In the Matter of Michael E. Isler ( 2014 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
IN THE MATTER OF A MEMBER
OF THE STATE BAR OF ARIZONA
MICHAEL E. ISLER
ATTORNEY NO. 20847
No. SB 13-0026-AP
Filed January 13, 2014
Appeal of Hearing Panel Report and Order Imposing Sanctions from the
Office of the Presiding Disciplinary Judge
No. PDJ20129083
SUSPENSION ORDERED
COUNSEL:
Ralph W. Adams, Karen A. Clark, Adams & Clark, PC, for Respondent
Craig D. Henley, State Bar of Arizona, for State Bar of Arizona
JUSTICE TIMMER authored the memorandum decision of the Court, in
which CHIEF JUSTICE BERCH, VICE CHIEF JUSTICE BALES, JUSTICE
PELANDER, and JUSTICE BRUTINEL joined.
JUSTICE TIMMER, memorandum decision of the Court:
¶1 Michael E. Isler appeals from a disciplinary panel’s report
and order disbarring him. Although the record supports the panel’s
determination that Isler violated several Arizona Rules of Professional
Conduct (“ERs”), the panel’s findings concerning other ERs are
unsupported. Accordingly, and in light of substantial mitigation Isler
presented, we reduce his sanction to a two-year suspension from the
practice of law.
BACKGROUND
¶2 In August 2012, the State Bar filed an eight-count
disciplinary complaint against Isler, alleging professional misconduct
IN RE MICHAEL E. ISLER
Memorandum Decision of the Court
concerning his representation of seven clients during 2010–2012.
Following a three-day hearing, a disciplinary panel found that he had
violated several ERs, as set forth in Arizona Supreme Court Rule 42, and
ordered Isler disbarred. He timely appealed, and we have jurisdiction
pursuant to Article 3 and Article 6, Sections 1, 5(3), and 5(4) of the Arizona
Constitution and Arizona Supreme Court Rule 59(a).
DISCUSSION
I. Factual Findings
¶3 The State Bar must prove its allegations by clear and
convincing evidence. Ariz. R. Sup. Ct. 58(j)(3). We accept the panel’s
factual findings unless they are clearly erroneous. In re Aubuchon, 233
Ariz. 62, 67 ¶ 21, 309 P.3d 886, 891 (2013). Findings are clearly erroneous
if they are not supported by reasonable evidence. In re Van Dox, 214 Ariz.
300, 304 ¶ 15, 152 P.3d 1183, 1187 (2007).
A. Counts One and Four
¶4 Client M.B. retained Isler to represent her in post-decree
modification proceedings. Shortly thereafter, M.B. asked Isler how to
obtain an order of protection against her ex-husband. Isler advised that
she could petition any court for relief, and she thereafter obtained a
protective order in justice court. Her ex-husband allegedly violated the
order, and the state brought a criminal charge against him. On the ex-
husband’s motion in the family court matter, the superior court dismissed
the protective order ab initio as “jurisdictionally invalid” pursuant to
former A.R.S. § 13-3602(O) (now § 13-3602(P)).
¶5 The hearing panel found that Isler violated ERs 3.1, 4.4, and
8.4(d) by advising M.B. she could obtain a protective order from the
justice court and by failing to attend the hearing on the ex-husband’s
motion. 1 These findings are clearly erroneous.
1 The panel also cited evidence relating to Isler’s conflict of interest in
continuing to represent M.B. but did not explain how this continued
representation violated the ERs. Nevertheless, the conflict-of-interest
evidence cannot support a finding that Isler committed professional
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Memorandum Decision of the Court
¶6 ER 3.1 prohibits a lawyer from bringing or defending a non-
meritorious proceeding, and ER 4.4 prohibits a lawyer from using means
that “have no substantial purpose other than to embarrass, delay, or
burden any other person.” Isler, however, neither filed the petition
seeking a protective order nor defended against its dismissal. Moreover,
no evidence shows that Isler sought to embarrass, delay, or burden the ex-
husband by telling M.B. where she could obtain a protective order.
¶7 ER 8.4(d) prohibits a lawyer from engaging in conduct that
is “prejudicial to the administration of justice.” The State Bar argues that
Isler prejudiced the administration of justice by advising his client to
obtain a protective order in a court that lacked jurisdiction, which resulted
in issuance of an invalid order and an eventual criminal charge against J.B.
We disagree. Although the superior court had “exclusive jurisdiction”
over M.B.’s petition in light of the pending family law matter, see A.R.S. §
13-3602(P); Ariz. R. Protect. Ord. P. 4(A)(1), the justice court order was
valid. See A.R.S. § 13-3602(P) (“No order of protection shall be invalid or
determined to be ineffective merely because it was issued by a lower court
at a time when an action for maternity or paternity, annulment, legal
separation or dissolution of marriage was pending in a higher court.”).
Consequently, contrary to the superior court’s ruling, Isler’s advice to
M.B. did not result in issuance of an invalid order.
¶8 Finally, none of the ERs enumerated by the panel applies to
Isler’s failure to appear at the hearing on the motion to dismiss the
protective order. Although his failure to appear could evidence a lack of
diligence in violation of ER 1.3, as charged in the complaint, the panel did
not find a violation of this ER, and the State Bar does not challenge this
decision.
¶9 For all these reasons, we reject the panel’s determination that
Isler committed professional misconduct by violating ERs 3.1, 4.4, and
8.4(d), as charged in counts one and four.
misconduct because the Bar’s complaint did not allege that this conduct
violated any ERs.
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Memorandum Decision of the Court
B. Count Two
¶10 Client T.B. retained Isler to represent him in a custody
dispute. Their fee agreement capped attorney’s fees at $3,500 if the case
proceeded to trial. T.B. paid Isler $3,950 in three installments before
ultimately terminating the representation before trial. After T.B. initiated
fee arbitration, Isler voluntarily refunded $950.
¶11 ER 1.5 prohibits a lawyer from charging or collecting an
unreasonable fee. A lawyer may violate ER 1.5 by charging fees that
exceed an agreed-upon fee even if those fees might have been deemed
reasonable absent the agreement. See In re Burns, 139 Ariz. 487, 491, 679
P.2d 510, 514 (1984) (applying the predecessor to ER 1.5). T.B. testified
that he made three payments as requested by Isler, for a total of $3,950.
This amount exceeds the amount contractually agreed to by $450.
Additionally, even though Isler eventually acknowledged the
overpayment and agreed to refund it “immediately,” he waited
approximately five months to do so. Based on this evidence alone, the
panel justifiably found that Isler charged and collected an unreasonable
fee (that is, $3,950 for work he had agreed to do for a capped fee of $3,500).
¶12 We accept the panel’s determination that Isler committed
professional misconduct by violating ER 1.5.
C. Count Three
¶13 On May 4, 2011, professional counselor F.A. retained Isler to
represent her before the Arizona Board of Behavioral Health Examiners
(the “Board”) regarding a complaint against her professional counseling
license. F.A. directed Isler to submit a written acceptance of the Board’s
invitation to proceed by formal interview rather than formal hearing. Isler
did not do so, and the matter proceeded to a formal hearing on May 31.
¶14 At the start of the hearing, Isler moved to continue it,
explaining he had expected the matter to proceed as a formal interview,
he had only been brought into the case the prior week, and he had not had
sufficient time to prepare. As the Board debated the motion, Isler stated
he had a prior commitment and left the hearing, leaving F.A. to represent
herself. The Board then denied the motion. After a four-hour hearing, the
Board placed F.A.’s license on probation.
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IN RE MICHAEL E. ISLER
Memorandum Decision of the Court
¶15 The panel found that Isler violated ERs 1.1, 1.2, and 1.3 by
failing to take action to obtain a formal interview and by abandoning F.A.
at the hearing. It further found that Isler violated ERs 4.1 and 8.4(c) by
falsely telling the Board that he had been retained only the week before.
¶16 Isler argues that the panel made clearly erroneous findings
about when F.A. retained him and whether she directed him to request a
formal interview. F.A.’s testimony, however, supports the panel’s
findings. We defer to the panel’s determination that she was credible. See
State ex rel. La Sota v. Arizona Licensed Beverage Ass’n, 128 Ariz. 515, 521, 627
P.2d 666, 672 (1981) (“The trial judge has authority to reject the testimony
of an interested witness and to determine credibility.”).
¶17 Next, Isler contends that the panel clearly erred by finding
that he was not required to leave the Board hearing to attend a hearing in
Pinal County. We disagree. A review hearing in the Pinal County matter
had been scheduled for May 31 after the parties filed a notice of settlement
in January stating that a signed stipulation would follow. But a minute
entry issued on April 4, 2011, noted that the stipulation had been filed
and, therefore, “no further proceedings are necessary; any hearing set is
vacated; and, the file is now closed for administrative purposes.” That
minute entry was sent to Isler. Although the court issued a minute entry
on May 31 that again vacated the hearing due to the settlement, in light of
the April minute entry, the panel was justified in finding that the court
had already vacated the hearing. See In re Estate of Pousner, 193 Ariz. 574,
579 ¶ 13, 975 P.2d 704, 709 (1999) (“In reviewing a trial court’s findings of
fact, we do not reweigh conflicting evidence . . . .”).
¶18 We nonetheless agree with Isler that the panel made two
clearly erroneous findings. First, the panel incorrectly found that F.A.
learned of the Board hearing time from Isler. The record instead reflects
that she testified that she learned of the 10 a.m. starting time from a Board
letter, and a Board representative had told her to arrive by 9 a.m. Second,
the panel erroneously found that “Isler testified he had [F.A.] sign a fee
agreement” and then rejected that testimony as “not credible.” In fact,
Isler testified that although he presented F.A. with a fee agreement, she
refused to sign it. These errors are harmless, however, because how F.A.
learned of the hearing and whether she signed a fee agreement are
immaterial to the identified violations.
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IN RE MICHAEL E. ISLER
Memorandum Decision of the Court
¶19 We accept the panel’s determination that Isler committed
professional misconduct by violating ERs 1.1, 1.2, 1.3, 4.1, and 8.4(c).
D. Count Five
¶20 On July 6, 2011, E.L. paid Isler a $1,500 flat fee to draft a
special needs trust for her disabled adult daughter, L.L., and to determine
whether L.L. could obtain additional child support. The panel found that
Isler violated ERs 1.3, 1.4, 1.5(a), 1.5(b), and 1.16 during the representation.
Isler argues that the panel made clearly erroneous findings concerning
ERs 1.3 and 1.5(a).
¶21 The panel erred by finding that Isler violated ER 1.3 by
failing to timely prepare a petition to modify child support on L.L.’s
behalf. After meeting with E.L., Isler initially researched the special needs
trust matter, which E.L. said was her priority. After concluding he was
unqualified to draft the trust, he investigated the child support issue,
drafted the petition, and sent it to L.L. for signature on August 29 before
ever speaking with her. The record does not reflect any time constraints
for filing the petition or that L.L. wanted Isler to proceed on her behalf.
Indeed, L.L. did not respond to Isler’s request for signature or his mid-
September request for direction. In light of this evidence, although Isler
could have prepared the petition more promptly, the State Bar did not
prove by clear and convincing evidence that he did not act with
“reasonable diligence and promptness” in preparing it.
¶22 The record supports the panel’s finding that Isler violated
ER 1.5(a) by charging an unreasonable fee. The panel accepted E.L.’s
testimony that Isler had charged her $1,250 for the special needs trust and
$250 for the child support modification petition. Once Isler knew he could
not handle the special needs trust, he should have informed his client and
refunded the $1,250. Instead, he consumed most of the flat fee on the
child support matter, refunding only $412.50 when E.L. terminated his
services upon learning he could not prepare the trust.
¶23 We accept the panel’s determination that Isler committed
professional misconduct by violating ERs 1.4, 1.5(a), 1.5(b), and 1.16. We
reject its determination that Isler violated ER 1.3.
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IN RE MICHAEL E. ISLER
Memorandum Decision of the Court
E. Count Six
¶24 On June 24, 2010, client M.J. retained Isler for a flat fee of
$1,200 to petition the court for grandparent visitation. Five days later,
Isler petitioned for visitation but did not request a hearing. Isler served
the father but was never able to serve the mother, and the petition
languished.
¶25 On March 22, 2011, M.J. wrote Isler that she wanted to drop
the petition and obtain a refund of the unused portion of her fee unless
Isler had secured a hearing date. Isler responded by filing a motion for an
expedited hearing. M.J. declined to proceed and continued to press for a
refund. On July 21, Isler sent M.J. a breakdown of his costs and services
on an hourly-rate basis, which showed $1,394.50 incurred. Isler wrote that
he “waived” the amount in excess of $1,200 because of the flat fee
agreement, and concluded by stating that she owed nothing. After M.J.
objected, Isler refunded $400 on August 29.
¶26 The panel found that Isler violated ERs 1.3, 1.4, 1.5, 1.16(d),
and 8.4(c). Isler challenges the panel’s findings concerning ERs 1.3, 1.5,
and 8.4(c).
¶27 The record supports the panel’s findings that Isler violated
ERs 1.3 and 8.4(c) by failing to act with reasonable diligence and
promptness in representing M.J. and by misrepresenting the case status to
her. Isler argues that his failure to promptly request a hearing on the
petition was excusable because the mother was avoiding service. But the
court granted Isler leave on September 8, 2010, to serve the mother by
alternate means of service. Although Isler unsuccessfully attempted one
means, he failed to pursue other means or to return to the court for
direction. Additionally, Isler falsely told M.J. twice that he had requested
a hearing.
¶28 We reject the panel’s determination that Isler violated ER 1.5
by charging the client an unreasonable fee contrary to the terms of the fee
agreement. Isler did not charge M.J. more than the flat fee, and he
eventually refunded $400. Although he did not promptly refund this
money, his lack of diligence does not make the fee amount unreasonable,
as the State Bar argues. After deducting costs and making the refund,
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Isler retained $368 for 3.85 hours of work. This was not an unreasonable
fee.
¶29 We also reject the panel’s finding that Isler violated ER 8.4(c)
by misrepresenting the terms of the fee agreement. The agreement
provided that if M.J. terminated Isler’s services, she “may be entitled to a
refund of all or part of the flat fee based on the value of the legal services
performed prior to termination.” The July 21 bill did not seek to alter the
terms of the fee agreement. Rather, it explained the value of Isler’s
services by setting forth his costs ($432) and charges for services based on
an hourly rate (3.85 hours at $250 per hour). Although Isler’s statement
that he “waived” the amount in excess of the flat fee was inartful, it was
not misleading.
¶30 We accept the panel’s determination that Isler committed
professional misconduct by violating ERs 1.3, 1.4, and 1.16(d). We also
accept the finding that Isler violated ER 8.4(c) by misrepresenting the
status of the petition to M.J., but we reject the finding that he violated this
ER by misrepresenting the terms of the fee agreement. We reject the
panel’s determination that Isler violated ER 1.5.
F. Count Seven
¶31 Client A.L. hired Isler in March 2011 to obtain a post-decree
modification of child support and parenting time. Isler filed a petition for
mediation on May 5. When mediation proved unsuccessful, he filed a
petition to modify parenting time and child support on August 25 and
served the father on December 21.
¶32 The court scheduled a resolution management conference
for June 28, 2012, but continued it at Isler’s request. On June 26 or 27, Isler
emailed A.L. about the continuance. She terminated his services and went
to court on June 28 because she did not understand what a “continuance”
meant. The father also appeared and the resolution management
conference proceeded. After subsequent evaluations ordered by the court,
A.L. temporarily lost custody of her children.
¶33 The panel did not err by finding that Isler violated ER 1.3 by
failing to promptly file the petition to modify parenting time and child
support. Isler argues that the petition could not have been filed until the
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parties participated in mediation. The mediation was completed,
however, by late June 2011. Isler offers no explanation for taking two
months to prepare and file a two-page petition.
¶34 The record also supports the panel’s finding that Isler
violated ER 1.4 by failing to keep A.L. reasonably informed. A.L. testified
that communication with Isler was “a problem” and she initiated contact
“99 percent” of the time to learn what was transpiring in her case. He did
not return voicemail messages and spoke with A.L. only three times
during the fifteen-month representation. In one email, A.L. said she
“[had] been trying to get a hold of [Isler] to see what is going on” and
expressed concern that she “[had not] heard from [him].” She learned of
the resolution management conference from the court rather than Isler,
and she did not hear from Isler for “several months” before the conference
until Isler told her about the continuance.
¶35 We reject the panel’s determination that Isler violated ER
8.4(d) by failing to tell A.L. that the court had continued the June 28, 2012
conference and by failing to appear. A.L. testified that Isler did tell her
about the continuance before June 28, but she attended because she was
unsure what a continuance entailed. Although the court explained the
continuance on June 28, A.L. and the father elected to proceed that day. In
light of the continuance order, Isler had no obligation to appear on June 28
and did not abandon A.L. to represent herself. Finally, the panel
incorrectly found that A.L. “lost custody of her children and suffered
enormously as a result” of her pro per appearance at the conference. A.L.
chose to proceed without counsel and lost custody temporarily following
the court’s examination and assessment of court-ordered evaluations of
the parents and children.
¶36 We accept the panel’s determination that Isler committed
professional misconduct by violating ERs 1.3 and 1.4. We reject the
panel’s determination that Isler violated ER 8.4(d).
G. Count Eight
¶37 Client M.M. retained Isler to petition the superior court to
enforce a parenting-time agreement. While the petition was pending,
M.M. told Isler she had temporarily relocated to Florida. Before a
scheduled hearing on the petition, Isler settled the dispute without M.M.’s
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Memorandum Decision of the Court
consent. After M.M. refused to sign a stipulation reflecting the settlement,
Isler filed the stipulation, which bore only the father’s signature, and then
moved to withdraw, misrepresenting to the court that M.M. had moved to
an unknown address in Florida and had not responded to his telephone
calls and emails.
¶38 The panel found that Isler violated ERs 1.2, 1.3, 1.4, 1.16, 3.2,
3.3, and 8.4(d). Isler argues that the findings concerning M.M.’s relocation
to Florida and her lack of agreement to settle the case are unsupported by
the evidence. Although evidence conflicted, M.M.’s testimony justifies the
panel’s findings. We accept the panel’s determination that Isler violated
the above-listed ERs.
II. Sanction Imposed
¶39 Isler argues that he should not be disbarred in light of the
panel’s factual errors and the existence of significant mitigation evidence.
We review the imposed sanction de novo. In re Alexander, 232 Ariz. 1, 13
¶ 48, 300 P.3d 536, 548 (2013).
¶40 We determine disciplinary sanctions in accordance with the
American Bar Association Standards for Imposing Lawyer Sanctions. Ariz. R.
Sup. Ct. 58(k). Following these standards, the panel correctly identified
disbarment as the presumptive sanction. “The sanction to be imposed,
however, requires consideration of any pertinent aggravating and
mitigating factors.” In re Alexander, 232 Ariz. at 14 ¶ 57, 300 P.3d at 549.
¶41 After considering the aggravating and mitigating factors, we
conclude that disbarment is too severe a sanction. While Isler was
representing the clients discussed in this decision, he and his family were
reeling from emotional and financial issues caused by his wife’s severe
mental health issues. While these events do not excuse Isler’s misconduct,
they constitute significant mitigation. “[T]he primary objectives of lawyer
discipline are (1) to protect the public and the courts and (2) to deter the
[disciplined] attorney and others from engaging in the same or similar
misconduct. Id. at 15 ¶ 63, 300 P.3d at 550 (alteration in original) (citation
and internal quotation marks omitted). Disbarment is not necessary in
this case to protect the public and courts or to deter Isler and other
lawyers from engaging in similar misconduct. Notably, the State Bar
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Memorandum Decision of the Court
recommended a two-year suspension, and we agree. A two-year
suspension is an appropriate sanction.
CONCLUSION
¶42 Isler committed professional misconduct by violating several
ERs, as set forth in this decision. We impose a sanction of a two-year
suspension from the practice of law, effective May 31, 2013.
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