Kastensmith, In re

• Decision Date: 13 October 1966
• Docket Number: No. 8776,8776
• Citation: Kastensmith, In re, 419 P.2d 75, 101 Ariz. 291 (Ariz. 1966)
• Parties: In the Matter of a Member of the State Bar of Arizona, Robert C. KASTENSMITH, Respondent.
• Court: Arizona Supreme Court

Page 75

419 P.2d 75

101 Ariz. 291

In the Matter of a Member of the State Bar of Arizona, Robert C. KASTENSMITH, Respondent.

No. 8776.

Supreme Court of Arizona, In Banc.

Oct. 13, 1966.

Robert C. Kastensmith, Phoenix, in pro. per.

Walter F. Kessler, Phoenix, for the State Bar.

LOCKWOOD, Justice.

This is an original proceeding for disciplinary action of Attorney Robert Kastensmith ¹ under the State Bar Act certified to the Supreme Court by the Board of Governors of the State Bar.

On April 20, 1966 there was filed in this Court the recommendation of the Board of Governors of the State Bar of Arizona that Robert C. Kastensmith, a duly licensed and practicing member of the State Bar of Arizona be reprimanded for unethical conduct in his practice as a lawyer. This recommendation adopted and approved the findings and recommendations of the Local Administrative Committee for District 4 B which had theretofore conducted a formal hearing upon written charges and an order to show cause directed to Attorney Kastensmith commanding him to show cause before the committee as to why he should not be disciplined. The charges were:

'I. (No. 109--B)

'The complaint of one Nellie Paris, 1310 West Hatcher Road, Phoenix, Arizona, that on or about November 11, 1963, she employed you to represent her in connection with charges of driving under the influence of intoxicating liquors and paid you the sum of $250.00 therefor; that you advised her that you would pay such fine as might be imposed on her from the funds she placed in your hands; that you did not pay her fine or see to other disposition of the charges against her; that as a result thereof, she was arrested and caused to forfeit bond in the amount of $160.00; that you negligently failed to represent the interests of your client, though employed therefor; that you have since failed, neglected or refused to refund to Mrs. Paris the sum which she was required to forfeit as bond, though you repeatedly promised to do so.

* * * ²

'III.

'Your repeated failure, neglect or refusal to respond to the reasonable inquiries and investigation of a local administrative committee of the State Bar of Arizona.'

The respondent who practiced in Phoenix, Arizona filed no written answers to the charges but in response to the order to show cause appeared pro se. Evidence both oral and documentary was received in support and in defense of the charges. The Committee in its findings of fact found that with regard to Count I of the order to show cause there was a violation of Canon 44 of the Canons of Professional Ethics ³ and Rule XII(c) of the Uniform Rules of Practice of the Superior Court of Arizona, 17 A.R.S.; ⁴ and that with regard to Count III of the order to show cause there was involved a violation of Canon 29 of the Canons of Professional Ethics. ⁵ The Committee recommended that respondent, Robert Kastensmith be suspended from the practice of law for a period of six months on both of the counts discussed above, the periods of suspension to run concurrently. The Board of Governors by affirmative vote of the majority of the entire Board affirmed the findings and recommendations of the Administrative Committee as to Count I, and recommended that respondent be suspended from the practice of law for a period of six months on the count. With regard to Count III of the Order to Show Cause the Board of Governors recommended to this Court that the respondent be formally reprimanded.

Since under Rule 34(a), Rules Supreme Court, 17 A.R.S., an answer to an order to show cause in a disciplinary hearing is only permissive and not mandatory, the only lack of cooperation asserted by the Administrative Committee in Count III is the failure of respondent to send a letter to the Committee confirming the oral agreement for a continuance. The committee contends that this constituted a violation of Canon 29 of the Canons of Professional Ethics presumably showing that the attorney failed to uphold the honor or maintain the dignity of the profession. Assuming procedural due process is met, we have said in In re Myrland, 45 Ariz. 484, 487, 45 P.2d 953, 954 (1935): '* * * it is immaterial whether or not the rules of procedure adopted by the State Bar for disbarment proceedings were strictly followed or not.' Thus, if the State Bar is not strictly bound by its own rules certainly the failure to submit a written request for a continuance to the Bar Committee is not in itself grounds for disciplinary action. Nevertheless, it is incumbent upon every member of the Bar to cooperate with the appropriate State Bar representative in their investigation and disposition of matters concerning the proper conduct of an attorney.

The facts leading up to the complaint of Count I are essentially as follows: A Mrs. Nellie Paris, after an automobile accident on November 11, 1963, was cited for driving while intoxicated by a police officer who had not witnessed the accident. Mrs. Paris contacted Mr. Kastensmith and paid him $250.00 to defend this cause of action and to pay from this sum any fine the Court would impose. Mr. Kastensmith's sole defense was that a police officer could not arrest for a misdemeanor not committed in his presence and that a citation for driving while intoxicated constituted such an arrest. Mr. Kastensmith was representing another person in a similar position and consolidated both actions. He thereafter sought to quash the complaint on the above grounds. This motion was denied by the City Court and he thereafter filed a Writ of Prohibition with the Superior Court. Approximately seven Superior Court orders were made with regard to this matter before it was referred back to the City Court for trial. However, by this time, Mrs. Paris, not fully understanding the proceedings, decided she did not want anything more to do with the case. Upon the failure of Mrs. Paris or her attorney to appear as trial, a warrant was issued for her arrest. She subsequently paid the $160.00, without notifying her attorney, rather than applying such sum to an appeal bond as he suggested. The major issue presented herein is why Attorney Kastensmith failed to represent his client at the ultimate disposition of the case. It appears from the record that there was a breakdown in communications between Attorney Kastensmith and his client, and that as his client did not want to appeal the case there was nothing more he could do. Moreover the examiner for the Bar Committee acknowledged that the client was one with whom an attorney would have to speak in one syllable words and thus it was understandable that Attorney Kastensmith had difficulty in communicating his intentions with such a client.

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