Hoover, Matter of, SB-86-0033-D

• Decision Date: 21 July 1987
• Docket Number: No. SB-86-0033-D,SB-86-0033-D
• Parties: In the Matter of a Member of the State Bar of Arizona, Charles R. HOOVER, Respondent.
• Court: Arizona Supreme Court

Page 939

745 P.2d 939

155 Ariz. 192

In the Matter of a Member of the State Bar of Arizona, Charles R. HOOVER, Respondent.

No. SB-86-0033-D.

Supreme Court of Arizona, In Banc.

July 21, 1987.

Rehearing Denied Sept. 15, 1987.

Beer & Toone by Paul Beer, Warner, Angle, Roper & Hallam by Jerry Angle, Phoenix, for respondent.

Harriet Turney, State Bar of Arizona, Phoenix, for State Bar.

FELDMAN, Vice Chief Justice.

The State Bar of Arizona charged respondent Charles D. Hoover, a lawyer, with violations of the Code of Professional Responsibility adopted by this court. See Former Rule 29(a), Ariz.R.S.Ct., 17A A.R.S. (Supp.1984-85). ¹ Respondent admitted violating the Code, but claimed that his infractions were the product of a mental disease. After hearing evidence, including expert testimony, a Local Administrative Committee (Committee) ² assigned to Hoover's case by the Disciplinary Commission (Commission) ³ of this court recommended that respondent not be disciplined because he was mentally ill when he committed the violations. In addition, the Committee concluded that respondent had regained his competency to practice law and should be permitted to practice. The Commission rejected the Committee's findings, conclusions, and recommendations, and ordered the matter remanded to a new committee for a de novo hearing.

Respondent petitions this court to review the Commission's order and to grant relief pursuant to Rule 55(i). We granted review to examine whether insanity meeting the M'Naghten test is an absolute bar to discipline, and because the proceedings implicate significant issues of procedural due process.

FACTS

Respondent was admitted to the State Bar in 1957. He has a long history of successful practice and public service to the Bar and the community. Respondent unconditionally admits, however, that between January and June 1984, he misappropriated substantial sums from a client and fraudulently billed personal expenses. He claims that his actions were a product of a manic depressive psychosis. After the defalcations were discovered, Hoover voluntarily suspended practice and sought medical treatment. A psychologist, and two psychiatrists, one of whom was appointed by the Committee, testified that respondent had been mentally ill during 1984.

The Committee adopted bar counsel's proposed findings that Hoover's defalcations were the product of a mental disease known as bipolar manic depressive disorder, and that he should not be disciplined for his conduct because he had been "insane" under the M'Naghten test. ⁴ See, e.g., State v. Schantz, 98 Ariz. 200, 403 P.2d 521 (1965), cert. denied, 382 U.S. 1015, 86 S.Ct. 628, 15 L.Ed.2d 530 (1966); A.R.S. § 13-502 (Supp.1986). Because of this biochemical illness, Hoover "did not know the nature and quality of his acts" and "did not know what he was doing was wrong." Findings of Fact Nos. 8 and 9. In addition, the Committee agreed with Hoover and the experts that he had recovered sufficiently to practice law so long as he was monitored and received continued psychological and psychiatric treatment. Finding No. 14; Conclusion of Law No. 5. Accordingly, with Hoover's concurrence, bar counsel recommended that the complaint be amended to conform to the evidence, "converting" the Rule 53 disciplinary proceedings into a Rule 59 disability proceeding. Finding No. 15; Conclusion of Law No. 3. The Committee determined that it could do this because it had concurrent jurisdiction over both disciplinary and disability proceedings, and the goals of bar proceedings would be served better by allowing Hoover to practice conditionally. Conclusions of Law Nos. 5 and 6. Hoover concurred with the Committee's formal findings, conclusions, and recommendations.

The Committee's work then came before the Disciplinary Commission for review. See Rule 53(d). ⁵ Before the hearing date, the executive director of the State Bar, presumably acting pursuant to board of governors' instructions, replaced bar counsel with its chief bar counsel. ⁶ New counsel filed a motion to vacate the Committee's findings, conclusions, and recommendations on the ground that the Committee lacked the authority to convert disciplinary proceedings into disability proceedings. Over Hoover's objection, the Commission then rejected the Committee's work and remanded the matter to a new committee for a de novo hearing on all issues. In addition, the Commission directed the new committee to address the legal question whether "insanity under the M'Naghten standard acts as a bar to a disciplinary proceeding...."

Hoover contends that the Commission lacked authority for its actions and violated his constitutional right to due process.

JURISDICTION

Bar counsel contends that this court lacks jurisdiction to review the Commission's order of remand because decisions of the Commission "shall be final as to dismissal, remand, probation and reprimand...."

                [155 Ariz. 195]   Rule 53(d)(2) (emphasis added).  In our view, the Bar has misconstrued the quoted finality provision.  Commission orders imposing discipline less serious than public censure, suspension, or disbarment are "final" in the sense that they may not be appealed.  However, the provision does not mean that those responding to charges have no right of review by this court, no matter what the Commission's order, so long as the Commission confines itself to action less serious than public censure, suspension, or disbarment.  Obviously, the Commission--like this court--is not free to violate our rules, its own rules, or to disregard the Constitution, leaving a respondent with no avenue for redress and no means to be heard
                

Hoover contends that the Commission's order is reviewable by the ordinary appeal route. See Rule 53(e). In the alternative, he argues that an interim order not reviewable under Rule 53(e) may be reviewed, amended, or vacated under Rule 55(i):

For good cause shown and in the interest of justice any order or judgment may be entered, or may be amended or vacated by the officer or body that entered it or by a superior body.

Assuming, without deciding, that the Commission's order is an interim order, not reviewable under Rule 53(e), we believe that this court's power and responsibility to oversee and administer disciplinary proceedings permits us to review interim orders pursuant to Rule 55(i). See In re Riley, 142 Ariz. 604, 607-08, 691 P.2d 695, 698-99 (1984). We will intervene in a pending disciplinary proceeding to correct error. See In re Anonymous, 128 Ariz. 238, 624 P.2d 1286 (1981). We therefore accept jurisdiction and grant review of the proceedings, particularly of the Commission's order of October 15, 1986, because we believe that these proceedings require intervention "in the interest of justice." Rule 55(i).

PROPRIETY OF REMAND FOR DE NOVO HEARING

A. Procedural Background

The Committee recommended that the disciplinary complaint filed against Hoover be amended to conform to the evidence, converting the complaint into a Rule 59 disability proceeding. Rule 59 allows this court or the Commission to transfer lawyers from active status to disability inactive status, in effect suspending them from the practice of law, if the lawyer suffers from physical or mental disability or incapacity. Rule 59(b) provides in relevant part as follows:

1. A lawyer whose physical or mental condition adversely affects his ability to practice law shall be investigated, and where warranted, shall be the subject of formal proceedings to determine whether the lawyer shall be transferred to disability inactive status. The matter shall proceed and hearings shall be conducted in the same manner and by the same rules as discipline proceedings, except that:

A. Transfer to disability inactive status shall be imposed by order of the commission or of the court.

B. A lawyer shall be transferred to such status upon proof that, as a result of mental or physical illness or infirmity ... the person lacks the capacity to discharge adequately his duty to his clients, the bar, the courts or the public.

C. Principal aims of the proceeding shall be protection of the public and rehabilitation of the lawyer. Orders of transfer may include conditions of conduct in the nature of probation....

The Committee essentially concluded that Hoover had been disabled within the meaning of Rule 59 when he committed the wrongful acts, but concluded he was no longer disabled at the time of the hearing. Conclusions of Law Nos. 4 and 5. Accordingly, the Committee decided that discipline was "inappropriate" and that Hoover should be allowed to practice under specified conditions, including a three-year probation. During the recommended probation, Hoover would receive psychiatric consultation and his attending doctor would report periodically on his patient's condition and certify that Hoover was continuing to receive care and counseling.

When the State Bar substituted chief bar counsel for former bar counsel, the new counsel requested the Commission to vacate the Committee's report and either to remand the matter to a new committee or to make its own findings after reviewing the record. Chief bar counsel based her request on the Committee's alleged lack of authority to convert the matter from a disciplinary to a disability proceeding. In addition, counsel contended that the Committee's findings and conclusions were not supported by the evidence. The Commission vacated the Committee's report and transferred the case to a new committee for a de novo hearing. The Commission's order did not state the reason for the transfer, for hearing de novo, nor why further testimony was necessary.

B. Due Process

Hoover contends that the Commission's actions violated his right to due process. U.S. Const.Amend. XIV. Bar disciplinary proceedings are "not for punishment but rather ... a catharsis for the profession and a prophylactic for the public." Riley, 142 Ariz. at 608, 691 P.2d at 699 (quoting Bar Association...