Ireland, Matter of
| Citation | 146 Ariz. 340,706 P.2d 352 |
| Decision Date | 10 July 1985 |
| Docket Number | No. SB-297,SB-297 |
| Parties | In the Matter of a Member of the State Bar of Arizona, George M. IRELAND, Respondent. |
| Court | Supreme Court of Arizona |
This matter involves a disciplinary proceeding against respondent, George M. Ireland, a member of the State Bar of Arizona, arising under the Code of Professional Responsibility Rule 29(a), Arizona Supreme Court Rules, 17A A.R.S. 1 On February 1, 1983, the Local Administrative Committee for District No. 1 of the State Bar of Arizona filed a five count complaint against Ireland alleging professional misconduct. Respondent filed objections to the complaint, and the Administrative Committee conducted hearings on the issues. The Administrative Committee dismissed Counts III and IV, but found that the allegations of misconduct charged in Counts I, II, and V were supported by the evidence. The Committee recommended that respondent be disbarred. The State Disciplinary Board affirmed the Committee's findings, but recommended that respondent not be disbarred but be suspended from the practice of law for a period of two years.
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 Moore, 110 Ariz. 312, 313, 518 P.2d 562, 563 (1974). We proceed to address each count individually.
Respondent is charged in Count I with several acts of impropriety in connection with his representation of Mrs. Dona Cochran in a marriage dissolution proceeding. The most serious charge is respondent's alleged efforts to obtain a favorable spousal maintenance award for his client by misrepresenting her assets and liabilities to the court both in documentary evidence and by instructing his client to give false testimony. The Bar also charges that respondent charged Cochran unreasonable or excessive attorney's fees by separately charging her for the services of secretaries or other non-lawyer personnel when these fees were not agreed to by Cochran. The facts are highly contested.
Mrs. Cochran hired respondent in May 1980 to represent her in a marriage dissolution proceeding. On August 14, 1980, as payment for legal work rendered, Cochran tendered some silver coins to respondent. He accepted the coins, giving them a market value of $566.80, and issued a dated receipt to Mrs. Cochran in the amount of $566.80. These coins, part of a community property coin collection, form the basis of the Bar's charge that respondent misrepresented Cochran's assets and liabilities to the court. Specifically, the Bar contends that respondent informed Cochran that he would credit her account after the dissolution proceeding so that, in the interim, her liabilities would appear larger to the court. It is further alleged that respondent instructed Cochran, prior to a hearing on August 20, 1980 on pre-dissolution child support and spousal maintenance, to inform the court that the coin collection was sold for the necessities of life. We find these charges clearly substantiated by the evidence presented.
Respondent's records show that Cochran's account for attorney's fees was not credited until one year following respondent's receipt of the coins. We reject respondent's contention that he "forgot" to credit Cochran's account. 2Q [Walraven] Do you have the coin collection?
As to the Bar's charge that respondent suborned perjury, Cochran testified at the August 20 Order to Show Cause hearing about the disposition of the community property coin collection. On cross-examination by Mr. Cochran's attorney, Richard Walraven, Mrs. Cochran clearly misrepresented the status of the coin collection:
A [Mrs. Cochran] Yes, I do.
Q Is it still--
A Right where he left it.
(August 20, 1980, Order to Show Cause Hearing, T.R. at 7) (emphasis added). Knowing Cochran's testimony to be false, respondent nonetheless permitted the court to be misled. Respondent was perfectly aware that the coin collection was not where Mr. Cochran had left it. Respondent was in possession of $566.80 worth of the coins as attorney's fees. Admittedly, Cochran did not testify that she sold the coins for the necessities of life. Nevertheless, respondent permitted the court to believe that the collection was intact, when, in fact, a portion had been transferred to respondent in satisfaction of attorney's fees.
At another point during the August 20 hearing, respondent intentionally misled the court concerning Cochran's expenses and liabilities. The testimony elicited by respondent was being introduced to establish total expenses for the court's use in a maintenance and child support determination. Respondent examined Mrs. Cochran concerning her expenses covering the time period from May 5 to August 11, 1980. Mrs. Cochran correctly testified that she had paid attorney's fees through August 11 amounting to $695.90. The August 14 payment of $566.80, however, was not revealed by respondent. The Bar argues, and we agree, that respondent had a duty to reveal the $566.80 payment made six days prior to this hearing. The August 14 payment was clearly relevant to the court's determination, and respondent was under an obligation not to mislead the court through an intentional omission. See In re Hubert, 265 Ore. 27, 507 P.2d 1141 (1973) (); cf. In re Caffrey, 63 Wash.2d 1, 385 P.2d 383 (1963) (); Sullins v. State Bar, 15 Cal.3d 609, 613, 542 P.2d 631, 632, 125 Cal.Rptr. 471, 472 (1975) ().
Respondent filed a contempt petition, dated November 19, 1980, on behalf of Mrs. Cochran, requesting the court to impose sanctions on Mr. Cochran for nonpayment of temporary maintenance. This petition included a statement that Mrs. Cochran had complied with an earlier court order to turn over the entire community property coin collection. The petition was intentionally misleading as respondent had in his possession the coins previously paid to him by Mrs. Cochran. In addition, respondent DR 7-102 provides in pertinent part:
sent a letter to Judge Greer, dated December 22, 1980, which set forth Mrs. Cochran's suggested division of property. Attached to this letter was an entry which indicated that Mrs. Cochran had sold silver coins in the amount of $200. This entry indicates that respondent intentionally concealed information from the court about respondent's possession of $566.80 worth of coins from the coin collection.
(A) In his representation of a client, a lawyer shall not:
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(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.
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Arizona Code of Professional Responsibility DR 7-102, Ariz.Sup.Ct.R., 17A A.R.S. Attorney candor and honesty form the bulwark of our judicial system. As is evidenced by the oath of admission each attorney must take prior to admission to the Arizona Bar, "[an attorney] will never seek to mislead the judge or jury by any artifice or false statement of fact or law[,]" the judicial system relies on the truthfulness of attorneys in their appearances before courts of law. The disciplinary rules give force to the general prohibition contained in the oath of office. 3 The evidence in this disciplinary action establishes that respondent purposely misrepresented his client's assets and liabilities before the superior court. In doing so, respondent transgressed the bounds of zealous representation of his client and violated the provisions of DR 7-102(A). Because of the necessity for reliance on attorney honesty, courts have not been reluctant to impose sanctions against a lack of candor toward the tribunal. See Matter of James, 452 A.2d 163 (D.C.1982) (); Davis v. State Bar of California, 33 Cal.3d 231, 655 P.2d 1276, 188 Cal.Rptr. 441 (1983) (); cf. Matter of Nulle, 127 Ariz. 299, 620 P.2d 214 (1980) (); see generally, Annot., 40 A.L.R.3d 169 (1971) () In examining the evidence in this case we find that respondent engaged in a pattern of deception and misrepresentation to the superior court; the seriousness of respondent's actions warrants discipline.
The Bar also alleges that respondent charged Mrs. Cochran an "illegal or clearly excessive fee." This allegation stems from charges included in Mrs. Cochran's bill for secretarial services in contravention of a signed fee agreement. A fee agreement, dated May 9, 1980, and prepared by respond...
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