In Re a Member of the State Bar

24 consisting mitigating

persuaded that factors 951 P.2d 889 dysfunctional family back- of defendant’s In the Matter of Member the State condi- ground and his emotional mental PIATT, Arizona, M. Bar of William participation in tion should excuse his IV, Respondent. Ariz. degree. McKinney, State v. 185 See 567, 580, 1214, (1996); No. SB-96-0064-D. v. P.2d 1217 State Nos. 1024, Disc. Comm. 91-0843 91-1522. King, 883 P.2d (1994). Clearly, faced the difficulties Arizona, Supreme Court of created substan- childhood adolescence En Banc. for record challenges tial defendant. The me, however, meaningful no persuades Dec. 1997. as and a link exists between his abuse a child Judgment Mandate Issued sig- magnitude. perceive crime 16, 1998. Jan. though nificant show evidence appreciate wrongfulness defendant could conduct, ability his his the law follow impaired at the of the offense. See time 13-703(G)(1); § v.

A.R.S. Rossi Ariz. Joseph agree with Dr. Geffen’s testi- mony experience childhood that defendant’s but, behavior,

impacted the extent his supremely not be accounta- need held in this ble his actions victim See, Thornton, e.g., case. State v. past His ability him decide did rob of the a car unlawful to commandeer whether was own, and the life the owner he did not take and in the described after events manner sufficiently It in this record. clear nature crime defendant understood the of his easily prevented and could both killing aggravation. The attendant

evidence leads me to conclude that defendant not warrant reduction in sentence. does J., MARTONE, concurs. Montoya, Phoenix,

Stephen G. for William Piatt, M. IV. Sallen, Counsel, Phoenix,

Patricia A. Bar State Bar of Arizona.

OPINION

MARTONE, Justice. lawyer disciplinary This proceeding. Hearing Officer recommended that Wil- Piatt, IV, liam publicly M. censured. The agreed and also one-year period recommended a probation during participate which Piatt would in the membership program State Bar’s assistance complete a counseling program. Two dissented, members of the Commission rec- ommending suspension ap- instead. Piatt peals 53(e), to this court under Rule R.Sup.Ct., as it existed before its recent provided discretionary amendment re- adopt view. We the recommendation of the Disciplinary Commission.

Background

I. object

Piatt did not Hearing Offi- report cer’s and the Commission unanimous- ly adopted Hearing findings Officer’s fact and conclusions of law. We thus state Hearing the facts as found Officer and adopted by the Commission. May twenty-year-old client A represent

retained Piatt to in a her domestic interview, During relations action. the initial Piatt asked her whether she had ever mas- age turbated at the of fourteen. In a later meeting, he told her she looked delicious and that it would be even better if her skirt were four inches shorter. At still another meet- ing, he her if asked she had ever relationship without emotional involve- ment and told her that somebody she needed him like who could take care of her needs. appreci- Client A told Piatt that she did not way ate the he talked and asked him to direct his attention to her divorce. Piatt later asked client A to come to his prepare post-decree hearing. house to for a arrived, When she his bathrobe. stay, “by lawyer’s ly limited own interests.” meeting, After the Piatt asked her Clearly, by a going her if she sexual harassment and told was not lawyer’s interest him, represent serves respond longer could no wholly inappropriate ques- Asking client’s. up with a lot more her unless she came making tions and obscene comments money. lawyer trust in the and the client undermines frame, B During the time client re- same representation. represent Piatt her in a domestic tained to Indeed, beyond case went sexual this During representation, action. the relations harassment. Piatt told client A that unless frequently inappropriate made he sexually responded to him he could she meeting, made At a luncheon he comments. up longer represent her unless came with she things suggestions they could do lewd about already money. a lot more Client A had they got to under the tablecloth. When back energy time in Piatt as her invested office, lips his and told her the Piatt smacked imagine egre- lawyer. It is hard to a more B left chemical existed. a attraction Client gious putting case of one’s ahead interests him a the office shock. She then sent put interests the client’s. Piatt also his saying get not want to involved letter she did ahead of client B’s. his hoped that she it would not affect performance on The professional her behalf. un petition In a we considered following pro- a week Piatt called her about 28, Ariz.R.Sup.Ct., adopt Rule a rule der to not posed property which she did settlement prohibit lawyers requesting, that would from Piatt that if he had to rewrite like. told her demanding with requiring or sexual relations papers going to her a lot more cost professional repre a a client as condition of money. hearing day, a felt At the next she 12, Ariz.R.Sup.Ct., re Rule R- sentation. agreement. pressured accept to petition, stating 94-0003. We denied problem “the addressed ... is covered that de- Hearing The found that Piatt’s Officer May existing rules.” Order credibility explanations any lacked nials and the obvious— 1994. We continue to believe 1.7(b), that he violated ER and Rule specific rule that we do not need a reviewing After 41(g), Ariz.R.Sup.Ct. a attempting to sexual conduct from extort briefs, report and the we solic- 42, Ariz.R.Sup.Ct., pur not client. Rule does supplemental question on ited briefs the dif port to describe exhaustive detail suspension for oral and scheduled the case lawyer ways may breach ferent in which a argument. fiduciary duty For exam to the client. lawyer say shall ple, our rules do not that a Analysis II. threaten, intimidate, or a client. strike argues Piatt that his conduct was lawyer They say that a must not steal do clearly time commit unethical at the it was that But who doubt from a client. Evans, Relying ted. are breaches? these (1976), P.2d 792 that it is not contends purport Ariz.R.Sup.Ct., Nor does Rule lawyer proper discipline to a for debatable obligations of mem- exhaust the duties and to there The Bar that conduct. State contends true, argues It is as Piatt bers of Bar. impro nothing about the ethical is debatable here, lawyers 41(g), requires which Rule harassing sexually clients. priety of one’s is personality” all offensive to “abstain from agree with the Bar. We come quite general. But this case does not rule. duty fiduciary A close to outer contours of lawyer is with care, here is offensive under loyalty, the client. Piatt’s behavior and obedience to is, be, just a of a one of This is not relationship The and must standard. language. is a case using words offensive This utmost trust. It matters not that the reject exploitation We thus in our and extortion. not used “sexual harassment” 1.7(b) argument agree the Com- with ER Piatt’s Rules of Professional Conduct. that “he violated representing a client mission’s conclusion prohibits every lawyer-client rela- representation going be material- trust that vital if that tionship.” Disciplinary Report suggests suspension necessary is not problems protect at 7. deal with Piatt’s See, e.g., Bergner, public. People v. argues Piatt next the Commission’s (Colo.1994). public A censure and the probation unjustified recommendation of publication opinion get will at- Piatt’s rejected. disagree. and should be We We supervised probation tention. And with agree with the Commission that Piatt could counseling likely unsupervised is more than grips reoffend unless he comes with his to ensure that behavior will problem. membership pro- assistance happen again. prospect never non- gram very helpful. could be the State Bar compliance proba- will lead to revocation of And we with the Commission that tion, suspension likely or disbarment to be counseling help stop his should destruc- powerful change. incentive to We thus tive behavior before other clients are Hearing defer to the recommendation of the harmed. Officer, witnesses, who heard the and the argues Piatt next that his misconduct was Commission, Disciplinary gave which the proved by convincing clear and evidence. matter careful and reflective consideration. Hearing the Officer believed clients and reviewing did not After believe Piatt. the Disposition III. record, that his misconduct was hereby publicly Piatt is censured. He is proved by convincing clear and evidence. may assessed fees be taxed and costs as Normally point, having at re placed upon probation allowed. He is for a jected arguments, each of Piatt’s we would period year thirty days of one effective after simply adopt Disciplinary the filing opinion, following of under the However, recommendation as our own. terms and conditions: question solicited possible briefs on the of participate 1. Piatt shall in the member- suspension because some members of this ship program the assistance of State Bar of thought public court might censure Arizona. be too lenient. Others would have ordered they making been the deci 2. At Piatt expense, his sole shall success- in sion the first instance. But the State fully complete of program counseling ap- Bar appeal did not Disciplinary misconduct, propriate for his selected and Report every and Piatt did. by monitored Bar of Arizona. State setting other in party appeals, which a one During probationary period, 3. Piatt of two things expected. prevails, If one supervised by practice shall monitor gets one If prevail, relief. one does not appointed by Bar of Arizona who decision below is affirmed. There is no shall consult with and his Piatt clients as “upping expects the ante.” one by No necessary to ensure that Piatt’s misbehavior appealing, things get will worse. ulti Our has ceased forthwith. authority disciplinary mate over matters comply cooperate 4. Failure to or will upping possible. makes the ante But unless suspension, lead to or other dis- disbarment power rarely only is exercised in may position as the warrant. circumstances situations, many lawyers the clearest of will appeal they risk an where have MOELLER, J., legitimate. concurs. and reasonable claims to make. outrage We understand Piatt’s MANDATE AND JUDGMENT inspires. purpose

behavior however, discipline, punish not to having hearing the law This matter come on for yer Brown, protect public. Disciplinary but to before the Commission of the Arizona, Supreme having duly P.2d Court of subject having has never been the before rendered its decision and this Court lawyer discipline twenty years matter, Opinion in over considered the filed its on practice. December, day active Considered deliberation the 24th 1997. previous proceeding filing disciplinary of the

The time for a Motion for Reconsid- proper disposition essential to a here. expired motion filed. eration has and no Ariz. at 830. P.2d ORDERED, IT AND ADJUDGED IS however, present aggrava In the all PIATT, IV., M. DECREED that WILLIAM ting known and considered factors were Arizona, is of the State Bar of member it ren Commission when hereby in censured violation Though might its dered decision. obligations pursu- as a his duties and conclusion, I am prepared to a come different Opinion ant to the of this Court. Mat to defer its recommendation. In the IT IS that WIL- FURTHER ORDERED Wolfram, ter PIATT, IV., placed upon pro- LIAM M. 94, 97, 103-04 period year bation for a of one effective FELDMAN, Justice, concurring part

January 1998 in accordance with dissenting part. Opinion forth in the filed De- conditions set 24, 1997. cember fully agree with the court’s well-reasoned points except exposition on all that of pursu- IT IS FURTHER ORDERED that imposed Respondent. Or- sanction to be 52(a)(8), Supreme ant Rule Rules dinarily, I defer to the recommenda- Arizona, Bar of Arizona is Court of the State (“Com- Disciplinary tions of the Commission granted judgment against WILLIAM M. mission”) majority. strongly join the I PIATT, IV., by incurred the State costs however, poli- disagree, with the sanction on $5,506.54, Bar of in amount Arizona the of cy grounds from and must therefore dissent together legal the rate from with interest at opinion. portion that of the judgment. the date of this view, by my In the recommended censure majority approved of the Commission ZLAKET, Justice, specially Chief to by the is far lenient and fails court too concurring. objec important accomplish one of the most preventing In to discipline. addition tives frustra- While I share Justice Feldman’s deterring simi repetition by the offender and tion with the recommendation of the Disci- only objectives lar conduct others —the Commission, agree plinary that this I cannot majority expressly by the considered in “up court ante” of the —disci should terms plinary protects also and maintains action imposed. type No sanction to be other system’s eyes legal integrity in the legal proceeding requires party appeal Fioramonti, 182, 187, public. 176 Ariz. In re peril. perpetrator his or her Not even (1993). 1315, Imposing disci P.2d 1320 859 unimaginable of a crime faces vile im pline proportionate to the misconduct is seeking increased risk an sentence when public confi portant efforts to instill our higher be- relief from court. therefore respect. In re maintain See dence and extremely in must cautious lieve that we be Wade, 13, 17-18, 826, P.2d 830- 174 Ariz. 846 extraordinary power. our use of this (1993). especially egre light of the 31 In decision, I have The with which Wade conduct, Respondent’s gious nature of familiarity, sup- little not more than a does clearly action falls short. court’s lenient position. port There we said: the dissent’s than Respondent for less suspend six months. hearing The record demonstrates respondent’s was unaware of committee Upping the ante A. matter, still prior disciplinary which was by impos- findings majority is concerned pending when the in this ap- Respondent’s ing a stiffer sanction after were made. The recommendation, matter, peal from but did the Commission’s was aware of earlier I un- upping the ante. aggravation this court would not it in because consider discouraging legiti- danger yet con- derstand the final. We not so only “rarely strained, appeals and and believe that our consideration mate

29 matters, those, up present, the clearest of situations” should we like strongly ante. Id. But I lawyer appealed believe this is one which the and the bar did 18, of those situations. cross-appeal. See 174 Ariz. at (suspension 846 P.2d at 831 increased to applicable Under version of Rule disbarment); Hohn, 539, 544, In re 171 Ariz. 53(e),1this court is the trier fact ultimate (1992) 192, (continuing legal 832 P.2d 197 Lincoln, 233, 235, and law. In re 165 Ariz. twenty eight education increased from 371, 798 P.2d We have both final hours); 545, 556-57, Spear, In re 160 Ariz. authority responsibility to decide on the (1989) (suspension 774 P.2d 1346-47 appropriate every sanction in discipline bar years); In increased from six months to five Owens, 121, 126, case. re In 182 Ariz. Swartz, 266, 278, re 141 Ariz. 686 P.2d (1995); Shannon, (1984) (suspension thirty increased (1994), modi- months).3 days to six fied, 890 P.2d 602 Thus, give great while we deference to the noteworthy. The most recent In case is recommendation, it is our task Wade, the Commission increased the recom- proper required by decide on the sanction thirty-day suspen- mended sanction from a law, may facts and even when it exceed the two-year suspension. sion to a 174 Ariz. at Commission’s recommendation. appeal 846 P.2d at 827. On Wade’s court, noting after that the Commission might up risk the ante should prior had not been aware Wade’s record at surprise Respondent. every stage, At recommendation, the time it made its Respondent had notice that the recom- held that the offenses warranted the more mended sanction was not set in stone. In stringent fact, sanction of disbarment. Id. at hearing Commission increased the P.2d at 831. both Wade and the officer’s recommendation of censure without present urged the State Bar an in- probation probation. to censure with Two members, cross-appeal. creased sanction but did not dissent, Commission in a written Respondent, like that claimed this suspension concluded that only was the ac- court’s consideration of the increased ceptable sanc- sanction.2 Because the dissent is process rights. tion violated his due Never- part report, Respondent of the Commission’s theless, we held that Wade’s misconduct “not clearly possibility suspen- had notice of the only by violates the in him confidence vested Respondent argued sion. the issue of the clients, brings disrespect upon [his] but increased sanction recommendation in ini- his legal profession justice system and the as a tial reviewing brief to this court. After whole.” at Id. 846 P.2d at 830-31 by record and briefs Respondent submitted (citation omitted). I Bar, believe that comment is and the requested supplemen- we equally applicable present to the briefing tal argument and oral specific on the which the Commission’s recommendation was suspension issue of whether censure or was based on an erroneous Thus, factual conclusion appropriate Respondent sanction. rather than a lack of information. given opportunity was notice and an to be suspension. heard on the issue of Respondent’s B. conduct ample authority

There is for this court to increase a majority quotes recommended sanction. approval We The with from increased the previous report: Respondent sanction several the Commission’s “vio- appeal, 1. At the suspend- time Piatt initiated his October conclusion than that Piatt should be ed.”) added). acting pursuant (emphasis this court was still 53(e) pre-amendment procedure. Rule The 1996 53(e), adopted amendment to Rule October Ironically, majority very 3. even the in this became effective December 1996. upped probationary has the ante. The terms by stringent ordered the court are more than Disciplinary Report, September 2. those recommended Al- Commission. Rules, ("Having though change significant, at 10 considered the Stan- it does show dards, People Bergner, recognizes go beyond power and the result in v. in this that the court its particular case ... can come no other the Commission’s recommendation. lawyer- just time every culpable the trust vital to because this the first lated that is patently come relationship.” client Commis- offensive behavior has such 7,1996, Report, Despite 7. September sion at this court. before conclusion, recom- this the Commission majority Respondent’s agrees censure, only largely it mended because correct, disposes it in claim is frivolous and only “negli- Respondent found acted clear, explicit behavior terms: “Piatt’s “knowingly.” gently” Id. at 7-8.4 instead under standard---- here offensive I majority premise, While overlooks this exploitation This is a case of and extortion. myself agree it or the find unable with reject argument thus Piatt’s We produces. the applicable result it Under ver- that he with the Commission’s conclusion 53(e), of Rule make a novo deter- sion de every law- ‘violated the trust that is vital to apply mination of if we fact. Even were ” Opinion yer relationship.’ client at 53(e) present, amended version of Rule Putting specifically, at it more 892. error, only review for clear I could not majority to believe the obvious— “eontinue[s] accept negligence finding. There was specific a that we do not need rule nothing negligent Respondent’s con- about attempting to sexual extort obviously most duct. It was intentional and client____ example, do not our rules For certainly knowing. Piatt his con- intended threaten, intimi- say lawyer that a shall improper. it duct and must have known was date, They say that or strike a client. do not finding negligent But must not steal from a client. erroneously state on the mental was based these who would doubt that are breaches?” conclusion that “while there is no doubt agree. Opinion at 891. Piatt should have known that his conduct only do not would add that rules also improper, knew was it is not as clear that he prohibit expressly from blackmail- it Re- created a conflict interest.” favors, conferring ing his client into port, Apparently, at 7-8. the Commission equally who would doubt that was an but faulty argument accepted the same that Re- Respondent’s argument to breach? serious do spondent made in this court: the rules contrary disingenuous and meritless. alleged; specifically prohibit the offenses therefore, Respondent advance only it whether his The fact that debatable argument is mistak- the Rules Professional shows that court behavior violated argued “that is not He further that it would en when concludes Conduct. improper necessary problems.” to deal with Piatt’s impose to a serious sanction Respondent finding attempt Opinion hoc that the to extort 951 P.2d at 892. post obviously unwilling unaware to favors from his clients violated some is still or sexual of that he breach. vague disciplinary rule. Given the facts admit committed serious case, however, argument in this court made it clear nothing there was debat- His oral regret. impropriety Respondent’s very he has little We do able about the ambiguous require culpas mea acts of anything nor in the disci- or contrition conduct but lawyers impropriety, an. of ethical plinary rule it .flouted. When he issued accused estab- egregious in ex- an breach has been ultimatum to his client —sexual favors when lished, to dem- change legal Respon- expect we should for continued service— conduct was crossed a clear ethical line. Even he understands his dent onstrate merely wrong and The entire content to assert that his were intolerable. fails actions (to that, only lacking Respondent’s paraphrase: an didn’t negligent, contending brief rules.) rule, it; did, they and if I I didn’t violate the explicit not on notice that do he was (dedicated excoriating wrong. argument less oral to Respondent But is not were (conflicts gently, only public is See ER censure warranted. 4. When violates 1.7 here, 4.32, interest), The Standards additional- as did the ABAStandards Standards 4.33. for ly sanctions Imposing Lawyer Discipline level that a determine the recommend Stan- attorney's than six See level of in- should be less months. of sanction based on 2.3; Miranda, suspen- attorney knowingly, see re acts dard 274, also In tent. When the warranted; negli- attorney when acts sion making unsolicited pension for in warranted considering an increase this court for represent- fact, sanction) toward client sexual advances In no room for remorse. left interests); re In with adverse ing clients Respondent’s record demonstrates the entire Gilbert, N.Y.S.2d 194 A.D.2d com- improprieties to the total indifference (one-year suspension war- (App.Div.1993) recog- evidently unwilling to mitted. He favors from of sexual ranted for extortion This his conduct. wrongfulness of nize the com- sexually inappropriate leniency. two clients See negate any grounds for helps co-workers). Looking at this ments toward Lawyer Dis- Imposing ABA For Standards cases, ma- misconduct spectrum of sexual Ariz. at 9.2(g); cipline, Standard an incor- have made jority appears here to (continuing refusal P.2d at 831 analysis thus chosen proportionality lawyer’s rect wrongful nature of acknowledge circumstance). overly lenient sanction. an aggravating court has the Because this To summarize: Proportionality C. proper responsibility impose ultimate accurately reflect Finally, censure does not sanction, complaint has no valid Respondent whereby policy proportionality this court’s argument ante. His upping the about patterns matched to similar similar fact rights be violated is process his due is a case of first sanctions.5 Because this on notice of merit. He has been thus without Arizona, majority uses a impression in is- possible suspension since the case, support People Bergner, v. Colorado Further, gave him this court report. sued its public response in the sanction of censure argue point. brief and opportunity attorney’s with a client. sexual misconduct an conduct, knowing Respondent’s light In However, Bergner in the conduct at issue suspend him. should is no doubt we there Bergner par egregious as as here. knowingly, not act argument that he did His single, inappropriate conversa ticipated pro- unaware that the rules because he was tion with sexual connotations. 873 asking his client for sex hibited him from (Colo.1994). result, As a the Colorado services, completely exchange legal public Supreme impose chose to cen Court leniency sim- frivolous. There should be contrast, In involves two sure. Id. impression; a case of first ply because this is separate with two incidents misconduct prettier simply picture painted here is no clients; Respondent so far as to threat went it. first time we have seen it is the because acquiesce if client did not en withdrawal one is a By lessening sanction because this In a more similar to his advances. fail to set an impression, first case of Supreme suspended Court for six Oklahoma doing appropriate disciplinary standard. attorney charged two counts ty days an with so, wrong public the give the bar and the involving separate in misconduct strong should take a message. This court sexually explicit inappropriate stances of is as bad as stand: sexual extortion sought represen language with women who Here, extortion, if not worse. other form of proceedings. ex rel. tation in divorce severely with a deal we should as Miskovsky, 938 P.2d Bar Ass’n v. Oklahoma his clients. attempted prey who Rinella, (Okla.1997); In re 745 see also 174 “cannot be condoned.” Such 375, 375, 677 222 Ill.Dec. 175 Ill.2d Ariz. at 846 P.2d at 831. (1997) suspen (three-year N.E.2d posi lawyer’s use of his sion warranted V.C.J., JONES, concurs. from clients and gain tion to sexual favors commission); testimony disciplinary false Feinman, 225 A.D.2d (six-month sus- (App.Div.1996)

N.Y.S.2d Yet, uniformity knowing perfect lawyers must 5. Because sanctions achieved, recog- long this court has consistency cannot be to maintain an effective internal discipline must in each situation nized that the system, to cases that this court looks enforceable Wines, re case. In tailored for the individual factually us. In re similar to the case before 203, 207, Pappas,

Case Details

Case Name: In Re a Member of the State Bar

Court Name: Arizona Supreme Court

Date Published: Jan 16, 1998

Citation: 951 P.2d 889

Docket Number: SB-96-0064-D. Disc. Comm. Nos. 91-0843 and 91-1522

Court Abbreviation: Ariz.