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Commonwealth of Massachusetts

Supreme Court No. SB-00-0056-D
Comm. No. 96-1631


IN RE: DONNA LYN MIERS

Order (published censure) entered by the Arizona Supreme Court on July 11, 2000.

Massachusetts reciprocal reprimand entered July 11, 2001

SUPREME COURT OF ARIZONA

IN THE MATTER OF A
SUSPENDED MEMBER
OF THE STATE BAR OF
ARIZONA
DONNA LYN MIERS
Attorney No. 013333,
Respondent.

JUDGMENT AND ORDER

This matter having come on for hearing before the Disciplinary Commission of the Supreme Court of Arizona, it having duly rendered its decision and no discretionary review occurring,

IT IS ORDERED, ADJUDGED AND DECREED that DONNA LYN MIERS, a suspended member of the State Bar of Arizona, is hereby censured for conduct in violation of her duties and obligations as a lawyer, as disclosed in the commission report attached hereto as Exhibit A.

IT IS FURTHER ORDERED that pursuant to Rule 52(a)(8), Rules of the Supreme Court of Arizona, the State Bar of Arizona is granted judgment against DONNA LYN MIERS for costs and expenses incurred by the State Bar of Arizona in the amount of $1,241.40, together with interest at the legal rate from the date of this judgment.

Noel K. Dessaint, Clerk

Dated July 11, 2000.

DISCIPLINARY COMMISSION REPORT

This matter was scheduled before the Disciplinary Commission of the Supreme Court of Arizona on February 12, 2000, pursuant to Rule 53(d), Ariz.R.S.Ct.., for review of the Hearing Officer's report, filed December 9. 1999, recommending a one (1) year suspension.

Decision

The nine members of the Commission considering this matter unanimously adopt the findings of fact and conclusions of law of the Hearing Officer. However, the Commission recommends a censure1 and costs of these disciplinary proceedings. In addition, upon reinstatement for nonpayment of dues,2 the Respondent shall be placed on probation for one (1) year with the Law Office Management Assistance Program ("LOMAP") with a practice monitor and attend a professionalism course.

Discussion of Decision

Based upon the conduct deemed admitted by default,3 the Commission, as well as the Hearing Officer, found clear and convincing evidence that Respondent violated Rule 42. Ariz.R.S.Ct.3 particularly:


ER 1.1 (competence) 4 Violations
ER 3.1 (meritorious claims/contention) 4 Violations
ER 8.4(d) (conduct prejudicial to the administration of justice) 4 Violations

While representing a client in a dependency action, Respondent failed to prepare and file an agreement of the parties. Respondent then filed a procedurally inaccurate and frivolous motion for contempt. After the motion for contempt was denied, Respondent then filed a motion for change of judge. The judge denied the motion, as it was frivolous and based on a misleading affidavit. Respondent subsequently filed a frivolous appeal challenging the denial of the motion for a change of judge. Lastly, Respondent filed a frivolous request for Supreme Court review of the Court of Appeal's order.

The Commission reviewed the ABA's Standards for Imposing Lawyer Sanctions ("Standards"). This is the guideline used by the Supreme Court to determine the sanction warranted by particular misconduct. Matter of Bowen, 178 Ariz. 283, 286, 872 P.2d 1235, 1238 (1994). The Commission considered Standards 4.53, 6.13 and 6.23, which were found to be most relevant in determining an appropriate sanction in this case. In addition, in imposing a sanction after a finding of misconduct, the Supreme Court and the Commission consider the duty violated, the lawyers menial state, the actual or potential injury caused by the misconduct, and the existence of aggravating and mitigating factors. See Standard 3.0.

The Commission considered the aggravating and mitigating factors pursuant to Standards 9.22 and 9.32, respectively. The Commission determined two (2) factors are present in aggravation, 9.22(e) (bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency) and (g) (refusal to acknowledge wrongful nature of conduct). Two factors are present in mitigation, 9.32(a) (absence of a prior disciplinary record)4 and (f) (inexperience in the practice of law).5 The Commission notes, but did not consider, the delay in this disciplinary proceeding. The May 1999 Complaint was filed two (2) years after the May 1997 Probable Cause Order.

The Commission adopts the proportionality analysis of this matter offered by the State Bar. In Matter of Sodikoff, SB-96-0016-D (1996), the respondent was censured and placed on probation for one year for violating ERs LI, 3.1, 8.4(c) and (d). In Matter of Alien, SB 95-0039-D (1995), the respondent entered into an agreement for censure for violating ERs 1.1, 3.1 and 8.4(d).

Conclusion

The purpose of lawyer discipline is not to punish the lawyer but to protect the public, e profession, and the administration of justice. In re Fioramonti, 176 Ariz. 182, 187. 859 P.2d 1315, 1320 (1993). Therefore, in consideration of the conduct deemed admitted by default, application of the Standards, factors present in mitigation and aggravation, and a proportionality analysis, the Commission determined that censure and costs of these disciplinary proceedings and, upon reinstatement from nonpayment of dues, probation for one (1) year with LOMAP and attendance at a professionalism course to be the appropriate disposition in this case.

RESPECTFULLY SUBMITTED this 8th day of May, 2000.

David D. Dodge, Chair

Disciplinary Commission

FOOTNOTES

1 Bar counsel argued for censure. The lengthy suspension was recommended because of Respondent's behavior at the aggravation hearing.

2 The Respondent was summarily suspended on June 18, 1998 for nonpayment of dues. The membership department at the State Bar of Arizona shall inform the Disciplinary Clerk immediately if Respondent becomes an active member-Exhibit A

3 An Entry of Default was filed on August 24,1999.

4 The State Bar offered 9-32(a) as a mitigating factor at the aggravation and mitigation hearing. There was no finding by the Hearing Officer of said factor, although it is an accurate reflection of Respondent's disciplinary history. Respondent offered no legitimate mitigating factors at the hearing

5 The Hearing Officer, as well as the State Bar, considered Respondent to be inexperienced in the practice of law when these matters occurred. See October 14, 1999 transcript, p.8.02 and HO report, p.



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