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In re A Member of State Bar of Arizona9/5/1991
Opinion
I. JURISDICTION
The Disciplinary Commission of the State of Arizona (Commission) recommended that Alex Abbott Gaynes (respondent) be disbarred from the practice of law, pay restitution
to his client in the amount of $1958.00, plus interest at the legal rate accruing from 1 September 1981, and pay costs in the amount of $1659.60 to the State Bar of Arizona (Bar). Because respondent failed to appeal the Commission's recommendation, the Bar submitted this matter for review on the record. See Ariz. Sup. Ct. Rules, rule 53(e). We have jurisdiction pursuant to 17A A.R.S. Ariz. Sup. Ct. Rules, rule 53(e).
II. FACTS
On 1 December 1989, the Bar filed a complaint against respondent charging him with three counts of ethical violations.
1. Count One
Count one stemmed from respondent's representation of Charles Ashby (Ashby) and charged respondent with violating the Rules of Professional Conduct, rule 42. He was charged with failure to communicate with his client, failure to diligently and competently pursue his client's case and failure to respond to the Bar's inquiries. In 1984, Ashby retained respondent to pursue a wrongful death claim in connection with his wife's death. Respondent told Ashby that the legal matter would be "wrapped up" by the end of January 1987. Ashby wrote respondent three letters dated 1 March, 24 April and 30 May 1987, requesting a status report. Respondent finally answered and informed Ashby that he would "attempt to reach a conclusion" of the legal matter by June 1987. When the legal matter was not resolved, Ashby again wrote numerous letters to respondent. Notwithstanding Ashby's numerous letters and phone calls, respondent has not communicated with him since June 1987. As of 12 January 1990, respondent had not checked on the status of Ashby's case.
2. Count Two
Count two stemmed from respondent's representation of Jean and Craig Anderson (the Andersons) and charged respondent with violating the present Rules of Professional Conduct, rule 42, and the former Code of Professional Responsibility, rule 29(a). He was charged with a conflict of interest in representing two clients in the same case, failure to diligently and competently pursue his client's case, failure to communicate with his client, failure to remit funds owing to his client and failure to respond to the Bar's inquiries concerning this matter.
The Andersons retained respondent to represent them when Jean was injured from a collapsed ceiling of their residence. State Farm Insurance (State Farm) paid for Jean's injuries under their homeowner's policy. In January 1981, State Farm retained respondent to pursue its subrogation interest in the Anderson award.
In April or May 1981, a jury awarded the Andersons $8,000 in a suit against the home builder and the plumber. State Farm has unsuccessfully attempted to communicate with respondent and as of 10 November 1990, respondent has refused to tender to State Farm its share of the monies due under the subrogation clause.
3. Count Three
Count three charged respondent with having been previously disciplined and failure to cooperate with the Bar. Respondent was censured on 25 September 1984, for failing to diligently represent and communicate with his client. Respondent was also given informal reprimands on 24 July 1989, and 14 February 1990, when he failed to respond to the Bar's requests for information on other complaints lodged against him.
III. PROCEDURAL HISTORY
Re
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