*1 448 jury cross-examination, prosecutor ques- properly and available before

On Any suggestion that prior veracity. his discredit his only about tioned Tucker might conditions crimes, parole Tucker have violated the status: but also about detri- minimally more parole only of his is Now, prior Q. your convic- [Prosecutor] credibility the fact of to his than mental theft; forgery grand is tion is for pursue did not prosecutor convictions. The right? objection, the defense parole issue after Yes. A. [Tucker] or sta- parole and no mention of absconder Q. your testimony you I said believe opening statements tus was made either like, something out of the “I’ve been [sic] closing arguments. or The issue was trouble, any part of and I didn’t want emphasized jury, jury and the was going that,” talking was on about what prior Tucker’s convictions instructed that bar; right? at the is that probative only his truthfulness and A. That’s correct. he committed the mur- not as evidence that time? Q. parole on at that You were der, disposition to had a bad character or a No, I not. A. was addition, jury commit crimes. parole? Q. had absconded from You question disregard any instructed to where sus- objection,to the last objection sustained and not any tained, prosecutor did not ask and the Therefore, find we guess at answer. pri- Tucker’s questions about either further harm- questioning the erroneous parole status. or convictions or his beyond less a reasonable doubt. prosecutor is asserts that Tucker for funda- We have searched the record him denied guilty of misconduct which according error to the mandate mental prosecu- argues that the fair trial. Tucker none. 13-4035 and have found A.R.S. § permissible questions tor’s exceeded Accordingly, judgment of conviction impeachment prior convic- scope of affirmed. and the sentence is tions, inadmissible character ev- constituted idence, improper impeachment and was FELDMAN, V.C.J., and CAMERON prior misconduct. Rules See HOLOHAN, JJ., concur. Ariz.R.Evid., Tucker as- 17A A.R.S. did not MOELLER Note: Justice JAMES impermissible questioning serts that of this mat- participate in the determination re- sufficiently prejudicial to warrant ter. versing his conviction. law, impeaching Under Arizona prior felony conviction is

a witness with showing of the convic limited to the fact crime, tion, place, name of the Sorrell, 85 Ariz. E.g., the date. v. State (1959); Price, 173, 333 P.2d 1081 State v. P.2d 594 (App.1979), 123 Ariz. of a Member the Matter rev’d, grounds, on other Arizona, Bar of 985; J. generally see M. Udall & Livermore, Arizona Law Evidence § GRIMBLE, Respondent. Terry Luther conviction, not the It is the fact of No. SB-87-0034-D. punishment, that is or terms of the extent Arizona, Thus, Supreme Court of veracity. of the witness’s probative In Banc. concerning parole questioning Tucker pursu improper impeachment status was July 609, Arizona Rules of Evidence. ant to Rule however, believe, do not previous Tucker’s requires reversal. error forgery for theft and

convictions

Slutes, Sakrison, by & Pelander Grant Slutes, Tucson, Respondent. Tom Davis, Barry Siegel Gugino, P.C. M. & Tucson, Bar Davis, Counsel. CAMERON, Justice

I. JURISDICTION is of the recommendations This a review the Ari- Disciplinary Commission of of the Supreme jurisdiction Court. We have zona 53(e), 17A pursuant Ariz.R.S.Ct. A.R.S.

QUESTIONS

II. questions: must answer two “attorney-client”

A. there an rela- Was Respondent, tionship between capacity as director the Arizona District, and Pima Drug Control County, employer? sufficient evidence to find B. Was there Code of violated the Responsibility?1 Professional III. HISTORY PROCEDURAL reported media the news Grimble, Respondent, Terry Director of L. Drug the Arizona Control “phonied up” certain travel vouchers seeking receipts in travel reimbursement Thus, Conduct, February prior al effective 1. The conduct occurred charged previous adoption under of the Model Rules of Professional Responsibility, Ariz.R.S.Ct. Bar Association Code Professional Conduct American A.R.S., amended, 29(a), 1 November 1970. Rule Arizona Rules of Profession- 17A effective justifying against and in draws IV. FACTS expenses. Respondent travel resigned. appointed director On 21 October the state lodged bar Drug Arizona Control District complaint against sixteen-count Respon- mid-1970’s, Attorney Pima complaint alleged dent. The Respon- position stayed January in that until *3 “authorized, dent ratified and condoned 1981. The District was created in an effort use and of submission false claims and investigate provide to and assistance in the false expense reports, improperly used prosecution persons of in involved narcotics government purchase contracts for the of trafficking. Some established law enforce- items for use and improperly used agencies ment did not receive District state apartment funds for rental of an in open arms, with and although the District Respondent Phoenix.” charged was also gain acceptance cooper- was able to and with complete failure maintain to and accu- agencies, ation perceived of certain others rate records. attempt its on creation as an to encroach director, respective their “territories.” As After lengthy hearing, during Respondent responsible for Dis- was testified, approximately twenty witnesses forge working trict’s to successful efforts (“Com- the Local Administrative Committee relationships other law enforcement mittee”) Findings Fact, filed its of Conclu- agencies. responsible Ele also for ob- sions, essence, and Recommendations. taining maintaining funding and for the Respondent, Committee found that and from both state federal while employed as director of the Arizo- addition, Respondent sources. assisted Drug (“District”), na Control District agen- enforcement narcotics-related filing often late in travel re- vouchers and nationwide, of many cies and associations lated materials that would ex- document patterned after the District. which were penditures he made connection with Dis- duties, varied Re- consequence As a trict Specifically, Respondent business. great spondent deal of time spent a timely to account for funds advanced places frequently other than Tucson. He to him by the District. to meet traveled to Phoenix order The Committee then recommended that legislators officials. His out-of- and other Respondent publicly be censured. Respon- extremely schedule was de- travel objected findings dent to and the rec- ultimately manding, resulting in his illness. sought by ommended and sanction review testimony, appears From Re- (Commission). the Disciplinary Commission spondent appropri- had failed submit the 53(d), 17A Ariz.R.S.Ct. A.R.S. County ate data to the Pima Finance De- hearing, On 24 after a June formal partment in connection with various travel- report filed its stating: Commission expenditures. related As a result in one adopts The Commission Ad- Local case, personnel finance contacted Pima ministrative Committee’s conclusions Stephen Attorney Neely, D. who report, in its law as set forth filed Janu- Respondent’s supervisor, and told him ary 1987 and concludes clear and con- long paperwork that the vincing presented has been evidence overdue and had be submitted immedi- Sup.CtRules, show violations of Rule ately. Neely, previously who had received 29(a), Responsibili- Code of Professional regarding Respondent, similar complaints ty, DR specifically per- contacted the District’s administrative A majority Commission recom- sonnel and told them to collect and submit mended the the necessary sanction censure. items at once. Two members of the Commission when contend- was out of town these events took place. ed that personnel, a lesser sanction was apparently District mis- Neely’s under the understanding circumstances. ob- “re- instructions to jected report appealed to the Respondent’s itinerary, to this construct” obtained 53(e), “phonied court. 17A up” Ariz.R.S.Ct. A.R.S. blank hotel and restau- $2,420. outstanding, amounting to bring Respon- receipts in an vanees effort rant July Mr. 1979 Memorandum Larsen’s up the use of a paperwork to date dent’s say that Mr. goes on to Grimble and restau- dummy voucher.2 The hotels as travel as far back 1978 which receipts were from which the blank rants therefore, and, Mr. yet been documented Re- those often visited obtained investigation requesting an Larsen was during re- his travels. These spondent regarding the travel advances. Department sent Finance ceipts were provided to the Commit- 3. Exhibit valid, legitimate represented ex- as D. Stephen tee was a Memorandum to However, record penditures. reveals Drug District Neely Arizona Control receipts knew that blank Migala, the from Andrew Administrator preparation to be going used County, re- Director of Pima Finance claims. *4 Migala garding travel advances. Mr. The Local Administrative Committee out, pointed the his Memo- as of date of following findings of made the fact: 30, 1980, randum, Drug May that the Beginning 1. as far back as 1978 and had travel thirty-eight Control District March, extending through Mr. 1981when outstanding rec- advances which needed Force, poorly left he Grimble the Strike those, belonged to onciliation. Of nine ignored for accounted client’s Grimble, Terry as De- one far back requests proper accounting for of travel 21, 1979. cember which he from advances took Pima Coun- presented 4. Exhibit to the Commit- ty. County grants travel advances Department memoran- tee Finance was a requires accountings and then filed Lindell Stephen Neely dum D. from to traveler with receipts the the De- County Pima Finance Jones of the provide attached which information on eleven partment 8/6/80 to dated attached the spent. how travel advance was separate regarding non-filed memoranda Then, County reconciles advance Drug for the Control travel advances money spent to determine whether memorandum District. Mr. Grimble’s traveler is entitled to a refund or the due nine advances were still showed that repay traveler should some of the funds from Each of these memorandum him. advanced. that requirement was points that the out 2. Mr. notoriously Grimble was late to settled within travel be advances filing his accounting reports. He took trip completion for five days after his travel county advances from the but which advance was made. on provide numerous occasions to and cre- purchased a desk county the documentation to the which through the denza Brothers from Walsh necessary for the was reconciliation. Ex- Drug desk was District. The Control Committee, 3 before a hibit Memo- apartment shipped Mr. Grimble’s to Stephen Neely, County randum D. At- offi- he had as an Phoenix which leased Larsen, torney, from Peter A. Adminis- However, Mr. Grim- cial work location.3 Officer, July points trative dated always it was his inten- ble testified that Mr. repeatedly out that had ne- Grimble personal desk tion as his to treat required glected make the settlement not, however, for pay did property. He performed. travel had As of after by the initially. paid It was desk Memorandum, time of Mr. only that Grim- Drug it was Control repeatedly neglected to make the ac- ble after received letters from the he required Drug Control counting department settlement after travel had been personal performed. of the time of that Mem- District that submitted As orandum, pay check for the Mr. ad- desk. Grimble seventeen however, actuality, apartment not receipt Dummy 3. In voucher was defined as purposes, time used not made at or near the funds rented for official and the expense place in repaid by Respondent. for the which incurred to be for rentals actually incurred. purchased also matching canon, above, credenza This cited is concerned with which was Mr. delivered to Grimble’s special obligation attorney has to apartment several months later because preserve property and to of the client initially it was not available. Like the provide prompt accounting. the client with desk, Drug it was billed to the Control apply obligations It does not to other District. preserve also has to and ac- count for others property found Committee that “Mr. Grimble attorney’s possession. comes into the inappropriately advantage took of his offir find no violation of DR position purchase property cial for his funds, personal use with his client’s although it was done without fraudulent or VI. DID RESPONDENT VIOLATE intent, inappropri- dishonest it did result in THE CODE OF PROFESSIONAL ate use of client funds as a source of RESPONSIBILITY? period credit for some of time.” attorney-client relationship did That the admit, however, The Committee did case, exist, does not in this excuse dishonesty part there was no on the of Mr. Respondent discipline. from bar activities, Grimble in these and at no time Respondent first that he was contends money did he steal from the or the attorney, acting capacity of an *5 Drug Control District. The Commission merely a but as fellow-businessman agreed. along parties. the We other two outset that it makes no dif- at the V. ATTORNEY-CLIENT acting he as an ference whether RELATIONSHIP There is attorney or as a businessman. The Committee and the Commission attorney from en- nothing prevent an Respondent found that violated the attor- activities, gaging or but in business ney-client relationship proscribed by he not abandon when he does so does Code Responsibility, of Professional professional if he to remain ethics wishes specifically by (4) DR and which profession. a member of

read: 97-98, Lurie, 95, Matter 113 Ariz. (B) lawyer A shall: also, (1976); 1126, 1128-29 Matter See (3) complete Maintain records of all Zussman, 86 Ariz. of (1959). funds, securities, properties and other the time of A rule in existence at coming of a possession client into jurisdic for Respondent’s provided conduct lawyer of the and render he was a Respondent tion over because regarding accounts to his client them. member of bar. That rule stated (4) Promptly pay or deliver to the grounds discipline for were: requested by client as a client omission, or either related Any action funds, securities, properties in or other law, practice indi- or unrelated possession lawyer of the which the cating or unfitness to con- mental moral client is entitled to receive. practice tinue the of law. matters, Discipline In Bar it is the 29(b)(9). Arizona R.S.Ct. duty Supreme of the Court to make an DR Respondent violated We believe independent determination of the facts 1-102(A)(6) provides lawyer that an which Lurie, from the record. the Matter of shall not: (1976). 113 Ariz. 546 P.2d 1126 We do that ad- Engage any in other conduct attorney- there not believe that practice versely reflects on his fitness to Neville, relationship. client See Matter of law. 106, 111-112, 147 Ariz. 708 P.2d reasonably expected that a job require did not It can be 1302-1303 lawyer keep his attorney person and his trained as a will be an in order as to not require perform that he books and records such work did not competency and his hon- responsibilities attorney. of an cast doubt on his duties and reported by press and others case, items esty. Respondent, instant accounting practic- guilty sloppy indicated that slip-shod which that, so, es, doing involving raised just discipline did infractions of serious practice law. questions on his fitness felony criminal misconduct. Most are, example, most We for troubled (and costs) of the committee efforts items for purchased manner which matters, later directed to these agency personal Having pay use. a state noted: proved have to be unfounded. We personal purchases and then reimburs- Respondent guilty Bar found ing risky a at agency is business best. unethical conduct and of four counts of Respondent did Admittedly, reimburse Although findings. agree these we Respon- not excuse but this does very detailed Bar a the State submitted using the state as dent’s conduct expenditures, list of costs and itemized purchases. for his “credit card” categorized by counts. this list was not the sort of conduct We believe that is think, however, categori- do not We accept- lead to trouble and is that can necessary. Respon- is by counts zation any capaci- able conduct for guilty four found ethical dent was ty- responsible and is therefore violations 1- find violated DR during for costs and incurred 102(A)(6). Kleindienst, proceeding. See in re (1982) (attor- 644 P.2d 249

VII. SANCTION guilty of out of nine ney found two majority Both the Committee and charges pay costs and ex- ordered Respon- recommended that Commission proceeding)____ penses of the Rule dent be censured. expressly state 37(g), supra, does not expenses must be allocat- that costs and *6 Respon The evidence showed that separate to counts. We have re- ed serious, perhaps very dent took a almost list of costs the Bar’s itemized viewed fanatic, approach respon to substantive have determined that and and the man sibilities as director. Because of necessary they and reasonable. approached job, he had ner in which he pursued that the Bar also believe very energy and devote to little time to good of each count faith. investigation obligations. some of administrative pay should the amount Respondent Respon can be little There assessed. adequate dent failed to maintain contact supervision of matters.

with or these 604, 616, 691 Riley, Matter of (1984). 695, 707 Respondent did act Because with believe, intent, we as did both the criminal good keep to That Commission, public Committee and the apparent, proper records is and and books appropriate censure is the sanction. the initial com- appears to have caused say cannot plaint. We AND EXPENSES VIII. COSTS charged payment of not be should Respondent objects guilty he proving bar’s expenses in expenses. allegations, and The bar statement costs serious when the more in the amount of reimbursement seeks allegations the direct serious more $8,639.80 has filed an itemized state and and Respondent’s unprofessional result Davis, 129 Ariz. ment of costs. See In re neglectful conduct. 38, (1981). Respondent 41 628 P.2d Respondent is censured and assessed guilty not found argues that since was $8,639.80. amount costs charges, any costs more serious as “drastically reduced” or not be should GORDON, C.J., and HOLOHAN that the Bar Disci at all. We note sessed JJ., MOELLER, concur. initially reacted plinary Commission FELDMAN, Justice, Vice Chief specific applied rules “also to which, concurring. transactions in although lawyer formally is not attorney-client an rela- separately I write disagree because I tionship with party, may the adverse majority’s both the characterization of fairly ordinary person be said that an ... respondent’s conduct and its conclusion lawyer protector would look to the as a that he obligated obey spe- was not rather adversary.” than as an 147 Ariz. at cific commands of the Code of Professional 111, 708 P.2d Surely principle at 1302. (the Responsibility Code). applies strongly lawyer holding most to a public public’s office to do the work. Cer- RESPONDENT’S LEGAL tainly public expects that a lawyer OBLIGATIONS public obey office will all the ethical re- Contrary to the conclusions of the Code, Local quirements of the in addition to the Administrative Discipli- high Committee and the standards inherent in service. 112, Commission, Id. at nary 708 P.2d at 1303. majority holds that Neville does respondent not insulate from respondent the Code’s was not answerable to the Code specific obligations simply because he held provisions requiring (1) him to: maintain public office. records of his properties; client’s funds and (2) render accounts to his client These views are legal not an Arizona regarding properties; such funds and jurisdictions, aberration. lawyers (3) promptly pay or deliver to his client on in non-attorney-client involved relationships request all such have been properties specific funds and held accountable under disciplinary See, sections of the lawyer’s possession. code.1 e.g., See DR Bar, Libarian v. Cal.2d provisions These did not bind re- (1943) (specific rules regarding spondent because putative there was no advertising applicable although advertise client. P.2d at 598. The At services); nonlawyer ments were for In re court holds that these apply only rules Genser, (1954) 15 N.J. 105 A.2d 829 attorney’s “special an obligation” ato tra- (even though attorney-client no relation ditional client. At 759 P.2d at 598. ship, in a business employed paid as a comply transaction must with the ethical deputy county attorney during the entire regarding rules attorney’s handling time he served as director of the Arizona him). funds entrusted to Drug Control District Strike Force. I can- *7 leading noted, As a commentator has agree respondent with the idea that attorney is “bound to observe the [ethical lawyer was a purposes receiving for of his fully as president when he becomes rules] salary lawyer but not a when it came to of company general the as when he was its fulfilling requirements. majori- ethical The DRINKER, counsel.” H. LEGAL ETHICS ty badly misinterprets the two cases on (1953). 92 years ago, Not two this court conclusion, reaching which it relies in its espoused identical views. We said that a Neville, 106, re 147 Ariz. 708 P.2d 1297 lawyer by “does not cease to be bound (1985), Lurie, 95, and In re 546 merely ethical code because he is an officer (1976). company.” ... of a Kersting, In re 151 that, actually although acting Lurie held 587, (1986). Ariz. 726 P.2d 593 as a legal businessman rather than a advis- office, running Even when for er, lawyer obey spe- was bound to is “bound the ethical rules” disciplinary cific today. rule before us 113 requiring Id., citing truthful statements. 98, Neville, Ariz. at 546 P.2d at 1129. In Russell, 897, State v. 227 Kan. 610 P.2d dealing section, (1980). with a different held 1122 we Annotation, generally Disciplinary 1. See Action Related to Duties as Performance of Official Against Attorney (1981); Prosecuting Attorney, or Accountant Misconduct 10 A.L.R.4th 605 for Annotation, Preparation Capacity Judge Related to Tax Returns Oth- Misconduct in as of for ers, Annotation, (1977); Disciplinary Against 81 A.L.R.3d 1140 Attorney, Disci- Basis Action for Against plinary Attorney Action Misconduct 57 A.L.R.3d 1150 for Yet, respondent that P.2d at 598. it admits FACTUAL CHARACTERIZATION receipts” to be that “blank knew disciplinary against a proceedings accountings. The used in his filled and bar, gives of the state this court member respondent also reveals that verified record findings great weight to local committees’ receipts were which the false the forms to Nonetheless, Kersting. and conclusions. 91, citing deposition RT at attached. See independently duty a evaluate we have Larsen, Finance Ad- of Donna Strike Force at P.2d at fact and law. Id. both least, ministrator, very 40. At the there- at 587; Neville, P.2d 147 Ariz. at at vouchers, fore, respondent verified without respondent’s majority The finds in 1299. any represented the vouchers belief “slip-shod sloppy no more than conduct giving expenses. respondent actual Even accounting practices.” At doubt, every at the least he the benefit of more. at The record shows unpleas- improper condoned conduct. obligated Respondent was to reimburse is that someone ant truth of the matter county all to him for funds advanced knowingly public agency submitted expended in connection with his and not county de- false documents to the finance course, Expenditures, official duties. agency no has partment, yet one by appropriate were to be substantiated responsible. held been receipts. account transgressions are overshad- Even these failed to return the funds money for by the use of state owed impossi- Because it was could not account. Again, taking purchase personal items. respondent’s cooperation, the ble to obtain facts, rosy a of dismal rather view county officials to re- turned majority adopts finding the Committee’s County spondent’s supervisor, the Pima At- ad- respondent “inappropriately took torney. position purchase vantage of his official quite Apparently properly perturbed at personal use property for conduct, county attorney respondent’s funds, although it done client’s respondent’s office “to collect told staff intent, it without or dishonest fraudulent necessary items.” At and submit use client inappropriate did result course, he 759 P.2d at 596. Of was aware personal credit for funds as a source respondent provided no vouchers 451-452, 759 period of time.” At some expected and submit.” He “collect These kind words dis- P.2d at 597-598. accounting by staff to “reconstruct” the guise serious misconduct. ad- “dummy” vouchers, obtaining practice a purchased desk for mits he “in which he believed had been followed con- use with state funds [Drug] throughout Strike Force and tract, taking advantage a state thereby long Pima RT at 380. A before.” not have avail- which would been discount “dummy” one “not made at or voucher is personally. This would have able to him expense time in- near the if respondent improper behavior even county attorney expect- curred.” Id. made immediate reimbursement *8 provide ed staff to substitute vouchers respon- state, is much worse because but it actually in- supervisor’s only dent not acted without Evidently RT 382. un- curred. See at this, doing repay authority but did not county attorney, the adminis- known to the period for a this furniture state for beyond “dummy” staff went vouch- trative months, only after several many and then “phony” ers instead manufactured upon made him. demands had been represent the former ac- vouchers. While “risky majority The describes this as false; expenditures, they are tual the latter that can “lead to trou- business at best” represent expenses not at incurred my P.2d at 599. ble.” At place shown “or been [in- [which] money view, public undisclosed use at at all.” RT 382. curred] buy is a little more personal furniture one’s business,” especially when “risky con- majority adopts Committee’s than officer. dishonesty by a law enforcement on transacted there was “no clusion that point on this respondent’s If conduct At part of Mr. Grimble.” see A.R.S. theft, 13-1802(A)(2), cer- § tainly comes close. many points record leaves

questions flatly unresolved. I cannot agree majority’s with the final conclusion respondent’s problems are attributable approach

to his “serious to his ... substan- responsibilities tive resulted a lack [that energy time and to some of devote of] At obligations.” administrative important 759 P.2d at 599. those Whatever been, responsibilities may they simply have respondent’s do not excuse failure to ac- him, count for funds entrusted to participation submitting phony account-

ings or his use of money buy I accept items. therefore cannot the Commission’s recommendation for cen- hearing

sure and would remand to the com- hearings mittee for further to determine respondent what knew about the use of ques- false vouchers and to answer other tions unresolved this record. After findings, such this court could then accu- rately suspension decide whether or disbar- Believing, ment was the correct sanction. however, punishment that some is better none, reluctantly I than concur the re- sult.

759 P.2d 602 HEALTH SCOTTSDALE MEMORIAL SYSTEMS, INC., corporation, An Arizona ntiff/Counter-Defendant/App Plai ellant,

v. CLARK, individually Lawrence G. Co.; Larry dba Construction Clark Clark, Dorothy wife of Lawrence G. Clark, Defendants/Counter-Claim ants/Appellees.

No. CA-CV *9 Arizona, Appeals Court 2, Department A. Division March