In re Moak

• Decision Date: 16 June 2003
• Docket Number: No. SB-03-0007-D.,No. 004849,004849,SB-03-0007-D.
• Parties: In the Matter of Walter E. MOAK, Attorney No. 004849, Respondent.
• Court: Arizona Supreme Court

71 P.3d 343

205 Ariz. 351

In the Matter of Walter E. MOAK, Attorney No. 004849, Respondent.

No. SB-03-0007-D.

Supreme Court of Arizona, En Banc.

June 16, 2003.

Jennings, Strouss & Salmon, PLC, by J. Scott Rhodes, Phoenix, Attorney for Walter E. Moak. State Bar of Arizona, by Karen Clark, Senior Bar Counsel, Phoenix, Attorney for State Bar of Arizona.

OPINION

McGREGOR, Vice Chief Justice.

¶ 1 The State Bar of Arizona charged Respondent Walter E. Moak with three counts of attorney misconduct under the Arizona Rules of Professional Conduct. After the parties stipulated to most of the relevant facts, a hearing officer considered the remaining factual issues, as well as aggravating and mitigating factors. The hearing officer concluded that the State Bar had established all counts and recommended that Moak be suspended for six months and one day. On review, the Disciplinary Commission of the Supreme Court (Commission) accepted the hearing officer's findings of fact and agreed with his conclusions of law, but recommended a six-month suspension. Although neither party sought review of the Commission's decision, we exercised our right of sua sponte review to consider further the appropriate discipline to impose. Ariz. R. Sup.Ct. 53(e)7. We exercise jurisdiction under Article VI, Sections 1, 3, 5.4 and 5.5 of the Arizona Constitution and Rules 31 and 53 of the Arizona Rules of the Supreme Court.

I.

¶ 2 The hearing officer's report thoroughly and clearly sets out the relevant facts, as stipulated and found after the hearing. The Commission and this court accept the hearing officer's factual findings unless they are clearly erroneous. In re Alcorn and Feola, 202 Ariz. 62, 64 n. 4, 41 P.3d 600, 602 n. 4 (2002). We find no clear error. Indeed, neither Moak nor the State Bar contests the findings. We therefore hold that the State Bar proved the charges of unethical conduct by clear and convincing evidence. Because our analysis of the appropriate sanction depends upon the facts underlying Moak's misconduct, we describe them in some detail below.

¶ 3 The hearing officer concluded that Moak violated multiple ethical rules (ERs). With respect to count one, the hearing officer found the following violations: 1.2 (scope of representation); 1.3 (diligence); 1.4 (communication); 1.9 (conflict of interest: former client); 3.3 (candor toward the tribunal); 8.4(c) (misconduct: dishonesty, fraud, deceit or misrepresentation) and 8.4(d) (misconduct: prejudicial to the administration of justice). With respect to count two, the hearing officer concluded Moak violated ERs 3.3 (candor toward the tribunal); 4.1 (truthfulness in statements to others); 8.4(c) (misconduct: dishonesty, fraud, deceit or misrepresentation); 8.4(d) (misconduct: prejudicial to the administration of justice) and also Rule 51(e) of the Arizona Rules of the Supreme Court (willful disobedience or violation of a rule). Finally, with respect to count three, the hearing officer concluded Moak violated ERs 1.7(b) (conflict of interest); 1.8(a) (conflict of interest: prohibited transactions); 1.8(e) (conflict of interest: financial assistance) and 1.8(j) (acquiring a proprietary interest in the cause of action).

¶ 4 The hearing officer next determined that Moak committed "knowing" ethical violations, that is, he acted with a "conscious awareness of the nature or attendant circumstances of the conduct but [was] without the conscious objective or purpose to accomplish a particular result." American Bar Association Standards for Imposing Lawyer Sanctions (ABA Standards) at 7 (1991).¹ After considering proportionality principles and weighing aggravating and mitigating factors, the hearing officer issued his report.

¶ 5 We review conclusions of law de novo, as does the Commission. Ariz. R. Sup.Ct. 53(d)2, (e)11. The Commission adopted the hearing officer's conclusions of law and agreed that Moak knowingly violated the Rules of Professional Conduct.² We also agree with those conclusions of law. In exercising its authority to review the hearing officer's disciplinary recommendation, the Commission reduced Moak's suspension period to six months. Suspensions of six months or less differ significantly from suspensions of more than six months. An attorney suspended for six months or less may resume his practice when the period of suspension ends by filing an affidavit in lieu of application for reinstatement. Ariz. R. Sup.Ct. 71(c). An attorney suspended from practice for more than six months, in contrast, must complete a formal reinstatement process before being readmitted to the State Bar. Id. 71(d).

II.

¶ 6 We elected to exercise sua sponte review to consider further the appropriate period of suspension. Both parties urge us to adopt the Commission's recommended six-month suspension, although the State Bar concedes that a suspension of six months and one day falls within the appropriate range of sanctions.

¶ 7 As an attorney licensed to practice in Arizona, Moak is bound by the Rules of Professional Conduct, which exist to protect the public, deter similar misconduct and preserve the public's confidence in the State Bar and the attorneys licensed under its authority. In re Walker, 200 Ariz. 155, 161 ¶ 26, 24 P.3d 602, 608 (2001).

¶ 8 Once ethical violations are established, we must identify an appropriate sanction. Our decision to impose a particular disciplinary measure is guided by the framework of Standard 3.0, as set forth in the ABA Standards. Id. at 161 ¶ 21, 24 P.3d at 608. Standard 3.0 outlines four determinative factors in selecting appropriate discipline: "(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors." Standard 3.0; accord In re Horwitz, 180 Ariz. 20, 25, 881 P.2d 352, 357 (1994)

.

A.

¶ 9 When an attorney faces discipline for multiple charges of misconduct, the most serious charge serves as the baseline for the punishment. In re Cassalia, 173 Ariz. 372, 375, 843 P.2d 654, 657 (1992) (adopting Commission report); ABA Standards at 6. We assign the less serious charges aggravating weight. Cassalia, 173 Ariz. at 375, 843 P.2d at 657. The State Bar and Moak stipulated, and we agree, that count two is the most serious charge of misconduct. We turn, therefore, to the facts underlying that count.

¶ 10 Moak's misconduct detailed in count two arose out of his representation of Julian Reed. Moak represented Reed in two separate actions arising from two car accidents that occurred approximately three years apart. The gravamen of this count involves Moak's failure to disclose, in the action based upon the first accident, the injuries Reed received in the second accident, and his failure to distinguish appropriately the injuries Reed sustained in the first accident from those he sustained in the second. Those failures misled the defendants from the first accident and deprived them of an opportunity to prove that Reed's injuries resulted, at least in part, from the second accident. Moak's failures also misled the judge and the jury in the trial involving the first accident.

¶ 11 On June 11, 1995, Reed sustained injuries when a commercial truck struck his vehicle in La Paz County, Arizona. Reed retained Moak to pursue a lawsuit against the trucking company and its employee (La Paz defendants) and filed a complaint in August 1996 in La Paz County. In July 1998, Reed was involved in a second automobile accident in Gila County, Arizona. Moak also represented Reed in a lawsuit related to the second accident, filed in November 1998 in Gila County.

¶ 12 Moak's November 1996 disclosure statement in the La Paz action indicated that Reed had suffered severe head trauma and resultant visual field defect, but it made no mention of a brain injury or claim that Reed sustained any impairment of his cognitive functioning. In response to discovery questions from defendants' counsel, Scott Alles, Moak eventually stated that Reed would claim damages for a "cognitive injury" consisting of a visual field problem and difficulty adding numbers, but he produced no medical testimony except with reference to the visual field problem.

¶ 13 Moak failed to supplement his disclosure statement in the La Paz County case to reveal the Gila County accident, although it occurred long before the La Paz action went to trial. In the Gila County accident, Reed sustained a closed head injury with, according to medical records, probable brain stem involvement. By November 1998, the physicians treating Reed for the Gila County injuries noted that he had started experiencing severe tremors and short-term memory loss, amnesia and severe headaches.

¶ 14 In January 1999, during the deposition of an ophthalmologist as part of the La Paz discovery, the witness testified that Reed suffered from a "brain injury." Despite his knowledge of the medical records related to the Gila County accident, Moak opposed the La Paz defendants' attempts to conduct additional discovery related to a "brain injury." In his opposition, Moak did not disclose the Gila County injury or the medical records that attributed Reed's brain injury to the second accident. In addition, Moak obtained an order precluding from the La Paz trial any evidence related to other injuries, lawsuits or claims for damages.

¶ 15 In March 1999, Reed's La Paz trial began, concluding with an $800,000 verdict for Reed. Reed exhibited tremors throughout his trial testimony, a physical manifestation of injuries that the trial judge later concluded would have affected the jury's damage award. Reed testified that all his health problems, including a head injury, headaches and memory problems, resulted from the La Paz accident.³ In closing argument, Moak emphasized Reed's brain injury and its effects, so evident to the jury during Reed's testimony.

¶ 16 In June 1999, after the La Paz trial concluded, Moak submitted a...