In Re a Member of the State Bar of Arizona, Myers ( 1990 )

OPINION

FELDMAN, Vice Chief Justice.

David A. Myers (respondent) appeals from the Disciplinary Commission’s (Commission) recommendation that he be publicly censured for his failure to appear on his client’s behalf at an immigration hearing. We have jurisdiction under Rule 53(e), Ariz. R.Sup.Ct, 17A A.R.S. Respondent argues that he did not violate any provisions of the Code of Professional Responsibility¹ with which he was charged, so that no discipline is appropriate.

FACTS

On September 9, 1985, the State Bar received a letter from Chief Immigration Judge William R. Robie stating that respondent had “failed to notify his client of the time and place of a hearing on his asylum application [and] [a]s a result, neither the alien nor his counsel was present at the hearing.” The hearing had taken place almost one year before, on September 19, 1984.

After reviewing Judge Robie’s letter and the facts concerning the occurrence, the Probable Cause Panel issued an informal reprimand on January 6, 1986. Because respondent requested a formal hearing pursuant to Rule 53(b)(4), the reprimand was withdrawn and the following formal complaint was filed:

COUNT ONE

Respondent improperly represented his client by failing to notify him of the scheduled deportation hearing date or undertake any legal activity on his behalf, thereby intentionally failing to [seek] the lawful objectives of his client in violation of Disciplinary Rule 7-101(A)(1).

COUNT TWO

Respondent, throughout the time during which he represented his client, intentionally neglected a legal matter entrusted to Respondent in violation of Disciplinary Rule 6-101(A)(3).

COUNT THREE

Respondent, throughout the time during which he represented his client, intentionally prejudiced the rights of his client in violation of Disciplinary Rule 7-101(A)(3).

Complaint, filed Apr. 24, 1986 (emphasis added).

Respondent filed a motion to dismiss on November 5, 1986. The State Bar filed a motion for judgment on the pleadings on December 22, 1986. Hearing Committee 6C convened on February 28, 1987 and granted the State Bar’s motion. The Committee recommended public censure. Hearing Committee Recommendation of Discipline, filed Apr. 13, 1987. Respondent timely filed his objections with the Commission. By order filed October 30, 1987, the Commission remanded to a hearing committee so a hearing could be conducted.

A hearing was convened before Hearing Committee 6G (Committee) on November 2, 1988. The Committee took evidence, deliberated, and concluded as follows:

The Committee finds that there is insufficient evidence that Respondent violated any canon of ethics as charged. The Committee therefore recommends dismissal of this matter.

Hearing Committee Report, filed Dec. 21, 1988.

The Commission reviewed the case. Bar counsel waived his presence and authorized respondent’s counsel to present to the Commission his view that the decision of the Committee be upheld and affirmed. The Commission declined to do so. See Commission Report, filed Mar. 2, 1989. It rejected the Committee’s recommendation that the complaint against respondent be dismissed. Instead, it concluded,, based on its belief that clear and convincing evidence existed, that:

1. Respondent failed to act diligently in representing his client by failing to notify him of a scheduled [deportation] hearing and by failing to appear himself at the time and place scheduled for the hearing, thereby failing to seek the lawful objectives of his client, in violation of DR 7 — 101(A)(1).

2. Respondent neglected a legal matter entrusted to him by failing to appear at the time of the scheduled deportation hearing, in violation of DR 6-101(A)(3).

3. Respondent failed to notify his client or to appear, himself before the Immigration Court, prejudicing the rights of his client, in violation of DR 7 — 101(A)(3).

Commission Report (emphasis added). The Commission recommended that respondent be publicly censured.

Respondent timely filed an appropriate objection in this court. See Rule 53(e).

DISCUSSION

We review the record as the ultimate finder of fact. See In re Nefstead, 163 Ariz. 518, 789 P.2d 385 (1990). Nonetheless, we give deference and serious consideration to the findings of the Committee and Commission. In re Pappas, 159 Ariz. 516, 518, 768 P.2d 1161, 1163 (1988). Before we impose discipline, we must be persuaded by clear and convincing evidence that respondent committed the violations with which he was charged. Id.

It is true respondent did not appear at the hearing scheduled before the immigration judge, Hon. John T. Zastrow, on September 19, 1984. We approve, however, the conclusion the Committee evidently reached after hearing testimony: respondent’s failure to appear could not be attributed to either a lack of desire or effort to serve his client. Respondent testified at the hearing that he had been unaware the client had been released on bail due to the efforts of another lawyer. Respondent attempted to locate his client, but was unable to find either his address or telephone number. The evidence supports the conclusion that respondent had no way to notify his client of the hearing date or to procure his appearance at the hearing before the immigration judge. No intentional failure to notify his client can be inferred from these facts.

The record also clearly supports the conclusion that respondent believed it was in his client’s best interests that he not make an appearance without the client. Respondent believed if he appeared alone, he could not obtain asylum status for his client. Therefore, his appearance would not benefit his client and might harm him because, respondent believed, by entering an appearance for the client, he might subject him to the jurisdiction of the immigration court and possible deportation. This was a risk respondent did not wish to take because, after researching the issue, he thought the notice of hearing, served only on him and not on the client, was fatally defective from a jurisdictional standpoint.² The State Bar argues that respondent was wrong in these legal positions. Respondent admits that, in retrospect, he may have handled the situation differently, but avows that at the time, after only four months of practice in a highly technical area of the law, he felt his position was strategically correct and legally justifiable as in the best interests of his client.

In our view, the case does not turn on whether respondent was correct in his legal position, but whether he had a good faith belief in that position, based on some tenable legal argument. Considering the confusing nature of the procedural rules in immigration court at the time respondent made his decision, we accept, as the Committee must have, that his legal arguments are defensible. The fact that respondent’s legal conclusions may have been incorrect does not indicate that, as charged, he intentionally failed to advance his client’s lawful objectives in violation of DR 7-101(A)(1), intentionally neglected a legal matter in violation of DR 6 — 101(A)(3), or intentionally prejudiced his client’s rights in violation of DR 7 — 101(A)(3).

Although respondent intentionally failed to go to the hearing, no evidence exists to support the idea that he did so because he abandoned his client or knowingly neglected his client’s welfare. Rather the record convinces us, as it evidently convinced the Committee, that he thought by not appearing he would be helping his client. Compare In re Cardenas, 164 Ariz. 149, 791 P.2d 1032 (1990); In re Anderson, 163 Ariz. 362, 788 P.2d 95 (1990). He attempted to locate and identify the client, researched his legal position, and made a good faith decision that his appearance was unnecessary and perhaps would even be detrimental to his client’s legal position. While there is a possibility that respondent mismanaged the case, there is no evidence he did so knowingly or intentionally, or that he abandoned his client’s interests. The evidence in this case, at most, points to an incorrect legal judgment, mistake of law, or improper strategy. We do not equate such matters with knowing or intentional derelictions of a lawyer’s duty to his client that should warrant discipline.³

The conclusion that respondent sought only to help his client is not only compelled by the specific facts in this record, and the lack of any fact from which to infer intent to abandon, neglect, or lack of concern, but is supported by the entire factual context. Respondent, an ordained clergyman, has devoted his professional life, if not his whole life, to attempting to help unfortunate Central American aliens charged with immigration violations. He lives among them, he works among them, he confines his legal practice to their problems, and, to all intents and purposes, works on a pro bono basis. These circumstances, of course, would not in any way excuse a violation of the Code; in our view, however, they certainly militate against a finding that respondent would intentionally abandon or neglect his clients.

In his commendable efforts to advance the position of the Commission, bar counsel suggests that in not entering an appearance at the immigration hearing, respondent may have failed to fulfill his obligations to that court. We do not reach any conclusions on that issue. First, the record before us does not establish that respondent acted improperly. There is evidence that respondent may, indeed, have informally notified the judge that he was not going to appear and may have explained the reasons for his decision. Transcript of Proceedings Before Disciplinary Committee 6G, Nov. 2, 1988, at 172. Second, and more important, respondent was not charged with any violation of his obligation to the immigration court. Respondent may not be charged with one violation and then, without opportunity for hearing or presentation of evidence, be disciplined for another. In re Riley, 142 Ariz. 604, 609, 691 P.2d 695, 700 (1984). In Riley, we construed the United States Supreme Court opinion in In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), which held that a lawyer has the right to procedural due process in State Bar proceedings. Riley had been charged with a number of ethical violations. At his hearing, evidence was presented that indicated he had violated other ethical canons. The State Bar accordingly amended its complaint. We held such amendment did not violate procedural due process guaranteed in Ruffalo because respondent had ample time and opportunity to respond. In this case, no amended complaint was filed and respondent has not been given any opportunity to respond to the allegations of misconduct for which the dissent wishes to hold him responsible.

Bar counsel also suggests that respondent’s behavior when he first defended himself against the charges filed with the State Bar was less than exemplary. We agree. Without in any way approving some of the language or methods respondent employed in his initial pro se defense against the charges, we think it obvious, however, that most of the improprieties can be attributed either to respondent’s inexperience (especially in responding to the disciplinary process), or (and perhaps in a larger degree) to the emotions engendered by the political and moral controversy surrounding the immigration policies involving those seeking asylum from the troubles in Central America. Finally, we note on this point, as well, respondent was not charged with violating DR 7 — 106(C)(6), which states that a lawyer shall not “[ejngage in undignified or discourteous conduct which is degrading to a tribunal,” and believe his conduct did not rise to the level of a violation in any case. If anything, his conduct merely lends further support to the old adage that “a lawyer who represents himself____”

The dissent makes four points. First, it argues that respondent should not have denied he was the client’s attorney. Dissent at 564, 795 P.2d at 207. Doing so “exhibited a lack of knowledge of the attorney-client relationship____” Id. Second, it argues that respondent should not have questioned the competence of the Committee. Id. at 564-566, 795 P.2d at 207-209. Third, it criticizes respondent’s reliance “on an unsupported theory of conspiracy.” Id. at 566, 795 P.2d at 209. These points all deal with respondent’s conduct while he appeared pro se during the disciplinary proceedings.

The answer to this, of course, is that respondent has not been charged with any of these matters but only with three counts of having intentionally neglected his client’s interests. In effect, the dissent argues that respondent may be charged with specified offenses and, despite the lack of evidence to support those charges, be found to have committed others that were neither charged nor the subject of any hearing. We reject such a proposition as failing to comport with elemental due process. See Ruffalo.

Finally, the dissent disagrees with a comment in this opinion regarding respondent’s obligation to the immigration court. See dissent at 566, 795 P.2d at 209. No doubt this court could impose appropriate discipline on respondent if he had committed improprieties in his appearance before the United States Immigration Court. Before doing so, it would be necessary to charge him with such an offense and to provide him a hearing. See Ruffalo. No such charges were preferred and no such hearing was held. Lacking evidence taken at a hearing on a specified charge, we do not propose to determine whether respondent’s conduct in immigration court was proper or improper.

CONCLUSION

We do not accept the Commission’s recommendations. We find no clear and convincing evidence that respondent committed the offenses charged in the complaint. The Committee’s recommendation is approved. Accordingly, the charges against respondent are dismissed.

GORDON, C.J., and MOELLER, J., concur.

1 . The conduct in question occurred prior to the adoption of the Rules of Professional Conduct, Rule 42, Ariz.R.Sup.Ct., 17A A.R.S., effective February 1, 1985. Therefore, former Rule 29(a), Arizona Code of Professional Responsibility, governs respondent's conduct rather than current Rule 42. See Order Deleting Rules 27 Through 49, Of The Supreme Court, And Substituting Amended Rules 27 Through 121, Rules of the Supreme Court, In Their Place, reprinted in 17A A.R.S. at 212 (1988). Because the State Bar commenced proceedings after February 1, 1985, however, the current rules relating to disciplinary procedures govern. Id. References to the Arizona Supreme Court Rules will be cited as "Rule_” and will refer to the current rules unless otherwise indicated.

2 . Testimony at the hearing by an attorney specializing in immigration law indicated that the practice of sending notice only to attorneys and not to the clients was new at the time and that she shared respondent’s concerns about due process. Transcript of Proceedings Before Disciplinary Committee 6G, Nov. 2, 1988, at 24.

Immigration Judge John J. McCarrick testified, describing the law in this area as “Byzantine.” Id. at 79. He explained as follows:

The Immigration Court used to be part of the Immigration and Naturalization Service. In about 1982 the Justice Department decided to sever the judicial function of the Immigration Service and house it in a separate agency....

A lot of the regulations that you will see in 8 CFR refer to the service and came into play at the time when the Immigration Department was part of the Service. They don’t anymore, but they haven’t been amended to reflect the change, so there — as a result there is a considerable amount of confusion concerning the regulations that apply to the Court now because they are in — they are in language that doesn't relate to the Court itself or refers to the Service.

Id.

3 . We hasten to note that even if we were to deem respondent's conduct "negligent," most decisions and official ABA policy insist that a single instance of "ordinary negligence” is usually not a disciplinary violation. See generally C.W. WOLFRAM, MODERN LEGAL ETHICS at 190 n. 36 (1986) (citing ABA Informal Op. 1273 (1973) (DR 6-101(A)(3)) ("Neglect usually involves more than a single act or omission. Neglect cannot be found if the acts or omission complained of were inadvertent or the result of an error of judgment made in good faith”); see also Florida Bar v. Neale, 384 So.2d 1264, 1265 (Fla.1980) (Where lawyer discovered theory upon which he might have obtained a larger recovery for his client but then made the mistake of dismissing the action, the court stated that "[tjhere is a fine line between simple negligence by an attorney and violation [of Code) that should lead to discipline. The rights of clients should be zealously guarded by the bar, but care should be taken to avoid the use of disciplinary action ... as a substitute for what is essentially a malpractice action.").