Medical Malpractice

Court Sanctions Attorneys for Sham Trial - In re Alcorn, No. SD-01-0075-D (Ariz. 01/09/2002)

This case raises interesting professional responsibility and administrative law issues.  Defendant attorneys where accused of setting up a sham trial in a medical malpractice case.  The plan was to go to trial with the defendant physician, who would not object to any evidence that the plaintiff introduced about his conduct or that of the hospital.  (The hospital had already been dismissed out of the case.)  At the closing of the case, the attorneys would settle with prejudice and dismiss the case against the physician.  They agreed that they would not pursue any action against him in subsequent proceedings, which was a small concession since he was judgment proof and had no insurance.  The attorneys for both parties signed a written agreement setting out these terms, and, after deciding that the law on disclosing such an agreement was conflicting, they went to trial without disclosing it.  At the appointed time, the plaintiff moved for a mistrial, which the judge did not grant, and then the parties announced that they were prepared to settle the case.  Based on the unusual presentation of the evidence, including refusal to let the hospital help defend the case, the judge was clearly suspicious and instructed the attorneys:

"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. "

Despite this admonition, the attorneys assured the judge that were no secret deals, and proceeded with the settlement.  The judge approved the settlement on these representations.  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.  As the court determined: "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."  Having figured out that the sham trial was put on to trick him, the judge ordered sanctions imposed on all of the lawyers, based on their failing to disclose the agreement to the court.  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)).

After these sanctions, the Bar disciplinary commission instituted proceedings against the attorneys.  The hearing officer recommended dismissal of the charges, arguing that the Bar had not proved its case.  This recommendation was reviewed by the commission, which disagreed and found that there was evidence to support some of the charges.  In a split decision, the commission then recommended that the Arizona Supreme Court impose a 30 day suspension on the attorneys.  The Supreme Court, which indicated that its review of these recommendations is usually pro forma, found that the procedures of the commission were procedurally questionable, blurring the distinction between commission recommendations and fact finding.  It did a detailed review of the proceeding, finding that some of the commission's finding were clearly erroneous, the standard for overturning administrative agency findings in Arizona.  The court did find that there was sufficient evidence that the attorneys violated the professional responsibility regulations.  The court also found that this was a serious violation and imposed a six month suspension, overruling the commission's 30 day recommendation.  This was within the court's power because it is the body with final authority to discipline attorneys, not the commission, so it was not substituting its decision for that of the agency.

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