disciplinary judge accepted an agreement for discipline by consent by
which Cynthia Futter, Santa Monica,
Calif., was reprimanded. She also
was assessed the costs and expenses
of the disciplinary proceeding in the
amount of $1,200.
In 2009, Ms. Futter provided
a retainer agreement to a home-owners’ association (“HOA”) that
managed a condominium project
in Phoenix. Pursuant to the retainer
agreement, Ms. Futter was to act
as the HOA’s general counsel
pending retention of local counsel.
Ms. Futter engaged in the unauthorized practice of law in Arizona
by (among other things): sending
letters on behalf of the HOA in
which she identified herself as general counsel to the HOA or in which
she stated that she represented the
HOA; sending letters in which she
engaged in settlement negotiations
on behalf of the HOA; and sending
letters in which she attempted to
collect unpaid assessments for the
The one aggravating factor was
substantial experience in the practice of law.
There were three mitigating factors: absence of a prior disciplinary
record; lack of a dishonest or selfish
motive; and full and free disclosure
to disciplinary board or cooperative
attitude toward proceedings.
Ms. Futter violated Rule
31, ARIZ.R.S.CT., and Rule 42,
ARIZ.R.S.CT., ER 5. 5.
PHOEBE L. HARRIS
Bar No. 026960; File No. 15-1060
PDJ No. 2015-9077
By final judgment and order dated
Sept. 9, 2015, the presiding disciplinary judge accepted an agreement
for discipline by consent by which
Phoebe L. Harris, Green Valley,
Ariz., was reprimanded and ordered
to pay the costs and expenses of the
proceedings totaling $1,200.
Ms. Harris and her father, attor-
ney Walter Henderson, with whom
she practices, represented an elderly
couple (Les and Marjorie) in con-
nection with their family trust and
estate plan. Les’s sons Jack and Gary
were to receive certain property
after Les and Marjorie died, and
Marjorie’s son Daniel was to receive
other property. Marjorie suffered
from Alzheimer’s disease although
her doctor certified that she had
sufficient mental capacity to create
a will and trust. She and Les were
suspicious of Daniel, and they
appointed Jack as the trustee of
their trust. Mr. Henderson had Jack
sign a representation and fee agree-
ment by which he was to represent
Jack as the trust administrator. The
agreement provided that Jack waived
“any claim for conflict of interest
regarding Attorney’s role in repre-
senting Trustee and Trustor … .”
Jack signed it, and Mr. Henderson
had Les and Marjorie sign following
the printed legend “Approved by:”.
Mr. Henderson did not obtain an
express, written and signed conflict
of interest waiver from Les and
Les died and Daniel was appoint-
ed Guardian for Marjorie. Jack and
Daniel argued over Marjorie’s care.
Jack accused Daniel of misappropri-
ating Marjorie’s trust money; Dan-
iel accused Jack of withholding pay-
ments to Marjorie from the trust in
order to protect his remainderman
interest. Daniel retained counsel
and sued to remove Jack as trustee.
Ms. Harris entered an appearance
for Jack and instructed him to stop
paying for Marjorie’s care from the
trust until Daniel furnished certain
documents and otherwise complied
with conservatorship statutes. In so
doing, Harris took a position in
favor of a current client (Jack)
against a former client (Marjorie),
without obtaining written, inform-
ed consent from Marjorie. Daniel’s
counsel moved to disqualify Ms.
Harris as Jack’s counsel on the
ground that she and Mr. Henderson
had an unwaived conflict of interest.
The court agreed, holding that the
purported conflict waiver in Jack’s
fee agreement was not sufficient to
satisfy the written, informed consent
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