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Matter of Brady9/24/1996
En Banc
ORIGINAL PROCEEDING FOR DISCIPLINARY ACTION
FELDMAN, Chief Justice
The Disciplinary Commission of the Supreme Court of Arizona (Commission) adopted the recommendation of the hearing officer that Michael James Brady (Respondent) be disbarred from the practice of law and make restitution totaling $12,850 to five clients. We have jurisdiction pursuant to Rule 53(e), Rules of the Supreme Court.
We consider three questions on appeal:
1. Did Respondent violate the Arizona Rules of Professional Conduct?
2. Was Respondent denied due process because he had no opportunity personally to confront the witnesses against him?
3. Are the sanctions recommended appropriate?
PROCEDURAL HISTORY
This disciplinary proceeding arises out of two consolidated complaints by ten clients. These clients were damaged when Respondent abandoned his practice in 1992. They were damaged also when Respondent violated Ethical Rules (ER) 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.15 (safekeeping property), 1.16 (declining or terminating representation), 3.3 (candor toward the tribunal), 8.1 (bar admission and disciplinary matters), and 8.4 (misconduct). Rules of Professional Conduct, Rule 42, Ariz.R.Sup.Ct.
Respondent was placed on interim suspension in this matter on September 14, 1992. On July 8, 1993, the State Bar filed a complaint against Respondent. After various motions, notices, and filing of a second formal complaint, Respondent filed his answer and the matters were consolidated.
Hearing officer Dwight M. Whitley, Jr., took testimony and heard argument on July 14, July 15, and November 7, 1994. He issued his report in June 1995, finding Respondent violated the Rules of Professional Conduct and recommending he be disbarred.
FACTS
Prior to the filing of the complaints, Respondent accepted ten clients, whose cases he mishandled or abandoned when he left the country in May 1992.
COUNT 1 - In May 1990, Client 1 retained Respondent to file a Rule 32 petition for post-conviction relief and paid him $5,000 for this representation. Respondent never prepared the petition. He did not communicate with the client and affirmatively misled her by falsely stating a Rule 32 hearing had been tentatively arranged.
COUNT 2 - In November 1990, Client 2 retained Respondent to represent him in a criminal matter arising out of an allegation of child molestation. Respondent did not interview relevant witnesses, did not obtain expert testimony on behalf of his client, and did not file appropriate pretrial motions. The client was convicted and faced a prison sentence in excess of thirty-five years. At an expense of $7,000, the client retained new counsel who filed a petition for post-conviction relief based on Respondent's ineffective representation. The petition was granted and the client ultimately was sentenced to probation.
COUNT 3 - Client 3 retained Respondent to file a petition for post-conviction relief and paid him $4,250. Respondent did not respond to his client's correspondence or perform the work for which he was retained.
COUNT 4 - Client 4 retained Respondent to appeal a federal criminal conviction. While Respondent was successful in having the conviction overturned, the Ninth Circuit Court of Appeals found Respondent filed his opening brief two months late, failed to file an excerpt of record, failed to respond to additional orders of the court, and failed to appear at oral argument.
COUNT 5 - Respondent represented Client 5 in a personal injury action. The settlement
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