Brown, In re

• Decision Date: 25 July 1966
• Docket Number: No. 8665,8665
• Citation: 416 P.2d 975,101 Ariz. 178
• Parties: In the Matter of a Member of the State Bar of Arizona, Franis J. BROWN, Respondent.
• Court: Arizona Supreme Court

Page 975

416 P.2d 975

101 Ariz. 178

In the Matter of a Member of the State Bar of Arizona, Franis J. BROWN, Respondent.

No. 8665.

Supreme Court of Arizona, In Banc.

July 25, 1966.

Edmond J. Brash and Leon S. Jacobs, Phoenix, for respondent.

John S. Hobbs, Jennings, Strouss, Salmon & Trask, Phoenix, for State Bar.

McFARLAND, Justice.

Formal charges were filed against Francis J. Brown, hereinafter referred to as respondent, to the effect that he had violated the Canons of Professional Ethics of an attorney in that his conduct was in violation of Canon 44. Canon 44 deals with the right of an attorney to withdraw from employment once it is undertaken. This Canon states that a lawyer can withdraw from a case only for good cause and that even the desire and consent of his client is not always sufficient; that a lawyer cannot 'throw up the unfinished task to the detriment of his client except for reasons of honor or self respect'--also that even in a proper case the lawyer may withdraw from his employment only after due notice to his client so that he may employ other counsel.

On April 16, 1964 respondent was charged with the following violation:

"That shortly after January 28, 1959, one Amos W. Lake, et ux., dba A. W. Lake Company retained Respondent to represent them in connection with an action against them by Union Interchange, Inc., a California corporation; that this matter was ultimately set down for trial and that the Respondent intentionally failed to appear on the day set and failed to properly petition the court for leave to withdraw as counsel for the said Amos W. Lake, et ux., dba A. W. Lake Company, and failed to give timely notice to the said Amos W. Lake, et ux., dba A. W. Lake Company, of his intention not to appear at said trial, which failures resulted in a judgment by default against the said Amos W. Lake, et ux., dba A. W. Lake Company, to the detriment and damages of said defendants; all of which constitute violations of ARS 32--267(8) and Canon 44 of the Canons of Professional Ethics."

The evidence presented before the bar was to the effect that Union Interchange, Inc., a California corporation, in 1959 sued one Amos W. Lake, et ux., dba A. W. Lake Company, hereinafter referred to as Lake, for payment of a contract for an ad in the U. I. Brokers Bulletin and the U. I. Buyers Digest for the sale of his place. He took a copy of the summons and complaint to the respondent, and according to Lake's testimony, respondent told him that some cases in regard to Union Interchange, Inc. had already been tried in Arizona and for him not to worry about it--that it would be dismissed.

The time to answer was extended by agreement with the attorney for Union Interchange, Inc. and after approximately one year had elapsed, respondent filed an answer. Lake advanced the cash for filing the answer.

The answer set up two defenses, the first being that Union Interchange, Inc. was a California corporation and had not qualified to transact business within the state of Arizona. The second was an allegation of fraud.

In March, 1960 Union Interchange, Inc. filed a motion to set the case for trial and it was set down for trial on October 25, 1961. On August 23, 1961 respondent's secretary notified Lake that the case was set for trial on October 25, 1961. On October 24, 1961, the day before the trial, she again notified Lake and informed him that she had been unable to get in touch with respondent. Neither Lake nor respondent appeared at the trial and default judgment was taken against Lake in the sum of $598.30.

The Bar Association of the State of Arizona did not make any finding of facts, but did find 'that the respondent intentionally failed to appear at the trial of which he had ample notice.' We have recognized that evidence of unprofessional conduct by attorneys must be clear and convincing before disciplinary action is taken. In re Rogers, 100 Ariz. 214, 412 P.2d 710; In re Lewkowitz, 70 Ariz. 325, 220 P.2d 229; In re Sweeney, 51 Ariz. 9, 73 P.2d 1349; In re Myrland, 43 Ariz. 126, 29 P.2d 483.

We have also held that this court is a trier of the ultimate facts. In re Tribble, 94 Ariz. 129, 382 P.2d 237. We have recognized, however, that the recommendations of the Board of Governors should have serious consideration. In re Rogers, supra; In re MacDonald, 56 Ariz. 120, 105 P.2d 1114.

We agree with the finding of the Bar Association that the respondent intentionally did not appear at the trial; however, this case requires a finding of the facts as to why he did not appear at the trial.

There is conflict in the testimony of Lake and respondent. The evidence shows that Lake had both financial and domestic difficulties and respondent had helped him and advised him as to both. In this regard Lake testified 'that he was a help.' Lake said the first time he went to respondent it was for assistance in establishing his identity as the only heir to his mother. For this he paid a fee of $20.00. The remainder of the cases were advisory, for which no fees were paid, or were for collections of accounts on a contingent basis in which respondent retained a percentage of the money collected for his fee.

Lake testified that he took the summons and complaint filed against him in the Union Interchange, Inc. case to respondent; that respondent told him there had already been cases filed by Union Interchange, Inc. against others and that 'they would dismiss it, just throw it out because they are not supposed to operate here.' Lake also said he did not discuss attorney fees with respondent concerning that particular lawsuit--that there was not to be a lawsuit. He also said that he never again, until after judgment, discussed the case with respondent, but admitted he had seen him many times and discussed other cases with him.

Respondent testified Lake was in financial difficulties and had come to him on numerous matters and that he had tried to help him; that the only fee Lake paid him was the $20.00 in regard to his mother's estate. He said Lake had come to him when he had been served with the summons and complaint by Union Interchange, Inc. and told him he was in financial difficulties. Respondent said he filed the answer containing the two counts as...