Rivkind, Matter of
| Decision Date | 10 May 1990 |
| Docket Number | No. SB-88-0043-D,SB-88-0043-D |
| Citation | 791 P.2d 1037,164 Ariz. 154 |
| Parties | In the Matter of Morton RIVKIND, a member of the State Bar of Arizona, Respondent. |
| Court | Arizona Supreme Court |
In separate criminal proceedings, respondent lawyer Morton Rivkind was charged with and tried for the offense of possession of cocaine. He was convicted of and punished for the lesser-included offense of attempted possession of cocaine. The question presented in this separate disciplinary proceeding is what additional sanction should be imposed upon him in his capacity as a member of the State Bar of Arizona.
The Arizona State Bar Hearing Committee (Committee) found that Morton Rivkind (respondent) violated E.R. 8.4(b) and Rule 57(a), Ariz.R.Sup.Ct., 17A A.R.S., and recommended that he be suspended from the State Bar of Arizona for a period of twenty-two months, commencing on November 6, 1986, and be placed on probation for one year following his suspension.
The Disciplinary Commission of the Supreme Court (Commission) recommended that the suspension be for a period of three years, commencing November 6, 1986. Both respondent and counsel for the State Bar contend that a three-year suspension is excessive. We have jurisdiction pursuant to Rule 53(e), Ariz.R.Sup.Ct., 17A A.R.S.
On January 8, 1986, respondent was stopped for a traffic violation. After being observed trying to hide something, he was searched, and Phoenix police officers found .19 milligrams of cocaine on his person. Respondent was charged with possession of cocaine.
Respondent waived his right to a jury and a bench trial was conducted on a stipulated set of facts. He was found guilty of attempted possession of cocaine, a narcotic drug, a class five felony. On September 19, 1986, the trial court suspended sentence and placed respondent on three years probation. Additionally, pursuant to A.R.S. § 13-603(G), the trial judge revoked respondent's license to practice law, and respondent complied with the order by ceasing all legal practice on that date. The trial judge noted that, although respondent's conviction was the end result of "a five-year or so struggle" with cocaine, nothing in the record showed that his professional performance had been adversely affected.
Based on respondent's conviction, we placed him on interim suspension pursuant to Ariz.R.Sup.Ct. 57(b) on November 6, 1986. Shortly thereafter, respondent, with the approval of the Maricopa County Adult Probation Department, relocated to Florida. He supported himself and his family through various unskilled labor jobs. Eventually, he found employment as a law clerk.
While respondent was in Florida, bar disciplinary proceedings commenced. After an in absentia hearing, the Hearing Committee recommended that respondent be suspended from the practice of law for three years. However, on January 11, 1988, the Disciplinary Commission found that the State Bar failed to properly notify respondent of the commencement of such proceedings. Because respondent had been denied due process due to incomplete service of process, the Commission remanded the case to the Hearing Committee for new proceedings.
The Committee conducted a hearing on April 15, 1988, at which several of respondent's colleagues and his probation officer testified. The Committee issued its report on May 26, 1988. The Committee was impressed with respondent's rehabilitation and his efforts at restoring his life to normalcy. It noted that respondent had complied in all respects with the probation imposed upon him in the criminal case. It found that respondent had been very cooperative and had expressed sincere contrition and regret for his past behavior. Significantly, the Committee found that respondent was no longer involved with drugs or alcohol and that he had voluntarily submitted to several urine analyses, all of which were negative. As a result of its findings, the Committee recommended that respondent be "readmitted" to the practice of law, subject to a one-year probationary period. 1
After oral argument, the Commission issued its report on July 9, 1988, accepting most of the Committee's factual determinations. Although the Commission, like the Committee, was impressed with respondent's recovery program, it recommended that the suspension be for three years, rather than for two, retroactive to November 6, 1986.
In the criminal case, respondent was granted early termination of his probation on July 14, 1988. On September 6, 1988, his civil rights were restored and his felony conviction was vacated. As a result, this court terminated his interim suspension on September 15, 1988, and reinstated respondent to active membership in the State Bar of Arizona.
This case is in a somewhat unusual posture, because the State Bar joins respondent in urging this court to adopt the Committee's recommendation of a two-year suspension, rather than the three years recommended by the Commission. Both the State Bar and respondent contend that the Committee's recommendation better serves the purposes of bar discipline. With certain modifications, we agree and adopt the Committee's recommendation.
We must decide the appropriate sanction to impose under the facts and circumstances of this case.
In disciplinary proceedings, we act as an independent "trier of both fact and law in the exercise of our supervisory responsibility over the State Bar." Matter of Neville, 147 Ariz. 106, 108, 708 P.2d 1297, 1299 (1985). We do, however, give deference and serious consideration to the recommendations of the Committee and Commission. Matter of Pappas, 159 Ariz. 516, 518, 768 P.2d 1161, 1163 (1988). Additionally, this court gives great weight to the factual findings of the Committee, particularly when questions of credibility are involved. Matter of Hoover, 155 Ariz. 192, 196, 745 P.2d 939, 943 (1987); Matter of Zang, 154 Ariz. 134, 136, 741 P.2d 267, 269 (1987), cert. denied, 484 U.S. 1067, 108 S.Ct. 1030, 98 L.Ed.2d 994 (1988).
Rule 57(a)(3), Ariz.R.Sup.Ct., 17A A.R.S. provides that a "lawyer shall be disciplined as the facts warrant upon conviction ... of any felony." Under that rule, proof of conviction is conclusive evidence of guilt of the underlying criminal offense. The fact that the conviction was vacated pursuant to A.R.S. § 13-907 does not affect the conclusiveness of guilt because the order to vacate is unrelated to the merits of the conviction. See Matter of Couser, 122 Ariz. 500, 596 P.2d 26 (1979) (). Therefore, the sole issue before us is the extent of discipline to be imposed.
Our responsibility to determine the appropriate discipline in a case such as this imposes a concomitant responsibility to pay special care to the purposes to be served by such discipline. The object of disciplinary proceedings is not to punish the lawyer, but to protect the public and deter similar conduct by other lawyers. "Consequently, in determining the appropriate sanction to be imposed, we should focus on such considerations as the maintenance of the integrity of the profession in the eyes of the public, the protection of the public from unethical or incompetent lawyers, and the deterrence of other lawyers from engaging in unprofessional conduct." Matter of Murray, 159 Ariz. 280, 282, 767 P.2d 1, 3 (1988). On occasion, it is also appropriate for us to assist, if we can, in rehabilitating an errant attorney. Hoover, 155 Ariz. at 197, 745 P.2d at 944. This goal is especially appropriate when, as here, an attorney has taken very considerable and substantial steps in rehabilitating and assisting himself.
In other cases, we have considered the American Bar Association's Standards for Imposing Lawyer Sanctions [hereinafter "ABA Standards "] as a suitable guideline in imposing discipline. See, e.g., Matter of Spear, 160 Ariz. 545, 555, 774 P.2d 1335, 1345 (1989) (). The ABA Standards suggest that we consider (a) the duty violated; (b) respondent's mental state; (c) the injury to the client; and (d) any aggravating or mitigating factors. ABA Standards § 3.0.
Respondent has violated Ariz.R.Sup.Ct. 42 (E.R. 8.4(b)) which provides, "It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Respondent broke his oath to support and uphold the laws of the state. Without doubt, respondent's conviction places in question his ability to respect and uphold the law. See Matter of Kinnear, 105 N.J. 391, 394-396, 522 A.2d 414, 416 (1987). Obedience to the law by an attorney is crucially important. Matter of Preston, 616 P.2d 1, 5 (Alaska 1980); In re Scarnavack, 108 Ill.2d 456, 458, 92 Ill.Dec. 446, 447, 485 N.E.2d 1, 2 (1985).
Respondent's drug experimentation was not the result of any extremely exceptional circumstance. He says it was not the stress of work but a "miserable personal life" that impelled him to try drugs. (R.T. at 84, Apr. 15, 1988.) While this brings into question his power of self-control, the record before us does not show that respondent allowed his drug addiction to adversely affect his legal practice. 2 Many individuals testified and wrote the trial judge that they were very surprised to learn that respondent was addicted to drugs. He did not misappropriate client funds or neglect client business, nor did he involve his clients in his drug usage. This factor weighs very heavily in our decision. Courts have uniformly paid careful consideration to the effect of...
To continue reading
Request your trial
-
Shannon, Matter of
...that he has voluntarily withdrawn from practice, citing as support In re Murray, 159 Ariz. 280, 767 P.2d 1 (1988), and In re Rivkind, 164 Ariz. 154, 791 P.2d 1037 (1990). According to Respondent, he closed his office on August 1, 1991 after learning that the Committee recommended that he be......
-
In the Matter of Lock
...of a lawyer convicted of a felony for possession of cocaine. Because the Court holds otherwise, I dissent. 1. See In re Rivkind, 791 P.2d 1037 (Ariz. 1990) (taking into account all the circumstances of felony cocaine possession conviction and the attorney's subsequent rehabilitation efforts......
-
Levine, Matter of
...which "is not to punish the lawyer, but to protect the public and deter similar conduct by other lawyers." In re Rivkind, 164 Ariz. 154, 157, 791 P.2d 1037, 1040 (1990). An additional goal of the disciplinary system is to preserve the public's confidence in the integrity of the bar. In re H......
-
In re Marshall
...of the legal profession. Logically, therefore, it is a factor in aggravation. 768 P.2d at 1074 (emphasis in original). In In re Rivkind, supra note 12, the Supreme Court of Arizona, in suspending an attorney for two years for abuse of cocaine where the abuse had not affected his clients, st......
-
Disciplinary Opinion: People v. Walker
...were the root causes of at least some of the misconduct and affected his ability to function in normal activities); In re Rivkind, 791 P.2d 1037, 1041, 1043, 1045 (Ariz. 1990) (imposing two-year retroactive suspension and two-year probation upon attorney who was convicted of attempted posse......
-
Disciplinary Opinions
...disciplinary proceedings is not punish the lawyer, but to protect the public and deter similar conduct by other lawyers." In re Rivkind, 164 Ariz. 154, 791 P.2d 1037 (1990). In Arizona, the American Bar Association's Standards for Imposing Lawyer Sanctions ("ABA Standards") are frequently a......