Wednesday, May 28, 2008

No Fonzie But No Discipline

Like a kid with a new toy, I have been taking a look at the recent bar discipline cases in Arizona. I am struck in my cursory and preliminary review to see that it appears the vast majority of cases are either settled by consent, subject to board and court review, or decided by default. Alan's post to the Beer Ruse case is worth reading. I think that there may be a lot of incentive in Arizona to take a non-suspensory deal rather than contest a matter and possibly get suspended. The Beer Ruse case may have been triable as an exercise of zealousness within the bounds of the law (think of the many schemes one may have participated in to secure a difficult service of process) but was likely not worth the risk.

We will roll out some of the more interesting Arizona decisions over the next few days. For a start, here's a recommendation and order of dismissal in a case where the hearing officer concludes:

Sometimes the simplest of mistakes can get one in a lot of trouble. In this case, [the attorney] made a scrivener's error in a fee agreement...after his client decided not to acknowledge the error, [the attorney] (at worst) had a lapse in judgment and embarked on a fee dispute that leads us to this point. Any lapse in judgment was not an ethical violation, however, and this matter should be dismissed.

The hearing officer found that the representation was conducted in a diligent manner and brought the underlying case to a satisfactory conclusion. Also rejected was the contention that the client "was offended by certain e-mails that [the attorney] occasionally sent out to an e-mail distribution group...that he believes are humorous" and that the client's reaction was a basis for discipline. The attorney is "also a humorist who has published two books of humor." He felt badly about sending the e-mails and, according to the report: "He should."

The hearing officer found that the attorney "lost his cool...[b]ut at no time did his conduct violate an ethical rule." (Mike Frisch)

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