December 2, 2009
Tick Tock, Tick Tock
In a sharply worded 41-page opinion, an Arizona hearing officer rejected all disciplinary charges in a case brought over a decade after the (complex) events took place. The attorney was a member a law firm in which a partner had represented a close friend. The lawyer was retained by the partner as counsel when the partner was named personal representative of the friend's estate. During the probate administration, allegations arose that the attorney and partner had acted to benefit certain unsecured creditors (firm clients in unrelated matters) to the detriment of the estate. There were findings of improper conduct in the underlying litigation.
The State Bar investigated and dismissed in August 2001. Subsequently, there were additional findings of misconduct in the litigation. The State Bar then brought charges and sought to apply preclusive effect to the findings. The hearing officer denied such effect and found that the lawyer had given good-faith advice to the partner:
The Bar has not shown a single instance where Respondent failed, intentionally or unintentionally, to comply with any law on any occasion, let alone repeatedly...Rather the evidence supports the conclusion that he followed the probate code, as he understood it, and guided [his client]competently and in good faith down the highly technical path laid out for him in the probate code...If there is Arizona authority for the proposition that a lawyer can be found to have violated [rules prohibiting dishonesty and conduct prejudicial to the administration of justice] by giving correct legal advice to a client in good faith, the Hearing Officer has been unable to find it and it has not been cited by the Bar.
The most compelling aspect of the case (to me) brought back memories of one of my favorite childhood songs. One of the Bar's charges involved a grandfather clock. The deceased had fallen against the clock and died. The clock stopped at the moment of death. A dispute arose among the heirs whether to repair the clock or leave it stopped. The hearing officer found that the lawyer had no involvement in the dispute.
My grandfather's clock
Was too large for the shelf,
So it stood ninety years on the floor;
It was taller by half
Than the old man himself,
Though it weighed not a pennyweight more.
It was bought on the morn
Of the day that he was born,
And was always his treasure and pride;
But it stopped short
Never to go again,
When the old man died.
Here, the clock got repaired. (Mike Frisch)
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