In re a Member of the State Bar of Arizona, Engan

825 P.2d 468, 170 Ariz. 409, 106 Ariz. Adv. Rep. 19, 1992 Ariz. LEXIS 19
CourtArizona Supreme Court
DecidedFebruary 13, 1992
DocketNo. SB-91-0047-D
StatusPublished
Cited by3 cases

This text of 825 P.2d 468 (In re a Member of the State Bar of Arizona, Engan) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re a Member of the State Bar of Arizona, Engan, 825 P.2d 468, 170 Ariz. 409, 106 Ariz. Adv. Rep. 19, 1992 Ariz. LEXIS 19 (Ark. 1992).

Opinion

OPINION

FELDMAN, Chief Justice.

The Disciplinary Commission of the Supreme Court (Commission) recommended that Thomas Keith Engan (Respondent) be disbarred and ordered to pay restitution to his clients as well as costs and expenses incurred by the State Bar of Arizona (State Bar) in this matter. Respondent did not file a notice of appeal with the Commission, so the matter was submitted to us for review on the record filed by the Commission. We have jurisdiction pursuant to Rule 53(e), Ariz.R.Sup.Ct., 17A A.R.S. (hereinafter Rule _).

FACTS AND PROCEDURAL HISTORY

On January 5, 1990, the State Bar filed a formal complaint with Hearing Committee 5A (Committee) against Respondent, charging him with eleven counts of violating the Arizona Rules of Professional Conduct, Rule 42 (hereinafter ER_). The State Bar accused Respondent of numerous infractions resulting from: failure to communicate adequately with clients; failure to respond to reasonable requests for information from clients; failure to represent clients diligently and competently; failure to return or provide files to a client; failure to respond to, and disclose information requested by, the State Bar; failure to perform work for which Respondent was hired; failure to abide by clients’ decisions concerning the objectives of representation; failure to remit funds to clients; and failure to appear on a client’s behalf at a hearing. Specifically, the State Bar charged Respondent with violating the following rules: ER1.1, 1.2,1.3, 1.4, 1.5, 1.15, [410]*4101.16(d), 8.1(b), and 8.4(c) of Rule 42 and Rule 51(b), (h), and (i).

The complaint was deemed admitted when Respondent failed to file a timely response to the State Bar’s complaint. See Rule 53(c)(1). Although Respondent was sent notice of his opportunity to be heard, he did not request a hearing within the requisite ten days.

On June 12, 1990, six days after the complaint was deemed admitted, the chair of the Committee received a document in the mail entitled “Answer and Motion to Continue Hearing” bearing Respondent’s name and the caption of the complaint. Respondent neither signed nor dated the document, nor did he send it to anyone other than the chair. The Committee declined to accept the document. Respondent made no other attempt to contest or set aside the order deeming the complaint admitted. The Committee recommended that Respondent be suspended for three years.

Although Respondent did not waive his right to appear before the Commission, he in fact did not appear before it. The Commission unanimously adopted the Committee’s findings of fact and conclusions of law. The Commission, however, rejected the Committee’s recommendation of suspension and, instead, recommended that Respondent: (1) be disbarred; (2) pay restitution in the amount of $1,995; and (3) pay the costs incurred by the State Bar.

When Respondent failed to appeal from the Commission’s report, this matter was submitted to this court on the record, pursuant to Rule 53(e).

DISCUSSION

A. Standard of Review

In disciplinary proceedings, this court acts as an independent “trier of both fact and law.” In re Lincoln, 165 Ariz. 233, 235, 798 P.2d 371, 373 (1990) (quoting In re Neville, 147 Ariz. 106, 108, 708 P.2d 1297, 1299 (1985)). Although we give serious consideration to findings of the Committee and the Commission, “we must be persuaded by clear and convincing evidence that [Respondent committed the alleged violations.” Lincoln, 165 Ariz. at 235, 798 P.2d at 373 (citing Rule 54(c)). Further, we bear the ultimate responsibility for determining the appropriate sanction. Lincoln, 165 Ariz. at 235-36, 798 P.2d at 373-74 (citing Neville, 147 Ariz. at 115, 708 P.2d at 1306); see Rule 53(e)(1).

B. Respondent’s Violations

The allegations in the State Bar’s complaint were deemed admitted by Respondent’s failure to answer. Rule 53(c)(1); In re Zang, 158 Ariz. 251, 252, 762 P.2d 538, 539 (1988) (applying Rule 53(c)(1)). Given these admissions, the record establishes that Respondent repeatedly violated a wide variety of ethical obligations. For example, Respondent violated his ethical duties of communication and diligence to seven separate clients since 1987. In addition to several counts of violating his duty of competence and failing to return clients’ funds, Respondent failed to appear at a client’s hearing and even refused to give permission to Child Support Services to assist that client.

Moreover, Respondent’s failure to cooperate with the State Bar’s investigation of his conduct also violated the disciplinary rules. See, e.g., In re MacAskill, 163 Ariz. 354, 788 P.2d 87 (1990). Respondent failed to respond to any of nineteen separate letters from the State Bar requesting information concerning the representation of six different clients. Respondent also failed to respond in a timely manner to State Bar allegations concerning representation of the seventh client.

Respondent has blatantly disregarded his clients’ interests in seven separate matters. Respondent also has virtually ignored the State Bar’s attempts to investigate these matters. Therefore, we find by clear and convincing evidence that Respondent committed the violations alleged by the State Bar in the complaint, found by the Committee, and adopted by the Commission.

C. Sanctions

Recommendations of the Committee are entitled to serious consideration, In re Pappas, 159 Ariz. 516, 518, 768 P.2d 1161, 1163 [411]*411(1988) (citing Neville, 147 Ariz. at 108, 708 P.2d at 1299), and we give them “great weight,” Lincoln, 165 Ariz. at 235, 798 P.2d at 373 (citing Neville, 147 Ariz. at 115, 708 P.2d at 1306).

In determining the appropriate sanction, we must remember that “the purpose of bar discipline is not to punish the lawyer but to deter others and protect the public.” In re Kersting, 151 Ariz. 171, 179, 726 P.2d 587, 595 (1986) (citing In re Swartz, 141 Ariz. 266, 277, 686 P.2d 1236, 1247 (1984)). The American Bar Association’s Standards for Imposing Lawyer Sanctions (1986) (ABA Standards) aids our deliberations, especially where the Commission disagrees with the Committee’s recommendation. In re Arrick, 161 Ariz. 16, 22, 775 P.2d 1080, 1086 (1989).

Respondent’s failure to pursue matters diligently on behalf of clients, perform services for which he was retained, and appear on his client’s behalf at a hearing resulted in injury to four clients. The ABA Standards

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825 P.2d 468, 170 Ariz. 409, 106 Ariz. Adv. Rep. 19, 1992 Ariz. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-a-member-of-the-state-bar-of-arizona-engan-ariz-1992.