Robert R. Cortinez, Sr. v. Supreme Court Committee on Professional Conduct

Robert R. CORTINEZ v. SUPREME COURT COMMITTEE
ON PROFESSIONAL CONDUCT

97-789                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered April 9, 1998


1.   Attorney & client -- decision of Supreme Court Committee on
     Professional Conduct -- factors on review. -- The supreme
     court reviews a decision of the Supreme Court Committee on
     Professional Conduct de novo on the record and pronounces
     judgment as if the court's opinion had been rendered by the
     Committee; the Committee's action will be affirmed unless it
     is clearly against the preponderance of the evidence and the
     Committee's findings are not reversed unless they are clearly
     erroneous; the Committee is in the superior position to
     determine the credibility of the witnesses and weigh the
     preponderance of the evidence.  

2.   Attorney & client -- Committee could have concluded that
     attorney-client relationship was formed with respect to
     wrongful-discharge claim -- Model Rule of Professional Conduct
     1.16(d) applicable. -- Appellant attempted to argue that model
     Rule of Professional Conduct 1.16(d), which applies upon
     termination of representation, did not impose any duty on him
     because he never represented the client in the wrongful-
     discharge case; however, whether appellant limited his
     contract of representation was a question of fact to be
     decided by the Committee on Professional Conduct, and based
     upon the evidence before it, the Committee could have
     concluded that an attorney-client relationship was formed with
     respect to the wrongful-discharge claim and that appellant did
     not pursue to its conclusion the "interesting" wrongful-
     discharge claim that presumably became even more interesting
     when the Arsenal changed its reason for discharging his
     client; there was also before the Committee evidence that
     appellant did not continue to work on the wrongful-discharge
     case because he thought that the client owed him $350 as a
     retainer.

3.   Constitutional law -- Committee's reference to Model Rule
     1.16(d) sufficient notice that failure to return client's
     papers was at issue -- no due-process deprivation found. --
     Appellant's argument that he was deprived of due process
     because he was not given sufficient notice that the Committee
     planned to consider his alleged failure to return the client's
     file as a potential violation of the Model Rules was without
     merit; the Committee's reference to Model Rule 1.16(d) was
     sufficient notice that the failure to return the client's
     papers was at issue; the Rule provides several examples of
     steps that an attorney must take to protect a client's
     interest upon termination of representation, including the
     return of the client's papers to the client; appellant should
     have been prepared to establish his compliance with all
     aspects of the Rule.  
4.   Attorney & client -- case cited in support of argument
     inapplicable -- clear notice given of allegations concerning
     Rule ultimately found to have been violated. -- Case law
     referred to by appellant in support of his argument that the
     Committee on Professional Conduct should have specifically
     referenced his failure to return the client's papers to him
     was inapplicable; the particular case cited held that notice
     was inadequate when the attorney was notified of possible
     violations of certain rules but not the one of which he was
     found to be in violation; here, there was clear notice of the
     allegations concerning the Rule ultimately found to have been
     violated.

5.   Attorney & client -- appellant's argument without merit --
     evidence existed from which Committee could have found that
     appellant had client's papers in his possession and failed to
     return them. -- Appellant's argument that the Committee on
     Professional Conduct's finding that appellant failed to return
     the client's papers to him was clearly erroneous was without
     merit; there was evidence from which the Committee could have
     found that appellant had the client's papers in his possession
     and failed to return them. 

6.   Attorney & client -- appellant's argument meritless --
     language of Rule does not require demand from client to
     trigger obligation to return papers. -- Appellant's argument
     that the record did not provide any evidence that the client 
     sought the return of any papers was meritless; the clear
     language of the Rule does not require a demand from the client
     to trigger this obligation; it places an affirmative duty on
     the attorney, not the client, to protect the client's
     interests upon termination of representation.  


     Appeal from the Supreme Court Committee on Professional
Conduct Circuit Court; affirmed.
     The Cortinez Law Firm, P.L.L.C., by:  Christopher D. Anderson; 
and Hugh D. Brown, for appellant.
     William S. Roach, for appellee.

     David Newbern, Justice.
     Robert R. Cortinez, Sr., appeals from a decision of the
Arkansas Supreme Court Committee on Professional Conduct
("Committee") to issue a letter of caution to him after finding him
in violation of Rule 1.16(d) of the Model Rules of Professional
Conduct.  In its letter opinion, the Committee wrote that, upon
termination of the attorney-client relationship, Mr. Cortinez did
not invite his client, Anthony David, to discuss the legal
consequences of his decision to end the relationship and did not
return to Mr. David documents belonging to Mr. David.  We affirm.
     In January 1993, Mr. David's civilian employment with the Pine
Bluff Arsenal, a Department of the Army installation, was
terminated on the basis that he falsified his employment
application.  In response to a question on his employment
application, Mr. David stated that he had not been convicted by a
court martial.  Arsenal personnel concluded, following an
investigation, that the statement was false.  It was later
determined that, although Mr. David had received a non-judicial
punishment for two counts of showing disrespect toward Petty
Officers while serving in the United States Navy, he had not been
convicted by a court martial. 
     Following his termination, Mr. David applied for and was
denied unemployment benefits by the Employment Security Division of
the Arkansas Labor Department.  The basis of the denial was that
Mr. David had been discharged for providing false information on
his employment application.  
     On April 15, 1993, Mr. David consulted Mr. Cortinez concerning
his termination and the subsequent denial of benefits.  At the
April 15 meeting, Mr. David and Mr. Cortinez discussed appealing
the denial of unemployment benefits and suing the Arsenal for
wrongful discharge.  There was evidence that Mr. David gave Mr.
Cortinez his termination letter from the Arsenal and an official
"court memorandum" regarding the non-judicial punishment.  Mr.
David paid Mr. Cortinez $100 which, he thought, was for agreeing to
represent him in the wrongful-discharge action.  
     Mr. Cortinez argued that he only agreed to investigate the
case.  According to Mr. David, Mr. Cortinez advised him that the
best course of action would be first to resolve the appeal of the
denial of unemployment benefits and then to proceed slowly in the
wrongful-discharge case to maximize the recovery.  Mr. David agreed
that Mr. Cortinez would represent him in the unemployment-
compensation case for a fee of $350 contingent upon winning an
award.  Mr. Cortinez stated that Mr. David then signed a wrongful-
discharge representation contract and one for representation with
respect to the unemployment benefits.  The contracts are part of
the record.  On the contract for the wrongful-discharge case, the
phrase "$100 retainer for investigation only" is handwritten under
the typed words "contingent upon recovery," preceded by a checked
box.  In his affidavit, Mr. David asserted that he did not have a
written fee contract with Mr. Cortinez but that they agreed that
the wrongful-discharge case was on a contingency basis.  
     On April 16, 1993, Mr. Cortinez wrote a letter to the Director
of Civilian Personnel at the Arsenal.  In the letter, Mr. Cortinez
stated that he was representing Mr. David in regard to his job
termination.  He also stated in the letter that Mr. David had
received non-judicial punishment while on active duty with the
United States Navy but that he had not been convicted by a military
court martial.  Mr. Cortinez closed the letter by saying that he
looked forward to a response "to this interesting wrongful
discharge case."
     On April 20, 1993, the Cortinez Law Firm sent Mr. David a
letter of representation, stating that the attorney's fee would be
on a contingency-fee basis, to Mr. David.  The letter, which was
entitled "Wrongful Discharge & Unemployment Compensation," welcomed
Mr. David as a client and stated that the firm would receive its
fee when the case was settled.
     On May 4, 1993, the Deputy Command Judge Advocate of the
Arsenal responded to Mr. Cortinez's April 16 letter.  In his
response, the Deputy Command Judge Advocate provided grounds for
Mr. David's termination different from those originally recited. 
He wrote that Mr. David 

     ... failed to properly respond to question 42 wherein it asked
     if he had ever forfeited any collateral.  His Response in
     checking the No Block is in conflict with the disposition of
     the record of charges regarding his violation of two
     specifications of the Uniform Code of Military Justice
     (UCMJ)....  These Charges resulted in Mr. David's forfeiting
     $150.00 pay per month for 2 months and his reduction in rank
     to E2 (suspended for 6 months).

     According to Mr. Cortinez, he decided not to pursue the
termination matter because the Arsenal's decision to fire Mr. David
would be difficult to set aside.  
     On May 5, 1993, an unemployment-compensation hearing was held
in which Mr. Cortinez represented Mr. David, successfully as it
later turned out.  According to Mr. Cortinez, he wrote a memo-
letter on May 6, 1993, which was sent to Mr. David, in which he
advised Mr. David that he would not pursue the termination matter
but hoped they would get a favorable decision on the unemployment
compensation.  A copy of the handwritten memo-letter appears in the
record.  Mr. Cortinez stated that he enclosed a copy of the Deputy
Command Judge Advocate's May 4 letter, but the memo-letter does not
show a reference of any sort to an enclosure.  At the Committee
hearing, Mr. David denied receiving the letter.    
     On May 14, 1993, Mr. David paid $350 to Mr. Cortinez per the
agreement on the unemployment-compensation case.  The words
"wrongful discharge" were written on the receipt he received for
the $350.  In his affidavit, Mr. Cortinez stated that his
secretary, Jackie Evans, inadvertently wrote "wrongful discharge"
on the receipt.
     Mr. Cortinez stated that he did not hear from Mr. David
between May 5, 1993, and November 1995.  However, there is
certainly evidence to support the Committee's findings that, over
the next two and a half years, Mr. David made periodic calls to the
Cortinez Law Firm to learn the status of his wrongful-discharge
case.  According to Mr. David, he called Mr. Cortinez's Pine Bluff
office at least once every three months between May 1993 and June
1995 for a status report.   
      Mr. David stated that, in June 1995, he left a message for
Mr. Cortinez at his Little Rock office in which he inquired about
the status of the wrongful-discharge case.  According to Mr. David,
Mr. Cortinez then left a message for him on his answering machine. 
The message was that, if Mr. Cortinez had known that Mr. David
wanted to know about the wrongful-discharge case, he would have
brought the records from Pine Bluff.  Mr. David stated that, in
August 1995, at Mr. Cortinez's secretary's recommendation, he spoke
with Joel Smith at the firm.  Mr. David stated that Mr. Smith was
to look for his records in the firm's Pine Bluff office, but the
Pine Bluff office said that his records were at the Little Rock
office.
     According to Mr. David, in September 1995, Mr. Smith told him
that his wrongful discharge was not pursued because his $350 fee
had not been paid.  Mr. David stated that, in October 1995, Mr.
Smith told him that he would get back with him later because he
could not find his records but that he owed $350.  Mr. David stated
that he called Mr. Smith again and that Mr. Smith told him that the
firm's files showed that he had not paid the $350 fee.  Mr. David
stated that he told Mr. Smith that he had a receipt for the $350
and that Mr. Smith said he would check on it.  In his affidavit,
Mr. Smith stated that he only spoke to Mr. David on one occasion in
November 1995; however, at the hearing, Mr. Smith, responding to
questions from the Committee, admitted that he remembered
conversations with Mr. David.  
     At the hearing, Mr. David provided the following testimony
regarding his attempts to contact Mr. Cortinez:

     His son -- he tried to look for my records.  He said
     would I call to Little Rock.  I called from Jefferson
     Heights to Little Rock and he said that, "Your records
     aren't right here, but I will try to find them.  Call
     back later."  I finally called back later and he said, "I
     don't know where your records are.  They might be in the
     Pine Bluff office.þ
                              ****
     And I said, "Well, I'm the Pine Bluff Arsenal case in
     Pine Bluff and I can't get in contact with Mr. Cortinez
     here."  So they said, "Later.  Call back later."  All I
     kept -- did was call back later.  I talked to Joel Smith. 
     I explained to him my situation and he said well, he
     couldn't help me but Mr. Cortinez would be in later. 
     Call back.  I called back and Mr. Cortinez was never in.
     . . .

     Mr. David stated that, in November 1995, he called the firm
and that Mr. Smith transferred his call to Mr. Cortinez.  According
to Mr. David, Mr. Cortinez told him that he did not pursue the
wrongful-discharge claim because he had not paid the $350.  Mr.
David stated that he asked Mr. Cortinez whether he would have
pursued the case if he had paid him the $350 from the unemployment
case.  According to Mr. David, Mr. Cortinez responded in the
affirmative.  Mr. David stated that, when he told Mr. Cortinez that
he had a receipt for the $350, Mr. Cortinez told him to fax a copy
of the receipt.  Mr. David stated that Mr. Cortinez hung up on him
when he asked how Mr. Smith knew that he still owed $350 when he
could not find his records.
     According to Mr. Cortinez, Mr. David persisted in attempting
to force him to agree that he did not pursue his wrongful-discharge
case because he did not pay the $350 fee.  Mr. Cortinez further
stated that he told Mr. David that he did not agree to represent
him in the wrongful-discharge case and that the contract that he
signed stated that Mr. Cortinez would investigate the termination. 
     In his affidavit, Mr. Cortinez stated that the $350 payment
was not documented in the Little Rock bookkeeping system and that,
consequently, both files were closed by the Pine Bluff office with
no documentation of the fees being paid.
     At the hearing, Mr. Cortinez stated that he told Mr. David
that he should check with another attorney regarding whether his
claim had any merit; however, there is nothing to that effect in
the memo-letter by which he purportedly declined to represent Mr.
David on the wrongful-discharge claim.  Mr. Cortinez stated that he
did not invite Mr. David to his office so that he could answer any
questions regarding his decision not to continue with the case.  He
stated that he did not return Mr. David's termination letter from
the Arsenal.  Other documents in the wrongful-discharge file
include a blank employment-application form and the court
memorandum regarding Mr. David's non-judicial violation.
     Model Rule 1.16(d) states as follows:

     Upon termination of representation, a lawyer shall take
     steps to the extent reasonably practicable to protect a
     client's interests, such as giving reasonable notice to
     the client, allowing time for employment of other
     counsel, surrendering papers and property to which the
     client is entitled and refunding any advance payment of
     fee that has not been earned.  The lawyer may retain
     papers relating to the client to the extent permitted by
     other law.

     We review a decision of the Supreme Court Committee on
Professional Conduct de novo on the record and pronounce judgment
as if our opinion had been rendered by the Committee.  Fink v.
Neal, 328 Ark. 646, 945 S.W.2d 916 (1997).  We affirm the
Committee's action unless it is clearly against the preponderance
of the evidence and do not reverse the Committee's findings unless
they are clearly erroneous. Id.  See also Colvin v. Committee on
Professional Conduct, 309 Ark. 592, 832 S.W.2d 246 (1992); Muhammad
v. Committee on Professional Conduct, 291 Ark. 29, 722 S.W.2d 280
(1987).  The Committee is in the superior position to determine the
credibility of the witnesses and weigh the preponderance of the
evidence.  Colvin v. Committee on Professional Conduct, supra.

              1.  Application of Model Rule 1.16(d)
     Mr. Cortinez argues that Model Rule 1.16(d), which applies
"[u]pon termination of representation," does not impose any duty on
him because he never represented Mr. David in the wrongful-
termination case, and, instead, limited his involvement in the
matter to investigating the facts to determine whether he would be
willing to take the case.   He further argues that he completed his
attorney-client agreement with Mr. David when he conducted his
investigation and sent the memo-letter to Mr. David.
     In support of his argument, Mr. Cortinez refers to his
wrongful-discharge contract with Mr. David.  On the contract, Mr.
Cortinez wrote "$100.00 retainer for investigation only."  Mr.
Cortinez also refers to (1) Model Rule 1.2(c), which allows a
limitation of representation; (2) Model Rule 3.1, which prohibits
a lawyer from pursuing frivolous claims; and (3) Ark. R. Civ. P.
11, which requires an attorney to make a reasonable inquiry as to
both the factual and legal basis for a pleading, motion, or other
document before filing with the court.
     At this point we need only say that there was before the
Committee evidence that Mr. Cortinez did not continue to work on
the wrongful-discharge case because he thought that Mr. David owed
him $350 as a retainer for the wrongful-discharge case.  
     Whether Mr. Cortinez limited his contract of representation
was a question of fact to be decided by the Committee.  Based upon
the evidence before it, the Committee could have concluded that an
attorney-client relationship was formed with respect to the
wrongful-discharge claim and that Mr. Cortinez did not pursue to
its conclusion the "interesting" wrongful-discharge claim that
presumably became even more interesting when the Arsenal changed
its reason for discharging Mr. David. 

                 2.  Failure to surrender papers
                   a.  Procedural due process
     Mr. Cortinez also challenges the Committee's decision on the
basis that he was deprived of due process because he was not given
sufficient notice that the Committee planned to consider his
alleged failure to return Mr. David's file as a potential violation
of the Model Rules.  
     In his affidavit to the Committee, Mr. David alleged that Mr.
Cortinez violated Model Rule 1.16(d).  Additionally, in the
Committee's April 30, 1996 letter to Mr. Cortinez in which it
informed Mr. Cortinez of the claims against him, the Committee
wrote that the allegations implicated several specific rules,
including Model Rule 1.16(d).  Mr. Cortinez was again informed that
he was charged with violating Model Rule 1.16(d) at the beginning
of the hearing before the Committee on November 8, 1996.
     Mr. Cortinez argues that he had no notice that the Committee
intended to consider whether his alleged failure to return Mr.
David's file to him constituted a violation of Model Rule 1.16(d)
because the Committee's April 30 letter did not specify which of
the four parts of Model Rule 1.16(d) Mr. Cortinez allegedly
violated.  He further argues that it was not apparent from Mr.
David's affidavit that the Committee intended to consider his
alleged failure to return Mr. David's file because Mr. David did
not complain in his affidavit that Mr. Cortinez failed to return
his file to him.
     The Committee's reference to Model Rule 1.16(d) was sufficient
notice that the failure to return the client's papers was at issue. 
The Rule provides several examples of steps that an attorney must
take to protect a client's interest upon termination of
representation, including the return of the client's papers to the
client.  Mr. Cortinez should have been prepared to establish his
compliance with all aspects of the Rule.  
     Mr. Cortinez cites Colvin v. Committee on Professional
Conduct, supra, in support of his argument that the Committee
should have specifically referenced his failure to return Mr.
David's papers to him.  In the Colvin case, we held that notice was
inadequate when the attorney was notified of possible violations of
certain rules but not the one of which he was found to be in
violation.  Here, there was clear notice of the allegations
concerning the Rule ultimately found to have been violated.

                      b.  Lack of evidence
     Mr. Cortinez argues that the Committee's finding that Mr.
Cortinez failed to return Mr. David's papers to him is clearly
erroneous.  He says he did not have any papers regarding the
wrongful-termination case to which Mr. David was entitled and notes
his testimony at the hearing in which he stated that he presented
the documents that Mr. David gave him to the Administrative Law
Judge at the unemployment-compensation hearing and that there was
not any separate documentation regarding the wrongful-discharge
case.  He also notes that the Committee failed to indicate what
papers he failed to return to Mr. David and that the record does
not show that Mr. David asked that the file be returned to him.
     There is evidence from which the Committee could have found
that Mr. Cortinez had Mr. David's papers in his possession and
failed to return them.  Mr. Cortinez stated that Mr. David gave him
the termination letter from the Arsenal and the court memorandum
regarding his non-judicial punishment at their April 15 meeting.  
     As to Mr. Cortinez's argument that the record does not provide
any evidence that Mr. David sought the return of any papers, the
clear language of the Rule does not require a demand from the
client to trigger this obligation.  It places an affirmative duty
on the attorney, not the client, to protect the client's interests
upon termination of representation.  
     Affirmed.