Arizona Attorney - April 2009

miscommunication with his staff, the client was not informed and did not appear. Mr. Finch admitted that it was his ultimate responsibility to meet the May 15, 2007, deadline. He was given until Jan. 24, 2007, to file an application for cancellation of removal along with the motion to reopen. The application was filed six weeks late. Consequently the court denied the motion to reopen and deemed that the client had abandoned her request for cancellation of removal. Mr. Finch self reported the allegations of both counts to the State Bar.

Four aggravating factors were found: prior discipline, pattern of misconduct, multiple offenses and substantial experience in the practice of law.

Four mitigating factors were found: absence of dishonest or selfish motive, good-faith effort to rectify consequences of misconduct, cooperative attitude toward proceedings and remorse.

Mr. Finch violated Rule 42, ARIZ.R.S.CT., ERs 1. 3, 1. 4, 3. 2 and 8. 4.

GARY F. FORSYTH

Bar No. 007586; File Nos. 05-0504, 05- 0674, 05-0887, 05-1593, 05-1782, 06- 0058, 06-0663, 06-1312

Supreme Court No. SB-08-0034-D

By Arizona Supreme Court judgment and order dated April 22, 2008, Gary F. Forsyth, P.O. Box 3640, Show Low, AZ, was suspended for six months and assessed the costs and expenses of the disciplinary proceedings. He shall participate in fee arbitration and be placed on probation for two years upon reinstatement. The terms of probation include participating in the State Bar’s Law Office Management Assistance Program and Member Assistance Program.

In count one, while representing a client in a series of civil matters, Mr. Forsyth failed to adequately communicate with his client and to diligently pursue their legal interests.

In count two, Mr. Forsyth was appointed to represent a client in a dependency matter. Over a six-month period, while the client was incarcerated, he failed to communicate or visit with him. Mr. Forsyth also failed to respond to the client’s letters requesting information about his case.

In count three, a criminal case, Mr. Forsyth continued the trial without communicating with the client. Upon termination of representation, the client demanded the return of his property and a refund of unearned fees. When agreement could not be reached regarding the fees, the client sued and won a judgment for fees and court costs.

In count four, Mr. Forsyth was appointed to represent three separate criminal defendants were incarcerated. All three defendants complained that he had not adequately communicated with them. The Superior Court removed Mr. Forsyth from representing two of the three clients.

In count five, Mr. Forsyth was retained by parents to represent their son in a felony DUI and was paid a fee of $2,500. He filed at least two motions to continue the case without consulting the client or his parents. Upon termination of representation, the clients requested that he refund the unearned fee.

In count six, Mr. Forsyth was appointed to represent a client in 16 different criminal matters that were scheduled in various courts with many different hearing dates. The client complained that Mr. Forsyth failed to adequately communicate with him regarding the cases.

In count seven, Mr. Forsyth was retained to represent a client in a divorce and paid a fee of $2,500. For two months, various problems arose and the client terminated representation. Thereafter a dispute arose regarding the fee and because the fee agreement contained an arbitration clause, the matter was submitted to the State Bar fee arbitration. Mr. Forsyth failed to respond to the arbitration petition.

In count eight, a dependency matter, the client requested a copy of her file from Mr. Forsyth but he refused to give her one unless she paid for it. Communication and other problems existed in the representation and the client filed a complaint with the State Bar. The State Bar advised Mr. Forsyth to reply to the client within 20 days but he did failed to do so.

Three aggravating factors were found: prior discipline, pattern of misconduct and substantial experience in the practice of law.

Four mitigating factors were

BAR COUNSEL INSIDER

Bar Counsel Insider provides practical

and important information to State Bar members about ethics and the disciplinary process.

Watch Your Words

In January 2008, Rule 41(g), ARIZ.R.S.CT., was amended to provide that lawyers avoid engaging in “unprofessional conduct.” The prior version of the rule required that lawyers abstain from “offensive personality.” The comment explains that “unprofessional conduct,” as defined in Rule 31(a)( 2)(E), during the practice of law may result in discipline, and further explains that some conduct outside the practice may also result in discipline. “[U]nprofessional conduct” is defined as “substantial or repeated violations of the Oath of Admission to the Bar or the Lawyer’s Creed of Professionalism of the State Bar of Arizona.” The change in the Arizona rule reflects a national trend to focus on the civility of lawyers to each other, to the court and to the public.

In Arizona, the oath of admission to the State Bar concludes: “I will at all times faithfully and diligently adhere to the rules of professional responsibility and a lawyer’s creed of professionalism of the State Bar of Arizona.” The creed sets forth the expectations for lawyers with respect to their clients, opposing parties and their counsel, and with respect to the public and our system of justice. The overall theme is that lawyers are expected to act in a way that reflects positively on the integrity of our profession—with honor, dignity and courtesy. (You can find the oath and creed in the annual Membership Directory, or on the State Bar’s Web site).

No cases specify conduct that will be considered “unprofessional” under the new version of Rule 41(g). However, a body of case law developed under the older version remains helpful. Notwithstanding the apprehension expressed about the enforcement of Rule 41(g), both before and after the amendment to the rule, the misconduct for which lawyers have been sanctioned has largely been egregious and related, in some way, to their practice. The case law on violations includes In re Banta (abusive, offensive and improper conduct toward judicial officials, the courts, opposing counsel and third persons related to a representation); In re Loss (inappropriate comments to clients during representation including inappropriate personal contact); In re Izen (filed court documents containing frivolous and unsubstantiated statements and disparaging remarks about judges and opposing counsel); In re Medansky (verbal threat of physical violence made to opposing party); In re Moore (inappropriate personal contact and verbal remarks); In re Piatt (made sexually oriented comments to clients and solicited sexual favors in exchange for continued representation); In re Woltman (threatened adverse parties with physical violence); In re Spence (made sexually suggestive and inappropriate comments to two clients); and In re Levy (unwelcome sexual advances towards employee).

John Tillotson, a 17th-century English theologian and archbishop of Canterbury, said, “A good word is an easy obligation, but not to speak ill, requires only our silence, which costs us nothing.” As the cases above demonstrate, that advice may be the simplest key to avoiding a violation of Rule 41(g).