Loftus, Matter of

• Citation: 171 Ariz. 672,832 P.2d 689
• Decision Date: 18 June 1992
• Docket Number: 87-0979,Nos. 5-2104,No. SB-88-0010-D,86-1346,86-1311,SB-88-0010-D,s. 5-2104
• Parties: In the Matter of a Member of the State Bar of Arizona, William C. LOFTUS, Respondent. Disc. Comm.
• Court: Supreme Court of Arizona

Page 689

832 P.2d 689

171 Ariz. 672

In the Matter of a Member of the State Bar of Arizona, William C. LOFTUS, Respondent.

No. SB-88-0010-D.

Disc. Comm. Nos. 5-2104, 86-1311, 86-1346, 87-0979.

Supreme Court of Arizona, In Banc.

June 18, 1992.

[171 Ariz. 673] Stewart & McLean by William H. McLean, Phoenix, for respondent.

Yigael M. Cohen, Bar Counsel, State Bar of Arizona, Phoenix.

OPINION

SHELLEY, Court of Appeals Judge ^*, Division One.

The Disciplinary Commission of the Supreme Court (Commission) recommended that William C. Loftus (Respondent) be suspended for a period of two years with credit for time spent on voluntary suspension. Respondent filed a timely appeal from the recommendations of the Commission. We have jurisdiction pursuant to Rule 53(e), Arizona Rules of the Supreme Court.

FACTS AND PROCEDURAL BACKGROUND

Respondent was admitted to the practice of law in Arizona in 1962. He later began abusing alcohol and, as a result, neglected his law practice. The State Bar started receiving complaints about Respondent in 1985 and tried to correspond with him about these matters. Respondent failed to cooperate with the State Bar and, in December 1986, complaint no. 5-2104 was filed against him in connection with his representation of the administratrix of an estate. The complaint alleged that (1) Respondent did not communicate with his client and other heirs despite repeated inquiries; (2) Respondent misrepresented his efforts to obtain information regarding the assets of the estate and continued his representation after he had been discharged; and (3) Respondent failed to appear for a hearing concerning the case. The complaint charged violations of RULE 29, ARIZONA RULES OF THE SUPREME COURT¹, DR 1-102(A)(5) (conduct prejudicial to administration of justice), DR 1-102(A)(4) (conduct involving dishonesty), DR 2-106 (legal fees); Rule 42, Arizona Rules of the Supreme Court, ER 8.4(a), (c), and (d) (misconduct) and ER 1.16(a)(3) and (d) (withdrawal from representation); and Rule 51(h), Arizona Rules of the Supreme Court (failure to cooperate with disciplinary process).

Respondent failed to answer the complaint, and the allegations were deemed admitted. See rule 51(h), Arizona Rules of the Supreme Court. A hearing was held, and the Bar Hearing Committee (Committee) issued its report recommending a 21-month suspension. Respondent did not appeal. When Respondent failed to appear before the Commission, it recommended that he be disbarred. Respondent then allowed his dues to become delinquent, and he was suspended in June 1987. He remained on self-imposed suspension until May 1990, when he was reinstated.

On review to this court Respondent, through counsel, objected to the findings and recommendations of the Committee and Commission, and requested a hearing on the merits. He asserted that his failure to respond was the result of alcoholism. On October 19, 1988, this court issued a remand order stating:

The Commission, or, at its option, the ... Committee ..., may consider whether respondent should be permitted to present evidence of the type described in his objections, and, if so, the Commission or Committee may hear such evidence and make such further findings or recommendations as are appropriate. [Emphasis added.]

The Commission remanded the matter to the Committee. On December 6, 1988, the Committee allowed Respondent to file a memorandum justifying why a hearing on the merits should be conducted.

The Committee granted a hearing but limited the evidence it would consider, stating in pertinent part:

[T]he scope of the hearing granted does not include controverting evidence on the operative facts alleged and found.... [T]he Committee feels that Respondent seeks to be heard in the nature of confession and avoidance, rather than to dispute the facts of the complaint. Accordingly, the issues to be heard are so limited. [Emphasis added.]

Respondent did not object to this limitation.

Thereafter, a 9-count amended complaint was filed. The Committee subsequently dismissed counts 3, 4, and 5. The Committee, after a hearing, recommended that Respondent be suspended retroactively for one year, and receive probation for one year.

After its hearing, the Commission adopted the Committee's findings that, as to count 1 (the estate matter), Respondent violated the ethical rules as alleged in the complaint. With regard to counts 2, 6, 7, and 9, the Commission adopted the Committee's findings that Respondent violated ER 1.1 (competent representation), ER 1.3 (reasonable diligence), ER 1.4 (communication with clients), ER 8.1(b) (failure to disclose information to the State Bar), and Rule 51(h) and (i) (failure to furnish information or respond to a bar inquiry, and refusal to cooperate with the State Bar). Respondent did not file objections.

The Commission recommended a two-year retroactive suspension plus one year probation based on a pattern of misconduct and the harm caused.

DISCUSSION

In disciplinary proceedings, this court acts as an independent "trier of both fact and law." In re Lincoln, 165 Ariz. 233, 235, 798 P.2d 371, 373 (1990) (quoting In re Neville, 147 Ariz. 106, 108, 708 P.2d 1297, 1299 (1985)). Although we give serious consideration to findings of the Committee and the Commission, "we must be persuaded by clear and convincing evidence that [R]espondent committed the alleged violations." Lincoln, 165 Ariz. at 235, 798 P.2d at 373 (citing Rule 54(c)). Further, we bear the ultimate responsibility for determining the appropriate sanction. Lincoln, 165 Ariz. at 235-36, 798 P.2d at 373-74 (citing Neville, 147 Ariz. at 115, 708 P.2d at 1306).

The facts before us are undisputed. Respondent, while suffering from alcoholism, committed various ethical violations.

The Committee found that in the Spring of 1987, Respondent, as a result of alcoholism, was unable to participate in his own defense. Therefore, Respondent asserts that due process requires that count 1 be remanded for a hearing on the merits. We disagree.

After remand by this court, Respondent did not offer any evidence in his memorandum to refute the allegations in count 1. He did not object to the Committee's rulings limiting the issues to be heard; nor did he object to the report before the Committee and the Commission. Respondent told the Commission, "[A]s to the [Committee's] findings of fact and conclusions of law, we have absolutely no objections to those; we concur and agree with them." Respondent thus waived the right to a hearing on the merits as to count 1. He was not denied due process.

Respondent agrees that during 1986 and 1987, while suffering from alcoholism, he committed ethical violations. He acknowledges that an appropriate sanction should be imposed upon him. However, he asserts that the sanction recommended by the Commission is excessive. He believes that his self-imposed period of suspension, the lack of significant harm to any of his former clients, and the fact that he was suffering from alcoholism when the violations occurred, justify only the imposition of censure or, at most, a retroactive suspension of less than 6 months coupled with a period of monitoring.

Respondent further asserts that his rehabilitation militates in favor of sanctions substantially less than those recommended by the Commission. We disagree. In In re Rogers, 100 Ariz. 214, 412 P.2d 710 (1966), we held that multiple complaints relating to cumulative misconduct raise serious doubts about a lawyer's fitness to practice law and justify a more severe sanction than an isolated act of neglect or misconduct. Respondent will be credited for time spent in his self-imposed suspension. This credit will allow him to continue practicing law without further interruption.

Respondent asserts that a two-year suspension will send a message to alcoholic lawyers that a voluntary suspension and rehabilitation will not benefit them in disciplinary proceedings. We disagree. Were it not for Respondent's self-imposed suspension and rehabilitation our sanction likely would have been greater than that we imposed. One of the objectives of bar discipline is to give the public confidence in the integrity of the bar. The sanction we are imposing best serves this objective.

PROPORTIONALITY

Respondent asserts that a two-year suspension is disproportionate to the sanctions imposed in Hoover, Rivkind, and Morris. In In re Hoover, (Hoover I), 155 Ariz. 192, 745 P.2d 939 (1987), and In re Hoover, (Hoover II), 161 Ariz. 529, 779 P.2d 1268 (1989), Hoover misappropriated substantial sums from one client and fraudulently billed for personal expenses. After the defalcations were discovered, apparently in 1984, he voluntarily suspended practice and sought medical treatment for a mental disease known as bipolar manic depressive disorder.

Hoover was suspended for a period of 6 months without credit for time previously spent in voluntary suspension. Hoover had made full restitution and his clients, including those damaged by his conduct, did not favor imposition of discipline. In spite of the lengthy self-imposed suspension, Hoover was given an additional 6 months suspension. Because he had resumed his practice, this required him to notify his clients of his suspension and to once again stop practicing law. He was also required to apply for reinstatement at the time permitted by Rule 71(c) pursuant to the procedures prescribed therein, and if reinstated to be on a two-year probation.

In contrast, Respondent's suspension will be entirely retroactive. He...