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In re Member of the State Bar of Arizona Isler

Supreme Court of Arizona

March 4, 2014

In the Matter of a Member of the State Bar of Arizona Michael E. Isler

Appeal of Hearing Panel Report and Order Imposing Sanctions from the Office of the Presiding Disciplinary Judge No. PDJ20129083

Ralph W. Adams, Karen A. Clark, Adams & Clark, PC, Phoenix, for Respondent

Craig D. Henley, State Bar of Arizona, Phoenix, for State Bar of Arizona

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BERCH, VICE CHIEF JUSTICE BALES, JUSTICE PELANDER, and JUSTICE BRUTINEL joined.

SUSPENSION ORDERED

TIMMER, JUSTICE

¶1 Michael E. Isler appeals from a disciplinary panel's report and order disbarring him. Although the record supports the panel's determination that Isler violated several Arizona Rules of Professional Conduct ("ERs"), the panel's findings concerning other ERs are unsupported. Accordingly, and in light of substantial mitigation Isler presented, we reduce his sanction to a two-year suspension from the practice of law.

BACKGROUND

¶2 In August 2012, the State Bar filed an eight-count disciplinary complaint against Isler, alleging professional misconduct concerning his representation of seven clients during 2010-2012. Following a three-day hearing, a disciplinary panel found that he had violated several ERs, as set forth in Arizona Supreme Court Rule 42, and ordered Isler disbarred. He timely appealed, and we have jurisdiction pursuant to Article 3 and Article 6, Sections 1, 5(3), and 5(4) of the Arizona Constitution and Arizona Supreme Court Rule 59(a).

DISCUSSION

I. Factual Findings

¶3 The State Bar must prove its allegations by clear and convincing evidence. Ariz. R. Sup. Ct. 58(j)(3). We accept the panel's factual findings unless they are clearly erroneous. In re Aubuchon, 233 Ariz. 62, 67 ¶ 21, 309 P.3d 886, 891 (2013). Findings are clearly erroneous if they are not supported by reasonable evidence. In re Van Dox, 214 Ariz. 300, 304 ¶ 15, 152 P.3d 1183, 1187 (2007).

A. Counts One and Four

¶4 Client M.B. retained Isler to represent her in post-decree modification proceedings. Shortly thereafter, M.B. asked Isler how to obtain an order of protection against her ex-husband. Isler advised that she could petition any court for relief, and she thereafter obtained a protective order in justice court. Her ex-husband allegedly violated the order, and the state brought a criminal charge against him. On the ex-husband's motion in the family court matter, the superior court dismissed the protective order ab initio as "jurisdictionally invalid" pursuant to former A.R.S. § 13-3602(O) (now § 13-3602(P)).

¶5 The hearing panel found that Isler violated ERs 3.1, 4.4, and 8.4(d) by advising M.B. she could obtain a protective order from the justice court and by failing to attend the hearing on the ex-husband's motion.[1] These findings are clearly erroneous.

¶6 ER 3.1 prohibits a lawyer from bringing or defending a non- meritorious proceeding, and ER 4.4 prohibits a lawyer from using means that "have no substantial purpose other than to embarrass, delay, or burden any other person." Isler, however, neither filed the petition seeking a protective order nor defended against its dismissal. Moreover, no evidence shows that Isler sought to embarrass, delay, or burden the ex-husband by telling M.B. where she could obtain a protective order.

¶7 ER 8.4(d) prohibits a lawyer from engaging in conduct that is "prejudicial to the administration of justice." The State Bar argues that Isler prejudiced the administration of justice by advising his client to obtain a protective order in a court that lacked jurisdiction, which resulted in issuance of an invalid order and an eventual criminal charge against J.B. We disagree. Although the superior court had "exclusive jurisdiction" over M.B.'s petition in light of the pending family law matter, see A.R.S. § 13-3602(P); Ariz. R. Protect. Ord. P. 4(A)(1), the justice court order was valid. See A.R.S. § 13-3602(P) ("No order of protection shall be invalid or determined to be ineffective merely because it was issued by a lower court at a time when an action for maternity or paternity, annulment, legal separation or dissolution of marriage was pending in a higher court."). Consequently, contrary to the superior court's ruling, Isler's advice to M.B. did not result in issuance of an invalid order.

¶8 Finally, none of the ERs enumerated by the panel applies to Isler's failure to appear at the hearing on the motion to dismiss the protective order. Although his failure to appear could evidence a lack of diligence in violation of ER 1.3, as charged in the complaint, the panel did not find a ...


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