End-of-life notice: American Legal Ethics Library
As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
We regret any inconvenience.
Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
Arizona Legal Ethics
0.1:100 Sources of Law and Guidance
The conduct of lawyers admitted to practice in Arizona is now governed by the Arizona Rules of Professional Conduct, which are set forth in Rule 42 of the Rules of the Supreme Court and which closely parallel (but see Section 0.1:104, infra) the American Bar Association's Model Rules of Professional Conduct. The Arizona Rules of Professional Conduct were adopted, effective February 1, 1985, by an Order of the Arizona Supreme Court issued on September 7, 1984. They replaced the Arizona Code of Professional Responsibility, which was based on the American Bar Association's Model Code of Professional Responsibility. The only significant revisions to the Arizona Rules of Professional Conduct that have been adopted since their initial promulgation have been to the provisions governing lawyer communications to prospective clients and lawyer advertising, Rules ER 7.1 through 7.4, which were amended initially in 1989, and then again in 1992. The Rules were amended significantly in June 2003, effective December 1, 2003, as a result of a process discussed in Section 0.1:103, infra.
In defining the "Scope" of the Arizona Rules of Professional Conduct, the Preamble makes the following observation:
The rules presuppose a larger legal context shaping the lawyerÍs role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. . . . Compliance with the rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The rules simply provide a framework for the ethical practice of law.
Arizona Rules of Professional Conduct, Rule 42, RASC, Preamble, õõ 15, 16.
Simply by way of example, Rule 43 of the Rules of the Arizona Supreme Court imposes detailed requirements for the maintenance, and audits, of client trust accounts. Rule 45(a) of those Rules imposes upon every active member of the State Bar of Arizona the obligation to complete a minimum of fifteen hours of continuing legal education activity, at least three hours of which must be in the area of professional responsibility, in each educational year (July 1 to June 30). A recent amendment to this Rule requires all active members of the State Bar who have not previously done so to complete, by no later than June 30, 2004, the State Bar Professionalism Course, or an approved equivalent course on the principles of professionalism.
In adopting the Arizona Rules of Professional Conduct, the Supreme Court left in place Rule 41 of the Rules of the Supreme Court, which imposes upon lawyers a variety of obligations, not all of which are duplicated in the Arizona Rules of Professional Conduct. Specifically, Rule 41 requires all attorneys to, inter alia: (1) support the Constitution and laws of the United States and of the State of Arizona; (2) maintain the respect due to courts of justice and judicial officers; (3) counsel or maintain only actions, proceedings or defenses which appear legal and just, except in conducting the defense of a person charged with a public offense; (4) in rendering legal services, employ only such means as are consistent with truth, and never seek to mislead judges by any artifice or false statement of fact or law; (5) maintain inviolate the confidences and preserve the secrets of a client; (6) abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause in which the lawyer is engaged; and, (7) not encourage either the commencement or continuation of an action or proceeding from any corrupt motive of passion or interest, and never reject on the basis of any personal consideration the cause of the defenseless or the oppressed.
Finally, although neither the Model nor the Arizona Rules of Professional Conduct retained the prohibition on the appearance of impropriety contained in Canon 9 of the Code of Professional Responsibility, the Arizona Supreme Court has held that the "appearance of impropriety" standard survives as part of any analysis of a possible conflict of interest. Gomez v. Superior Court, 149 Ariz. 223, 717 P.2d 902 (1986); State ex rel. Romley v. Superior Court, 181 Ariz. 378, 891 P.2d 246 (App. 19950; Sellers v. Superoir Court In and For Maricopa County, 154 Ariz. 281, 742 P.2d 292 (App. 1987). An appearance of impropriety should be enough to cause an attorney to closely scrutinize whether to proceed with the engagement that gives rise to the conflict, even though it is generally "too slender a reed" on which to rest an order requiring the attorney's disqualification, except in the rarest of cases. Sellers v. Superior Court In and For Maricopa County, 154 Ariz. 281, 289, 742 P.2d 292, 299 (App. 1987).
The definitive source of guidance concerning the proper interpretation and application of the Arizona Rules of Professional Conduct is opinions issued by the Supreme Court of Arizona in disciplinary cases. The next most definitive source of guidance is decisions of the Disciplinary Commission, whose functions and operation are described in Sections 0.2:230 and 0.2:240, infra.
The State Bar of Arizona also has a standing Committee on the Rules of Professional Conduct, the membership of which is appointed by the State Bar Board of Governors, and which operates under its own Statement of Jurisdictional Policies (hereinafter "Jurisdictional Statement"). As stated in the initial paragraph of that Jurisdictional Statement:
1. The Committee, having been created by action of the Board of Governors of the State Bar of Arizona as a means of providing continuing assistance to the State Bar and its members in the resolution of questions or professional ethics arising from time to time, conceives that its primary function is that of affording ethical guidance to lawyers. Ethical guidance may consist of formal or informal opinions or telephone advice in response to inquiries presenting questions of professional ethics with respect to contemplated future conduct. Such opinions shall endeavor to construe and apply to the particular facts presented in each such inquiry the then-controlling standards defining proper professional conduct of members of the State Bar.
Jurisdictional Statement, õæ1. Although opinions are generally issued in response to inquiries from lawyers, the Committee may also issue opinions on its own initiative. Jurisdictional Statement, õæ2. Formal opinions are limited to subjects or inquiries determined by the Committee to be of widespread interest or unusual importance. Id. All other opinions are designated and treated as informal opinions. Id. A formal opinion overrules any prior formal or informal opinion with which it is in conflict. Id. An informal opinion overrules an earier informal opinion to the extent they are in conflict, but does not overrule a prior formal opinion. Id.
Opinions will only address whether a proposed course of professional conduct is or is ont in violation of then-applicable ethical standards. Jurisdictional Statement, õæ3. The Committee will not render opinions concerning the ethical propriety of past conduct of the inquiring attorney or concerning the ethical propriety of an attorney other than the inquiring attorney. Jurisdictional Statement, õæ4. The Committee will also not render opinions (a) on pure questions of law; (b) on questions that are within the jurisdiction of the Board of Governors, the Disciplinary Commission, another Committee, or an official of the State Bar; (c) on questions involving solely the attorney's exercise of judgment or discretion; (d) on questions of the propriety of the amount of an attorney's fee, or of a contingent fee percentage, where such amount or percentage is not so unreasonable as to constitute misappropriation of the client's funds; (e) on questions of the proper division of fees between or among attorneys except in cases where the demand of one of the attorneys is so unreasonable as to constitute misappropriation of a client's funds; or (f) on questions of the propriety of an attorney's enforcing a possessory retaining lien against the papers, funds or other property of the attorney's client to secure payment of the attorney's fee and disbursements. Jurisdictional Statement, õæ6. The Committee may also decline to render an opinion where the facts submitted are insufficient to enable the Committee to answer the inquiry definitively, where the inquiry does not present a specific factual problem, or where the Committee determines that an opinion would not be appropriate or serve a useful purpose. Jurisdictional Statement, õõæ7, 8 and 9.
While the formal opinions of the Committee may, and generally will, be considered by disciplinary Hearing Officers and Committees, and the Disciplinary Commission, they are not binding upon the decisionmaking bodies in the discplinary process. Jurisdictional Statement, õæ11. The fact that a member of the Bar has followed the guidance provided by a formal opinion of the Committee is a factor that will be considered in determining whether to recommend or impose a sanction. Id.
In issuing its opinions, the Committee will consider the reasoning and conclusions expressed by the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (the "ABA Committee") in its opinions to be highly persuasive precedent, but not conclusively binding, in resolving identical or analogous ethical questions. Jurisdictional Statement, õæ10. Greater persuasive force will be accorded to formal opinions of the ABA Committee than to informal opinions. Id. The Committee specifically reserves to itself the prerogative to decline to follow the position of the ABA Committee in situations where the Committee does not find the reasoning and conclusions of the ABA Committee to be presuasive. Id.
Finally, in a recent decision discussing lawyersÍ obligations to non-clients and conflicts of interests, the Arizona Supreme Court relied heavily on the American Law InstituteÍs Restatement (Third) of the Law Governing Lawyers.
Following the adoption of the Model Rules of Professional Conduct by the House of Delegates of the American Bar Association on August 2, 1983, the Board of Governors of the State Bar of Arizona appointed a Special Committee on the Model Rules of Professional Conduct, chaired by now Maricopa County Superior Court Judge Roger Kaufman, to study the Rules and coordinate with the Supreme Court of Arizona concerning whether they should be adopted to replace the Arizona Code of Professional Responsibility. The Committee eventually recommended that the Model Rules, with certain suggested changes, be adopted. The Arizona Rules of Professional Conduct were adopted, effective February 1, 1985, by an Order of the Arizona Supreme Court issued on September 7, 1984. As adopted, they contained certain differences from the version of the Model Rules approved by the American Bar Association. See discussion in Section 0.1:104, infra. Certain, but not all, of these differences emanated from the work of the Special Committee. There were certain departures from the Model Rules recommended by the Committee which the Supreme Court did not adopt, and certain other departures which the Supreme Court adopted sua sponte.
Anticipating the changes that might be made to the ABAÍs Model Rules of Professional Conduct as a consequence of the work of the Ethics 2000 Commission, the President of the State Bar appointed in January 2001 a special Task Force, called the Ethical Rules Review Group ("ERRG"), to study the existing Rules, certain pending proposals, the recommendations of the Ethics 2000 Commission and the actions taken with respect to them by the ABA House of Delegates. The ERRG proposals, which differed in many respects from the Model Rules as amended by the House of Delegates in 2002 (See discussion in Section 0.1:104, infra.), were presented to the Board of Governors in October and November 2002. Additional changes were made as a result of the discussions at the Board of Governors meetings, and the Board transmitted a package of proposed amendments to the Supreme Court in December 2002. With minor exceptions, the Court adopted these proposed changes on June 9, 2003, with an effective date of December 1, 2003. This Second Edition discusses the Rules as they were thus amended.
There are a number of instances where the Arizona Rules of Professional Conduct and/or the accompanying Comments differ substantively from the Model Rules of Professional Conduct, as promulgated by the American Bar Association. Simply by way of example, Arizona has adopted the requirement for written fee agreements, and permits screening to avoid imputed disqualification resulting from migratory lawyers joining a firm. Both of those provisions were not adopted as part of the Model Rules of Professional Conduct.
Each of the Chapters in this Handbook contains a section that discusses in detail the differences, if any, between the Arizona Rule that is the subject of that particular Chapter and the corresponding Model Rule.
0.2:200 Forms of Lawyer Regulation in Arizona
In Arizona, by reason of Article 3 of the Arizona Constitution, the practice of law is a matter exclusively within the authority of the judiciary. In re Creasy, 198 Ariz. 359, 12 P.3d 214 (2000). The practice of law has been defined as those acts, whether performed in court or in the law office, which lawyers have customarily carried on from day to day through the centuries. Id; State Bar of Arizona v. Arizona Land Title & Trust Co., 90 Ariz. 76, 366 P.2d 1 (1961). The Supreme Court of Arizona has exclusive authority with respect to the admission to practice, regulation, and discipline, of attorneys at law. In the context of attorney discipline, any lawyer admitted to practice in Arizona is subject to the disciplinary and disability jurisdiction of the Arizona Supreme Court. Rule 46(a), Rules of the Arizona Supreme Court (hereinafter "RASC"). Non-members engaged in the practice of law in Arizona, lawyers or non-lawyers specially admitted to practice for a particular proceeding, and foreign legal consultants submit themselves to the discipline and disability jurisdiction of the Arizona Supreme Court. Rule 46(b), RASC. The Court clearly has jurisdiction to enjoin the unauthorized practice of law by a disbarred, but formerly admitted, lawyer. In re Creasy, supra.
Former judges that resume the practice of law are subject to the disciplinary jurisdiction of the Supreme Court not only for their conduct as lawyers, but also for misconduct that occurred while they were judges that would have been grounds for lawyer discipline, provided that the misconduct was not the subject of a judicial discipline proceeding that has become final. Rule 46(c), RASC. If an incumbent judge is removed, or resigns, from judicial office as a result of a judicial discipline or disability proceeding, the Court is to give both the State Bar and the judge an opportunity to submit to the court a recommendation whether lawyer discipline or disability status should be imposed based upon the record in the judicial discipline proceeding and, if so, the extent of discipline to be imposed. Rule 46(d), RASC.
The discipline and disability rules do not usurp or limit the powers of courts to control proceedings before them. Rule 46(e), RASC. For a discussion of the authority for, and the nature of, sanctions that may be imposed upon attorneys in connection with judicial proceedings, see Section 0.2:250, infra.
The State Bar of Arizona is an organization established by Rule 31(a)(1) of the Rules of the Arizona Supreme Court (hereinafter "RASC"). The State Bar of Arizona is a mandatory bar, and all persons licensed to engage in the practice of law in Arizona must be members of it. Rule 31(a)(1), RASC. Conversely, subject to the exceptions discussed hereinafter, persons who have not been admitted to the Arizona Bar and become members of the State Bar of Arizona may not practice law in the state. Thus, an attorney who is licensed to practice law in another state and before the United States Supreme Court, but not in Arizona, may not practice law in Arizona even if she or he limits her or his practice exclusively to social security disability, retirement and survivors' insurance, medicare, and supplemental security income claims. Arizona Ethics Opinion No. 84-07.
There are five classes of membership in the State Bar: active, inactive, retired, suspended and judicial. Rule 32(c)(1), RASC. Disbarred lawyers are not members. All members must pay an admission fee set by the Supreme Court. An active member who is retired from or not engaged in the practice of law may be transferred to inactive status upon written request to the Executive Director. Inactive members may not practice law. Retired members may be transferred to retired status in the same fashion and are subject to the same restrictions. Incapacitated members may be transferred to disability inactive status as provided in the Rule 59, RASC. Id.
Judicial membership is available to justices of the Arizona Supreme Court, judges of the Arizona Court of Appeals, judges of the Superior Court and judges of the United States District Court for the District of Arizona. Rule 32(c)(5), RASC. It is also to be accorded to full-time commissioners, city or municipal court judges, judges pro tempore or justices of the peace in Arizona, and to justices or judges of other courts of record of the United States or other states. Judicial members may vote, but may not hold office. Id.
The Board of Governors sets an annual membership fee for active, inactive and judicial members. Rule 32(c)(6), RASC. The annual fee is waived for persons on disability inactive status. A portion of the annual fee is for the funding of the Client Protection Fund. Rule 32(c)(7), RASC. That portion of the annual fee is an assessment the amount of which is set by the Supreme Court. Id. Failure to pay the annual fee within two months after notice that the fees are delinquent results in summary suspension upon motion of the State Bar. Rule 32(c)(9), RASC.
Members of the State Bar who are in good standing may resign by filing a resignation, on a form prescribed by the Board of Governors, with the State Bar, and the resignation becomes effective when accepted by the Board of Governors and approved by the Supreme Court. Rule 32(c)(10), RASC. Resignation is not a bar to the institution of subsequent disciplinary proceedings for any conduct of the resigned member that occurred prior to the resignation. A resignation will not be accepted if there is a disciplinary charge or complaint pending against the resigning member. Resigned members in good standing may be reinstated in the same manner and on the same terms as members suspended for non-payment of membership fees. Id.
The State Bar is governed by a Board of Governors which is to have the powers prescribed by the Supreme Court. Rule 32(d), RASC. Among the powers and duties prescribed by this Rule are the power to appoint officers, committees and employees as it sees fit, preparation of an annual statement showing receipts and expenditures for the preceding twelve months, implementing and administering the mandatory legal education requirements imposed by Rule 45, RASC, and maintaining the Clients Security Fund authorized by the membership of the State Bar in April 1960.
The Board of Governors of the State Bar consists of 26 members, four of whom are designated as "public members," appointed by the Board for two year terms. Rule 32(e), RASC. Public members may be reappointed for one additional term of two (2) years, but no individual may serve more than four (4) years as a public member. Public members shall not be members of the State Bar and may not have a financial interest in the practice of law other than as consumers. No more than two (2) public members may be from the same District. In addition, there are three (3) at-large members appointed by the Supreme Court for terms of two (2) years. Id.
The remaining nineteen (19) members are elected as follows: one member from Bar District 1 (Mohave, Navajo, Coconino and Apache Counties), one member from Bar District 2 (Yavapai County), one member from Bar District 3 (Gila, Graham and Greenlee Counties), one member from Bar District 4 (Cochise County), three members from Bar District 5 (Pima and Santa Cruz Counties), nine members from Bar District 6 (Maricopa County), one member from Bar District 7 (LaPaz and Yuma Counties), one member from Bar District 8 (Pinal County), and the elected President of the Young Lawyers Section. Rule 32(e), RASC. Members are elected for two-year terms, with the exception of the President of the Young Lawyers Section, who serves only for a year. Members from Bar Districts 1, 3, 4, 5 and 7 are elected at elections conducted during even-numbered years. Members from Districts 2, 6 and 8 are elected in elections conducted during odd-numbered years. Elected members hold office until their successors are elected and qualified. If an elected member moves his or her principal place of business from the Bar District from which he or she was elected, that seat becomes vacant and may be filled by the remaining members of the Board. Id.
The officers of the State Bar are a president, a president-elect, two vice-presidents and a secretary/treasurer, elected by the Board of Governors. Rule 32(f), RASC. (The present composition of the BarÍs officers combines the offices of secretary and treasurer, which are held by the same individual.) The day-to-day operations of the State Bar are administered by an Executive Director, who is an employee of the State Bar selected by the Board of Governors.
There are certain instances where individuals may engage in activities that constitute the practice of law without having secured admission to, and being a member of, the State Bar of Arizona. For example, Rule 31(c), RASC prescribes the following situations where lay persons may, without being licensed as an attorney, engage in activities that would otherwise constitute the practice of law:
1. In proceedings before the Department of Economic Security, an individual party may represent himself or herself, or be represented by a duly authorized agent who is not charging a fee for the representation;
2. In proceedings before the Department of Economic Security, an employer, including a corporate employer, may be represented by an officer or employee;
3. In proceedings before the Department of Economic Security, a duly authorized agent who is charging a fee may represent any party, but an attorney authorized to practice law in Arizona must be responsible for and supervise such an agent;
4. An employee may represent herself or himself, or may designate a representative who need not be an attorney, before any board hearing or any quasi-judicial hearing dealing with personnel matters, but any such designated representative who is not a licensed attorney may not charge any fee for any such services rendered;
5. An officer of a corporation, or a managing member of a limited liability company, who is not a licensed attorney may represent such an entity before a justice court, provided that (a) the entity has specifically authorized that individual to represent it before such courts, (b) such representation is secondary or incidental to other duties of that individual to the entity, and is not the individualÍs primary duty, (c) the entity was an original party to or a first assignee of a conditional sales contract, conveyance, transaction or occurrence which gave rise to the proceeding in that court, and (d) the assignment was not made for a collection purpose;
6. A person who is not an active member of the State Bar may represent a party in small claims procedures in the Arizona Tax Court;
7. An officer or other duly authorized agent of a corporation, who is not charging a fee for the representation, may represent a corporation before the Industrial Commission of Arizona or the Arizona Division of Occupational Safety and Health in any matter arising under Chapter 2, Article 10 of Title 23 of the Arizona Revised Statutes;
8. An ambulance service may be represented by a corporate officer or employee who has been specifically authorized to represent it in administrative proceedings before the Arizona Department of Health Services;
9. A person who is not an active member of the State Bar may represent a corporation in small claims procedures, provided such person is a full-time officer or employee of the corporation and is not charging a fee for the representation;
10. A party may represent himself or herself, or be represented by a duly authorized agent who is not charging a fee for the representation, in any administrative appeal before the Department of Health Services, for behavioral health services;
11. An officer or employee of a corporation or unincorporated association who is not an active member of the State Bar may represent the corporation or association before the Superior Court in general stream adjudication proceedings, provided that (a) the corporation or association has specifically authorized the officer or employee to represent it in such proceedings, (b) the representation is not the officerÍs or employeeÍs primary duty to the corporation or association, but is secondary or incidental to other duties related to the management or operation of the corporation or association, and (c) the officer or employee is not receiving separate or additional compensation for the representation.
12. An officer or full-time and permanent employee of a corporation who is not an active member of the State Bar may represent the corporation in administrative proceedings before the Arizona Department of Environmental Quality, provided that (a) the corporation has specifically authorized the officer or employee to represent it in the particular administrative hearing, (b) the representation is not the officerÍs or employeeÍs primary duty to the corporation, but is secondary or incidental to other duties of the officer or employee related to the management or operation of the corporation, (c) the officer is not receiving separate or additional compensation for the representation, and (d) the corporation has been furnished a timely and appropriate general written warning relating to the potential effects of the proceeding on the corporationsÍ and its ownersÍ legal rights;
13. A legal entity may be represented, in proceedings before the Office of Administrative Hearings, by a full-time officer, partner, member or manager of a limited liability company, or employee, provided that (a) the legal entity has specifically authorized such person to represent it in the particular matter, (b) such representation is not the personÍs primary duty to the legal entity, but is secondary or incidental to other duties relating to the management or operation of the entity, and (c) the person is not receiving separate or additional compensation for the representation;
14. An individual may represent herself or himself, or be represented by a duly authorized agent who is not charging a fee for the representation, in any administrative appeal proceeding relating to the Arizona Health Care Cost Containment System;
15. An individual may appear on his or her own behalf, or be represented by a certified public accountant, or by a federally authorized tax practitioner, in any administrative proceeding concerning the Arizona Department of Revenue, whether before that Department or before the Office of Administrative Hearings, and in administrative proceedings before a state or county board of equalization, the Arizona Department of Transportation, the Arizona Department of Economic Security, the Arizona Corporation Commission, or any county, city or town taxing or appeals official. If the amount in dispute in such proceeding is less than five thousand dollars ($5,000), the taxpayer may be represented by any duly authorized representative. In any such proceeding, regardless of the amount in controversy, a legal entity, including a governmental entity, may be represented by a full-time officer, partner, member or manager of a limited liability company, or employee provided (1) the entity has specifically authorized that person to represent it in the matter; (2) the representation is not that personÍs primary duty to the entity, but is secondary or incidental to other duties that person has relating to the management or operation of the entity; and, (3) the person does not receive separate or additional compensation for the representation.
16. A taxpayer may be represented before the Board of Tax Appeals, in any single dispute where the amount involved is less than twenty-five thousand dollars ($25,000), by a certified public accountant, or by a federally authorized tax practitioner.
In addition, clinical law professors, certain law students participating in an approved clinical law practice program, attorneys employed by approved legal services organizations, and what are termed "emeritus attorneys" may engage in the practice of law under carefully circumscribed circumstances prescribed in the Rules of the Arizona Supreme Court.
Clinical Law Professors
A clinical law professor who is not a member of the bar but is certified under Rule 38(f)(1), RASC, may appear as a lawyer in any court or administrative tribunal, but only in connection with the supervision of a clinical law program approved by the Dean and Faculty of the University of Arizona College of Law or of the College of Law of Arizona State University. The appearance is limited to the types of matters for which eligible law students may appear, and there must be a written consent from the person on whose behalf the appearance is made filed in the record of the case. Rule 38(b), RASC. To make appearances under this Rule, a clinical law professor must be employed as a faculty member of the College of Law of the University of Arizona or the College of Law of Arizona State University for the purpose, inter alia, of instructing and supervising a clinical law program approved by the Dean and Faculty of the school, be admitted by examination to the bar of another state or the District of Columbia, not ask for or receive any compensation or remuneration from the person on whose behalf services are rendered, and certify familiarity with the Arizona Rules of Professional Conduct, the Rules of the Supreme Court and statutes of the State relating to the conduct of lawyers. Rule 38(e), RASC.
A certification of a clinical law professor by the Dean of the law school involved is to be filed with the Clerk of the Supreme Court and shall remain in effect until withdrawn. Rule 38(f), RASC. The certification of a clinical law professor may be withdrawn by the Dean at any time for any reason by filing a notice to that effect with the Clerk of the Supreme Court, who is to mail a copy of the notice to the professor affected, and may be terminated by the Court at any time without cause, notice or hearing. Id.
Clinical law professors that engage in the practice of law to the extent contemplated by these Rules will be deemed active members of the State Bar to that extent, without the requirement to pay dues. The rules of law and of evidence relating to privileged communications between attorney and client govern communications made or received by professors certified under the provisions of these Rules. Rule 38(h), RASC.
Students Participating in Clinical Programs
An "eligible" law student may appear in any court or administrative tribunal on behalf of any person who has indicated consent to such appearance in writing, both by the student and by the supervising lawyer, but only in the following types of matters: any civil matter, any misdemeanor criminal defense matter in Justice, Municipal and Magistrate Courts, and any felony criminal defense matter in Justice, Municipal, and Magistrate Courts and any criminal matter in Superior Court. Where the appearance is in a felony criminal defense matter or in Superior Court, the supervising lawyer must also be present. Rule 38(c), RASC.
An "eligible" law student may also appear in any criminal matter on behalf of the state or any political subdivision with the written approval of the prosecuting attorney. In every case, the consent or approval for the law student to appear must be filed in the record of the case and brought to the attention of the judge or the presiding officer of the administrative tribunal. Id.
Under the general supervision of a supervising lawyer, an "eligible" law student may engage in (1) the preparation of pleadings to be filed, but the pleadings must be signed by the supervising lawyer; (2) in the preparation of briefs abstracts and other papers to be filed in the appellate courts, which must also be signed by the supervising lawyer; and, (3) in giving assistance to indigent inmates of correctional institutions who request such assistance in preparing applications for post-conviction relief except when the assignment of counsel is required by any constitutional provision, statute or rule of court. If there is a lawyer of record in the case, that lawyer must supervise the law student and any documents filed must be signed by the lawyer of record. An "eligible" law student may also render legal advice and perform other services but only after prior consultation with and the express consent of the supervising lawyer. Eligible law students may participate in oral arguments in the Supreme Court and the Court of Appeals, but only with the supervising lawyer present. Id.
All the activities of law students authorized by this Rule must be part of the law school's educational and clinical law practice program approved by the Dean and Faculty of the school. A written statement of the contents of the school's educational and clinical law practice program must be filed with the Executive Director of the State Bar of Arizona prior to the commencement of the program. Id.
"Supervising lawyer" refers either to a clinical law professor or a member of the State Bar in each case whose service as a supervising lawyer is approved by the Dean of the law school in which the student is enrolled. The supervising lawyer must assume personal professional responsibility for guidance of the student and supervising the quality of the studentÍs work. This responsibility cannot be delegated, except that the incumbent of a public office may designate one or more qualified deputies for this purpose. The supervising lawyer must also agree to serve as a supervising lawyer in either the program administered by the College of Law of the University of Arizona or the College of Law of Arizona State University. Rule 38(g), RASC.
Law students may make appearances under this Rule if they are enrolled in the College of Law of the University of Arizona or the College of Law of Arizona State University, or in some other law school accredited by the American Bar Association, are supervised by a member of the State Bar of Arizona, and have been certified by the Dean of the law school in which the student is enrolled on a form which shows compliance with the requirements of Rules 38(c)(6), 38(e)(2), 38(e)(3) and 38(g), RASC. The student must have successfully completed legal studies amounting to at least three semesters and be certified by the Dean of the law school involved as being of good character and competent legal ability and as being adequately trained to perform as a legal intern, which shall include instruction in civil, criminal and courtroom procedure. Finally, the student may not ask for or receive any compensation or other remuneration from the person on whose behalf services are rendered and must certify familiarity with the Arizona Rules of Professional Conduct, the Rules of the Supreme Court and the statutes relating to the conduct of attorneys. This provision does not preclude a lawyer, legal aid bureau, law school, public defender agency or the state from paying compensation to the eligible law student, or prevent such agencies from making such charges for its services as it may otherwise properly require. Rule 38(e), RASC.
A certification of a law student as "eligible" under these Rules is to be filed with the Clerk of the Supreme Court and, unless sooner withdrawn, remains in effect until the expiration of eighteen (18) months after it is filed or until the announcement of the results of the first bar examination given after the studentÍs graduation, whichever is earlier. The certification of a student may be withdrawn by the Dean at any time for any reason by filing a notice to that effect with the Clerk of the Supreme Court, who is to mail a copy of the notice to the law student affected, and may be terminated by the Court at any time without cause, notice or hearing. Rule 38(f), RASC.
Eligible students that engage in the practice of law to the extent contemplated by these Rules will be deemed active members of the State Bar to that extent, without the requirement to pay dues. The rules of law and of evidence relating to privileged communications between attorney and client govern communications made or received by students certified under the provisions of these Rules. Rule 38, RASC.
Attorneys Employed by Approved Legal Services Organizations
Rule 40, RASC permits attorneys who have been admitted to practice law in any other jurisdiction for at least two years and who are employed full time by an approved legal services organization in Arizona to practice before all courts in Arizona, under certain conditions.
An "approved legal services organization" is a not-for-profit legal services organization which has as one of its primary purposes the provision of legal assistance to indigents, free of charge, in civil matters and which has been approved by the Supreme Court. An organization seeking such approval must file a Petition with the Supreme Court certifying that it is a not-for-profit organization, and specifying the organization's structure and that it does not accept fees for services rendered from its clients, the major sources of funds used by the organization, the criteria used to determine eligibility of clients to receive funds from the organization, the types of legal and nonlegal services performed by the organization, the names of all members of the State Bar of Arizona who are employed by or who regularly perform legal work for the organization, and the existence and extent of malpractice insurance covering attorneys authorized to practice under this Rule. A copy of the Petition must be sent to the State Bar of Arizona which has ten (10) days to submit any comments it might have. A legal services organization is not approved until a formal order to that effect is entered by the Arizona Supreme Court. Rule 40(1), RASC.
An attorney seeking authority to practice under Rule 40 must file an application with the Arizona Supreme Court which must include: (1) a certificate from the highest court or agency in the jurisdiction where the applicant is licensed documenting that the applicant has fulfilled the requirements of active bar membership for at least two years preceding the date of the application and has not been disciplined for professional misconduct for five years, or during the time the applicant has been licensed, whichever is greater; (2) a statement signed by an authorized representative of an approved legal services organization that the applicant is employed full time by that organization; and, (3) a sworn statement that the applicant has read and is familiar with the Rules of the Supreme Court and of any Arizona statutes governing the conduct of lawyers and will abide by them, that the applicant submits to the jurisdiction of the Arizona Supreme Court for disciplinary purposes, and that the applicant has not been disciplined by the bar or courts of any jurisdiction within the past five years. A copy of the application must be served upon the State Bar of Arizona, which has a period of ten (10) days to make any objection it might have. An attorney is not authorized to practice under the Rule until the Arizona Supreme Court enters a formal Order to that effect. Rule 40(2), RASC.
An attorney authorized to practice under the Rule may only perform legal services for clients of the approved legal services organization by which the attorney is employed, and may not accept any compensation for such services except such salary as the organization may pay the attorney. Rule 40(4), RASC. An attorney authorized to practice under this Rule must be supervised by an attorney who is an active member of the State Bar of Arizona and who is also employed full time by the same legal services organization. Rule 40(5), RASC.
Authorization to practice law under Rule 40 automatically expires 24 months from the date of the Order granting such authority. If the attorney ceases full-time employment with the approved legal services organization within that 24-month period, the organization must notify the Supreme Court of that termination within five (5) days of the termination. Rule 40(3), RASC.
Emeritus Attorneys Pro Bono Participation Program
Rule 39(1), RASC creates the Emeritus Attorneys Pro Bono Participation Program for the purpose of providing legal services to those unable to pay for them.
An "emeritus attorney" is one retired from the active practice of law who is or was formerly admitted to practice before the Arizona Supreme Court or the highest court of any other state or territory of the United States or the District of Columbia. The "emeritus attorney" must have been engaged in the active practice of law for a minimum of ten (10) out of the fifteen (15) years preceding application to participate in the program, must have been a member in good standing of the State Bar of Arizona or the entity governing the practice of law of any other state, territory or the District of Columbia, and must not have been disciplined for professional misconduct in any jurisdiction for fifteen (15) years preceding the application. If the attorney is not a retired member of the State Bar of Arizona, he or she must have graduated from a law school accredited by the American Bar Association and must not have failed the Arizona Bar Examination three or more times. In addition, the emeritus attorney must agree to abide by the Arizona Rules of Professional Conduct and to submit to the jurisdiction of the Arizona Supreme Court for disciplinary purposes, must neither ask for nor receive compensation of any kind for legal services performed under the program, and must be certified by the Arizona Supreme Court. Rule 39(2), RASC.
An "approved legal assistance organization" is a not-for-profit legal assistance organization approved by the Supreme Court. An organization seeking such approval must file a Petition with the Supreme Court certifying that it is a not-for-profit organization, and specifying the organization's structure and whether it accepts funds from clients, the major sources of funds used by the organization, the criteria used to determine eligibility of clients to receive funds from the organization, the types of legal and nonlegal services performed by the organization, the names of all members of the State Bar of Arizona who are employed by or who regularly perform legal work for the organization, and the existence and extent of malpractice insurance covering the emeritus attorney. Rule 39(2), RASC.
A "supervising attorney" is an active member of the State Bar of Arizona who directs and supervises an emeritus attorney. A "supervising attorney" must be employed by or be a participating volunteer for an approved legal assistance organization, assume personal professional responsibility for supervising legal services in which the emeritus attorney participates, including the conduct of litigation or administrative hearings, and must assist the emeritus attorney to the extent the supervising attorney considers necessary. Rule 39(2), RASC.
An emeritus attorney, in association with an approved legal assistance organization and under the supervision of a supervising attorney, may appear in any court or before any administrative tribunal in Arizona on behalf of a client of an approved legal assistance organization, provided the person on whose behalf the emeritus attorney is appearing has consented in writing to that appearance and a supervising attorney has given written approval for that appearance. The written consent and approval must be made part of the record in the proceeding. The emeritus attorney may prepare pleadings and other documents to be filed in any Court or administrative tribunal in Arizona in proceedings in which the emeritus attorney is involved, but the pleadings must also be signed by the supervising attorney. The emeritus attorney may render legal advice and perform other appropriate legal services, but only after prior consultation with and upon the express consent of the supervising lawyer. Rule 39(3), RASC.
Emeritus attorneys must perform all activities under the direct supervision of a supervising attorney, and are not and may not represent themselves to be active members of the State Bar of Arizona. Emeritus attorneys may not charge for or receive compensation for the services they render, but the approved legal assistance organization may reimburse the emeritus attorney for actual expenses incurred while rendering services under the Program and may make such charges for its services as it may otherwise properly charge. The approved legal assistance organization is also entitled to receive any attorneys' fees awarded by a court for any services rendered by an emeritus attorney. Rule 39(4), RASC.
An emeritus attorney may only perform services under this Program upon approval of the Arizona Supreme Court. To secure such approval, an approved legal assistance organization must file a certificate stating that the emeritus attorney is currently associated with it and that an attorney employed by or participating with the organization as a volunteer will assume the duties of supervising attorney for the emeritus attorney. There must also be a certificate from the highest court or agency in the state, territory or district in which the emeritus attorney has been licensed to practice law that the emeritus attorney has fulfilled the requirements of active bar membership and has a clear disciplinary record. Finally, the emeritus attorney must submit a sworn statement that he or she has read and is familiar with the Rules of Professional Conduct, the Rules of the Arizona Supreme Court and the statutes of Arizona relating to the conduct of lawyers and will abide by them, submits to the jurisdiction of the Arizona Supreme Court for disciplinary purposes, and agrees that he or she will neither ask for nor receive compensation of any kind for the legal services performed under the Program. Rule 39(5), RASC. Emeritus attorneys certified to participate in the Program are exempt from the mandatory legal education requirements of Rule 45, RASC. Rule 39(8), RASC.
A certification of an emeritus attorney ceases immediately upon the filing with the Supreme Court and the State Bar of Arizona of a notice from the approved legal assistance organization that the emeritus attorney has ceased to be associated with the organization. Such a notice must be filed within five (5) days after the association has ceased. An approved legal services organization may also file with the Supreme Court and the State Bar a notice that the certification of an emeritus attorney is being withdrawn, which notice need not state the cause for such withdrawal. A copy of such a notice must be mailed to the emeritus attorney. Finally, the Supreme Court may in its discretion at any time revoke permission to perform services under the Program. Copies of the notice of such a revocation must be mailed to the emeritus attorney and to the legal services organization with which the emeritus attorney is associated. Rule 39(6), RASC. If the certification of an emeritus attorney is withdrawn or revoked for any reason, the supervising attorney must notify any court or tribunal in which the emeritus attorney was appearing of such action. Id.
The emeritus attorney may be made subject to any disciplinary proceedings and sanctions authorized by the Rules of the Arizona Supreme Court, and may be found in civil contempt by the presiding judge or hearing officer in any matter in which the emeritus attorney has participated for any failure to abide by such tribunal's orders. Finally, the Supreme Court or the approved legal assistance organization may withdraw the certification of an emeritus attorney at any time, with or without cause. Rule 39(7), RASC.
Foreign Legal Consultants
Rule 33(f), RASC recognizes a category of professional described as "foreign legal consultants," and prescribes the procedures and requirements for securing a Certificate of Registration as a foreign legal consultant. That status is available to persons who are admitted to practice and are in good standing as an attorney or counselor at law or equivalent in a foreign country or political subdivision of a foreign country. Persons who receive such a Certificate of Registration may not appear in court on behalf of others, prepare real estate or testamentary documents, prepare documents in the domestic relations area, provide legal advice on the law of Arizona or of the United States, or in any way hold themselves out as a member of the State Bar of Arizona. Persons registered as foreign legal consultants are subject to professional discipline in the same manner and to the same extent as members of the State Bar, and must complete the State Bar Course on Professionalism. Rule 33(f), RASC.
The Supreme Court of Arizona has ultimate and plenary authority with respect to the disciplining of lawyers and others who are subject to its discipline and disability jurisdiction. The discipline process, however, involves a number of other persons or entities whose functions and duties are prescribed in the Rules of the Arizona Supreme Court (hereinafter "RASC"), and which are described in the balance of this Section. Basically, the State Bar of Arizona, through its Discipline Department, Chief and Staff Bar Counsel, perform the initial screening and investigation of charges of misconduct that are filed or otherwise brought to their attention, and prosecute charges that become the subject of formal proceedings. Hearings on such formal charges are conducted by Hearing Committees, appointed by the State Bar, or by Hearing Officers appointed by the Supreme Court. Decisions rendered by such Hearing Committees and Officers are reviewed by an independent Disciplinary Commission, which is really an arm of the Supreme Court, and whose decisions are subject to review by the Court.
The Disciplinary Commission consists of six (6) members who are active members of the State Bar and three non-lawyer members. Commission members are appointed by the Supreme Court. Two of the lawyer members must be residents of a County other than Maricopa or Pima County. The other four (4) lawyer members may be residents of any combination of Maricopa or Pima Counties. Initial appointments are for three year terms, but a member continues to serve until a successor is appointed. Appointments to fill a vacancy are for the unexpired term. No Commission member may serve more than two (2) consecutive three-year terms. The Court may remove a Commission member for good cause shown, and Commission members who fail to attend two consecutive meetings are subject to removal. Rule 47(a), RASC.
Alternate members may be appointed by the Chair of the Commission if it appears that a significant number of regular members may not be present at a meeting or may not be able to act in a particular case. Rule 47(b), RASC. The Commission members are to elect annually lawyer members as the Chair and Vice-Chair of the Commission. Rule 47(c), RASC. Five members of the Commission constitutes a quorum, and the Commission can only act with the concurrence of five or more members. Rule 47(d), RASC. Commission members are not compensated but may be reimbursed for travel and other expenses incidental to the performance of their duties. Rule 47(e), RASC.
The Disciplinary Commission has the following powers and duties: (1) to review the findings, conclusions and recommendations of all Hearing Officers in discipline matters, petitions to and from disability inactive status and applications for reinstatement that are subject to review and, in appropriate cases, submit to the Supreme Court its own findings, conclusions and recommendations together with the record of the proceedings; (2) to impose discipline where provided for in the Rules; (3) to hold as many meetings per year at such times and in such places as it deems necessary; (4) to submit to the Court a written report every three (3) months, which outlines the status of every matter pending before the Commission; and, (5) to exercise any other powers and carry out any other duties delegated to it by the Court. Rule 47(f), RASC.
The Supreme Court, upon recommendation of the Disciplinary Commission, may appoint lawyers who have been active members of the State Bar for at least seven (7) years to serve as Hearing Officers. The Court may terminate the appointment of a Hearing Officer at any time. Rule 48(a)(2), RASC. Hearing Officers are appointed for three (3) year terms and may serve consecutive terms at the Supreme CourtÍs discretion. A Hearing Officer whose term has expired may continue to serve until the conclusion of any proceeding commenced prior to the expiration of the term, and until a successor is appointed. Rule 48(b)(2), RASC.
Hearing Officers have the following powers and duties: (1) state-wide jurisdiction over proceedings on complaints of misconduct, applications for reinstatement and petitions for transfer to and from disability inactive status; (2) to prepare findings of fact, conclusions of law and to issue orders consistent with the Rules and, in appropriate cases, prepare and forward to the Commission findings, conclusions and recommendations, together with the record on appeal; (3) to impose discipline as authorized by the Rules; and, (4) to file with the Disciplinary Clerk the originals of all documents, exhibits and things created or received that are part of the record on appeal. Rule 48(e), RASC. Finally, every Hearing Officer has the power to issue subpoenas for witnesses and/or for the production of documentary information. Rule 55(e), RASC.
Chief Bar Counsel
The Executive Director of the State Bar is to employ Chief Bar Counsel, who has the following duties and responsibilities: (1) to employ and supervise staff necessary for the performance of all discipline functions, including supervising volunteer Bar Counsel; (2) to serve as the chief administrative officer in discipline, disability and reinstatement matters; (3) to disseminate discipline and disability information as required by Rule 62, RASC; (4) when a lawyer is convicted of a crime in Arizona, to forward a certified copy of the judgment of conviction to the disciplinary agency in each jurisdiction in which the lawyer is admitted, and to the National Discipline Data Bank maintained by the ABA Standing Committee on Professional Discipline; and, (5) to compile statistics to aid in the administration of the discipline and disability system. Rules 46(g) and 49(a), RASC.
Subject to the restrictions, if any, imposed by Rule 61, RASC, Chief Bar Counsel is to provide notice of discipline, transfers to or from disability inactive status, reinstatements and certificates of conviction to the disciplinary enforcement agency of any other jurisdiction in which a respondent is known to be admitted. The respondent is to identify each such jurisdiction in a writing addressed to Chief Bar Counsel. Rule 62(a), RASC. Chief Bar Counsel is also to report all public discipline imposed against a respondent, transfers to or from disability inactive status and reinstatements to the National Discipline Data Bank maintained by the ABA Standing Committee on Professional Discipline. Rule 62(b), RASC.
Chief Bar Counsel is to cause notices of orders of censure, suspension, disbarment, transfers to and from disability inactive status and reinstatement to be published in the Arizona Attorney or other usual periodic publication of the State Bar, and is to make such notices available to a newspaper of general circulation in each county in which the lawyer involved maintained an office for the practice of law. Rule 62(c), RASC. Chief Bar Counsel shall promptly advise all courts in the state of orders or judgments of suspension, disbarment, reinstatement and transfers to or from disability inactive status. Chief Bar Counsel is also to petition the appropriate court to take such action as may be indicated to protect the interests of the public, respondent and respondent's clients. Rule 62(d), RASC.
As used in the Rules of the Arizona Supreme Court, the term "bar counsel" encompasses both staff counsel employed by the State Bar of Arizona, and volunteer counsel appointed to represent the State Bar in discipline and other proceedings. Rule 46(g), RASC.
Staff Bar Counsel have the following duties and responsibilities: (1) to screen all information coming to the attention of the State Bar relating to conduct by a member or a non-member; (2) to request one or more staff examiners to aid in conducting investigations; and, (3) to promptly notify the complainant and respondent of the disposition of each matter. Rule 49(b), RASC.
All Bar Counsel have the following duties and responsibilities: (1) to investigate all information coming to the attention of the State Bar which, if true, would be grounds for discipline or transfer to disability inactive status; (2) to recommend dispositions prior to formal proceedings and, if deemed advisable, recommend discipline in any formal proceedings; (3) in appropriate cases, to dismiss proceedings under Rule 53(b)(3), RASC; and, (4) to represent the State Bar in and prosecute discipline and reinstatement proceedings and proceedings for transfer to and from disability inactive status before Hearing Committees, Hearing Officers, the Disciplinary Commission and the Supreme Court. Rule 49(c), RASC.
Probable Cause Panelist
The "probable cause panelist" or "panel" is the individual or group which reviews recommended dispositions of disciplinary charges by bar counsel, and essentially decides, subject to review, whether there is probable cause to institute formal proceedings against a lawyer. Rules 53(b)(3) and (4), RASC. "Panel" or "panelist," is defined in the Rules of the Arizona Supreme Court as a probable cause panel comprised of one or more members of the Board of Governors, or persons specially appointed to serve in that capacity, whether it be a reviewing member initially considering a matter, or an appeal panel. Rule 46(g), RASC. In practice, the Probable Cause Panelist is usually the First Vice-President of the Board of Governors.
The Disciplinary Clerk is an individual designated to be the custodian of the records on appeal in all discipline, disability and reinstatement proceedings. Rule 46(g), RASC.
Immunity for Certain Participants in Disciplinary Process
Members of the Board of Governors, the Disciplinary Commission, Hearing Committees or Hearing Officers, mediators, members of the Peer Review Committee, monitors of the Membership Assistance or Law Office Management Assistance Programs, probable cause panelists, bar counsel and staff are immune from suit for any conduct taken in the course of their official duties. Rule 54(l), RASC.
Discipline and Disability Jurisdiction of the Arizona Supreme Court
Any lawyer admitted to practice in Arizona is subject to the disciplinary and disability jurisdiction of the Arizona Supreme Court. Rule 46(a), RASC. Non-members engaged in the practice of law in Arizona, lawyers or non-lawyers specially admitted to practice for a particular proceeding, and foreign legal consultants submit themselves to the discipline and disability jurisdiction of the Arizona Supreme Court. Rule 46(b), RASC.
Former judges that resume the practice of law are subject to the jurisdiction of the Supreme Court not only for their conduct as lawyers, but also for misconduct that occurred while they were judges that would have been grounds for lawyer discipline, provided that the misconduct was not the subject of a judicial discipline proceeding that has become final. Rule 46(c), RASC. If an incumbent judge is removed, or resigns, from judicial office as a result of a judicial discipline or disability proceeding, the Court is to give both the State Bar and the judge an opportunity to submit to the court a recommendation whether lawyer discipline or disability status should be imposed based upon the record in the judicial discipline proceeding and, if so, the extent of discipline to be imposed. Rule 46(d), RASC.
Lawyers who have been suspended or disbarred are no longer entitled to the rights and privileges of a lawyer, but remain subject to the Supreme CourtÍs jurisdiction with respect to matters occurring prior to the suspension or disbarment. Rule 46(h), RASC. Lawyers who have been disbarred and who thereafter engage in the unauthorized practice of law may be enjoined from doing so by the Supreme Court. In re Creasy, 198 Ariz. 539, 12 P.3d 214 (2000).
Grounds for the Imposition of Discipline
The following constitute grounds for the imposition of discipline on members or non-members: (a) conviction of a misdemeanor involving a serious crime or of any felony; (b) violation of a rule of professional conduct in effect in the jurisdiction; (c) discipline imposed in another jurisdiction; (d) violation of a canon of judicial conduct; (e) willful disobedience or violation of an order or rule of court compelling or forbidding action in connection with or in the course of the profession; (f) violation of any discipline or disability rule or order; (g) any violation of the oath taken as a lawyer; (h) failure to furnish information to or respond promptly to any inquiry or request from Bar Counsel, a Hearing Committee or Hearing Officer, the Board, the Disciplinary Commission or the Supreme Court; (i) evading service or otherwise refusing to cooperate with officials and staff of the State Bar, Hearing Committees, Hearing Officers, or a conservator appointed under the Rules; (j) violation of a condition of probation imposed in a discipline proceeding; and, (k) willful violation of a court order of a state, territory or district of the United States, including child support orders. Rule 51(a), RASC. The procedures that are to be followed in the case where a lawyer subject to the Supreme Court's jurisdiction has been convicted of a felony or a misdemeanor involving a "serious crime" are set forth Rule 57, RASC, and described in Section 0.2:245, infra.
In addition to making the failure to furnish requested information a ground for the imposition of discipline, Rule 51(h) imposes on lawyers an obligation to: (1) furnish in writing, or orally if requested, a full and complete response to inquiries and questions; (2) permit inspection and copying of business records, files and accounts; (3) furnish copies of requested records, files and accounts; (4) furnish written releases or authorizations needed to obtain access to documents or information in the possession of third parties; and (5) comply with discovery conducted in discipline and disability proceedings. Rule 51(h), RASC.
Misconduct by a lawyer or nonmember subject to the Supreme Court's jurisdiction is grounds for imposition of one or more of the following sanctions:
1. Disbarment. Disbarment must be imposed by Judgment entered by the Supreme Court or by a Judgment signed and entered by the Clerk if the matter does not reach the Court sua sponte or on discretionary review. The form of Judgment is specified in Rule 52, RASC.
2. Suspension. A suspension for a fixed period of time not in excess of five years may be imposed by Judgment entered by the Supreme Court or by a Judgment signed and entered by the Clerk if the matter does not reach the Court sua sponte or on discretionary review. The form of Judgment is specified in Rule 52, RASC. Id.
3. Interim Suspension. An interim suspension may be imposed by Order entered in the Supreme Court pending final determination of discipline. See further discussion of this alternative, infra. Id.
4. Censure. This may be imposed by the Court or the Disciplinary Commission. It is to be imposed by decision of the Court following discretionary review of a decision of the Disciplinary Commission, or if a Commission recommendation of censure is not granted review, then by a Judgment of censure entered by the Clerk. The form of Judgment is specified in Rule52, RASC. Id.
5. Informal Reprimand. This sanction may be imposed by a Panel, by a Hearing Committee or Officer, the Disciplinary Commission or the Supreme Court. It is to be imposed by formal Order which is to be entered into the respondent lawyer's permanent record at the State Bar. Id.
6. Probation. This sanction may be imposed by the Supreme Court, the Disciplinary Commission, a Hearing Committee, a Hearing Officer, or by a Panel. Probation is to be for a specified period not in excess of two years, but may be extended for an additional two-year period. Probation is only to be imposed in those cases where there is little likelihood that the respondent will cause harm to the public during the period of probation, and the conditions of probation can be adequately supervised. The conditions of probation must be stated in writing and may include an award of restitution and an assessment of costs and expenses. Id.
7. Restitution. Restitution can be awarded to persons financially injured by the conduct involved, including reimbursement to the State Bar Client Security Fund. If restitution constitutes or is part of the discipline imposed by the Court, it shall be included in the Judgment; otherwise, it is to be imposed by Order. Id.
8. Assessment of Costs and Expenses. Assessment of the costs and expenses of proceedings may be imposed by an Order of a Panel, a Hearing Committee, a Hearing Officer, or by the Disciplinary Commission, or by Judgment entered by the Supreme Court. Assessment is to be made upon every respondent upon whom another sanction is imposed in a formal disciplinary proceeding. Assessment of costs and expenses may also be imposed upon a respondent in a disability proceeding, in the discretion of the Commission or the Court. Id.
9. Summary Suspension. A member who fails to pay any assessment or restitution within thirty (30) days following entry of, or at a later time fixed in, the judgment or order awarding that sanction may be summarily suspended under Rule 52(d), RASC. The respondent must first be sent a notice of such non-compliance by certified, return receipt mail, mailed to the respondent's last address of record at least thirty (30) days prior to the suspension. See further discussion of this alternative, infra. Id.
10. Summary Suspension. A summary suspension may also be ordered for failure to participate in formal proceedings. A respondent who fails to file a timely answer after being served with a formal complaint in discipline or disability proceedings may be summarily suspended under Rule 52(d), RASC. See further discussion of this topic, infra. Id.
11. Diversion. This is an alternative to a disciplinary sanction and may be ordered by the Supreme Court, the Disciplinary Commission, a Hearing Committee, a Hearing Officer, or by a Panel. It may be imposed for a specified period not to exceed two years, but may be renewed for an additional two-year period. It may be imposed in cases where there is little likelihood that the respondent will harm the public during the diversion period, and the conditions of diversion can be adequately supervised. The terms of diversion must be stated in writing, and may include an award of restitution and an assessment of costs and expenses. After successful completion of diversion, at the request of the respondent, the matter shall be dismissed by Order of the Panel, a Hearing Committee, a Hearing Officer, the Disciplinary Commission, or the Supreme Court. Id.
In determining the appropriate sanction, if any, to be imposed at the conclusion of a disciplinary proceeding, the Supreme Court uses as guidance, and expects the Disciplinary Commission, Hearing Committees and Officers to follow, the Standards for Imposing Lawyer Sanctions, published by the Center for Professional Responsibility of the American Bar Association.
Unless the Court specifies an earlier date, judgments imposing suspension or disbarment are effective thirty (30) days after entry. Judgments imposing other sanctions or transferring a lawyer to disability inactive status are effective immediately upon entry. After entry of a judgment of disbarment or suspension, a respondent may not accept any new retainer or accept any new engagements. During the period between the entry of a judgment of disbarment and suspension and its effective date, the respondent may wind up and complete any client matters pending on the date of entry, but must refund any part of fees paid in advance which have not been earned. Rule 63(c), RASC. A Judgment of the Supreme Court in a discipline or disability proceeding may be enforced by execution or other post-judgment remedies that are available for the enforcement of judgments in civil cases. Rule 52(b), RASC.
A member my be subjected to an interim suspension for an indeterminate period not in excess of five (5) years, pending further Order of the Supreme Court. Such an interim suspension may be entered upon a showing that the lawyer appears to be misappropriating funds, 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, or for other grounds specified in the Rules. The State Bar must make a motion for the imposition of such an interim suspension supported by a verification or affidavit establishing sufficient facts to support such a suspension, and must include a copy of any pertinent Hearing Officer or Disciplinary Commission Report. Upon a verified separate application, or upon the CourtÍs own motion, a Justice of the Supreme Court may issue an order that is in the nature of a temporary restraining order imposing temporary conditions of probation upon the lawyer, or temporarily suspending the lawyer, or both. Rule 52(c), RASC.
When a motion for interim suspension is filed, the Court issues an Order requiring the State Bar to serve the motion and the CourtÍs Order on the respondent within seven (7) days, and requiring the respondent to file a response within ten (10) days of service. Rule 52(c), RASC. Upon receiving the response, the Court may set the motion for oral argument or direct the Disciplinary Clerk to assign the matter to a Hearing Officer for the conduct of an evidentiary hearing. Id. That hearing is to be held within ten (10) days of the assignment, and the Hearing Officer is to issue and file with the Court a report, containing findings of fact, conclusions of law and a recommendation, within ten (10) days after the hearing is held. Id. The Court will then consider the matter and issue a decision or order forthwith. Id. An Order of interim suspension precludes the lawyer from accepting any new engagements, but does not preclude the lawyer from representing existing clients until the effective date of the Order. Any fees tendered to the lawyer after issuance of the Order but prior to its effective date are to be deposited in a trust account from which withdrawals may be made only in accordance with restrictions imposed by the Court. The notice and reporting provisions of Rule 63, RASC with respect to lawyers who have been suspended apply. Rule 53(c), RASC.
A member may be summarily suspended by the Board of Governors for administrative grounds or other grounds specified in the Rules. A request for such a summary suspension is to be presented to the Board by the State Bar, specifying the grounds for the relief requested. If the Board determines that the State Bar has shown a prima facie case for such a suspension, the Board is to enter an Order of summary suspension, unless the lawyer, within ten (10) days of service of the request, files with the Board a verified response showing good cause why such a suspension should not be ordered. If that occurs, the Board may permit the lawyer to present oral argument and shall thereafter grant or deny the State Bar's request. If suspension is ordered by the Board, the respondent may seek review by the Supreme Court of that by filing a petition for review under Rule 53(e), RASC. Rule 52(d), RASC.
Notice Requirements Upon Disbarment, Suspension and/or Transfer to Disability Inactive Status
Within ten (10) days after an order of the Disciplinary Commission or the Court disbarring, suspending or transferring a respondent to disability inactive status, or after the date of resignation, the respondent shall cause the following persons to be notified of that fact, and of the fact that the lawyer is disqualified to act as a lawyer, by registered or certified mail, return receipt requested: (1) all clients represented in pending matters, (2) any co-counsel in pending matters, (3) any opposing counsel or unrepresented adverse parties in pending matters, and (4) each court and division in which the lawyer has any pending matter, whether active or inactive. The notice to opposing counsel and parties is to state the place of residence of the client in the matter. If a client does not obtain substitute counsel before the effective date of the disbarment, suspension, transfer or resignation, the lawyer must move for leave to withdraw. Rule 63(a), RASC.
The respondent shall also return to all clients being represented in pending matters all papers or other property to which they are entitled, and notify them of a suitable time and place where those papers and property may be obtained. Respondent shall also deliver all files and records in pending matters to the client, regardless of any attorneyÍs lien. Rule 63(b), RASC.
Within ten (10) days after the effective date of a Judgment of disbarment or suspension, or an order of transfer to disability inactive status, or resignation, the respondent must file with the Court and the Disciplinary Commission an affidavit showing: (1) that respondent has fully complied with the order or judgment and the provisions of Rule 63, (2) all other state, federal and administrative jurisdictions in which respondent is admitted to practice, (3) the respondentÍs residence and other addresses where communications to respondent may be directed, and (4) that a copy of the affidavit has been served upon bar counsel. Failure to comply with these requirements is punishable by contempt. Rule 63(d), RASC.
Proof of compliance with the notice and reporting requirements of Rule 63, RASC is a condition precedent to the favorable consideration of any application for reinstatement. A disbarred or suspended lawyer, or a lawyer on disability inactive status or that lawyer's conservator, must maintain records of the steps taken to comply with that Rule. Rule 63(e), RASC.
General Discipline Process
Discipline and disability proceedings are sui generis, neither civil nor criminal. Rule 54(a), RASC. A discipline proceeding commences upon receipt by the State Bar of a charge against a respondent. Rule 53(a), RASC. Communications to the Court, the State Bar, the Disciplinary Commission, Hearing Committees or Officers, mediators, the Peer Review Committee, monitors of the Membership Assistance or Law Office Management Assistance Programs, probable cause panelists or bar counsel concerning lawyer misconduct, lack of professionalism or disability, and testimony given in discipline proceedings shall be absolutely privileged conduct, and no civil action against any complainant or witness may be predicated upon such conduct. Rule 54(l), RASC.
A discipline proceeding, and a formal complaint, if one is filed, may be disposed of by dismissal, stay pending a disability proceeding or imposition of one of the sanctions provided for in Rule 52(a), RASC. Rule 53(a), RASC. The initial proceedings upon the commencement of a discipline proceeding are to be the following:
1. Screening. Bar counsel is to conduct an initial evaluation of all information that comes to the State BarÍs attention, by charge or otherwise, alleging lawyer lack of professionalism, misconduct or incapacity. If the lawyer or other person that is the subject of the charge or information is not subject to the jurisdiction of the Supreme Court, the matter is to be referred to the appropriate entity in the jurisdiction in which the lawyer is admitted. If the allegations, even if true, would not constitute misconduct, the matter is to be dismissed, but may be referred to the peer review committee or the fee arbitration committee. If the lawyer is subject to the Supreme CourtÍs jurisdiction and the information alleges facts which, if true, would constitute misconduct or incapacity, bar counsel is to conduct an investigation or refer the matter to mediation. Rule 53(b)(1), RASC.
2. Investigation and Recommendation. All investigations are to be conducted by volunteer or staff bar counsel or staff examiners. Following the investigation, bar counsel may recommend one or more of: dismissal, diversion, a stay, informal reprimand, probation, restitution, assessment of costs and expenses, or the filing of a complaint or petition for transfer to disability inactive status or, with the consent of the respondent, any other sanction. No disposition adverse to the respondent may be recommended until the respondent has been given an opportunity to respond in writing to the charge. Rule 53(b)(2), RASC.
During the investigation phase, and prior to the filing of a complaint, bar counsel can secure issuance of an investigative subpoena by filing a written request with the probable cause panelist, the panelistÍs designee, or a Hearing Officer. The request must contain a statement of facts supporting the issuance of the requested subpoena. An investigative subpoena can compel the attendance of witnesses, the production of books, papers and documents, or answers to written interrogatories. Rule 55(e)(1), RASC.
Rule 51(h), RASC imposes upon lawyers an affirmative obligation to cooperate with disciplinary investigations being conducted by the State Bar, and to furnish certain information to the State Bar when requested. When a lawyer has failed to comply with any request for information for more than thirty (30) days, bar counsel may notify that lawyer that failure to comply with the request may result in the taking of the lawyerÍs deposition pursuant to subpoena. Any such deposition thereafter conducted may be taken at any place within the State, and the lawyer is liable for the costs of conducting the deposition, including service fees, court reporter fees and travel expenses, regardless of the ultimate disposition of the proceeding in connection with which the deposition is conducted. Chief Bar Counsel must approve the taking of the deposition, and must apply to a Panelist for an award of expenses, which must be itemized in the application. Rule 55(g), RASC.
3. Dismissal by Bar Counsel. Following the conduct of the investigation, if there is no probable cause to believe that misconduct or incapacity exists, bar counsel may dismiss a discipline proceeding by filing a Notice of Dismissal with the State Bar. The complainant may file a written notice of appeal within twenty (20) days after the notice of dismissal is mailed. The appeal is to be referred to the Probable Cause Panelist for decision. Rule 53(b)(3), RASC.
4. Probable Cause Review. recommended disposition by bar counsel, other than dismissal, is to be reviewed by the First Vice-President of the Board of Governors or by any other person designated by the First Vice-President from a roster of active bar members established by the Board. The reviewing Panelist may approve, disapprove or modify the recommendation. Bar Counsel may appeal a decision by the Panelist to disapprove or modify the recommendation to an appeal panel composed of three members of the Board of Governors, which shall approve the recommendation of Bar Counsel, approve the action of the Probable Cause Panelist, or require any other action that might have been recommended by bar counsel. Rule 53(b)(4), RASC. After the probable cause panelist has dismissed a discipline proceeding, bar counsel may refer the matter to the Peer Review Committee, the Fee Arbitration Committee, or to mediation. Rule 53(b)(6), RASC.
Formal proceedings are instituted by the State Bar filing a complaint with the Disciplinary Clerk and serving a copy on the respondent. The Complaint is to be served within ten (10) days of filing. The Disciplinary Clerk assigns the matter to a Hearing Officer. The Complaint is to be sufficiently clear and specific to inform a respondent of the alleged misconduct. The fact of prior sanctions or a prior course of conduct may be included in the complaint, but must be stated in a separate count. After a decision on the merits, the record of prior discipline proceedings against the respondent and similar evidence may be considered by the Hearing Officer on the issue of what sanctions to be imposed. Rule 53(c), RASC.
If good cause exists for the removal of a matter from one Hearing Officer to another Hearing Officer, or for the replacement of a Hearing Officer, the Supreme Court may order such removal or replacement. At the request of any Hearing Officer, the Supreme Court may appoint an active member to serve in the place of a regular Hearing Officer in a particular discipline, disability or reinstatement matter. Rule 48(c)(1), RASC.
In any proceeding assigned to a Hearing Officer, any party may secure the transfer of the matter to another Hearing Officer or to a Hearing Committee by filing a "Notice of Transfer." Such a Notice must be filed within ten (10) days of the notice of assignment of Hearing Officer, or within ten (10) days of receipt of notice which identifies the Hearing Officer for the first time or which changes the assignment from one Hearing Officer to another, but must be filed before the hearing commences. When such a Notice of Transfer is received, the Disciplinary Clerk transfers the matter from the Hearing Officer to another Hearing Officer, but the party filing the notice does not have the right to a transfer to a particular Hearing Officer. The right to file such a Notice is waived by participating before the assigned Hearing Officer in any proceeding which concerns the merits and involves the consideration of evidence or affidavits, or a prehearing conference or the commencement of a hearing. Rule 48(c)(2), RASC.
1. Service. The complaint in any discipline or disability proceeding may be served either personally, or by certified mail/delivery restricted to addressee and by regular first class mail to the last address provided by respondent to the State Bar. When service is made by mail, Bar Counsel is to file a notice of service, indicating the date and manner of mailing. Rule 55(b), RASC. No action taken by a Hearing Officer on any complaint, or thereafter by the Board of Governors, the Disciplinary Commission or the Supreme Court may be challenged because of defective or insufficient service if in fact the respondent had sufficient notice of the proceedings and an opportunity to be heard. Rule 54(I), RASC.
After the complaint is filed, a party making a filing shall serve one copy on Bar Counsel, respondent or respondentÍs counsel and the Hearing Officer. Such service may be accomplished by one of the means specified in Rule 5(c)(1) of the Arizona Rules of Civil Procedure. Subpoenas may be personally served, and may be served by bar counsel, respondent or respondentÍs counsel. Documents served on the respondent shall be mailed to the last address provided by respondent to the State Bar membership records department. Rules 55(b)(3), (4), RASC.
2. Pleadings Allowed. The only pleadings allowed are a complaint and answer, but Rule 15 of the Arizona Rules of Civil Procedure applies, and either Bar Counsel or respondent or respondentÍs counsel may move to amend at any time prior to the conclusion of the disciplinary hearing. The complaint may be amended to conform to the proof or to include further charges, whether occurring before or after the disciplinary hearing commences. If the complaint is amended, the respondent is to be given a reasonable time to answer, to produce evidence and to respond to the charges. Rule 55(a), RASC.
3. Answer and Motions. Unless the time is extended by the Hearing Officer to whom the matter has been assigned, the respondent must file an answer, and serve copies on Bar Counsel and the Hearing Officer, within twenty (20) days after service of the complaint. The respondent may also file procedural or substantive motions that comply with the requirements of Rule 7.1(a) of the Arizona Rules of Civil Procedure. If the respondent fails to answer within the prescribed time, the complaint shall be deemed admitted and the Disciplinary Clerk is to enter a default following the procedures of Rule 53, RASC. Rule 53(c)(1), RASC.
4. Disclosure Statements. Bar counsel must serve upon respondent, within twenty (20) days after the answer has been filed, an initial disclosure statement that complies with the requirements of Rule 26.1, Ariz.R.Civ.P. Respondent or respondentÍs counsel is to serve on bar counsel a similar initial disclosure statement within forty (40) days after the answer has been filed. When these disclosure statements are served, a notice of service must be filed with the Disciplinary Clerk. Rule 53(c)(2), RASC.
5. Default Procedure. If no timely answer is filed, Bar Counsel may file an application for entry of default, and serve a copy on the respondent by mail. No default is to be entered if the respondent files an answer prior to the expiration of ten (10) days from the date of filing of the application. If no answer is filed during that ten-day period, then a default is to be entered by the Disciplinary Clerk. Within ten (10) days after default is entered, either the State Bar or respondent may request a hearing in aggravation or mitigation and such a hearing, if requested, is to be held within thirty (30) days of the request. Rule 53(c)(3), RASC.
6. Settlement Conferences. After an answer has been filed, if the respondent is not otherwise in default, the Disciplinary Clerk shall assign the matter randomly to a hearing or settlement officer other than the Hearing Officer to which the matter has been assigned for evidentiary hearing. If the respondent is in default, either Bar Counsel or respondent may request a settlement conference by filing a notice of request within ten (10) days after the entry of default. The settlement officer must schedule, with notice to the State Bar and the respondent, at least one conference for the sole purpose of facilitating settlement of the case. With the consent of the parties, the settlement officer may engage in ex parte communications during the conference. If an agreement is reached, it is treated as a tendered admission for discipline by consent and the matter is to be presented to the assigned Hearing Officer in the format prescribed by Rule 56, RASC. The Hearing Officer is to consider and review the matter as an agreement for discipline by consent. A respondentÍs failure to participate in a duly noticed settlement conference may be considered a failure to cooperate and grounds for the imposition of discipline under Rule 51(I). Rule 53(c)(5), RASC.
7. Prehearing Conference. At the discretion of the Hearing Officer, or upon request of any party, a conference may be ordered for the purpose of obtaining admissions or otherwise narrowing the issues. The conference is to be conducted before the Hearing Officer. Rule 53(c)(7), RASC.
8. Discovery. In proceedings before a Hearing Officer, the discovery provisions of Rules 26 through 37 of the Arizona Rules of Civil Procedure apply, except that any deposition testimony may be recorded by means of a tape recorder furnished by the State Bar and shall be admissible for the same purposes as transcripts prepared by court reporters. Rules 53(c)(4) and 55(h), RASC. Depositions may be conducted outside the State of Arizona. An Order of the Chair of the Disciplinary Commission or of a Hearing Officer, certified by the Disciplinary Clerk, is sufficient authority to authorize the taking of such a deposition. If the deponent will not appear, the subpoena may be enforced in accordance with the law of the jurisdiction where the deposition is to be taken. Rule 55(e)(5), RASC.
8. Subpoenas. After the filing of a complaint, hearing subpoenas may be issued by a Hearing Officer upon written request of Bar Counsel, respondent or respondentÍs counsel. Rule 55(e)(2), RASC. A subpoena may require a person to make written answers to written interrogatories, which are to be made under oath, signed by the witness and filed with the Disciplinary Clerk. Rule 55(e)(6), RASC. Any attack on the validity of a subpoena shall be heard by the official or officer who issued it, or by the court where enforcement of the subpoena is sought. Rule 55(e)(4), RASC.
When a person who has been subpoenaed refuses to appear or testify, or to answer any relevant and proper questions, or to produce requested documents, that person is deemed to be in contempt of court and Bar Counsel is to report such fact to the Superior Court of the county in which the investigation, trial or hearing is being conducted. That Court is to then issue to the Sheriff of any county an attachment to bring the person before the Court. Upon return of that attachment and production of the person attached, the Court has jurisdiction of the matter, and the person may purge himself or herself of the contempt in the same way as in the case of a witness subpoenaed to appear before the Court on the trial of a civil action. Similarly, the same proceedings may be had, and the same penalties and punishments imposed, as in the case of a witness in a civil matter. Rule 55(e)(3), RASC.
9. Hearing. The Hearing Officer to which the matter is assigned must conduct a formal evidentiary hearing within one hundred and fifty (150) days after the filing of the complaint. The hearing date may be continued by the Hearing Officer on the OfficerÍs own motion, or by stipulation, but not longer than sixty (60) days from the original hearing date. Motions and stipulations to extend the hearing date for more than sixty (60) days, or to extend the completion of the hearing beyond thirty (30) days after it commences, must be approved by the Chair of the Disciplinary Commission. The venue of the hearing is the county in which the respondent resides or maintains an office for the practice of law, but the principles of forum non conveniens apply. Rule 53(c)(6), RASC.
Oaths and affirmations in discipline, disability and reinstatement proceedings are administered by the Hearing Officer or a notary public. Rule 55(c), RASC. The record of disciplinary hearings may be kept by means of a tape recorder or transcriber, if both bar counsel and respondent agree. If a recording system is not used, a court reporter shall be employed to record the proceedings, if authorized by the Disciplinary Clerk. The respondent may have a court reporter record the proceedings at the hearing, at the respondentÍs expense, but must give written notice of an intention to do so at least three (3) days prior to the date of the hearing. The fact that respondent is having the proceedings recorded by a court reporter shall not dispense with the tape recording of the hearing by the State Bar. If a transcript of the hearing is not ordered the Hearing Officer or the Disciplinary Commission, then such a transcript is to be made available to the respondent on request made to the Disciplinary Clerk, but at respondentÍs expense. Rule 55(d), RASC.
So far as is practicable, and unless otherwise specified in the Rules governing the disciplinary process, the rules of evidence applicable in the Superior Court (the Arizona Rules of Evidence) are to be followed. Rule 54(b), RASC. Allegations in a complaint seeking the imposition of discipline, in applications for reinstatement, and in petitions for transfer to and from disability inactive status are to be established by clear and convincing evidence. Rule 54(c), RASC. In proceedings seeking the imposition of discipline, the burden of proof (burden of persuasion) is on the State Bar. In proceedings seeking transfer to disability inactive status, that burden is on the petitioning party. In proceedings seeking reinstatement and transfer from disability inactive status, that burden is on the respondent or applicant. Rule 54(c), RASC.
10. Report. Within thirty (30) days after the conclusion of the hearing or final submission of the matter, the Hearing Officer is to prepare and file with the Disciplinary Clerk, and serve on respondent and Bar Counsel, a written report containing findings of fact, conclusions of law and recommendations regarding discipline, together with a record of the proceedings. If they are not imposed as part of a disciplinary sanction that may only be imposed by the Disciplinary Commission or by the Supreme Court, and if no timely objection is filed, the report and decision of the Hearing Committee or Hearing Officer is final as to dismissal, diversion, reprimand, assessment of costs and expenses, probation and restitution. Rule 53(c)(8), RASC.
11. Time to Appeal. Both respondent and the State Bar have ten (10) days after service of the report and decision of the Hearing Officer to file and serve a notice of appeal. The failure of the respondent to file such a notice constitutes consent to the discipline recommended. Rule 53(c)(9), RASC.
12. Preparation of Transcript. If a timely appeal is filed, or if the report of the Hearing Officer includes a recommendation for a sanction that may only be imposed by a Judgment or Order of the Disciplinary Commission or the Supreme Court, the Disciplinary Clerk is to cause a transcript of the hearing to be prepared and filed, and shall serve a copy of that transcript on both respondent and Bar Counsel, together with copies of all documents filed during the hearing. Rule 53(c)(10), RASC.
The processing of a discipline matter is not to be delayed because of a substantially similar pending criminal or civil litigation, unless the Disciplinary Commission, for good cause shown, issues a stay. Rule 54(e), RASC. Except as otherwise specified, time is directory and not jurisdictional, and failure to observe prescribed time intervals may result in the imposition of sanctions, but is not grounds for abatement of any discipline or disability investigation or proceeding. Rule 54(h), RASC. For purposes of computing time, the provisions of Rules 6(a) and 6(e) of the Arizona Rules of Civil Procedure apply, unless otherwise specified. Rule 55(j), RASC.
In the interests of justice, and for good cause shown, any order or judgment may be entered, or may be amended or vacated by the officer or body that entered it, or by a superior body. Rule 55(i), RASC. Findings or recommendations made in any proceeding may not be invalidated, however, because of an error in pleading or procedure, unless it appears from the entire record that error has been committed which has resulted or will result in a miscarriage of justice. Rule 54(i), RASC. Board, Commission, Hearing Committee and Panel members, and Hearing Officers must disqualify themselves from taking any part in any proceeding in which a judge in similar circumstances would be required to abstain. Rule 54(j), RASC.
Status of Complainant
Although by becoming a complainant, a person submits to the jurisdiction of the Supreme Court and the State Bar for all purposes related to the discipline proceeding, the complainant is not a party to the proceeding. A copy of the respondentÍs initial response to the complainantÍs charges is sent to the complainant, unless the response makes reference to confidences and secrets of a client to which the complainant is not privy, or when, because of information of a personal and private nature regarding the lawyer or other reason, the respondent requests and the Panelist determines that the interests of justice would best be served if the response is not released. The complainant does receive notice of the final decision resulting from the charge. Rule 54(f), RASC.
The processing of any charge or complaint is not abated by unwillingness or failure of the complainant to cooperate with the State Bar, withdrawal of a charge, settlement, compromise between the complainant and the respondent or voluntary restitution by the respondent. Rule 54(g), RASC.
Precedential Effect of Dispositions
A determination by Bar Counsel, a Panelist or a Hearing Officer, before a hearing, that no probable cause exists is not a bar to further action based upon the same facts. Rule 54(k), RASC. Dismissal, or involuntary imposition of censure, suspension or disbarment by the Disciplinary Commission or Supreme Court, after a discipline hearing, is a bar to further proceedings based upon the same facts. Id. Acceptance by a respondent of a recommendation by the Disciplinary Commission of censure or suspension is a bar to further action based on the same facts. Id. Successful completion of diversion, with or without the imposition of disciplinary sanctions, shall be a bar to further proceedings based upon the same facts before the Panel, a Hearing Officer, the Disciplinary Commission or the Court. Id. Prior discipline imposed upon a respondent, with or without consent, may be considered in recommending or imposing discipline. Id.
Discipline by Consent; Tendered Admissions
A respondent against whom a charge has been made or a complaint has been filed may tender a conditional omission to the charge or complaint, or to a particular count thereof, in exchange for a stated form of discipline other than disbarment. Rule 56(a), RASC. If the stated form of discipline is one that can be imposed in whole or in part only by a Hearing Officer, the Commission or the Supreme Court, then the tendered admission, a joint memorandum and a recommendation from the State Bar are to be submitted to the Commission, subject to final approval or rejection by the Court if the stated form of discipline is one that only the Court can impose. The Commission or the Court can order a Hearing Officer to conduct an evidentiary hearing concerning the tendered admission, if necessary. Id.
In the event the Commission wishes to modify the findings, conclusions or recommendations in a tendered admission that is submitted to it, it must enter an Order setting forth the proposed changes in detail and giving the parties ten (10) days to execute the proposed modifications and submit an amended tendered admission for consideration by the Commission. Rule 56(b), RASC. In the event either party does not accept the proposed modifications, that party is to so notify the Disciplinary Clerk within that ten-day period, and the admission is automatically withdrawn and cannot be used against the respondent in any subsequent proceedings. Id.
If the stated form of sanction is rejected by the highest adjudicating body authorized to enter a final order or judgment imposing it, then the admission is deemed withdrawn and may not be used against the respondent in any further proceedings. Id.
Consent to Disbarment
Any member against whom a charge has been made or a formal complaint filed may voluntarily consent to disbarment, by filing with the Disciplinary Clerk, in duplicate original, a verified consent to disbarment in the form prescribed by the Rules. Such a consent is only effective upon acceptance by the Supreme Court. Rule 56(b), RASC.
When a voluntary consent to disbarment is filed, the Disciplinary Clerk is to forward a duplicate original to the Supreme Court, together with a copy of the charges or complaint that have been made or filed against the member involved. If the Court accepts it, it is to promptly enter a Judgment disbarring the member. A member thus disbarred remains subject to the CourtÍs jurisdiction with respect to matters occurring while he or she was an active member, and he or she must promptly comply with any requirements imposed relating to notification of clients and others. Upon acceptance by the Court, no further disciplinary action may be taken in reference to the matters that were the subject of the charges upon which the consent to disbarment was based. Id.
Discipline of Member in Another Jurisdiction
A lawyer admitted to practice in Arizona, whether an active member, an inactive member or retired, who is disciplined in another jurisdiction, must, within thirty (30) days after receiving notice of the imposition of such discipline, inform the Disciplinary Clerk of that action and identify every court before which the lawyer is admitted to practice. Upon receipt of such notification, from the lawyer or otherwise, the Disciplinary Clerk is to obtain a certified copy of the order imposing discipline and file it with the Disciplinary Commission. Rule 58(a), RASC.
Upon receipt of an order showing that a lawyer admitted to practice in Arizona has been disciplined in another jurisdiction, the Disciplinary Commission is to issue a notice to the lawyer and to bar counsel which contains a copy of the order from the other jurisdiction imposing discipline, and directs that the lawyer or bar counsel advise the Commission, within thirty (30) days of service of the notice, of any claim by the lawyer or bar counsel that the imposition of an identical discipline in Arizona would be unwarranted and the reasons for that claim. Rule 58(b), RASC.
Following thirty (30) days after service of that notice, the Commission shall impose or recommend the imposition of the identical discipline as has been imposed by the other jurisdiction, unless bar counsel establishes by a preponderance of evidence submitted, or as a matter of law, or the Commission finds on the face of the record upon which the other jurisdictionÍs imposition of discipline was based, that it clearly appears that (1) the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or (2) there was such infirmity of proof of misconduct in the other jurisdictionÍs proceedings that the Commission could not accept as final the other jurisdictionÍs disposition, or (3) the imposition of the same discipline would result in grave injustice, or (4) the misconduct established warrants substantially different discipline in Arizona. Rule 58(c), RASC.
If the Commission finds that any of these conditions are present, then it may (1) direct that a complaint be filed, (2) impose or recommend suitable discipline, or (3) dismiss the matter. Such a decision by the Commission may be reviewed by the Supreme Court in the same manner, and under the same conditions, as any other decision by the Commission in discipline matters. Id.
In all other respects, a final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall conclusively establish that misconduct for purposes of discipline proceedings in Arizona. Rule 58(d), RASC.
Transfer to Disability Inactive Status
Lawyers whose physical or mental condition adversely affect their ability to practice law shall be investigated and, where warranted, shall be the subject of formal proceedings to determine whether the lawyer should be transferred to disability inactive status. Rule 59(b), RASC. The matter is to proceed and hearings are to be conducted in the same manner, and according to the same rules, as discipline proceedings, with the following exceptions:
A. Transfer to disability inactive status may only be imposed by order of the Disciplinary Commission or the Supreme Court.
B. A lawyer is to be transferred to such status upon proof that, as a result of mental or physical illness or infirmity or addiction to drugs or intoxicants, the lawyer is unable to discharge adequately duties to clients, the bar, the courts or the public.
C. The principal aim of the proceeding is protection of the public and rehabilitation of the lawyer. Orders of transfer may include conditions of conduct similar to those attending probation.
D. When an order of transfer is entered by the Disciplinary Commission and is not appealed, the Commission is to notify the Court of that by memorandum.
E. Formal proceedings are commenced, not by the filing of a complaint, but by the filing of a petition for transfer to disability inactive status. Such a petition may be filed by the state bar or a member.
F. Service of the petition and other documents shall be made personally on the respondent and, in addition, upon the persons and in the manner provided in cases of petition for involuntary commitment in Title 36 of the Arizona Revised Statutes.
G. The Hearing Committee or Officer may appoint a lawyer to represent the respondent if the respondent is without adequate representation.
H. The hearing committee, hearing officer or Disciplinary Commission may take or direct any action it deems necessary or proper to determine whether the lawyer is incapacitated, including the examination of the lawyer by a qualified expert. Id.
If the Commission or the Court, on the CommissionÍs recommendation, finds that the respondent is incapacitated from continuing to practice law, the Commission or the Court shall enter an Order transferring the respondent to disability inactive status for an indefinite period, and pending further order of the Court. Any pending disciplinary proceedings against the respondent are to be held in abeyance, except that any investigation may continue and testimony may be taken and other evidence preserved pending further proceedings. Rule 59(b), RASC.
If it appears to the State Bar, a Hearing Officer, or the Disciplinary Commission, that a member may be incapacitated to the extent that the member may be causing harm to the public, the legal profession or the administration of justice because of mental infirmity or illness, or because of addiction to drugs or intoxicants, an application may be made to the Commission or the Court for an Order temporarily transferring the lawyer to disability inactive status, or making any other appropriate change in the memberÍs status. The procedures of Rule 52, RASC apply except that proceedings on the request may be held before the Disciplinary Commission. Rule 59(c), RASC.
If a lawyer has been judicially declared civilly incompetent, incompetent to stand trial, or is voluntarily or involuntarily committed because of incompetency or other disability or incapacity, the Court, on motion of bar counsel and proper proof of one of those facts, is to enter an order immediately transferring the lawyer to disability inactive status for an indefinite period and pending further order of the Court. A copy of such Order is to be served upon the lawyer, the lawyerÍs guardian and/or conservator, and the director of any institution to which the lawyer may have been committed. Rule 59(a), RASC.
If, during the course of a discipline proceeding, a lawyer claims that he or she is unable to assist in the defense due to mental or physical incapacity, the Commission, upon motion of bar counsel or recommendation of a Hearing Officer, shall immediately transfer the lawyer to disability inactive status pending determination of the incapacity. If the Commission or the Court determine the claim of incapacity to assist in the defense to be valid, the discipline proceedings shall be stayed, and the respondent shall be retained on disability inactive status until a petition for transfer to active status is subsequently decided. If the Commission or the Court, upon considering a petition for transfer to active status, determines that it should be granted, it shall also determine the disposition of the interrupted discipline proceedings, which are to be reinstated. If the Commission or the Court determines that the claim of incapacity to assist in the defense is invalid, the order of transfer to disability inactive status shall be vacated and the discipline proceedings shall resume. Rule 59(d), RASC.
Costs and expenses of disability proceedings shall be determined, assessed and enforced as provided for in the rules for discipline proceedings. Rule 59(e), RASC.
The State Bar, or any interested person, may petition the Presiding Judge of a superior court to appoint one or more eligible persons to act as conservators of the affairs of a lawyer or formerly admitted lawyer. Such a conservator(s) shall be appointed, if: (1) the lawyer maintains an office for the practice of law within the county and (2) no partner or other responsible successor to the practice of the lawyer is known to exist, and either (A) the lawyer is the subject of an order relating to emergency suspension, or (B) the Presiding Judge directs bar counsel to file such an application, or (C) the lawyer is transferred to disability inactive status, disappears or dies, or (D) other reasons requiring protection of the public are shown. Rule 65(a), RASC.
A copy of the petition and any order to show cause are to be served personally upon the respondent lawyer, and upon other persons as provided in cases of a petition for transfer to disability inactive status. If petitioner or bar counsel submits an affidavit that diligent efforts have failed to reveal the whereabouts of respondent or that respondent is evading service, then service may be made upon the clerk of the Supreme Court, who shall then proceed as provided for such cases in discipline proceedings, except that service is final when made. Rule 65(b), RASC.
The Presiding Judge is to conduct a hearing on the petition within seven (7) days after it is filed. The petitioner has both the burden of production, and the burden of persuasion by the preponderance of the evidence, that grounds exist for the appointment of a conservator. The Presiding Judge must issue an order either granting or denying the petition promptly, and must make findings of fact and a statement of the grounds for the decision. If no appearance has been made on behalf of the respondent lawyer, a copy of the order shall be served on the lawyer in the manner specified in Rule 65(c), RASC.
The filing of a petition for the appointment of a conservator shall be deemed, for purposes of applying any statute of limitations or time period for taking an appeal or securing relief from a judgment, as the timely filing of a complaint, appeal or motion seeking relief, for every client of the respondent lawyer, if: (1) the application for appointment of a conservator is granted, and (2) substitute counsel files an appropriate document within thirty (30) days of executing a receipt for the file concerning the matter. Rule 65(f), RASC.
The conservator is to take immediate possession of all files and papers of the respondent lawyer, and may have a warrant issued authorizing seizure of the files, upon a showing by affidavit that a conservator has been appointed and persons in control of the premises where the files are or may be located will not consent to a search for them or their removal, or other facts showing that court process is necessary to obtain the files. Rule 66(a), RASC. The conservator must make a written inventory of all files taken into the conservator's possession. Rule 66(b), RASC.
The conservator is to send a written notice to all clients of the respondent lawyer of the fact that a conservator has been appointed, the grounds that required the appointment and the possible need to obtain substitute counsel. Files may be released to clients or to substitute counsel upon execution of a written receipt, and all such receipts must be filed with the court at the conclusion of the conservatorship. The conservator must seek direction from the court for the disposition of any files not released to clients or substitute counsel. Rule 66(c), RASC.
Neither the conservator nor any partner or associate of the conservator may recommend counsel to any client of the respondent lawyer or represent such clients in any matter identified during the conservatorship or any other matter for a period of three (3) years after the conclusion of the conservatorship. Rule 66(d), RASC.
Within thirty (30) days after being appointed, the conservator is to file a written report with the court specifying what efforts have been made and results achieved concerning taking possession and inventorying the lawyer's files, and providing the required notice to the lawyer's clients. A similar written report must be filed every thirty (30) days thereafter until the conservator is discharged. Rule 66(e), RASC.
The conservator is to notify all banks and other financial institutions where the respondent lawyer maintained either professional or trustee accounts that a conservator has been appointed. Service on any such financial institution of a certified copy of the order of appointment operates as a modification of any agreement between the institution and the respondent lawyer so as to make the conservator a necessary signatory on the account. On application, the appointing court may make the conservator the sole authorized signatory on any such account, and may direct the disposition and distribution of client and other funds. Rule 67(a), RASC.
The conservator is to arrange for the return to the respondent lawyer's clients of all their funds held by the respondent lawyer, after deducting expenses or other proper charges owed to the respondent lawyer by such clients. Rule 67(b), RASC. Whenever the conservator determines that the conservator has possession of sufficient funds to permit the return of all client funds and to otherwise complete the conservatorship and pay the expenses thereof, any remaining funds may be released to the possession of the respondent lawyer or that lawyer's estate. Rule 67(c), RASC.
If possible, the necessary expenses of the conservatorship and the conservator's compensation are to be paid by the respondent lawyer or the respondent lawyer's estate. If not paid in that manner, the conservator may apply to the Board for payment, which is to direct that all of the necessary expenses and all or a portion of the requested compensation be paid as a cost of disciplinary administration and enforcement or from any other source the Board deems appropriate. Whether paid by the State Bar or not, the necessary expenses of the conservatorship and the reasonable compensation of the conservator are to be assessed against the respondent, and any sums paid by the State Bar must be reimbursed, and any sums still due the conservator must be paid, upon application for readmission by the respondent lawyer. Rule 67(d), RASC. The costs and expenses of conservatorship proceedings are to be assessed as in disciplinary proceedings. Rule 67(e), RASC.
The general law of conservators and fiduciaries applies to the conduct of the conservator and the conservatorship, with certain exceptions. First, the conservator is not to be regarded as having an attorney-client relationship with clients of the respondent lawyer, except that the conservator is bound by the duty of confidentiality with respect to information acquired as conservator. Second, the conservator shall have no liability to clients of the respondent lawyer, except for injury caused by intentional, willful or grossly negligent breach of the conservatorÍs duties. Finally, the conservator is immune to separate suit brought by or on behalf of the respondent lawyer. Any objection by the respondent lawyer or by any other person to the conduct of the conservatorship must be raised in the appointing court during the pendency of the conservatorship. Rule 68, RASC.
Reinstatement Proceedings Generally
Except in cases where the "affidavit in lieu of application for reinstatement" procedure, discussed infra, is available, an applicant for reinstatement must file with the Disciplinary Clerk a verified application for reinstatement addressed to the Commission or the Board, as appropriate, accompanied by the filing fee. The applicant must also file, together with the application, a written release or authorization to obtain access to documents or information in the possession of any third party, including a physician, psychologist or psychiatrist. The application must set forth the following information for the entire period between the date of disbarment or suspension and the date of filing the application ("the period of rehabilitation"): (1) the name, age and residence of the applicant; (2) the offense or misconduct which was the basis of the suspension or disbarment, and the date of disbarment or suspension; (3) the names and addresses of all complaining witnesses in the discipline proceedings that resulted in the disbarment or suspension and the name of the judge or the names and addresses of the committee and the acting members thereof before whom the proceedings were conducted or, if the discipline was based upon conviction of a felony or serious misdemeanor, the names and addresses of the trial judge, complaining witness and prosecuting attorney; (4) a description of applicant's occupation during the period of rehabilitation, together with the names and addresses of all partners, associates and employers and the dates and duration of such relationships and employment; (5) a statement of the applicant's approximate monthly earnings and other income during the period of rehabilitation, and the sources from which such earnings and income were derived; (6) a statement of all residences maintained during the period of rehabilitation, and the names and addresses of any landlords; (7) a statement of all financial obligations of applicant as of the date of filing the application, the dates when such obligations were incurred and the names and addresses of all creditors; (8) a statement describing all civil actions during the rehabilitation period to which the applicant was a party or in which the applicant had an interest, including the dates of filing, the date and manner of disposition, the titles of the courts and actions, and the names and addresses of all parties, attorneys for such parties, the trial judge or judges and all witnesses who testified in the action; (9) a statement describing every matter involving the arrest or prosecution of applicant for any crime during the period of rehabilitation, including the dates, the general nature and disposition of the matter, and the names and addresses of complaining witnesses, prosecutors and trial judges; (10) a statement as to any applications made during the period of rehabilitation for a license which required proof of good character, including the name and address of the authority to which it was addressed and the disposition of it; (11) a statement as to any proceedings involving the applicant's standing in any profession or organization which resulted in the censure, removal, suspension, discipline or revocation of license of the applicant, including the dates, facts and disposition, and the name and address of the authority in possession of the record regarding the same; (12) a statement of any claims or charges of fraud made against applicant, formal or informal, during the rehabilitation period, together with the names and addresses of the persons who made such charges; and, (13) a statement of facts claimed to support readmission to the State Bar. Rule 72(b), RASC.
The applicant must also file, together with the application, copies of the judgment of conviction, findings and judgment of the trial court and opinions of the appellate court, or the findings and recommendations of the Hearing Officer and Commission and decision, judgment or order of the Supreme Court, as appropriate, by which the applicant was suspended or disbarred. The applicant must also submit copies of all prior applications for reinstatement filed on the applicantÍs behalf, and of all findings, decisions or orders made with respect thereto or in connection therewith. The applicant must also furnish any additional information which in the opinion of the Commission, or the committee or persons to whom the application is referred, is necessary or desired. Rule 72(c), RASC.
Every applicant for reinstatement must pay an application fee of one hundred dollars ($100.00). In addition, the State Bar may also charge and collect from the applicant, as a prerequisite to filing and before commencing investigation of the application, the estimated cost of such investigation, together with any sums owed by the applicant to the client security fund or on account of prior discipline, disability or reinstatement proceedings. If the applicantÍs payment is less than the actual cost of investigation, the applicant must satisfy the deficiency before the application will be reviewed by the Commission. Any excess costs will be refunded promptly. Any subsequent costs or expenses incurred are to be paid before the application is reviewed by the Court, and no reinstatement shall become effective until membership fees and other charges accruing after the filing of the application have been paid. Rule 72(a), RASC.
In the case of members suspended for six (6) months or less who desire to resume the practice of law, they may file with the Supreme Court, and serve upon the State Bar, an affidavit in lieu of an application for reinstatement, within sixty (60) days after expiration of the period of suspension. The affidavit must state that the member has fully complied with the requirements of the suspension judgment or order, and the member must pay any required fees, costs and expenses. The State Bar may file a response to the affidavit within ten (10) days or within any other period set by the Court. If a response is filed, the member may not resume the practice of law until an order of reinstatement is entered. If no response is filed, that is deemed a consent by the State Bar to reinstatement, and the member may resume the practice of law upon order of the Court which may be issued by the Clerk. If such an affidavit is not filed by the suspended member within sixty (60) days after expiration of the period of suspension, then the member must apply for reinstatement under Rule 72, RASC. Rule 71(c), RASC.
A member whose suspension for nonpayment of costs has continued for six months or less may use the affidavit in lieu of application for reinstatement procedure set forth in Rule 71(c), RASC. If the suspension has continued for six months or more, then the member must apply for reinstatement under Rule 72, RASC. Rule 71(g), RASC.
Reinstatement following a summary suspension, or a suspension of six months or less, does not require proof of rehabilitation. Reinstatement following a suspension of more than six months or disbarment requires that proof of rehabilitation be demonstrated in a reinstatement proceeding. Rule 71(h), RASC.
In the case of a member who has been summarily suspended, an application for reinstatement must be filed within five (5) years from the effective date of the suspension, and must be accompanied by proof of cure of the grounds upon which the suspension order was based. The applicant must also pay the fees, assessments and administrative costs, if any, which the applicant would have been required to pay had the applicant remained an active member, plus any applicable reinstatement, delinquency or late fees. The application is addressed to the Board and the Board may enter an order of reinstatement after considering the application and upon verification of compliance with this Rule. Rule 71(b), RASC.
A member who has been suspended for more than six (6) months may apply for reinstatement within ninety (90) days prior to the expiration of the period of suspension, but may not be reinstated until the full period of suspension has been served. Rule 71(d), RASC. A former member who has been disbarred may apply for reinstatement no sooner than ninety (90) days prior to the fifth anniversary of the effective date of the disbarment, but may not be reinstated until after such fifth anniversary date. Rule 71(e), RASC. A lawyer on disability inactive status may only be reinstated in accordance with the procedures set forth in Rule 73. Rule 71(f), RASC.
No application for reinstatement may be filed within one year following an adverse decision upon a prior application. Rule 72(d), RASC.
Upon receiving the application, the Commission is to refer it to a Hearing Officer and serve a copy on Bar Counsel. The committee or officer to which the application is referred shall schedule a hearing on it within sixty (60) days after the referral. At the hearing, the applicant has the burden of establishing, by clear and convincing evidence, the applicantÍs rehabilitation, compliance with all applicable discipline orders and rules, fitness to practice and competence. The Commission is to review that report promptly, and file with the Supreme Court its own report, with findings and recommendation, together with the record. The Court may calendar the matter for argument if requested by the applicant or by Bar Counsel. Rule 72(e), RASC.
If the applicant fails to establish qualification for reinstatement, the application is to be dismissed. If the applicant is found to be qualified to resume the practice of law, the Court shall order reinstatement, but reinstatement shall be conditioned upon payment of all or part of the costs of the proceedings, upon restitution and upon proof of competency, including certification by the bar examiners of the successful completion of an examination for admission subsequent to the suspension or disbarment when that is required by the Rules. Rule 72(f), RASC.
The Board of Governors or the Disciplinary Commission may only make a favorable recommendation with respect to an application for reinstatement if it is satisfied that the applicant possesses the moral qualifications and the learning in the law required for admission to practice, and only by a resolution adopted by a majority of the entire Board or Commission. If the applicant has been on disability inactive status, has been disbarred, or has been suspended for a period of five (5) years, then the applicant must also apply for admission and submit to the regular written examination, and pay all fees required of an applicant for original admission in addition to the fees required of applicants for reinstatement. Rule 71(a), RASC.
Transfers from Disability Inactive Status to Active Status
An application for transfer from disability inactive status to active status is to be made and proceedings thereon had as in the case of other applications for reinstatement, and the application must contain all the information required by Rule 72(b), RASC, that are applicable, together with a statement of the facts and circumstances surrounding the transfer of the applicant to disability inactive status. Rule 73(a), RASC.
The filing of an application for transfer from disability inactive status to active status is deemed a waiver of any doctor-patient privilege with respect to treatment of the applicant during the period of disability. The applicant must furnish the name of each psychiatrist, psychologist, physician and hospital or other institution by whom or in which applicant was examined or treated since the date of transfer to disability inactive status, and a written authorization to each doctor to release information and records relating to the disability, if requested by the Commission, the Supreme Court or any appointed medical expert. Rule 73(b), RASC.
A lawyer transferred to disability inactive status may not resume the practice of law until reinstated by an Order of the Supreme Court. A lawyer is entitled to apply for transfer to active status at any time at least one year after the last previous application, or at such shorter intervals as the Commission or the Court may direct in the Order transferring the lawyer to disability inactive status. The application is to be granted upon a showing, by clear and convincing evidence, that the lawyerÍs disability has been removed and the lawyer is fit to resume the practice of law. In its discretion, the Commission or the Court may require that the lawyer establish proof of competence and learning in law, which may include certification by the bar examiners that the lawyer has successfully completed an examination for admission to practice, even though the lawyer was on disability inactive status for less than five (5) years. If a lawyer has been transferred to disability inactive status and is thereafter judicially declared to be no longer under a disability, the Supreme Court may dispense with the requirement of further proof of removal of the disability and may direct the lawyerÍs reinstatement upon such terms as are proper and advisable. Rule 73(c), RASC.
Confidentiality of Discipline, Disability and Reinstatement Proceedings
Unless the rules provide otherwise, the record maintained by the State Bar, the record on appeal maintained by the Disciplinary Clerk and all proceedings in discipline matters shall be open to the public upon (1) waiver of confidentiality by the respondent, (2) in screening cases, the filing of an order by the panelist concerning a recommended disposition, (3) in screening cases dismissed by the panelist, the mailing of the notice of dismissal to the complainant, (4) in cases not resulting in a screening investigation, the mailing of a notice of disposition to the complainant, (5) in proceedings for summary or interim suspension, the filing of a complaint, motion or petition, or (6) the filing of an agreement for discipline by consent. Rule 61(a), RASC.
Notwithstanding the foregoing, the following types of records do not become public: (1) work product and working files of state bar staff, Bar Counsel, the Panelist, Hearing Officers, the Disciplinary Commission or the Supreme Court, (2) mediation records and proceedings, (3) in diversion cases, memoranda or reports relating to audits, assessments or evaluations of the respondent or the respondentÍs practice, (4) deliberations upon decisions to be rendered by bar counsel, the panelist, a hearing officer, a settlement officer, the Disciplinary Commission or the Supreme Court, (5) information covered by a protective order issued pursuant to the Rules, (6) records of telephonic requests for information received by the State Bar, or (7) deliberations, work product and working files of the staff and Board of Trustees of the Client Protection Fund. Rule 61(b), RASC. Similarly, any information obtained during an investigation which involves client confidences or secrets is to be kept confidential to the extent possible, unless the client otherwise consents. Rule 55(g)(3), RASC.
Even before the record and proceedings become public, (1) the State Bar or Disciplinary Clerk may disclose the name of the member under investigation to that member and to the persons whose services or testimony are necessary in connection with the proceeding, (2) the State Bar may confirm that a charge has been received and is under investigation or is in the prescreening process, (3) the record and proceedings based on any criminal conviction may be disclosed, and (4) the State Bar or the Disciplinary Clerk may provide in response to a subpoena documents not confidential under Rule 61(b). In addition, the State Bar and the Disciplinary Clerk may disclose the record and proceedings to (1) other lawyer disciplinary entities or agencies, (2) client security or protection funds, (3) agencies or individuals authorized to investigate the qualifications of persons for admission to the practice of law, (4) agencies or individuals authorized to investigate the qualifications of candidates for judicial office or government employment, and (5) to prosecuting authorities if it appears that an attorney has engaged in conduct that is criminal in nature. If the proceeding is based on allegations that have generally become known to the public, the Board of Governors may authorize disclosure of the record or other information. Finally, the Board may authorize other disclosures necessary to protect the public, the administration of justice, or the legal profession. Rule 61(c), RASC.
Unless the Panelist, a Hearing Officer, a Hearing Committee, the Disciplinary Commission or the Court otherwise orders, nothing prohibits the complainant, respondent or other witness from disclosing the existence of proceedings or from disclosing any documents or correspondence served upon or provided to those persons. Rule 61(d), RASC.
Proceedings relating to transfer to or from disability inactive status are confidential, except that orders transferring a lawyer to or from disability inactive status are public. Rule 61(e), RASC. The record and proceedings in reinstatement cases are open upon the filing of the application for reinstatement. Rule 61(f), RASC.
On motion of a party or a person from whom information or evidence was obtained, and for good cause shown, the Panelist, a Hearing Officer, the Disciplinary Commission or the Court may make an order sealing a portion of the record and taking other measures to assure the confidentiality of the sealed information. Material that is sealed shall remain confidential even if the remaining record in the matter is made public. Sealed material may be opened and viewed only by an order of the Panelist, Hearing Officer, Disciplinary Commission or the Court for use by such body and the parties in proceedings then before it, and otherwise only upon notice to and an opportunity to be heard by the parties and the witness/person furnishing the information. Rule 61(h), RASC.
The disclosure of information under these rules does not constitute the waiver of any evidentiary, statutory or other privilege which might otherwise be asserted. Rule 61(g), RASC.
Expunction of Records of Dismissed Charges
"Expunction" refers to the destruction of all records or other evidence of the existence of a charge or complaint, except for a docket entry showing the names of the complainant and respondent, the final disposition, and the date of expunction. Rule 60(a), RASC. Where a charge or complaint is dismissed, all records relating to it may be expunged after three (3) years have passed from the date of dismissal. Rule 60(b), RASC. The respondent is to be given thirty (30) days written notice of expunction and an opportunity to be heard. Rule 60(c), RASC. After a file has been expunged, any response by the Commission or the State Bar to an inquiry requiring a reference to the matter shall state that any record concerning the matter has been expunged and that no inference adverse to the respondent should be drawn from the incident in question. The respondent may answer any such inquiry by stating that the charge or complaint was dismissed and expunged pursuant to court rule. Rule 60(d), RASC.
In Arizona, discipline is appropriate when a lawyer has been convicted of any felony or of a misdemeanor involving a serious crime. Rules 51(a), 57(a), Rules of the Supreme Court (hereinafter "RASC"). "Serious crime" is defined as any crime a necessary element of which involves interference with the administration of justice, false swearing, misrepresentation, fraud, willful extortion, misappropriation, theft or moral turpitude. Conspiracy or attempt to commit a serious crime, or soliciting another to commit a serious crime also constitutes a "serious crime." Rule 57(a), RASC.
In defining what criminal offenses conviction of which will constitute grounds for automatic suspension and potentially (if the conviction is not reversed) disbarment, the Rules of the Arizona Supreme Court has eschewed use of the terminology "crime involving moral turpitude" in favor of the term "serious crime." Notwithstanding that, whether the crime is one involving "moral turpitude" remains, sub silentio, a part of the analysis of whether a misdemeanor of which a lawyer has been convicted constitutes a "serious crime." In that regard, crimes involving "moral turpitude" have been defined as ones "involving fraud, deceit, dishonesty and misrepresentation." Matter of Wines, 135 Ariz. 203, 660 P.2d 454 (1983) (willful failure to supply information relating to income taxes). See also Howard v. Nicholls, 127 Ariz. 383, 621 P.2d 292 (App. 1980). Falsification of court records has been found to involve "moral turpitude of the highest degree." In re Spriggs, 36 Ariz. 262, 284 P. 521 (1930). In other contexts, it has been held that possession of small amounts of marijuana for personal use is not a crime involving "moral turpitude," Matter of Marquardt, 161 Ariz. 206, 778 P.2d 241 (1989), but the crime of shoplifting is. State v. Superior Court In and For Pima County, 121 Ariz. 174, 589 P.2d 48 (App. 1978). The conversion by a lawyer of client funds for the lawyerÍs personal benefit has, not surprisingly, been found to involve "moral turpitude." Matter of Couser, 122 Ariz. 500, 596 P.2d 26 (1979).
In Arizona, there are certain offenses, referred to as "Class 6 offenses," which are not characterized as either felonies or misdemeanors. Notwithstanding the fact that A.R.S. Û 13-702(G) provides, with respect to such offenses, that: "The offense shall be treated as a felony for all purposes until such time as the court may actually enter an order designating the offense a misdemeanor.", conviction of a Class 6 offense is not considered to be conviction of a felony for disciplinary purposes, and does not result in the convicted lawyer's automatic suspension, unless the offense qualifies as a "serious crime," as defined in Rule 57(a). Matter of Beren, 178 Ariz. 400, 874 P.2d 320 (1994). The State Bar is, of course, free to proceed against the lawyer on the basis of the underlying conduct. Id.
Upon the conviction of a member of the State Bar of any crime, the Clerk of the Court in which the conviction occurred must, within twenty (20) days of the conviction, transmit to the Supreme Court and the State Bar a certified copy of the judgment of conviction. Rule 57(a), RASC. Receipt by the State Bar of such a certified copy of a judgment of conviction, or of any other information indicating that a lawyer has been convicted of a crime, is to be treated and processed as is any other disciplinary charge, except that the sole issue to be determined is the extent of the discipline to be imposed. Id. Proof of conviction is conclusive evidence of guilt of the crime in any disciplinary proceeding based on the conviction. Id.
Within ten (10) days after the conviction of a member of a felony under either state or federal law, whether that conviction follows a guilty plea, a plea of nolo contendere, not guilty or otherwise, and regardless of the pendency of post-conviction proceedings or an appeal, that member is to be automatically suspended from the practice of law, unless the member files with the Supreme Court, within that ten-day period, a verified motion showing good cause why suspension should not be ordered. Rule 57(b), RASC. The Court may grant oral argument on the motion. Id. If the motion is granted, then the lawyer shall not be suspended pending completion of any disciplinary proceeding based on the conviction. Id. If the motion is denied, then the lawyer shall be suspended as of the date of the denial of the motion. Id.
Upon conviction of a member of a "serious crime" other than a felony, the State Bar may file with the Supreme Court a motion seeking the member's suspension pending final disposition of a disciplinary proceeding based on the conviction. Rule 57(c), RASC. The respondent lawyer must file, within ten (10) days, a verified response showing good cause why an interim suspension should not be ordered, and the Court may permit oral argument. Id. If the motion is granted, then the lawyer shall be suspended as of the date of the Order granting the motion. Id.
In Matter of Savoy, 181 Ariz. 368, 891 P.2d 236 (1995), an attorneyÍs criminal conviction for perjury was found to be conclusive evidence of guilt for purposes of a disciplinary proceeding, and the attorney was consequently disciplined for violating AZ-ER 8.4(a) through (d). An attorney was found to have violated AZ-ER 8.4 after he pleaded guilty to the felony of negligent homicide. This conclusion was buttressed, however, by the fact the attorney involved had a history of drug and alcohol abuse which might have been involved in the events leading to the conviction. Matter of Horwitz, 180 Ariz. 20, 881 P.2d 352 (1994). Similarly, an attorney was found to have violated AZ-ER 8.4(b) after pleading guilty to felony conspiracy charges for the promotion of gambling. Matter of Schwartz, 176 Ariz. 455, 862 P.2d 215 (1993). An attorney convicted of aggravated driving, a felony, for driving while under the influence of alcohol, and driving with a suspended license has been found subject to professional discipline for violating AZ-ER 8.4(a). Matter of Keefe, 172 Ariz. 394, 837 P.2d 1129 (1992). In Matter of Riches, 179 Ariz. 212, 877 P.2d 785 (1994), an attorney was disciplined for violating, inter alia, both AZ-ER 8.4(b) and (c) for misappropriating funds from personal injury settlements that belonged to his law firm and its clients.
If a lawyer who has been suspended solely by operation of Rules 57(b) or 57(c) (conviction of a felony or serious crime) demonstrates that the underlying conviction has been reversed or vacated, the order for interim suspension shall also be vacated and the lawyer returned to active status. Rule 57(d), RASC. The vacating of the interim suspension order does not operate to terminate any disciplinary proceeding then pending against the lawyer, the disposition of which is to be determined on the basis of the available evidence. Id.
An interim suspension order entered because of a member's conviction of a felony or of a serious crime constitutes the suspension of a lawyer for purposes of the notice requirements imposed by Rules 63(a) and (b). Rule 57(e), RASC. A lawyer subjected to such an interim suspension order must, within ten (10) days, cause the following persons to be notified, by registered or certified mail, return receipt requested, of the suspension, and of the fact that the lawyer is disqualified to act as a lawyer: (1) all clients represented in pending matters, (2) any co-counsel in pending matters, (3) any opposing counsel or unrepresented adverse parties in pending matters, and (4) each court and division in which the lawyer has any pending matter, whether active or inactive. Rule 63(a), RASC. The notice to opposing counsel and parties is to state the place of residence of the client in the matter. Id. If a client does not obtain substitute counsel before the effective date of the suspension, then the lawyer must move for leave to withdraw. Id. The lawyer must also return to all clients being represented in pending matters all papers or other property to which they are entitled, and notify them of a suitable time and place where those papers and property may be obtained. Rule 63(b), RASC. Respondent must also deliver all files and records in pending matters to the client, regardless of any attorney's lien. Id.
AZ-ER 3.1 essentially provides that a lawyer shall not bring or defend a proceeding, or assert or controvert an issue in that proceeding, unless there is a good faith basis for doing so. "Good faith" in this context includes a good faith basis for seeking the extension, modification or reversal of existing law. The Rule distinguishes the situation of the lawyer who is defending a client on criminal charges, or in any other proceeding that could result in the clientÍs incarceration (e.g., juvenile proceedings). In those situations, the lawyer may defend the proceeding so as to require that every element of the case be established, i.e., to put the prosecution to its proof. Lawyers are subject to discipline for violating the provisions of AZ-ER 3.1. In addition, there are a number of situations where lawyers may become subject to sanctions imposed by a court for violations of court rules, orders or procedures.
The most frequently invoked basis for the assessment of sanctions for abusive litigation practice is Rule 11(a) of the Arizona Rules of Civil Procedure (hereinafter "Ariz.R.Civ.P."). Rule 11 imposes upon attorneys and unrepresented parties the responsibility to insure that assertions made, and positions taken, in pleadings are done so in good faith and not for some improper purpose. The Rule's requirements apply not just to pleadings as defined in Rule 7(a), Ariz.R.Civ.P., but to motions and other papers that are filed as well. It is intended to discourage frivolous and/or legally unreasonable claims, or pleadings that are without factual foundation, even though not filed in subjective bad faith. It has been held that the obligations imposed upon attorneys by Rule 11(a) are at least analogous to those imposed by AZ-ER 3.1. A common theme in both is the need for an examination of whether a claim is frivolous by considering both the objective legal reasonableness of the theory or claim and the subjective motive of the proponent of the claim. Matter of Levine, 174 Ariz. 146, 847 P.2d 1093 (1993); Hill v. Chubb Life American Ins. Co., 178 Ariz. 37, 870 P.2d 1133 (App. 1993), vacated on other grounds 182 Ariz. 158, 894 P.2d 701 (1995).
Rule 11(a) requires that every pleading, motion and other paper (which includes discovery papers) be signed by at least one attorney of record for the party on whose behalf it is submitted, or by the unrepresented party. Under the Rule, as amended in 1984, the signature constitutes a certification by the party or attorney that the pleading "is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose . . ." Before signing a pleading, counsel is required to make reasonable efforts to assure that the matters asserted are not illusory, frivolous, unnecessary or insubstantial. James, Cooke & Hobson, Inc. v. Lake Havasu Plumbing & Fire Protection, 177 Ariz. 316, 868 P.2d 329 (App. 1993). In addition, as the facts of a case develop, counsel is under a continuing obligation to assess the validity of claims asserted. Standage v. Jaburg & Wilk, P.C., 177 Ariz. 221, 866 P.2d 889 (App. 1993); Gilbert v. Board of Medical Examiners, 155 Ariz. 169, 745 P.2d 617 (App. 1987).
The "reasonable efforts" required in any specific instance will depend upon a variety of factors, including the facts already known to or readily ascertainable by counsel, the amount of time available for investigation, the need to rely upon others, including the client, for information, and the plausibility of the claim itself. Boone v. Superior Court In and For Maricopa County, 145 Ariz. 235, 700 P.2d 1335 (1985). The test is ordinarily an objective one of reasonableness, unless there is an allegation and proof of the bringing of a non-frivolous claim for an improper motive. Matter of Levine, 174 Ariz. 146, 847 P.2d 1093 (1993); Hill v. Chubb Life American Ins. Co., 178 Ariz. 37, 870 P.2d 1133 (App. 1993), vacated on other grounds 182 Ariz. 158, 894 P.2d 701 (1995). The filing of an action is not frivolous simply because counsel has not first substantiated the facts or expects to develop critical evidence through discovery. Smith v. Lucia, 173 Ariz. 200, 842 P.2d 1303 (App. 1992); Roberts v. Kino Community Hospital, 159 Ariz. 333, 767 P.2d 56 (App. 1988). Similarly, the fact that summary judgment has been granted against a party is not dispositive of the issue of whether sanctions against that party's attorney are warranted under Rule 11. Sallomi v. Phoenix Newspapers, Inc., 160 Ariz. 144, 771 P.2d 469 (App. 1989).
The trial court has broad discretion in fashioning an appropriate sanction where a violation of Rule 11 is found, including an award of expenses and attorneys' fees. The Rule's prior specific reference to the striking of pleadings was eliminated solely because it was deemed unnecessary, and does not signify that the sanction of striking pleadings may not be employed. The sanctions imposed, however, must bear some relationship to the violation and, where a monetary sanction is imposed, it should be related to the expenses directly caused by the sanctioned conduct. Taliaferro v. Taliaferro, 188 Ariz. 333, 935 P.2d 911 (App. 1996).
An attorney subjected to an award of sanctions under Rule 11 has standing to challenge that award on appeal, even though the attorney is technically not a party to the action. Wieman v. Roysden, 166 Ariz. 281, 802 P.2d 432 (App. 1990); Barrow v. Arizona Board of Regents, 158 Ariz. 71, 761 P.2d 145 (App. 1988); Abril v. Harris, 157 Ariz. 78, 754 P.2d 1353 (App. 1987). All aspects of orders imposing sanctions under Rule 11 are reviewed solely for abuse of the trial court's discretion. James, Cooke & Hobson, Inc. v. Lake Havasu Plumbing & Fire Protection, 177 Ariz. 316, 868 P.2d 329 (App. 1993). The trial court's personal contact with the attorneys involved will entitle its views to some deference. Sallomi v. Phoenix Newspapers, Inc., 160 Ariz. 144, 771 P.2d 469 (App. 1989). In addition, the evidence will be viewed in a manner most favorable to sustaining the award. Heuisler v. Phoenix Newspapers, Inc., 168 Ariz. 278, 812 P.2d 1096 (App. 1991).
A nominally separate basis for awarding sanctions for the bringing of meritless claims is provided by A.R.S. Û 12-349. That statute provides that, in any civil action commenced in a court of record, the court shall assess reasonable attorney's fees and, at the court's discretion, double damages of not to exceed five thousand dollars ($5,000) against any attorney or party, including the state or any political subdivision, who is found to have done any of the following:
1. Brings or defends a claim without substantial justification;
2. Brings or defends a claim solely or primarily for delay or harassment.
3. Unreasonably expands or delays the proceeding.
4. Engages in abuse of discovery.
"Without substantial justification" is defined in the statute to mean that the claim or defense constitutes harassment, is groundless and is not made in good faith. A.R.S. Û 12-349(F). Subpart (C) of the statute also provides that attorney's fees may not be assessed if, after filing an action, a voluntary dismissal is filed for any claim or defense within a reasonable time after the attorney or party filing the dismissal knew or reasonably should have known that the claim or defense was without substantial justification.
A.R.S. Û 12-350 provides that, in awarding attorney's fees under A.R.S. Û 12-349, the Court must set forth the specific reasons for the award, and may take into account the following factors in determining whether such an award is warranted:
1. The extent of any effort made to determine the validity of a claim before the claim was asserted;
2. The extent of any effort made after the commencement of an action to reduce the number of claims or defenses being asserted or to dismiss claims or defenses found not to be valid;
3. The availability of facts to assist a party in determining the validity of a claim or defense;
4. The relative financial positions of the parties involved;
5. Whether the action was prosecuted, in whole or in part, in bad faith;
6. Whether issues of fact determinative of the validity of a party's claim or defense were reasonably in conflict;
7. The extent to which the party prevailed with respect to the amount and number of claims in controversy; and
8. The amount and conditions of any offer of judgment or settlement as related to the amount and conditions of the ultimate relief granted by the court.
It has been held that the same issues and concerns are involved, where a party requests sanctions under A.R.S. Û 12-349, as where the request is based upon Rule 11, Ariz.R.Civ.P. Harris v. Reserve Life Insurance Company, 158 Ariz. 380, 762 P.2d 1334 (App. 1988).
The availability of Rule 11, and of the provisions of A.R.S. '' 12-349 and 350, does not operate to deprive the trial court of its inherent power to impose sanctions for attorney misconduct before the Court and/or violations of the rules of procedure. Precision Components, Inc. v. Harrison, Harper, Christian & Dichter, P.C., 179 Ariz. 552, 880 P.2d 1098 (App. 1993). That power arises from, and is governed by, the control necessarily vested in courts to manage their own affairs so as to accomplish the orderly and expeditious disposition of disputes. Hmielewski v. Maricopa County, 192 Ariz. 1, 960 P.2d 47 (App. 1997). The imposition of sanctions under the Court's inherent power to do so should ordinarily be preceded by some form of notice and opportunity to be heard on the issue, but that may consist of the trial court explaining to the attorneys the reason for the proposed sanctions and the form they will take, and providing an opportunity to argue against them. Id. Whether an additional hearing on sanctions should be conducted depends on the nature of the case, and the factors to be considered include (1) the general circumstances of the violation, (2) the type and severity of the sanctions being considered, (3) the trial court's degree of participation in the proceedings and knowledge of the underlying facts, and (4) the need, if any, for further inquiry. Id.
The Arizona Rules of Civil Procedure also contain several provisions authorizing the imposition of sanctions for disclosure or discovery failures and/or abuses. [See discussion in Section 3.1:300 infra.] The mildest of the sanctions that can be assessed is an award of the costs and expenses, including reasonable attorneys' fees, incurred by the successful party on a motion to compel discovery and/or disclosure. Rule 37(a)(4), Ariz. R. Civ. P. This sanction is available where one of the following failures to make discovery and/or disclosure is involved:
1. A deponent fails to answer a question propounded or submitted at a deposition, or gives an answer that is evasive or incomplete.
2. A corporation or other entity fails to designate a representative to testify on its behalf at a deposition.
3. A party fails to answer an interrogatory propounded under Rule 33.
4. A party, in response to a request for production or inspection under Rule 34, Ariz.R.Civ.P., fails to state that inspection or production will be permitted, or fails to permit inspection or production as requested.
5. A party fails to make disclosure of the matters required to be disclosed by Rule 26.1, Ariz.R.Civ.P., or makes a disclosure that is evasive or incomplete.
Sanctions for a failure to make requested discovery or the disclosures required by Rule 26.1, Ariz.R.Civ.P. are permitted if a motion to compel disclosure is granted, or if the requested discovery or disclosure is provided after the motion is filed but before a ruling is secured, unless the Court finds that the moving party did not make a good faith effort to obtain the discovery or disclosure sought prior to resorting to a motion. Sanctions may also include an award of expenses and attorneys' fees, unless the Court finds that the noncompliance was substantially justified, or that other circumstances make an award of expenses and fees unjust. Scottsdale Princess Partnership v. Maricopa County, 185 Ariz. 368, 916 P.2d 1084 (App. 1995).
In addition, under the Rule as amended, where a failure to disclose, or a misleading disclosure, results in a party being required to engage in investigation or to conduct discovery that should not have been unnecessary, the Court must direct the offending party to reimburse the other party for the expenses thereby incurred, including attorneys' fees. Unless the failure to disclose is found by the trial judge to be harmless, a party failing to make a timely disclosure of evidence may not use that evidence at trial, at any hearing, or in connection with a motion, except with leave of court for good cause shown. Allstate Insurance Co. v. O'Toole, 182 Ariz. 284, 896 P.2d 254 (1995); Zuern v. Ford Motor Company, 188 Ariz. 486, 937 P.2d 676 (App. 1996), motion for depublication denied 190 Ariz. 574, 951 P.2d 449 (1997); Perguson v. Tamis, 188 Ariz. 425, 937 P.2d 347 (App. 1996). In addition, Rule 37(d), Ariz.R.Civ.P. specifically states that a knowing failure to disclose damaging or unfavorable evidence can be grounds for the imposition of more serious sanctions, up to and including dismissal of a claim or defense.
Rule 37(b), Ariz.R.Civ.P. authorizes an additional array of sanctions which may be applied where a party has failed to comply with a previous order compelling discovery. In that circumstance, the Court is authorized to do one or more of the following:
1) Enter an order that the matters which were the subject of the prior order shall be deemed established against the recalcitrant party's position.
2) Enter an order precluding the recalcitrant party from asserting certain claims or defenses or introducing evidence with respect to them.
3) Enter an order striking the pleadings or portions thereof of the recalcitrant party, or dismissing the action or portions thereof, or entering the default of the recalcitrant party.
4) Finding the recalcitrant party in contempt of court.
The contempt sanction may not be employed for failure to obey an order to submit to a physical or mental examination. An award of sanctions under Rule 37(b) requires that there have been a violation of a prior order compelling discovery. The very same sanctions, however, can be awarded under Rule 37(f), even where there has been no prior order or disobedience thereof, in the following instances:
1) Where a party, or a representative of a corporate party, fails to appear for a properly noticed deposition;
2) Where a party fails to serve answers or objections to interrogatories under Rule 33, Ariz.R.Civ.P.; and
3) Where a party fails to serve a written response to a properly served Rule 34 request for production or inspection.
See Verde Ditch Company v. James, 157 Ariz. 369, 758 P.2d 144 (App. 1988). Finally, Rule 37(e), Ariz.R.Civ.P. deals specifically with the failure of a party to admit matters made the subject of a request for admissions under Rule 36. If the party seeking the admission subsequently proves the truth of the matter in question, the Court can award that party the expenses incurred in making that proof, including reasonable attorneys' fees, unless the Court finds that the request was objectionable, the matter was not of substantial importance, the party in question had good reason to believe they would prevail on the issue, or there were other good grounds for the failure to admit. West v. Sundance Development Company, 169 Ariz. 579, 821 P.2d 240 (App. 1991); Aetna Loan Co. v. Apache Trailer Sales, 1 Ariz.App. 322, 402 P.2d 580 (1965).
In the discovery context, the issue of what sanction, if any, to apply in any given circumstance is one committed to the trial court's discretion. Granger v. Wisner, 134 Ariz. 377, 656 P.2d 1238 (1982); AG Rancho Equipment Co. v. Massey-Ferguson, Inc., 123 Ariz. 122, 598 P.2d 100 (1979); Birds Intern. Corp. v. Arizona Maintenance Co., 135 Ariz. 545, 662 P.2d 1052 (App. 1983). Any sanction that is imposed, however, must be "appropriate" and should bear some relationship to the nature of the violation and the harm that it caused. Taliaferro v. Taliaferro, 188 Ariz. 333, 935 P.2d 911 (App. 1996). Dismissal of the action, or the entry of the party's default, however, is a very drastic sanction that should only be invoked in extreme circumstances. Austin v. City of Scottsdale, 140 Ariz. 579, 684 P.2d 151 (1984); Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 955 P.2d 3 (App. 1997); Lenze v. Synthes, Ltd., 160 Ariz. 302, 772 P.2d 1155 (App. 1989). Generally, dismissal of an action, or the entry of a default, is warranted only where the party personally shares complicity in the abusive behavior and, even then, other, less severe sanctions should be considered. Groat v. Equity American Insurance Co., 180 Ariz. 342, 884 P.2d 228 (App. 1994); Nesmith v. Superior Court, 164 Ariz. 70, 790 P.2d 768 (App. 1990). If there is a question as to whether the misconduct involved was that of the party or counsel, a hearing should be conducted to resolve it. AG Rancho Equipment Co. v. Massey-Ferguson, Inc., 123 Ariz. 122, 598 P.2d 100 (1979); Weaver v. Synthes, Ltd., 162 Ariz. 442, 784 P.2d 268 (App. 1989).
Finally, there are a number of other instances in which sanctions may be awarded against counsel during the course of litigation. For example, Rule 16(f), Ariz.R.Civ.P. authorizes the imposition of sanctions for failure to appear at a pretrial conference, failure to be substantially prepared to participate in a pretrial conference, failure to participate in good faith at a pretrial conference, and/or failure to comply with a pretrial or scheduling order. These sanctions provisions are also made specifically applicable, by Rule 16.1(h), Ariz.R.Civ.P., to settlement conferences.
A lawyer may, of course, be subject to criminal liability if that lawyer's conduct violates the proscriptions of a criminal statute. In addition, from an ethical and disciplinary perspective, AZ-ER 1.2(d) provides that a lawyer shall not assist a client, or advise a client, to engage in conduct the lawyer knows is criminal or fraudulent. A lawyer may, however, discuss with the client the legal consequences of a proposed course of action. The Comment to AZ-ER 1.2 elaborates on the distinction between these two situations as follows:
Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a clientÍs conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.
Comment, AZ-ER 1.2, õ 10. In McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985), affirmed in part and vacated in part on other grounds 151 Ariz. 403, 728 P.2d 273 (1986), the Court of Appeals held that the rationale of permitting attorneys to be held liable for committing the intentional torts of abuse of process and/or malicious prosecution would also support the imposition of liability upon an attorney who knowingly prepared for a client a fraudulent conveyance in an action brought by the defrauded creditors:
The privilege an attorney has for his actions in representing a client is a qualified one that does not extend to the intentional torts of malicious prosecution and abuse of process. Nor should the privilege apply to the intentional acts of furthering and participating in a fraudulent conveyance.
Id., 151 Ariz. at 394, 728 P.2d at 394. See also Boone v. Superior Court In and For Maricopa County, 145 Ariz. 235, 242, 700 P.2d 1335, 1342, fn.2 (1985). There are no other Arizona authorities that discuss the issue whether an attorney may be held civilly liable for assisting a client in unlawful conduct.
In Arizona Ethics Opinion No. 95-02, the Committee on the Rules of Professional Conduct ("the Committee") considered whether a criminal defense attorney is required to provide information regarding the attorney's client's intent to appear at trial upon the request of court personnel. The Committee determined that, if a lawyer has actual knowledge that a client will not appear at trial, and the client's failure to appear is wilful, then the attorney must advise the court of that circumstance. Similarly, in Arizona Ethics Opinion No. 92-02, the Committee considered whether a lawyer has an ethical obligation to reveal a client's correct name to the court. The Committee was responding to an inquiry from a lawyer who had been retained by a "John Doe" for representation in a criminal matter. While out on bail, the client was arrested on other charges and told the arresting authorities his name was "John Smith." The inquiring lawyer was subsequently retained to represent this individual in the second criminal matter, and learned during the course of this engagement that the individual's true legal name was "John Smith." The Committee determined that the attorney was obligated to advise the client that the attorney could not use the client's false name in proceedings before the court and that, if the client refused to use his correct name, the attorney must seek to withdraw. The lawyer, however, could not disclose the client's use of a false name and, if the motion to withdraw was denied, the attorney must proceed with the representation, but without using the false name. See also In re American Continental Corporation/Lincoln Savings and Loan Securities Litigation, 794 F. Supp. 1424 (D. Ariz. 1992).
In Arizona Ethics Opinion No. 88-08, the Committee responded to an inquiry from a lawyer representing the wife in pending divorce proceedings. The wife had revealed to the attorney that she had surreptitiously tape recorded a conversation between her spouse and his lawyer in which the spouse had discussed the existence of additional assets that had not been disclosed but would ordinarily be subject to division in the divorce proceedings. The Committee concluded that the lawyer could seek to locate and/or force the disclosure of the existence of the additional assets, but could not use the tape recording as evidence that they existed, as that would constitute ratifying or assisting the client in conduct that might be fraudulent or criminal. The Committee also indicated that the lawyer must explain to the wife the limitations on the lawyerÍs ability to use the tape recording.
In Arizona Ethics Opinion No. 87-05, the Committee analyzed whether an attorney can ethically advise a client arrested for driving under the influence of alcohol to refuse to submit to blood, breath or urine tests. The Committee determined that it would not be unethical to so advise the client, as the client has a statutory right to refuse to take such tests, but that the best course of action was for the lawyer to advise the client of the option to refuse the tests, and the legal consequences of doing so, and to allow the client to make his or her own decision on the issue.
Lawyers are also subject to civil liability for malpractice, or professional negligence, when the services they render to clients fall below the applicable standard of care that they owe to their clients. [See discussion in 1.1:300, infra.] There have been various different articulations of the lawyer's duty to clients, and the relevant standard of care, in legal malpractice cases. In Molever v. Roush, 152 Ariz. 367, 370, 732 P.2d 1105, 1108 (App. 1986), the Court characterized the attorney's duty as being "to act as a reasonably careful and skillful attorney." See also Martin v. Burns, 102 Ariz. 341, 429 P.2d 660 (1967); Sarti v. Udall, 91 Ariz. 24, 369 P.2d 92 (1962). In Phillips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300, 303 (App. 1986), the Court characterized the attorney's duty as being "to exercise that degree of skill, care, and knowledge commonly exercised by members of the profession . . ." See also Toy v. Katz, 192 Ariz. 73, 961 P.2d 1021 (App. 1997); Collins v. Miller & Miller, Ltd., 189 Ariz. 387, 943 P.2d 747 (App. 1996). The Court of Appeals elaborated, to some degree, on this articulation of the applicable standard, in Baird v. Pace, 156 Ariz. 418, 752 P.2d 507 (App. 1987):
That standard [for legal malpractice] requires an attorney to act for his client in a reasonably careful and skilled manner in view of his special professional knowledge . . . He must ". . . possess such a reasonable knowledge of the law as is ordinarily possessed by other attorneys, and to discover those additional rules of law which, although not commonly known, may be readily found by standard research techniques."
Id., 156 Ariz. at 420, 752 P.2d at 509 (citations omitted).
As distinguished from an "ordinary negligence" case, in a legal malpractice case, both the standard of care and whether the defendant attorney's conduct fell below it will generally have to be shown by expert testimony. Baird v. Pace, 156 Ariz. 418, 752 P.2d 507 (1987). That will not be the case, however, "where the negligence is so grossly apparent that a lay person would have no difficulty recognizing it." Asphalt Engineers, Inc. v. Galusha, 160 Ariz. 134, 135-35, 770 P.2d 1180, 1182-83 (App. 1989). Expert testimony may also not be required where the claim against the attorney alleges breach of contract rather than professional negligence. Id. But see the discussion in Section 1.1:380, infra, of the limited circumstances under which a claim for breach of contract will lie for a lawyer's failure to carry out an engagement competently. Legal malpractice claims are regarded as personal injury claims, which may not be assigned in Arizona. Botma v. Huser, 202 Ariz. 14, 39 P.3d 538 (App. 2002). An invalid assignment, however, does not extinguish the claim, which may still be brought by and for the benefit of the malpractice claimant rather than the assignee. Id.
One case has suggested that an attorney cannot be held liable for malpractice for what amounts to a mere "error in judgment." Elliott v. Videan, 164 Ariz. 113, 117, 791 P.2d 639, 643 (App. 1989). Arizona has explicitly recognized the doctrine that an attorney cannot be held liable "for a mistake in a point of law that has not been settled by the highest court of the jurisdiction and upon which reasonable lawyers may differ." Martin v. Burns, 102 Ariz. 341, 343, 429 P.2d 660, 662 (1967); Monthofer Investments Limited Partnership v. Allen, 189 Ariz. 422, 943 P.2d 782 (App. 1997). The point of law in question, however, must truly be unsettled, and the defense may not be applicable where there is a statutory provision that settles it which could be found through adequate research. Baird v. Pace, 156 Ariz. 418, 752 P.2d 507 (App. 1987). In addition, the attorney must select a course of action that is both reasonable and prudent given that the law in the area in question is unsettled. Collins v. Miller & Miller, Ltd., 189 Ariz. 387, 943 P.2d 747 (App. 1996).
Two issues arise concerning the relationship between the ethical rules to which attorneys are subject, now the Arizona Rules of Professional Conduct, and the exposure of attorneys to civil liability for legal malpractice: (1) whether the ethical rules create a duty to clients enforceable in a legal malpractice action such that violation of an ethical rule will automatically subject an attorney to malpractice liability, and (2) the relationship between the standards for imposing disciplinary sanctions against an attorney for less than competent representation and the standards for imposing liability for professional negligence.
On the first issue, one Arizona appellate court has held, in Elliott v. Videan, 164 Ariz. 113, 791 P.2d 639 (App. 1989), that the violation of an ethical rule may be some evidence to be considered in determining whether an attorney committed malpractice. Whether that remains the law in Arizona has not been definitively decided. The Elliott decision involved a construction of former Rule 19 of the Rules of the Arizona Supreme Court, which was effectively replaced by Rule 42 of those Rules, which adopted a modified version of the Model Rules of Professional Conduct. The Preamble to the Arizona Rules of Professional Conduct says the following concerning the proper scope of their application:
Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyerÍs self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding has standing to seek enforcement of the rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyerÍs violation of a Rule may be evidence of breach of the applicable standard of conduct.
Preamble, Rule 42, Rules of the Arizona Supreme Court (emphasis
supplied). It has also been held that an allegation of unethical conduct will
not in and of itself support a cause of action for legal malpractice. Lansford
v. Harris, 174 Ariz. 413, 850 P.2d 126 (App. 1992). One authority has
suggested that limiting the use of claimed ethical violations as the basis for
legal malpractice actions is appropriate for several reasons: (1) the drafters
of the ethical rules did not intend to be creating standards for imposing malpractice
liability in civil litigation, (2) the procedural and substantive rules governing
the establishment of a disciplinary violation do not coincide with the rules
governing proof of a civil cause of action for legal malpractice, (3) the objectives
of the ethical and disciplinary rules are to protect the public and the identification
of issues appropriate for disciplinary consideration does not necessarily include
consideration of whether actual cognizable damage was caused to a client, and
(4) the ethical rules may be invoked for purposes of disqualification merely
on the basis of an appearance of impropriety, while tort liability requires
a much greater showing. Ronald E. Mallen & Jeffrey M. Smith,
Legal Malpractice, Û 1.87, p. 580 (3
On the second issue, the Arizona Supreme Court has made clear that the standard for the imposition of discipline for failure to provide competent representation is higher than the standard for imposing malpractice liability. In Matter of Curtis, 184 Ariz. 256, 908 P.2d 472 (1995), the Court disagreed with a recommendation of the Disciplinary Commission that Curtis be suspended and placed on probation, and ordered a sanction of public censure and suspension instead. The proceeding arose out of Curtis' representation of one client who had hired a contractor to construct a swimming pool at the client's residence. After discovering that the job was more difficult than originally anticipated, the contractor ceased work and declared bankruptcy. There was a dispute between Curtis and the client concerning the scope of his engagement to deal with this situation. Curtis claimed that he had only been hired to look into the contractor's bankruptcy filing, did so, discovered that the contractor had no assets and advised the client that further action would be futile. The client claimed that Curtis was hired to secure a lift of the bankruptcy stay so that the client could pursue a claim against the Contractor's Recovery Fund. The Hearing Officer agreed with the client, as did the Court, and found that Curtis' failure to do what he was retained to do constituted a violation of AZ-ER 1.1. The Court went on to observe, however:
Neither failure to achieve a successful result nor mere negligence in the handling of a case will necessarily constitute an ER 1.1 violation. We recognize the important distinction between conduct by an attorney that is simply negligent and conduct that rises to the level of an ethical violation. Clearly, the Bar must be vigilant in guarding the rights of clients, "but care should be taken to avoid the use of disciplinary action . . . as a substitute for what is essentially a malpractice action . . ." Thus, although not every negligent act violates an ethical rule, neglect in investigating the facts and law necessary to present a client's claim crosses the fine line between simple neglect and conduct warranting discipline.
We conclude that Respondent's actions or inactions went beyond mere lack of success or an act falling below the applicable standard of care. Respondent could not provide competent representation because he failed to have, attempt to obtain, or apply the "legal knowledge, skill, thoroughness and preparation reasonably necessary" for his representation of Client in this matter. ER 1.1 (emphasis added). Respondent may not have known what to do or how to do it, but for whatever reason he did not attempt a thorough review of the matter and did not prepare or do anything beyond a cursory check of the bankruptcy file. Respondent ultimately did no more than tell Client what he knew before hiring Respondent. We conclude that Respondent violated ER 1.1.
Id., 184 Ariz. at 261-62; 908 P.2d at 477-78 (citations omitted) (emphasis in original). The Court did not elaborate, either in this or any other Opinion, upon the difference between the amount and character of evidence required to warrant the imposition of discipline for violating AZ-ER 1.1, and that sufficient to sustain a malpractice verdict. In Toy v. Katz, 192 Ariz. 73, 85, 961 P.2d 1021, 1033 (App. 1997), the Court cited AZ-ER 1.1 as authority for the proposition that the defendant attorney "was bound to discharge his professional responsibilities competently with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." To the extent that suggests that the standard for imposing malpractice liability is equivalent to the standard for imposing discipline for a violation of AZ-ER 1.1, it is inconsistent with the decision of the Arizona Supreme Court in Matter of Curtis, 184 Ariz. 256, 908 P.2d 472 (1995).
Attorneys may also have, in certain situations, liability to their clients for breach of contract. The Arizona courts have generally charted a relatively consistent course on the issue of whether and, if so, under what circumstances, a claim that an attorney failed to properly discharge his or her professional obligations can be brought as a claim for breach of contract, rather than (or in addition to) as a claim sounding in tort for professional negligence. In Long v. Buckley, 129 Ariz. 141, 629 P.2d 557 (App. 1981), the issue arose in the context of whether plaintiffs could sustain their claim against Buckley, which was essentially one for professional negligence, as timely filed by relying on the longer (six-year) statute of limitations applicable to actions based upon a written contract, A.R.S. Û 12-548. While Division 1 of the Court of Appeals made the observation that: "legal malpractice usually consists of both a tort and a breach of contract," Id., 129 Ariz. at 145, 629 P.2d at 561, it suggested that there should be a limitation on the circumstances in which such a claim would be deemed to be one truly sounding in contract - when "the act which is alleged to give rise to the breach must bear some connection to the writing itself." Id., 129 Ariz. at 146, 629 P.2d at 562. The Court eventually held that the six-year contract action statute of limitations would not apply where the contract relied upon was simply a general retainer agreement which did not specify how the representation was to be carried out. Id. That holding was reiterated in Towns v. Frey, 149 Ariz. 599, 721 P.2d 147 (App. 1986), where the Court stated:
Legal malpractice usually consists of both a tort and a breach of contract . . . If one is going to assert a breach of contract claim against a lawyer, the contract relied upon must itself contain an undertaking to do the thing for the nonperformance of which the action is brought.
Id., 149 Ariz. at 601, 721 P.2d at 149 (citation omitted).
In Barmat v. John and Jane Doe Partners A-D, 155 Ariz. 519, 747 P.2d 1218 (1987), the Arizona Supreme Court addressed the question "whether a legal malpractice action 'arises out of a contract' so as to be eligible for an award of attorney's fees pursuant to A.R.S. Û 12-341.01(A)." Id., 155 Ariz. at 520, 747 P.2d at 1219. The Court eventually answered the question posed in the negative:
We agree that the law implies a contract between lawyer and client, including an implied covenant of competent and ethical representation . . . We do not believe, however, that the breach of an implied covenant in a contract implied in law necessarily brings the action within the statute.
Id., 155 Ariz. at 521, 747 P.2d at 1220 (citation omitted). The same result was reached in Environmental Liners, Inc. v. Ryley, Carlock & Applewhite, 187 Ariz. 379, 387, 930 P.2d 456, 464 (App. 1996):
When it is the gravamen of a legal malpractice claim that a lawyer has violated his implied duty to provide reasonably competent and ethical services, that claim sounds in tort, not in contract, and does not support the award of attorneys' fees under A.R.S. Û 12-341.01
The most recent and definitive discussion of the issue is found in Collins v. Miller & Miller, Ltd., 189 Ariz. 387, 943 P.2d 747 (App. 1996). After observing (somewhat inaccurately) that the issue had been addressed previously only in the context of other professions or where the issue was whether the provisions of A.R.S. Û 12-341.01 applied, the Court concluded:
. . . even where there is an express contract between the professional and the client, an action for breach of that contract cannot be maintained if the contract merely requires generally that the professional render services. Only if there is a specific promise contained in the contract can the action sound in contract, and then only to the extent the claim is premised on the nonperformance of that promise.
Id., 189 Ariz. at 395, 943 P. 2d at 755 (citations omitted).
In discharging certain of the responsibilities that arise by reason of the formation of an attorney-client relationship, and particularly those regarding the safeguarding of a client's funds and property that come into the attorney's possession, an attorney has fiduciary obligations to the client and can be found liable if those obligations are breached. See Ross v. Bartz, 158 Ariz. 305, 762 P.2d 592 (1988); Trebilcox v. Brown & Bain, P.A., 133 Ariz. 588, 653 P.2d 45 (App. 1982). In Matter of Estate of Shano, 177 Ariz. 550, 869 P.2d 1203 (App. 1993), the Court held that the attorney for the special administrator of an estate owes a "derivative fiduciary duty to the successors to decedent's estate." Id., 177 Ariz. at 554, 869 P.2d at 1207. The remedy imposed there for breach of that duty was disqualification of the attorney involved, and denial of an award of attorneys' fees for services rendered to the estate. There was no need to discuss, and the Court did not discuss, whether a breach of that "derivative" duty would, under other circumstances, support a claim for damages. But see Wetherill v. Basham, 197 Ariz. 198, 3 P.3d 1118 (App. 2000).
The Court of Appeals recently had the opportunity to clarify the apparent breadth of the holding in Shano in its decision in In the Matter of the Estate of Fogelman, 197 Ariz. 252, 3 P.3d 1172 (App. 2000). In Fogelman, the Court reiterated that the attorney representing the personal representative or administrator of an estate owes a "derivative fiduciary duty" of fairness and impartiality to beneficiaries and successors, but explained that such duty was one imposed by ArizonaÍs Probate Code, and not the Arizona Rules of Professional Conduct. The Court specifically held that successors and beneficiaries of an estate are not clients of the lawyer representing the personal representative. On the other hand, if clients whom the lawyer represents on other matters are interested parties in the probate proceedings, e.g., creditors, the "derivative fiduciary duty" imposed by the Probate Code may represent a "material limitation" on the lawyerÍs duties to those clients which creates a conflict of interests within the meaning of AZ-ER 1.7.
As discussed more extensively in Section 1.1:520, infra, it has always been the case that an attorney may be the subject of a suit for either malicious prosecution or abuse of process brought by a plaintiff who was the adverse party to the attorneyÍs client in litigation. The most recent decision on that point is Giles v. Hill Lewis Marce, 195 Ariz. 358, 988 P.2d 143 (App. 1999). In McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985), affirmed in part and vacated in part on other grounds 151 Ariz. 403, 728 P.2d 273 (1986), the Court of Appeals held that the rationale of permitting attorneys to be held liable for committing the intentional torts of abuse of process and/or malicious prosecution would also support the imposition of liability upon an attorney who knowingly prepared for a client a fraudulent conveyance in an action brought by the defrauded creditors:
The privilege an attorney has for his actions in representing a client is a qualified one that does not extend to the intentional torts of malicious prosecution and abuse of process. Nor should the privilege apply to the intentional acts of furthering and participating in a fraudulent conveyance.
Id., 151 Ariz. at 394, 728 P.2d at 394. See also Boone v. Superior Court In and For Maricopa County, 145 Ariz. 235, 242, 700 P.2d 1335, 1342, fn.2 (1985). The two decisions which initially recognized this rule, Lewis v. Swenson, 126 Ariz. 561, 617 P.2d 69 (App. 1980) and Bird v. Rothman, 128 Ariz. 599, 617 P.2d 1097 (App. 1981), cert. denied 454 U.S. 865, 102 S.Ct. 327, 70 L.Ed.2d 166 (1981), stressed, however, that malicious prosecution and abuse of process were intentional torts, and liability could not be imposed upon attorneys under such claims upon the basis of a showing of merely negligent conduct. It would seem to follow from these precedents that if an attorney intentionally prepared a false and misleading evaluation for the use of a third party, that attorney would have liability to the third party for doing so.
Finally, at least one case has suggested that, if the requisite elements can be shown, a lawyer may be held liable for common law fraud for activities arising out of an engagement as well. Neville v. Vingelli, 170 Ariz. 570, 572, 826 P.2d 1196, 1198, fn. 1 (App. 1991). The Supreme Court has stressed, however, that a showing of mere negligence is insufficient to support a determination that a lawyer committed a fraud or engaged in fraudulent conduct. Matter of Owens, 182 Ariz. 121, 125, 893 P.2d 1284, 1288 (1995).
The State of Arizona comprises a single federal judicial district - the District of Arizona. Generally, admission to, and continuing membership in, the bar of the United States District Court for the District of Arizona is limited to active members in good standing of the State Bar of Arizona. Rule 1.5(a), Local Rules of Practice of the United States District Court for the District of Arizona (hereinafter "District Court Local Rules"). Attorneys representing the United States, and members of the Federal Public Defender's Office, who are admitted to practice in another United States District Court, may practice in the District in any matter in which the attorney is employed during the attorney's period of federal service. Rule 1.5(b)(1), District Court Local Rules. Similarly, attorneys representing a tribal government entity in a full time official capacity may practice in the District in any matter in which such attorneys are employed or retained by that entity during such period of tribal service, but such attorneys must be members of the bar in some State. Rule 1.5(b)(2), District Court Local Rules. Finally, attorneys admitted to the bar of another United States District Court who have been retained to appear in a matter pending in the District may secure admission pro hac vice, upon written application. Rule 1.5(c), District Court Local Rules. Such pro hac vice admission status may not be accorded to: (1) an attorney who resides in Arizona; (2) an attorney who is regularly employed in Arizona; or (3) an attorney who is regularly engaged in the practice of law in Arizona. Id. Attorneys admitted to practice in the United States District Court for the District of Arizona may also practice in the Bankruptcy Court for the District. Attorneys admitted to practice in other United States District Courts may also secure admission pro hac vice, upon written application, to appear in a particular matter pending in the Bankruptcy Court. Rules 2090-1(a) and (c), Local Rules of Practice of the United States Bankruptcy Court for the District of Arizona.
An attorney admitted to, or otherwise authorized to practice in, the District may be disbarred or disciplined after such hearing as the Court may direct. Rule 1.6(a), District Court Local Rules. That Rule does not specify the nature of the conduct that may lead to the imposition of such a sanction. Id. The Court may also, on its own initiative, impose sanctions upon a party, attorney, supervising attorney or law firm, after notice and an opportunity to be heard, that does any of the following without just cause:
(a) violates, or fails to conform to, provisions of the Federal Rules of Civil or Criminal Procedure, the Local Rules of the District Court or the Bankruptcy Court, and/or any order of the Court; or
(b) fails to appear at, or be prepared for, a hearing, pretrial conference or trial, where proper notice of the proceeding has been given.
Rule 1.5(f)(1), District Court Local Rules. Such sanctions may include fines, awards of costs (including attorneys' fees), preclusion orders, and orders striking pleadings or other papers in whole or in part. Rule 1.5(f)(2), District Court Local Rules. Sanctions may also be imposed for violations of the Arizona Rules of Professional Conduct, and such matters may also be referred to the relevant bar association for appropriate action. Id. More serious sanctions, including contempt citations and entry of judgment against the offending attorney's client, may be imposed where the Court finds that an attorney, party, supervising attorney or law firm has committed repeated serious violations without just cause. Rule 1.5(f)(3), District Court Local Rules. Sanctions against a law firm or supervising attorney must be based on a finding of their actual or constructive knowledge of the offending behavior and failure to take corrective action. Rule 1.5(f)(1), District Court Local Rules.
The District Court's Local Rules also authorize the imposition of so-called "derivative discipline," i.e., discipline based on the fact that an attorney admitted to, or authorized to practice in, the District is subjected to discipline by another jurisdiction where that attorney is also admitted. Any attorney admitted to, or authorized to practice in, the District who is disbarred or subjected to suspension or other disciplinary action in any other jurisdiction is obligated to promptly report the matter to the Court. Rule 1.6(b), District Court Local Rules. When it becomes known to the Court, either through this self-reporting mechanism or otherwise, that an attorney admitted to, or authorized to practice in, the District has been disbarred or suspended by any court of competent jurisdiction, that is sufficient ground for the removal or suspension of that attorney from the bar of the District. Rule 1.6(c), District Court Local Rules. Upon such information becoming known, the attorney is to be immediately suspended from practice in the District. Id. A notice of this interim suspension is to be mailed to the attorney and, unless the attorney shows good cause to the contrary within forty (40) days, the attorney will be disbarred from practice in the District. Id. (NOTE: The procedures apparently contemplated by this Local Rule would not seem to comply with the requirements for "derivative discipline" set forth in Theard v. United States, 354 U.S. 278 (1957) and Selling v. Radford, 243 U.S. 46 (1917).) The Rule is silent on what, if anything, happens when the disciplinary sanction imposed by the other jurisdiction is less severe than disbarment or suspension.
There are no provisions in the Local Rules of Practice of the United States Bankruptcy Court for the District of Arizona concerning imposing discipline upon, or awarding sanctions against, attorneys admitted to practice before that Court.
The District of Arizona is geographically within the jurisdiction of the United States Court of Appeals for the Ninth Circuit. Under Rule 46(a) of the Federal Rules of Appellate Procedure, an attorney is eligible for admission to the bar of a court of appeals, including the Ninth Circuit, if that attorney "is of good moral and professional character and is admitted to practice before the Supreme Court of the United States, the highest court of a state, another United States court of appeals, or a United States district court (including the district courts for Guam, the Northern Mariana Islands, and the Virgin Islands)." An applicant must file an application for admission, and there must be either an oral or written motion by a member of the circuit court's bar for the applicant's admission. Rule 46(b), Federal Rules of Appellate Procedure. Ninth Circuit Rule 46-1.2 requires that an attorney who is not already admitted to the bar of the Ninth Circuit causes a case to be docketed in the Court, or enters an appearance, must simultaneously apply for admission.
Rule 46(b) of the Federal Rules of Appellate Procedure provides that a member of the bar of a Court of Appeals is subject to suspension or disbarment if the member (1) has been suspended or disbarred from practice in any other court, or (2) is guilty of conduct unbecoming a member of the bar of that Court. The member must be given an opportunity to show good cause, within a time period prescribed by the Court, why the member should not be suspended or disbarred, and the Court must enter an appropriate order after the member responds and a hearing is held, if requested, or after the prescribed time for a response expires and no response is made. Rules 46(b)(2) and (3), Federal Rules of Appellate Procedure.
Rule 46(c) of the Federal Rules of Appellate Procedure also authorizes a Court of Appeals to discipline an attorney admitted to its bar "for conduct unbecoming a member of the bar or for failure to comply with any court rule." The Court must first, however, afford the attorney reasonable notice, an opportunity to show cause to the contrary, and, if requested, a hearing. Rule 46(c), Federal Rules of Appellate Procedure.
Rule 1.6(d) of the Local Rules of Practice of the United States District Court for the District of Arizona provides that all attorneys admitted to, or otherwise authorized to practice in, the District of Arizona are subject to the Arizona Rules of Professional Conduct. The Arizona Rules of Professional Conduct are also applicable to all attorneys admitted to practice, or appearing before, the United States Bankruptcy Court for the District of Arizona. Rule 9011-1, Local Rules of Practice of the United States Bankruptcy Court for the District of Arizona. For a discussion of the categories of attorneys who are admitted to, or authorized to practice in, the District of Arizona and the Bankruptcy Court for the District of Arizona, see Section 0.2:270, supra.
0.3:300 Organization of This Library and the Model Rules
This work utilizes the Outline for State Narratives prepared for the American Legal Ethics Library. That Outline in turn relies heavily on the organization of the Model Rules of Professional Conduct, which is essentially as follows:
Client-Lawyer Relationship Rules AZ-ER 1.1 to AZ-ER 1.18
Law Firms and Associations Rules AZ-ER 5.1 to AZ-ER 5.7
0.4:400 Abbreviations, References and Terminology
The following abbreviations are generally used throughout this Narrative:
The American Bar Association is referred to as "ABA"
The ABA Model Rules of Professional Conduct are referred to as "MR"
Individual provisions of the Arizona Rules of Professional Conduct are referred to as "AZ-ER [No.]"
Both the ABA Model Code of Professional Responsibility and the former Arizona Code of Professional Responsibility are referred to as the "former Code of Professional Responsibility"
Disciplinary Rules under the former Code of Professional Responsibility are referred to as "DR [No.]"
Ethical Considerations under the former Code of Professional Responsibility are referred to as "EC [No.]"
The State Bar of ArizonaÍs Committee on the Rules of Professional Conduct is at times referred to as "the Committee"
Published Opinions of the Committee are cited as "Arizona Ethics Opinion [No.]
The "Terminology" employed in the Arizona Rules of Professional Conduct has now, consistently with the Model Rules, been placed in a separate AZ-ER 1.0, which defines the terms used in many of the Rules.
The terms "Belief" or "Believes" are defined in AZ-ER 1.0 as denoting "that the person involved actually supposed the fact in question to be true. A personÍs belief may be inferred from circumstances." This definition is identical to the definition given to those terms in the Model Rules of Professional Conduct. The Arizona Supreme Court has recognized that a lawyer can form a reasonable belief concerning the lawyerÍs conduct that, in hindsight, is "erroneous," and that the lawyer should ordinarily not be penalized for that fact. Matter of Curtis, 184 Ariz. 256, 908 P.2d 472 (1995).
The terms "Consults" or "Consultation" were previously defined in the "Terminology" Section of the Arizona Rules of Professional Conduct, as denoting "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." This definition was eliminated with the 2003 amendments to the Rules, because its substance is contained in the definition of "informed consent," discussed infra.
When used in reference to the informed consent (also a defined term) of a person, this term is defined in AZ-ER 1.0 as denoting "informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent." The definition of the term, which is identical to that found in the Model Rules, goes on to explain that: "If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter."
The terms "Firm" or "Law Firm" are defined in AZ-ER 1.0 as denoting "a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association; or lawyers employed in a legal services organization or the legal department of a corporation or other organization." This portion of the definition is identical to the definition given to those terms in the Model Rules of Professional Conduct. In AZ-ER 1.0, however, the definition goes on to explain that: "Whether government lawyers should be treated as a firm depends on the particular Rule and the specific facts of the situation." This sentence is not contained in the Model Rules, but seems consistent with prior Arizona precedent addressing the issue.
The test employed by the State Bar Committee on the Rules of Professional Conduct ("the Committee") is whether the organization or association operates similarly to a private law firm. Arizona Ethics Opinion No. 91-12. In that Opinion, the Committee addressed the situation where a contract between a County Attorney and a City Attorney authorized the City Attorney to handle some of the County AttorneyÍs misdemeanor criminal cases, and the County Attorney had the power to unilaterally terminate the contract. The Committee concluded that, to the extent that the exercise of this power required the County Attorney to review any confidential information relating to the misdemeanor prosecutions performed by the City Attorney, then the County AttorneyÍs Office and the City AttorneyÍs Office would be viewed as a single "firm" for purposes of AZ-ER 1.10.
Although the view has been expressed that the term "firm" does not include governmental offices, State v. Sustaita, 183 Ariz. 240, 243, 902 P.2d 1344, 1347, n.2 (App. 1995), that seems too broad a generalization from the fact that government agencies are treated differently than private firms in the application of the "imputed disqualification" rules. In Arizona Ethics Opinion No. 93-06, the Committee concluded that a Public DefenderÍs Office will ordinarily be considered a single "firm" for purposes of AZ-ER 1.10, and cannot split into two divisions in order to avoid operation of the imputed disqualification rule. That also appears to be the implicit assumption of the decisions in Maricopa County Public DefenderÍs Office v. Superior Court, 187 Ariz. 162, 927 P.2d 822 (App. 1996), and Okeani v. Superior Court In and For Maricopa County, 178 Ariz. 180, 871 P.2d 727 (App. 1993). Similar treatment, i.e., as a single firm, has also been implicitly accorded to prosecutorial agencies. See State v. Hursey, 176 Ariz. 330, 861 P.2d 615 (1993); State v. Latique, 108 Ariz. 521, 502 P.2d 1340 (1972); State ex rel. Romley v. Superior Court In and For Maricopa County, 184 Ariz. 223, 908 P.2d 37 (App. 1995); State ex rel. Romley v. Gottsfield, 171 Ariz. 195, 829 P.2d 1241 (App. 1992); Turbin v. Superior Court, 165 Ariz. 195, 797 P.2d 734 (App. 1990). A city attorneyÍs office has also been viewed as a single "firm" for purposes of applying the conflict of interest rules. Arizona Ethics Opinion No. 80-12.
The terms "Fraud" or "fraudulent" are defined in AZ-ER 1.0 as denoting "conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive." This definition is identical to the definition given to those terms in the Model Rules of Professional Conduct. The Supreme Court held that a showing of mere negligence is insufficient to support a determination that a lawyer committed a fraud or engaged in fraudulent conduct. Matter of Owens, 182 Ariz. 121, 125, 893 P.2d 1284, 1288 (1995).
AZ-ER 1.0 defines "informed consent," a term that is now used in the Arizona Rules of Professional Conduct, as amended, and particularly the Rules dealing with conflicts of interest, as "the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks or and reasonably available alternatives to the proposed course of conduct." This definition, which is identical to that found in the Model Rules, clearly incorporates the elements of the former requirement of a "consultation."
Prior Arizona precedent made clear that there had to be a meaningful disclosure to the client of the ramifications of the various alternatives available to satisfy the "consultation" requirement:
To satisfy the requirement of full disclosure by a lawyer before undertaking to represent two conflicting interests, it is not sufficient that both parties be informed of the fact that the lawyer is undertaking to represent both of them, but he must explain the nature of the conflict of interest in such detail that so that they can understand the reasons why it may be desirable for each to have independent counsel, with undivided loyalty to the interests of each of them.
Sellers v. Superior Court In and For Maricopa County, 154 Ariz. 281, 286, 742 P.2d 292, 297 (App. 1987). See also Matter of Owens, 182 Ariz. 121, 893 P.2d 1284 (1995); Matter of Shannon, 179 Ariz. 52, 876 P.2d 548 (1994). The consent of the client must be freely given, and cannot be extracted through the imposition of financial pressures or any other form of coercion. Matter of Murphy, 188 Ariz. 375, 936 P.2d 1269 (1997). The burden of establishing that there was an appropriate disclosure and a fully informed consent is on the lawyer, and any doubts or ambiguities on the issue will be resolved against the lawyer. In re Neville, 147 Ariz. 106, 115, 708 P.2d 1297, 1306 (1985).
The terms "Knowingly," "Known," or "Knows" are defined in AZ-ER 1.0 as denoting "actual knowledge of the fact in question. A personÍs knowledge may be inferred from circumstances." This definition is identical to the definition given those terms in the Model Rules of Professional Conduct. The Supreme Court and the disciplinary authorities have regularly inferred "knowledge" on the part of the lawyer from circumstances suggesting that the lawyer must have had actual knowledge of a pertinent fact or circumstances. See Matter of Curtis, 184 Ariz. 256, 908 P.2d 472 (1995); Matter of Galbasini, 163 Ariz. 120, 786 P.2d 971 (1990). Knowledge of the contents of a letter cannot be imputed to a lawyer to whom the letter was sent, if the lawyer neither opened nor read it. Matter of Hohn, 171 Ariz. 539, 832 P.2d 192 (1992).
The term "Partner" is defined in AZ-ER 1.0 as denoting "a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law." This definition is identical to the definition given this term in the Model Rules of Professional Conduct. In the Comment to AZ-ER 5.1, which deals with the responsibilities of a partner or supervisory lawyer, it is indicated that the coverage of the Rule extends not only to those who satisfy the foregoing definition of "Partner," but also to: "lawyers having comparable managerial authority in a legal services organization or a law department of an enterprise or governmental agency, and lawyers who have intermediate managerial responsibilities in a firm."
The terms "Reasonable" or "Reasonably" are defined in AZ-ER 1.0 "when used in relation to conduct by a lawyer," as denoting "the conduct of a reasonably prudent and competent lawyer." This definition is identical to the definition given those terms in the Model Rules of Professional Conduct.
The terms "Reasonable belief" and "Reasonably believes" are defined in AZ-ER 1.0 "when used in reference to a lawyer," as denoting "that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable." This definition is identical to the definition given to those terms in the Model Rules of Professional Conduct.
This term is defined in AZ-ER 1.0 "when used in reference to a lawyer" as denoting "that a lawyer of reasonable prudence and competence would ascertain the matter in question." This definition is identical to that found in the Model Rules.
This new term for the Rules is defined in AZ-ER 1.0, and in the Model Rules, as denoting "the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law."
The term "Substantial" is defined in AZ-ER 1.0 "when used in reference to degree or extent" as denoting "a material matter of clear and weighty importance." This definition is identical to the definition of the term in the Model Rules of Professional Conduct. In Security General Life Insurance Company v. Superior Court In and For Yuma County, 149 Ariz. 332, 718 P.2d 985 (1986), the Court held that the mere signing of orders prepared by others by a former Director of the Department of Insurance did not constitute either "substantial" or "personal" participation in the matters affected. In State ex rel. Romley v. Superior Court In and For County of Maricopa, 184 Ariz. 223, 229, 908 P.2d 37, 44 (App. 1995), the Court held that, for purposes of applying the disqualification rule in AZ-ER 1.11(c), "whenever an attorney obtains confidential information from a client in a criminal case, that attorneyÍs participation is ïpersonalÍ and ïsubstantial.Í"
This term is defined in AZ-ER 1.0 as denoting "a court, an arbitrator in an arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity." A legislative body, administrative agency or other body is deemed to be acting in an adjudicative capacity "when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a legal judgment directly affecting a partyÍs interests in a particular matter." This definition is substantially identical to that found in the Model Rules, except that Arizona omitted the word "binding" before "legal judgment" in the last sentence of the definition.
These terms are defined in AZ-ER 1.0 as denoting "a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail." The definition goes on to explain that a "signed writing" includes "an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing." These definitions are identical to those found in the Model Rules.
0.4:500 Additional Definitions in Arizona
AZ-ER 1.0, as adopted in 2003 does not contain any definitions of terms that are not found in the corresponding provision in the Model Rules.