Matter of Rivkind

hеaring The reason the MS. BARTON: $25,000 with a restitu- committee went RIVKIND, In Matter Morton is stated at tion because Mr. Cardenas member the State Bar hearing session that he committee Arizona, Respondent. $25,000, felt the case was worth which is No. SB-88-0043-D. $20,000 why rejected he had settle- offer, time, he ment and was at that Supreme of Arizona. Court agree- process entering into an Harvey whereby ment with Mr. he was May going pay him restitution $25,000, amount of and since Mr. Carde- $25,000 appropri-

nas felt that was more $20,000, why hearing than is ate that restitution in committee recommended $25,000. the amount of words, they MR. CRUM: other did not take into consideration fact it was a contingency contract and that the client 25,000 have out would not netted $25,000 if de- got he was even manding? not, in They

MS. BARTON: did meeting I I portion attended. during don’t know what was discussed they and whether took their deliberations into consideration at that time. nature or The record does not show the injury. The of- seriousness of the client’s $20,000 evi- of settlement is some fer might claim be worth more dence however, $20,000. was, There a con- than tingent fee of one-third that be entitled to for the settlement would Considering the existence the claim. $20,000 fee, contingent we believe appropriate amount. more

VI. DISPOSITION to the victim ordered Restitution $20,000 interest at the rate amount of accruing Au- per from 25 annum 10% in the gust 1985. the State Bar Costs See are allowed. amount $862 52(a)(7), Sup.Ct.Rules.

Respondent is disbarred. FELDMAN, V.C.J., C.J.,

GORDON, JJ., CORCORAN, and MOELLER and concur.

OPINION Justice,

MOELLER,

JURISDICTION In separate proceedings, charged lawyer dent Morton Rivkind was possession with and for the offense tried pun- He of and cocaine. was convicted of at- ished for the lesser-included offense ques- tempted possession of cocaine. The presented tion separate proceeding is what additional sanction imposed upon capacity should be him his a Bar as member the State of Arizona. Hearing State Arizona Bar Commit- (Committee) tee found Morton Rivkind 8.4(b) (respondent) violated E.R. 57(a), A.R.S., Ariz.R.Sup.Ct., rec- 17A suspended ommended that he be period Bar Arizona State for of twen- months, ty-two commencing on November placed on one be following year suspension. The Disciplinary Commission of the Su- (Commission) preme Court recommended period suspension be for of three commencing years, November Both and counsel for the State three-year suspension Bar contend that a jurisdiction pursuant excessive. We have 53(e), to Rule Ariz.R.Sup.Ct., 17A A.R.S. AND PROCEDURE FACTS January 1986, respondent On was stopped being for a traffic violation. After trying something, observed hide he was searched, police and Phoenix officers milligrams per- found .19 of cocaine on his Respondent charged posses- son. with sion cocaine.

Respondent right jury waived his to a stipu- and a bench trial was conducted on a guilty set He lated of facts. was found attempted cocaine, possession of a narcotic drug, felony. five On class 19,1986, the trial court sentence Rivkind, Phoenix, pro Morton se. placed respondent pro- years on three by Additionally, pursuant State Bar of Arizona L. Tur- A.R.S. Harriet batiоn. Counsel, Cohen, ney, Yigael 13-603(G), Bar re- judge Chief M. trial revoked § Counsel, Phoenix, law, practice Staff Bar re- spondent’s for State license to complied spondent Arizona. with order ceas- ing legal negative. all were As a of its practice that date. of which result that, judge although respon- noted findings, trial the Committee recommended that dent’s the end result of “a conviction was practice “readmitted” cocaine, five-year struggle” or so law, probationary subject one-year ato nothing pro- his the record showed that period.1 performance adversely fessional had been argument, After oral the Commission is- affected. 9, report 1988, July accepting sued its on conviction, we respondent’s Based on the most of Committee’s factual determina- suspension pursuant him placed on interim Commission, like the Although tions. 57(b) 6, Ariz.R.Sup.Ct. to on November Committee, respon- impressed was with thereafter, Shortly respondent, 1986. with recovery it program, dent’s recommended approval Maricopa County Adult suspension years, for that be three Flor- Department, Probation relocated to two, than for retroactive Novem- rather to family supported ida. He himself and his 6, 1986. ber through jobs. unskilled labor various case, respondent In the was Eventually, a law employment he found as early probation granted termination his clerk. 14, 6, 1988, September July on On 1988. Florida, dis- respondent was bar While rights civil restored and his were ciplinary proceedings commencеd. After result, As a this conviction vacated. hearing, Hearing an in Com- absentia on suspension court terminated his interim respondent that mittee recommended 15, 1988, respon- September and reinstated practice law for from the membership in dent to active the State However, 11, January years. three on of Arizona. 1988, found Disciplinary Commission pos- This case is in a somewhat unusual notify properly Bar failed to that State ture, joins respon- the State Bar because respondent of such of the commencement urging adopt the Com- dent this court had proceedings. respondent Because two-year of a sus- mittee’s recommendation incomplete process due to been denied due ‍‌​​​‌​‌​‌​‌‌​‌​​‌‌‌‌‌​‌​‌‌​​​‌‌‌​​‌​‌‌‌‌‌‌​‌​​​​‍years rather the three recom- pension, than process, the Commissionremand- service by the Both the mended Commission. Hearing for ed the case to the Committee Bar and contend that the State proceedings. new serves Committee’s recommendation better hearing on The Committee conducted a discipline. cer- purposes of bar With 15, 1988, April at which several modifications, agree adopt the tain probation colleagues and his officer dent’s recommendation. Committee’s report its The Committee issued testified. 26, im- May 1988. The Committee was ISSUE PRESENTED with rehabilitation pressed restoring nor- his life to and his efforts at appropriate must sanction We decide respondent had com- malcy. It noted and circumstanc- impose under the fаcts im- with plied respects all es of this case. It posed upon him in the criminal case. coop- very had been found DISCUSSION expressed sincere contri- erative and had proceedings, we Sig-‘ past regret behavior. tion fact an “trier of both independent act as that re- nificantly, found the Committee supervisory of our law the exercise longer no involved spondent was . Bar.” Matter responsibility over the State had voluntar- drugs or alcohol and 106, 108, Neville, 708 P.2d Ariz. analyses, all to several urine ily submitted practice (September spent out of Although its recom- Committee worded effectively 1988), "rein- of “readmission” or which would mendation in terms statement,” evidently one-year intended probation- subject him to the reinstate twenty-two-month period. It suspend him for a ary period. years he him for the two then intended to credit attorney. Hoover, (1985). do, however, give rehabilitating an errant goal This to the Ariz. at 745 P.2d at 944. and serious consideration deference here, when, especially the Committee recommendations Pappas, Matter very Ariz. taken considerable and has Commission. (1988). steps.in rehabilitating and Addi as- 768 P.2d substantial gives weight sisting himself. tionally, great court Committee, par findings of the factual cases, considered the In other we have credibility are questions ticularly when Bar Association’s Standards for American Hoover, Matter Ariz. involved. Lawyer Imposing Sanctions [hereinafter Matter (1987); of guideline “ABA Standards ”] as a suitable 267, 134, 136, Ariz. P.2d 269 Zang, 154 741 See, e.g., Matter discipline. imposing in denied, 1067, (1987), 108 cert. 484 U.S. 555, 1335, 545, P.2d Sрear, 160 Ariz. 774 1030, (1988). L.Ed.2d 98 994 S.Ct. (1989) (standards provide a useful 1345 sanction deci- guiding framework for our 57(a)(3), Ariz.R.Sup.Ct., 17A sion). Standards suggest ABA that The provides “lawyer that shall be A.R.S. violated; (b) (a) duty the re- we consider upon the facts con disciplined as warrant state; (c) injury mental to spondent’s any felony.” Under viction ... client; (d) aggravating or any and miti- rule, proof evi of conviction is conclusive 3.0. Standards § ABA gating factors. guilt underlying of the dence offense. The fact that the conviction Violated, Injury Duty Mental State and to does pursuant vacated to A.R.S. 13-907 § Client guilt be not affect conclusiveness of to the order to is unrelated Respondent cause vacate has violated Ariz.R. Matter (E.R. 8.4(b)) See provides, the merits of the conviction. 42 Sup.Ct. which “It Couser, 500, (1979) lawyer 122 Ariz. P.2d 26 professional 596 fоr a to misconduct fulfilling (expungement conviction reflects adverse commit criminal act that lawyer’s terms of is not a defense to disci ly honesty, on the trustworthiness Therefore, plinary proceedings). respects.” the sole lawyer as a in other or fitness discipline to support us is the extent of Respondent issue before broke his oath to and imposed. the laws of the state. Without uphold doubt, places conviction in responsibility Our to determine ability uphold question respect his to and as appropriate in a case such Kinnear, 105 the law. See Matter N.J. responsibility to imposes a concomitant 391, 394-396, 414, (1987). 522 416 A.2d purposes care to to be pay special by to the an Obedience law discipline. object by such served Preston, Matter of important. crucially proceedings punish to is not (Alaska In re Scarna 1, 1980); P.2d 5 lawyer, protect public but vack, 446, 108 Ill.2d 92 Ill.Dec. lawyers. by similar conduct other deter 1, (1985). 485 N.E.2d determining appro “Consequently, Respondent’s drug experimentation priate imposed, to be we should sanction extremely excep mainte the result of focus on such considerations as the was not integrity says He it was not profession of the tional circumstance. nance of the person public, of work but a “miserable eyes protection the stress drugs. impelled try him to incompetent law al life” that from unethical or 1988.) (R.T. Apr. 15, lawyers While this yers, the deterrence of other at question power of self-con unprofessional brings into his engaging frоm conduct.” trol, us does not show Murray, the record before Matter of Ariz. drug (1988). occasion, his addiction On it is also allowed P.2d can, legal practice.2 assist, adversely if affect for us by as we are all special Cor- the record in this filed Justice bound concurrence contains correctly are We believe his concurrence case notes that we cases. coran in this Many negative February he individuals testified wrote results. Since judge they very surprised meetings trial regularly were has attended of both learn that was addicted to Anonymous Alcoholics and Narcotics Anon- drugs. misappropriate He did client ymous. cooperated fully He has with the business, neglect serving funds or client nor did he State Bar of Arizona and is drug usage. involve his clients in his This State Bar Assistance Members (MAC). weighs very heavily factor in our decision. request At the of the State Bar of uniformly paid consid Program Courts have careful Arizona Members Assistance (MAP), eration to the abuse on publi- effect substance he has written article professional practice. an attorney’s Com in an regarding cation his cocaine addiction Scamavack, pare Ill.2d at 485 attempt provide guidance needed (attorney accepted N.E.2d at 2 cocaine warning drug potential to other abusers or client) Diehl, Furthermore, and Matter abusers. has writ- 580, 580-582, (1988) Kan. newspapers magazines ten in and has (respondent possessing convicted of mari given public relating experi- lectures juana employed county attorney) upon lawyers while ence and has and oth- called Disciplinary Proceedings Against illegal To ers who abuse alcohol or substances 196-197, ran, 151 Wis.2d 443 N.W.2d help immediately. to seek The Commission (1989) (attorney arranged to re expressed that heard this case admiration payment portion in ceive cocaine for efforts. The State client) represent Disciplinary submitting fees to step with took the unusual to this Armstrong, Proceedings Against joint respondent court a brief with indicat- (1988) (attor ing respondent fully Wis.2d N.W.2d 208 its is view that rehabil- obtaining ney’s prescription misconduct of Additionally, itated and could be trusted. drug by forgery or fraud did not result in respondent very we note that has been court, harm to client and conduct not related tо cooperative and candid before this practice). very sternly We will deal throughout disciplinary process. law any lawyer neglects his clients with who abusing drugs. Respondent per while was Proportionality Sanction/ haps fortunate to have been discovered be respondent Because State Bar upon impacted

fore his use his clients’ agreement were in that the Commission’s welfare. three-year suspension of a recommendation excessive, was invited the Commission Mitigation/ Aggravation to submit its own brief on the issue. In its aggravating in The main circumstance brief, points the Commission out that under respondent repeatedly vio- this case is that 29(c), Ariz.R.Sup.Ct., former Rule disbar- lated the laws of this state for an extended any ment was аutomatic conviction of period mitiga- of time. If the evidence in felony. In the rule was amended and overwhelming, we would tion were not so discipline felony in cases of convictions is pub- to deal with the permit case-by-case determined on a basis. now excep- lawyer again. lic as a But this is an report, although ac- The Commission’s only case in that has not tional rule, change knowledging the in the stated: everything his contri- done to demonstrate rule is silent on the Comment to “[T]he rehabilitation, actively tion and but also is in change extent of sanction intended ” educating assisting others engaged in standard, new ‘as the facts warrant.’ abuse. who suffer from substance 5, filed Report No. 6-1220 at Commission July 1988. The Commission then con- mitigation we considеr that “it is doubtful that the Court or il- tended that dent has not consumed alcohol departure pre- He intended a radical legal drugs since December 1987. sanction, however.” Id. occasions with vious randomly tested on several underlying plinary crim- suggestions cases which involve to bar counsel con- some excellent cerning procedures in future disci- inal conviction. only if a sale or impose dis- courts disbarment argued Commission that we intended occurred, drugs injury or if in distribution of presumptive sanction barment involved, mitigating client is or if no under involving felony all cases convictions attorney’s is offered on the be- evidence so, the the amended rule. Even Commis- See, e.g., Twohy v. State Bar half. sion refused to recommend disbarment California, 48 Cal.3d Cаl.Rptr. instead, and, particular case recom- (1989) (attorney, 769 P.2d 976 a co- three-year mended a suspension. before, addict, caine twice who Nothing implies in amended Rule 57 comply the orders of the failed to presumption favor of disbarment practiced unlawfully, law court and who involving felony cases convic disbarred); People Young, v. 732 P.2d 1208 tions. must in each tailor the (Colo.1987) (citing Standards ABA Murray, Ariz. at case to its facts. 5.11, court disbarred an who goal P.2d at 4. because the This so engaged in the use of cocaine and was than disciplinary proceedings is different using facility convicted of communication goal proceedings. goal of criminal cocaine); Payne, Matter of to distribute disciplinary proceedings рrotect is to (Ind.1986) (possession N.E.2d 1283 future, punish not to the of cocaine, appear failure to for a client at a cases, protection fender. In certain hearing, payment accepting cocaine as public may permanent not call for disbar disbarment); legal services warrants pre-ordained period ment or for a of sus Moore, (Ind.1983) Matter of 453 N.E.2d 971 pension. The in which the circumstances (prosecutor possessed envelopes who two ‍‌​​​‌​‌​‌​‌‌​‌​​‌‌‌‌‌​‌​‌‌​​​‌‌‌​​‌​‌‌‌‌‌‌​‌​​​​‍subsequent misconduct occurred or efforts seeds, marijuana grams about 750 may at or contrition indicate rehabilitation thirty marijuana plants marijuana and is likely conduct is not to recur and disbarred); Professional that disbarment would be excessive. At Shuminsky, Ethics v. 359 N.W.2d 442 times, remedies, closely other such as a (Iowa 1984) (attorney, con- whose farm supervised probation, might adequately seeds, marijuana, seedlings, tained fertiliz- protect public so that a harsher disci ers, growing plant, instruction books on becpme pline purely would vindictive and etc., indefinitely suspended possi- is with no punitive. Baker v. State Bar months); bility of reinstatement for three of Califor nia, 804, 7, Cal.Rptr. 49 Cal.3d 824 n. 263 Orosz, Bar Ass’n v. Ohio State 5 Ohio 7, 1344, 808 n. 781 P.2d 1354 n. 7 (1983) (attorney St.3d 449 N.E.2d 1310 Jahn, (1989); see Florida Bar v. possession con- convicted of of cocaine and (Fla.1987) (rejecting So.2d an auto spiracy possess cocaine who offered no matic disbarment rule whenever an attor disbarred); Matter mitigation evidence in Attorney see ney felony); Bosserman, convicted оf S.C. S.E.2d of Proctor, v. Grievance Comm’n 309 Md. (1989) (attorney addicted to alcohol 412, 414-415, 418-420, 524 A.2d drugs who committed numerous acts of (1987) (actual culpability respon see disbarred); of misconduct with clients is Annotation, also Narcotics as dent must be considered rather than the Conviction offense). Turpitude Justifying Dis- Crime Moral label of Against barment or Other Action Attor- particular facts and circum- Under (1980). ney, 99 A.L.R.3d 288 case, stances of this we find that disbar- required appropriate. ment is neither nor crime, although possessory A not Standards ABA recom- Section 5.12 of the excusable, reprehensible is less than a disbarment, suspension, not mends involving sale or of nar crime distribution Kinnear, attorney practice 394-396, of law when an know- cotics. 105 N.J. at Cf drugs ingly engages illegal (distribution); use of In re 522 A.2d at 416-17 Chase, sale, distri- Conduct the conduct does not involve the 299 Or. bution, (1985) importation drugs. (attempted posses Further- or 1089-90 more, sion). prepared say after an exhaustive all-states search We are not majority possession of a controlled substance under we have found that the vast all every circumstances and in sessing gram case should one publicly cocaine is necessarily lead to the destruction of a perform censured and ordered to one hun- By token, career. the same we do not rule pro dred hours of bono work because his out disbarment in a purely possessory drug legal practice affected, was not and he case if consideration of all the facts and contrition); showed true Mаtter Orlov- circumstances warrants such a result. sky, (1989) (at- 117 N.J. 564 A.2d 844 torney possessing convicted of cocaine is address here the issue of what discipline days light is most for sixty on the facts attor- of this past, record. In the we have also ney’s cooperation, candidness and rehabili- commended proportionality consistency tation); Winston, Matter 137 A.D.2d imposition Pappas, sanctions. 159 385, (at- (App.Div.1988) N.Y.S.2d 843 This, Ariz. at 768 P.2d at 1171. how torney addict who converted client funds ever, impression is a case of first under the and wrote the suspend- court a bad check is because, amended rules in Arizona for the years, ed three retroactive to interim sus- time, first who pension, light of substantial rehabilita- possessory felony, convicted of a tion including lecturing against effоrts drug progress where his use did not to the abuse). point impacting affecting his work.3 On the facts of this we are con- Nonetheless, Commission, bar counsel protecting vinced that public does not provided us large with a require respondent’s disbarment. com- number of analogous ‍‌​​​‌​‌​‌​‌‌​‌​​‌‌‌‌‌​‌​‌‌​​​‌‌‌​​‌​‌‌‌‌‌‌​‌​​​​‍somewhat cases from pliance orders, earlier court jurisdictions. other We have also conduct practice dent did law from ed our own research. We found that 19,1986, uniformly impressed September 15, courts are During an attor until ney’s sincere at efforts rehabilitation and this through time he went financial and contrition, especially if such efforts demon “Although emotional tribulation. we de- legal strate that system and the disciplinary proceedings nonpuni- scribe unlikely are to suffer a risk of future mis tive, they anything we realize that are but See, Nadrich, conduct. e.g., In re Hoover, from a standpoint.” 271, 218, Cal.Rptr. Cal.3d 243 747 P.2d 1146 196, Ariz. at 745 P.2d at 943. We (1988) (attorney possessed who and sold give believe it fair respondent to credit for suspended years LSD is five actual —one spent the time suspension. on See Mur- years probation light and four of exten —in ray, 159 Ariz. at 767 P.2d at 4. efforts); sive rehabilitation The Florida light compelling rehabilitation Weintraub, (Fla.1988) Bar v. 528 So.2d 367 evidence in any suspen- further (attorney purchasing convicted of and deliv merely punitive sion would be and vindic- ering girl cocaine to a friend is tive. We seek to create an incentive to ninety days years probation for and two attorneys reform and who rehabilitate light significant steps); of remedial Scar themselves. Kersey, See In re 520 A.2d navack, 460-461, 108 Ill.2d at 485 N.E.2d (D.C.App.1987). We echo another (attorney, accepted at 3 who cocaine from a supreme respon- court’s sentiments about a possession, and client was convicted of dent similar to this one: “It is difficult to contrition, censured because of sincere record, imagine petitioner what more could have competent professional clean and ism); Smoot, sincerity Matter 243 Kan. done to demonstrate the of his of (1988) (attorney pos- positive change P.2d 327 convicted of commitment to and rehabil- Diettrich, probation, again 3. Matter 161 Ariz. conditions for disbarred of (1989), Lehman, particularly helpful. Re- him. In Matter 146 Ariz. of (1985), spondent victions, application in Diettrich had three con- P.2d we denied an for by person he was disbarred under former readmission a for felo- disbarred and 32-267, (providing ny possessing §§ A.R.S. 32-272 for disbar- of cocaine. Since Lehman was rules, upon felony) (repealed ment conviction of a decided under the former and the motion 1, 1985). explanation, helpful effective Jan. We reinstated Diettrich was denied without it is not comply proceeding. in 1988. When he failed to with the in this in Rule Nadrich, profession set forth at itation.” 44 Cal.3d 1149. Cal.Rptr. at 747 P.2d at Ariz.R.S.Ct. super- Respondent 4. shall also be two-year sus- We therefore believe that a “sobriety by with whom vised monitor” retroactive to

pension mutually agreeable revoked, enter into a is ade- will the date his license was AA and NA in this for attendance at quate сontract of meetings, The also recom- with a minimum attendance matter.4 Committee respondent pro- programs on placed meeting mended that of each of these one period of Our bation for a twelve months. shall be per sobriety monitor week. up to permit a term of probationary rules reporting any breach of responsible for years, appropri- two with extensions when Bar. sobriety contract to the State pro- place respondent therefore ate. We shall his member- Respondent continue years, of two bation for maximum term Assistance Commit- ship the Members subject pursuant to renewal and shall make himself available tee A.R.S., 52(a)(6),Ariz.R.Sup.Ct., effective the Director request reasоnable of date of the in this case. as of the mandate Program. Members Assistance approve following conditions Respondent pay all costs that 5. shall Hear- proposed by terms of owing due the State are or will be ing Committee: proceedings as a result of Bar these Respondent complete- 1. shall abstain probation prior to termi- drug. ly any illegal from the use probation. nation Respondent body 2. shall submit Respondent keep his 6. shall books tests, drawn, not exceed- randomly fluid account, account, ledger, books or trust ing per two month in the discretion inspection open by files for the State Director, request the MAP at the designated probation its of Arizona or person designated by Director or supervisоr. Client shall remain con- files Said be test- body Director. fluids shall by the provided fidential to the extent illegal drugs non-prescribed ed Arizona Rules Professional Conduct. drugs testing and such conduct- shall be fails In the event that eight or ed within hours of the Director’s foregoing con- comply with designate’s Upon contact respondent. is re- ditions and information thereof split request, sample furnished will be Bar, shall ceived the State bar counsel designate. The test hearing a Notice file with the State results shall be furnished to Non-compliance. hearing Com- All testing Bar. said shall be at hearing at mittee shall conduct a expense. dent’s practicable in no event earliest date but Respondent “prac- 3. shall have as a said days receipt of later than after monitor,” agree will tice who determine a condition notice to whether writing supervise practice, in his law and, if of has been breached load, ser- quality monitor his case so, appropriate sanc- to recommend an rendered his trust account. vices tion therefor. agree Respondent’s practice monitor will allegation In the event there is an to the manifesta- 8. report State Bar any of have been relapse, or con- that these terms tions of unusual behavior breached, thereof falling proof the burden of below minimum standards duct case.” persuaded by particular of the are not the Commission’s to the circumstances 4. We Hoover, objection improperly con- that the Committee P.2d 161 Ariz. Matter of disciplinary proceedings a rein- (1989); Hoover, into verted at see 155 Ariz. proceeding a reinstatement statement without proper (holding it was 745 P.2d at 944 72, Ariz.R.Sup.Ct., application pursuant Rule pro- disciplinary a the Committee convert Although Commission is techni- 17AA.R.S. pro- ceeding disability a reinstatement into correct, cally disciplinary proceedings sub- in ceeding compliance 72 and with Rules without The Commit- stance ‍‌​​​‌​‌​‌​‌‌​‌​​‌‌‌‌‌​‌​‌‌​​​‌‌‌​​‌​‌‌‌‌‌‌​‌​​​​‍must dominate over form. 73). authority just remedy "the a tee has to fashion upon tion, shall be prove the State 13-907(A), pending see A.R.S. § non-compliance by preponderance of disciplinary proceeding “will not automati- the evidence. cally 57(d). Indeed, terminate.” Rule

happened here, thе disciplinary process regardless disposition CONCLUSION continues judgment, and the disciplinary adopt the Commission’srecommenda- disposition “shall be determined on the ba- tion as Respondent’s modified. two-year 57(d). sis of the available evidence.” Rule suspension is effective as of the date of the 57(a) I wording believe the combined in rule original revocation, order of discipline imposed shall be “as the Respondent’s two-year probation on 57(d) facts warrant” and in rule that the the terms and specified conditions herein disposition shall be based on “the available shall commence as of the date of the man- imposes duty evidence” on bar counsel to Respondent date this case. pay shall investigate present complete more evi- $1,032.80 State Bar of Arizona for ex- dence of the facts penses underly- involved proceedings. of these

ing criminal offense than copy a mere GORDON, C.J., FELDMAN, V.C.J., judgment formal criminal of conviction. CAMERON, J., concur. sketchy disciplinary record in this case leaves respondent’s me troubled about CORCORAN, Justice, specially potential involvement with a client concurring: drug usage. reasons, majority “He I reluctantly agree majority with the did misappropriate client funds or ne- that, given the limited record business, glect client nor did he involve available to this court in this his clients in his usage. This factor majority imposes weighs very heavily in our decision.” At appropriate. dent is I separately write be- However, respon- 791 P.2d at 1041. I cаuse do not believe that bar counsel dent admitted before this court that one of investigated presented this case in con- the codefendants with whom he was arrest- formity with the required by standards our possession ed for of cocaine was a former rules. Although client. the limited record before 57(a), Court, Supreme Rules of the us does not respondent’s drug indicate that provides lawyer that a disciplined shall be clients, representation abuse affected his conviction of a “as the facts my it creates a doubt mind about the warrant.” provides That same rule extent of his involvement with a client copy judgment certified of conviction illegal drug activities. be transmitted to the State Bar. Rule 57(a)(2). proof This reviewing transcript сonviction consti- testimony tutes guilt “conclusive evidence of Committee, before the I find no evidence crime for which in any discipline convicted presented by poten- bar counsel about this proceeding based on the conviction.” Rule tial involvement with a client. Bar counsel 57(a)(3). Thus, bar counsel need not reliti- presented copy a certified gate the commission of the criminal offense conviction, Committee, and told the “the disciplinary proceeding; however, today sole issue is the determination of the that does not mean the State Bar’s investi- discipline; effect, extent of this is a gation of the relevant facts in order to mitigation hearing." Bar counsel indi- impose recommend what only may cаted that “the witness that we stop receipt should with the of the criminal have that would be classified as a State judgment. witness, perhaps joint-witness, a

When, [Membership] ... Director of the as in this As- order for inter- [the] Program.” suspension im has sistance Most of the exhibits been vacated because a by stipulation parties conviction has been admitted con- set aside completion proba- successful of criminal cern evidence of rehabilitative proba- Okay, I had informed the crime, A not factual circum- efforts after the respect that I to that tion officer with surrounding the actual offense. stances that, years her for before had known testimony respondent gave be- only trouble, gotten into she had ... regarding the Hearing fоre her, me, represent begged me to hired was of the criminal offense circumstances bono, I But I did. pro ... which ... as follows: my to the court that want it to be clear small people I with two other and a was particular person relationship with that purchased, of cocaine had been amount that. years or seven before was ... six police stopped by I a Phoenix and was drug you to be a Q she known to Was Buckeye Road on a traffic officer at that time? addict violation, eventually we were state, User, user, yes. drug I would A searched, milligrams was found my possession. Q get involved that How did she only us of evidence before night? a client is potential dent’s involvement with just A were in contact. 20, respondent’s presentencе re- Exhibit Q bring to Mr. you Did her Solano following port, contains the summa- which drugs? you get with ry statement about the crime: of his together. A in the car We were attorney, the advice of his Under argument Upon being questioned at oral preferred stated that he not to defendant about re- about what the record indicated arrest. specific discuss the details of his in his spondent’s involvement with a client like the aware that He would Court use, drug responded bar counsel as follows: Pickering over he had known Ms. Honor, Well, specifically, Your that one years although and that she men- seven acquain- been an woman involved had attorney, that he was her that he tioned rep- prior tance of Mr. Rivkind’s to that past only represented her in the as a reрresentation, and after that resentation have mon- favor to her when she did not but the evidence does not indicate that ey hire someone else. He that she felt engaged Mr. Rivkind activities was at the time that this off clients, purchased that he occurred and wanted to make it clear clients, or sold to clients. That’s not in encouraged that he never others to use record, sir. particularly prob- a drugs, since had added.) (Emphasis lem with them himself. discern, however, I from easi- am able to added.) (Emphasis ly obtainable documents of record questioned at oral When was regarding respondent’s and the conviction in- argument before this court about the codefendants, two convictions of his client, he evasive volvement of his was respondent for the woman arrested with professional relationship with his about possession only a for- of cocaine was not codefendant: client, was, mer but at the time is, Q My question you hap- what arrest, 3-year probation imposed still on pened night you were arrested? 5, 1984, for the conviction for on December you And how did Who were with? Moreover, represented her. which he had you? they come to be with present she was so when persons with me was Pick- fact,

A One of her “in- sentenced. as a result of ap- ering, person I had known for night with her on the volvement” proximately years. arrest, undesignated previous her of their conviction, designated felony

offense was subsequently of a she was convicted and Q A former client? Howevеr, bar counsel failed offense. A Well.... any attention of of the bring to this to the indicates____ they present- three tribunals before which Q probation report us, point ed this case. I raise this not ‍‌​​​‌​‌​‌​‌‌​‌​​‌‌‌‌‌​‌​‌‌​​​‌‌‌​​‌​‌‌‌‌‌‌​‌​​​​‍to before I would have found that involve- produce aggravating another factor outside extremely aggravating ment to be an cir- scope disciplinary the of the record before See, Toran, e.g., cumstance. In re court, need this but indicate the for bar (1989) (attor- Wis.2d 443 N.W.2d 927 fully investigate counsel to the facts and arranged ney to receive cocaine from client present regarding underlying evidence the fees); partial in payment People v. criminal offense. Bar counsel must do Smith, (Colo.1989)(after rep- 778 P.2d 685 simply produce copy more than of the client, resenting attorney purchased co- judgment conducting of conviction when police caine from client allowed 57(d). I disciplinary proceeding under rule drug charges record conversation to avoid result, doing may in realize that so future himself). against filed I such believe that cases, filing in the of additional counts activity involvement in criminal with a misconduct, may necessary but this client, by disciplinary if evidenced the bar, clients, protect public, and the us, record have before would warranted bench. discipline substantially more serious than counsel, repre- imposed

I believe that bar as the here. Arizona, sentative of the State Bar of has a majority applied has ABA Standard duty investigate the full factual record 5.12, suspension which recommends when respondent’s of a criminal conviction. See attorney’s does not criminal conduct Abel, (1989). Lawyers R. 246-47 American aggravating include the elements contained I believe “the available evidence” before However, in Standard 5.11. Standard committee, commission, this 5.11 recommends disbarment when the minimum, include, court should at a attempt criminal conduct involves “an only copy judgment the certified conspiracy of another to com- or solicitation conviction, following also the relevant but offenses, any mit” of the named which respondent’s file documents from criminal or distribution of controlled include sale background of the factual evidence If record had established substances. this (1) findings respondent’s misconduct: respondent involved his client in ob- by made of fact and conclusions of law taining illegal drugs, ap- I his would have ruling respondent’s in motion trial court plied the more harsh disbarment (2) suppress; the decision of the court of by recommended 5.11. Standard appeals upon respondent’s appeal from his cases, conviction; (3) the real issue presentence report sub- As in all probation department is not whether this has suffered mitted codefendants; respondent’s files enough criminal or whether the recommended sanc- (4) transcripts regarding excessive, available protect but how to tions are best about the circum- respondent’s statements public from future harm and maintain arrest, the statements of stances of the legal profession. I be- respect its for the and other witnesses. codefendants protected from at- lieve the is best torneys who involve their clients crime However, did not because bar counsel See, e.g., by the sanction of disbarment. this extent and investigate the facts to Beasley, 351 So.2d The Florida Bar v. of client involve- present pertinent evidence (Fla.1977). offense, reluctantly I criminal ment this agree majority must a client”

dent’s “involvement with illegal drug activity is not established record, evidence limited which contains mitigating circumstances re- only efforts, oc- which garding his rehabilitative However, only after his conviction. curred with his client if involvement the records in the could be inferred from cases, if records wére those

Case Details

Case Name: Matter of Rivkind

Court Name: Arizona Supreme Court

Date Published: May 10, 1990

Citation: 791 P.2d 1037

Docket Number: SB-88-0043-D

Court Abbreviation: Ariz.