|||IN THE SUPREME COURT OF THE STATE OF ARIZONA
|||Arizona Supreme Court No. SB-01-0075-D
|||January 9, 2002
|||IN THE MATTER OF
RICHARD A. ALCORN, ATTORNEY NO. 6657 AND STEVEN FEOLA, ATTORNEY NO. 4197 RESPONDENTS
|||Disciplinary Commission Nos. 96-1090 and 96-1092 (Consolidated)
|||Attorney for State Bar of Arizona: State Bar of Arizona By: Shauna R.
Miller; Phoenix. Attorneys for Respondents: Nancy A. Greenlee; Phoenix.
Lewis and Roca, L.L.P. By: Jeremy E. Butler, Susan M. Freeman; Phoenix.
|||The opinion of the court was delivered by: Feldman, Justice.
|||ON SUA SPONTE REVIEW FROM THE DISCIPLINARY COMMISSION
|||¶1 We took review of this bar disciplinary matter for two reasons: first,
to clarify ethical obligations of lawyers who make agreements that may affect
the conduct of a trial; and second, to review the disciplinary proceedings
and assess the propriety and proportionality of the sanctions imposed on
the lawyers involved in this unusual disciplinary case.
|||¶2 Because this matter affects the practice of law and the conduct of
Arizona lawyers, we have appellate and revisory jurisdiction pursuant to
article VI, §§ 1, 3, 5(4), and 5(5) of the Arizona Constitution, together
with Rules 31, 32, 41, and 42, Arizona Rules of the Supreme Court. *fn1
|||¶3 Steven Feola and Richard Alcorn (Respondents) were charged with violating
the rules of professional conduct governing all lawyers admitted to practice
before the Arizona courts. The specific violations charged were of Ethical
Rules (ER) 3.3(a) and ER 8.4(c) and (d), adopted under Rule 42. ER 3.3(a)
concerns the lawyer's duty of candor toward the tribunal and forbids false
statements of material fact while requiring disclosure of material fact
under certain circumstances. *fn2 ER 8.4
addresses similar concerns, but it is broader in scope than ER 3.3. *fn3
|||¶4 The State Bar filed charges against Respondents in November 1998. After
taking testimony at a May 1999 hearing, the hearing officer concluded that
the State Bar had "failed to meet its burden to show, by clear and
convincing evidence, that Respondents knowingly violated the ethical duty
imposed under ER 3.3(a)(1) and (a)(2)." Findings of Fact, Conclusions
of Law and Recommendations (Report), filed July 24, 2000. The hearing officer
also found that the State Bar had not met its burden of proving that Respondents
violated ER 8.4(c) or (d). Id. She therefore recommended that the complaints
be dismissed. Id.
|||¶5 After the State Bar filed an objection and requested oral argument,
the Disciplinary Commission of the Supreme Court of Arizona (Commission)
heard the matter in October 2000. The State Bar argued that Respondents
had violated the rules as charged and should be suspended from the practice
of law for not less than six months and one day. Respondents took the position
that the hearing officer's findings, conclusions, and recommendation for
dismissal should be approved. ¶6 By a 5-to-2 vote, the Commission agreed
with the hearing officer that the State Bar had failed to meet its burden
in proving violations of ER 3(a)(1) and (2) but concluded there was clear
and convincing evidence that Respondents had violated ER 8.4(c) and (d).
Disciplinary Commission Report, filed January 28, 2001. Commissioner Carson,
a public member, joined the majority but wrote separately, stating that
he agreed with the majority only because he feared that otherwise the final
vote "might lead to a dismissal as recommended by the hearing officer."
Id. at 17. He would have accepted the State Bar's request for a suspension
of six months and one day but felt that "[d]isbarment might well have
been appropriate." Id. Commissioners Bowman and Mehrens dissented from
the majority and would have accepted the hearing officer's findings, conclusions
of law, and recommendation.
|||¶7 The Commission majority ostensibly adopted the hearing officer's findings
of fact in deciding there was clear and convincing evidence that Respondents
violated ER 8.4(c) and (d). Yet in explaining the reasons for its decision,
the majority effectively made different factual findings. To some extent,
this is understandable because many of the hearing officer's "findings
of fact" are actually either conclusions of law or mixed findings of
fact and conclusions of law. Having concluded that Respondents violated
ER 8.4(c) and (d), the Commission considered the appropriate sanction, discussed
factors in aggravation and mitigation, made a proportionality analysis,
and recommended that this court impose a thirty-day suspension on each Respondent
and assess the costs of the disciplinary proceedings against them.
|||¶8 Neither Respondents nor the State Bar sought our review of the Commission's
findings and recommendation. This court, however, has the ultimate authority
to decide whether a sanction of suspension or disbarrment will be imposed.
See Rule 53(d)(4) and (e)(1). When neither a respondent nor the State Bar
seeks review of the Disciplinary Commission's recommendation, that recommendation
automatically takes effect unless we take sua sponte review. See Rule 53(e)(7).
Having considered the Commission's report in this matter, we entered an
order granting sua sponte review, asked the parties for supplemental briefs,
and heard oral argument. We now conclude that several of the hearing officer's
findings of fact were clearly erroneous. *fn4
We further conclude that Respondents violated ER 3.3(a)(1) and ER 8.4(c)
and (d). We disagree, however, with the Commission's recommendation of a
thirty-day suspension. Believing that Respondents' violations were quite
serious, we conclude that the proper and proportionate sanction is a six-month
suspension of each Respondent.
|||¶9 This proceeding arises from a medical malpractice action filed by a
father, on his own behalf and on behalf of his infant son (Plaintiffs),
against Dr. Bair and Scottsdale Memorial Health Services (the Hospital).
Plaintiffs claimed that Dr. Bair and the Hospital were negligent in delivering
the child, causing the mother's death and catastrophic injuries to the child.
Plaintiffs sought damages for wrongful death and for the child's injuries.
Dr. Bair's insurer was insolvent, leaving the doctor to shoulder the financial
burden of his own defense. He retained Respondents to represent his interests,
but because of his financial condition he told them to do as little work
as possible in defending the action. Dr. Bair's exposure, however, was great,
and the undertaking to represent him naturally put Respondents in a pressure-filled
situation. According to the hearing officer in this case, Respondents did
the best they could in attempting to protect their client.
|||¶10 At first, the Hospital assumed a key role in defending the action;
it retained counsel and provided funding for expert witnesses and other
costs of defense. The Hospital's position seemed to be that neither it nor
Dr. Bair had been negligent, and so Respondents were able to ride the Hospital's
coattails in defending the doctor. Unfortunately for Dr. Bair and Respondents,
the Hospital eventually moved for and obtained summary judgment in its favor.
This, of course, left the doctor as the only defendant who would appear
at trial. The trial date was fast approaching, and while Plaintiffs had
moved for reconsideration of the order granting summary judgment to the
Hospital (technically a motion for a new trial under Rule 59(a), Ariz.R.Civ.P.),
the trial against Dr. Bair was scheduled to start before the judge heard
arguments on that motion. Thus, Respondents were faced with the necessity
of preparing for trial without the benefit of the Hospital's participation
or its expert witness.
|||¶11 Help arrived in the nick of time. Not long before trial, Mr. Hmielewski,
one of Plaintiffs' lawyers, wrote to Respondents with a proposal. Letters
were exchanged between Hmielewski and Respondents, but it is sufficient
for our purposes to set forth the essence of the unusual agreement made
through their exchange.
|||1. Plaintiffs would give Dr. Bair a covenant not to execute.
|||2. Notwithstanding the covenant and the fact that Dr. Bair would be the
only defendant participating, the trial would proceed with the entire panoply
of court proceedings -- judge, jury, and witnesses.
|||3. On behalf of Dr. Bair, Respondents "would not object to the scope
or form of any inquiry [Plaintiffs' counsel] conducted at trial, including
the witnesses [he] chose to call." See December 20, 1995 letter from
Hmielewski to Alcorn. *fn5
|||4. The agreement would remain confidential. Hmielewski was "comfortable"
with this secrecy agreement because Respondents' agreement regarding the
conduct of trial would only apply "if Dr. Bair is the only defendant
at trial." Id.
|||5. Most remarkable is the following provision: "Specifically, [Plaintiffs]
agree that, at the close of plaintiffs' case, [Plaintiffs] will agree to
voluntarily dismiss with prejudice their claims and action against Dr. Bair
and his corporation. Further, [Plaintiffs] agree that Dr. Bair or his corporation
will not be named by them as a defendant in any subsequent action relating
to this matter." December 27, 1995 letter from Alcorn to Hmielewski.
|||¶12 The benefit to Respondents' client is apparent; the agreement would
effectively release Dr. Bair from any liability for the events described
in the complaint. The benefit to Plaintiffs is more difficult to ascertain.
Their claim against Dr. Bair was worth little absent the Hospital's liability
because Dr. Bair was without liability insurance or assets to satisfy the
kind of judgment Plaintiffs expected in light of their injuries. The purpose
of the agreement, as we understand it, was to "educate" the trial
judge as to the Hospital's culpability so he could use this background in
deciding whether to reconsider his grant of summary judgment to the Hospital.
|||¶13 The hearing officer found that before signing the agreement, Respondents
researched the case law to determine whether the confidentiality provision
was valid and whether they would be ethically obligated to disclose the
existence of the agreement to the trial judge. Having performed this research,
and believing the case law unclear, they consulted with other lawyers, both
within and outside their firm. They reportedly received some conflicting
opinions, but the conclusion seems generally to have been that the agreements
might not be enforceable but that they need not be disclosed. We shall consider
that legal conclusion later in this opinion.
|||¶14 Based upon the foregoing considerations, Respondents signed the letter
agreements and then proceeded to trial before judge and jury. The trial
took ten days over two or three weeks. The hearing officer found that Respondents
not only cross-examined Plaintiffs' witnesses but, by dint of some arrangement
with Plaintiffs' counsel, called a witness during Plaintiffs' case. The
witness was Dr. Clark, an obstetrical expert the Hospital had hired for
its own defense. Evidently, the Hospital attempted to help Dr. Bair by lending
its expert to Respondents, even going so far as to pay the expert's fees.
Of course, in providing this help, the Hospital and its lawyers were not
told of the secret agreement -- but then, neither was the trial judge. Because
the expert appeared only on the Hospital's disclosure statement, it seems
unlikely, absent their pretrial agreement, that Respondents could have called
him over Plaintiffs' objection.
|||¶15 Plaintiffs moved for a mistrial at the conclusion of their case in
chief, claiming among other things that "[t]he court and jury have
been the victims of untruthful testimony which goes to the very foundation
of plaintiffs' claims for relief, and if the untruthful testimony is believed,
plaintiffs will be effectively precluded from their claims and remedies."
Plaintiffs' Motion for Mistrial, Newcomb v. Bair, January 22, 1996 (CV 92-22705).
The trial judge denied this rather unusual motion, and Plaintiffs' counsel
thereupon performed their obligation under the letter agreement by moving
to dismiss with prejudice. The trial judge was surprised by this turn of
events and inquired. At that point, seeking to quell the trial judge's suspicions,
Alcorn initiated the following colloquy:
|||MR. ALCORN: May I be heard very briefly, your honor? I think we've - what
we've done is shifted gears from the Motion for Mistrial. Correct me if
I'm wrong, Mr. Hmielewski. And now counsel is avowing to the Court that
he is willing to dismiss his entire case against Dr. Bair and his professional
corporation with prejudice. Obviously, if the Court's not disposed to grant
the Plaintiffs' motion [for mistrial], I would move that the case be dismissed
with prejudice. And if they will stipulate to it, that may provide a basis.
|||THE COURT: All right.
|||MR. ALCORN: But it seems like I am being forced to subject my client to
a jury when in fact I've got a chance to get out of the case once and for
all with prejudice.
|||THE COURT: Mr. Alcorn, if you and Mr. Hmielewski agree to settle this
case with a dismissal with prejudice against Dr. Bair, I'll call the jury
in and tell them the case is settled, and it's all over. I am perfectly
willing to do that. As a matter of fact, I don't know that I have any power
to do anything else or would even consider it.
|||MR. HMIELEWSKI: May we have five minutes?
|||THE COURT: But I am not going to leave the case unconcluded on the basis
of what's been presented to me so far.
|||MR. ALCORN: I understand. I think we do have an agreement, but I suppose
we need a few minutes to formalize that.
|||THE COURT: And you know, if you all - what I'm going to do is bring the
jury back in and recess them for lunch, and that will give you until 1:30
to do whatever it is you think you might be able to do. But I will tell
you now, I don't want any sweetheart deals that I am not fully informed
about anywhere. You have to take this situation as you now find it. And
I don't want it crafted in some way or another that is - that would be misleading
to me. Okay.
|||MR. JOHNSON (Hmielewski's co-counsel): Absolutely, your honor.
|||MR. ALCORN: Your Honor, could I make a couple of points briefly?
|||THE COURT: Please.
|||MR. ALCORN: The dismissal should be with prejudice.
|||MR. HMIELEWSKI: Agreed.
|||MR. ALCORN: And counsel is in agreement with that. Secondly, although
we think we have a binding stipulation under Rule 80, Mr. Hmielewski or
Mr. Johnson will formalize that and present it to the Court, as he indicated.
And we want to give our assurances to the Court that there will be no sweetheart
deals. There's no agreements regarding future testimony by Dr. Bair or the
substance of any testimony by Dr. Bair. There's no payment of any consideration
from either side in connection with the settlement.
|||THE COURT: Okay. Well, good. I'm glad to hear that. Reporter's Transcript
on Appeal (RT), January 8, 1996, at 297-300 (CV 92-22705).
|||Thus, the trial judge ordered the case dismissed with prejudice.
|||¶16 Later, during the hearing on Plaintiffs' motion for new trial on the
summary judgment granted to the Hospital, the trial judge discovered the
true nature of the agreement, including the confidentiality provision, and
ordered a hearing on the question of sanctions. After that hearing, the
judge ordered sanctions imposed on all of the lawyers, based on his finding
that, in failing to disclose the agreement to the court, they violated ERs
3.3 and 8.4. The judge consequently imposed a $15,000 fine on each lawyer.
Respondents appealed the sanction order, claiming they had not violated
the ethical rules, but the order was affirmed on appeal. See Hmielewski
v. Maricopa County, 192 Ariz. 1, 960 P.2d 47 (App. 1997). We denied review.
The State Bar then initiated proceedings against all of the lawyers involved.
|||A. Duty to disclose
|||¶17 Respondents still contend that they had no duty to disclose their
agreement to either the judge or the Hospital. The hearing officer believed
that Respondents held this view "in good faith." Report at 5.
The hearing officer therefore concluded there was no violation of ER 8.4(c)
and (d). Id. We turn first to the issue of whether Respondents had a duty
to disclose -- an issue of importance in both this and future cases.
|||1. Arizona's law on disclosure of settlement agreements, partial settlement
agreements, and quasi-settlement agreements
|||¶18 The Arizona Reports are replete with discussion of various types of
agreements made between trial counsel. We have examined Gallagher agreements,
Damron agreements, Morris agreements, Bradshaw agreements, and agreements
that have yet to be dignified with case names, such as high-low agreements
and guaranty agreements. Having read the past cases, Respondents concluded
there was no duty to disclose their unique agreement. They argue that their
reading of the cases was correct or at least arguably so.
|||¶19 We first alluded to such agreements in Damron v. Sledge, 105 Ariz.
151, 460 P.2d 997 (1969). Damron was a damages action against two defendants,
only one of whom was defended by insurance counsel. The insurers for the
second defendant refused to provide a defense, claiming there was no coverage,
thus leaving the second defendant to his own devices. Eventually the uninsured
defendant and the plaintiff's lawyer agreed that the former would receive
a covenant not to execute in exchange for assigning to the plaintiff the
bad faith claim against his putative insurer. The plaintiff would then dismiss
with prejudice against the insured defendant while the agreeing defendant
would withdraw his answer and allow the plaintiff to take a default judgment.
The agreement was disclosed to the trial judge and to the lawyer for the
insured defendant, who for some reason -- perhaps shock at the use of this
new technique -- objected vehemently to the whole process, saying that he
thought the agreement was "tainted with conspiracy, chicanery, and
fraud . . . . " Id. at 153, 460 P.2d at 999.
|||The trial judge, perhaps also surprised, concluded that the agreement
was collusive and fraudulent and therefore dismissed the entire case. We
reversed on appeal, holding that the deal was not "ipso facto collusive."
Id. We also held that while the trial judge had inherent power to dismiss
a collusive case, the judge could not do so without taking evidence to establish
|||It cannot be held that as a matter of law collusion exists simply because
a defendant chooses not to defend when he can escape all liability by such
an agreement, and must take large financial risks by defending. If, at a
hearing, where the testimony comes from sworn witnesses rather than from
arguments of the attorneys, it appears the defendant instead of defaulting
agrees to perjure himself . . . , or if some other definite evidence of
collusion is adduced by proper testimony, a dismissal of the entire action
may be justified. Id. at 155, 460 P.2d at 1001 (emphasis added).
|||¶20 There are significant differences between Damron and the present case.
The Damron agreement was disclosed and the parties did not undertake a sham
*fn8 trial in front of a judge and jury.
Finally, unlike the present case, the court only held a default hearing,
not a supposedly adversarial trial. Nothing we said in Damron legitimizes
what was done here.
|||¶21 In City of Tucson v. Gallagher, 108 Ariz. 140, 493 P.2d 1197 (1972),
the plaintiff gave a covenant not to execute to one of two defendants, but
it was to be effective only above a certain amount, thus guaranteeing the
plaintiff a minimal recovery from one or both of two defendants. We found
no deprivation of a fair trial because, under the circumstances, this type
of agreement could change neither the agreeing defendant's motive nor trial
tactics in defending the case, and nothing that occurred during the trial
demonstrated any impropriety. Id. at 142-43, 493 P.2d at 1199-1200. As in
Damron, there are important differences between Gallagher and the present
case. First, the Gallagher agreement was disclosed to the trial judge. *fn9
Second, the trial that followed the making of the covenant was real. There
was no agreement that the plaintiff would dismiss at the end of the plaintiff's
case; the second defendant was present and could and did defend as its trial
strategy dictated. See id. Gallagher is no help to Respondents.
|||¶22 Respondents next rely on Mustang Equipment v. Welch, 115 Ariz. 206,
564 P.2d 895 (1977). The Mustang agreement did contain a confidentiality
clause. Mountain States, one of two defendants, and the plaintiff agreed
that if a verdict was returned against both Mountain States and Mustang,
the plaintiff would execute only against Mustang. This, of course, gave
Mountain States a motive to blame Mustang for the accident that caused the
plaintiff's damages. Id. at 208, 564 P.2d at 897. We concluded that the
"particular agreement entered here did not encourage fraud or collusion"
because Mountain States had already cross-claimed against Mustang, and even
without the agreement it would have attempted to show that Mustang's negligence
had been the only cause of the accident. Id. at 210, 564 P.2d at 899.
|||¶23 Thus, we were "satisfied" that non-disclosure of the agreement
had not affected "the integrity of the trial." Id. at 211, 564
P.2d at 900. But we were disturbed by the non-disclosure and believed that
failure to disclose such agreements could improperly affect many aspects
of a case, including settlement, trial strategy, and arguments. Consequently,
we concluded it was "better policy to require candid disclosure of
all Gallagher-type agreements to the court and to all parties concerned
. . . ." Id. In closing the opinion we used the following words, which
we believe should have controlled Respondents' duty to disclose in the malpractice
action against Dr. Bair:
|||Finally, we think this is a matter of public policy. While we recognize
that under the particular fact situation of this case there was neither
fraud, collusion nor unethical conduct involved, we cannot condone secret
agreements between a plaintiff and defendant which, by their very secretiveness,
may tend to encourage wrongdoing and which, at the least, may tend to lessen
the public's confidence in our adversary system.
|||Pursuant to the foregoing, we hold the agreement entered into between
Welch [plaintiff] and Mountain States [defendant 1] to be unenforceable
due to the failure of the parties to disclose the agreement to counsel for
Mustang [defendant 2] and to the court. Id.
|||¶24 The Mustang language is particularly applicable to the present case
because the agreement before us is considerably less benign than that in
Mustang. The trial in Mustang was to be a real trial with real results,
not a pretense. The Mustang plaintiff did not agree to dismiss with prejudice
before the case was submitted to the jury, nor did either Mustang defendant
agree to allow the plaintiff's counsel free rein to do anything they wanted
in presenting the case.
|||¶25 But, say Respondents, our court of appeals made it clear that the
holding in Mustang had no application to cases like theirs, in which there
was only a single party defendant. See State Farm Mut. Auto. Ins. v. Paynter,
122 Ariz. 198, 593 P.2d 948 (App. 1979). We disagree with this contention
for two reasons. First, there were two defendants in this case, and both
were parties at the time the agreement was made. The Hospital was still
a party because Plaintiffs had moved for a new trial with regard to the
order granting it summary judgment; therefore, any judgment entered in favor
of the Hospital was not yet final and appeal was possible. Moreover, while
the motion was pending, the Hospital was very much "directly interested
in the subject matter of the suit . . . ." See State v. Lamberton,
189 Ariz. 47, 49, 899 P.2d 939, 941 (1995). Second, the Hospital was still
active in the case, assisting Respondents by providing and paying for an
obstetrical expert to testify for Dr. Bair.
|||¶26 Thus, we do not believe Paynter validates the procedure Respondents
followed in Dr. Bair's case. *fn10 In
Paynter, the court of appeals held that the failure to disclose the agreement
did not require reversal because the language in Mustang and Gallagher applied
to agreements "between the plaintiff and only one of two defendants."
Paynter, 122 Ariz. at 202, 593 P.2d at 952. Thus, the hearing officer found
that Respondents took considerable comfort in Paynter and had a genuine
belief that it freed them from any duty to disclose their agreement.
|||¶27 Accepting this for whatever it is worth, we now put an end to any
comfort that others might feel in the future. We must reject Respondents'
single-party argument and, insofar as it may be supported by Paynter, we
must reject such an interpretation of that case. Respondents' argument and
their reliance on Paynter overlook the presence of a very important participant
in the case -- the trial judge. The judge is not just a casual observer
of the passing scene but has important responsibilities in an adversarial
system. While the judge is not a party as are litigants who produce evidence
or argue the case, he or she is more than a referee presiding in a merely
formal or ritualistic role. In an adversarial system, the judge is responsible
for ensuring that justice is accomplished according to the substantive rules
and procedural mechanisms established by law. Those procedural rules do
not contemplate hoodwinking judges any more than jurors. While some things
must be excluded from jurors' consideration to focus their attention on
matters legally relevant, the rules do not contemplate hiding the true nature
of the proceeding from the judge. Nor do they permit lawyers to remain silent
when it is evident that the judge has been misled about what is occurring
in his own courtroom.
|||¶28 Thus, the words we used in Mustang should have been considered the
law of this state. Any agreement that, by its nature, "may tend to
encourage wrongdoing" or "may tend to lessen the public's confidence
in our adversary system" cannot be condoned if kept secret. Mustang,
115 Ariz. at 211, 564 P.2d at 900. We hold today, as strongly as possible,
that any agreement that has the potential of affecting the manner in which
a case is tried is one that may encourage wrongdoing and must therefore
be disclosed to the trial judge and all litigants in the case. Thus, Respondents
did have a duty to disclose. The hearing officer found, however, that after
adequate research Respondents had a good faith belief that they had no duty
to disclose. So far as Respondents' failure to disclose the covenant not
to execute is concerned, we accept the finding and on that basis conclude
that Respondents made only an error of law rather than a violation of the
ethical rules. We do not sanction lawyers for good faith errors of law.
See In re Meyers, 168 Ariz. 558, 560, 795 P.2d 201, 203 (1990).
|||2. Actual fraud and collusion
|||¶29 We turn then to the core of the problem -- the question of conducting
a trial without disclosing to the trial judge that there was no result expected
other than dismissal before the case went to the jury. While research and
consultation on and about our previous cases might have led Respondents
to conclude there was no duty to disclose the covenant, no research could
have produced the conclusion that a lawyer could fail to tell a trial judge
that the case being tried for two weeks was actually a moot court exercise.
But the hearing officer actually found that the interests of Dr. Bair and
Plaintiffs "remained adverse"; that, because the agreement might
be unenforceable, there was "no assurance that Plaintiffs' counsel
would in fact dismiss the case with prejudice at the close" of Plaintiffs'
evidence; and that Respondents therefore had to prepare and try the case
as if there had been no agreement. Report at 5. Thus, the hearing officer
concluded, there was neither "collusion, fraud [n]or unethical conduct."
|||¶30 We reject these findings as clearly erroneous and the conclusion as
legal error. The agreement is, on its face, collusive. Any agreement by
which one purported opponent must allow another to conduct a supposedly
adversarial trial in any manner it wants is inherently collusive. If the
adversary system means anything, it means that opposing parties will adopt
a self-serving strategy. Based on the facts and the law, this strategy may
or may not require preventing one opponent from doing whatever it wants.
But, the agreement in question provided that Dr. Bair would make no objection
to whatever evidence and witnesses were presented by Plaintiffs, without
regard to whether that evidence was helpful to Dr. Bair, whether it was
admissible, or whether the witnesses were disclosed or even competent to
testify. Whatever may have happened during the trial, the agreement itself
transformed Dr. Bair from an adversary into a marionette that Plaintiffs'
counsel could manipulate in furtherance of their own ends. In the long run,
the agreement would have furthered Dr. Bair's interests because he benefitted
from the covenant not to execute, but the agreement was inherently collusive
because it committed Respondents to further a scheme to use a seemingly
adversarial trial for an improper purpose.
|||¶31 We come then to the question of fraud -- the so-called trial. Plaintiffs
were obligated to put on their evidence and then dismiss with prejudice.
While Respondents claim they had no way to know that the agreement was enforceable
on this point, we are not so naive as to believe they would not have made
every attempt to extricate their client from his precarious position by
attempting to enforce the agreement. The combination of the agreement about
presentation of evidence, the agreement to dismiss before the case went
to the jury, and the covenant not to execute rendered this so-called jury
trial a charade, evidently intended to improperly influence the trial judge.
We can describe it best by quoting the words of Judge Moroney, the trial
judge. When he finally discovered what had occurred, he had the following
|||The lawyers involved duped the court into conducting a mock trial at the
taxpayers' expense to serve their own ends. Because of that fraud on the
court, at least the following wrongful acts occurred. Nine citizens of this
county were ordered by the court to set aside nine working days of their
lives at $12.00 a day, minus parking, so that they could serve as props
in a charade. This judge, the court staff, and the facilities of this division,
were occupied for over two weeks to further a devious private purpose, thus
robbing legitimate litigants of what it is this court is here to do. Lawyers,
as officers of the court, abused their licenses and ordered persons to be
witnesses, coercing their presence by the illegitimate invocation of the
contempt power of this court. This judge was even induced to order a non-party
to produce a witness who did not wish to play in the game. Minute Entry,
May 20, 1996, at 5 (CV 92-22705).
|||¶32 Strong words, but we believe they were justified. The agreement was
inherently collusive, and the manner in which it was implemented worked
a fraud on the court, to say nothing of the jury, the witnesses, and the
Hospital; all were led to believe Plaintiffs and Dr. Bair were engaged in
a real trial with a real purpose -- to decide whether Dr. Bair was liable
and, if so, to assess appropriate damages. In reality, it was prearranged
that neither issue would be decided. The only explanation given for this
entire charade was patently illegitimate. If the trial judge was to be educated
for the pending motion on the order granting summary judgment to the Hospital,
the parties should have presented whatever newly discovered evidence or
argument there might have been in the motion proceedings and not by means
of a mock trial in which the Hospital did not participate. The trial judge's
characterization, quoted above, is accurate. Such conduct is inherently
prejudicial to the administration of justice. Cf. In re Shannon, 179 Ariz.
52, 67, 876 P.2d 548, 563 (1994) (attorney's failure to execute satisfaction
of judgment before cashing check, resulting in motion to compel and five-month
delay, was undue waste of court resources and prejudicial to administration
|||¶33 We thus conclude that Respondents violated ER 8.4(d), which forbids
conduct prejudicial to the administration of justice. Wasting weeks of court
time and inconveniencing jurors and witnesses in a sham proceeding is a
paradigm of such conduct.
|||3. Failure to respond to the trial judge's inquiries
|||¶34 The hearing officer concluded that Respondents "neither ignored
their duty to the court nor negligently or knowingly violated it."
Report at 5. We reject this mixed finding and conclusion as factually unsupported
and legally erroneous. Even assuming, as the hearing officer found, that
after adequate research Respondents reached a good faith conclusion that
they had no duty to disclose the existence of the agreement, this certainly
would not justify failing to tell the trial judge that it had been agreed
that the trial would not go to verdict, that there was to be no result except
to inform the judge's decision on an issue not even being tried. Obviously,
the lawyers involved wished to keep this from the judge because they knew
he would never have knowingly permitted it. As noted above, no Arizona case
stands as authority permitting non-disclosure on these facts, and so far
as we know, there is no case in the country legitimizing such confidentiality.
But the lawyers went beyond this -- they actively misled the trial judge.
In fact, the trial judge went so far as to state that the lawyers "deliberately
misrepresent[ed] facts." See Minute Entry of May 20, 1996, at 6.
|||¶35 Although the hearing officer seemed to believe there was no misrepresentation
or misleading statement, the limited record before us indicates otherwise.
The trial judge expressed his views during the trial as follows:
|||I just want to mention some things that are beginning to concern me. Based
on the testimony or examination of Dr. Crowe, I've almost come to the conclusion
that there has been some sort of agreement to throw out the rules of procedure
for medical malpractice cases, not to mention good chunks of the rules of
evidence. And I don't mind that. If you want to do that, that's fine. It's
not my province to tell lawyers how to try their cases. But I am very concerned
that we're going to be running over, and that is something that is my problem.
See Hmielewski, 192 Ariz. at 6 ¶ 26, 960 P.2d at 52 ¶ 26 (emphasis added).
|||As the court of appeals noted:
|||[When the trial judge observed] that the trial was proceeding in an unusual
manner, Hmielewski assured him that the trial was proceeding as expected,
allaying his concerns. Of course, he and the other attorneys knew that only
the plaintiffs' case would be presented, while the court did not have that
information. It appears the trial court noticed that something was askew
and that whatever it was, it was affecting the trial. The judge's statement
shows that the agreement was having a noticeable effect on the evidence
and the length of the trial. Id.
|||¶36 Respondents' contribution to the exchange between Hmielewski and the
judge was no more revealing than Hmielewski's; the judge said:
|||Well, what I am getting here from Mr. Hmielewski is that he's going to
call all of your witnesses, and that means that when he rests, you rest?
How's that Mr. Alcorn?
|||I don't know. I had a brief discussion with Mr. Hmielewski where we raised
these issues, but clearly I'm not at this moment totally comfortable with
the time line he's putting on this. There may be two or three other witnesses
we would want to call, not in the nature of expert witnesses certainly.
RT at 201-02.
|||What was Respondents' legitimate interest in calling witnesses when the
case was to be dismissed at the close of Plaintiffs' evidence? If, as Respondents
claim, they had to be ready to go forward if Hmielewski breached his agreement
to dismiss, it was incumbent upon them to be honest with the judge. They
hoped not to put on any witnesses because they believed Plaintiffs would
|||¶37 Later, when Plaintiffs proposed to dismiss with prejudice, the judge
inquired again about the unusual nature of the proceeding and made his concern
clear -- he did not "want any sweetheart deals that [he was not] fully
informed about anywhere." See supra ¶ 15 for full quote. The trial
judge did not want anything "crafted" in a way that "would
be misleading to" him. Id. Respondents gave their "assurances
to the Court that there will be no sweetheart deals." Id. True, the
judge's inquiry was not as precise as it might have been; true, Respondents
correctly represented that there was no agreement regarding future testimony
or payment of consideration. But, to paraphrase Justice Stewart, while we
may not be able to define a sweetheart deal, we know enough to recognize
one when we see it. If ever there was such a deal, this was it, and we believe
that Respondents, like any other experienced trial lawyers, knew what the
trial judge meant and knew that they had such a deal. Instead of being frank
and open when the judge made it clear he wanted to know what was happening,
they gave the judge a response that must be characterized as knowingly evasive
at best and deliberately misleading at worst.
|||¶38 There is no question regarding how the trial judge characterized the
situation when he later learned the truth. He felt he was "duped,"
that there had been "fraud on the court," and that the lawyers'
conduct was "misleading." See Minute Entry of May 20, 1996, at
5-6. "Deliberately concealing" the agreement was "tantamount
to knowingly making a false statement of a material fact to a tribunal."
Id. Relying on our opinion in In re Fee, 182 Ariz. 597, 898 P.2d 975 (1995),
however, Respondents argue that they did not lie but merely remained silent
with respect to the subject of the judge's inquiry. Even if this was a proper
characterization of the events, Fee does not justify silence that misleads
the court. In Fee we said that the lawyers could have either disclosed the
fee agreement with the client or "politely declined any discussion
of fees." Id. at 601, 898 P.2d at 979. Either alternative would have
put the court on notice that the lawyers did not consent to the settlement
judge's attempts to intervene in the agreement between themselves and their
client and would have left the issue of attorneys' fees to be decided by
the trial judge. But Fee does not give any legitimacy to the idea that a
lawyer can remain silent while knowing that such silence has the effect
of misleading the court. Fee stands for the opposite principle -- we held
that the lawyers in Fee violated both ER 3.3(a)(1) and ER 8.4(c) and (d)
for remaining silent when it was obvious that the judge was misled. Silence
may be golden but not when the lawyer misleads the court by failing to speak.
|||¶39 Respondents' view of their exchanges with the trial judge is quite
benign: in essence, they would have us hold that the judge did not ask the
right question, so they did not tell a falsehood. Even were we to accept
this factual predicate, as the hearing officer evidently did, we would reach
the opposite conclusion. Applying the most generous characterization, Respondents'
evasions violated ER 8.4(c), which prohibits "conduct involving . .
. fraud, deceit or misrepresentation." Fraud, as used in Rule 42, "denotes
conduct having a purpose to deceive and not merely negligent misrepresentation
or failure to apprise another of relevant information." Terminology,
Preamble to Rule 42. In answering the trial judge's inquiries, Respondents
went beyond mere failure to apprise or disclose and affirmatively misled;
they deceived the trial judge by answers that purposefully disguised the
true situation when any "lawyer of reasonable prudence and competence"
would have known that the judge's inquiry required disclosure. See id.;
Fee, 182 Ariz. at 601, 898 P.2d at 979. Thus, Respondents' answers to the
trial judge violated ER 8.4(c).
|||¶40 Respondents were also charged with violating ER 3.3(a)(1), prohibiting
false statements of fact or law to a tribunal. The hearing officer found
the ER 3.3 charge unsupported and recommended dismissal. The Commission
agreed and dismissed the charge. We believe that Respondents' conduct violated
ER 3.3(a)(1), and that the contrary findings by the hearing officer and
the Commission are clearly erroneous. Under some circumstances, failure
to make a necessary disclosure is tantamount to an affirmative misrepresentation.
See Fee, 182 Ariz. at 600, 898 P.2d at 978 (citing comments to Rule 3.3);
see also In re Wilka, ___ N.W.2d ___ (S.D. 2001), 2001 SD 148 (attorney
who made truthful statements in course of "intentionally evading plain
and understandable questions" misled the court by misrepresenting the
evidence). In this instance it is enough for us to note that the conduct
violating ER 8.4(c) may be more specifically identified by reference to
|||Modern lawyer codes contain one or more provisions (sometimes referred
to as "catch-all" provisions) stating general grounds for discipline,
such as engaging "in conduct involving dishonesty, fraud, deceit or
misrepresentation" (ABA Model Code of Professional Conduct, Rule 8.4(c)
(1983)) . . . . Such provisions are written broadly both to cover a wide
array of offensive lawyer conduct and to prevent attempted technical manipulation
of a rule stated more narrowly. On the other hand, the breadth of such provisions
creates the risk that a charge using only such language would fail to give
fair warning of the nature of the charges to a lawyer respondent . . . and
that subjective and idiosyncratic considerations could influence a hearing
panel or reviewing court in resolving a charge based only on it. 1 RESTATEMENT
(THIRD) OF THE LAW GOVERNING LAWYERS § 5 cmt. c. (2000).
|||Respondents violated ER 3.3(a)(1).
|||B. Appropriate sanction
|||¶41 This court has long held that "the objective of disciplinary
proceedings is to protect the public, the profession and the administration
of justice and not to punish the offender." In re Kastensmith, 101
Ariz. 291, 294, 419 P.2d 75, 78 (1966). That does not mean, however, that
we will be swayed by the character of the offending attorney's practice,
the impact of sanctions upon the attorney's livelihood, or the resulting
degree of any psychological pain experienced by the attorney. In re Scholl,
200 Ariz. 222, 224 ¶10, 25 P.3d 710, 712 ¶10 (2001) (citation omitted).
Instead, we will look to the American Bar Association's Standards for Imposing
Lawyer Sanctions (1991) (Standards) for guidance. See, e.g., In re Higgins,
180 Ariz. 396, 400, 884 P.2d 1094, 1098 (1994). After finding a lawyer's
misconduct, we consider the following factors in imposing a sanction: (a)
the duty violated; (b) the lawyer's mental state; (c) the actual or potential
injury caused by the lawyer's misconduct; and (d) the existence of aggravating
or mitigating factors. Standard 3.0.
|||¶42 As to the first two factors, we have already determined that Respondents
violated ER 8.4(c) and (d), thus abdicating some of the most fundamental
obligations of professional and personal integrity by affirmatively misleading
the judge when he became suspicious. We are deeply troubled by these serious
violations of duty, which could lead to disbarrment. But the record supports
the finding that Respondents' intentional deceptions and evasions were more
likely the result of a failure to grasp their true obligations to the tribunal
rather than an attempt to misuse the process for personal gain. We also
accept the finding that Respondents were motivated by an honest desire to
do everything within their power to help their client. In light of these
factors, disbarrment is not indicated.
|||¶43 As to the third factor, we note that the misconduct caused very serious
injury. Not only was the system injured by a waste of time and scarce resources,
it was also damaged in the sense that the jurors and witnesses had their
time wasted and lives disrupted in furtherance of a farce, thus eroding
public confidence in the integrity of our profession. Furthermore, the scheme
was intended to improperly set up the Hospital for liability on a claim
with damages potentially measuring in the millions. Finally, Respondents'
own client was damaged; when the trial judge discovered the scheme and vacated
his earlier order of dismissal with prejudice, Dr. Bair was once again left
facing trial as the sole defendant, notwithstanding that he incurred $45,000
in attorneys' fees to Respondents --fees computed in part as charges for
ten days of so-called trial.
|||¶44 Finally, we consider any aggravating and mitigating factors. Each
Respondent has had a prior disciplinary sanction, which is normally an aggravating
factor under Standard 9.22(a); however, because the time and facts of their
prior offenses are remote from those at issue today, we do not view them
as seriously aggravating. Standard 9.32(m). We do find another aggravating
factor applicable under the facts of this case: each Respondent has significant
experience in the practice of law and should have known better than to participate
in a show trial and actively mislead a judge. ¶45 Several mitigating factors
apply as well. First, as noted above, we find no selfish motive. Standard
9.32(b). But doing everything within one's power to help one's client is
not the same as license to do anything. Ordinarily, a lawyer should do everything
morally and ethically proper in presenting a client's case or helping to
resolve the client's problems. But this does not permit conduct that deceives
the court, deceives an opposing party, and wastes the time of judge, jury,
and witnesses by an undisclosed and meaningless performance. It is often
said that a lawyer is an officer of the court. If the phrase is to have
any real meaning, it must require that ethical obligations to the court
be put ahead of the duty to assist a client. As the Ohio Supreme Court stated
in Office of Disciplinary Counsel v. Greene, 655 N.E. 2d 1299, 1301 (1995):
|||While an attorney, as a zealous advocate, may characterize facts favorable
to the attorney's client, the attorney's duty, as an officer of the court,
is to uphold the legal process and demonstrate respect for the legal system
by at all times being truthful with a court and refraining from knowingly
making statements of fact or law that are not true. Respect for the law
and our legal system, through both an attorney's words and actions, should
be more than a platitude.
|||In this case, therefore, we are not disposed to attach much mitigating
weight to the fact that Respondents were only attempting to assist their
client. The ethical rules set limits to how lawyers may assist their clients
and require that lawyers' primary allegiance be to the system of justice.
|||¶46 Second, Respondents have exhibited a cooperative attitude toward the
disciplinary proceedings. Standard 9.32(e). Third, also noted above, they
have already suffered the $15,000 fines and public record of their misconduct.
Standard 9.32(k). And finally, we see no danger that Respondents will repeat
such misconduct in the future; they have apparently practiced without incident
since the time of the underlying action. Thus, we see no need to impose
a suspension of six months and one day. Any suspension longer than six months
requires that the suspended lawyer apply for reinstatement and make a showing
of rehabilitation once the suspension period has expired. See Rule 71(d)
and (h); Rule 72. From a pragmatic standpoint, of course, the process of
application and consideration of a petition for reinstatement may extend
the suspension period far beyond six months and one day. A suspension of
six months or less, on the other hand, results in eligibility for reinstatement
upon filing of an affidavit pursuant to Rule 71(c) at the end of the suspension
|||¶47 Given the very serious nature of Respondents' conduct, suspension
is the only appropriate sanction. Moreover, the Standards' suspension provision
addresses their conduct directly:
|||Suspension is generally appropriate when a lawyer knows that false statements
or documents are being submitted to the court or that material information
is improperly being withheld, and takes no remedial action, and causes injury
or potential injury to a party to the legal proceeding, or causes an adverse
or potentially adverse effect on the legal proceeding. Standard 6.12.
|||The Standards also indicate that when suspension is appropriate, it should
generally be imposed for a term of six months or more but not exceeding
three years. See Standard 2.3.
|||¶48 Perhaps more important than rehabilitation of an individual attorney,
however, is the value of discipline as a deterrent to other attorneys and
as a process that maintains "the integrity of the profession in the
eyes of the public." In re Fioramonti, 176 Ariz. 182, 187, 859 P.2d
1315, 1320 (1993) (citation omitted). The critical importance of these interests
compels us to impose a sanction greater than that recommended by the Commission.
It is within this court's power as the ultimate authority in disciplinary
matters to "up the ante" when necessary. See In re Walker, 200
Ariz. 155, 159 ¶ 15, 24 P.3d 602, 606 ¶ 15 (2001). *fn11
|||¶49 Finally, we look to other, similar cases in determining whether the
sanction imposed is proportionate to the misconduct charged. The Fee case
is the closest analogue to the present matter. In Fee, the settlement judge
proposed a structured settlement, largely to reduce attorneys' fees, but
the plaintiff and her counsel reached an agreement whereby the plaintiff
was to pay a portion of her settlement proceeds as attorneys' fees, matching
the contingent fee she had originally agreed to. When the settlement judge
read aloud what he thought were the terms of settlement, the plaintiff's
lawyers made no mention of their new fee agreement. We held that, instead
of remaining silent, the plaintiff's lawyers "should have either disclosed
the complete arrangement or politely declined any discussion of fees."
Fee, 182 Ariz. at 601, 898 P.2d at 979. The court ultimately imposed only
|||¶50 There are, however, crucial distinctions between Fee and the present
case. First, in Fee we concluded that Fee's conduct was prejudicial to the
administration of justice but decided not to pursue the issue pertaining
to ER 8.4. Id. at 600, 898 P.2d at 978. By contrast, such conduct goes to
the heart of the present case. Second, the Fee court specifically noted
an absence of actual or potential injury to a party. Id. n.10. Here, unlike
Fee, Respondents have caused both actual and potential injuries through
their conduct, and these substantial injuries extend to the system, the
jurors, the witnesses, their client, and perhaps even to the Hospital. To
a large extent the damage was not only foreseeable but certain to occur,
at least with respect to the waste of time for judge, jury, and witnesses.
The failure to disclose in Fee related to the contractual arrangements between
the lawyers and their client, not to the lawyers' conduct in the courtroom.
Finally, unlike Respondents, the Fee attorneys never made an affirmative
misrepresentation to the judge. These distinctions do not excuse the intentional
omission in Fee -- they simply highlight the magnitude of Respondents' affirmative
misconduct. Even if Respondents had been correct in concluding in the first
place that there was no duty to disclose the sham nature of the trial, that
would not have justified affirmatively misleading the judge when he tried
to find out what was occurring. We simply cannot condone affirmative acts
that misled the court, nor can we overlook the substantial damage that resulted.
|||¶51 Accordingly, Respondents are hereby suspended from the practice of
law in Arizona for a period of six months beginning sixty days from the
date this opinion is filed. Respondents are ordered to pay costs pursuant
to Rule 52(a)(8).
|||STANLEY G. FELDMAN, Justice
|||THOMAS A. ZLAKET, Chief Justice
|||CHARLES E. JONES, Vice Chief Justice
|||FREDERICK J. MARTONE, Justice
|||RUTH V. McGREGOR, Justice
|||*fn1 Ariz.R.Sup.Ct. will hereafter be
referenced with "Rule" followed by the relevant rule's numerical
|||*fn2 ER 3.3 states in pertinent part:
(a) A lawyer shall not knowingly: (1) make a false statement of material
fact or law to a tribunal; (2) except as required by applicable law, fail
to disclose a material fact to a tribunal when disclosure is necessary to
avoid assisting a criminal or fraudulent act by the client; * * *
|||*fn3 ER 8.4 states in pertinent part:
It is professional misconduct for a lawyer to: * * * (c) engage in conduct
involving dishonesty, fraud, deceit or misrepresentation; (d) engage in
conduct that is prejudicial to the administration of justice; * * *
|||*fn4 In reviewing the hearing officer's
findings of fact, the Commission and the court must apply a clearly erroneous
standard, while questions of law are reviewed de novo. Rule 53(d)(2) and
|||*fn5 Evidently one reason for the provision
about witnesses was that Plaintiffs had decided, at the last minute, to
exhume the deceased mother's body and were hoping to offer some expert testimony
on the cause of death. The expert, of course, had not been named in pretrial
|||*fn6 We are bewildered by this theory.
The trial judge's grant of summary judgment was, of course, made on the
basis of the record as it existed at the time he heard the motion. The propriety
of the order granting summary judgment was to be evaluated in the same manner,
unless Plaintiffs could show newly discovered evidence. See Rule 60(c),
Ariz.R.Civ.P. If Plaintiffs had newly discovered evidence, one would think
it would have to be established in the hearing on the motion rather than
in the type of trial contemplated by this secret agreement -- a proceeding
in which the Hospital would not be a participant. We doubt that able counsel
for the Hospital would consider their client bound by the education imparted
to the trial judge without benefit of any adversary proceedings.
|||*fn7 Censure was the only sanction that
our bar imposed on Hmielewski, who is not a member of the Arizona bar. Although
Rule 33(d) provides an avenue to hold disciplinary proceedings for out-of-
state counsel, any disciplinary action beyond what was done in this matter
would have to be taken in Florida, the offending attorney's home state bar,
as a matter of comity. Thus, we content ourselves with the censure and revocation
of Hmielewski's pro hac vice status. His Arizona co-counsel was Rodney G.
Johnson of Phoenix. See Hmielewski, 192 Ariz. at 2 ¶ 5, 960 P.2d at 48 ¶
5. Johnson, who played only a passive part in these events, made a consent
agreement with the State Bar, and the hearing officer recommended a censure.
See State Bar file number 96-1107.
|||*fn8 We use the term "sham"
because in our case the parties to the trial had agreed that the trial would
have no result of any kind -- the action would be dismissed at the end of
Plaintiffs' case in chief.
|||*fn9 See City of Tucson v. Gallagher,
14 Ariz.App. 385, 387, 483 P.2d. 798, 800 (App. 1971).
|||*fn10 Again, there are significant
differences between Paynter and this case. Paynter was similar to the Damron
situation -- there was no coverage, and State Farm refused to indemnify
or defend its insured against Paynter's damage claim. Paynter and the insured
therefore made a pretrial agreement in which the defendant assigned his
rights against his insurer in exchange for the plaintiff's covenant not
to execute on any judgment. In effect, the defendant allowed the plaintiff
to take judgment by default. Id. at 199, 593 P.2d at 949. There was no sham
adversary trial. Further, the court pointed out that it "would certainly
have been better practice to advise the trial court of the existence of
the Damron agreement, particularly in order to ensure the trial court's
fair scrutiny of damages." Paynter, 122 Ariz. at 202, 593 P.2d at 952.
|||*fn11 "[S]hort-term suspensions
with automatic reinstatement are not an effective means of protecting the
public. If a lawyer's misconduct is serious enough to warrant a suspension
from practice, the lawyer should not be reinstated until rehabilitation
can be established. While it may be possible in some cases to show rehabilitation
in less than six months, it is preferable to suspend a lawyer for at least
six months in order to ensure effective demonstration of rehabilitation."
Standard 2.3, cmt. We impose no more than a six-month suspension because
to do so under the present circumstances would be unduly harsh. See supra
¶ 46. Although under Rule 71(h) Respondents will not be required to prove
rehabilitation prior to being reinstated, the Commission may choose to oppose
reinstatement. See Rule 71(c). There is no need to prove rehabilitation
in this case. Respondents will have learned their lesson. We are less concerned
with rehabilitation in this case and more concerned with deterring others
and maintaining the integrity of the profession.
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