Levine, Matter of, No. SB-91-0028-D

CourtSupreme Court of Arizona
Writing for the CourtMOELLER, V.C.J., CORCORAN
Citation847 P.2d 1093,174 Ariz. 146
Decision Date18 February 1993
Docket NumberNo. SB-91-0028-D
PartiesIn the Matter of a Member of the State Bar of Arizona, Jack LEVINE, Respondent.

Page 1093

847 P.2d 1093
174 Ariz. 146
In the Matter of a Member of the State Bar of Arizona, Jack LEVINE, Respondent.
No. SB-91-0028-D.
Supreme Court of Arizona, In Banc.
Feb. 18, 1993.

Page 1095

[174 Ariz. 148] Meyer, Hendricks, Victor, Osborn & Maledon, P.A. by Bruce E. Meyerson and Mark Andrew Fuller, Phoenix, for respondent.

Peter M. Jarosz, Bar Counsel, Phoenix, for State Bar of Ariz.

Page 1096

174 Ariz. 149

OPINION

EINO M. JACOBSON, Court of Appeals Judge.

The Disciplinary Commission of the Supreme Court has recommended that Jack Levine (respondent) be suspended from the practice of law for a period of three years. Respondent filed a timely appeal from the commission's recommendation. We have jurisdiction pursuant to Rule 53(e), Rules of the Arizona Supreme Court.

PROCEDURAL BACKGROUND

On December 15, 1989, the state bar filed a formal complaint against respondent, charging him with violating the Rules of Professional Conduct, Rule 42, Rules of the Arizona Supreme Court (Rule 42), as well as the Code of Professional Responsibility, former Rule 29, Rules of the Arizona Supreme Court (former Rule 29). 1 The bar complaint alleged fourteen counts of unethical conduct arising from numerous lawsuits that respondent instituted and maintained, either personally or on behalf of a client, against his former law partner and others. The primary allegation of misconduct 2 in the bar complaint was that respondent's participation in such suits was frivolous, without a good faith basis to extend, modify, or reverse existing law, and was without substantial purpose other than to embarrass, delay, or burden third persons, in violation of Rule 42, E.R. 3.1 and 4.4. Respondent filed a timely answer.

Hearings in this matter commenced on April 30, 1990, before Hearing Committee 6H (committee). The evidentiary hearing continued for seven days, during which 158 exhibits were admitted, totaling over 6000 pages. The hearing transcripts consumed almost 2000 pages, with the appellate briefs in this court adding another 100 pages. The volume of this disciplinary record is unparalleled in the recent history of this court.

On September 19, 1990, the committee issued its report, finding that clear and convincing evidence supported the allegations in counts 1 through 10 and 14, and dismissing the remaining counts. Finding both mitigating and aggravating factors, the committee recommended that respondent be suspended from the practice of law for a period of three years, that he be ordered to make restitution by paying all awards of fees and sanctions assessed against him personally arising from the unethical conduct, and that he be assessed costs of the proceedings.

The commission heard the matter on February 9, 1991, and issued its report on March 29, 1991. The commission generally adopted the committee's findings of fact and conclusions of law, subject to several additions, deletions, and comments, and adopted the committee's recommendation that respondent be suspended for a period of three years. Two members of the commission, although agreeing with the committee findings, opposed the recommended sanction of a three year suspension as "too lengthy a term of suspension in light of the likelihood that Respondent will not re-engage in similar conduct." Respondent timely appealed.

DISCUSSION

I. Standard of Review

In reviewing disciplinary proceedings from the committee and the commission, this court is guided by several well-established principles: first, we are an independent trier of both fact and law; second, we give great deference to the reports

Page 1097

[174 Ariz. 150] of the committee and commission, but before we impose discipline, we must be persuaded that the alleged ethical violations are supported by clear and convincing evidence; and third, we have the ultimate responsibility for imposing the appropriate sanctions. In re Lincoln, 165 Ariz. 233, 235-36, 798 P.2d 371, 373-74 (1990).

II. History of Litigations

The testimony and evidence in this matter, in the words of the committee, "recounted a near decade long saga which arose from the breakup of the law firm of Levine & Harris [, P.C.]," and "[t]he fourteen-count Complaint relates to [that] one underlying fact situation and the Respondent's reaction to that situation." The commission noted the "unusual character" of the situation giving rise to the multiple counts of the bar complaint, and recognized that "cases like this one do not fit within 'cubby holes.' " We agree with these characterizations. Because of the complexity of the facts and evidence presented in regard to the individual counts, we first discuss respondent's conduct by recounting a history of the individual litigations in a chronological context, so far as possible.

A. The Levine and Harris Litigation: Count 10

Respondent and John D. Harris practiced law together for about seventeen months, from April 1980 until August 1981. After they dissolved their practice, disputes arose between respondent and Harris regarding the division of the assets of the firm, including clients' contingency fees in pending cases. Those disputes were ultimately resolved in binding arbitration by an award issued on February 10, 1983. Respondent challenged the arbitration award in a series of legal actions. The arbitration award was ultimately confirmed in superior court and affirmed by the court of appeals. Respondent also filed a bar complaint against Harris and his new partner, Anthony Palumbo. After investigation, bar staff concluded that Harris and Palumbo had not violated any ethical rules, and respondent's complaint was dismissed on April 22, 1983.

Based on the same dispute that was a subject of the arbitration, respondent filed suit in superior court on April 25, 1983, on behalf of his corporate entity, Jack Levine, P.C., against Harris and Palumbo, individually and as a law firm. In addition, respondent named himself and his wife as defendants. Respondent alleged tortious interference with contractual relations, misappropriation of the professional corporation's monies, conversion, and breach of contract. In April 1984, respondent settled the suit against himself by agreeing to abide by the arbitration agreement. The remainder of the suit ultimately was resolved in favor of Harris and Palumbo, and the superior court awarded Harris attorney's fees of $150,000 under authority of A.R.S. § 12-341.01(C), A.R.S. § 12-349, and Rule 11, Arizona Rules of Civil Procedure, after finding the suits groundless, without substantial justification, and prosecuted in bad faith.

Levine's institution and maintenance of the 1983 consolidated suits against Harris and Palumbo, on behalf of Jack Levine, P.C., 3 formed the basis of amended count 10 of the bar complaint. Levine's refiling of an action for declaratory judgment that Harris not receive any fees from another litigation involving Anthony Abril, discussed below, was also alleged in count 10.

B. Abril v. Harris Litigation: Counts 1-4

On June 1, 1981, Anthony Abril, Jr., retained the firm of Levine & Harris, P.C., to represent him in a bad faith suit against Globe American Insurance Company (Globe). This suit was based on Globe's refusal to settle a personal injury action against Abril that had resulted in an excess judgment of $95,000 in favor of Gregory Johnson, a pedestrian who had been injured in a hit-and-run accident in which Abril was the driver.

Page 1098

[174 Ariz. 151] In November 1981, after the firm of Levine & Harris dissolved, Abril chose Harris and his new firm, Harris & Palumbo, to continue the litigation. In 1984 Harris succeeded in obtaining a judgment of $1,300,000 in Abril's favor against Globe. In January 1985, Globe appealed from that judgment.

On April 9, 1985, Abril fired Harris and his new firm and retained respondent to represent him. Respondent successfully moved to strike an appellate brief that Harris and his associates had filed in the court of appeals, and substituted his own brief on Abril's behalf. After oral argument in the court of appeals, in which respondent participated, the court of appeals reversed the punitive damages portion of Abril's judgment of $1,000,000, but affirmed the compensatory damages portion of $300,000. Abril v. Globe American Cas. Co., 1 CA-CIV 8172, Ariz.App. mem. dec. filed Aug. 15, 1986. Respondent then filed a petition for review in this court, which was denied.

Before filing the bad faith suit, Harris had unsuccessfully attempted to assign Abril's bad faith claim to Johnson. After this failed, on July 6, 1981, Harris entered into an agreement, allegedly without Abril's knowledge, with William Piatt, Johnson's counsel in the personal injury case. Under this agreement, Piatt would attempt to increase his contingency fee from Johnson from 33% to 50%, and for any amount up to $95,000 that Abril recovered from Globe, Piatt would split his contingency fee with Harris. This agreement was made on behalf of Levine & Harris, P.C., before the dissolution, and later became one of the subjects of the arbitration award.

After Abril had discharged Harris, telephone discussions occurred between Harris and Piatt regarding renewal of the Johnson judgment against Abril. Harris also wrote to Piatt on June 3, 1985, noting the date that the judgment would expire and advising Piatt to renew it "immediately." Piatt subsequently renewed the Johnson judgment against Abril. After Abril's compensatory damages against Globe were affirmed on appeal, Piatt served a garnishment on Globe for the amount Abril still owed on the Johnson judgment. Harris eventually credited Abril with $25,482.15 towards Abril's attorney's fees from Piatt's payment to Harris under the fee agreement between Harris and Piatt.

When Abril learned of the fee agreement between Harris and Piatt and the renewal of the Johnson judgment against him, he asked respondent to file a suit against Harris, alleging a conflict of interest and breach of fiduciary...

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58 practice notes
  • Romero-Barcelo v. Acevedo-Vila, No. 00-091(JAF).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 31 Julio 2003
    ...by clear and convincing evidence. In re Doyle, 144 Ill.2d 451, 163 Ill.Dec. 515, 581 N.E.2d 669, 674 (1991); see also Matter of Levine, 174 Ariz. 146, 847 P.2d 1093, 1117 (1993) (recommendations of the committee are given "great weight"). However, the court is ultimately responsible for the......
  • Attorney Grievance Comm'n of Md. v. John Michael Coppola., Misc. Docket AG No. 5
    • United States
    • Court of Appeals of Maryland
    • 29 Abril 2011
    ...of Oregon in In re Redden, 342 Or. 393, 153 P.3d 113, 114–15 (2007), and by the Supreme Court of Arizona in [419 Md. 412] In re Levine, 174 Ariz. 146, 847 P.2d 1093, 1118–19 (1993). Because a series of acts undertaken to accomplish a particular result in a single case does not constitute a ......
  • In re Comfort, No. 97,287.
    • United States
    • United States State Supreme Court of Kansas
    • 8 Junio 2007
    ...purpose other than to embarrass, delay, burden third person, attorney's motive for engaging in action relevant); In re Levine, 174 Ariz. 146, 153, 847 P.2d 1093 (1993) (when Respondent asserts objectively arguable ground for legal claim exists, Respondent's subjective purpose in bringing ac......
  • Shannon, Matter of, No. SB-92-0001-D
    • United States
    • Supreme Court of Arizona
    • 21 Junio 1994
    ...breaches of duty owed to clients are tailored to lawyer's mental state and injury or potential injury to client); see also In re Levine, 174 Ariz. 146, 170, 847 P.2d 1093, 1117 (1993) (Standards are useful tool in determining proper sanction). Based on Respondent's violations, the following......
  • Request a trial to view additional results
57 cases
  • Romero-Barcelo v. Acevedo-Vila, No. 00-091(JAF).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 31 Julio 2003
    ...by clear and convincing evidence. In re Doyle, 144 Ill.2d 451, 163 Ill.Dec. 515, 581 N.E.2d 669, 674 (1991); see also Matter of Levine, 174 Ariz. 146, 847 P.2d 1093, 1117 (1993) (recommendations of the committee are given "great weight"). However, the court is ultimately responsible for the......
  • Attorney Grievance Comm'n of Md. v. John Michael Coppola., Misc. Docket AG No. 5
    • United States
    • Court of Appeals of Maryland
    • 29 Abril 2011
    ...of Oregon in In re Redden, 342 Or. 393, 153 P.3d 113, 114–15 (2007), and by the Supreme Court of Arizona in [419 Md. 412] In re Levine, 174 Ariz. 146, 847 P.2d 1093, 1118–19 (1993). Because a series of acts undertaken to accomplish a particular result in a single case does not constitute a ......
  • In re Comfort, No. 97,287.
    • United States
    • United States State Supreme Court of Kansas
    • 8 Junio 2007
    ...purpose other than to embarrass, delay, burden third person, attorney's motive for engaging in action relevant); In re Levine, 174 Ariz. 146, 153, 847 P.2d 1093 (1993) (when Respondent asserts objectively arguable ground for legal claim exists, Respondent's subjective purpose in bringing ac......
  • Shannon, Matter of, No. SB-92-0001-D
    • United States
    • Supreme Court of Arizona
    • 21 Junio 1994
    ...breaches of duty owed to clients are tailored to lawyer's mental state and injury or potential injury to client); see also In re Levine, 174 Ariz. 146, 170, 847 P.2d 1093, 1117 (1993) (Standards are useful tool in determining proper sanction). Based on Respondent's violations, the following......
  • Request a trial to view additional results

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