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Matter of Shannon6/21/1994
a hearing before the Committee and a review by the Commission, the Commission concluded that Respondent violated ER 1.15 and 3.2.
A. Respondent's Violations
Respondent challenges both the Commission's findings and its recommended sanctions. He argues that there was insufficient evidence to support a finding that he violated any ethical rule. Respondent further argues that, even assuming he violated an ethical rule, the recommended sanctions are inappropriate because the Committee and Commission inappropriately considered his failure to "directly acknowledge the wrongful nature of his conduct" as an aggravating factor. Moreover, Respondent argues that the recommended sanction does not take into account his voluntary cessation of the practice of law and is disproportionate to the sanctions imposed in similar cases.
1. Standard of Review
In disciplinary matters, this court acts as an independent arbiter of both the facts and the law. In re Neville, 147 Ariz. 106, 108, 708 P.2d 1297, 1299 (1985). In acting as an arbiter of the facts, we give deference and serious consideration to the findings of both the Committee and Commission. In re Pappas, 159 Ariz. 516, 518, 768 P.2d 1161, 1163 (1988), citing Neville, 147 Ariz. at 108, 708 P.2d at 1299. Before we impose discipline, however, we must be persuaded by clear and convincing evidence that Respondent committed the alleged violations. E.g., In re Kersting, 151 Ariz. 171, 172, 726 P.2d 587, 588 (1986); see also rule 54(c), Arizona Rules of the Supreme Court. Similarly, in acting as an arbiter of the law, we give great weight to the recommendations of the Committee and the Commission. In re Lincoln, 165 Ariz. 233, 235-36, 798 P.2d 371, 373-74 (1990), citing Neville, 147 Ariz. at 115, 708 P.2d at 1306. Yet, this court is ultimately responsible for determining the appropriate sanction. Lincoln, 165 Ariz. at 236, 798 P.2d at 374.
2. Count One
The Committee heard testimony concerning Count One and made its Findings of Fact in its report filed June 4, 1991. The Commission, after hearing arguments on this count, adopted the Committee's Findings of Fact. After reviewing the record, this court likewise adopts the Committee's Findings of Fact, which are summarized below.
In December 1986, attorney Gerald W. Nabours sued Fairfield and Client A on behalf of multiple plaintiffs who had purchased condominiums from Fairfield. The complaint alleged that Fairfield breached its contract with plaintiffs and had committed fraud. On these two counts, the complaint sought rescission, compensatory damages, and punitive damages. The complaint also alleged that both Fairfield and Client A (defendants) violated Arizona's RICO statutes. For this count, the complaint sought treble damages, costs, and attorneys' fees.
The essence of the complaint was that defendants used a priority-rent-back program to induce plaintiffs to purchase the condominiums and then arbitrarily discontinued the program. Plaintiffs claimed that defendants represented that plaintiffs' condominiums would be included in a priority-rent-back program. Under this program, Fairfield would rent plaintiffs' condominiums to house prospective purchasers of Fairfield property, guests or visitors. According to the complaint, defendants represented that the units were to be rented with a priority based upon the date of their purchase, and that the prio
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