In the Matter of Donald H Smith ( 2020 )

SUPREME COURT OF ARIZONA
In the Matter of a Member of the ) Arizona Supreme Court
State Bar of Arizona ) No. SB-19-0064-AP
)
DONALD H. SMITH, ) Office of the Presiding
Attorney No. 10462 ) Disciplinary Judge
) No. PDJ20199016
Respondent. )
__________________________________) FILED 05/28/2020
DECISION ORDER
Pursuant to Rule 59, Rules of the Supreme Court, Respondent
Donald H. Smith appealed the hearing panel’s decision and sanction of
disbarment. The Court has considered the parties’ briefs and the
record in this matter.
In disciplinary appeals, we accept the panel’s factual findings
unless they are not supported by reasonable evidence and are clearly
erroneous. In re Alexander, 232 Ariz. 1, 5 ¶ 11 (2013). Conclusions
of law are reviewed de novo. Rule 59(j). We review the imposed
sanction de novo as a question of law. In re Isler, 233 Ariz. 534,
541 ¶ 39 (2014).
On appeal, Respondent argues that the Presiding Disciplinary
Judge made a number of erroneous evidentiary rulings. Respondent
also argues that he was denied due process during the proceedings.
Upon review, the Court rejects Respondent’s challenges to the
Presiding Disciplinary Judge’s evidentiary rulings. The Court also
finds that Respondent was not deprived of due process during these
proceedings.
Accordingly, the Court accepts the panel’s findings that
Respondent’s conduct with respect to client McCargar violated ERs
1.4, 1.15(a) and (d), 8.1, 8.4(c), and Rule 43. The Court accepts
the panel’s findings that Respondent’s conduct with respect to client
Hanson violated ERs 1.4, 1.5, 1.15(a) and (d),8.1, 8.4(c), and Rule
43.
As to the sanction, Respondent argues that he should not be
disbarred in light of the significant mitigation evidence. We
determine disciplinary sanctions in accordance with the American Bar
Association Standards for Imposing Lawyer Sanctions. Rule 58(k).
Following these standards, the panel correctly identified disbarment
Arizona Supreme Court No. SB-19-0064-AP
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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.
After considering the aggravating and mitigating factors, we
conclude that disbarment is too severe a sanction. Respondent’s
mitigating evidence was substantial. Respondent has an unblemished
professional career of over 33 years. He also presented evidence of
his good character and reputation in the community. While these
factors do not excuse his conduct, they are significant evidence in
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 (citation and internal quotation
marks omitted). The sanction is not intended to punish the lawyer.
Id. Based on the record in this case, disbarment is not necessary to
protect the public and courts or to deter Respondent and other
lawyers from engaging in similar misconduct. The Court finds that a
suspension of one year is sufficient to satisfy the purposes of
lawyer discipline.
IT IS ORDERED affirming the decision of the hearing panel and
modifying the sanction to reflect a one year suspension.
Justice Gould did not participate in the determination of this
matter.
DATED this 28th day of May, 2020.
______/s/_________________
ROBERT BRUTINEL
Chief Justice
Arizona Supreme Court No. SB-19-0064-AP
Page 3 of 3
TO:
Donald H Smith
Rebecca Kennelly
Sandra Montoya
Maret Vessella
Don Lewis
Beth Stephenson
Mary Pieper
Raziel Atienza
Lexis Nexis
Brandi Ensign