In the Matter of William J. Downey

SUPREME COURT OF ARIZONA

In the Matter of a Member of the ) Arizona Supreme Court
State Bar of Arizona, ) No. SB-02-0124-D
)
) Disciplinary Commission
) Nos. 00-0429
WILLIAM J. DOWNEY, ) 00-1469
Bar No. 007379, ) 00-2058
)
) AMENDED
) MEMORANDUM DECISION
Respondent.) AND ORDER
) (Not for Publication
) Ariz. R. Sup. Ct. 111)

REVIEW FROM DISCIPLINARY COMMISSION

REMANDED

KIMERER & DERRICK Phoenix
by Michael D. Kimerer
and Holly R. Gieszl
Attorneys for Respondent

STATE BAR OF ARIZONA Phoenix
by Robert B. Van Wyck, Chief Bar Counsel
and James D. Lee, Senior Bar Counsel
Attorneys for State Bar of Arizona

BRYAN CAVE, L.L.P. Phoenix
by Mark I. Harrison
and Dawn R. Sinclair
Attorneys for Amicus Curiae

B E R C H, Justice

¶1 On January 9, 2003, this court heard oral argument

regarding the appropriate discipline to impose upon Respondent

William J. Downey. Respondent had been found by a hearing officer

of the State Bar to have violated the Rules of Professional Conduct

by failing to hold the property of clients or others associated

with his representation of clients separate from his personal and

business funds, failing to promptly and accurately record all trust

account transactions, failing to promptly deliver to third persons

funds they were entitled to receive, failing to maintain and

preserve trust records, failing to observe the Supreme Court’s

Trust Account Guidelines, failing to use internal controls to

safeguard the funds held in trust, failing to maintain appropriate

trust records, and failing to respond promptly and completely to

State Bar inquiries. The charges against Respondent stemmed from

his commingling of personal and client funds in his trust account

and his use of his trust account as a source from which to pay

personal and business expenses. Some acts were deemed to be

knowing rather than negligent because they continued to occur after

Respondent had been educated through consultation with a Law Office

Management Assistance Program representative to learn about trust

account responsibilities. This conduct was found to have violated

Rule 42, Ariz. R. Sup. Ct., ER 1.15(a) and (b), ER 8.1(b), Rule

43(a) and (d)(1.a, 1.c, 1.d, 1.e, 2.b, 2.c, 2.d, and 2.f), Rule

44(a) and (b)(4), and Rule 51(h) and (i). The hearing officer

recommended, among other things, that Respondent be suspended from

the practice of law for six months.

-2-

¶2 The members of the disciplinary commission adopted the

hearing officer’s findings, but reduced the sanction from a six-

month to a three-month suspension.

¶3 At oral argument before this court, it was revealed that

new evidence was available that the parties acknowledged might bear

on the appropriate disposition of these charges and other charges

pending against the Respondent.

¶4 In light of the foregoing, we conclude that the interests

of justice require that this matter be remanded to the hearing

officer for further proceedings. In the interim, Respondent will

be placed on suspension from the practice of law, pending final

determination of discipline. Ariz. R. Sup. Ct. 52(c) (allowing

interim suspension by court). We base the imposition of interim

suspension upon the showing on the record that Respondent “appears

to be . . . engaging in conduct the continuation of which will

result in substantial harm, loss or damage to the public, the legal

profession or the administration of justice.” Id. § (c)(1).

Therefore,

¶5 IT IS ORDERED that Respondent William J. Downey is hereby

placed on interim suspension from the practice of law.

¶6 IT IS FURTHER ORDERED that such suspension shall continue

in effect until further order of this court.

-3-

¶7 IT IS FURTHER ORDERED remanding this matter to a hearing

officer for further proceedings.

DATED this 10th day of January, 2003.

Rebecca White Berch, Justice

CONCURRING:

Charles E. Jones, Chief Justice

Michael D. Ryan, Justice

-4-