Tuesday, January 13, 2009

Standard Of Review

On review of a report of its Disciplinary Commission, the Arizona Supreme Court held that the commission must defer to a hearing officer's findings of fact that have a reasonable record basis. The court imposed censure and probation rather than a six month suspension that had been proposed by the commission.

The case involved a partner in a two lawyer firm who practiced with her husband. He spent more than half his time in Colorado where he also was admitted. She was in charge of the Arizona office in his absence. The bar's investigation involved a $44.27 trust account overdraft. The hearing officer found the lawyer's misconduct was the result of negligence. The commission found a more culpable state of mind. The court held that the issue was one of fact and that the board improperly had substituted its judgment for that of the hearing officer.

As a veteran of a disciplinary system of similar structure--hearing committee, board and court-- I have experienced this problem in the past. In one case in particular, a hearing committee found that a partner in a major law firm had intentionally engaged in billing fraud. The board fudged the intent finding. As a result, the court remanded to the board (the hearing committee had long since disbanded by this time). The board then decided (after over two years of reflection) that adding fictitious time to the client bills was not intentional misconduct at all. The court accepted the board's conclusion. By the time of the court's remand, mercifully, I was out of the bar discipline business.

Here, the court properly accepted the hearing officer's findings and rejected the board's recasting of those findings.  (Mike Frisch)

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