Thursday, May 17, 2018
The Arizona Supreme Court has affirmed the imposition of a 90-day suspension of an attorney
The State Bar’s Amended Complaint claimed Respondent violated ER 1.6 (Confidentiality of Information, alleging, “Respondent revealed confidential information learned during the representation without the informed consent of the client”), ER 1.9(c)(1)(Duties to Former Clients, alleging, “Respondent used information relating to the representation to the disadvantage of a former client”), and ER 4.4 (Respect for the Rights of Others, alleging, “Respondent used means that have no substantial purpose other than to embarrass, delay, or burden any other person.”).
The record establishes that Respondent agreed to represent a client on a limited-scope basis at a hearing involving temporary custody orders. In addition to the child custody dispute, the client, had several pending legal difficulties including a domestic assault charge, a criminal probation order and a deportation order. Respondent worked with her client and the client’s husband to prepare for the temporary custody order and appeared at the hearing. After the hearing, Respondent made repeated efforts to collect her fees and ultimately obtained a default judgment against the client and her husband (now judgment debtors), which they unsuccessfully attempted to set aside. Respondent promulgated discovery in support of her collection efforts and ultimately determined that the judgment debtors were residing in the Flagstaff area. Respondent advises that after she sent notice of a pending inspection in an attempt to execute on the judgment, the judgment debtors left the state. Respondent had previously warned her client about the need to keep various authorities apprised of a current address in order to avoid violating court orders.
On September 16, 2016, Respondent sent the judgment debtors an e-mail threatening to initiate criminal proceedings under A.R.S. § 13-2205, which provides “A person commits defrauding judgment creditors if such person secretes, assigns, conveys or otherwise disposes of his property with the intent to defraud a judgment creditor or to prevent that property from being subjected to payment of a judgment,” and is a class 6 felony. The e-mail specifically stated, “due to your conduct in completely ignoring your debt to … this law firm …, you are hereby notified that if I do not receive a payment … by September 30, 2016, I will be filing felony criminal charges against you under the attached statute and reporting [client’s] numerous violation[s] of the conditions of her probation to the probation department. ICE and Vegas law enforcement will be notified.”
The Panel found that the e-mail was “more than a threat, it was a promise to use the information she had gained from her representation to damage her client … if she did not receive payments.” Decision at 5. The Panel concluded that Respondent had violated ER 1.6 and ER 4.4. The Panel also found that Respondent testified that she sends such letters “all the time” Id. at 12.
The was no Rule 1.6 violation
The Court agrees with Respondent that a threat to disclose confidential information is not an actual disclosure and therefore is not a violation of ER 1.6.
But as to Rule 4.4
Whether a threat to refer a judgment debtor for criminal prosecution is a threat or “merely some free educational, legal advice” may depend “upon both the intent of the sender and the perception of the recipient.” Arizona Ethics Op. 91-07 (in the context of collecting child support on behalf of a government agency). However, here Respondent not only threatened to file criminal charges for the alleged efforts to secrete assets, she threatened to contact her client’s probation officer and advised that there would be consequences for her client’s immigration proceedings...
Although the subjective purpose of collecting a judgment for fees is not forbidden, threats to jeopardize a judgment debtor’s unrelated immigration and criminal proceedings based on information obtained during the scope of representation are impermissible.
although making an impermissible threat on behalf of a client may warrant a reprimand, making a threat to one’s own client can implicate other ethical rules including ER 1.9(c) (not found here) which prohibits a lawyer who has formerly represented a client in a matter from using information relating to the representation to the disadvantage of the former client and ER 8.4(d) (not charged here) which prohibits engaging on conduct that is prejudicial to the administration of justice...
The Court therefore concludes that a short-term suspension is appropriate based on the charges and findings in this case and affirms the Panel’s decision.
The attorney must serve a probation of two years on reinstatement. (Mike Frisch)