Wolfram, Matter of
| Decision Date | 11 February 1993 |
| Docket Number | No. SB-91-0040-D,87-0008 and 87-0227,Nos. 86-1532,SB-91-0040-D,s. 86-1532 |
| Citation | 174 Ariz. 49,847 P.2d 94 |
| Parties | In the Matter of a Member of the State Bar of Arizona, Donald E. WOLFRAM, Respondent. Disc. Comm. |
| Court | Arizona Supreme Court |
Donald E. Wolfram ("Respondent") appeals from the recommendation of the Arizona Supreme Court Disciplinary Commission ("Commission") that he be suspended from the practice of law for a period of eighteen months and pay restitution in the amount of $3,650.
The Commission found that during the course of representing a client in a criminal matter, Respondent lacked competence, lacked diligence, and failed to maintain proper client communication. Specifically, the Commission found that Respondent violated Ethical Rule ("ER") 1.1 (competence), ER 1.3 (diligence), and ER 1.4 (communication), Rules of Professional Conduct, Rule 42, Ariz.R.Sup.Ct., 17A A.R.S. (hereinafter "Rule ____"). Additionally, the Commission found that Respondent failed to cooperate with the State Bar of Arizona in its attempt to resolve two unrelated complaints, in violation of Rules 51(h) and 51(i).
Although the Commission generally adopted the findings of fact and conclusions of law of Hearing Committee 6-G, it rejected the Committee's recommendation of a six-month suspension and instead recommended an eighteen-month suspension. Respondent argues that most of the conduct that the State Bar found improper, although unwise in hindsight, did not violate any ethical rule. Respondent additionally asserts that any violation that may have occurred does not warrant suspension. We have jurisdiction under Rule 53(e).
The procedural history in this case is complicated. Although it is unnecessary to relate the entire record, an abbreviated explanation is helpful in understanding the disposition that we reach today. The State Bar filed three complaints against Respondent, one in July 1987, and the other two in July 1988. The most serious complaint involved Respondent's representation of a criminal defendant who was sentenced to twelve years in prison for her role in her child's death. The State Bar dismissed the substantive allegations of the other two complaints but argued, and the Commission found, that Respondent's lack of cooperation in resolving those matters violated Rule 51. Respondent does not contest these Rule 51 findings.
On three different occasions, Respondent and the State Bar have presented these matters to a hearing committee and the Commission. Twice, the committees and the Commission considered agreements for discipline by consent. On both occasions, the committees recommended, and the Commission agreed, that the agreements should be rejected because the sanction provided was not severe enough.
On October 26, 1990, Hearing Committee 6-G ("the Committee") heard the case that is the subject of this appeal. The State Bar and Respondent submitted a Joint Memorandum of Counsel and a Stipulation as to Facts. The Committee unanimously recommended that Respondent be suspended for six months, that he obtain at least twenty-four hours of continuing legal education, and that the Commission accept Respondent's offer to make full restitution to his client for the fee paid for her criminal representation. Respondent filed his objection to the Committee's recommendation. Following a hearing, the Commission generally adopted the Committee's findings of fact and conclusions of law but recommended, with three members dissenting, that Respondent be suspended for eighteen months instead of six months. 1 Disciplinary Commission Report, filed May 9, 1991. With this procedural background, we turn to the facts established in the record.
The essential facts of the criminal matter are undisputed. Respondent's client was indicted for felony child abuse on July 22, 1984. Her indictment stemmed from the death of her 22-month-old child. The client's husband allegedly killed her child after she left the child with him, in direct violation of a court order. The client initially rejected a plea agreement, negotiated by her former attorney, that called for a maximum prison term of seven years. Instead, in September 1985, she hired Respondent, who agreed to handle her defense for a $10,000 flat fee. At the time, Respondent was experienced, having practiced in the field of criminal law for approximately twenty years.
Respondent acknowledges that he "fail[ed] to adequately present [his client's] defense ... and to provide certain other minimal services," Joint Memorandum of Counsel at 5, despite the fact that his client faced a significant mandatory term of imprisonment if convicted of the charge. Specifically, during the course of the criminal representation, Respondent admits that he did not do the following:
1. Interview the prosecution witnesses prior to trial;
2. Read the transcript of the grand jury proceeding that resulted in his client's indictment;
3. Examine physical evidence, such as tapes of interviews and X-rays;
4. Interview prospective witnesses disclosed in the police reports;
5. Consult with his client on whether the case should go to the jury on lesser included offenses; and
6. Challenge venire persons who stated that they would be uncomfortable sitting as a juror in a child abuse case.
The Committee also found that Respondent failed to procure independent expert witnesses to analyze and/or develop testimony on the state's physical evidence and failed to object to expert testimony being offered on the ultimate issue of guilt. Despite his admitted shortcomings in the criminal representation, Respondent claims that he properly prepared for trial. His preparation included interviews with his client and some others, as well as examining police reports, the transcript of the original child abuse proceeding, and the file prepared by his client's former attorney.
Following trial, the jury convicted Respondent's client and the court imposed a sentence of twelve years. In August 1986, the client filed a petition for post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure, 17 A.R.S. ("Rule 32 Petition"). Through her public defender, she alleged that the representation provided by Respondent was not only ineffective but "wretched beyond all belief." 2." ' 2 The trial judge, without holding an evidentiary hearing, granted the petition and ordered a new trial. Respondent's client subsequently entered a very favorable plea agreement, receiving a one-year jail sentence, lifetime probation, and credit for time served.
The other complaints are not connected with the criminal case. They involve disputes with two separate and unrelated clients. In both of these matters, the State Bar dismissed the substantive allegations; therefore, we do not discuss their factual bases. The State Bar, however, maintains that because Respondent failed to cooperate in the resolution of these complaints, discipline is warranted.
In both instances Respondent failed to reply in a timely manner to charges of misconduct. In the first case, the State Bar issued a letter to Respondent on January 12, 1987, advising him that he had been charged with professional misconduct and that a written response was required within twenty days. After receiving no reply from Respondent, the State Bar issued a second letter on February 10, 1987, requesting a response within fifteen days to the charges that accompanied the January 12 letter. On March 5, 1987, still having received no response, the State Bar issued another letter demanding that Respondent reply to the charges within ten days. Respondent did not reply until July 17, 1987, some six months after he received the first letter. The second incident involves nearly identical misconduct. Instead of responding within twenty days, as initially requested, Respondent again delayed, this time nearly seven months. Notably, all of the letters warned that the failure to cooperate was a violation of this court's rules. See Rule 51.
While Respondent does not contest that he violated Rule 51, he does offer an explanation. He maintains that although the letters clearly required a response, he believed that the matters would handle themselves and therefore did not require his immediate attention. Respondent additionally asserts that because he was over-extended, with a case load exceeding two hundred open matters, he made a decision to handle pressing client concerns instead of responding to the State Bar inquiries.
In disciplinary proceedings, this court acts as an independent trier of fact and law in the exercise of our supervisory responsibility over the State Bar. In re Rantz, 169 Ariz. 56, 57, 817 P.2d 1, 2 (1991); In re Henry, 168 Ariz. 141, 143, 811 P.2d 1078, 1080 (1991); In re Lincoln, 165 Ariz. 233, 235, 798 P.2d 371, 373 (1990). Nevertheless, we give deference and serious consideration to the reports of the committee and the Commission. In re Rantz, 169 Ariz. at 57, 817 P.2d at 2; In re Henry, 168 Ariz. at 143, 811 P.2d at 1080; In re Lincoln, 165 Ariz. at 235, 798 P.2d at 373. We must be persuaded by clear and convincing evidence that Respondent committed the violations charged. Rule 54(c); see also In re Petrie, 154 Ariz. 295, 297, 742 P.2d 796, 798 (1987). The State Bar has met its burden if it shows that it is "highly probable" that the allegations in the complaint are true. In re Petrie, 154 Ariz. at 297, 742 P.2d at 798.
Respondent asserts that the omissions pertaining to the criminal case were part of a deliberate trial strategy, rather than a product of misconduct....
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