Wednesday, August 9, 2017

Reprimand For Post-Suspension Error

An Arizona Hearing Panel ordered a reprimand of an attorney based on misconduct findings in the wake of a suspension imposed by the state Supreme Court.

The original suspension was for criminal conduct unrelated to practice and may have been unexpected

The hearing panel erred in recommending diversion as the presumptive form of discipline appeared likely to be greater than a reprimand. On appeal, the Supreme Court ordered a three month suspension followed by one-and-one-half years of probation.

The panel here found that the attorney, once suspended, made substantial efforts to comply with the suspension order

Donna Kent, the Chief Operating Officer of Mr. Henderson’s law firm testified Mr. Henderson was “devastated” by this decision, but quickly “got down to work,” “dogged[ly]” working to ensure that he complied with the suspension Order. [Tr. 254:7-25.] He started by meeting with his lawyer, Scott Rhodes, to discuss a letter from the Bar which described the parameters of the suspension. [Tr. 334:3-15; Ex. 72. The Bar’s letter did not mention negotiations.

A negotiation matter led to the charges and findings but the panel squarely rejected the State Bar's view of the matter

Under Standard 6.1, the Bar also seeks disbarment. We fail to see how the actions of Mr. Henderson constituted “threats and intimidation” which “caused potentially serious interfere[ance] with the legal proceeding between the Robbs family and Loiselle.” After this unsupported conclusory allegation the State Bar specifies the actions of Mr. Henderson that caused the interference. “Specifically, the Loiselle matter resulted in a lawsuit filed by the Robbs against Loiselle.” [Id.]

The final concluding sentence of its Standard 6.1 argument is unsupported by the record and contains speculation that is contradictory. The State Bar concludes, “Had a licensed lawyer been involved in negotiations on the Robbs behalf, rather than a suspended lawyer engaging in unethical conduct, the lawsuit may have been avoided all together.” [Id. 18-19.] But under the Bar’s argument, Loiselle believed Henderson was a lawyer (although we find no occasion within the record where Mr. Henderson stated to Loiselle or others that he was) and did not settle. Mr. Henderson ultimately referred the Robbs to a licensed lawyer and the matter still did not settle.

Lawyers who are suspended or disbarred may not practice law or hold themselves out as eligible to practice. In Arizona, Rule 31 defines the practice of law. Mr. Henderson testified that he regretted sending the communications and in retrospect understood how a reasonable person might believe they came from a lawyer. [Tr. 360:4-22, 375:12-376:10.] However ill-advised those communications were, nothing about them indicates that Henderson intended, knew or believed they violated his suspension. 

To the contrary – Henderson’s open pattern of communications indicates that he did not believe he was violating his suspension. Henderson did not communicate in a secretive manner indicating consciousness of guilt. He sent numerous emails and letters, not only to Loiselle, See Exhibit 4 at Bates SBA102-134, Exhibits 29-34; but to third parties, including a real estate agent, Exhibit 17, and numerous officers of companies affiliated with Loiselle, Exhibit 27. Mr. Henderson did not take actions consistent with a person who was conscious that he was violating the Order and trying to “cover his tracks.” We find his actions were negligent.

While much testimony was presented seeming to raise new allegations, the complaint was not amended. We decline to consider allegations not alleged in the complaint. Nor are we convinced the unsupported conclusory opinion of the State Bar that Mr. Henderson was obligated to close his trust account is accurate.

(Mike Frisch)

Bar Discipline & Process | Permalink


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