In re Walker
| Decision Date | 19 June 2001 |
| Docket Number | No. SB-00-0096-D. Disc. Comm. No. 99-0406.,No. 5337,5337,SB-00-0096-D. Disc. Comm. No. 99-0406. |
| Citation | 24 P.3d 602,200 Ariz. 155 |
| Parties | In the Matter of William J. WALKER, Attorney No. 5337, Respondent. |
| Court | Arizona Supreme Court |
State Bar of Arizona by Yigael M. Cohen, Phoenix, Jennings, Strouss & Salmon, P.L.C. by J. Scott Rhodes, Phoenix, Attorneys for Respondent.
¶ 1 William J. Walker petitions for review of a recommendation from the Disciplinary Commission (Commission) that he be suspended from the practice of law for ninety days. Upon review, we find the Commission's sanction too severe and instead adopt the hearing officer's recommendation that Walker be censured. We have jurisdiction under Rule 53.e, Rules of the Supreme Court of Arizona (Rule), and Arizona Constitution, Article 6, Section 5.6.
¶ 2 Walker is a fifty-one-year-old sole practitioner who focuses primarily on personal injury law. He has been married for almost twenty-five years, has two teenage children, has practiced law for over twenty years, and has never before been disciplined by the State Bar.
¶ 3 On January 17, 1999, a thirty-two-year-old woman named Sherry Muldrew appeared at Walker's office. She had been involved in an automobile accident about two weeks earlier. Because Muldrew's insurer offered insufficient funds to repair her car, she was seeking legal assistance. At the time, Muldrew was separated from her husband, caring for her three young children, and seeking permanent employment. At her first meeting with Walker, Muldrew signed a contingent fee agreement, and Walker helped arrange both her medical care and car repair. Over the next month, Muldrew met with Walker several times, most of the visits brief and unscheduled. In early February, she signed another contingency agreement with him that was connected with her claim against a local restaurant over an alleged food poisoning incident.
¶ 4 Later in February, Muldrew received a check from her insurer to compensate for her vehicle's damage. Instead of applying the funds toward the repair bill, she used it to travel because she was anticipating a large income tax refund that would cover her car repair costs. Later, Muldrew told Walker that she needed her vehicle badly but could not afford to pay the repair shop immediately, and Walker arranged to have Muldrew's car released to her without payment. Muldrew soon learned that the Internal Revenue Service was using her income tax refund to offset accumulated federal debts. She called Walker's office and asked for an emergency appointment because she did not have any money, her rent was due, she did not have a steady job, and she was rapidly accumulating debt.
¶ 5 On Thursday, February 18, Muldrew met with Walker in his office to discuss how any potential settlement funds would be disbursed. In addition, the two talked about the possibility of a sexual relationship and arranged to meet at Walker's office on Saturday morning because the members of Walker's staff would not be there at that time. Before Muldrew left, Walker touched her breast. The next day, Muldrew met with another attorney regarding a malpractice claim she planned to bring against Walker. On Saturday morning, February 20, Walker contacted Muldrew to arrange the office interlude. After agreeing to meet, Muldrew contacted a Tempe police officer and instead went to a police substation to make tape-recorded telephone calls to Walker.
¶ 6 During the first call, Muldrew spoke only to the answering service. Muldrew reached Walker with a second call, however, and stated, "Hey, ya know, before I come .. I wanna make sure that we have an understanding, OK?" Hearing Officer's Report and Recommendation (H.O.Rep.), filed April 18, 2000, Exhibit A, at 2-3. As the two attempted to outline the parameters of their sexual relationship, Walker said, "I don't want this to be part of our business thing, you know" and Id. at 3 (ellipsis in original). To which Muldrew responded, "OK, well, my kids, uh, I gotta make sure I get, you know, leave and get back before my kids wake up." Id. About an hour after the second call, Muldrew again telephoned Walker from the police station and told him, Id. at 4. The following dialogue then took place:
Walker: All right, well, let's .. You don't need to get your records. Let's just forget it, then we'll just do it as business.
Muldrew: I know, but you said about bein' special friends.
Walker: No, let's forget. I don't wanna .. It's, it's all right. I don't want .. Let's just forget that at all. You were the one that started with (both talking)..
Muldrew: What I .. No! .. What I, I told you [was] that you were really nice. I said that you were a really nice man, and you ..
Walker: And I apologize for anything else.
Id. at 4. The conversation continued, ending with similar exchanges: Muldrew accusing Walker of exploiting her precarious situation and Walker attempting to keep Muldrew as a client while repeatedly apologizing for any offense or misunderstanding. After the third call, the two did not have either personal or professional contact until the following Monday when Muldrew went to Walker's office, retrieved her files, and terminated Walker's representation.
¶ 7 Based on Muldrew's allegations and the evidence gathered during the tape-recorded telephone calls, Tempe police officers went to Walker's office on March 1, 1999, and arrested him for public sexual indecency and solicitation of prostitution. Walker was handcuffed, led from his office by the police, and booked at the jail. To avoid prosecution on these charges, Walker entered an adult diversion program, which he subsequently successfully completed. In addition, Walker sought both psychological and spiritual counseling. Muldrew's new attorney sent a letter demanding $400,000 to Walker's malpractice insurer regarding Muldrew's allegations of impropriety. Walker's insurer and Muldrew thereafter agreed on a $50,000 settlement, $2,500 of which was a deductible Walker paid personally.
¶ 8 On April 7, 1999, Muldrew filed a complaint with the State Bar. After an investigation, the State Bar filed a one-count complaint alleging Walker violated Ethical Rules (ER) 1.7 and 8.4, Rules of Professional Conduct, for failure to avoid a conflict of interest and misconduct. See Ariz.R.Sup.Ct. 42. Walker filed an answer denying many of the allegations but admitted to briefly touching Muldrew's breast under what he believed were consensual circumstances.
¶ 9 A disciplinary hearing was held in March 2000, and in his report the hearing officer recommended censure. H.O. Rep., at ¶ 54. On April 20, 2000, the Commission served a copy of the hearing officer's report on both Walker and the State Bar and notified each that, pursuant to Rules 53.c.7 and d.3, objections to the report and requests for oral argument before the Commission should be made within ten days. On May 9, the Commission notified Walker that it would consider the matter during an executive session on May 20. In addition, the Commission advised Walker that, pursuant to Rule 53.d.1, either party could request leave to file a statement. The Commission did not request further briefing on the matter and, because neither he nor the State Bar objected to the penalty of censure, Walker did not submit a statement.
¶ 10 On May 22, the Commission notified Walker that it had considered and rejected the hearing officer's censure recommendation. Instead, the Commission told Walker that it was recommending a ninety-day suspension. Walker promptly filed a motion for leave to file pleadings, and the Commission granted it. He then filed both a motion for reconsideration and a request to appear before the Commission. The Commission summarily denied Walker's motion and request to appear and filed its report in this matter on August 30, 2000. Walker petitioned for review of the Commission's recommendation of suspension pursuant to Rule 53.e.
¶ 11 Walker claims on appeal that he was denied procedural due process when the Commission rejected the hearing officer's uncontested recommendation without first notifying him of the change, requesting his appearance, or asking for supplemental briefing. In addition, Walker asserts that, given the facts of this case, the Commission erred when it recommended a ninety-day suspension. We address these issues in turn.
¶ 12 Walker acknowledges that, by failing to object to the hearing officer's recommendation, he consented to censure. See Ariz.R.Sup.Ct. 53.c.9 (). He argues, however, his consent was not an agreement to the increased sanction of suspension. Thus, because the Commission never provided him with notice that it would raise the sanction without giving him an opportunity to appear or respond, the Commission improperly "upped the ante" and denied him due process. While the Commission's actions in this case may have come as an understandable surprise to Walker, we do not find that his due process rights were violated.
¶ 13 The requirements of procedural due process in attorney disciplinary proceedings include fair notice of the charges made and an opportunity for the accused to provide an explanation and present a defense. In re Brady, 186 Ariz. 370, 373, 923 P.2d 836, 839 (1996). Here, Walker was provided both notice and a hearing. He was given proper notice regarding the Commission's consideration of his matter and also was extended the opportunity to request oral argument or file supplemental statements before the Commission. Notice, ...
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