Addressing Misconduct

The web page of the Arizona Presiding Disciplinary Judge notes that an appeal has been taken from a recent decision dismissing ethics charges against a court-appointed attorney.

The facts in this matter are generally undisputed. Mr. DeBrigida represented criminal clients in Rule 32 post-conviction relief (PCR) matters on behalf of the Office of Public Defense Services. On more than one occasion, Mr. DeBrigida relied on an incorrect addresses given to him by the Office of Public Defense Services when he attempted to make initial contact with his appointed clients by letter. He further allegedly failed to meet court imposed deadlines to file PCR petitions. The Court approved repeated requests for extensions. We do not find based on the evidence that such practice was unusual or a violation of ethical rules.

The State Bar was critical of Mr. DeBrigida for mailing initial engagement letters to new clients allegedly to wrong addresses. Ironically, the State Bar submitted as evidence three of its letters that had been returned by the U.S. Postal Service – the Bar had mailed each of those letters to those same clients. [SBA Exhibits 4, 11, & 27.] Even when pursuing discipline against this Respondent for faulty mailings, the hearing panel notes that the State Bar had the same experience.

The Respondent presented sufficient evidence to show that he has put systems in place to confirm all addresses supplied to him by the Office of Public Defense Services. He also showed that he has adopted a system of calendaring to track Office of Public Defense Services case deadlines.

The State Bar has the burden of clear and convincing evidence. While many of the facts are stipulated to, the implications of those facts were not stipulated to. The burden of proof relates to both facts and their implications. The State Bar having failed to meet its burden of proof,

IT IS ORDERED dismissing the matter with prejudice.

Attorney Panel Member James Marovich concurred

Margaret Atwood, the Canadian novelist and poet, has said that if she had to wait for perfection, she would never write a word. A similar idea also has been echoed in medicine, where it has been said that “because humans are not perfect, corrections must be made from time to time.” Washington and Leaver, Principles and Practice of Radiation Therapy 38 (4th ed. 2016).

The same can be said for lawyers and the practice of law. We are human and we are not perfect, and if we had to wait for perfection, we would never be able to help our clients. Alan Dershowitz, in his Letters To A Young Lawyer, wrote that “[l]aw is an imperfect profession … all practicing lawyers – and most others in the profession – will necessarily be imperfect, especially in the eyes of young idealists.”

Reasonable under the rules does not mean perfect.

(Mike Frisch)