concurring in the judgment.
¶ 31 Before 1996, the Commission reviewed findings of fact de novo. Review in this court was by appeal, and our standard of review was also de novo. But in 1996, we amended our rules so that the Commission served as an appellate body1 and this court *163served as the court of last resort. Accordingly, Rule 53(d)(2), Ariz. R.S.Ct., now provides that, in reviewing the findings made by a hearing officer, “the commission shall apply a clearly erroneous standard.” Review in this court is no longer by appeal but is now by petition for review. Rule 53(e), Ariz. R.S.Ct. And, as does the Commission, we now use a clearly erroneous standard in reviewing findings of fact. Rule 53(e)(ll), Ariz. R.S.Ct.
¶ 32 Neither the Commission nor this court argues that the hearing officer’s findings were clearly erroneous. And yet both the Commission and this court venture off into evidentiary matters. This no doubt is what caused the Commission to believe that a suspension rather than a censure was appropriate. It could have reached that conclusion only if the hearing officer’s findings were clearly erroneous. The court, too, focuses not on the facts as found by the hearing officer, but on evidence. It describes a criminal prosecution, an adult diversion program, psychological counseling, and a settlement of a civil action. Ante, ¶ 7. The court claims it must determine if the evidence supports the factual findings made by the hearing officer and the Commission. Ante, ¶20. But the Commission is not supposed to make factual findings and no one argues that the evidence does not support the factual findings made by the hearing officer. Why then describe the evidence that supports facts contrary to those found by the hearing officer?
¶ 33 Similarly, the court recites the factual contentions of the parties, ante, ¶¶ 28, 29, as though these matter after the hearing officer made his findings. But the clearly erroneous standard of review determines the facts in this court. The court acknowledges that the hearing officer believed Walker and not his client, ante, ¶ 29, yet states that the hearing officer “made no explicit finding on the issue of consent.” Id. But the consensual nature of the touching is both implicit in and vital to the hearing officer’s findings. The court should not be ambiguous about this. Whether the contact was consensual or the result of a demand is critical to determining the appropriate sanction.
¶34 We should resolve this question by referring to the findings of fact made by the hearing officer. He specifically found that Walker did not extort his client. Instead, he said ER 1.7, the conflict of interest provision, was violated “out of negligence, poor judgment, rather than purpose.” Hearing Officer’s Report and Recommendation, Apr. 18, 2000, ¶ 43.
¶35 Neither the State Bar, the Commission, nor the court believes these findings to be clearly erroneous. Accordingly, this is a case of consensual touching, and therefore a case of conflict of interest. For that, censure is the more appropriate sanction. I therefore concur in the judgment. But had the hearing officer found that there was more to this case than consensual touching, then suspension would be the more appropriate sanction. If the court is in doubt about this, as its opinion suggests, then it should remand to the hearing officer for supplemental findings on the issue of consent.
Vice Chief Justice CHARLES E. JONES recused himself and did not participate in the determination of this matter.. The Commission does have original jurisdiction over consent agreements, Rule 56, Ariz. R.S.Ct., *163and disability matters, Rule 59, Ariz. R.S.Ct. But the notes to the 1996 amendments to Rule 53(d) acknowledge the difference and make it quite clear that as to disciplinary matters, the Commission’s role is “as an intermediate appellate body which is bound by the record below.” Rule 53(d), Ariz. R.S.Ct., Notes to 1996 Amendments [d].