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In re Moak6/16/2003
The State Bar of Arizona charged Respondent Walter E. Moak with three counts of attorney misconduct under the Arizona Rules of Professional Conduct. After the parties stipulated to most of the relevant facts, a hearing officer considered the remaining factual issues, as well as aggravating and mitigating factors. The hearing officer concluded that the State Bar had established all counts and recommended that Moak be suspended for six months and one day. On review, the Disciplinary Commission of the Supreme Court (Commission) accepted the hearing officer's findings of fact and agreed with his conclusions of law, but recommended a six-month suspension. Although neither party sought review of the Commission's decision, we exercised our right of sua sponte review to consider further the appropriate discipline to impose. Ariz. R. Sup. Ct. 53(e)7. We exercise jurisdiction under Article VI, Sections 1, 3, 5.4 and 5.5 of the Arizona Constitution and Rules 31 and 53 of the Arizona Rules of the Supreme Court.
I.
The hearing officer's report thoroughly and clearly sets out the relevant facts, as stipulated and found after the hearing. The Commission and this court accept the hearing officer's factual findings unless they are clearly erroneous. In re Alcorn and Feola, 202 Ariz. 62, 64 n.4, 41 P.3d 600, 602 n.4 (2002). We find no clear error. Indeed, neither Moak nor the State Bar contests the findings. We therefore hold that the State Bar proved the charges of unethical conduct by clear and convincing evidence. Because our analysis of the appropriate sanction depends upon the facts underlying Moak's misconduct, we describe them in some detail below.
The hearing officer concluded that Moak violated multiple ethical rules (ERs). With respect to count one, the hearing officer found the following violations: 1.2 (scope of representation); 1.3 (diligence); 1.4 (communication); 1.9 (conflict of interest: former client); 3.3 (candor toward the tribunal); 8.4(c) (misconduct: dishonesty, fraud, deceit or misrepresentation) and 8.4(d) (misconduct: prejudicial to the administration of justice). With respect to count two, the hearing officer concluded Moak violated ERs 3.3 (candor toward the tribunal); 4.1 (truthfulness in statements to others); 8.4(c) (misconduct: dishonesty, fraud, deceit or misrepresentation); 8.4(d) (misconduct: prejudicial to the administration of justice) and also Rule 51(e) of the Arizona Rules of the Supreme Court (willful disobedience or violation of a rule). Finally, with respect to count three, the hearing officer concluded Moak violated ERs 1.7(b) (conflict of interest); 1.8(a) (conflict of interest: prohibited transactions); 1.8(e) (conflict of interest: financial assistance) and 1.8(j) (acquiring a proprietary interest in the cause of action).
The hearing officer next determined that Moak committed "knowing" ethical violations, that is, he acted with a "conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." American Bar Association Standards for Imposing Lawyer Sanctions ( ABA Standards ) at 7 (1991). After considering proportionality principles and weighing aggravating and mitigating factors, the hearing officer issued his report.
We review conclusions of law de novo, as does the Commission. Ariz. R. Sup. Ct. 53(d)2, (e)11. The Commission adopted the hearing officer's conclusions of law and agreed that Moak knowingly violated the Rules of Professional Conduct. We also agree with those conclusions of law. In exercising its authority to review the hearing officer's disciplinary recommendation, the Commission reduced Moak's su
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