Piatt, Matter of
| Decision Date | 24 December 1997 |
| Docket Number | No. SB-96-0064-D,Nos. 91-0843 and 91-1522,SB-96-0064-D,s. 91-0843 and 91-1522 |
| Citation | 951 P.2d 889,191 Ariz. 24 |
| Parties | , 259 Ariz. Adv. Rep. 23 In the Matter of a Member of the State Bar of Arizona, William M. PIATT, IV, Respondent. Disc. Comm. |
| Court | Arizona Supreme Court |
This is a lawyer disciplinary proceeding. The Hearing Officer recommended that William M. Piatt, IV, be publicly censured. The Disciplinary Commission agreed and also recommended a one-year period of probation during which Piatt would participate in the State Bar's membership assistance program and complete a counseling program. Two members of the Commission dissented, recommending suspension instead. Piatt appeals to this court under Rule 53(e), Ariz.R.Sup.Ct., as it existed before its recent amendment provided for discretionary review. We adopt the recommendation of the Disciplinary Commission.
Piatt did not object to the Hearing Officer's report and the Commission unanimously adopted the Hearing Officer's findings of fact and conclusions of law. We thus state the facts as found by the Hearing Officer and adopted by the Commission.
In May of 1990, twenty-year-old client A retained Piatt to represent her in a domestic relations action. During the initial interview, Piatt asked her whether she had ever masturbated at the age of fourteen. In a later meeting, he told her she looked delicious and that it would be even better if her skirt were four inches shorter. At still another meeting, he asked her if she had ever had a sexual relationship without emotional involvement and told her that she needed somebody like him who could take care of her needs. Client A told Piatt that she did not appreciate the way he talked and asked him to direct his attention to her divorce.
Piatt later asked client A to come to his house to prepare for a post-decree hearing. When she arrived, Piatt was in his bathrobe. After the meeting, Piatt asked her to stay, and told her that if she was not going to respond to him, he could no longer represent her unless she came up with a lot more money.
During the same time frame, client B retained Piatt to represent her in a domestic relations action. During the representation, he frequently made inappropriate sexual comments. At a luncheon meeting, he made lewd suggestions about things they could do under the tablecloth. When they got back to the office, Piatt smacked his lips and told her a chemical attraction existed. Client B left the office in shock. She then sent him a letter saying she did not want to get involved and that she hoped it would not affect his professional performance on her behalf. The following week Piatt called her about a proposed property settlement which she did not like. Piatt told her that if he had to rewrite the papers it was going to cost her a lot more money. At a hearing the next day, she felt pressured to accept the agreement.
The Hearing Officer found that Piatt's denials and explanations lacked any credibility and that he had violated ER 1.7(b), and Rule 41(g), Ariz.R.Sup.Ct. After reviewing the Commission's report and the briefs, we solicited supplemental briefs on the question of suspension and scheduled the case for oral argument.
Piatt argues that his conduct was not clearly unethical at the time it was committed. Relying on In re Evans, 113 Ariz. 458, 556 P.2d 792 (1976), he contends that it is not proper to discipline a lawyer for debatable conduct. The State Bar contends that there is nothing debatable about the ethical impropriety of sexually harassing one's clients. We agree with the State Bar.
A lawyer is a fiduciary with a duty of loyalty, care, and obedience to the client. The relationship is, and must be, one of utmost trust. It matters not that the words "sexual harassment" are not used in our Rules of Professional Conduct. ER 1.7(b) prohibits a lawyer from representing a client if that representation is going to be materially limited "by the lawyer's own interests." Clearly, sexual harassment by a lawyer serves the lawyer's interest and not the client's. Asking wholly inappropriate questions and making obscene comments to a client undermines trust in the lawyer and the representation.
Indeed, this case went beyond sexual harassment. Piatt told client A that unless she responded sexually to him he could no longer represent her unless she came up with a lot more money. Client A had already invested time and energy in Piatt as her lawyer. It is hard to imagine a more egregious case of putting one's interests ahead of the client's. Piatt also put his interests ahead of client B's.
In 1994, we considered a petition under Rule 28, Ariz.R.Sup.Ct., to adopt a rule that would prohibit lawyers from requesting, requiring or demanding sexual relations with a client as a condition of professional representation. In re Rule 42, Ariz.R.Sup.Ct., R-94-0003. We denied the petition, stating that "the problem addressed ... is covered by the existing rules." Order of May 18, 1994. We continue to believe the obvious--that we do not need a specific rule against attempting to extort sexual conduct from a client. Rule 42, Ariz.R.Sup.Ct., does not purport to describe in exhaustive detail the different ways in which a lawyer may breach the fiduciary duty to the client. For example, our rules do not say that a lawyer shall not threaten, intimidate, or strike a client. They do not say that a lawyer must not steal from a client. But who would doubt that these are breaches?
Nor does Rule 41, Ariz.R.Sup.Ct., purport to exhaust the duties and obligations of members of the Bar. It is true, as Piatt argues here, that Rule 41(g), which requires lawyers to "abstain from all offensive personality" is quite general. But this case does not come close to the outer contours of the rule. Piatt's behavior here is offensive under any standard. This is not just a case of a lawyer using offensive language. This is a case of exploitation and extortion. We thus reject Piatt's argument and agree with the Commission's conclusion that "he violated the trust that is vital to every lawyer-client relationship." Disciplinary Commission Report at 7.
Piatt next argues that the Commission's recommendation of probation is unjustified and should be rejected. We disagree. We agree with the Commission that Piatt could reoffend unless he comes to grips with his problem. The membership assistance program of the State Bar could be very helpful. And we agree with the Commission that counseling should help Piatt stop his destructive behavior before any other clients are harmed.
Piatt next argues that his misconduct was not proved by clear and convincing evidence. The Hearing Officer believed the clients and did not believe Piatt. After reviewing the record, we agree that his misconduct was proved by clear and convincing evidence.
Normally at this point, having rejected each of Piatt's arguments, we would simply adopt the Disciplinary Commission's recommendation as our own. However, we solicited briefs on the question of possible suspension because some members of this court thought that a public censure might be too lenient. Others would have ordered suspension had they been making the decision in the first instance. But the State Bar did not appeal from the Disciplinary Commission Report and Piatt did. In every other setting in which a party appeals, one of two things is expected. If one prevails, one gets relief. If one does not prevail, the decision below is affirmed. There is no "upping the ante." No one expects that by appealing, things will get worse. Our ultimate authority over disciplinary matters makes upping the ante possible. But unless that power is exercised rarely and only in the clearest of situations, many lawyers will not risk an appeal even where they have legitimate and reasonable claims to make.
We understand the outrage Piatt's behavior inspires. The purpose of lawyer discipline, however, is not to punish the lawyer but to protect the public. In re Brown, 184 Ariz. 480, 483, 910 P.2d 631, 634 (1996). Piatt has never before been the subject of lawyer discipline in over twenty years of active practice. Considered deliberation suggests that suspension is not necessary to deal with Piatt's problems and to protect the public. See, e.g., People v. Bergner, 873 P.2d 726 (Colo.1994). A public censure and the publication of this opinion will get Piatt's attention. And supervised probation with counseling is more likely than unsupervised suspension to ensure that this behavior will never happen again. The prospect that noncompliance will lead to revocation of probation, suspension or disbarment is likely to be a powerful incentive to change. We thus defer to the recommendation of the Hearing Officer, who heard the witnesses, and the Disciplinary Commission, which gave the matter careful and reflective consideration.
Piatt is hereby publicly censured. He is assessed fees and costs as may be taxed and allowed. He is placed upon probation for a period of one year effective thirty days after the filing of this opinion, under the following terms and conditions:
1. Piatt shall participate in the membership assistance program of the State Bar of Arizona.
2. At his sole expense, Piatt shall successfully complete a program of counseling appropriate for his misconduct, selected and monitored by the State Bar of Arizona.
3. During the probationary period, Piatt shall be supervised by a practice monitor appointed by the State Bar of Arizona who shall consult with Piatt and his clients as necessary to ensure that Piatt's misbehavior has ceased forthwith.
4. Failure to comply or cooperate will lead to suspension, disbarment or other disposition as the circumstances may warrant.
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