In Re Coffey

832 P.2d 197, 171 Ariz. 544, 113 Ariz. Adv. Rep. 3, 1992 Ariz. LEXIS 37
CourtArizona Supreme Court
DecidedMay 19, 1992
DocketSB-91-0020-D. Disc. Comm. Nos. 87-0245, 88-0608 and 88-0984
StatusPublished
Cited by9 cases

This text of 832 P.2d 197 (In Re Coffey) 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 Coffey, 832 P.2d 197, 171 Ariz. 544, 113 Ariz. Adv. Rep. 3, 1992 Ariz. LEXIS 37 (Ark. 1992).

Opinion

OPINION

MOELLER, Justice.

JURISDICTION

This is a State Bar disciplinary proceeding. The State Bar filed two complaints, charging a total of twenty ethical violations, against Respondent in connection with his representation of three clients. Because Respondent failed to answer the first complaint, its allegations were deemed admitted pursuant to Rule 53(c)(1), Arizona Rules of the Supreme Court, 17A A.R.S. [hereinafter Rule —]. Respondent filed an answer to the second complaint, admitting all of its allegations. The Hearing Committee recommended that Respondent be reprimanded and ordered to pay restitution and costs. The Disciplinary Commission recommended instead that Respondent be suspended for six months and be placed on probation for one year after the suspension. Respondent appeals, arguing that the Commission’s recommendation is too severe. Because all the factual allegations are admitted, our inquiry focuses principally on the propriety of the recommended sanction. We have jurisdiction pursuant to Ariz. Const, art. 3 and art. 6, § 1, and Rule 53(e).

FACTUAL AND PROCEDURAL HISTORY

I. The First Complaint

The State Bar’s first complaint related to Respondent’s representation of client A in a malicious prosecution action and alleged that Respondent: (1) failed to respond to numerous requests for information and failed to inform his client that a summary judgment had been granted against him; (2) failed adequately to research and prepare the action and took nearly a year to prepare the complaint; and (3) failed to respond to a motion for summary judgment and failed to notify the client that the motion had been filed. As a result, Respondent was charged with: (1) failure to maintain adequate communication with his client in violation of Rule 42, ER 1.4, and former Rule 29(a), 1 DR 6-101(A)(3); (2) incompetent representation in violation of ER I. 1 and DR 6-101(A)(2); and (3) lack of diligence in violation of ER 1.3 and DR 6-101(A)(3).

Because Respondent failed to answer the first complaint, the Committee, pursuant to Rule 53(c)(1), deemed the allegations of the complaint admitted.

II. The Second Complaint

The State Bar filed its second complaint on February 9, 1990, alleging that Respondent failed to pursue legal matters promptly and diligently, failed to pay creditors of an estate, failed to maintain adequate communication with his clients and the beneficiaries of the estate, and failed to return client files and documents. Respondent was charged with violating ER 1.1, ER 1.3, ER 1.4, ER 1.5(b) (fees), ER 1.15(b) (safekeeping property) and ER 1.16(d) (terminating representation). Because of his failure to respond promptly to the State Bar’s numerous requests for information, he was also charged with violating ER 8.1(b) (failure to disclose), Rule 51(h) (responding to *546 bar inquiries) and Rule 51(i) (cooperating with state bar).

The second complaint was based on letters written to the Bar by clients B and C expressing dissatisfaction with Respondent’s representation. On April 18, 1988, the State Bar notified Respondent by letter of the charges filed against him by client B. Respondent failed to respond to the State Bar’s letter within the requested twenty days. The State Bar sent supplemental allegations to Respondent on May 23, 1988. On June' 8, 1988, the State Bar again wrote to Respondent regarding the charges. Finally, on July 1,1988, the State Bar again requested a response and, on that same day, received a response to its initial inquiry. In it, Respondent admitted that he had been lax in completing the probate in question and in corresponding with the personal representative of the estate.

In the meantime, on June 29, 1988, the State Bar notified Respondent in writing of the charges associated with client C and requested a response within twenty days. Receiving no response, the State Bar again notified Respondent of the charges on July 27, 1988, and requested a response within fifteen days. When Respondent did not comply with this request, the State Bar sent a third notice of the charges on August 24, 1988. A response was finally received on September 26, 1988, which stated that the file in question had been placed in closed storage.

Respondent filed an answer to the second complaint admitting all of its allegations. The Committee informed Respondent of his right to be heard in mitigation provided he made a request within ten days. Respondent did not request a mitigation hearing.

III. Disciplinary Commission Proceedings

The Committee granted the State Bar’s motion to consolidate the two complaints. The Committee report concluded that Respondent had committed twenty ethical violations and recommended that Respondent receive a reprimand, pay restitution to his clients and pay for the costs of the proceedings. The State Bar objected to the Committee’s recommendation of a reprimand, contending that it was an insufficient sanction.

At oral argument before the Commission, Respondent and the State Bar stipulated to expand the record on appeal to include documents in the screening files. Those files had not been reviewed by the Committee. By a vote of 8 to 0, the Commission adopted the findings and conclusions of the Committee, but rejected the Committee’s recommended sanction of reprimand. Instead, the Commission recommended that Respondent be suspended for six months and placed on probation for one year thereafter. Respondent appealed to this court which took the matter under advisement following oral argument.

DISCUSSION

Although we give considerable deference to the Committee’s and Commission’s recommendations, this court bears the ultimate responsibility for determining appropriate sanctions in bar discipline cases. In re Lincoln, 165 Ariz. 233, 235-36, 798 P.2d 371, 373-74 (1990) (citing In re Neville, 147 Ariz. 106, 115, 708 P.2d 1297, 1306 (1985)). In determining the appropriate sanction, we are guided by the principle that “[t]he object of disciplinary proceedings is not to punish the lawyer, but to protect the public and deter similar conduct by other lawyers.” In re Rivkind, 164 Ariz. 154, 157, 791 P.2d 1037, 1040 (1990). For guidance, we may look to the American Bar Association’s Standards for Imposing Lawyer Sanctions (1986) (Standards), which we consider a “useful tool in determining the proper sanction.” In re Cardenas, 164 Ariz. 149, 152, 791 P.2d 1032, 1035 (1990). When imposing sanctions, the court should consider: “(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.” In re Anderson, 163 Ariz. 362, 365, 788 P.2d 95, 98 (1990) (quoting Standard 3.0).

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Bluebook (online)
832 P.2d 197, 171 Ariz. 544, 113 Ariz. Adv. Rep. 3, 1992 Ariz. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-coffey-ariz-1992.