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Matter of Shannon6/21/1994
ed that Respondent violated ERs 1.4(a) and (b), which provide:
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
In the issue statement of his brief, Respondent quest ions whether there is "clear and convincing evidence to support a legal Conclusion that respondent violated E.R. 1.4(a)." The only arguments Respondent presents, however, are that the Commission had not found that Respondent concealed information from Client A, that he abandoned Client A, or that he failed to keep Client A informed because of any "ulterior reason." None of these arguments has any bearing on whether or not Respondent violated ER 1.4(a). The issue under ER 1.4(a) is merely whether or not Respondent kept Client A reasonably informed about the status of the case.
This court, after independently reviewing the record, concludes that Respondent violated this ethical rule. Respondent represented Client A from June 26, 1987 to approximately October 22, 1988. According to his time sheets, Respondent had minimal contact with Client A during the 16 months that he represented Client A. Respondent met with Client A only one time, on September 10, 1987, during which time he tried to persuade Client A to "rethink" their position on their draft answers to interrogatories that conflicted with Fairfield's position. Respondent's billing reflects 11 calls to Client A for a total of 3 hours of phone conversation with Respondent. Despite sending Fairfield regular status letters on such topics as discovery, legal research, and settlement negotiations, Respondent sent no such information to Client A. In fact, when asked whether he passed on any information regarding the status of the case to Client A after the September 10, 1987 meeting, Respondent admitted he did so "only indirectly through Fairfield." We have little trouble finding that Respondent failed to keep Client A reasonably informed, as required by ER 1.4(a).
The Commission found that Respondent violated ER 1.4(b) by failing to explain the litigation to Client A to the extent necessary to permit them to make informed decisions regarding Respondent's continued representation of Client A. Respondent challenges the Commission's finding that he violated ER 1.4(b), arguing that the evidence supporting this finding is "anything but clear and convincing." According to Respondent, the Commission must have been referring to his continued representation after the meeting on September 10, 1987. And, as far as Respondent is concerned, the evidence shows that he fully explained the implications of Client A's answers and thought that any conflicts about Client A's answers were resolved. Any violation of this rule, Respondent argues, was committed unwittingly.
Respondent's argument fails for a number of reasons. Despite his arguments to the contrary, nothing in the Commission's legal Conclusion suggests that its Findings were limited to Respondent's disclosure efforts at the September 10, 1987 meeting. And, even if this were the legal Conclusion that the Commission intended, this court, as "an independent arbiter of both the facts and law" in disciplinary matters, is not bound by either the Committee's or the Commission's legal Conclusions. See, e.g., In re Kersting, 151 Ariz. at 172, 726 P.2d at 588.
Based on our review of the record, we easily find that Respondent violated ER 1.4(b). The record clearly shows that from the time Respondent agreed
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