Wetzel, Matter of

• Decision Date: 08 August 1984
• Docket Number: Nos. SB-112-3,s. SB-112-3
• Citation: 691 P.2d 1063,143 Ariz. 35
• Parties: In the Matter of a Member of the State Bar of Arizona, Manfred Rolland WETZEL, Respondent. ; 82-1-5A, 82-2-5A, 82-3-5A, 83-1-5A, 83-2-5A.
• Court: Arizona Supreme Court

Page 1063

691 P.2d 1063

143 Ariz. 35

In the Matter of a Member of the State Bar of Arizona, Manfred Rolland WETZEL, Respondent.

Nos. SB-112-3; 82-1-5A, 82-2-5A, 82-3-5A, 83-1-5A, 83-2-5A.

Supreme Court of Arizona In Banc.

Aug. 8, 1984.

Certiorari Denied Feb. 19, 1985.

See 105 S.Ct. 1184.

Leonard W. Copple, Tempe, Martha McConnell Bush, Phoenix, for the State bar.

Robert A. Chard, Phoenix, for respondent.

Manfred R. Wetzel, pro se.

PER CURIAM:

It is with sadness and disappointment that we order the disbarment of Manfred R. Wetzel. The record reveals that Wetzel has not abandoned the tactics and unprofessional conduct that led to his prior suspension. See Matter of Wetzel, 118 Ariz. 33, 574 P.2d 826 (1978). Indeed, he has persisted in filing unfounded claims in order to harass and extort and has engaged in deceitful conduct in dealings with his colleagues and the courts. The evidence is clear and convincing that Wetzel has abused the right to practice law in this state and that the public interest requires that his license to practice be revoked.

When disciplinary action is recommended against an attorney, it is this Court's duty to make an independent determination of the facts. Matter of Swartz, 141 Ariz. 266, 686 P.2d 1236 (1984); Matter of Burns, 139 Ariz. 487, 679 P.2d 510 (1984), quoting Matter of Lurie, 113 Ariz. 95, 546 P.2d 1126 (1976). We do, however, give serious consideration to the findings and recommendations of the local administrative committee, see Ariz.R.S.Ct. 33-35, (hereinafter cited as "Rule"), and to the recommendations of the State Bar Disciplinary Board, see Rule 36, unless our review of the prior proceedings reveals that error has been committed which has resulted or will result in a miscarriage of justice. Rule 38(b). Respondent has challenged the propriety of the prior proceedings as violating his right to due process and as involving impermissible conflicts of interest between himself and Donald W. Hart, Chairman of Local Administrative Committee 5A ("Committee"), and between himself and Leonard Copple, bar counsel. The gravity of these proceedings requires our careful consideration of his allegations.

DUE PROCESS

The proceedings brought against respondent arose out of five complaints filed with the State Bar of Arizona. Respondent had notice of each complaint as it was filed and he submitted a written response to each. The five complaints were consolidated on January 7, 1983. In a letter dated January 11, 1983, respondent acknowledged receipt of notice of consolidation.

On April 13, 1983, a formal complaint summarizing each of eleven claims against respondent was issued by the Committee. The following day, a copy of the complaint and notice of a disciplinary hearing scheduled for May 19, 1983 were personally served on respondent. On May 17, respondent's attorney requested a ten-day continuance "to familiarize himself with the allegations." On May 18, the request was denied. On May 19, respondent's attorney filed a Petition for Special Action with this Court requesting a stay of the proceedings before the Committee. The petition was denied the same day.

When the Committee convened on May 19, counsel for respondent renewed his request for a continuance, asking for thirty days rather than for the ten days initially sought. The renewed motion was denied. Bar counsel commenced presentation of his case. Respondent's attorney made a continuing objection and stood mute throughout the proceedings on May 19 and May 20. He did not cross-examine witnesses or object to evidence. When bar counsel rested, respondent's counsel declined to offer a defense. Mr. Hart informed respondent and his attorney that the Committee would recess until May 31, 1983 to give them an opportunity to prepare a defense and present it to the Committee. He told them that he would re-subpoena any witness who had already appeared and that the Committee would consider requests to facilitate preparation. Counsel for respondent stated that ten days was inadequate.

On May 27, counsel for respondent filed an Amended Petition for Special Action, once again requesting an interlocutory stay. The stay was denied and the amended petition dismissed as moot. When the proceedings reconvened on May 31, 1983, respondent reasserted his objections to the proceedings and, once again, stood mute.

Respondent's claim that he was denied adequate notice and an opportunity to be heard is without merit. In urging a continuance, respondent's counsel focused on the fact that respondent had been unable to secure counsel until six days before the date scheduled for the hearing. He claimed the delay in obtaining counsel, attributable to something other than delay on respondent's part, precluded him from preparing for the hearing and that respondent was, therefore, denied due process. This argument is based on a presumption that a respondent in disciplinary proceedings is entitled to representation by counsel. This presumption is simply not true. Though a respondent may be represented by counsel, he or she is not entitled to such representation. Had respondent been unable to obtain counsel any time prior to May 19, he would nonetheless have been expected to appear before the Committee or been deemed to have waived his right to do so. Respondent was entitled to "fair notice of the charge," Matter of Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117, 122 (1968). See also Matter of Swartz, 129 Ariz. 288, 630 P.2d 1020 (1981). He was not entitled to "whatever time was necessary" to acquire counsel and allow counsel to prepare for the hearing.

Respondent clearly had "fair notice of the charge." He had been informed of and responded in writing to each complaint against him as it was filed with the bar. Even if he hoped the State Bar would not proceed on the complaints, he could not reasonably have maintained that hope after receiving the formal complaint and the notice of the disciplinary hearing. The record is devoid of anything that would suggest respondent did anything to prepare for the hearing from the time he received notice to the time he was to appear. Respondent could have, and indeed should have, begun to prepare any defense he wished to pursue. His decision to forego preparation in the hope of securing counsel to do all the necessary investigation and preparation was, at best, a decision which made retained counsel's task a very difficult one and, at worst, an attempt to delay the proceedings. Having sat on his hands and then having elected to stand mute, respondent cannot now claim that he was denied fair notice and an opportunity to prepare and present a defense. The Committee did not err in denying respondent's requests for a continuance. ¹

CONFLICTS OF INTEREST

Respondent's second and third challenges to the proceedings involve conflicts of interest between himself and Mr. Hart, Chairman of the Committee, and between himself and Mr. Copple, bar counsel.

Challenge to Mr. Hart

In a letter dated January 11, 1983, respondent asked Mr. Hart to withdraw from the Committee. He wrote, "If you will discuss the matter with Mr. Craig R. Kepner, the reasons will become obvious to you. If not, I refer you and Mr. Kepner to cause I CA No. 409-56-5921, IC No. WC 81-93080-W." By letter dated January 14, 1983, Mr. Hart denied the request that he withdraw. He stated that he was capable of exercising impartial judgment in the disciplinary matter. At the May 19, 1983 hearing, respondent's counsel renewed the request and presented one page of typed transcript alleged to be an excerpt from an Industrial Commission case in which Mr. Kepner had stated:

"Your Honor, I take exception to [respondent], here, who has suggested that I tampered with the witnesses. I am Counsel of record in this case, and have a perfect right to meet and discuss with witnesses and my client their testimony at any hearing or any court proceeding. For Counsel to suggest that is wholly improper and the Counsel's record before the Bar in the State of Arizona ought to reflect his ability to practice law in this state."

Respondent's counsel claimed this statement demonstrated a bias against respondent on the part of Mr. Kepner and, by association, on the part of Mr. Hart because Mr. Hart and Mr. Kepner were partners of the same law firm. This connection, respondent's counsel maintained, created a conflict of interest which made it inappropriate for Mr. Hart to serve as chairman of the Committee in the instant proceedings. Respondent's counsel renewed the request that Mr. Hart withdraw. It was denied.

Respondent's counsel repeated the request a third time at the May 31, 1983 hearing. In response, Mr. Hart stated that he had neither participated in the workmen's compensation hearing nor been aware of it before the challenge was made. After respondent's counsel agreed that the workmen's compensation hearing bore no relationship to any charge in the bar proceeding, Mr. Hart absented himself to permit the other two members of the Committee to consider the challenge once more. The Committee members denied the request. We find no error.

In his opening brief, respondent cites State v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (1972) and Rodriguez v. State, 129 Ariz. 67, 628 P.2d 950 (1981) in support of his claim that Mr. Hart's participation cast an impermissible taint on the proceedings. Respondent does not claim Mr. Kepner or Mr. Hart were privy to any confidential information; the challenge is based solely on an appearance of impropriety. A.B.A. Model Code of Professional Responsibility, Canon 9 (1980).

The cases cited are inapposite as they involve conflicts and disqualifications arising out of prior or current representations. In Latigue, this Court held that when a deputy public defender who had acted as co-counsel for a particular defendant became chief deputy county attorney, no county attorney of that office could prosecute that defendant because the...