Zang, Matter of
| Decision Date | 08 July 1987 |
| Docket Number | No. SB-86-0014-D,SB-86-0014-D |
| Parties | , 56 USLW 2130 In the MATTER OF Stephen M. ZANG and C. Peter Whitmer, Members of the State Bar of Arizona, Respondents. |
| Court | Arizona Supreme Court |
Lewis and Roca by Walter Cheifetz, Janet A. Napolitano, Phoenix, Wilcox & Ogden by M. Anne Wilcox, Golden, Colo., for respondents.
Meyer, Hendricks, Victor, Osborn & Maledon, P.A. by David G. Campbell, Edwin F. Hendricks, Langerman, Begam, Lewis and Marks by Frank Lewis, Phoenix, for State Bar.
In 1982 the State Bar charged attorneys C. Peter Whitmer and Stephen M. Zang ("respondents") with numerous ethical violations. The charges were presented to Special Local Administrative Committee S-25 of the State Bar (the "Committee"), which found Zang and Whitmer guilty of six ethical violations. The Committee recommended that Zang be suspended from the practice of law for one year and that Whitmer be suspended for six months. See Former Rules 31-35, Ariz.R.S.Ct., 17A A.R.S. 1
Zang and Whitmer presented objections to the Committee's findings and recommendations to the Disciplinary Commission of the Supreme Court of Arizona (the "Commission"). After independently reviewing the record, hearing oral argument, and questioning respondents, the Commission affirmed five of the six ethical violations found by the Committee. 2 Specifically, the Commission found: first, that Zang and Whitmer had engaged in false and misleading advertising; second, that Zang had falsely presented himself, in advertisements and letters, as a Fellow of the American Academy of Forensic Sciences and of the American College of Legal Medicine; 3 third, that Zang had knowingly failed to honor a subrogation right; fourth, that Zang knowingly had accepted money tendered in error as part of a personal injury settlement; and fifth, that Zang had collected an excessive fee. 4 The Commission recommended that Zang be suspended for one year, Whitmer for ninety days.
Zang and Whitmer filed objections to the Commission's report with this court. They disputed the Commission's findings and recommendations with respect to each of the charges. Respondents also argue that they were denied their due process right to have the charges adjudicated by a fair and impartial tribunal.
We review respondents' objections as an independent trier of fact and law. In re Kersting, 151 Ariz. 171, 172, 726 P.2d 587, 588 (1986); In re Neville, 147 Ariz. 106, 108, 708 P.2d 1297, 1299 (1985). Although findings of the Committee and the Commission are entitled to "great weight," particularly when they turn on the credibility of witnesses, we will not impose discipline unless our independent review of the record convinces us that the Bar's charges are supported by clear and convincing evidence. We must be convinced, in other words, that the truth of the Bar's allegations is "highly probable." Neville, 147 Ariz. at 111, 708 P.2d at 1302; accord Kersting, 151 Ariz. at 172, 726 P.2d at 588.
Under the due process clause of the fourteenth amendment, respondents were entitled to a fair hearing before an impartial tribunal. Withrow v. Larkin, 421 U.S. 35, 46-47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975); In re Davis, 129 Ariz. 1, 3, 628 P.2d 38, 40 (1981). Respondents claim that the Committee violated their right to a fair hearing in several ways. We turn first to the procedure followed by the Committee and then to the specifics of respondents' arguments.
The procedural facts giving rise to respondents' allegations are essentially undisputed. The State Bar assigned this matter to the Committee for investigation after receiving numerous complaints about respondents' practice and advertisements. The Committee appointed bar counsel, who investigated Zang and Whitmer during the fall of 1982. The investigation resulted in formal charges, contained in a ten-count complaint issued by the Committee on December 14, 1982. Respondents answered the complaint and then filed numerous motions alleging lack of notice, improper discovery requests, and lack of probable cause. Their motions were denied by the Committee. Respondents filed a special action, 5 but we declined jurisdiction on June 28, 1983.
On July 1, 1983, Edwin F. Hendricks, lead bar counsel, wrote to the Committee chairman scheduling a meeting with the Committee for July 5. The purpose of the meeting, according to the letter, was to discuss amending the complaint in light of interviews and research conducted by bar counsel during the six months since the complaint was filed. The letter also requested an "order giving the respondents and their counsel a deadline for responding to our long-standing discovery requests...."
The July 5 meeting was attended by two of the three Committee members and all bar counsel. Respondents' subsequent objections to the meeting and their efforts to discover the subjects discussed at the meeting, including the July 1 letter summarized above, were initially rebuffed by bar counsel's assertion of the attorney-client privilege. Mr. Hendricks, however, did give respondents an affidavit describing the general nature and content of the meeting. 6
Consistent with Mr. Hendricks's prior affidavit, subsequent discovery permitted by this court revealed that the July 5 meeting was limited to a report of bar counsel's ongoing investigation and research. Bar counsel suggested that numerous charges be dropped, that other charges be modified to conform to the evidence discovered as of that date, and that one new charge be added. The Committee members present did not discuss the evidence in the presence of bar counsel. All three Committee members met later that day, without bar counsel, and decided to accept bar counsel's recommendations. No ex parte contacts between bar counsel and the Committee occurred after July 5, 1983, other than a few letters involving scheduling matters and one letter requesting bar counsel to explain which counts had been deleted from the complaint.
In August 1983, respondents filed motions to disqualify the Committee and bar counsel. The respondents' motions were based on bar counsel's ex parte contact with the Committee at the July 5 meeting and on the notion that the Committee had improperly combined investigative, prosecutorial, and adjudicative functions. After a hearing on these and other pretrial motions, the Committee denied respondents' motions for disqualification.
Respondents' disciplinary hearing before the Committee commenced six months after the July 5 meeting. The hearing occurred between January 23 and January 27 and between March 21 and March 24, 1984. At the end of the January session, the complaint was amended to add an additional charge. Respondents were not required to defend against the additional charge until the March session.
Unsuccessful before the Committee, respondents presented their due process arguments to the Disciplinary Commission during its review of the Committee's decision. After independently reviewing the record, the Commission unanimously concluded that "members of Special Administrative Committee S-25 were not biased [or] prejudiced," and that "[t]he conduct of Bar Counsel and the members of Special Committee S-25 did not constitute a denial of due process or of Respondents' right to a fair hearing." Commission Report ("CR"), at 7-8.
Respondents argue that the Committee deprived them of their due process right to an impartial tribunal by improperly combining the roles of investigator, prosecutor, and adjudicator. This argument is not supported by either our former rules or well-established precedent.
Former Rule 33(b)(2) required the Committee to conduct a preliminary investigation to determine whether there was probable cause, to conduct "such additional investigation as it deem[ed] necessary," and then, if warranted, to issue a formal complaint. Once the Committee issued a complaint, former Rule 35 required it to hold a formal hearing, decide the merits of the complaint, and then recommend discipline to the Commission and this court. The rules also authorized the Committee to select bar counsel to aid in the investigation and presentation of evidence. Former Rule 33(b)(2); see also Former Rule 33(b)(3) ().
We rejected a procedural due process challenge to our former rules in Davis, supra. Relying on the United States Supreme Court's decision in Withrow, supra, Davis held that the Committee properly may conduct the initial investigation, determine probable cause, and then adjudicate the merits of a disciplinary action. 129 Ariz. at 3, 628 P.2d at 40. Withrow reasoned that these three functions have different purposes and are based on different evidence and standards. Consequently, just as judges may "issue arrest warrants on the basis" of probable cause and then preside over the defendant's criminal trial, Committee members may Withrow, 421 U.S. at 56, 95 S.Ct. at 1469; see also id. at 52, 95 S.Ct. at 1467 (quoting 2 K. DAVIS, ADMINISTRATIVE LAW TREATISE § 13.02, at 175 (1958)) ("[t]he case law, both federal and state, generally rejects the idea that the combination [of] judging [and] investigating functions is a [per se] denial of due process"); Davis, 129 Ariz. at 3, 628 P.2d at 40.
We reaffirm the principles announced in Davis. Committee members are people of integrity, legal training, and intellectual discipline, capable of determining probable cause and then fairly and impartially adjudicating the merits of a disciplinary action. A...
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