Moore, In re
| Decision Date | 06 February 1974 |
| Docket Number | No. SB--25,SB--25 |
| Citation | 518 P.2d 562,110 Ariz. 312 |
| Parties | In the Matter of a Member of the State Bar of Arizona, Daniel E. MOORE, Respondent. |
| Court | Arizona Supreme Court |
D. Thompson Slutes, Tucson, for State Bar.
Flynn, Kimerer, Thinnes & Galbraith, by John J. Flynn and Tom Galbraith, Phoenix, for respondent.
This matter involves a disciplinary proceeding against a member of the State Bar of Arizona. The proceeding was initiated in the usual manner before the local Administrative Committee of the State Bar. Evidence was taken and a recommendation made by the Committee; subsequently the matter was reviewed by the Board of Governors of the State Bar at which time additional evidence was received and arguments heard. Both the Administrative Committee and the Board of Governors have recommended that the respondent, Daniel E. Moore, be disbarred. The matter was heard on review by this Court pursuant to Rule 37, Rules of the Supreme Court, 17A A.R.S.
In a disciplinary proceeding against an attorney for professional misconduct this Court is guided by certain well defined principles: (1) the evidence of unprofessional conduct by an attorney must be clear and convincing before disciplinary action is taken; (2) the recommendation of the Board of Governors of the State Bar is entitled to serious consideration; (3) this Court is the trier of the ultimate facts as well as law in the case of a charge of unprofessional conduct by an attorney. In re Rogers, 100 Ariz. 214, 412 P.2d 710 (1966); In re Block, 103 Ariz. 508, 446 P.2d 237 (1968).
Most of the facts found by the Administrative Committee and the Board of Governors are not in dispute. From a review of the record the evidence clearly supports the findings made by them. It appears that the respondent was appointed Executor of the Estate of Zerena M. Shattuck, deceased, by the Superior Court of Cochise County in 1966, and that from 1966 to and including a part of 1969 the respondent acted as Executor and attorney for the estate.
In addition to substantial landholdings the Shattuck Estate included all the issued and outstanding stock of two coprorations, namely, State Warehouse Corporation and Rancho de Repuesta Corporation.
During the above mentioned period the respondent diverted and commingled approximately $71,000 which belonged to the estate and the corporations, and that a portion of the $71,000 was converted to the respondent's own use.
One of the instances of the conversion of estate funds occurred in the latter part of December 1967 and the early part of January 1968 when the respondent caused $4,000 to be transferred from the Shattuck Estate to the trust account of his law firm and thereafter caused a check to be drawn on the law firm's trust account in the amount of $4,200 payable to respondent which he deposited in his personal checking account. Prior to the deposit of the check from the trust account the respondent had issued a check, drawn on his personal account, in the amount of $4,300 payable to the Phelps Dodge Mercantile Company in payment of his annual account, but the balance in the personal checking account at the time the check was drawn was approximately $375.
On two other occasions the respondent caused checks to be drawn on State Warehouse Corporation and Rancho de Repuesta Corporation to pay the hotel bills of the respondent. The total amount of the checks was $2,000.
The respondent repaid the estate the sum of $25,500 after attorneys for the principal beneficiary threatened legal action in regard to the handling of the estate. In order to make the repayment of $25,500 the respondent had to borrow $10,000 from his mother.
The question before us is ably presented by a statement by counsel for the respondent:
The Code of Professional Responsibility of the American Bar Association provides, in part, in the Disciplinary Rules:
'DR 9--102 Preserving Identity of Funds and Property of a Client.
'(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
'(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
'(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
'(B) A lawyer shall:
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'(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
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The practice of maintaining separate or special accounts for the funds of clients has been found necessary through long years of experience. Over 40 years ago the California Supreme Court in speaking of their rule which provided that a member of the State Bar shall not commingle the money or other property of a client with his own stated:
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