*1 274 Respondent Supreme then with the filed
614 P.2d objections the recommenda- to a of the State of Member In Matter tions. Arizona, Paul W. Bar MERCER, Respondent. stage any at Respondent has not objected Findings to the of the Administra-
No. SB-183. Find- tive Committee. We forth those set Supreme Court of ings below: En Banc. July 14, 1980. FACT “FINDINGS OF
I. Mercer, “Respondent, Paul attor- W. is an ney practice in the admitted to State September, 1969. Arizona since
II. “Respondent’s primary practice area regard with matters. to tax-related III. 6,1974, W. complainant, Inez August
“On job-re- Ryan, injured as the result of a was lated accident. Simpson, Phoenix, W. Garrett for State IV.
Bar. 1975, Ryan employed February, “In Mercer, Phoenix, Paul pro. per. W. her represent to Respondent services of pursuing a claim in connection with HAYS, Justice. through the Industrial benefits copy A of the Local Administrative Com- 6, 23, Chapter to Title pursuant Findings mittee’s and Recommendations Articles 1-9. 13, Respondent was on 1979. July mailed objections
No thereto were filed. V. 11, On was October 1979 the 30, 1976, the Workmen’s “On December Disciplinary notified of the Board insuring Compensation carrier accepted Bar of Arizona had the Ad- of Claim Status Findings employer, ministrative had issued a Notice Committee’s but Ryan’s temporary a rath- disabili- recommended two-month terminating hearing than private reprimand. er a effec- benefits compensation and medical ty 16, Respon- time, was set for November and the same 1976. At tive December notified. a Respondent requested dent was carrier sent the insurance hearing continuance of the which was de- payable to both check made nied. $4,306.50 repre- the sum of disability compensation senting At attorney appeared 3, 1976 September period benefits for behalf of the Board action This through December voted to its deci- thereafter affirm earlier pursuant 60-day taken the carrier suspension. sion recommend a *2 decision rendered the Industrial Commis- X. 19, July
sion of Arizona on 1976 and was as original agreement “The fee entered into the result of efforts on be- Ryan between and Mrs. was an half of his client. hourly upon fee a arrangement based
charge per hour. $50.00 VI. XI. “Respondent proceed- thereafter initiated progressed, Respondent “As the matter ings on behalf of his client in the Industrial charge felt that on the basis of a of $50.00 contesting Commission of Arizona the ac- hour, the the fee based tion and determination of the Workmen’s being expended the number of hours would Compensation carrier. No additional dis- the reasonably exceed amount which could ability Ryan benefits were awarded to Mrs. expected be by way to be recovered as the result of the further Industrial Com- benefits on Mrs. behalf. proceedings. mission of Arizona 8, Accordingly, some time prior to June
1977, agreement changed the fee provide contingency for a one-third fee to VII. be charged by Respondent. “Additionally, partially through the ef- medical, Respondent, forts of Mrs. XII. surgical paid benefits were on 15, May 1977, “On Ryan discharged Ryan behalf of Mrs. by the Workmen’s her attorney. as On or about Compensation carrier in the total amount of 19, August 1977, Ryan requested the $4,000.00. approximately Industrial Commission of Arizona to set Re- spondent’s attorney’s pursuant to A.R.S. VIII. 23-1069. § “During 6, period August the 1974 to 8, 1977, June Ryan applied for and XIII. received from the Arizona Employment Se- “Respondent submitted to the Industrial curity Commission the approximate- sum of Commission of Arizona a statement reflect- $4,000.00 ly in unemployment compensation. ing expended that he had 79.5 on hours Mrs. Respondent performed no services on behalf Ryan’s expended behalf and had in $122.40 Ryan of Mrs. in connection with her obtain- costs. $4,000.00 ing said in unemployment com- pensation fact, benefits. In XIV. was not aware Ryan applied that Mrs. had conducting hearing “Without for and received such benefits until matter, the Industrial of Arizo- was revealed at hearings one of the before 15, na on December 1977 entered an order the Industrial Commission of Arizona in the awarding Respondent the sum of spring of 1977. attorney’s for fees.
IX. XV. 8, 1977, “On 29, 1977, Ryan Industrial Commis- “On December sion of Arizona Upon issued its Decision through protested new counsel the Industri- Hearing and Findings an Award for Tem- al Arizona’s award of Commission of porary Disability effect, affirming, hearing in attorney’s fees. Industrial Commission of prior protest Arizona’s connection with the was held on 19, 30, July 21, Thereafter, determination of 1976 and the ac- on June March 1978. tion taken Compensation the Workmen’s the Industrial Commission of Arizona reducing carrier on December a decision officer rendered be XX. attorney’s fees to award- $4,500.00to ed “Respondent charging plus costs.1 $122.40 equal $12,- sum of 331/3 constituting approximate
306.50 sum of received Mrs. as unem- XVI. ployment compensation from *3 the requested has Arizona “Respondent Commission, Security Employment ap- the action, way Appeals, by special Court of of $4,000.00 paid proximate sum of on Mrs. by the the Indus- to review determination medical, surgical behalf for and hos- reducing trial of Arizona Re- $4,306.50 benefits, pital and com- fees. in spondent’s attorney’s That matter pensation paid pursuant to the benefits captioned Appeals the Court of law; Compensation percent 33V3 Workmen’s vs. Industrial Commissionof Arizo- ‘Mercer $4,061.15 $12,306.50equals of which when na, 1 CA-IC 2085’ was decided number figure the totals added to cost of $122.40 Appeals on the Arizona Court of $4,183.55. affirming the June 1978 order of the Industrial Commission XXI. plus awarding $122.40 Mrs. “Respondent claims that further in costs. the Ryan is indebted to him in additional Ryan of virtue of Mrs. amount $587.50 XVII. attorney’s an agreeing pay to the “Shortly after received fee performed for services carri- Compensation Workmen’s insurance of Mrs. brother. behalf $4,306.50, er’s in Re- check into such Ryan having denies entered spondent’s Ryan re- Respondent. office contacted Mrs. The commit- agreement with questing Respondent’s to in she come of- agreement tee that no such finds Ryan However, fice to endorse the check. Mrs. came the committee fact entered into. Respondent’s agree- to office and endorsed the an even were such further finds that Respondent’s into, which enti- check was retained in not entered ment possession. $4,306.50disabili- withhold from the tled to to regard with
ty any check amount benefit to payment services rendered XVIII. Ryan’s brother. Ryan time the “At the endorsed check, inquired of insurance carrier’s she XXII. Respondent’s secretary as when she to could pro- Revised Statutes 23-1069 § “Arizona in- expect Respondent’s her office share. vides: that she would receive formed “ com- proceedings ‘A. In before the shortly. her share of the check attorney employed in mission which rea- rendered services the claimant has
XIX. claim, necessary processing in sonably shall, application “Respondent negotiated the insur- the commission has pri- attorney claimant by the or the ance carrier’s check but has not disbursed filed case, set disposition has a final of any portion of it to Mrs. or to pro- attorney’s and shall fee the entire amount and continues reasonable retained from payment thereof vide for the retain the entire otherwise, as award, in or awaiting installments Respondent’s trust account deter- view proper in determines of the issue. the commission mination represents figure an amount 1. The equal twenty-five (25%) original). (footnote in made,
of the award and shall further XXV. provide payment for the attorney’s of the “Both Arizona Revised 23- Statutes § fee direct attorney. to the The commis- customarily 1069 and the fees sion shall charge the pay- amount of the community this exclude the inclusion of against ment the award to the claimant. paid amounts on behalf of a Workmen’s attorney’s
B. The provided medical, for in Compensation surgical claim for subsection A shall be not more than benefits.2 twenty-five percent up years to ten XXVI.
the date of the award. In cases involving solely loss earning capacity, the maxi- “In connection with representation mum shall be twenty-five percent up Ryan, questions involved and skill years five from the date of the final required novel, by Respondent were neither award. When payment of the award difficult nor (sic). extra-ordinary claimant installments, is made in *4 or in other than a lump manner, sum XXVII. may no event an amount in excess of “Respondent possesses no particular ex- twenty-five per cent of any one such in- perience, reputation ability or in connection payment stallment be withheld for the with representing clients before the Indus- attorney’s fee. trial Commission justifying of Arizona a fee C. The reasonableness of the attor- beyond normally charged that in the com- ney’s fee set pursuant subsection munity. shall be upon reviewable application of the claimant or the attorney in the XXVIII. same manner as other awards of the com- ” “By including in the upon amount which mission.’ Respondent based contingent fee the sum by received Mrs. from the Em- XXIII. ployment Securities Division of necessarily hourly “While an fee is not Respondent charged his client a fee for unusual, legal customarily charged which he performed no services and the fee representa- for community in the Phoenix charged was therefore clearly excessive in tion Industrial Com- of clients before the violation of D.R. 2-106. mission of Arizona in matters such as that involving Respondent’s representation of XXIX. (25%) twenty-five percent is a “By including in upon the amount which contingency based contingent based his fee the attorney by benefits obtained payments made on behalf of Mrs. Ryan for on behalf his client that of over and above medical, surgical benefits, Re- which the client has received or been spondent charged clearly his client a exces- prior employment awarded of the attor- sive fee in violation of D.R. 2-106. ney.
XXX. XXIV. of the Industrial Commission “In view of of which officer’s determination including the “In Employ- entitled Respondent the Arizona 1978 that Ryan received from (25%)of the computa- twenty-five in the to a fee of Security Commission ment and Re- Re- or by Respondent, amount of charged the fee tion of he the full spondent which to retain charged a fee for continues spondent has $4,306.50, has client. services for his performed no (foot- and 23-901 23-1062 §§ A.R.S. 2. See also original). note
278 clearly compensation. fee in client received as In this charged his client a excessive respondent argues still the fee D.R. 2-106. violation of he was not excessive. It is obvious that he the basic con- XXXI. does not understand cepts lawyer’s obligations of a moral including for the “In as basis retention society. The facts this case at a mini- of the full amount of the $587.50 years. two justify mum fee in connection with services disputed jungle The not a where is for Mrs. rendered off game picked are fair to be stragglers brother, Respondent charging his client a the ruthless. clearly excessive fee in violation of D.R. 2-106.”
In his brief the attempts to implications minimize the effect and of his urging acts that no serious violations have Clearly, findings, occurred. as stated in the by attempting charge a fee on the sum Employment
received his client from P.2d Department Division of the Securities Arizona, Appellee, STATE Security, Economic he violated D.R. 2-106. v. disciplinary This alone warrants the action MULALLEY, Appellant. Michael James recommended the Board. There is more *5 than sufficient other evidence in the record No. 4770. suspension. to mandate a brief Supreme suspended is The In Banc. commencing practice of law for two months days from the issuance of the mandate. is as- Further ordered that $767.35.
sessed costs in the sum of J., HOLOHAN, V. C. and CAMERON GORDON, JJ., concur. STRUCKMEYER, Justice, specially Chief dissenting. Administrative recom- Committee Board of the Disciplinary
mended to the issued a Bar that there be respondent, Mer- private reprimand to the Disciplinary cer. The Board recommended opin- I am the suspension. a two-month wholly is a ion that two months’ inadequate inappropriate punishment charges. for such unconscionable It alarming to me that both Administra- Disciplinary tive and the Board Committee seem to feel that this is a minor violation of Disciplinary Rules. I do not think so.
Here, injured in which an per- in a case processed claim is almost automatical- son’s ly lawyer, without the need of a Mercer nearly a fee of 100% of what his