Opinion
Supreme Court No. SB-08-0172-D
January 7, 2009
Disciplinary Commission No. 05-1347.
JUDGMENT AND ORDER
This matter having come before the Disciplinary Commission of the Supreme Court of Arizona, it having duly rendered its decision, and no discretionary or sua sponte review occurring,
IT IS ORDERED, ADJUDGED AND DECREED that PAUL LENKOWSKY a member of the State Bar of Arizona, is hereby suspended from the practice of law for a period of ninety days, retroactive to July 1, 2008, for conduct in violation of his duties and obligations as a lawyer, as disclosed in the Disciplinary Commission Report.
IT IS FURTHER ORDERED that PAUL LENKOWSKY shall be placed on probation for a period of two years upon reinstatement. The terms of probation are as follows:
1. Respondent shall contact the LOMAP director within thirty days of the date of the final Judgment and Order. Respondent shall submit to a LOMAP examination of his office practices and procedures relating to establishing reasonable client fees, fee agreements, fee change agreements, charging interest, billing, collections, client accounts, client ledgers, trust account ledgers, trust account compliance, preserving client confidential information, conflicts of interest, and safekeeping of property and funds. The LOMAP director shall develop written "Terms and Conditions of Probation" the terms of which shall be incorporated herein by this reference. The "Terms and Conditions shall include retention of a practice monitor. Respondent may suggest a Practice Monitor for LOMAP approval. The period of probation will begin to run at the time of the Judgment and Order, and will conclude two years from the date that all parties have signed the "Terms and Conditions." Respondent shall be responsible for any costs associated with LOMAP.
2. Respondent shall contact the MAP director within thirty days of the date of the final Judgment and Order. Respondent shall submit to a MAP assessment. The MAP director shall develop written "Terms and Conditions of Probation" if he determines that the result of the assessment so indicate, and the terms shall incorporate herein by this reference. The probation period will begin to run at the time of the final Judgment and Order, and will conclude two years from the date that all parties have signed the "Terms and Conditions of Probation." Should the MAP director conclude that no MAP probation terms are necessary, probation shall conclude two years from the entry of the Judgment and Order. On request, Respondent shall furnish to the MAP director/or to the State Bar of Arizona any and all written and signed information release authorization forms deemed necessary by the MAP director and/or State Bar of Arizona, Respondent waives any and all claims of confidentiality or privilege associated with information sought or obtained by reason thereof, including but not necessarily limited to the physician/patient privilege. However, the foregoing waiver does not apply to the attorney/client privilege. Respondent shall be responsible for any costs associated with MAP.
3. Respondent shall attend a half-day TAEEP seminar. Respondent must contact Gloria Green, Program Coordinator of the State Bar of Arizona at (602) 340-7278, within twenty days from the date of the final Judgment and Order. Respondent shall be responsible for the cost of attending the program.
4. Respondent shall attend a one day EEP seminar. Respondent must contact Cathy McNeelege, program coordinator of the State Bar of Arizona at (602) 340-7241, within twenty days from the date of the final Judgment and Order. Respondent shall be responsible to the cost of attending the program.
5. Respondent shall participate in TAP. Respondent shall contact the State Bar of Arizona's Staff Examiner at (602) 340-7242 to begin participation in TAP. Respondent shall sign "Terms and Conditions of Probation" that shall include all applicable terms of participation including reporting requirements, and shall incorporated in the terms of probation. Respondent shall participate in TAP for two years from the signing of the "Terms and Conditions of Probation." Respondent shall be responsible for all costs of TAP.
6. Respondent may initiate LOMAP, TAEEP, TAP, EEP and MAP during the period of his inactivity; complete TAEEP and EEP during the period of his inactivity; and return to active status 90 days after July 1, 2008, assuming no order precluded him from doing so.
7. Respondent shall refrain from engaging in any conduct that would violate the Rules of Professional Conduct or other rules of the Supreme Court of Arizona.
8. In the event that Respondent fails to comply with any of the foregoing probation terms and information thereof is received by the State Bar of Arizona, Bar Counsel shall file a Notice of Noncompliance with the imposing entity pursuant to Rule 60(a)(5), Ariz.R.Sup.Ct. The imposing entity may refer the matter to a hearing officer to conduct a hearing at the earliest practicable date, but in no event later than thirty days after receipt of notice, to determine whether a term of probation has been breached and, if so, to recommend an appropriate sanction. If there is an allegation that Respondent failed to comply with any of the foregoing terms, the burden of proof shall be on the State Bar of Arizona to prove noncompliance by clear and convincing evidence.
IT IS FURTHER ORDERED that Respondent shall comply with all the provisions of Rule 72, Rules of the Supreme Court of Arizona, including, but not limited to, Rule 72(a), which requires that Respondent notify all of his clients, within ten days from the date hereof, of his inability to represent them and that he should promptly inform this Court of his compliance with this Order as provided in Rule 72(e).
IT IS FURTHER ORDERED that the time period for filing an affidavit for reinstatement pursuant to Rule 64(e)(2)(A) shall begin to run as of the date of this judgment and order.
IT IS FURTHER ORDERED that pursuant to Rule 60(b), the State Bar of Arizona is granted judgment against PAUL LENKOWSKY for costs and expenses of these proceedings in the amount of $2,603.75 together with interest at the legal rate from the date of this judgment.
DATED this _____ day of _______ , 2009.
TO:
Paul Lenkowsky, Respondent (Certified Mail, Return Receipt and Regular Mail)
J. Scott Rhodes, Respondent's Counsel
David L. Sandweiss, Bar Counsel
Christopher D. Thomas, Hearing Officer 8Z
Leticia V. D'Amore, Disciplinary Clerk (Cert. Copy)
Sandra Montoya, Lawyer Regulation Records Manager, State Bar of Arizona (Cert. Copy)
Molly Dwyer, Clerk, United States Court of Appeals for the Ninth Circuit (Cert. Copy)
Richard Weare, Clerk, United States District Court, District of Arizona (Cert. Copy)