0.1:240 Disciplinary Process
Discipline and Disability Jurisdiction of the Arizona Supreme Court
Any lawyer admitted to practice in Arizona is subject to the Arizona Supreme Court's disciplinary and disability jurisdiction. Ariz. R. Sup. Ct. 46(a). Non-members engaged in the practice of law in Arizona, lawyers or non-lawyers specially admitted to practice for a particular proceeding, in-house counsel registered pursuant to RASC 38(a), and foreign legal consultants as defined in RASC 38(b), also submit themselves to the court's discipline and disability jurisdiction. Ariz. R. Sup. Ct. 46(b). Lawyers on inactive status remain subject to the requirements of the Arizona Rules of Professional Conduct. See Ariz. Ethics Op. No. 05-02.
Former judges who resume the practice of law are subject to the jurisdiction of the Arizona 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. Ariz. R. Sup. Ct. 46(c). 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 on the record in the judicial discipline proceeding and, if so, the extent of discipline to be imposed. Ariz. R. Sup. Ct. 46(d).
Disbarred lawyers are not entitled to the rights and privileges of a lawyer, but remain subject to the Arizona Supreme Court's jurisdiction with respect to matters occurring before their suspension or disbarment. Ariz. R. Sup. Ct. 46(e). Disbarred lawyers are no longer State Bar members and therefore may not practice law in the state or represent in any way that they may practice law in the state. Ariz. R. Sup. Ct. 31(b), (c). Thus, the court retains jurisdiction to enjoin the unauthorized practice of law by a disbarred lawyer. In re Creasy, 198 Ariz. 539, 12 P.3d 214 (2000). Disbarred lawyers may, however, apply for certification as legal document preparers in accordance with the regulatory requirements provided for in Arizona Code of Judicial Administration Section 7-208. Ariz. R. Sup. Ct. 31(d)(23).
Grounds for Imposing Discipline
Grounds for imposing discipline on members or non-members are:
(1) violation of a rule of professional conduct in effect in any jurisdiction;
(2) violation of a canon of judicial conduct;
(3) knowing violation of any rule or any order of the court;
(4) violation of any obligation pursuant to the applicable rules in a discipline or disability investigation or proceeding, including evading service or refusal to cooperate and failing to furnish information;
(5) violation of a condition of probation or diversion;
(6) violation of any a condition of admission imposed by the Arizona Supreme Court or the Committee on Character and Fitness pursuant to RASC 36(a)(4)(D);
(7) conviction of a misdemeanor involving a serious crime or of any felony;
(8) discipline imposed in another jurisdiction; and
(9) "Unprofessional conduct" as defined in RASC 31(a)(2)(E).
Ariz. R. Sup. Ct. 54.
RASC 31(a)(2)(E) defines "unprofessional conduct" as "substantial or repeated violations of the Oath of Admission to the Bar or the Lawyer's Creed of Professionalism of the State Bar of Arizona." The Comment by the Arizona Supreme Court that accompanied the amendment adding this provision to Rule 31 strongly suggests that it does not apply to conduct that occurs "outside the practice of law."
The procedures to be followed when a lawyer subject to the Arizona Supreme Court's jurisdiction has been convicted of a felony or a misdemeanor involving a "serious crime" are set forth in RASC 53(h). See also infra Section 0.1:245.
In addition to making the failure to furnish requested information a ground for imposing discipline, RASC 53(f) requires that lawyers: (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.
Disciplinary Sanctions
Misconduct by a lawyer or nonmember subject to the Arizona Supreme Court's jurisdiction is grounds for imposing one or more sanctions. The Standards for Imposing Lawyer Sanctions, published by the ABA's Center for Professional Responsibility, are used as guidance to determine the appropriate sanction, if any, to be imposed. Ariz. R. Sup. Ct. 58(k). If appropriate, a proportionality analysis may also be performed. Id. Available sanctions include:
(1) Disbarment. Disbarment may be imposed by the Arizona Supreme Court, a hearing panel, or the PDJ. Ariz. R. Sup. Ct. 60(a)(1). A judgment and order issued by a hearing panel or the PDJ is final unless stayed by motion pending appeal to the court. Ariz. R. Sup. Ct. 59(c). A disbarred lawyer is eligible for reinstatement five years after the effective date of the disbarment. Ariz. R. Sup. Ct. 60(d).
(2) Suspension. A suspension for a fixed period of time not longer than five years may be imposed by the Arizona Supreme Court, a hearing panel, or the PDJ. A suspension of six months or less differs significantly from a suspension of more than six months. An attorney suspended for six months or less may resume practice after filing with the disciplinary clerk (and serving on the State Bar) an affidavit for reinstatement including an avowal that the lawyer has fully complied with the requirement of the suspension judgment and order and has paid all required fees, costs and expenses. Ariz. R. Sup. Ct. 64(e)(2)(a). The affidavit maybe be filed no sooner than ten days before the period of suspension is to end. Id. The lawyer need not show proof of rehabilitation. Id. If a lawyer who is suspended for six months or less fails to apply for reinstatement within 180 days after expiration of the period of suspension, the lawyer must follow the reinstatement process for lawyers suspended for more than six months. Id. The State Bar may oppose the affidavit. Ariz. R. Sup. Ct. 64(e)(2)(B). An attorney suspended from practice for more than six months must complete a formal reinstatement process before being readmitted. Ariz. R. Sup. Ct. 64(e)(1). The lawyer may file the application no more than ninety days before the end of the suspension period, but may not be admitted before the expiration of the suspension period. Id. The reinstatement process for disbarred lawyers and lawyers suspended for more than six months is governed by RASC 64, RASC 65, and In re Arrotta, 208 Ariz. 509, 96 P.3d 213 (2004).
(3) Interim Suspension. The PDJ may impose an interim suspension pending final determination of discipline. Either the respondent or the State Bar may appeal the PDJ's decision on an interim suspension. Ariz. R. Sup. Ct. 61(e). An interim suspension may be entered on 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 interim suspension supported by a verification or affidavit establishing sufficient facts to support such a suspension, and must include a copy of any related hearing panel report. The PDJ may issue an order of probation in lieu of interim suspension. If an interim suspension is ordered, the State Bar must move expeditiously to complete its investigation and commence formal proceedings against the respondent, and the PDJ may order measures to verify status and set deadlines to expedite the investigation. An order of interim suspension is effective immediately unless otherwise specified and, unless vacated or modified, continues in effect until final disposition of all pending proceedings against the respondent. Ariz. R. Sup. Ct. 61.
(4) Reprimand. The Arizona Supreme Court, a hearing panel, or the PDJ may reprimand a respondent. Ariz. R. Sup. Ct. 60(a)(3).
(5) Admonition. The Arizona Supreme Court, a hearing panel, the PDJ, or the ADPCC may issue an admonition. Ariz. R. Sup. Ct. 60(a)(4).
(6) Probation. The Arizona Supreme Court, a hearing panel, the PDJ, or the ADPCC may order probation. Probation is to be for a specified period not to exceed two years, but may be extended for an additional two-year period. Probation should only be imposed when 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. Ariz. R. Sup. Ct. 60(a)(5).
(7) Restitution. Restitution can be awarded by the Arizona Supreme Court, a hearing panel, the PDJ, or the ADPCC to persons financially injured by the conduct involved, including reimbursement to the Client Security Fund. Ariz. R. Sup. Ct. 60(a)(6).
(8) Assessment of Costs and Expenses. Assessment of the costs and expenses of proceedings may be imposed by the Arizona Supreme Court, a hearing panel, the PDJ, or the ADPCC. Assessment is to be made on every respondent upon whom another sanction is imposed in a formal disciplinary proceeding. Assessment of costs and expenses may also be assessed against a respondent in a disability proceeding. Ariz. R. Sup. Ct. 60(b). If good cause is shown, costs may be reduced, deferred or waived. Id.
(9) Summary Suspension. The State Bar Board of Governors may...
