Robert Hirschfeld -- Disbarred
(Arizona Supreme Court Opinion)
Reported at __ Ariz. __, 960 P.2d 640; 1998
Filed July 28, 1988
SUPREME COURT OF ARIZONA
IN THE MATTER OF A SUSPENDED No. SB-97-0003-D
MEMBER OF THE STATE BAR OF
ROBERT A. HIRSCHFELD
Disciplinary Commission 91-1015, 93-0378, 93-0712, 93-1403, 93-1609, 93-1787, 93-1806, 93-1831, 94-0392, 94-0853, 94-0859, 94-0863 94-0700, 94-0959, 94-0973, 94-0977 94-1065, 94-1215 94-1227, 94-1708 94-1755 & 95-0305
ZLAKET, Chief Justice.
This matter comes to the court on the unanimous recommendation of a State Bar hearing committee and our own Disciplinary Commission that respondent Robert A. Hirschfeld be disbarred. We have jurisdiction pursuant to Ariz. R. S. Ct.53(e). (note 1)
The largest category is made up of clients who were left unrepresented at hearings, trials, and other matters when respondent fled the jurisdiction in 1994 to avoid his sanction. The next group includes those clients who entered into what respondent calls "non-refundable retainer" agreements. Respondent's misconduct regarding the first group is unquestionable. He clearly abandoned clients without notice in order to serve his own interests, leaving them to fend for themselves until he returned. This behavior violated
Ethical Rules 1.3 and 1.4.
Eight of the counts involved so-called "non-refundable retainers. "Respondent typically represented husbands in dissolution and custody proceedings. His custom was to obtain a significant retainer at the inception of the representation, with a written fee agreement that stated: "The initial retainer is earned upon receipt and is non-refundable." He repeatedly relied on this clause to keep the full amount received, no matter how long he represented the client or how much work he performed.
One of the most egregious incidents involved a client who paid him $ 8000 for representation in a dissolution action. A few days later, the client and his wife reconciled. The reasonable value of respondent's professional services at that point was $ 2000. Nevertheless, he refused to return the unearned portion of the $ 8000, citing the fee agreement.
In addition to the non-refundable language, respondent's fee agreements provided: "If there is any disagreement concerning the terms of this agreement or attorneys' fees, I agree to binding arbitration with the Fee Arbitration Committee of the State Bar of Arizona." In a number of instances, clients sought relief from the Fee Arbitration Committee. Respondent appeared at some but not all of the arbitration proceedings. He lost every fee dispute. Although the awards required him to return a portion of the retainers, he did not comply.
Other allegations against respondent run the gamut of unethical conduct. In one matter, for example, he filed an ex parte request for emergency custody supported by two affidavits prepared by him and signed by the client. The affidavits contained material misrepresentations that respondent would have discovered had he exercised reasonable diligence. The trial court imposed Rule 11 sanctions against him. In another matter, respondent and his client were held in contempt and ordered to pay $ 9350 in sanctions for violating the terms of the preliminary injunction that is issued in every dissolution action. See Little v. Superior Court, 180 Ariz. 328, 331, 884 P.2d 214, 217 (App. 1994). In yet another, he advised a client to sign a financial disclosure form attesting that no third party was holding funds for him or on his behalf. The statement was plainly false because respondent was in possession of certain savings bonds that the client had given him. In still another case, he declared in open court that the opposing attorney, who represented his client's estranged wife, had taken the case only after she had "hiked up her skirt" for him. The comment was clearly inappropriate and made solely to abuse and harass the wife and her lawyer. The trial judge imposed sanctions on respondent after determining that no truthful basis for the allegations existed.
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