Fresquez, Matter of

• Decision Date: 26 September 1989
• Docket Number: No. SB-88-0046-D,SB-88-0046-D
• Citation: Fresquez, Matter of, 783 P.2d 774, 162 Ariz. 328 (Ariz. 1989)
• Parties: In the Matter of a Member of the State Bar of Arizona, Joseph E. FRESQUEZ, Respondent.
• Court: Arizona Supreme Court

Page 774

783 P.2d 774

162 Ariz. 328

In the Matter of a Member of the State Bar of Arizona, Joseph E. FRESQUEZ, Respondent.

No. SB-88-0046-D.

Supreme Court of Arizona, In Banc.

Sept. 26, 1989.

[162 Ariz. 329] Nicholas Udall, and Browder & Kenney, P.C. by Robert W. Browder, Phoenix, for respondent.

Harriet L. Turney, Chief Counsel, Phoenix, State Bar of Ariz.

OPINION

CORCORAN, Justice.

On May 4, 1987, the State Bar of Arizona filed a complaint against respondent. A hearing committee convened on January 29, 1988, to consider 4 counts of alleged misconduct arising out of the following factual scenario.

In October 1983, Bridget and Louis Castro's home was flooded. The flooding allegedly occurred due to the negligence of employees of the City of Flagstaff. The Castros hired respondent to represent them in their claim against the city. Respondent apparently contacted the city's insurer, but the events that followed are disputed.

The "lawsuit"

Counts 1 and 2 of the State Bar complaint arose out of respondent's representation of the Castros. According to the Castros, respondent initially told them that their case was set for arbitration, and later informed them that he had filed a lawsuit. Respondent advised them of upcoming trial dates; however, he would then call them a day or two before the scheduled trial and tell them the trial had been "bumped." In fact, respondent had neither scheduled arbitration nor filed a lawsuit.

Dissatisfied with respondent's handling of their case, the Castros sent a letter to the State Bar on March 4, 1985, requesting an investigation of respondent's actions. After reviewing the letter, the State Bar notified respondent of the allegations on May 3, 1985, and requested a response. Respondent failed to answer within the allotted time.

Count 1 of the State Bar complaint alleged that respondent failed to represent the Castros diligently, in violation of Disciplinary Rule 6-101(A)(3), Arizona Code of Professional Responsibility. ¹ Count 2 alleged that respondent made false statements to the Castros about filing the complaint and about trial dates, in violation of DR 1-102(A)(4). ²

At the subsequent hearing, the State Bar presented witnesses to corroborate the Castros' account. Louis' supervisor testified that Louis had requested time off from work several times to attend trial, only to inform him later that the trial had been postponed. Bridget's friend testified to similar conversations she had with Bridget about trial dates and postponements. Respondent objected to this testimony as inadmissible hearsay.

In his testimony before the hearing committee, respondent denied ever telling the Castros about a scheduled arbitration or trial, or that he had filed a lawsuit. He testified that the Castros delayed in furnishing him an inventory of their possessions, which he needed in order to compute a claim. He also testified that the Castros could not agree on how to pursue their claim: Louis wanted to sue the city to obtain the highest possible recovery, while Bridget desired a quick settlement.

The back-dated letter

Count 3 of the complaint concerns a letter that respondent sent to the State Bar during its investigation. The letter was signed by Louis Castro and dated May 2, 1985. In the letter, Louis purportedly absolved respondent of responsibility for any wrongdoing and requested that the State Bar drop all charges against him. Respondent originally denied having anything to do with the letter; later, he acknowledged that someone in his office must have helped Louis to prepare it, but he could not identify the employee. At the hearing, respondent took the position that he prepared the letter according to Louis' direction, but claimed that he did not remember doing it.

Evidence offered at the hearing contradicts the May 2 date of the letter. Louis testified that he went to respondent's office in July 1985, at respondent's request. Louis and Bridget were in the middle of marriage dissolution proceedings at this time. Respondent told Louis that he could help him to obtain custody of the Castros' children and to reconcile with his wife; however, respondent required that Louis first sign a paper enabling respondent to represent him. Louis testified that respondent covered the text of the letter with his hand and directed him to sign.

Other evidence supports the Bar's contention that Louis did not sign the letter on May 2. On April 26, 1985, Louis violated a temporary restraining order and fled with his two children to Colorado. On April 29, he requested money from his father, who sent Louis a $300 money order, which Louis cashed at a Fort Collins, Colorado bank on May 1. Louis gave an account of his stay in Fort Collins, detailing his activities on May 2 and the following days. No one involved in the case remembered seeing Louis or the children from the time they left Flagstaff until about May 6.

Based on this evidence, Count 3 of the complaint alleged that respondent prepared the letter dated May 2, 1985, and presented it to Louis for his signature, knowing that material statements in the letter were false, in violation of Ethical Rule 8.4(c). ³

The $300 payment

On July 11, 1985, respondent met with Louis' sister and gave her a $300 check drawn on respondent's trust account. Respondent testified he gave the money to Louis' sister, "suspecting" the money would go to Louis. As alleged in Count 4 of the complaint, this $300 payment was part of a pattern of inducement used by respondent to procure Louis' signature on the letter dated May 2, 1985, in violation of ER 8.4(c).

The false affidavit

The State Bar served respondent with the complaint on May 20, 1987. Respondent failed to answer timely. Consequently, on June 23, 1987, State Bar counsel filed a Notice of Failure to Answer, requesting that the hearing committee deem the allegations of the complaint admitted and take appropriate action. See rule 53(c)(1), Rules of the Supreme Court; In re Zang, 158 Ariz. 251, 252, 762 P.2d 538, 539 (1988).

On June 25, 1987, respondent filed his answer to the complaint and a response to the Notice of Failure to Answer. He pleaded excusable neglect, blaming his docketing secretary for failing to docket the complaint and the answer date. In support of his response, respondent attached an affidavit signed by his docketing secretary. ⁴ At the hearing, the docketing secretary affirmed the affidavit's statements, but testified that she was not served with the complaint and knew nothing about it until respondent presented her with the handwritten affidavit and asked her to type and sign it.

Two days before the hearing, the State Bar moved to amend the complaint to include two additional counts. Proposed Count 5 alleged that, in an attempt to justify his failure to respond timely to the complaint respondent prepared and filed a false affidavit with the State Bar, in violation of ER 8.4(c). Proposed Count 6 alleged that respondent violated ER 8.4(c) by utilizing funds from his firm's trust account to make the $300 payment to Louis' sister. The committee granted the motion to amend during the second day of the hearing. See rule 55(a) ("At any time prior to the conclusion of the disciplinary hearing, bar counsel ... may move to amend the pleadings").

Decision of the Hearing Committee

The hearing committee found that clear and convincing evidence supported the allegations contained in Counts 2 through 5. It recommended dismissal of Counts 1 and 6. The committee found that

respondent's numerous lies to the State Bar and before the committee under oath, and his lies when truth would have served him better, utterly destroyed his credibility with the committee....

Finding several aggravating factors and no significant mitigating factors, the committee recommended disbarment.

Proceedings before the Disciplinary Commission

On June 28, 1988, 10 days before the scheduled oral argument in front of the Commission, Louis gave a sworn statement to an investigator hired by respondent's counsel. The statement affirmed the substance of the May 2 letter. The following day, Louis signed an affidavit to the same effect. Neither the statement nor the affidavit explain Louis' prior inconsistent testimony before the committee. Two days prior to the oral argument before the Commission, respondent moved to supplement the record or remand the matter to the hearing committee based on Louis' alleged recantation of his testimony.

The Commission heard argument on respondent's motion and the State Bar's cross-motion to strike the statement and affidavit. Citing rule 53(d)(1), the Commission denied respondent's motion and struck the proffered evidence, stating that the material "is not deemed newly discovered evidence." The Commission then adopted the committee's findings of fact and conclusions of law, but rejected the recommended sanction. Citing In re Kleindienst, 132 Ariz. 95, 644 P.2d 249 (1982), the Commission recommended a one-year suspension in lieu of disbarment.

Both respondent and the State Bar appealed from the Commission's decision. We have jurisdiction pursuant to Ariz. Const. art. 3.

Discussion

1. Standard of review

In disciplinary proceedings we act as an independent "trier of both fact and law in the exercise of our supervisory responsibility over the State Bar." In re Neville, 147 Ariz. 106, 108, 708 P.2d 1297, 1299 (1985). We do, however, "give deference and serious consideration" to the reports of the committee and Commission. In re Pappas, 159 Ariz. 516, 518, 768 P.2d 1161, 1163 (1988).

2. Hearsay argument

Respondent contends that the testimony of Louis' supervisor and Bridget's friend was inadmissible hearsay because it was offered to prove that respondent told the Castros about trial dates being set and bumped. We disagree.

As defined by rule 801(c), Arizona Rules of Evidence,

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in...