Augenstein, Matter of, SB-92-0065-D
| Decision Date | 24 March 1994 |
| Docket Number | No. SB-92-0065-D,SB-92-0065-D |
| Parties | In the Matter of a Member of the State Bar of Arizona, Steven Todd AUGENSTEIN, Respondent. |
| Court | Arizona Supreme Court |
On October 16, 1992, the Disciplinary Commission of the Supreme Court of Arizona (Commission) issued its report recommending that Steven Todd Augenstein (respondent) be suspended from the practice of law for 2 years. We have jurisdiction to consider this matter pursuant to rule 53(e), Arizona Rules of the Supreme Court.
On May 8, 1991, the State Bar of Arizona (State Bar) filed a formal complaint against respondent charging him with 3 counts of violating rules 42 and 51, Arizona Rules of the Supreme Court. The complaint pertained to respondent's representation of 3 different clients.
Count I arose out of respondent's representation of client A 1 in a personal injury action, and alleged that he (1) failed to competently and diligently represent client A by neglecting to have the civil complaint that he filed on the client's behalf served on the defendant; (2) failed to take steps to prevent the client's suit from being dismissed for lack of prosecution; and (3) failed to inform his client that the case had been dismissed. Based on these allegations, respondent was charged with violating Ethical Rules (ERs) 1.1, 1.3, and 1.4 of rule 42, Arizona Rules of the Supreme Court. Additionally, Count I alleged that respondent failed to cooperate with the State Bar's investigation into the matter by not responding to 3 letters requesting information, in violation of ER 8.1 of rule 42, and rules 51(h) and (i), Arizona Rules of the Supreme Court.
Count II arose out of respondent's representation of client B in a personal injury action, and alleged that he (1) failed to diligently represent client B by allowing the client's suit to be dismissed for lack of prosecution, even though he received a minute entry from the court notifying him of the pending dismissal; (2) failed to inform the client that the suit had been dismissed; and (3) failed to communicate with the client, despite requests for information. Based on these allegations, respondent was charged with violating ERs 1.3, 1.4, 3.2, and 8.4. Count II also alleged that respondent failed to cooperate with the State Bar's investigation into the matter by not responding to 2 letters requesting information, in violation of ER 8.1, and rules 51(h) and (i).
Count III arose out of respondent's representation of client C, who retained respondent both to settle the estate of the client's deceased mother and to pursue a wrongful death action on the estate's behalf. Count III alleged that respondent (1) failed to take reasonable steps to close the estate; (2) failed to investigate adequately the wrongful death claim; and (3) failed to respond adequately to the client's requests for information. Based on these allegations, respondent was charged with violating ERs 1.3, 1.4, and 3.2. Count III further charged respondent with failure to cooperate with the State Bar's investigation into the matter by not responding to 2 letters requesting information, in violation of ER 8.1, and rules 51(h) and (i).
Respondent was personally served with the complaint, but he failed to answer. Thus, the allegations in the complaint were deemed admitted pursuant to rule 53(c)(1), Arizona Rules of the Supreme Court. Copies of both the Order of Complaint Deemed Admitted and the Notice of Right to be Heard were mailed to the address at which respondent had been personally served.
The State Bar Hearing Committee (Committee) convened to consider this matter on July 18, 1991. In its report, which was issued on September 3, 1991, the Committee determined that the allegations deemed admitted by respondent's failure to answer the complaint clearly and convincingly supported a finding of the following violations under rule 42, Arizona Rules of the Supreme Court:
Regarding Count I, respondent's conduct violated ERs 1.1, 1.3, and 1.4;
Regarding Count II, respondent's conduct violated ERs 1.3, 1.4, and 3.2;
Regarding Count III, respondent's conduct violated ERs 1.3, 1.4, and 3.2.
The Committee also found that by failing to respond to and cooperate with the State Bar, respondent violated ER 8.1, and rules 51(h) and (i).
Based on the above findings, the Committee unanimously recommended that respondent be suspended from the practice of law for 6 months and 1 day. In so doing, however, the Committee indicated that it would have unanimously recommended disbarment had it not felt restricted by the proportionality implications of In re Hiser, 168 Ariz. 359, 813 P.2d 724 (1991).
On November 16, 1991, the Commission held a hearing in this matter, at which respondent made his first appearance in these proceedings. Respondent did not request a mitigation hearing at that time. The Commission, believing that Hiser was distinguishable from respondent's case, remanded the matter to the Committee with instructions to reconsider its recommended sanction without regard to Hiser. Moreover, the Commission's order gave respondent another opportunity to request an aggravation/mitigation hearing.
Respondent requested the aggravation/mitigation hearing, which was held on April 7, 1992. Both respondent and State Bar counsel were present, and respondent, client A, and client C testified. On June 12, 1992, the Committee issued a second report in which it adopted and incorporated by reference the findings of fact as set forth in its first report. It also found the following aggravating factors: (1) a pattern of misconduct; (2) multiple offenses; (3) failure to cooperate with the State Bar; and (4) vulnerability of at least one of the victims. Additionally, the Committee found the following mitigating factors: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) personal and emotional problems; and (4) remorse. After considering the above findings, the Committee recommended that respondent be suspended for 120 days followed by a 2-year probation subject to certain conditions. 2
The State Bar objected to the Committee's report, and on September 12, 1992, this matter came before the Commission for the second time. In its report, the Commission found that the record failed to support the Committee's findings of both remorse and personal and emotional problems. The Commission found that the record did, however, support two additional aggravating factors: indifference to making restitution and substantial experience in the practice of law. By unanimous vote of an 8-member panel, the Commission rejected the Committee's recommendation of a 120-day suspension and recommended instead that respondent be suspended for 2 years.
In disciplinary matters, this court acts as an independent arbiter of both the facts and the law. In re Neville, 147 Ariz. 106, 108, 708 P.2d 1297, 1299 (1985). In acting as an arbiter of the facts, we give deference and serious consideration to the findings of both the Committee and the Commission. In re Pappas, 159 Ariz. 516, 518, 768 P.2d 1161, 1163 (1988), citing Neville, 147 Ariz. at 108, 708 P.2d at 1299. Before imposing discipline, however, we must be persuaded by clear and convincing evidence that respondent committed the alleged violations. In re Kersting, 151 Ariz. 171, 172, 726 P.2d 587, 588 (1986); see also rule 54(c), Arizona Rules of the Supreme Court.
Similarly, in acting as an arbiter of the law, we give great weight to the recommendations of the Committee and Commission. In re Lincoln, 165 Ariz. 233, 235-36, 798 P.2d 371, 373-74 (1990), citing Neville, 147 Ariz. at 115, 708 P.2d at 1306. Yet, this court ultimately is responsible for determining the appropriate sanction. Lincoln, 165 Ariz. at 236, 798 P.2d at 374.
After reviewing the record, we find by clear and convincing evidence that respondent did in fact commit the ethical violations found by the Committee and adopted by the Commission. We find as such not only because the allegations in the complaint are deemed admitted pursuant to rule 53(c)(1), but also because the record supports such a finding. Moreover, when respondent appeared in these proceedings, he did not contest his unethical behavior; he contested only the Commission's recommended sanction.
Although respondent admits that he committed the ethical violations found by the Committee and adopted by the Commission he urges this court to reject the sanction recommended by the Commission and to impose instead the sanction recommended by the Committee. Specifically, respondent argues that a 120-day suspension followed by probation, rather than a 2-year suspension, is appropriate in this case. We disagree.
In determining the appropriate sanction to impose in a disciplinary matter, we are guided by the principle that "the purpose of bar discipline is not to punish the lawyer but to deter others and protect the public." Kersting, 151 Ariz. at 179, 726 P.2d at 595. The American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (Standards ) further assist our determination, especially when the Commission's and the Committee's recommended sanctions differ. In re Arrick, 161 Ariz. 16, 22, 775 P.2d 1080, 1086 (1989). As a starting point, the Standards provide that a court should consider the following factors in determining the appropriate sanction: (a) the duty violated; (b) the lawyer's mental state; (c) the actual or potential injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors. See Standard 3.0.
Respondent violated a number of ethical duties that he owed both to his clients and to the legal system. The most serious of his...
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