The State Bar filed a complaint alleging various ethical violations by two attorneys who were the owner and a manager of an Arizona law firm. A hearing officer found numerous violations, principally under ethical rules 5.1 and 5.3, which establish the duties of law firm partners and supervisors to make reasonable efforts to ensure a firm has measures giving reasonable assurance of employees’ conformance with the ethical rules. The hearing officer recommended a suspension of 60 days for the manager and a suspension of six-months and one-day for the owner of the firm.
The respondent lawyers and State Bar each appealed to the Disciplinary Commission, which affirmed the hearing officer’s findings and recommendations on a split 6-2 vote. Dissenting members of the Commission would have affirmed the hearing officer’s findings but recommended shorter terms of suspension. The respondents filed a petition for review to the Arizona Supreme Court.
The Court accepted review solely as to the firm’s owner, Jeffrey Phillips, and limited to (1) whether the hearing officer applied an erroneous vicarious liability standard by imposing discipline based on the conduct of others, and (2) whether the recommended sanction was appropriate. The Court held that the hearing officer had not applied a vicarious liability standard and that the hearing officer found some ethical violations by firm employees for which the owner was not found personally subject to discipline.
The Court reduced the recommended period of suspension by one day. The Court noted that a suspension of longer than six months requires a lawyer to undergo formal reinstatement proceedings upon the termination of suspension, making a six-months and one-day suspension likely to preclude the lawyer from the practice of law for a year or more. The Court concluded that the longer suspension for the owner of the firm was not justified by an “internal proportionality” comparison to the 60 day suspension imposed on the firm manager.
Justice Pelander wrote the opinion, joined by Justices Berch and Hurwitz and Judge Jon W. Thompson, sitting by designation. Judge Weisberg, also sitting by designation, concurred in part but disagreed with shortening the term of suspension.
Posted by Mark Hummels