Matter of Henry

811 P.2d 1078, 168 Ariz. 141, 85 Ariz. Adv. Rep. 37, 1991 Ariz. LEXIS 41
CourtArizona Supreme Court
DecidedApril 25, 1991
DocketSB-90-0070-D
StatusPublished
Cited by5 cases

This text of 811 P.2d 1078 (Matter of Henry) 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
Matter of Henry, 811 P.2d 1078, 168 Ariz. 141, 85 Ariz. Adv. Rep. 37, 1991 Ariz. LEXIS 41 (Ark. 1991).

Opinion

OPINION

GORDON, Chief Justice.

JURISDICTION

The Disciplinary Commission of the Supreme Court of Arizona (Commission) recommended that James Cy Henry (respondent) be disbarred from the practice of law in Arizona, make restitution to two former clients, and pay $985.95 in costs to the State Bar of Arizona (Bar). We have jurisdiction pursuant to 17A A.R.S.Sup.Ct. Rules, Rule 53(e).

FACTUAL AND PROCEDURAL HISTORY

The Bar filed a complaint against respondent on July 31, 1989, charging him with two counts of ethical violations. Count one charged respondent with failure to competently or diligently pursue a client’s case and failure to respond to the Bar’s inquiries. Linda Landsberry hired respondent to handle the probate of her father’s estate. She paid respondent $616.13 in legal fees. Respondent did no work other than the initial filing of probate papers. He also failed to respond to reasonable requests for information from his client.

Count two charged respondent with failure to competently or diligently pursue his clients’ claim. Richard and Sharon Talbott retained respondent to recover damages from DeLaurentis Productions for back rent and damage to a motor home. Respondent did no work on the case. In addition, the complaint charged he did not adequately communicate with his clients regarding the status of their case, and has not adequately safeguarded or returned their file. He also failed to respond to Bar inquiries regarding this particular complaint.

Respondent failed to appear at any stage of the proceedings before the State Bar Hearing Committee (Committee) or the Commission. He filed no responses to any of the reports or recommendations regarding his status.

During the Committee hearing, Bar counsel presented evidence that the Talbotts received a $1,700 check from DeLaurentis, which respondent persuaded them to give to him for safekeeping. Respondent then converted the funds. The Committee *143 amended the complaint to reflect the conversion claim.

Following the hearing, the Committee found respondent in violation of the Rules of Professional Conduct, rules 42 and 51(h) and (i), specifically ER 1.1 (competently representing a client), ER 1.3 (acting with reasonable diligence and promptness in representing a client), ER 1.4 (communicating with a client), ER 1.15(a), (b), and (c) (safekeeping a client's property), ER 1.16(d) (taking steps to protect a client’s interest upon termination of representation), ER 8.1(b) (failing to respond to a lawful demand for information from a disciplinary authority), ER 8.4(b) and (c) (committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). The Committee recommended a one-year suspension, followed by a two-year probationary period, and restitution to the Talbotts and Ms. Landsberry.

The Commission adopted the Committee’s findings of facts and conclusions of law, but rejected its recommendation of suspension and probation. By a unanimous vote, the Commission recommended that respondent be disbarred from the practice of law in Arizona. The Commission also ordered that respondent pay $616.13 in restitution to Ms. Landsberry. However, if respondent paid a filing fee and the probate matter was not dismissed, the filing fee should be deducted from the restitution. It also ordered that respondent pay restitution to Richard and Sharon Talbott in the amount of $1,700, with interest at the rate of ten percent per year from December 1, 1986. Respondent must also pay $985.95 in costs to the Bar. In recommending these sanctions, the Commission found a pattern of knowing, intentional misconduct that included acts of dishonesty. It concluded that disbarment was the proper sanction, particularly in light of respondent’s previous disciplinary sanctions. (Respondent had been censured twice by Bar for lack of diligence and failure to communicate with clients).

DISCUSSION

Although this court acts as an independent trier of fact and law when exercising its supervisory responsibilities over the Bar, we give serious deference to the reports and recommendations of the Committee and Commission. In re Galusha, 164 Ariz. 503, 504, 794 P.2d 136, 137 (1990) (citation omitted). We must be persuaded by clear and convincing evidence that respondent committed professional misconduct before we impose discipline. In re Pappas, 159 Ariz. 516, 518, 768 P.2d 1161, 1163 (1988) (citation omitted). In determining appropriate discipline, we are guided by the American Bar Association’s Standards for Imposing Lawyer Sanctions (1986) (Standards). In re Fresquez, 162 Ariz. 328, 334, 783 P.2d 774, 780 (1989).

In this case, respondent’s failure to file an answer to the Bar’s complaint constitutes an admission of the charges against him. Galusha, 164 Ariz. at 504, 794 P.2d at 137; 17A A.R.S.Sup.Ct.Rules, Rule 53(c)(1). Additionally, after reviewing the record, we conclude that clear and convincing evidence exists to support the charges in the complaint.

The purpose of lawyer discipline is to protect the public, the administration of justice, and the integrity of the legal system. It is not to punish the respondent. In re Nefstead, 163 Ariz. 518, 519, 789 P.2d 385, 386 (1990) (citing Pappas, 159 Ariz. at 526, 768 P.2d at 1171); see also Standards 1.1. Among the factors we consider in determining the appropriate sanction are (1) the duty violated, (2) the lawyer’s mental state, (3) the actual or potential injury caused by the lawyer’s misconduct, and (4) the existence of aggravating or mitigating factors. Nefstead, 163 Ariz. at 520, 789 P.2d at 387 (citation omitted); Standards 3.0. In this ease, the complaint charged respondent with violating his duty to act with diligence and competence on behalf of his clients. Duties owed to a client are among an attorney’s most important ethical duties. Galusha, 164 Ariz. at 504, 794 P.2d at 137. Standard 4.41 (lack of diligence) recommends disbarment when:

*144 (a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.

The commentary to 4.41 states that disbarment is an appropriate remedy when a lawyer leaves his clients unaware that they have no legal representation or knowingly fails to perform services for the client.

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Related

In Re Non-Member of State Bar, Van Dox
152 P.3d 1183 (Arizona Supreme Court, 2007)
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Matter of Wolfram
847 P.2d 94 (Arizona Supreme Court, 1993)
In re a Disbarred Member of the State Bar of Arizona, Henry
821 P.2d 1374 (Arizona Supreme Court, 1992)

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Bluebook (online)
811 P.2d 1078, 168 Ariz. 141, 85 Ariz. Adv. Rep. 37, 1991 Ariz. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-henry-ariz-1991.