Cardenas, Matter of

• Decision Date: 19 April 1990
• Docket Number: No. SB-89-0052-D,SB-89-0052-D
• Citation: Cardenas, Matter of, 791 P.2d 1032, 164 Ariz. 149 (Ariz. 1990)
• Parties: In the Matter of a Member of the State Bar of Arizona, Jesus Maria CARDENAS, Respondent.
• Court: Arizona Supreme Court

Page 1032

791 P.2d 1032

164 Ariz. 149

In the Matter of a Member of the State Bar of Arizona, Jesus Maria CARDENAS, Respondent.

No. SB-89-0052-D.

Supreme Court of Arizona In Banc.

April 19, 1990.

Jesus Maria Cardenas, Coolidge, pro se.

State Bar of Arizona by Harriet L. Turney, Chief Counsel, and Janet E. Barton, State Bar Counsel, Phoenix.

OPINION

CAMERON, Justice.

I.JURISDICTION

The Arizona State Bar Disciplinary Commission(Commission) recommends that Jesus Maria Cardenas be suspended from practice for six months and one day, ordered to pay $20,000 in restitution to his former client and $862 in costs to the State Bar of Arizona(Bar).We have jurisdiction pursuant to Rule 53(e), 17A A.R.S.Sup.Ct.Rules.

II.QUESTIONS PRESENTED

We consider two questions on appeal:

1) Did the respondent violate the Arizona Rules of Professional Conduct?

2) Were the recommended sanctions appropriate?

III.FACTS AND PROCEEDINGS

RespondentJesus Maria Cardenas was admitted to the Bar in 1974 and practiced in Coolidge, Arizona.On 29 July 1986, a complaint was lodged with the Bar alleging facts which indicated that respondent had violated the Arizona Rules of Professional Conduct, Rule 42, Rules of the Supreme Court.

Respondent failed to answer the complaint, or otherwise file any pleadings.He did, however, appear in person without counsel before both the State Bar Hearing Committee(Committee) and the Commission.He admitted that he had been negligent and stated that the sum of $25,000 was a proper amount for restitution, although he did not know where he would get the money to pay that amount.

The Committee made the following findings of fact and conclusions of law.

FINDINGS OF FACT

The Committee finds:

1.That Respondent agreed to represent Tim Harvey in a personal injury action even though Respondent had no prior experience in civil matters and, by his own admission, was not knowledgeable in such suits.

2.Respondent thereafter failed to pursue Mr. Harvey's case with reasonable diligence and promptness or to control his workload so that the matter could be handled adequately.

3.Respondent failed to inform Mr. Harvey of settlement offers received from the Defendants, including a settlement offer in the amount of $20,000.00 or to consult with Mr. Harvey prior to rejecting the same.

4.Respondent failed to file a Motion to Set and Certificate of Readiness or to seek and obtain an additional extension of Mr. Harvey's case on the inactive calendar in a timely manner as ordered by the Court which resulted in the dismissal of Mr. Harvey's lawsuit.

5.Respondent failed to inform Mr. Harvey in a timely manner that the trial court had dismissed his lawsuit as a result of Respondent's failure to file a timely Motion to Set and Certificate of Readiness or request an additional continuance of the case on the inactive calendar.

6.Respondent failed to consult with Mr. Harvey and obtain his consent before pursuing an appeal of the trial court's dismissal of his lawsuit.

7.Respondent failed to pay the $25.00 filing fee required by Division Two of the Arizona Court of Appeals although Respondent was informed by the Court of Appeals that such a filing fee was required, which resulted in the dismissal of Respondent's appeal from the trial court's dismissal of Mr. Harvey's lawsuit.

CONCLUSIONS OF LAW

1.Respondent failed to provide Mr. Harvey with competent representation, a violation of Rule 42, Rules of the Supreme Court, particularly ER 1.1;

2.Respondent failed to provide Mr. Harvey with accurate or complete information regarding his lawsuit, a violation of Rule 42, Rules of the Supreme Court, particularly ER 1.2;

3.Respondent failed to act with reasonable diligence and promptness throughout his representation of Mr. Harvey, a violation of Rule 42, Rules of the Supreme Court, particularly ER 1.3; and

4.Respondent failed to keep Mr. Harvey reasonably informed about the status of his lawsuit, a violation of Rule 42, Rules of the Supreme Court, particularly ER 1.4.

The Committee recommended that respondent be suspended for six months and pay restitution to the client in the amount of $25,000 with interest at the rate of 10% per annum from the date of this court's order.The respondent did not contest the findings of fact or conclusions of law.

The Commission affirmed the findings of fact and conclusions of law of the Committee, but rejected the sanctions recommended by the Committee.Instead, the Commission recommended suspension for six months and a day ¹ and restitution in the amount of $20,000 with interest at 10% per annum accruing from 25 August 1985.We agree with the Commission's action in affirming the Committee's findings of fact and conclusions of law.We disagree, however, with both the Commission and the Committee as to the proper sanctions that should be imposed.

IV.DID RESPONDENT VIOLATE THE ARIZONA RULES OF PROFESSIONAL CONDUCT?

Pursuant to Rule 42 of the Rules of the Supreme Court, we have, with some amendments, adopted the Model Rules of Professional Conduct of the American Bar Association approved by the House of Delegates on 2 August 1983.

We have also noted:

In determining whether discipline is appropriate, we are guided by certain well-defined principles: (1)this court is the ultimate trier of both fact and law in disciplinary proceedings; (2) disciplinary violations must be established by clear and convincing evidence; and (3) the recommendation of the State Bar is entitled to serious consideration.

In re Ireland, 146 Ariz. 340, 341, 706 P.2d 352, 353(1985).

We believe the respondent violated the following Rules of Professional Conduct.

A.Competence

ER 1.1 reads as follows:

A lawyer shall provide competent representation to a client.Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

17A A.R.S.Sup.Ct.Rules, Rules of Professional Conduct, Rule 42, ER 1.1.A lawyer should no more take a case for which he is not competent than a medical doctor should perform surgery for which the doctor is unprepared to perform.

In the instant case, respondent made no effort to become competent.He made no effort to educate himself as to the matter nor did he consult with a lawyer of established competence.We believe respondent was not only not competent to take the case but remained not competent to handle the matter in violation of ER 1.1 of the Rules of Professional Conduct.

B.Scope of Representation

ER1.2(a) reads:

(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, ... and shall consult with the client as to the means by which they are to be pursued.A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter.

Rule 42, ER1.2(a).

The respondent took critical actions without informing his client.He failed to discuss with his client the dismissal by the superior court.He attempted to appeal the matter without consulting with his client.Most important, he failed to inform and consult with his client concerning the $20,000 settlement offer.We believe respondent violated ER 1.2(a) of the Rules of Professional Conduct.

C.Diligence

The Committee also found that respondent violated ER 1.3 which reads:

A lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 42, ER 1.3.

It is apparent that respondent did not use due diligence in representing his client's affairs.As the Committee noted, he failed to control his workload so that the matter could be properly handled.He failed to file a motion to set and certificate of readiness.He did not obtain an extension of time on the inactive calendar.On appeal, he failed to pay the $25 filing fee and the appeal was dismissed.We believe lack of due diligence has been shown in violation of ER 1.3 of the Rules of Professional Conduct.

D.Communication

Finally, the Committee found that respondent violated ER 1.4 which reads:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Rule 42, ER 1.4.

Respondent not only failed to keep his client informed, as required by ER 1.4, but did not explain the matter to his client so that decisions, vital to his client, could be intelligently made.We find respondent violated ER 1.4.

V.SANCTIONS

The recommendation of the Committee as to suspension (six months) was objected to by Bar counsel.The Commission agreed and recommended six months and one day.We disagree with both the Committee and the Commission.

The Standards for Imposing Lawyer Sanctions of the American Bar Association provide:

In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors:

(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.

ABA Standards for Imposing Lawyer Sanctions, Standard 3.0 (1986).

A.Disbarment or Suspension²

The ABA Standards are persuasive but not mandatory.The Standards do provide a useful tool in determining the proper sanction to be applied.The standard that applies particularly to respondent is Standard 4.4:

4.4 Lack of Diligence

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving a failure to act with reasonable diligence and promptness in representing a client:

4.41 Disbarment is generally appropriate when:

* * * * * *

(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client ...

ABA Standards, Standard 4.4.The ABA...