In re Feeley

814 P.2d 777, 168 Ariz. 436, 92 Ariz. Adv. Rep. 15, 1991 Ariz. LEXIS 62
CourtArizona Supreme Court
DecidedJuly 25, 1991
DocketNo. SB-88-0063-D, Disc.Comm. No. 87-0162
StatusPublished
Cited by1 cases

This text of 814 P.2d 777 (In re Feeley) 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 Feeley, 814 P.2d 777, 168 Ariz. 436, 92 Ariz. Adv. Rep. 15, 1991 Ariz. LEXIS 62 (Ark. 1991).

Opinion

OPINION

CAMERON, Justice.

I. JURISDICTION

Respondent, James B. Feeley, appeals a decision of the Disciplinary Commission of the Supreme Court of Arizona (Commission) recommending that he be suspended from the practice of law for six months, that as a condition precedent to reinstatement he pay restitution to his client, and ordering him to pay costs of $2,152.60 to the State Bar of Arizona (Bar). We have jurisdiction pursuant to 17A A.R.S. Sup.Ct. Rules, rule 53(e).

II. FACTUAL AND PROCEDURAL HISTORY

The facts of the violation are not in dispute. In March 1984, Mr. and Mrs. Frederick Aldorasi (the Aldorasis) retained respondent, who had been in practice since 1969, to bring suit against five defendants. Respondent failed to act diligently and the trial court dismissed the matter for failure to follow procedural rules. In December 1985, the Aldorasis contacted respondent. He did not tell them that the matter had been dismissed, but instead told them that the case was set for trial. Respondent followed up with a letter confirming the trial date. On 9 January 1986, respondent told the Aldorasis that the trial date was vacated and that the judge decided to dispose of the case by summary judgment pursuant to rule 56, Arizona Rules of Civil Procedure. When the Aldorasis independently reviewed court records and discovered that the matter had been dismissed, they sued respondent and obtained a $50,000 settlement. Respondent paid the Aldorasis $5,000 and gave them a fourth position deed of trust on his home. The first lien holder foreclosed on the home, causing the Aldorasis to lose their security interest. When respondent defaulted on the settlement, the Aldorasis again filed suit and obtained a $45,000 judgment. The Aldorasis then filed a complaint with the Bar.

The Bar filed a complaint against respondent on 2 March 1988, alleging in two counts that he had violated the Rules of Professional Conduct, rule 42, Ariz.Sup.Ct. Rules, particularly, Ethical Rules (ERs) 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), and 8.4(c) (Misconduct). After a hearing on 1 June 1988, the Hearing Committee (Committee) recommended respondent’s suspension for six months, conditioning reinstatement on paying the Aldorasis’ $45,000 judgment against him. The Commission adopted this recommendation. The matter was filed in this court and, upon respondent’s and Bar counsel’s stipulation, the matter was returned to the Committee to consider additional aggravating and mitigating evidence. By this time respondent had retained counsel.

At the Committee hearing held on 12 September 1989, respondent relied on the testimony of Dr. Francis Enos, a psychologist, who testified that respondent suffered from “mixed dominance,” which results from forcing a naturally left-handed person to function as a right-handed person. Dr. Enos’ testimony, however, did not show that “mixed-dominance” caused respondent’s behavior. The Committee continued the hearing to allow Bar counsel and respondent additional time to obtain financial information. On 2 August 1990, the Committee met and heard evidence and made the following findings:

1. At the last previous hearing before this Committee on September 12, 1989, Respondent (by then represented by experienced counsel) expressed a commitment to satisfy the judgment obtained against him by his former clients, Frederick and Doris Aldorasi (“Aldorasis”). The Committee made it crystal clear that this issue had become very important in the Committee’s assessment of how seriously Respondent was treating the whole disciplinary process.
2. At the September 12, 1989, hearing, Respondent presented the Aldorasis with [438]*438a check in the amount of $10,000, which represented partial satisfaction of the judgment.
3. In October 1989, Respondent paid the Aldorasis another $1,000.
4. Other than the two payments mentioned above, no further payments have been made or tendered by Respondent to the Aldorasis. Nothing.
5. During the last three calendar years, Respondent’s gross fee revenues from his law practice have totalled the following:
1987 $198,927.93
1988 187,389.76
1989 198,619.01
6. During the last three calendar years, Respondent’s law practice statements of income reflect that $57,052.90 of the fee revenues have been spent on a “show truck”, said costs being deducted as a “professional expense”.1 During those same three years, Respondent had maintained a membership in an athletic club. 7. The income statements prepared by Respondent’s certified public accountant and the financial statements prepared at the request of the State Bar both reflect that Respondent had sufficient funds available to make substantial payments to the Aldorasis in satisfaction of the judgment. Even Respondent acknowledged that he could have made some payment. (Emphasis in the original).

The largest amount that the Aldorasis received at any one time was $23,400 from the attachment and sale of respondent’s 1984 Porsche 928. The Committee declined to mitigate the original discipline and recommended that it should be modified as follows:

The six month suspension should commence 90 days after the Supreme Court issues its mandate in this matter. That will give Respondent every reasonable opportunity to pay off the Aldorasi judgment. If the judgment is satisfied prior to the expiration of the six months suspension, and evidence of the satisfaction is received by the State Bar prior to that time, the suspension will expire at the end of the six months period. If the judgment is not paid by that time, the Committee recommends that the respondent be suspended for one year.

The Commission agreed with the Committee as to its findings of fact and conclusions of law, but disagreed with the sanction. The Commission recommended the six month suspension and that respondent pay restitution to the Aldorasis. Further, the Commission recommended payment of the restitution as a condition precedent to reinstatement.

III. DISCUSSION

As noted above, respondent is charged with violating ERs 1.1 (Competence) and 1.3 (Diligence) in failing to take action to set aside the dismissal of the Aldorasis’ lawsuit and to protect their rights, 1.4(a) (Communication) in failing to keep the Aldorasis informed about the status of their lawsuit, and 8.4(c) (Misconduct) in misrepresenting to the Aldorasis that the lawsuit had been set for trial, when respondent knew that it had been dismissed.

Reviewing the record as the trier of fact and seriously considering the Bar’s recommendation, we believe that there is clear and convincing evidence, see In re Cardenas, 164 Ariz. 149, 151, 791 P.2d 1032, 1034 (1990), that respondent violated the ethical rules enumerated above. Thus, we need only determine the sanction to apply. The American Bar Association’s Standards for Imposing Lawyer Sanctions (1986) (Standards) are a “useful tool in determining the proper sanction to [apply].” Cardenas, 164 Ariz. at 152, 791 P.2d at 1035. Standard 4.42 recommends suspension when:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re a Member of the State Bar of Arizona, Carrasco
862 P.2d 219 (Arizona Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
814 P.2d 777, 168 Ariz. 436, 92 Ariz. Adv. Rep. 15, 1991 Ariz. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-feeley-ariz-1991.