s)
DECISION, file June 07, 1995
in a sealed envelope as follows:
[XX] with first-class postage thereon fully prepaid in a facility regularly maintained by the United States Postal Service at Los Angeles, California, addressed as follows:
Douglas ANDREW Palaschak
2 91 SANTA CRUZ
facility regularly maintained by the United States Postal
Service at Los Angeles, California, addressed as follows:
[XX] in an interoffice mail facility regularly maintained by the State Bar of California addressed as follows:
Victoria Molloy, A/L, OFFICE OF TRIALS
Sydney G. Crickard, A/L, OFFICE OF TRIALS
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, cn June 7, 1995.
Rodney C. Wooton Deputy Court clerk, State Bar Court
Footnotes and annotations by Palaschak and the court:
1. See The Story of Marxism and Communism by Katherine Savage.
2. Observe that Palaschak's main offense is drug use - clearly malum prohibitum as distinguished from malum in se. The main offense herein is allegedly doing bankruptcies while only licensed by federal court - certainly this is only malum prohibitum.
3. And state bar rules are even less related to morality that laws.
4. Comment by Palaschak: This is deceptive either intentional or a product of writing in jargon - a product of a decision mill. In fact a default was entered some months ago. I inadvertently failed to answer the petition in time. I requested relief from default. Denied. Therefore I was denied a hearing.
5. Unless otherwise indicated, further references to "section"are references to the Business and Professions Code.
6. Comment by Palaschak: "Since" is a annoying abuse of the language. "Because" is correct.
7. Comment by Palaschak: Due to the state bar's unlawful suspension I was living in an auto shop. Van the landlord ran a used car lot at the address on Thompson. I lived in the engine shop around the corner on Santa Cruz. I asked the post office several times to bring the Santa Cruz mail to the Santa Cruz address which housed Engines R Us - and me. I gather that Van signed for several items for me - and I received some of them although I would not generally know about something that I did