Sunday, April 15, 2007

Public Protection Or Lawyer Protectionism?

The Arizona Supreme Court recently decided a disciplinary case involving a lawyer who was admitted to practice in Florida and Virginia. She also was a licensed mediator in Florida. After moving to Arizona, where she was not admitted, she participated in a real estate mediation with full disclosure of her status to her clients and the opposing party. The mediator looked into the issue and  concluded that her participation was proper. Counsel for the opposing party complained to the Arizona Bar, which filed charges of unauthorized practice and failure to cooperate.

A hearing led to findings of misconduct, but also findings that the attorney acted without knowledge that her actions involved unauthorized practice and without improper motive. These findings were overturned by the Disciplinary Commission, which found that the misconduct was knowing and for a selfish purpose (i.e. charging a fee). Notably, her clients were entirely satisfied with her services.

The court in turn overruled the Commission's findings, concluding that the hearing officer's facts were not clearly erroneous (to meet that exacting standard, the findings must "strike [the reviewing body] as wrong with the force of a five-week-old unrefrigerated dead fish"). The court rejected the Commission's overly expansive definition of "knowledge." The court also rejected the proposed censure in favor of the lesser sanction of informal reprimand.

One might fairly wonder why the Arizona Disciplinary Commission was so eager to rachet up a minor case of unauthorized practice and define the knowledge element of unauthorized practice in such an broad manner. (Mike Frisch)

Bar Discipline & Process | Permalink

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